State v. Alvarez

473 P.3d 655

STATE of Utah, Appellee,

v.Romeo Alyss ALVAREZ, Appellant.

No. 20190289-CA

Court of Appeals of Utah.

Filed September 3, 2020

Brett J. DelPorto, Attorney for Appellant

Sean D. Reyes and Kris C. Leonard, Salt Lake City, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.

Opinion

HARRIS, Judge:

¶1 Romeo Alyss Alvarez shot and killed a person from whom he had been attempting to purchase a video game console. After being charged with various crimes, including aggravated murder, Alvarez eventually pled guilty to felony murder, aggravated robbery, and aggravated assault. He now appeals, taking issue with the district court's failure to further inquire into his stated dissatisfaction with his appointed attorney and with the court's denial of a motion to continue his sentencing. He also asserts that his appointed attorney rendered ineffective assistance. Because we determine that, under Utah's plea withdrawal statute, we have no jurisdiction to consider Alvarez's claims on direct appeal, we dismiss Alvarez's appeal.

BACKGROUND

¶2 Around Christmas, an individual (Seller) advertised a PlayStation 4 video game console for sale in an online marketplace.¹ After Alvarez expressed interest in purchasing the item, the two agreed to meet one morning at a street intersection to complete the transaction. Alvarez and a friend (Friend) arrived to make the purchase and found Seller, along with a passenger (Passenger), waiting in Seller's car. Alvarez and Friend then got in the car and asked Seller to drive them to a different location so that Alvarez could get the money he needed for the purchase, and Seller obliged.

¶3 Upon arriving at the second location, Alvarez drew a gun and told Seller and Passenger to "turn over everything they had." Seller turned and attempted to grab the gun from Alvarez, and the two struggled over it. During the course of the struggle, the gun fired twice, and both shots struck Seller at close range: one shot hit him in his forearm, and the other in his chest. Meanwhile, Friend dragged Passenger out of the vehicle and began hitting her with brass knuckles and kicking her; after shooting Seller, Alvarez pointed the gun at Passenger and told her to stay down. A concerned citizen (Witness) drove by and asked if anyone needed help, but Alvarez pointed the gun at Witness, who then drove away and called 911.

¶4 After that, Alvarez and Friend took property from Seller's car and fled the scene on foot. The police arrived shortly thereafter, and attempted to aid Seller, but he ultimately died from the gunshot wound to his chest. Police then followed footprints and a trail of blood for some distance where they located a discarded PlayStation 4 box, splattered with what appeared to be blood. They also located Alvarez's wallet in the back seat of Seller's car. Police were able to locate Alvarez later that day and take him into custody.

¶5 After Alvarez was arrested, the State charged him with one count of aggravated murder, one count of aggravated robbery, one count of felony discharge of a firearm, two counts of aggravated assault, and one count of obstruction of justice. Alvarez was assigned a public defender (Appointed Counsel), who, after reviewing the discovery provided by the State, began to explore the possibility of a plea agreement.

¶6 About a week before the plea agreement was formalized, Alvarez explained to the court at a scheduling hearing that he was dissatisfied with, and would like to fire, Appointed Counsel because Alvarez did not "have confidence in him." Without asking any follow-up questions, the court told Alvarez that it would not appoint substitute counsel at that time, explaining that his right to representation did not guarantee him the counsel of his choice and that he was free to fire Appointed Counsel if he wished, but without a demonstrable conflict, he was not entitled to a new public defender. Alvarez did not articulate any actual conflict with Appointed Counsel, and the hearing ended without Alvarez firing Appointed Counsel or the court appointing substitute counsel.

¶7 After that hearing, Alvarez and his family hired a private attorney to "look[ ] through the discovery" and "g[i]ve them an opinion" about whether the plea arrangement offered by the State was a fair deal under the circumstances. This second attorney told Alvarez and his family that, in the attorney's opinion, the plea arrangement was a good one for Alvarez, because the "best case scenario" for Alvarez at trial, given the evidence the State planned to present, would be for the jury to convict him only of the crimes to which he would plead guilty under the proposed plea arrangement and nothing more.

¶8 One week after the scheduling hearing, and after receiving the second attorney's opinion, Alvarez appeared again in court and this time he entered into a plea agreement with the State. Under the terms of the deal, Alvarez pled guilty to felony murder (rather than aggravated murder), aggravated robbery, and one count of aggravated assault. In exchange, the State dropped the three remaining charges (felony discharge of a firearm, obstruction of justice, and an additional count of aggravated assault). Both in writing—in the written plea agreement—and orally in open court, Alvarez stated that he was entering into the arrangement freely and voluntarily, and that he was "satisfied with the advice and assistance" of Appointed Counsel. The court also advised Alvarez that he may be able to withdraw his plea, but only prior to sentencing. The court then scheduled a sentencing hearing.

¶9 A couple of weeks before the scheduled sentencing hearing, a third attorney (Retained Counsel) filed a "Notice of Limited Appearance" on Alvarez's behalf. In that notice, Retained Counsel specified that he was "not replacing" Appointed Counsel as Alvarez's counsel of record. A few days later, Retained Counsel—but not Appointed Counsel—filed a written Motion to Continue Sentencing, noting that Alvarez was only eighteen years old, and that Retained Counsel had just been retained and needed time "to review the massive discovery" in the case and "investigate the case before sentencing," all with an eye toward examining "whether there may be grounds to move to withdraw" Alvarez's plea. Both the State and Seller's family opposed the motion, noting the logistical difficulties that would be visited upon members of Seller's family—who had traveled to Utah from California for the sentencing hearing—if the hearing were to be continued. After reviewing the filings, the district court issued a written order, entered three days prior to the scheduled sentencing hearing, denying Retained Counsel's motion to continue.

¶10 Three days later, Retained Counsel appeared at the sentencing hearing, in addition to Appointed Counsel, and orally renewed his motion to continue the hearing. Appointed Counsel did not join in that motion. In support of the motion, Retained Counsel again stated that he needed time to review the discovery and to inform Alvarez and his family about whether the plea deal was "the absolute best plea that they could get," and whether there existed grounds to withdraw the plea. He also noted that there had been "a conflict between" Alvarez and Appointed Counsel, an issue that might "go to the issue of the voluntariness of the plea," and he specifically made note of an allegation that Appointed Counsel had raised the specter of the death penalty with Alvarez during discussions about the plea deal. Retained Counsel offered his view that "[t]his isn't a death penalty case," and that Alvarez might have been coerced into accepting the deal because of a concern about the death penalty.

¶11 In response, the district court inquired of Retained Counsel whether he was making a motion to withdraw the plea, and Retained Counsel made clear that he was not, and that he could not do so at that time because he was not sure that he had grounds to do so; indeed, he acknowledged that his investigation might well demonstrate that Appointed Counsel "did a great job" and that the plea arrangement was "the best plea" that Alvarez could get. After considering argument from all counsel, the district court orally denied Retained Counsel's motion to reconsider the court's previous denial of the motion to continue, noting in particular that Alvarez had already obtained a second opinion about the plea agreement, and that he was not entitled to a continuance in order to obtain a third. A few days later, the district court followed up its oral ruling with a written order memorializing that ruling.

¶12 After the court made its oral ruling denying the motion to continue, Retained Counsel asked to withdraw from his limited representation, which motion the court granted. Appointed Counsel then sought and obtained a short recess in order to confer with Alvarez. After the recess, Appointed Counsel asked the court for the benefit of the record regarding Alvarez's intentions for withdrawing his plea. Counsel stated that, during the recess, he had asked Alvarez "if he wanted to make a verbal motion to withdraw the plea." Appointed Counsel told Alvarez that counsel "did not see or have any grounds to withdraw the plea," but told Alvarez that "if [Alvarez] wanted to articulate those grounds that he has not articulated to [Appointed Counsel], he could make that motion today before sentencing." Counsel then told the court that, while Alvarez would like to "put ... off" the sentencing, Alvarez had decided not to make a motion to withdraw his plea, and had decided to "move forward with sentencing." The court then addressed Alvarez directly, and asked him whether he wished to make a motion to withdraw his plea, and Alvarez answered that he did not, and that he was making that decision freely and voluntarily.

¶13 The court then proceeded with the sentencing hearing, and ultimately sentenced Alvarez to a prison sentence of...