Not Plain Error if Appellant Invited the Error

State of Utah v. Shaffer, 2010 UT App. 176, (Utah Court of Appeals July 1, 2010).  This opinion was amended and renumbered to 2010 UT App 176.  I could not determine the amendment, but the link below now links to the amended opinion.

Shaffer entered into an agreement with the State.  At the change of plea hearing, the defense misstated the agreement and agreed to further misstatements by The State.  Further, the State failed to make a recommendation to AP&P as agreed in the plea agreement.  The Judge rejected the State’s recommendation and adopted AP&P’s recommendation.

The Court of Appeals affirmed, finding that the trial court’s actions did not constitute plain error because even if the court believed that the state had breached the plea agreement, the affirmative actions by defense counsel invited the error and an invited error is not plain error, furthermore such an is irrelevant because the court rejected the agreement.

The failure of defense counsel to remedy the matter we not prejudicial for the same reasons, that the court rejected the agreement even in its misstated form.

Further, Defendant did not raise a dispute that the State had not recommended the sentence to AP&P before the trial court and so the trial court had no knowledge of any possible error, thus defendant again invited the error by failing to bring it to the court’s attention and affirmatively agreeing with the State’s statements at the hearing.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/shaffer082610.pdf

Modifications to Statute that Change the Effect of a Plea Bargain During Probation Are Not Ex Post Facto Laws

State of Utah v. Holt, 2010 UT App. 138, (Utah Court of Appeals May 27, 2010).

Holt pleaded guilty to two counts of sexual exploitation of a minor.  As part of the plea, the State agreed to recommend that a reduction in his offense at the satisfactory completion of his probation.  Such an amendment would allow Holt to avoid having to register as a sex offender. While Holt was on probation, the legislature changed statute limiting the court’s ability to amend Holt’s charges as he agreed in the plea agreement.  The Court refused to reduce the offense.  Holt appealed arguing that the change to the statute violated the ex post facto clause and the contract clause of the Constitution.  The Court of Appeals disagreed finding that the amendment to the law did not increase the magnitude of the punishment for the crime and that the underlying penalty was unchanged.  Additionally, while a plea is contract-like, it is not a contract for constitutional purposes.  Further, the plea states that it is not binding on the court.  As such, the Court of appeals affirmed the trial court’s denial of the reduction in charges. The Court did however rule that this change might open the door to a petition to withdraw plea based on the lack of a knowing waiver at the time of the plea.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/holt052710.pdf