              This opinion is subject to revision before final
                    publication in the Pacific Reporter

                               2013 UT 55

                                  IN THE

      SUPREME COURT OF THE STATE OF UTAH
                           STATE OF UTAH,
                        Plaintiff and Appellee,
                                   v.
                       DAMIEN A. CANDLAND,
                       Defendant and Appellant.

                            No. 20110738
                        Filed August 16, 2013

                   Fourth District, Provo Dep’t
                  The Honorable James R. Taylor
                         No. 101400651

                               Attorneys:
  John E. Swallow, Att’y Gen., Kris C. Leonard, Asst. Att’y Gen.,
                          for appellee
               Aaron P. Dodd, Provo, for appellant

  JUSTICE DURHAM authored the opinion of the Court, in which
   CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
            JUSTICE PARRISH, and JUSTICE LEE joined.


JUSTICE DURHAM, opinion of the Court:
                         INTRODUCTION
   ¶1 Mr. Candland pled guilty to aggravated murder and now
appeals his conviction and sentence. We hold that Mr. Candland
received constitutionally adequate notice of the nature of the charge
and of his limited appeal rights. We also hold that the district court
did not abuse its discretion in determining that Mr. Candland
entered his plea knowingly and voluntarily. We therefore affirm his
conviction and sentence.
                          BACKGROUND
    ¶2 Mr. Candland pled guilty to aggravated murder and
aggravated assault based on two unrelated incidents. His plea
affidavit describes the factual basis for the aggravated murder
charge as follows:
      On February 21, 2010, the defendant, Damien Candland,
      and his aunt . . . got into an altercation at the home in
                    STATE v. DAMIEN CANDLAND
                       Opinion of the Court

      Provo they shared. During the altercation, the
      defendant physically assaulted [his aunt], causing
      multiple bodily injuries. Defendant then bound the
      victim’s hands behind her back with duct tape and
      [brutally murdered her]. . . .
      [Defendant’s aunt] had been a witness against the
      defendant in 4th District Court case # 091401272, in
      which the defendant was charged with and convicted of
      stealing from her. [The aunt] was also a witness in 4th
      District Court case # 091403173, in which the defendant
      was charged with aggravated assault with a deadly
      weapon. Defendant killed her in part in retaliation for
      testifying, providing evidence, or participating in the
      legal proceedings against him in those matters, as well
      as to prevent her from testifying against him in the
      assault committed just before he killed her.
The plea affidavit also describes the elements of the crime of
aggravated murder as follows:
      Intentionally or knowingly;
      Caused the death of another;
      And the homicide was committed for the purpose of
      retaliating against a person for testifying, providing
      evidence, or participating in any proceedings or official
      investigation ([Utah Code section] 76-5-202(1)(k)(iii)).
Mr. Candland initialed the affidavit next to these statements of the
factual basis for the charge and the elements of the crime. He also
initialed to acknowledge that by pleading guilty he was “giving up
[his] right to appeal [his] conviction.”
   ¶3     The aggravated assault charge, which is not at issue in this
appeal, was based on evidence that Mr. Candland attacked a
different victim while the victim was riding a bicycle. Mr. Candland
allegedly threw the victim to the ground, pinned him down, and
punched him in the face, breaking his jaw and eye socket.
   ¶4      Mr. Candland pled guilty to both charges at a hearing on
January 20, 2011. In the colloquy preceding the entry of the pleas, the
district court explained that Mr. Candland was waiving his rights to
a presumption of innocence, to a speedy jury trial, to confront and
cross-examine witnesses against him, to summon witnesses, and not
to incriminate himself. The court confirmed that Mr. Candland had
read the plea affidavit and discussed it with his attorney. The court


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then explained the elements of the two charges. Regarding the
aggravated murder charge, the court explained that the state would
have to prove beyond a reasonable doubt that Mr. Candland
“intentionally or knowingly caused the death of another person . . .
in order to prevent a witness from testifying, to prevent a person
from participating in legal proceedings or an investigation, or to
retaliate for their participation by providing evidence or information
in a proceeding.”
   ¶5     The prosecutor then explained the factual basis for each
charge, which mirrored the statement from the plea affidavit.
See supra ¶ 2. The court then said to Mr. Candland, “Those facts are
sufficient to establish the charge against you. Now, my conclusion
on that point is something that you would not be able to appeal; do
you understand that, sir?” Mr. Candland responded in the
affirmative.
   ¶6      The district court then posed several more questions to
Mr. Candland, including, “Are you pleading guilty because you did
these things?” When Mr. Candland did not immediately reply, the
court suggested he confer with his attorney. After a brief discussion
off the record, Mr. Candland’s attorney explained to the judge that
Mr. Candland admitted to punching the cyclist victim but not to
holding him down and punching him repeatedly, as the prosecutor
alleged. The court then rephrased the question he had posed to
Mr. Candland, asking if he understood that he was admitting to
having “caused the death of another person, under the
circumstances that were described,” and to having “physically
harmed another person, causing the injuries that were described.”
When Mr. Candland again did not immediately respond, the court
asked, “Is that what happened?” Mr. Candland responded, “Yeah.”
  ¶7      Finally, the court explained that in order to withdraw the
guilty pleas, Mr. Candland would have to show that at the hearing
he was “in some way confused.” The court asked Mr. Candland,
“Are you confused in any way this morning?” Mr. Candland replied,
“No.” The court then accepted both guilty pleas.
   ¶8     The day after the hearing, on January 21, Mr. Candland
submitted a handwritten letter to the district court, stating that he
was confused when he entered his plea and requesting permission
to withdraw his plea. On January 26 and February 7, Mr. Candland
sent the court two more handwritten letters with the same message.
On February 15, the district court appointed new counsel for
Mr. Candland, with whose assistance Mr. Candland filed a motion
to withdraw his plea. The court held oral arguments, at the

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conclusion of which it denied the motion, holding that
“Mr. Candland was adequately informed, [and] was not confused.”
Mr. Candland appealed. We have jurisdiction under Utah Code
section 78A-3-102(3)(i).
                     STANDARD OF REVIEW
   ¶9     The question of whether a guilty plea is knowingly and
voluntarily entered has both factual and constitutional dimensions.
As to the subjective inquiry of whether a defendant understood the
factual and legal basis for the plea and made an informed decision
to waive the implicated constitutional rights, we owe deference to
the district court. The defendant’s subjective understanding is a
factual question that the district court is in a better position to
determine than we are because during the plea hearing and any
subsequent hearings, the court can “assess not only the verbal
content of the defendant’s responses, but also the entire spectrum of
verbal and nonverbal behavior that comprises his presence before
the judge.” State v. Beckstead, 2006 UT 42, ¶ 10, 140 P.3d 1288.
   ¶10 As to the constitutional inquiry, we review for correctness
whether the plea hearing and documents incorporated into the plea
hearing record meet the minimum due process requirements of
providing the defendant notice of the nature of the charges, the
constitutional rights being waived, and the likely consequences of
the guilty plea. See id. ¶ 8 (stating that the district court’s compliance
with the constitutional requirements for accepting guilty pleas is a
question of law, reviewed for correctness).
                              ANALYSIS
   ¶11 To be valid, a guilty plea must be entered knowingly and
voluntarily. This standard requires that defendants receive
constitutionally adequate notice of the nature of the charges, the
constitutional rights being waived, and the likely consequences of
the plea. It also requires that defendants subjectively understand this
information and enter the guilty plea of their own free choice.
    I. A GUILTY PLEA MAY BE WITHDRAWN IF IT IS NOT
         “KNOWINGLY AND VOLUNTARILY MADE”
   ¶12 The withdrawal of guilty pleas is governed by Utah Code
section 77-13-6(2), which provides that a defendant may withdraw
a guilty plea if it “was not knowingly and voluntarily made.” The
phrase “knowingly and voluntarily” is informed by federal due
process standards. State v. Alexander, 2012 UT 27, ¶ 16, 279 P.3d 371.
   ¶13    Under U.S. Supreme Court precedent, a guilty plea that is


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not “voluntary and knowing . . . has been obtained in violation
of due process and is therefore void.” McCarthy v. United States, 394
U.S. 459, 466 (1969). For a plea to be voluntary and knowing, the
defendant must have knowledge of the nature of the charges, of the
constitutional rights being waived, and of the likely consequences of
entering the guilty plea. Bradshaw v. Stumpf, 545 U.S. 175, 182–83
(2005) (holding that for a plea to be valid, a defendant must be
“aware of the nature of the charges against him, including the
elements of the . . . charge to which he plead[s] guilty”); Brady v.
United States, 397 U.S. 742, 748 (1970) (holding that defendants who
plead guilty must have ”sufficient awareness of the relevant
circumstances and likely consequences”); Boykin v. Alabama, 395 U.S.
238, 243 (1969) (holding that the record must show that the
defendant who pled guilty was informed of “the privilege against
compulsory self-incrimination,” “the right to trial by jury,” and “the
right to confront one’s accusers”). The plea must also be the result of
the defendant’s “voluntary and intelligent choice,” not the result of
improper threats or coercion. Hill v. Lockhart, 474 U.S. 52, 56 (1985)
(internal quotation marks omitted).
   ¶14 It is the responsibility of the district court to ensure that
defendants enter pleas knowingly and voluntarily. Boykin, 395 U.S.
at 243–44 (“What is at stake for an accused facing death or
imprisonment demands the utmost solicitude of which courts are
capable in canvassing the matter with the accused to make sure he
has a full understanding of what the plea connotes and of its
consequence.”). To aid district courts, we created rule 11 of the Utah
Rules of Criminal Procedure, which provides a roadmap for
ensuring that defendants receive adequate notice of their rights and
for examining defendants’ subjective understanding and intent. See
Alexander, 2012 UT 27, ¶ 17. Although district courts are not
constitutionally obligated to follow rule 11, we strongly encourage
them to do so to ensure that they address each due process
requirement and create a record of their inquiry. See id. ¶¶ 17, 24.
    ¶15 When district judges follow rule 11, they provide more
procedural protections to defendants than are required by the
federal due process clause. Thus, if an appellate court determines
that the district court has fully complied with rule 11, many
constitutional challenges to the entry of a guilty plea are foreclosed.
Id. ¶ 24. However, if the district court has failed to comply with rule
11, the appellate court must consider whether the notice to the
defendant complied with federal due process requirements when a
federal constitutional challenge is raised. See supra ¶ 13. In reviewing
the notice provided to the defendant, appellate courts may consider

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the plea hearing transcript and any document incorporated into the
plea hearing record through the defendant’s oral acknowledgment
at the hearing of having read and understood the contents of the
document.1 See Alexander, 2012 UT 27, ¶ 31; UTAH R. CRIM. P. 11(e).
   ¶16 Appellate courts must also determine whether the district
court abused its discretion in finding that the defendant actually
entered the plea knowingly and voluntarily; that is, whether the
defendant actually understood the charges, the constitutional rights,
and the likely consequences of the plea and voluntarily chose to
plead guilty. This appellate review is based on the transcripts of the
plea hearing and any evidentiary hearing on the motion to withdraw
the plea, as well as the circumstances surrounding the case. See, e.g.,
State v. Corwell, 2005 UT 28, ¶ 19, 114 P.3d 569 (concluding that the
defendant was actually aware of her speedy trial right after the
judge warned her she would be giving up her “trial next Monday”).
      II. MR. CANDLAND’S PLEA WAS “KNOWINGLY AND
                   VOLUNTARILY MADE”
  ¶17 Mr. Candland argues on appeal that his plea was not
“knowingly and voluntarily made” for two reasons: (1) he did not
understand the relation of the facts to the law and (2) he was
misinformed and confused about his right to appeal.
                A. The Relation of the Facts to the Law
   ¶18 Mr. Candland first asserts that he did not understand how
the facts related to the elements of the crime of aggravated murder.
He does not seem to dispute that his notice of the charges and their
factual bases were constitutionally adequate. Indeed, it would be
nearly impossible to make such an argument because both the plea
colloquy and the plea agreement, which was incorporated into the
plea hearing record,2 clearly set forth the charges and the alleged
conduct by Mr. Candland that corresponded with the elements of
the charges, in compliance with rule 11. See supra ¶¶ 2–5. Rather,
Mr. Candland alleges that his subjective understanding of the facts
and the law was inadequate.
  ¶19     Mr. Candland supports his argument by pointing to his

  1
     If the defendant cannot read or does not understand English, it
is sufficient if counsel or another individual has read the document
to or translated it for the defendant. See UTAH R. CRIM. P. 11(e).
  2
    Mr. Candland stated during the plea colloquy that he had read
the plea affidavit, had discussed it with his attorney, and had
understood it.

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silence following the court’s question, “Are you pleading guilty
because you did these things?” Mr. Candland contends that his
failure to immediately respond demonstrates that he was confused.
However, in context, the transcript shows that Mr. Candland was
confused only about the aggravated assault charge, not about the
aggravated murder charge.
   ¶20 When Mr. Candland did not immediately respond to the
court’s question, the court suggested that defense counsel confer
with Mr. Candland. Following a brief discussion off the record,
defense counsel explained that Mr. Candland was uncomfortable
with the prosecutor’s description of the assault. Although he
admitted to punching the victim, he did not admit to holding him
down and punching him repeatedly. Thus, Mr. Candland’s hesitancy
was entirely unrelated to the aggravated murder case, and the
district court did not abuse its discretion in determining that
Mr. Candland knowingly and voluntarily entered a guilty plea to the
aggravated murder charge.
                           B. Appeal Rights
   ¶21 Mr. Candland further asserts that the district court
misinformed him regarding his right to appeal. On this issue,
Mr. Candland seems to assert both that the notice of his appeal
rights was constitutionally defective and that he was actually
confused.
   ¶22 Because this issue was not preserved, Mr. Candland asks
us to review it for plain error. “To prevail under plain error review,
a defendant must demonstrate three elements. First, he must
establish that an error did in fact occur. Second, he must establish
that the error should have been obvious to the trial court. Third, the
defendant must establish that the error was harmful . . . .” State v.
King, 2006 UT 3, ¶ 21, 131 P.3d 202 (citations omitted) (internal
quotation marks omitted). Because Mr. Candland’s argument falters
on the first requirement—that an error did in fact occur—we do not
reach the second and third requirements.
   ¶23 We conclude that Mr. Candland received constitutionally
adequate notice of the appeal rights he waived by entering a guilty
plea. The plea affidavit explained that Mr. Candland was waiving
his state constitutional right to appeal his conviction:
      If I chose to go to trial and if I am convicted, I know the
      Constitution of Utah provides that I would have the
      right to appeal my conviction and/or sentence. If I
      could not afford the costs of an appeal, the State would

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      pay those costs for me. I understand that I am giving up
      my right to appeal my conviction if I plead guilty.
This statement in the plea affidavit complies with rule 11’s
requirement that defendants be “advised that the right of appeal is
limited.” UTAH R. CRIM. P. 11(e)(8). Thus, Mr. Candland’s due
process right to notice of the repercussions that his guilty plea would
have on his right to appeal was sufficiently protected.
   ¶24 Mr. Candland also contends that his plea was not
knowingly and voluntarily made because he was confused by the
following statement by the district court: “Those facts are sufficient
to establish the charge against you. Now, my conclusion on that
point is something that you would not be able to appeal; do you
understand that, sir?” Although this statement is less complete than
the statement in the plea affidavit, it was not misleading. Defendants
who knowingly and voluntarily enter a plea agreement that waives
the right to appeal cannot appeal their conviction based on the
sufficiency of the factual allegations. Manning v. State, 2005 UT 61,
¶ 36, 122 P.3d 628 (recognizing that an appeal from a “knowing and
voluntary guilty plea pursuant to a plea agreement that expressly
waives the right to appeal . . . may only be undertaken following a
timely motion for withdrawal of the guilty plea”(citation omitted)).
The court’s statement was not erroneous and does not support
Mr. Candland’s argument that he was confused. Thus, the district
court did not abuse its discretion in making the subjective
determination that Mr. Candland knowingly and voluntarily entered
his plea.
   ¶25 Because Mr. Candland received notice that he was waiving
his appeal rights in compliance with rule 11 and because the district
court did not stray beyond the bounds of its discretion in finding
that Mr. Candland knowingly and voluntarily waived those rights,
there is no error for us to review under the plain error framework.
                          CONCLUSION
   ¶26 The district court complied with rule 11 in ensuring that
Mr. Candland had been informed of the nature of the charges and
the limitations on his appellate rights. Therefore, this notice was
constitutionally adequate. The district court also reasonably
concluded that Mr. Candland entered his guilty plea knowingly and
voluntarily. We affirm the conviction and sentence.




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