2015 UT App 71

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

RAYMOND C. VELARDE,

Defendant and Appellant.

Opinion

No. 20130812-CA

Filed March 26, 2015

Second District Court, Ogden Department

The Honorable Michael D. DiReda

No. 121902632

Samuel P. Newton, Attorney for Appellant

Sean D. Reyes and Kris C. Leonard, Attorneys

for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which 

JUDGES JAMES Z. DAVIS and KATE A. TOOMEY concurred.

VOROS, Judge:

¶1 Raymond C. Velarde appeals his conviction for arranging 

to distribute a controlled substance. Velarde contends that the 

district court erred in denying his motion to withdraw his guilty 

plea. We conclude that the district court acted within its 

discretion in denying the motion. Accordingly, we affirm.

BACKGROUND

¶2 A deputy for the Weber County Sheriff’s Office testified 

to the following facts at Velarde’s preliminary hearing. On 

December 4, 2012, a confidential informant contacted Velarde by 

phone. Velarde arranged to meet the informant and to sell him 
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three to four ounces of methamphetamine. The deputy listened 

in on the call and accompanied the informant to the meeting 

place. The informant described Velarde and Velarde’s car. When 

Velarde arrived, the deputy arrested him. The deputy found four 

ounces of methamphetamine in Velarde’s car. Velarde admitted

to the deputy that he had agreed to meet the informant and to 

sell him methamphetamine.

¶3 The State charged Velarde with arranging to distribute a 

controlled substance under section 58-37-8(1)(a)(ii) of the Utah 

Code. That section states that “it is unlawful for any person to 

knowingly and intentionally: . . . (ii) distribute a controlled or 

counterfeit substance, or to agree, consent, offer, or arrange to 

distribute a controlled or counterfeit substance.” Utah Code 

Ann. § 58-37-8(1)(a)(ii) (LexisNexis 2012). 

¶4 Velarde pled guilty as charged. The factual basis written 

on the plea affidavit said only “as stated in court.” The court 

held a plea colloquy before accepting the guilty plea. The court 

verified that Velarde had read and understood the plea 

agreement. The judge then asked Velarde what he had done, and 

Velarde stated that he had methamphetamine on his person and 

“was going to distribute it.” The court accepted Velarde’s guilty 

plea and found that Velarde entered it knowingly and 

voluntarily. Velarde later moved to withdraw his guilty plea. 

The court denied the motion. The court sentenced Velarde to an 

indeterminate term of one to fifteen years in prison. Velarde 

appeals the district court’s denial of his motion to withdraw his 

guilty plea. 

ISSUE AND STANDARD OF REVIEW

¶5 Velarde contends that the district court erred when it 

denied his motion to withdraw his guilty plea. We review the 

district court’s denial of a motion to withdraw a guilty plea for 

an abuse of discretion. See State v. Beckstead, 2006 UT 42, ¶ 7, 140 
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20130812-CA 3 2015 UT App 71

P.3d 1288. “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.” State v. Candland, 2013 

UT 55, ¶ 9, 309 P.3d 230.

ANALYSIS

¶6 Velarde contends that the court failed “to strictly comply 

with Rule 11(e)(4)(A) of the Utah Rules of Criminal Procedure.” 

Velarde maintains that he did not knowingly and voluntarily 

enter his plea, because “the court failed to clarify and articulate 

that the factual basis mirrored the appropriate elements of the 

offense and that [he] understood he was admitting to those 

facts.” Specifically, Velarde argues that “*t+he court’s colloquy 

did not show that Mr. Velarde understood that he was admitting 

to agreeing, consenting, offering or arranging in any way.” See

Utah Code Ann. § 58-37-8(1)(a)(ii). 

¶7 Rule 11 provides that the court may not accept a guilty 

plea until it has found that “the defendant understands the 

nature and elements of the offense to which the plea is entered,”

Utah R. Crim. P. 11(e)(4)(A), and that “there is a factual basis for 

the plea,” id. R. 11(e)(4)(B). “A factual basis is sufficient if it 

establishes that the charged crime was actually committed by the 

defendant or, if the defendant refuses or is otherwise unable to 

admit culpability, that the prosecution has sufficient evidence to 

establish a substantial risk of conviction.” Id. 

¶8 Rule 11 governs the taking of guilty pleas, but not their 

withdrawal. “Although rule 11 provides guidance for the entry 

of guilty pleas, any attempt to withdraw that plea is governed by 

statute.” State v. Alexander, 2012 UT 27, ¶ 19, 279 P.3d 371 

(citation omitted). Utah Code section 77-13-6 provides in part 

that a “plea of guilty . . . may be withdrawn only upon leave of 

the court and a showing that it was not knowingly and 
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20130812-CA 4 2015 UT App 71

voluntarily made.” Utah Code Ann. § 77-13-6(2)(a) (LexisNexis 

2012). “This statutory standard mirrors the showing necessary 

for defendants to prove that their pleas are unconstitutional.”

Alexander, 2012 UT 27, ¶ 19. “Thus, even if there was a violation 

of rule 11 during the plea hearing, appellate courts must 

continue to inquire into whether there is evidence that the plea 

was nonetheless knowingly and voluntarily made.” Id. ¶ 25.

¶9 The existence of a factual basis for a guilty plea “shall be 

determined by examining the record as a whole.” Utah R. Crim. 

P. 11(l). The record as a whole includes “transcripts of the plea 

hearing and . . . the circumstances surrounding the case,”

Candland, 2013 UT 55, ¶ 16, including the plea affidavit and—of 

particular relevance here—the transcript of the preliminary 

hearing, see Willett v. Barnes, 842 P.2d 860, 863 (Utah 1992)

(stating that “what occurred at the preliminary hearing” may be

“sufficient to provide a factual basis for plaintiff’s later plea”).

¶10 Velarde heard the charge and its elements during the 

reading of the information and waived a later reading of the 

information, saying that he understood the charges. In addition, 

at Velarde’s preliminary hearing, a deputy of the Weber County 

Sheriff’s Office testified that Velarde admitted to arranging the 

sale of methamphetamine to a friend (who turned out to be the

confidential informant). Velarde arrived at the place arranged 

for the sale of the methamphetamine and was identified by the 

informant. Velarde confessed that he planned to sell the four

ounces of methamphetamine recovered from his vehicle. In 

connection with the plea agreement, Velarde read, understood, 

and signed the plea affidavit, which described the elements of 

the crime charged and the rights Velarde waived by pleading 

guilty. And during the plea colloquy, he admitted to having 

methamphetamine and said he was “going to distribute it.” 

¶11 This record evidence demonstrates that Velarde 

understood the nature of the offense to which he pled guilty and 
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20130812-CA 5 2015 UT App 71

the factual basis for his guilty plea. In particular, the evidence

presented at his preliminary hearing provides an ample factual 

basis for the charge of arranging to distribute a controlled 

substance. Consequently, we conclude that the district court 

acted well within its discretion in ruling that Velarde’s plea was

made knowingly and voluntarily.

CONCLUSION

¶12 The judgment of the district court is affirmed.