2015 UT App 92

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

RICHIE CHARLES HARVEY,

Defendant and Appellant.

Memorandum Decision

No. 20130466-CA

Filed April 16, 2015

Fourth District Court, American Fork Department

The Honorable Christine S. Johnson

No. 101100836

Jennifer Gowans Vandenberg, Attorney

for Appellant

Sean D. Reyes and Ryan D. Tenney, Attorneys

for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in 

which JUDGES JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN

concurred.

ROTH, Judge:

¶1 Defendant Richie Charles Harvey appeals from the 

district court’s denial of his motion to withdraw his plea of no 

contest to aggravated assault, a third degree felony. Harvey first 

argues that the district court abused its discretion in determining 

that his plea was made knowingly and voluntarily. Second, he 

challenges the court’s denial of his motion on the grounds of 

plain error and ineffective assistance of counsel. We affirm.
State v. Harvey

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I. Harvey’s Plea Was Knowing and Voluntary. 

¶2 Harvey contends that his misunderstanding about his 

own criminal history renders his plea unknowing and 

involuntary. This case began when Harvey allegedly sexually

assaulted a woman in 2010 and was subsequently charged with 

forcible sexual abuse, a second degree felony, and unlawful 

detention, a class B misdemeanor. After negotiations between 

the State and Harvey’s counsel, the State agreed to drop the 

unlawful detention charge and convert the forcible sexual abuse 

charge to third degree aggravated assault if Harvey would plead 

no contest. Prior to the entry of Harvey’s plea, defense counsel 

showed Harvey the matrix that Adult Probation and Parole 

(AP&P) employs as part of its process of developing 

recommendations to assist district courts in determining 

appropriate sentences for offenders. Counsel emphasized to 

Harvey that it was very important for him to tell her about ‚any 

conviction anywhere,‛ including convictions outside of Utah, so 

that she could give him the most accurate estimate possible of 

‚what was likely to happen at sentencing‛ if he accepted the 

plea offer. Harvey identified a number of prior misdemeanor 

convictions but told counsel he had never been convicted of a 

felony. Based on this information, counsel advised Harvey that it 

was likely he ‚would do some jail time‛ but that a prison 

sentence was unlikely. However, she also told Harvey that there 

was a potential for a maximum sentence of zero to five years in 

prison and that she could make ‚no guarantees‛ about what 

Harvey’s actual sentence would be. 

¶3 Harvey accepted the State’s offer and entered a no-contest 

plea to the third degree felony. Just before entering his plea, he 

signed a plea affidavit informing him, among other things, of the 

maximum sentence for the charge. The district court also 

conducted a plea colloquy and determined that Harvey had 

entered the plea knowingly and voluntarily. AP&P prepared a 

presentence investigation report (PSI) in anticipation of the 

sentencing hearing. As part of the PSI, AP&P calculated a 
State v. Harvey

20130466-CA 3 2015 UT App 92

criminal history assessment score for Harvey, which it then 

incorporated into the Utah Sentencing Commission’s general 

matrix (the Sentencing Matrix). The Sentencing Matrix 

‚compare*s+ a defendant’s ‘criminal history assessment’ score 

with the degree of the offense of which he ha*s+ been convicted.‛ 

State v. Egbert, 748 P.2d 558, 561–62 (Utah 1987). The Sentencing 

Matrix ‚creates a starting point‛ for sentencing judges by 

‚reflect*ing+ a recommendation for a typical case,‛ but judges are 

not bound by the recommendations and are to take both 

‚aggravating and mitigating circumstances‛ into account, along 

with other pertinent considerations, when making sentencing 

decisions. See Utah Sentencing Commission, 2014 Adult 

Sentencing and Release Guidelines 1, available at

http://www.sentencing.utah.gov. The Sentencing Matrix itself 

includes the following statement at the top: ‚These are 

guidelines only. They do not create any right or expectation on 

behalf of the offender.‛ Harvey received a criminal history 

assessment score of nine points in the PSI, which placed him in 

criminal history category III. When viewed in conjunction with 

the third degree felony to which Harvey had pleaded no contest, 

Harvey’s category III score produced a recommendation of 

‚[i]ntermediate [s]anctions‛ on the Sentencing Matrix—i.e., jail 

time and probation rather than imprisonment. AP&P 

recommended, however, that the district court ‚make an[]

upward departure from the sentencing guideline and sentence 

*Harvey+ to prison.‛ AP&P based its prison recommendation on 

Harvey’s extensive arrest record and the violent nature of his 

crimes, his continued blaming of the victim in this case, his 

minimization of his prior criminal history, and the agency’s 

concerns for public safety. 

¶4 At sentencing, Harvey’s counsel requested a continuance 

so AP&P could correct errors counsel identified in the PSI. The 

motion was granted, and AP&P prepared an amended report. 

The corrections to the amended report reduced Harvey’s 

criminal history score from nine points to eight, but the 

reduction did not move him into a different category on the 
State v. Harvey

20130466-CA 4 2015 UT App 92

criminal history scale and, accordingly, did not change the 

recommendation indicated by the Sentencing Matrix. And just as 

it had in the first PSI, AP&P recommended that the district court 

‚make an[] upward departure from the sentencing guideline and 

sentence *Harvey+ to prison‛ because of the various aggravating 

circumstances it had previously articulated. 

¶5 Harvey obtained new counsel and filed a motion to 

withdraw his plea, contending that his plea was not knowing 

and voluntary because ‚he was under the impression that he 

would receive probation for his sentence‛ and he had been told 

by his prior counsel he would not go to prison. He filed a 

separate motion requesting that AP&P further review his 

criminal history and again amend the PSI. He argued, among 

other things, that one of the points allocated to him on the 

Sentencing Matrix was due to an out-of-state felony conviction 

he was ‚adamant‛ never occurred because he had ‚never spent a 

night in prison in any state, nor has he ever been put on parole.‛ 

If the felony were removed, Harvey’s score would be reduced to 

seven points, placing him in category II with a recommendation 

of ‚*r+egular [p]robation‛ on the Sentencing Matrix. The district

court denied Harvey’s motion to withdraw his plea, stating,

It is clear from the record that Mr. Harvey was 

advised of the potential plea, the potential sentence. 

I told him myself on the record and he submitted a 

written statement in advance of pleading guilty that 

also indicates that he was advised of the potential 

sentence. So the idea that now he can suggest that if 

he had known there was any possibility of prison, 

he would not have entered his no-contest plea to me 

seems rather disingenuous.

The district court, however, granted Harvey’s request for further 

clarification of the PSI. 
State v. Harvey

20130466-CA 5 2015 UT App 92

¶6 Over the next year and a half, Harvey failed to appear for 

scheduled hearings, including a subsequent sentencing hearing, 

and warrants were issued for his arrest. In the meantime, AP&P 

produced a second amended PSI confirming, based on 

additional research, that Harvey did indeed have a felony 

conviction in Delaware. Harvey was eventually arrested for 

another assault and brought before the district court for 

sentencing. He continued to assert that the Delaware conviction 

was not a felony and asked the district court to sentence him to 

probation with credit for jail time already served. The district

court, however, found that Harvey was not a good candidate for 

probation given the ‚horrendous‛ nature of the crime he had 

committed as well as his prolonged failure to appear for 

sentencing and his ongoing history of violent crimes. Instead, the 

court sentenced him to zero to five years in prison as AP&P and 

the State had recommended.1

¶7 ‚A plea of guilty or no contest may be withdrawn only 

upon leave of the court and a showing that it was not knowingly 

and voluntarily made.‛ Utah Code Ann. § 77-13-6(2)(a)

(LexisNexis 2012) (the Plea Withdrawal Statute). A plea is 

 

1. The court stated,

This was . . . reduced to a third-degree 

felony to a level of offense where I might have been 

willing to consider probation, but based upon 

[your] conduct thereafter, I just don’t believe that 

you’re a candidate for probation, Mr. Harvey. 

You’ve been a fugitive for a year and a half which 

tells me you are not supervise-able. I can’t trust 

you on probation if I can’t trust you to even show 

up to court when you’re supposed to be here. 

Therefore, I will adopt the recommendation 

of AP&P and impose zero to five in the State prison 

to commence forthwith. 
State v. Harvey

20130466-CA 6 2015 UT App 92

knowing and voluntary ‚only if the defendant is ‘fully aware of 

the direct consequences’ of his plea.‛ State v. Trotter, 2014 UT 17, 

¶ 9, 330 P.3d 1267 (quoting Brady v. United States, 397 U.S. 742, 

755 (1970)). ‚A direct consequence is one that will have a 

definite, immediate and largely automatic effect on the range of 

the defendant’s punishment such as lack of eligibility for 

parole.‛ Id. (citation and internal quotation marks omitted). Both 

defense counsel and the district court have a responsibility to 

‚ensure a defendant is aware of the direct consequences of his or 

her plea.‛ Id. Harvey argues that ‚he did not understand his 

criminal history and thus how it would impact the [Sentencing] 

[M]atrix.‛ He contends that, as a result, his plea was not 

knowing and voluntary because he was not fully aware of its 

consequences. We conclude, however, that Harvey was 

appropriately made aware of the direct consequences of his plea. 

¶8 ‚We review a trial court’s denial of a motion to withdraw 

a guilty plea under an abuse of discretion standard, 

incorporating the clearly erroneous standard for the trial court’s 

findings of fact made in conjunction with that decision.‛ State v. 

Lehi, 2003 UT App 212, ¶ 7, 73 P.3d 985 (citation and internal 

quotation marks omitted); see also State v. Knowlden, 2013 UT 

App 63, ¶¶ 1–2, 298 P.3d 691 (per curiam) (applying the same 

standard to a motion to withdraw a no-contest plea). We 

conclude that the district court did not abuse its discretion in 

refusing Harvey’s request to withdraw his plea. There is ample 

record support for the district court’s findings that both counsel 

and the district court made efforts to ensure that Harvey was 

‚fully aware of the direct consequences of his plea.‛ See Trotter, 

2014 UT 17, ¶ 9 (citation and internal quotation marks omitted). 

While counsel predicted that Harvey’s plea would likely result 

in a jail sentence, she explained to Harvey that a prison sentence 

was a possible consequence and that there were ‚no guarantees‛ 

when it came to sentencing. The district court also conducted a 

plea colloquy before accepting Harvey’s plea in which it 

specifically asked Harvey whether he was aware that prison was 

a possibility, to which he answered, ‚Yes, your Honor.‛ 
State v. Harvey

20130466-CA 7 2015 UT App 92

Additionally, Harvey signed a plea affidavit that clearly 

identified the maximum sentence for the crime to which he was 

pleading as zero-to-five years in prison. Given the record before 

us, we determine that the district court did not err in 

determining that Harvey’s plea was entered knowingly and 

voluntarily because he was aware of the potential consequences 

of his plea. 

¶9 Harvey argues, however, that accurate advice about a 

crime’s potential maximum sentence is not sufficient to render a 

plea knowing and voluntary. He contends that his genuine belief 

he had never committed a felony is sufficient to show he ‚lacked 

a full understanding of the direct consequences of his plea‛ at 

the time it was entered and asserts that ‚had he understood his 

offender score would include a prior felony conviction, it is 

likely that he would not have pled [no contest].‛ We note first 

that AP&P’s recommendation of prison was not a result of 

Harvey’s offender score on the Sentencing Matrix, as his score, 

with or without the felony, would not have produced a 

recommendation on the matrix for prison. Rather, it was AP&P’s 

concern over Harvey’s continued blaming of the victim, his 

violent history, and his prolific arrest record that motivated its 

recommendation of a prison sentence. And the judge based her 

sentencing decision on similar factors as well as Harvey’s 

conduct during the course of the proceedings. Thus, the 

Delaware felony conviction appears to have had relatively little 

impact on Harvey’s sentence and therefore was not the kind of 

information that falls within the scope of a ‚direct consequence‛ 

of his plea, i.e., something that would have ‚a definite, 

immediate and largely automatic effect on the range of the 

defendant’s punishment.‛ See id. (citation and internal quotation 

marks omitted).

¶10 More importantly, however, Harvey has failed to 

convince us that a defendant’s misunderstanding of or 

disagreement as to his own criminal history is sufficient to 

render his plea involuntary when he has been correctly informed 
State v. Harvey

20130466-CA 8 2015 UT App 92

of its potential consequences. Harvey cites State v. Robinson, 263 

P.3d 1233 (Wash. 2011) (en banc), and People v. Chippewa, 751 

P.2d 607 (Colo. 1988) (en banc), as support for his contention that 

a defendant’s plea is not knowing and voluntary, even when the 

defendant is aware of the potential maximum sentence, if it is 

based on a mistaken belief held by defendant about the potential 

for a sentence less than the maximum. We conclude that these 

cases are distinguishable from the circumstances here.

¶11 In Robinson, when the defendant pleaded guilty, he was 

not made aware of changes to Washington law that allowed a 

defendant’s juvenile criminal record to be included in the 

calculation of his criminal history score when sentenced for a 

crime he committed as an adult. 263 P.3d at 1234. The Robinson 

court determined the defendant’s mistaken belief that his 

juvenile record would not be considered was a ‚legal mistake,‛ 

not a factual one, because his misunderstanding turned on his 

mistaken views of the applicable law and not on any 

misunderstanding of the facts of his criminal history. Id. at 1236–

38 (citation and internal quotation marks omitted). However, the 

court reiterated that defendants ‚contractually assume*+ the risk 

that additional criminal history *will+ be found.‛ Id. at 1237. 

Here, Harvey’s misunderstanding was a factual rather than a 

legal one, as he had been correctly advised of the potential legal 

consequences of his plea and it was his own misunderstanding 

of his criminal history that led to his belief about how he would 

be sentenced. Neither does Chippewa support Harvey’s position, 

as the court there did not reach the question of whether the 

defendant’s plea was entered knowingly and voluntarily, but 

instead considered only whether the defendant had provided a 

‚fair and just reason‛ for withdrawing his plea—a standard that 

no longer applies in Utah. 751 P.2d at 607, 610–11; see also State v. 

Ruiz, 2012 UT 29, ¶¶ 29–30, 282 P.3d 998 (explaining that under a 

former version of Utah’s Plea Withdrawal Statute, a defendant 

had to show ‚good cause‛ by demonstrating a ‚fair and just 

reason‛ for granting a withdrawal, but that under the amended 

version, a defendant must show ‚the plea was not knowingly 
State v. Harvey

20130466-CA 9 2015 UT App 92

and voluntarily entered‛ (citation and internal quotation marks 

omitted)).

¶12 We therefore conclude that Harvey’s own 

misunderstanding of his criminal history did not render his plea 

involuntary and unknowing because he was informed of the 

potential sentencing consequences of his plea—whatever his 

criminal history might reveal. In other words, Harvey was 

advised by his counsel, his plea affidavit, and the judge that the 

maximum punishment he could receive (other than a fine) was a 

sentence of zero-to-five years in prison. Harvey has not 

persuaded us that Utah law requires more. See, e.g., State v. 

Candland, 2013 UT 55, ¶ 13, 309 P.3d 230 (holding that a 

defendant must have knowledge ‚of the likely consequences of 

entering the guilty plea‛ in order for a plea to be voluntary and 

knowing); State v. Alexander, 2012 UT 27, ¶ 23, 279 P.3d 371 (‚To 

show that a plea was not knowing and voluntary, a defendant 

must show either that he did not in fact understand the nature of 

the constitutional protections that he was waiving by pleading 

guilty, or that he had such an incomplete understanding of the 

charge that his plea cannot stand as an intelligent admission of 

guilt.‛ (citation and internal quotation marks omitted)).2

 

2. It is worth noting that many federal courts have also 

concluded that a defendant’s inaccurate sentencing expectations 

do not render a plea constitutionally defective. See, e.g., United 

States v. Gunter, 620 F.3d 642, 647 (6th Cir. 2010) (holding that an 

inaccurate sentencing estimate did not render a plea unknowing, 

unintelligent, or involuntary because the defendant was 

informed of the statutory maximum); United States v. Bowlin, 534 

F.3d 654, 660 (7th Cir. 2008) (holding an attorney’s mistaken 

prediction about a possible sentence does not render a 

defendant’s plea unknowing and involuntary); United States v. 

Pease, 240 F.3d 938, 940–42 (11th Cir. 2001) (per curiam) (holding 

that a defense attorney’s failure to uncover a defendant’s prior 

(continued...)
State v. Harvey

20130466-CA 10 2015 UT App 92

Accordingly, we conclude the district court did not abuse its 

discretion in denying Harvey’s motion to withdraw his plea. 

II. Harvey’s Claims of Plain Error and Ineffective Assistance of 

Counsel Also Fail.

¶13 Harvey next contends that the district court erred when it 

failed to allow him to withdraw his plea on the basis of his 

‚ongoing hostile relationship with his attorney‛ and his own 

‚marginal competency.‛ Harvey did not raise these claims in the 

district court, and therefore they are not preserved. Accordingly, 

he raises them on appeal claiming plain error and ineffective 

assistance of counsel. See State v. Williams, 2013 UT App 101, ¶ 2, 

300 P.3d 788 (observing that claims of plain error and ineffective 

assistance of counsel are exceptions to the preservation rule). 

Plain error requires a defendant to show that ‚(i) an error exists; 

(ii) the error should have been obvious to the trial court; and (iii) 

the error is harmful.‛ State v. Lee, 2006 UT 5, ¶ 26, 128 P.3d 1179 

(citation and internal quotation marks omitted). To show that 

counsel was constitutionally ineffective, a defendant must show

‚(1) that counsel’s performance was objectively deficient, and (2) 

 

(<continued)

felony convictions and the attorney’s inaccurate sentencing 

prediction did not render the defendant’s plea unknowing and 

involuntary because the defendant ‚knew at the time he pleaded 

guilty [what] his sentence might be‛); United States v. Michlin, 34 

F.3d 896, 899 (9th Cir. 1994) (‚*A+n erroneous prediction by a 

defense attorney concerning sentencing does not entitle a 

defendant to challenge his guilty plea.‛ (citation and internal 

quotation marks omitted)); United States v. Jones, 905 F.2d 867, 

868 (5th Cir. 1990) (‚As long as the [defendant] understood the 

length of time he might possibly receive, he was fully aware of 

his plea’s consequences.‛ (alteration in original) (citation and 

internal quotation marks omitted)).
State v. Harvey

20130466-CA 11 2015 UT App 92

a reasonable probability exists that but for the deficient conduct 

defendant would have obtained a more favorable outcome at 

trial.‛ State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. We conclude 

that Harvey has failed to meet his burden under either standard.

¶14 During the course of proceedings in the district court, 

Harvey sent several letters to the judge complaining about his 

counsel’s performance and requesting that new counsel be 

appointed. He alleged that counsel ‚would not investigate 

exculpatory evidence‛; ‚refused to communicate with him‛;

‚was hostile‛; ‚refused to provide him with discovery and other 

materials‛; and ‚refused to investigate a defense of voluntary 

intoxication.‛ The court addressed Harvey’s concerns at the 

preliminary hearing and determined that trial counsel was 

competent and that Harvey was adequately represented. 

¶15 Harvey claims that the district court should have granted 

his motion to withdraw his plea on the basis of his hostile 

relationship with his defense counsel. He also argues that the 

attorney who replaced his original counsel was ineffective for 

failing to raise his hostile relationship with his original counsel 

as a basis for withdrawing his plea. But a hostile relationship 

with one’s attorney is not necessarily a proper basis on which a 

district court can grant a motion to withdraw a plea. The Plea 

Withdrawal Statute clearly states, ‚A plea of guilty or no contest 

may be withdrawn only upon . . . a showing that it was not 

knowingly and voluntarily made.‛ Utah Code Ann. § 77-13-

6(2)(a) (LexisNexis 2012) (emphasis added). Thus, the hostile 

relationship between Harvey and his counsel would be a 

sufficient basis for withdrawal of his plea only if that 

relationship rendered his plea unknowing and involuntary. 

Here, the district court determined at the preliminary hearing 

that Harvey was adequately represented by competent counsel, 

a finding that Harvey has not challenged on appeal. And while 

the record demonstrates Harvey’s frustration with his counsel 

throughout the proceedings, nothing suggests to us that the 

relationship interfered with counsel’s fulfillment of her 
State v. Harvey

20130466-CA 12 2015 UT App 92

obligation to inform Harvey of the consequences of his plea or 

with Harvey’s understanding of those consequences. As a result, 

we are not persuaded that it should have been obvious to the 

district court at any point in the proceedings that Harvey’s 

relationship with his counsel required that he be allowed to 

withdraw his plea. For the same reason, Harvey cannot show 

that replacement counsel was ineffective for failing to make such 

a motion. Accordingly, Harvey’s claims of plain error and 

ineffective assistance of counsel related to his relationship with 

counsel fail. 

¶16 Harvey’s competency was also addressed in the district

court. The State requested a competency evaluation based on 

Harvey’s ‚erratic and inappropriate behavior in the courtroom.‛ 

The district court granted the motion. A psychiatrist concluded 

that Harvey suffered from a ‚delusional disorder of the 

persecutory type,‛ as evidenced by Harvey’s belief that he was 

being pursued by FBI agents and police officers after 

purportedly filing a lawsuit against law enforcement many years 

prior. Harvey also claimed that the woman he had assaulted in 

this case was an FBI informant hired to fabricate allegations 

against him. The psychiatrist determined that Harvey’s 

delusions ‚severely limited‛ his ability to participate in his own 

defense. A second psychiatrist, however, determined that while 

Harvey ‚shows character traits suggestive of a personality 

disorder,‛ Harvey did not suffer from a mental illness and was 

competent to assist counsel in his defense. Harvey was then 

examined by a third psychiatrist who also concluded that 

Harvey ‚does not meet the diagnostic criteria for a mental 

disorder‛ and was competent to stand trial. The district court 

determined that Harvey was legally competent, and the 

proceedings moved forward. Harvey argues that the district 

court committed plain error in failing to grant his motion to 

withdraw his plea because of Harvey’s ‚marginal competency‛ 

and that his counsel provided ineffective assistance in failing to 

move to withdraw his plea on the same ground. 
State v. Harvey

20130466-CA 13 2015 UT App 92

¶17 ‚The same standard applies to both a determination of 

competency to plead guilty and a determination of competency 

to stand trial.‛ State v. Arguelles, 2003 UT 1, ¶ 50 n.11, 63 P.3d 

731. The district court’s determination that Harvey was 

competent to stand trial was therefore also a determination that 

Harvey was competent to plead no contest. See id. Harvey argues 

that a finding of incompetency by one of the psychiatrists was 

sufficient reason for the district court to grant his motion to 

withdraw his plea. But Harvey has not challenged the district

court’s ultimate finding that he was competent to stand trial 

based on the court’s consideration of the opinions of all three 

psychiatrists. In light of the district court’s unchallenged and 

supported determination that Harvey was competent to stand 

trial (and therefore competent to plead), Harvey cannot argue 

that the court committed obvious error in failing to sua sponte 

permit him to withdraw his plea on the basis of his ‚marginal 

competence.‛ Nor can he claim that counsel was ineffective for 

failing to argue Harvey’s marginal competency as a reason for 

withdrawing the plea. Harvey’s claims related to his competency 

therefore fail. 

¶18 We affirm.