2019 UT App 154

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

CHEIRA ENRIQUEZ-MEZA,

Appellant.

Opinion

No. 20180258-CA

Filed September 19, 2019

Fourth District Court, Provo Department

The Honorable James R. Taylor

No. 171403749

Hakeem Ishola and Mari Alvarado Tsosie, Attorneys

for Appellant

Sean D. Reyes and Mark C. Field, Attorneys

for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which 

JUDGES KATE APPLEBY and RYAN M. HARRIS concurred.

HAGEN, Judge:

¶1 Cheira Enriquez-Meza pled guilty to one count of 

possession of a controlled substance with intent to distribute, a 

second-degree felony, which carried the consequence of 

deportation based on her non-citizen status in this country. In 

exchange for her guilty plea, the State agreed to dismiss the 

remaining charges against her and recommend five years of 

court-supervised probation and no additional jail time.

¶2 Before accepting her guilty plea, the district court 

engaged in a plea colloquy with Enriquez-Meza. Among other 

things, the court asked her whether she had had enough time to 

discuss with her counsel the State’s burden of proof and whether 
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she was satisfied with counsel’s advice on how to proceed with 

the case. Enriquez-Meza responded in the affirmative. The court 

explained the rights that she would be waiving if she decided to 

plead guilty and the possible punishments. Importantly, the 

court said, “If you’re not a citizen, this would affect your right to 

remain in the country. Do you understand [that] 

consequence[]?” Enriquez-Meza responded, “Yes.” EnriquezMeza pled guilty and signed the written plea agreement, which 

also included an explanation regarding the risk of deportation 

for non-citizen defendants.

¶3 Prior to sentencing, Enriquez-Meza obtained new counsel 

and moved to withdraw her guilty plea. Enriquez-Meza argued 

that her guilty plea was not knowing and voluntary, because

(1) her counsel did not inform her of her risk of deportation and 

(2) she responded “yes” rather than “guilty” when the court 

asked, “[H]ow do you plead?” The court held a two-day 

evidentiary hearing to address Enriquez-Meza’s arguments. At 

the hearing, Enriquez-Meza conceded that her plea counsel 

informed her of the risk of deportation. Nonetheless, she 

maintained that “she was not properly advised of immigration 

consequences” because counsel did not “either discuss strategies 

[Enriquez-Meza] might employ to avoid deportation or seek 

independent counsel with an immigration attorney for that 

purpose.”

¶4 In its written ruling, the district court concluded that 

Enriquez-Meza received constitutionally effective assistance of 

counsel in connection with her guilty plea. The court found that 

her counsel properly informed her of the risk of deportation and 

that, under Padilla v. Kentucky, 559 U.S. 356 (2010), counsel is 

“not required . . . to ensure that the client underst[ands] every 

possible immigration strategy to avoid deportation.” Instead, 

Padilla requires only that the defendant understand the risk of 

deportation. See id. at 374 (holding that “counsel must inform her 

client whether his plea carries a risk of deportation”). Moreover, 
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20180258-CA 3 2019 UT App 154

even if counsel’s performance could be characterized as 

deficient, the court found that Enriquez-Meza had “failed to 

establish that the advice or delay to further consult with an 

immigration counsel would have made a difference” because she 

did not explain or demonstrate “that the suggested strategies to 

contest deportation” would have been successful. The court also 

made a factual finding that Enriquez-Meza responded “guilty” 

when asked for her plea. Although the transcript recorded her 

response as “yes,” the court found that this was a transcription 

error based on its review of the audio recording of the change of 

plea hearing and its contemporaneous notes. The court therefore 

denied Enriquez-Meza’s motion to withdraw her guilty plea.

¶5 Enriquez-Meza appeals the district court’s denial of her 

motion to withdraw her guilty plea, raising two arguments.

First, she argues that the court erred in determining that her plea 

counsel did not perform deficiently when he “affirmatively 

misled [her] to believe that she could re-enter the United States 

within five years . . . and was ineligible for other reliefs from 

deportation.” To challenge a guilty plea on appeal, a defendant 

must move to withdraw the plea prior to sentencing. Utah Code 

Ann. § 77-13-6(2)(b) (LexisNexis 2017). If a defendant fails to 

meet this statutory requirement, we are “foreclose[d]” from 

reviewing the issue on direct appeal, even for plain error, see

State v. Rettig, 2017 UT 83, ¶¶ 26, 47, 416 P.3d 520, and the 

defendant “shall” instead pursue the claim under the PostConviction Remedies Act, see Utah Code Ann. § 77-13-6(2)(c).

¶6 Recently, this court held that the plea withdrawal statute 

also precludes review when a defendant timely moves to 

withdraw the plea below but then appeals based on a different 

legal theory. See Badikyan, 2018 UT App 168, ¶ 21, 436 P.3d 256, 

cert. granted, 436 P.3d 1247 (Utah 2019). In Badikyan, the 

defendant complied with the jurisdictional requirement by 

moving to withdraw his guilty plea prior to sentencing. But

rather than “challenge the district court’s factual findings and 
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20180258-CA 4 2019 UT App 154

legal conclusions” on the ground he raised below, the defendant

“assert[ed] an entirely different ground [on appeal] for why he 

should have been allowed to withdraw his guilty plea.” Id. As a 

result, the plea withdrawal statute precluded this court from 

reviewing his new argument on appeal, “even under the plain 

error exception to preservation.” Id.

¶7 Like the defendant in Badikyan, Enriquez-Meza timely 

moved to withdraw her guilty plea before sentencing but based 

that motion on a legal theory entirely different from that raised 

on appeal. Specifically, Enriquez-Meza argued below that 

counsel was ineffective in failing to advise her of the risk of

deportation and failing to consider every possible strategy to 

avoid deportation, whereas on appeal she argues that counsel 

“affirmatively misled [her] to believe that she could re-enter the 

United States within five years . . . and was ineligible for other 

reliefs from deportation.” Because she failed to properly 

preserve the legal theory she now advances on appeal, we are 

precluded from addressing it. See id.

¶8 Second, Enriquez-Meza argues that her plea did not 

satisfy rule 11 of the Utah Rules of Criminal Procedure because 

she never said that she was “guilty.” We “review the ultimate 

decision to deny a motion to withdraw a guilty plea under an 

abuse of discretion standard.” State v. Stilling, 856 P.2d 666, 670 

(Utah Ct. App. 1993) (cleaned up). The district court’s findings of 

fact are reviewed for clear error, and its conclusion “regarding 

substantial compliance with constitutional and procedural 

requirements for entry of a guilty plea is . . . reviewed for 

correctness.” Id.

¶9 Relying on the transcript from the change of plea hearing, 

Enriquez-Meza contends that she answered “yes” rather than 

“guilty” when asked to enter her plea. But after she moved to

withdraw her guilty plea on that basis, the district court listened 

to the audio recording of the change of plea hearing, reviewed 
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20180258-CA 5 2019 UT App 154

its contemporaneous notes, and found that the transcript was 

incorrect and that her actual response was “guilty.” The court 

also pointed to the next line in the transcript, in which the court 

responds, “I’ll receive and accept the guilty plea.” EnriquezMeza did not inform the court at that time that she was not 

pleading guilty.

¶10 Enriquez-Meza challenges the district court’s finding that 

she responded “guilty,” arguing that the court “sua sponte gave 

credence to its recollection over the official transcript” and that it 

would have been “better practice . . . for the court to invite the 

parties to weigh in and/or conduct further investigation of what 

[she] actually verbalized.” But the district court did conduct 

further investigation when it listened to the audio recording, 

reviewed its notes, and reread the transcript in its entirety. 

Further, the court acted within its discretion to correct the 

transcript. Rule 30 of the Utah Rules of Criminal Procedure 

permits district courts to correct “[c]lerical mistakes in . . . the 

record and errors in the record arising from oversight or 

omission . . . at any time and after such notice, if any, as the court 

may order.” Utah R. Crim. P. 30(b). “The purpose of this rule is 

to correct clerical errors so that the record reflects what was 

actually done or intended.” State v. Watring, 2017 UT App 100, 

¶ 13, 400 P.3d 1148 (cleaned up); see also Utah R. App. P. 11(h) 

(providing that “[i]f any difference arises as to whether the 

record truly discloses what occurred in the trial court, the 

difference shall be submitted to and settled by that court and the 

record made to conform to the truth” and that “the parties by 

stipulation, the trial court, or the appellate court, either before or 

after the record is transmitted, may direct that the omission or 

misstatement be corrected and, if necessary, that a supplemental 

record be certified and transmitted”).

¶11 Although the court’s factual finding is reviewable for 

clear error, see Stilling, 856 P.2d at 670, Enriquez-Meza has not 

provided the audio recording of the proceeding in the record on 
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appeal. Without an adequate record, we defer to the district 

court’s finding that the transcript was incorrect and that 

Enriquez-Meza did say “guilty” when asked, “[H]ow do you 

plead?” See State v. Morello, 927 P.2d 646, 649 (Utah Ct. App. 

1996) (explaining that “we do not presume error simply because 

[part of] the record is unavailable”).

¶12 We conclude Enriquez-Meza did not preserve the specific 

ineffective-assistance argument she makes on appeal and that

the district court acted within its discretion to correct the record. 

Accordingly, the denial of Enriquez-Meza’s motion to withdraw 

her guilty plea is affirmed.