2021 UT App 30

THE UTAH COURT OF APPEALS

PAUL BRYANT,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20190556-CA

Filed March 18, 2021

Fourth District Court, Provo Department

The Honorable Kraig Powell

No. 170401608

Freyja Johnson and Emily Adams, 

Attorneys for Appellant

Sean D. Reyes and Erin Riley, 

Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGE DIANA HAGEN and SENIOR JUDGE KATE APPLEBY

concurred.1

ORME, Judge:

¶1 Paul Bryant appeals the district court’s summary 

judgment ruling in favor of the State on his petition for relief 

under the Post-Conviction Remedies Act (the PCRA). Given

Bryant’s admissions and acknowledgments in his plea 

agreement and at a plea colloquy in the underlying criminal 

case, the court determined there was no genuine dispute of 

material fact. Bryant primarily challenges this determination, 

 

1. Senior Judge Kate Appleby sat by special assignment as 

authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
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insisting that his later affidavit detailing his attorneys’ alleged 

ineffective assistance created a dispute of material fact. We reject 

his argument and affirm.

BACKGROUND2

¶2 In 2015, the State charged Bryant with fifteen counts of 

aggravated sexual abuse of a child and five counts of tampering 

with a witness, all third-degree felonies. Bryant subsequently 

entered into a plea agreement with the State. He agreed to plead 

guilty to three counts of attempted aggravated sexual abuse of a 

child. In exchange, the State agreed to drop the remaining 

charges and to recommend to the court that it stay the expected 

prison sentences and place him on probation for five years after 

he served two consecutive one-year jail terms. 

¶3 In the plea agreement, Bryant acknowledged that he was

acting “voluntarily” and that he had “fully discussed this plea 

agreement, [his] rights, and the consequences of [his] guilty 

pleas” with his attorneys and was “satisfied with the[ir] advice 

and assistance.” Bryant also averred that he was “entering this 

plea of [his] own free will and choice”; that “[n]o force, threats, 

o[r] unlawful influence of any kind ha[d] been made to get [him] 

to plead guilty”; and that he was “of sound and discerning 

mind and . . . mentally capable of understanding these 

proceedings and the consequences of [his] plea.” He likewise 

acknowledged that if he instead desired to plead not guilty, his 

case would be set for trial and that if he could not afford counsel, 

“an attorney [would] be appointed by the court at no cost to 

[him].”

 

2. “[W]hen reviewing a grant of summary judgment, we recite 

the disputed facts in a light most favorable to the nonmoving 

party.” Begaye v. Big D Constr. Corp., 2008 UT 4, ¶ 5, 178 P.3d 343.
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¶4 During the plea colloquy, Bryant confirmed that he did 

not “need more time to talk to [his] attorneys” and that he was 

“satisfied with their representation.” The factual basis for the 

plea was then read in open court, and Bryant acknowledged that 

“by pleading guilty [he was] admitting that is what happened.”

The court then accepted the plea agreement and followed the 

State’s sentencing recommendation.

¶5 The next day, however, Bryant left a phone message for 

his attorneys, stating, 

I’m really struggling with this decision. Is there 

any way we can change it or do something? I’m 

just really having a tough time. Especially after 

being in court yesterday, it just doesn’t feel right. It 

doesn’t feel like we did the right thing. . . . I 

wanted my day in court. I don’t know how to 

contact you. . . . Do I need to write you a letter? Do 

I write a letter to the judge? What do I do to fix 

this? It’s just not right.

A few days later, Bryant spoke with his attorneys and asked 

whether there was a “way to change it or go fight it or 

something?” One of his attorneys told him, “No, there’s not. . . . 

There’s no way to withdraw your plea. You’ve already been 

sentenced.”3

 

3. This advice was consistent with Utah Code section 77-13-6, 

which states, “A request to withdraw a plea of guilty or no 

contest, except for a plea held in abeyance, shall be made by 

motion before sentence is announced.” Utah Code Ann. 

§ 77-13-6(2)(b) (LexisNexis 2017). This important point was also 

covered in the written plea agreement and by the court during 

the plea colloquy. 
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¶6 Upon his release from jail, Bryant petitioned for 

post-conviction relief, arguing that his attorneys provided 

ineffective assistance and, as a result, his plea was not knowing 

and voluntary. Bryant alleged that his attorneys failed to 

investigate his case and prepare for trial, which led to his guilty 

plea because he “knew that if [he] did not accept this plea

bargain that [he] was facing [multiple] counts of very serious 

criminal charges.” Specifically, he alleged that his “[a]ttorneys 

did not respond to letters and answered no questions in writing 

that were put to them” and that they “interviewed only a few of 

the suggested witnesses,” leaving “[m]any of the important 

witnesses” un-interviewed.

¶7 The State moved for summary judgment. It asserted that 

“Bryant’s pleaded facts and proffered evidence . . . are 

insufficient as a matter of law to demonstrate that he is entitled 

to post-conviction relief” because they were “[m]ere self-serving 

statements contradicting [his] representations to the court during 

his plea hearing” that he was satisfied with the advice and 

assistance of his attorneys. In response, Bryant submitted a 

lengthy affidavit in which he claimed that his attorneys did not 

interview everyone he asked them to, were generally 

unprepared for trial, and pressured him to take the plea deal 

even though he “made it clear several times” that “[i]t was never 

an option.” By the time he was offered the plea deal, he averred,

I had spent all my money . . . to pay my 

attorneys—approximately $91,000.00. . . . I felt an 

incredible amount of frustration, pressure, 

confusion, despair, on top of which I felt that I had 

no choice but to comply with my attorneys. . . . I 

felt that my attorneys had failed me but, at that low 

point, I could not pay for new counsel to take on 

my case and my will was effectively overborne. I 

genuinely felt that I had no choice at that time but 

to take the deal.
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¶8 The district court granted the State’s summary judgment 

motion. It determined that “[e]ven assuming . . . that all of 

Bryant’s allegations about his attorneys’ actions are true, those 

facts cannot overcome the agreement that Bryant ratified to 

voluntarily waive his rights to trial.” The court further noted that 

it “explicitly gave Bryant, prior to accepting his pleas, the 

opportunity to indicate whether or not he was satisfied with the 

performance of his attorneys [and he] answered that he was

satisfied.” The court noted that Bryant’s plea agreement and his 

statements during the plea colloquy included acknowledgement

that he was satisfied with his attorneys’ assistance, that he 

understood what he was doing, and that he was pleading guilty 

because he was in fact guilty. Accordingly, the court concluded 

that “Bryant cannot establish that the performance of his 

attorneys fell below an objective standard of reasonableness”

and thus there was no genuine dispute of material fact. Bryant 

appeals. 

ISSUE AND STANDARD OF REVIEW

¶9 Bryant asserts that the district court erred in granting 

summary judgment in the State’s favor.

4 “We review a 

 

4. Bryant further argues that the district court erred in ruling that 

he could not establish ineffective assistance of counsel because 

he failed to move to withdraw his guilty plea or file an appeal in 

the underlying criminal case and also because his attorneys were 

able, through the plea agreement, to significantly reduce the 

number and severity of the charges against him. Because we 

conclude that Bryant does not provide legally sufficient reasons 

for why he should not be held to his plea colloquy statements 

and the signed plea agreement, no genuine dispute of material 

fact exists regarding Bryant’s attorneys’ effective assistance, and 

we have no occasion to reach these other issues.
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post-conviction court’s grant of summary judgment for 

correctness, granting no deference to the lower court.” Garcia v. 

State, 2018 UT App 129, ¶ 8, 427 P.3d 1185. “We will affirm such 

a decision when the record shows that there is no genuine issue 

as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.” Id. (quotation simplified).

ANALYSIS

¶10 Under the PCRA, “a person who has been convicted and 

sentenced for a criminal offense may file an action in the district 

court . . . for post-conviction relief to vacate or modify the 

conviction or sentence upon” showing, among other things,

“ineffective assistance of counsel in violation of the United States 

Constitution or Utah Constitution.” Utah Code Ann. 

§ 78B-9-104(1)(d) (LexisNexis 2018).5 As part of this showing,

“the petitioner has the burden of pleading and proving by a 

preponderance of the evidence the facts necessary to entitle the 

petitioner to relief.” Id. § 78B-9-105(1)(a). 

¶11 But when the State moves for summary judgment, it 

“bears the initial burden of showing that it is entitled to 

judgment and that there is no genuine issue of material fact that 

would preclude summary judgment in its favor.” Menzies v.

State, 2014 UT 40, ¶ 81, 344 P.3d 581 (quotation simplified). 

“Once the State makes that showing, the burden of proof then 

shifts to the nonmoving party . . . [to] set forth specific facts 

showing that there is a genuine issue for trial.” Id. (quotation 

simplified). And “[i]n the context of a summary judgment 

motion in a PCRA proceeding premised on a claim of ineffective 

 

5. Because the relevant provisions of the Utah Code in effect at 

the time Bryant filed his PCRA petition do not materially differ 

from those currently in effect, we cite the current version of the 

code for convenience.
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assistance of counsel, [the petitioner] ‘bears the burden of 

proving his underlying legal claims of ineffective assistance of 

counsel.’” Jackson v. State, 2015 UT App 217, ¶ 13, 359 P.3d 659 

(quoting Menzies, 2014 UT 40, ¶ 81). 

¶12 Here, the State met its burden by showing there is no 

genuine issue of material fact regarding whether Bryant received 

ineffective assistance of counsel. It did so by pointing to Bryant’s 

signed plea agreement and statements he made during the plea 

colloquy in which he categorically stated that he was satisfied 

with his attorneys’ representation.

¶13 Upon the State’s satisfaction of its initial burden, the 

burden then shifted to Bryant to set forth specific facts showing 

that a genuine issue of fact existed for trial. This showing cannot 

be made in a free-wheeling way. Rather, Bryant’s “affidavit

cannot contradict his [signed plea agreement and] in-court

responses to the district court’s colloquy unless he provides an

adequate reason for the contradiction.”6 See Berrett v. State, 2018 

 

6. Bryant asserts that the district court “applied the wrong legal 

standard” when it ruled that “he ‘lost his ability to argue that his 

attorneys were deficient in facilitating and consummating the 

plea agreement’” based on the signed plea agreement and his 

statements during the plea colloquy to the contrary. Bryant 

argues that “[s]tatements in plea proceedings are not an absolute 

bar to demonstrating that a petitioner is entitled to 

post-conviction relief because of ineffective assistance of 

counsel.” 

 We disagree with Bryant’s characterization of the court’s 

ruling. We do not read it as categorically denying Bryant the 

opportunity to present adequate reasons for why he should be 

able to contradict his previous statements. Rather, we read the 

court’s ruling as simply stating that based on the facts of this 

(continued...)
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UT App 55, ¶ 35, 420 P.3d 140. Thus, in this case, to demonstrate

a genuine issue of material fact, Bryant must advance legally 

sufficient reasons for why he would, both in his written 

agreement and his plea colloquy, unqualifiedly and without 

hesitation inform the district court that he was satisfied with his 

attorneys’ representation if these assertions were not, in fact, 

true. 

¶14 Bryant’s reasoning for why he would falsely inform the 

court that his attorneys provided competent representation, with 

which he was satisfied, is that he felt compelled “to say what 

was necessary to accept the plea because he was afraid of going 

to trial with an unprepared attorney and he could not afford to 

hire another attorney,” having already paid $91,000 in attorney 

fees. These are not adequate reasons given the facts of this case. 

¶15 As Bryant admits on appeal, he “discovered three weeks 

before trial that [his attorneys] had not investigated and ‘[were] 

not prepared to mount any kind of defense at trial.’” And yet, 

despite this knowledge, Bryant categorically informed the court 

that he was satisfied with his attorneys’ assistance. On appeal,

Bryant attempts to further show how unprepared his attorneys 

were, but most, if not all, of these facts were already known to 

him at the time he agreed to the plea deal. This is not a case, for 

example, in which a defendant’s attorneys affirmatively assured 

him that they had done an investigation and then he found out 

later, after he had been sentenced, that they misrepresented what 

they had done to prepare. Rather, in this case, Bryant was well 

aware of their alleged unpreparedness before he accepted the 

plea deal, and yet he informed the court of his satisfaction with 

their representation and his desire to accept the plea deal. On 

 

(...continued)

case, Bryant lost the ability to contradict the statements because 

his explanations for the inconsistency were inadequate. 
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this point, we agree with the State that “[m]ere self-serving 

statements contradicting [Bryant’s] representations to the court 

during his plea hearing, without more, are insufficient” to create 

a genuine dispute of material fact. Rather than providing 

adequate reasons for misleading the court, Bryant appears to be 

suffering from buyer’s remorse for taking the plea deal. But 

second thoughts are insufficient to excuse him from his plea 

agreement and to undercut his colloquy statements to the court. 

¶16 If we accepted Bryant’s explanation as adequate, we

would be “condoning the practice by defendants of providing 

untruthful responses to questions during plea colloquies,” which 

“we simply will not do.” Ramos v. Rogers, 170 F.3d 560, 566 (6th 

Cir. 1999). See Blackledge v. Allison, 431 U.S. 63, 74 (1977)

(“Solemn declarations in open court carry a strong presumption 

of verity” that “constitute a formidable barrier in any subsequent 

collateral proceedings.”); United States v. Scalzo, 764 F.3d 739, 746 

(7th Cir. 2014) (“But having admitted the facts in the Information 

through his plea agreement and through his answers to the court 

during his change-of-plea colloquy, Scalzo may not now deny 

them.”); Ramos, 170 F.3d at 566 (“[T]he very serious nature of 

claims such as these mandates that a defendant must be bound 

to the answers he provides during a plea colloquy.”). Cf. Webster

v. Sill, 675 P.2d 1170, 1172–73 (Utah 1983) (“The purpose of 

summary judgment is not to weigh the evidence. But when a 

party takes a clear position in a deposition, that is not modified 

on cross-examination, he may not thereafter raise an issue of fact 

by his own affidavit which contradicts his deposition, unless he 

can provide an explanation of the discrepancy. A contrary rule 

would undermine the utility of summary judgment as a means 

for screening out sham issues of fact.”) (quotation simplified).

¶17 Bryant’s assertion that he felt compelled to take the plea 

deal because he could not afford a new attorney who would take 

his case to trial is also unavailing. The plea agreement 

specifically informed him that one of the rights he could invoke 
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20190556-CA 10 2021 UT App 30

if he rejected the plea deal was “that if [he] cannot afford one, an 

attorney will be appointed by the court at no cost to [him].”

Thus, if he had become indigent, Bryant knew that he could 

request a new attorney at no cost to himself if he informed the 

court of his dissatisfaction with his attorneys’ efforts and of his 

desire to proceed to trial. Bryant did not do so. Therefore, 

Bryant’s claimed economic duress is not an adequate reason for

allowing him to contradict the signed plea agreement and his 

statements during the plea colloquy. 

CONCLUSION

¶18 Bryant has not provided adequate reasons for why he 

should not be held to his plea agreement and the statements he 

made during the plea colloquy. Therefore, there is no genuine 

issue of material fact and the district court did not err in granting 

the State’s motion for summary judgment. 

¶19 Affirmed.