Chief Justice DURRANT, opinion of the Court:
¶ 1 In 2006, Wolfgango Ruiz pled guilty to one count of attempted sexual abuse of a child, a third degree felony. Prior to his sentencing, Mr. Ruiz made a request to withdraw his plea on the ground that his original defense counsel had not informed him of the immigration consequences of a felony conviction. Initially, Judge Fuchs of the Third District Court granted Mr. Ruiz's motion. But upon a motion to reconsider submitted by the State, Judge Skanchy, who had taken over Mr. Ruiz's case, reversed the order that permitted Mr. Ruiz to withdraw his plea.
¶ 2 The court of appeals subsequently reversed Judge Skanchy's ruling and reinstated Judge Fuch's order granting Mr. Ruiz's motion to withdraw. The court of appeals reached this decision based on Judge
¶ 3 We granted certiorari to resolve two issues: (1) whether the court of appeals erred in vacating Judge Skanchy's grant of the State's motion to reconsider and (2) whether our precedent stating that presentence motions to withdraw guilty pleas should be "liberally granted" remains good law in light of recent changes to section 77-13-6 of the Utah Code (Plea Withdrawal Statute or Statute).
¶ 4 We first hold that the court of appeals erred in vacating Judge Skanchy's ruling because the basis for the ruling is apparent on the record. Second, we hold that recent amendments to the Plea Withdrawal Statute have superseded our prior case law stating that presentence motions to withdraw guilty pleas should be "liberally granted." Based on these conclusions, we reverse the court of appeals' decision to vacate Judge Skanchy's ruling and remand this case for further proceedings consistent with this opinion.
¶ 5 In 2006, Mr. Ruiz was charged with sexual abuse of a child, a second degree felony. After his arrest, he retained a private attorney to represent him. In February 2006, pursuant to a plea agreement, Mr. Ruiz pled guilty to the lesser charge of attempted sexual abuse of a child, a third degree felony. After entering his guilty plea, Mr. Ruiz fired his first attorney and retained a second attorney.
¶ 6 Shortly after retaining his second attorney, Mr. Ruiz filed a timely motion to withdraw his plea. In support of this motion, Mr. Ruiz alleged that his first attorney had "deliberately misled [him] into believing that the original second degree felony charge ... carried a minimum mandatory prison term of five years" and had affirmatively misadvised him on the immigration consequences of his plea. In an affidavit attached to his motion, Mr. Ruiz stated that, after entering his plea, he had learned from an immigration attorney that he would "definitely" be deported if he were convicted. Mr. Ruiz also stated in his affidavit that had his first attorney correctly advised him of the potential immigration consequences of his plea, he would not have pled guilty.
¶ 7 In August 2006, Judge Fuchs of the Third District Court presided over a hearing on Mr. Ruiz's motion. Although the State opposed the motion, it presented no evidence at the hearing to rebut the allegations contained in Mr. Ruiz's affidavit. After hearing argument on the motion and considering Mr. Ruiz's affidavit, Judge Fuchs concluded that Mr. Ruiz's first attorney had affirmatively misrepresented the consequences of a guilty plea on Mr. Ruiz's immigration status. Specifically, Judge Fuchs stated that "[s]ince I have nothing on the record from [the first attorney] ..., such as an affidavit as to what he represented ..., I can only take the affidavit and the allegations as [Mr. Ruiz] gives them to me, which is that [his first attorney] told him that this was a non-deportable offense." Based on this conclusion, Judge Fuchs permitted Mr. Ruiz to withdraw his plea. After Judge Fuchs announced this decision, the State asked whether he would consider revising his ruling if the State "were to bring in" the first attorney to determine exactly what occurred during the course of his representation of Mr. Ruiz. Judge Fuchs declined this request, noting that the State had been given the opportunity to present this evidence during the hearing.
¶ 8 Nine days after Judge Fuchs entered his order permitting Mr. Ruiz to withdraw his guilty plea, the State filed a motion to reconsider. In its motion, the State informed Judge Fuchs that prosecutors had spoken to the first attorney and that he had denied misrepresenting the immigration consequences of Mr. Ruiz's plea. In support of its motion, the State attached an affidavit from the first attorney stating that he had "repeatedly" addressed the immigration consequences of Mr. Ruiz's plea with Mr. Ruiz and that he had expressly informed Mr. Ruiz "that he faced deportation as a consequence of any felony conviction." Although Judge Fuchs had initially stated during the hearing on Mr. Ruiz's motion that he would not consider
¶ 9 In January 2007, Judge Fuchs's successor, Judge Skanchy, presided over the hearing on the State's motion to reconsider. At the beginning of the hearing, Mr. Ruiz's second attorney asked the court to prohibit the State from presenting the first attorney's testimony. But after hearing argument from the State, Judge Skanchy allowed the State to present the testimony and explained that he felt it was appropriate for the court to consider the testimony to determine whether Mr. Ruiz's motion to withdraw had been granted in error.
¶ 10 During the hearing, the first attorney testified that he and Mr. Ruiz had addressed the immigration consequences of the charges "from day one" of his representation and that he had continued to talk about those consequences with Mr. Ruiz almost every time they met. Additionally, he testified that he had specifically informed Mr. Ruiz that he would "almost certainly be deported" if he pled guilty to, or was convicted of, the charge against him.
¶ 11 After hearing this testimony, Judge Skanchy concluded that the first attorney had rebutted "the self-serving allegations set forth in [Mr. Ruiz's] affidavit." Based on this finding, Judge Skanchy granted the State's motion to reconsider, vacated Judge Fuchs's order granting Mr. Ruiz's motion to withdraw his guilty plea, and denied Mr. Ruiz's original motion to withdraw.
¶ 12 Mr. Ruiz timely appealed Judge Skanchy's ruling to the Utah Court of Appeals.
¶ 13 After concluding that Judge Skanchy had authority to revisit Judge Fuchs's ruling, the court of appeals noted that Judge Skanchy had not articulated the basis for his decision to allow the State to present the first attorney's testimony.
¶ 14 After the court of appeals issued its opinion, the State filed a petition for rehearing in which it requested that the court of appeals remove the language from its opinion stating that presentence motions to withdraw guilty pleas should be "liberally granted."
¶ 15 After the court of appeals issued its amended opinion, the State filed a petition for certiorari, which we granted. On appeal to this court, the State contends that the
¶ 16 In contrast, Mr. Ruiz first argues that the issues presented on certiorari have been rendered moot by the United States Supreme Court's recent opinion in Padilla v. Kentucky.
¶ 17 "On certiorari, we review the decision of the court of appeals .... for correctness, giving no deference to its conclusions of law."
¶ 18 Before addressing the issues presented on certiorari, we first address Mr. Ruiz's argument that these issues have been rendered moot. After submission of the State's opening brief, the United States Supreme Court issued an opinion in the case of Padilla v. Kentucky.
¶ 19 We have previously explained that "[a]n appeal is moot if during the pendency of the appeal circumstances change so that the controversy is eliminated, thereby rendering the relief requested impossible or of no legal effect."
¶ 20 In Padilla, the United States Supreme Court held that the Sixth Amendment to the United States Constitution requires that defense attorneys inform their clients of the potential immigration consequences — including the possibility of deportation — of entering a guilty plea, whenever those consequences are "truly clear" under immigration law.
¶ 21 Neither of the issues before us, however, require us to review whether the first attorney satisfied the constitutional requirements announced in Padilla. Instead, on
¶ 22 Having determined that the issues presented on certiorari are not moot, we now turn to the first issue: whether the court of appeals erred in vacating Judge Skanchy's grant of the State's motion to reconsider. Resolution of this issue requires us to decide whether Judge Skanchy's failure to articulate the reason for his decision to allow the State to present the first attorney's testimony constituted an abuse of discretion and warranted reversal. We conclude that it did not.
¶ 23 We have previously explained that it is within the sound discretion of a trial court judge to grant a motion to reconsider.
¶ 24 Although we have consistently encouraged trial judges to give reasons on the record for discretionary rulings, we have held that failure to do so does not, alone, constitute an abuse of discretion and does not warrant reversal.
¶ 25 Despite this precedent, the court of appeals determined that Judge Skanchy's failure to articulate the basis for his decision warranted reversal. We disagree. Although Judge Skanchy's order did not explain the basis for his decision to permit the State to present the first attorney's testimony, the reason for this decision is apparent on the record. During the hearing on the State's motion to reconsider, a prosecutor explained to Judge Skanchy that, shortly after the hearing conducted by Judge Fuchs, the prosecutor had encountered the first attorney "and found out that everything that was in [Mr. Ruiz's] affidavit was blatantly incorrect." The prosecutor also informed Judge
¶ 26 In support of our conclusion that the basis for Judge Skanchy's decision is apparent on the record, we also find it relevant that Judge Fuchs — the original judge in Mr. Ruiz's case — had scheduled a hearing on the State's motion to reconsider before his retirement. Thus, despite the fact that Judge Fuchs had initially ruled that the State could not present the first attorney's testimony, his willingness to schedule a hearing on the State's motion implies that he may have been willing to revisit that ruling himself. And given Judge Fuchs's apparent willingness to reconsider his prior ruling, Judge Skanchy may have felt it was unnecessary for him to specifically articulate his own basis for allowing the State to present the testimony. Based on our conclusion that the basis for Judge Skanchy's decision is apparent on the record, we hold that the court of appeals erred in reversing Judge Skanchy's ruling.
¶ 27 In reaching this conclusion, we reiterate that the failure to state a basis for a discretionary decision does not, alone, constitute an abuse of discretion and does not, generally, warrant reversal.
¶ 28 The next issue presented on certiorari is whether presentence motions to withdraw guilty pleas should still be "liberally granted" after recent amendments to the Plea Withdrawal Statute. We first gave the instruction that presentence motions to withdraw guilty pleas should be liberally granted in State v. Gallegos.
¶ 29 On appeal to this court, the defendant argued that the district court should have permitted him to withdraw his plea.
¶ 30 Since Gallegos, the language of the Plea Withdrawal Statute has been amended. Specifically, where the Statute previously required a finding of "good cause" to grant a motion to withdraw, the Statute now requires a finding that the defendant's plea was not knowingly and voluntarily entered before a motion to withdraw can be granted.
¶ 31 This change is significant. Under the prior version of the Statute, judges had broad discretion to determine the scope of circumstances that constituted "good cause" and warranted withdrawal of a plea.
¶ 32 In contrast, under the revised Plea Withdrawal Statute, judges no longer have such broad discretion to determine the circumstances that warrant withdrawal of a guilty plea.
¶ 33 Justice Durham contends that "[t]he `liberally grant' language in our case law ... was never directed to the [good cause] standard."
¶ 34 Justice Durham also contends that our articulation of the "liberally granted" standard in Gallegos was directed toward resolving "the degree of conviction on the part of the trial judge that the [plea withdrawal] standard had been met."
¶ 35 We disagree with this proposed burden shifting scheme for two reasons. First, nothing in the language of our opinion in Gallegos suggests that we intended to "incorporate a relatively low standard of proof" for a defendant seeking to withdraw a guilty plea. Indeed, we expressly noted in Gallegos that the defendant denied any improper conduct and submitted an affidavit from the alleged victim in which she stated that, due to pressure from her parents, she had lied in her preliminary hearing testimony.
¶ 36 Second, and perhaps most important, the burden-shifting scheme proposed by Justice Durham contradicts the plain language of the Plea Withdrawal Statute by shifting the burden of proof from the defendant to the prosecution. The Plea Withdrawal Statute states that "[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."
¶ 37 In sum, because our creation of the "liberally granted" instruction was directly related to a judge's broad discretion under the good cause standard, and because judges no longer have such discretion under the revised version of the Plea Withdrawal Statute, we hold that the "liberally granted" instruction given in Gallegos is no longer applicable. Additionally, based on the plain language of the Plea Withdrawal Statute, we hold that, on a presentence motion to withdraw, the burden of proof is on the defendant, who must show that his or her plea was not knowingly and voluntarily made.
¶ 38 We hold that the court of appeals erred in vacating Judge Skanchy's order because the basis for his decision is apparent on the record. Additionally, based on the recent changes to the Plea Withdrawal Statute, we hold that the court of appeals erred in concluding that presentence motions to withdraw guilty pleas should still be liberally granted. For these reasons, we reverse the court of appeals' decision to vacate Judge Skanchy's grant of the State's motion to reconsider and remand this case to the court of appeals to consider any other issues Mr. Ruiz has properly raised before it.
Chief Justice DURRANT authored the opinion of the Court, in which Associate Chief Justice NEHRING, Justice PARRISH, and Justice LEE joined.
Justice DURHAM filed an opinion concurring in part and dissenting in part.
Justice DURHAM, concurring in part and dissenting in part:
¶ 39 I concur in Parts I and II of the majority opinion's analysis, but cannot join Part III's holding that trial judges no longer have discretion to "liberally grant" presentence motions to withdraw guilty pleas. See supra ¶ 32. It is the case that a 2003 amendment to the statute has changed the standard for withdrawal of guilty pleas from good cause to a showing that the plea was not knowingly and voluntarily entered (which of course would have always constituted good cause under the former standard). Compare UTAH CODE § 77-13-6(2)(a) ("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."), with id. § 77-13-6(2)(a) (1999) ("A plea of guilty or no contest may be withdrawn only upon good cause shown and with leave of the court."). It is also the case that the new standard appears to be more narrowly drawn, because there may have been other ways to show good cause beyond the knowing and voluntary standard. The "liberally grant" language in our case law, however, was never directed to the standard itself, but rather to the degree of conviction on the part of the trial judge that the standard had been met.
¶ 40 In State v. Gallegos, we set forth the rationale for the practice of giving defendants the benefit of the doubt in presentence plea withdrawal proceedings:
738 P.2d 1040, 1041-42 (Utah 1987) (footnote omitted). As this language demonstrates, the "liberally grant" direction was not tied to the former "good cause" statutory standard, but rather was connected to the fundamental constitutional standard — now embodied in the statute — of knowing and voluntary
¶ 41 The real problem is that we did not focus in Gallegos on what it means to say that motions to withdraw guilty pleas should be liberally granted. Clearly, a basic evidentiary showing must be made that a plea is not knowing and voluntary — but what is the standard of proof, and which party bears the burden of persuasion?
¶ 42 "The degree of proof required in a particular type of proceeding has `traditionally been left to the judiciary to resolve.'" Uzelac v. Thurgood (In re Estate of S.T.T.), 2006 UT 46, ¶ 28, 144 P.3d 1083 (quoting Santosky v. Kramer, 455 U.S. 745, 755, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). "The standard [of proof] serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision." Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). "In cases involving individual rights, whether criminal or civil, [t]he standard of proof [at a minimum] reflects the value society places on individual liberty." Id. at 425, 99 S.Ct. 1804 (alterations in original) (internal quotation marks omitted). "The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state." Id. at 427, 99 S.Ct. 1804; see also Santosky, 455 U.S. at 768, 102 S.Ct. 1388 (suggesting that lesser protection in some circumstances would be "constitutionally intolerable" under the due process clause).
¶ 43 The judiciary similarly may determine the appropriate burden of persuasion. See, e.g., Searle v. Milburn Irrigation Co., 2006 UT 16, ¶ 50, 133 P.3d 382 (setting a burden of persuasion based on "policy reasons" and other considerations); State v. Wood, 648 P.2d 71, 83-84 (Utah 1982). Furthermore, we have on occasion interpreted statutory language to encompass a shifting burden of persuasion, even when the statutory language itself did not explicitly mandate a burden-shifting regime. See, e.g., Brimm v. Cache Valley Banking Co., 2 Utah.2d 93, 269 P.2d 859, 864 (1954) (holding that, under a statute regarding appurtenance of water rights, an initial showing could be overcome only by clear and convincing evidence offered by the other party); see also Searle, 2006 UT 16, ¶¶ 49-53, 133 P.3d 382 (considering whether, but ultimately declining, to shift the burden of persuasion); cf. Hendee v. Walker Bank & Trust Co. (In re Estate of Swan), 4 Utah.2d 277, 293 P.2d 682, 689-90 (Utah 1956) (discussing the basis for burdens of persuasion and setting a shifting burden of persuasion).
¶ 44 What I believe we sought to incorporate in Gallegos is a relatively low standard
¶ 45 I would propose, then, the following procedural regime: When a defendant makes a prima facie showing
McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) (footnote omitted) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)).