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CONVICTED KILLER WANTS TO WITHDRAW PLEA

James F. Gardner says he was not in his right mind when he admitted he beat Rick L. Abegglen to death in 1985 and he wants to withdraw his guilty plea to second-degree murder.

"A fellow prisoner and longtime friend said Mr. Gardner was not the same man he knew," attorney Kenneth Anderton told the Utah Supreme Court Tuesday. "His hands shook all the time, he constantly smoked and was prescribed psychotropic drugs for depression."Gardner was arrested in Colorado by police. He pleaded guilty to second-degree murder before 8th District Judge Richard Davidson and was sentenced to five years to life in the Utah State Prison.

Seven years later, Gardner is asking the Supreme Court to withdraw his plea. He claims he did not know his rights when he pleaded guilty to the murder. The court likely will rule later this month.

"There was no examination of his mental state when he made his plea, nor any questions about Mr. Gardner's use of the medication," Anderton said. "He also was not told he could plead the Fifth Amendment and not incriminate himself."

Gardner tried to withdraw the plea in 1989, but his request was denied by 8th Circuit Judge A. Lynn Payne.

Assistant Attorney General J. Kevin Murphy said Gardner had plenty of time to discuss the charges with attorneys before making the plea. He also had two chances to present evidence about his use of mood-altering drugs.

"The intent of the defendant all along was to get things over with quickly and not put his family through a long trial," Murphy told the justices. "Long before he made the plea, he was ready to do it."

Gardner met Abegglen on March 6, 1985, at a Vernal convenience store. The pair went to a party and returned to Abegglen's apartment for more beer. Gardner said the man made sexual advances toward him.

He beat Abegglen before ransacking the apartment. When Abegglen regained consciousness, Gardner kicked him once more in the head. Abegglen died from bleeding in his brain.