State v. Rettig , 2017 UT 83 ( 2017 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 83IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
BENJAMIN DAVID RETTIG,
Appellant.
No. 20131024
Filed November 22, 2017
On Direct Appeal
Fourth District, American Fork Dep’t
The Honorable Thomas Low
No. 101101668
Attorneys:
Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Att’y Gen.,
Salt Lake City, for appellee
Steve S. Christensen, Clinton Brimhall, Salt Lake City, for appellant
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, and JUSTICE PEARCE
joined.
JUSTICE DURHAM filed an opinion concurring in the result.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 Benjamin Rettig pled guilty to aggravated murder and
aggravated kidnapping. Three days before his sentencing hearing
and while represented by counsel, Rettig attempted to withdraw his
guilty plea by submitting a pro se letter to the district court. Rettig
later acquired new counsel, who moved to withdraw Rettig’s pro se
motion. The court subsequently sentenced Rettig to terms of twenty-
STATE v. RETTIG
Opinion of the Court
five years to life for aggravated murder and fifteen years to life for
aggravated kidnapping, with the sentences to run concurrently.
¶2 Rettig urges us to set aside his guilty plea on direct appeal,
contending that the district court erred in accepting his plea because
his plea affidavit does not establish the necessary facts to sustain a
conviction for his charges. He also asserts a claim for ineffective
assistance of counsel. Recognizing that this court has long held that
it cannot review a defendant’s guilty plea unless he has complied
with Utah’s Plea Withdrawal Statute, UTAH CODE § 77-13-6, Rettig
also challenges this statute as unconstitutional. He argues that
section 77-13-6(2) infringes his right to an appeal under article I,
section 12 of the Utah Constitution. And he urges us to hold that the
legislature lacks the constitutional power to require that he pursue
his claim through the Post-Conviction Remedies Act, as set forth in
section 77-13-6(2)(c).
¶3 We affirm. We do so substantially on grounds set forth in
the concurring opinion in Gailey v. State, 2016 UT 35, 379 P.3d 1278(Lee, A.C.J., concurring). The majority in Gailey held that the Plea
Withdrawal Statute “does not on its face violate the constitutional
right to appeal.” Id. ¶ 11. We confirm Gailey’s holding and threshold
premise. But we also decide an issue that the Gailey majority did not
reach. We hold that the Plea Withdrawal Statute is constitutional as
applied because the statute does not foreclose an appeal but simply
sets a rule of preservation and imposes a sanction (waiver of the
issue on appeal) for the failure to follow that rule.
I
¶4 In November 2009, Benjamin Rettig and Martin Bond
traveled from Vernal, Utah, to the home of Kay Mortensen in
Spanish Fork, Utah.1 Mortensen owned a large supply of firearms
that were located in a “bunker” behind his home. Bond and Rettig
traveled to his home with the intent to steal some of his firearms. The
two entered Mortensen’s home with a handgun while wearing ski
masks and latex gloves. They zip tied Mortensen and demanded that
he show them where his firearms were stored. After Mortensen
showed them the bunker, Rettig and Bond took him to an upstairs
bathroom. Bond ordered Mortensen to kneel down in front of the tub
with his back toward Bond and Rettig. At this point Rettig was
holding the handgun and pointing it at Mortensen. Bond withdrew a
_____________________________________________________________
1 The facts as to the underlying crime are taken from the
Statement of Defendant in Support of Guilty Plea or No Contest and
Certificate of Counsel Rettig filed in the district court.
2
Cite as: 2017 UT 83Opinion of the Court
knife from his pocket and then put it back. Bond then went
downstairs while Rettig held Mortensen at gunpoint. Bond returned
with a larger knife. Rettig then watched as Bond killed Mortensen by
slicing his throat multiple times and stabbing him in the base of the
neck.
¶5 A short time later Pamela and Roger Mortensen knocked on
Mortensen’s door. Rettig ran downstairs and hid behind the front
door with the handgun while Bond opened the door. When Pamela
and Roger entered the home, Rettig ordered them into the living
room where he and Bond placed zip ties on their hands and feet.
Bond went into the kitchen and returned with another knife. This
time Rettig stepped in front of Bond and told him not to kill Pamela
and Roger. Rettig stayed in the living room with the handgun while
Bond removed approximately twenty-five firearms along with
ammunition and placed them in their vehicle. Bond and Rettig told
Roger and Pamela to inform the “police that three black men had
tied them up and [that] if they told the police a different story,
[Rettig and Bond] knew where they lived and . . . would come back
and kill them.”
¶6 It was not until December 2010 that police arrested Rettig
and Bond. Rettig was charged with aggravated murder (a capital
offense), two counts of aggravated kidnapping, and aggravated
burglary. Rettig obtained counsel and entered a plea agreement
whereby he pled guilty to one count of aggravated murder and one
count of aggravated kidnapping. As part of the plea agreement the
prosecutor dropped the other charges, agreed not to seek the death
penalty, and agreed to recommend the possibility of parole.
¶7 Approximately six weeks later, while still represented by his
original counsel, Rettig sent a pro se letter to the district court seeking
to withdraw his guilty plea. He was concerned that his attorney
“never asked [him for] an entire statement regarding the events”
surrounding the murder. He also raised other concerns. At that point
Rettig’s counsel withdrew. Rettig then obtained new counsel.
¶8 During the sentencing hearing Rettig’s new counsel
explained to the district court that he had reviewed Rettig’s motion
to withdraw and had a “very candid, very open” discussion with his
client about his case with some of his staff present. Rettig’s new
counsel explained to the court that during their discussion he
determined that Rettig’s motion was based on a “misunderstanding
of the application of certain legal terminologies—explained to [Rettig
by] . . . jailhouse lawyers”—which led Rettig to have “a false
impression on what the law was.” To address Rettig’s concerns, the
new counsel had Rettig explain “at length” the facts of the case and
3
STATE v. RETTIG
Opinion of the Court
“gave him numerous opportunities to adjust his facts.” His counsel
then explained the “legal issues” and “why [Rettig’s] arguments
weren’t wholly accurate.” He explained to his client “what the law
was and also how those facts that he provided . . . fit into the
category of” the charged crimes. Based on these interactions, the new
counsel withdrew Rettig’s pro se motion to withdraw his guilty plea.
The district court proceeded with the sentencing hearing on
December 13, 2011.
¶9 Rettig later filed this appeal. On appeal he seeks to set aside
his guilty plea.
II
¶10 Utah’s Plea Withdrawal Statute controls the timing and
grounds for a motion to withdraw a guilty plea. The statute requires
that the “request to withdraw . . . be made by motion before sentence
is announced,” UTAH CODE § 77-13-6(2)(b), and that the defendant
show that the “plea of guilty . . . was not knowingly and voluntarily
made,” id. § 77-13-6(2)(a). A defendant who fails to seek to withdraw
a guilty plea before sentencing is left to raise the issue in a petition
filed under the Post-Conviction Remedies Act (PCRA). Id. § 77-13-
6(2)(c).
¶11 Rettig advances three grounds for establishing that his
guilty plea was involuntary. He argues first that his original counsel
was ineffective for advising him to plead guilty, second that his later
counsel was ineffective for withdrawing Rettig’s pro se motion to
withdraw his guilty plea, and lastly that the facts in his plea affidavit
cannot establish sufficient intent for accomplice liability for
aggravated murder. We do not reach the merits of these claims
because we conclude that we lack appellate jurisdiction to address
them given that Rettig failed to preserve his claims by not
withdrawing his guilty plea until after sentencing.
¶12 Recognizing our long line of precedents holding that we
lack appellate jurisdiction to review untimely withdrawals of guilty
pleas, Rettig contends that the Plea Withdrawal Statute is
unconstitutional. He advances two principal grounds for challenging
the statute. First he argues that the statute violates his right to appeal
under article I, section 12 of the Utah Constitution, which provides
defendants “the right to appeal in all cases.” Second he claims that
the legislature lacks the constitutional power to require that he
pursue his claim in a PCRA proceeding. See UTAH CODE § 77-13-
6(2)(c).
¶13 We reject Rettig’s constitutional challenges. We conclude
that the Plea Withdrawal Statute does not infringe the constitutional
4
Cite as: 2017 UT 83Opinion of the Court
right to appeal because it does not foreclose an appeal but simply
establishes a rule of preservation. And we uphold the
constitutionality of the subsection (2)(c) reservation of a right to file a
post-conviction petition under the PCRA.
A
¶14 Rettig first argues that the Plea Withdrawal Statute infringes
his right to appeal under article I, section 12 of the Utah
Constitution. Section 12 gives criminal defendants “the right to
appeal in all cases.” UTAH CONST. art. I, § 12. Rettig asserts that the
statute’s timing requirement forecloses his right to a direct appeal.
¶15 This court recently confronted this issue in Gailey v. State,
2016 UT 35, 379 P.3d 1278. Gailey held that the Plea Withdrawal
Statute “does not on its face violate the constitutional right to
appeal.” Id. ¶ 11. The court characterized the statute as a “procedural
bar” on a defendant’s right to withdraw a guilty plea after
sentencing. Id. We confirm Gailey’s holding and threshold premise.
¶16 The Gailey majority left open an additional question—
whether the Plea Withdrawal Statute could be applied in a manner
infringing the state constitutional right to appeal. Id. The majority
opinion deemed that question unripe because the appellant retained
a right to challenge the validity of her plea in a post-conviction
review proceeding, complained only about the lack of a right to
counsel under the PCRA, and could eventually be entitled to counsel
in a future proceeding under the PCRA. Id. Given the likelihood that
Gailey might ultimately be afforded the core element of an appeal
that she claimed to be lacking under the PCRA, the majority in Gailey
reserved for another day an answer to the question whether the Plea
Withdrawal Statute could be applied in a manner infringing the
constitutional right to an appeal.
¶17 We now reach the question left unanswered in Gailey. And
we resolve this case on the grounds set forth in the concurring
opinion in Gailey, id. (Lee, A.C.J., concurring), and reinforced by State
v. Allgier, 2017 UT __, __ P.3d __. The Gailey concurrence noted that
“[t]he Plea Withdrawal Statute does not foreclose an appeal” but
simply establishes a rule of preservation or waiver. Gailey, 2016 UT
35, ¶ 34. It also observed that this effect of the Plea Withdrawal
Statute is hardly novel. “Rules of this sort are commonplace.” Id.
¶ 35. “They are embedded in our caselaw under the law of
preservation and reflected in our rules of procedure.” Id. (footnote
omitted). Such rules establish standards of preservation: They
“require parties to raise issues or arguments at specified times and
by certain means.” Id. And they establish a sanction for the failure to
preserve: “[T]hey treat a failure to comply [with the preservation
5
STATE v. RETTIG
Opinion of the Court
standard] as a waiver of the right to raise such issues later in the
litigation.” Id.
¶18 This highlights the core defect in Rettig’s argument. Rules
requiring preservation of an issue at specific times and by required
means “have never been thought to impinge on the constitutional
right to an appeal.” Id. ¶ 36. Such rules simply establish the concept
of waiver in litigation. And that is uncontroversial.
¶19 “Rules of preservation and waiver or forfeiture always
foreclose the right to raise an issue on appeal.” Id. ¶ 43. “They cannot
be unconstitutional on that basis alone, unless we are prepared to
say that such rules are per se unconstitutional.” Id. And of course we
cannot so conclude. Rules of preservation are a longstanding
component of the law of procedure in the trial courts. We hold that
such rules do not infringe the right to an appeal.
¶20 The Plea Withdrawal Statute is like rule 12 of the rules of
criminal procedure. Both set timing requirements for the filing of
certain motions (a preservation rule). And both prescribe sanctions
for the failure to meet the required deadline (waiver, with a bar on
even plain error review).
¶21 Such rules do not “foreclose an appeal.” Id. ¶ 34. They
simply prescribe a sanction for the failure to satisfy the timing
deadlines set forth in the rule. And that effect is as wide-ranging as it
is commonplace. We would not think to strike down criminal rule 12
as foreclosing the state constitutional right to an appeal. We would
reject that claim on the ground that rules of preservation and waiver
simply narrow the issues to be raised on appeal.
¶22 We reach that same conclusion here. We hold that the Plea
Withdrawal Statute is not an infringement of the state constitutional
right to an appeal because it does not foreclose an appeal but only
narrows the issues that may be raised on appeal.
¶23 In so concluding we are not suggesting that no timing
requirement could infringe a criminal defendant’s right to appeal. A
thirty-minute filing requirement for a notice of appeal would
undoubtedly infringe the state constitutional right to appeal. And
perhaps an “absurdly short” time window for withdrawal of a guilty
plea would be similarly problematic. Infra ¶ 109. If an operative rule
of preservation eliminates any meaningful avenue for appellate
6
Cite as: 2017 UT 83Opinion of the Court
review then it could certainly be said to infringe the important right
to an appeal.2
¶24 But Rettig is not challenging the Plea Withdrawal Statute
on this ground. The argument here goes not to the length of the time
window for filing a motion to withdraw a guilty plea but to the
procedural bar imposed for missing that filing deadline. And that
effect of the Plea Withdrawal Statute is hardly unusual. We cannot
strike it down on that basis unless we are willing to call into question
any of a range of case-based or rules-based principles of preservation
and waiver. We uphold the Plea Withdrawal Statute on that basis.
The statute does not infringe the constitutional right to appeal but
only sets the terms and conditions for preservation and waiver.
¶25 The concurrence resists this approach on the ground that
rules of preservation or waiver are always subject to exceptions—for
plain error or ineffective assistance of counsel. See infra ¶¶ 88–90.
Because our cases have treated the Plea Withdrawal Statute as
establishing a “jurisdictional” bar not subject to plain error review,
the concurrence claims that my approach will unsettle our case law
in this field. Infra ¶¶ 91–93.
¶26 This is a false dichotomy. Not every rule of preservation or
waiver is subject to a plain error or ineffective assistance of counsel
exception. Some such rules are “jurisdictional” in the sense of
foreclosing these exceptions. The Plea Withdrawal Statute is
unquestionably that kind of rule. But it is also unquestionably a rule
of preservation or waiver—not a statute barring an appeal.
¶27 The standard set forth in the Plea Withdrawal Statute is
both a rule of preservation and a jurisdictional bar on appellate
consideration of matters not properly preserved. This is not unique
to the Plea Withdrawal Statute. Some of the preservation standards
in our rules of procedure are along the same lines—they prescribe a
rule of preservation and establish a waiver sanction that stands as a
jurisdictional bar on appellate consideration of matters not properly
preserved. See, e.g., UTAH R. CIV. P. 12(h); UTAH R. CRIM. P. 12(f); infra
_____________________________________________________________
2 An unreasonably short deadline foreclosing meaningful access
to the judicial system could also potentially be challenged under the
Open Courts Clause or Due Process Clause. But no such claim has
been asserted here, and we express no opinion on the merits of these
challenges.
7
STATE v. RETTIG
Opinion of the Court
¶¶ 28–33 (discussing these rules and explaining that a preservation
rule can establish a jurisdictional bar on appeal).
1
¶28 The law of preservation or waiver is diverse. Some such
rules are set forth in common law decisions of this court. Our cases,
for example, articulate the general rule that an appellant may not
raise an error on appeal unless he has given the trial court a
meaningful opportunity to avoid that error below. See, e.g., Hill v.
Superior Prop. Mgmt. Servs., Inc., 2013 UT 60, ¶ 46, 321 P.3d 1054. This
is the common law of preservation. And this general rule is subject
to exceptions established by our case law—principally in the
doctrines of plain error and ineffective assistance of counsel. State v.
Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (plain error); State v. Griffin,
2016 UT 33, ¶ 22, 384 P.3d 186 (ineffective assistance of counsel).
¶29 Other rules of preservation or waiver are set forth in the
rules of procedure promulgated by this court. The criminal rules, for
example, require that certain motions (like a motion for a change of
venue) be made “not later than 14 days after the party learns” of the
“grounds” for the motion, UTAH R. CRIM. P. 29(d)(5), and that others
(such as a request for severance of charges) “be raised at least 7 days
prior to the trial,” id. 12(c). Standards of preservation or waiver also
appear in criminal rules 19 and 24. See also id. 19(e) (requiring that a
party raise an objection to a written jury instruction “before the
instructions are given to the jury”); id. 24(c) (mandating that a
motion for new trial be made “not later than 14 days after entry of
the sentence, or within such further time as the court may fix”).
¶30 The operative rule on preservation and waiver in the civil
realm is civil rule 12. Rule 12(a) generally requires a defendant to
“serve an answer within 21 days after the service of the summons
and complaint is complete.” UTAH R. CIV. P. 12(a). It also says that
this general standard is altered where the defendant files a “motion
under this rule”—the answer is then due “within 14 days after notice
of the court’s action.” Id. 12(a)(1). Civil rule 12 also says that certain
matters must be raised by motion. It says that a defense of lack of
jurisdiction, venue, insufficiency of process or service, failure to state
a claim, or failure to join an indispensable party, should be raised by
a motion filed “before pleading if a further pleading is permitted.”
Id. (12)(b).
¶31 Rule 12 also prescribes the consequence—typically
waiver—resulting from the failure to follow these rules of
preservation. It states that the failure to include in a motion a defense
8
Cite as: 2017 UT 83Opinion of the Court
“then available which this rule permits to be raised by motion”
forecloses the party’s right “thereafter” to “make a motion based on
any of the defenses or objections so omitted, except as provided in
subdivision (h).” Id. 12(g). And rule 12(h) sets forth an express
sanction of waiver. See id. 12(h) (waiver of certain defenses if not
presented by motion or answer or reply).
¶32 The above rules may or may not be subject to common law
exceptions to the case-based rule of preservation. It all depends on
the language and structure of the applicable rule of procedure. A
motion for severance of criminal charges, for example, would be
deemed to be waived under criminal rule 12 if made for the first time
after trial—without regard to the “plainness” of any error in the
failure to sever.3 The same goes for the preservation rules in civil
rule 12. We would not allow a waived 12(b)(4) motion for
insufficiency of process to be made at trial no matter how plain the
insufficiency of process. That is because the preservation standards in
both criminal rule 12 and civil rule 12 are clear and comprehensive—
they occupy the field and would be undermined by the invocation of
a plain error exception.4
¶33 This is a principle of waiver that goes to our appellate
“jurisdiction.” The waiver sanction prescribed by criminal rule 12
and civil rule 12 is “jurisdictional” in the sense that it forecloses
_____________________________________________________________
3 See United States v. Weathers, 186 F.3d 948, 955 (D.C. Cir. 1999)
(holding that waiver of a rule 12 defense leaves an appellate court
“without authority to reverse a conviction” on plain error grounds;
noting that a plain error exception to rule 12 would mean that rule
12(f) “would have no consequence”).
4 Granted, not every “procedural rule with a time restriction” is
an issue of preservation establishing a “jurisdictional” bar. Infra
¶¶ 77, 132. Some of the preservation standards in our rules of
procedure surely leave room for plain error analysis. Criminal rule
19, for example, expressly states that a jury instruction that is not
challenged as required under the rule “may not be assigned as error
except to avoid a manifest injustice.” UTAH R. CRIM. P. 19(e). And we
have interpreted that as an invocation of the plain error exception.
See State v. Casey, 2003 UT 55, ¶¶ 39–40, 82 P.3d 1106 (noting that
“‘manifest injustice’ is synonymous with the ‘plain error’ standard”).
But that supports my point: some preservation rules are subject to an
exception for review for plain error and others are not; it all depends
on the language and structure of the rule.
9
STATE v. RETTIG
Opinion of the Court
appellate consideration of the merits of the waived matter.5 If a party
who has waived a severance or service of process defense in the
district court seeks to raise it on appeal we would say that the merits
of that defense falls outside the jurisdiction of the appellate court. Cf.
United States v. Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002) (the failure
to allege lack of probable cause in a pre-trial motion to suppress
“places the issue beyond the scope of our ability to review for plain
error” (citation omitted)).
¶34 Thus, the dichotomy put forward by the concurrence is
mistaken. It is not correct to say that the Plea Withdrawal Statute
must either establish a jurisdictional bar or announce a rule of
preservation. See infra ¶¶ 87–90 (advancing the view that the statute
was once viewed as a rule of preservation but has since been
characterized as establishing a rule of jurisdiction). It is both. It
establishes a standard of preservation—a motion to withdraw a
guilty plea must be filed “before sentence is announced,” UTAH
CODE § 77-13-6(2)(b)—and it imposes a strict sanction of waiver that
is not subject to any common-law exceptions (such as plain error).
¶35 Thus, it is not correct to say that rules of “[w]aiver and
preservation do not create [a] jurisdictional bar.” Infra ¶ 94. Nor can
we properly say that “the jurisdiction of our courts ‘is established
[only] by the Utah Constitution and by statute.’” Infra ¶ 70 (quoting
S. Utah Wilderness All. v. Bd. of State Lands & Forestry of State, 830 P.2d
233, 234 (Utah 1992)). Rules of preservation and waiver may
sometimes create a “jurisdictional bar”; they do so in the sense that
they foreclose the power of the court to consider issues not properly
_____________________________________________________________
5 We have never held that criminal or civil rule 12 is
“jurisdictional,” see infra ¶ 77, but the language and structure of
these rules indicate that they impose a jurisdictional bar. And courts
in other jurisdictions have treated them as so doing. See Weathers, 186
F.3d at 955 (holding that criminal rule 12 not subject to plain error
review and noting that the rule thus deprives an appellate court of
“authority to reverse a conviction” on waived grounds); United States
v. Green, 691 F.3d 960, 965 (8th Cir. 2012) (“[U]ntimely objections that
come within the ambit of [civil rule 12] must be considered waivers
and may not be revived on appeal.” (second alteration in original)
(citation omitted)).
Our point is not to treat “every statute and procedural rule with a
time restriction” as jurisdictional. See infra ¶ 132. It is to note that
some such timing rules establish a jurisdictional bar; and that the
Plea Withdrawal Statute fits that mold.
10
Cite as: 2017 UT 83Opinion of the Court
preserved and barred by a principle of waiver. And the power to
regulate this kind of “jurisdiction” is not vested exclusively (or even
principally) in the legislature; this kind of “jurisdictional bar” is a
proper subject for our rules of procedure.
¶36 The confusion in the concurrence’s opinion on these points
flows from an oversimplification of the term “jurisdiction.” “The
notion of ‘jurisdiction’ is a slippery one.” In re Adoption of B.B., 2017
UT 59, ¶ 125, __ P.3d__ (Lee, A.C.J., opinion of the court in part).
“This is a word that means different things in different
circumstances.” Id. “Sometimes it is used to characterize the scope of
a court’s power to issue a certain form of relief.” Id. But this is not the
only operative principle of “jurisdiction.” When we speak of subject-
matter jurisdiction we are speaking of “statutory limits on the class
of cases assigned to the authority of a certain court” and “other
limits that go to the concept of justiciability.” Id. ¶ 129.
¶37 The concurrence is right to note that the constitutional
authority to regulate subject-matter jurisdiction is vested in the
legislature. Infra ¶ 70. To the extent we are talking about subject-
matter jurisdiction it is correct to say that jurisdiction is not regulated
by our rules of preservation. Infra ¶ 70. But it does not follow that
rules of preservation and waiver cannot establish a “jurisdictional
bar.” Such rules do that quite routinely. Criminal and civil rules 12
are prime examples. These rules establish a “procedural bar” on the
issues that may be raised on appeal. In that sense they regulate
“jurisdiction” by limiting “the scope of a court’s power to issue a
certain form of relief.” In re Adoption of B.B., 2017 UT 59, ¶ 125 (Lee,
A.C.J., opinion of the court in part).
¶38 Preservation rules are well within our constitutional power.
“[T]he Utah Constitution does” indicate that this sort of jurisdictional
bar is a matter within our power to regulate by the promulgation of
a rule of procedure. Infra ¶ 70 (emphasis added). We have the power
to promulgate this kind of rule because it is procedural. See infra
¶ 119. And the effect of this kind of rule is properly viewed as
“jurisdictional” in the narrow sense of regulating the scope of a
court’s authority to address a certain issue.6
_____________________________________________________________
6 The concurrence contends that rules of procedure cannot be
jurisdictional because “we can simply amend those rules tomorrow.”
Infra ¶ 79. But our authority to promulgate and amend rules of
procedure does not encompass the right to ignore the rules once
(continued . . .)
11
STATE v. RETTIG
Opinion of the Court
¶39 Thus, we cannot properly say that “[p]reservation is only
an issue in cases in which we have jurisdiction.” Infra ¶ 97. That may
hold for subject-matter jurisdiction.7 But not for the more limited
notion of jurisdiction in the sense of power to reach a certain
question presented. An issue raised on appeal may be procedurally
barred on the ground that it was not preserved and accordingly
waived. And at least sometimes such issues will be subject to a
“jurisdictional bar”—the kind of bar we treat as unaffected by
common-law exceptions such as “plain error.”
¶40 Our appellate jurisdiction is limited by both statute and by
rules of civil and appellate procedure. But they do so in different
ways. Our rules generally inform and circumscribe our jurisdiction
in the sense of limiting our authority to decide certain issues. The
statutes cited by the concurrence, see infra ¶ 99 & n.25, on the other
hand, generally regulate our subject-matter jurisdiction.
¶41 Thus, the concurrence’s conclusions are overbroad. They
suffer from an oversimplification of the multi-faceted term
“jurisdiction.” Once we clarify that the notion of a “jurisdictional
bar” goes to a narrow notion of jurisdiction—to the idea of a court’s
authority to reach a certain issue—it becomes clear that the Plea
Withdrawal Statute is both a rule of preservation and waiver and a
rule of jurisdiction.
¶42 We interpret the statute to foreclose review for plain error
or ineffective assistance of counsel because the statute speaks
directly and comprehensively to the result of failure to move to
_____________________________________________________________
(continued . . .)
adopted—or to decline to impose the sanction for failing to follow
them. And our power to amend a rule does not mean that it is not
jurisdictional.
7 This narrow notion of jurisdiction is not a “subset” of subject-
matter jurisdiction. See infra ¶ 74. We have subject-matter jurisdiction
to review plea withdrawals. And we may exercise that jurisdiction in
every case except where the appellant has failed to withdraw the
plea before sentencing, in which case we lose appellate jurisdiction.
The concurrence acknowledges that we do not lose subject-subject
matter jurisdiction in an analogous situation—when a party fails to
file a timely notice of appeal. Infra ¶ 80. And the timing requirement
is “jurisdictional in nature” because an “appellate court simply has
no power to hear the case if a notice of appeal is untimely.” State v.
Collins, 2014 UT 61, ¶ 22, 342 P.3d 789.
12
Cite as: 2017 UT 83Opinion of the Court
withdraw prior to sentencing. It does so by stating that “[a]ny
challenge to a guilty plea not made within the time period specified
in Subsection (2)(b) shall be pursued” under the PCRA. UTAH CODE
§ 77-13-6(2)(c). And our cases have characterized this effect as
“jurisdictional.” See State v. Merrill, 2005 UT 34, ¶ 20, 114 P.3d 585(section 77-13-6(2)(b) is “jurisdictional”); State v. Reyes, 2002 UT 13,
¶ 3, 40 P.3d 630 (same).
¶43 But that doesn’t mean that the statute is not prescribing a
rule of preservation. The jurisdictional effect of the Plea Withdrawal
Statute is the same as the jurisdictional effect of criminal rule 29 on a
motion to sever, or civil rule 12 on an insufficiency of process
motion. The statute and these rules all do the same thing: (a) they set
a time for filing a particular kind of motion (a rule of preservation);
(b) they prescribe a consequence for failing to file in time (waiver of
the issue); and (c) they preclude consideration of the merits of the
issue on appeal (in a manner we treat as jurisdictional).
¶44 That shows that the dichotomy advanced by the
concurrence is a false one. The Plea Withdrawal Statute is not
different in kind from at least some of the standards of preservation
and waiver in our rules of procedure. And for that reason the statute
can easily be viewed as establishing both a preservation rule and a
waiver sanction that stands as a jurisdictional bar on appellate
review even for plain error or ineffective assistance of counsel.
2
¶45 The approach we take today is consistent with the approach
this court took in State v. Gibbons, 740 P.2d 1309, 1311 (Utah 1987),
under the 1980 version of the Plea Withdrawal Statute. The statute at
issue in Gibbons is quite distinct from the one in place now. The 1980
statute “set[] no time limit for filing a motion to withdraw [a guilty]
plea.” Gibbons, 740 P.2d at 1311. With that in mind, the Gibbons court
was concerned about the possibility that a motion to withdraw could
be filed while the case was pending on appeal—either mooting the
current appeal (if the motion were granted) or at least introducing
“the possibility of appeals from two different judgments in the same
criminal case.” Id. On that basis the Gibbons court “remand[ed] the
case to enable the defendant to file a motion to withdraw his guilty
pleas” while “retain[ing] jurisdiction over the case for any necessary
future action.” Id.
¶46 Our cases later viewed Gibbons as opening the door to
consideration of the merits of an unpreserved motion to withdraw a
guilty plea “if plain error or exceptional circumstances exist[ed].”
State v. Marvin, 964 P.2d 313, 318 (Utah 1998), superseded by statute as
13
STATE v. RETTIG
Opinion of the Court
stated in Reyes, 2002 UT 13, ¶ 4. But that was premised on the
analysis in Gibbons—which turned on the language and structure of
the then-controlling version of the Plea Withdrawal Statute (which
set no time limit on a motion to withdraw). The Gibbons line of cases,
in other words, viewed the 1980 Plea Withdrawal Statute as
establishing no standard of preservation to begin with (no time limit
on filing a motion). Alternatively, these cases can be understood to
view the 1980 statute as opening the door to plain error review of the
merits of an unpreserved motion to withdraw because the statute set
no time limit. But that is not because rules of preservation are always
subject to plain error review. It is because the court viewed the
controlling statute to be open to such review.
¶47 And that conclusion cannot hold under the current version
of the Plea Withdrawal Statute. That statute sets a strict rule of
preservation—a requirement that a motion to withdraw be filed
before the sentence is imposed. UTAH CODE § 77-13-6(2)(b). And it
prescribes a strict waiver sanction that forecloses review for plain
error on direct appeal. Id. § 77-13-6(2)(c) (“Any challenge to a guilty
plea not made within the time period specified in Subsection (2)(b)
shall be pursued under” the PCRA. (emphasis added)).
¶48 This was the basis for our decision to decline to extend
Marvin to the amended version of the Plea Withdrawal Statute at
issue in Reyes, 2002 UT 13, ¶ 4. Our point in Reyes was not that
statutory standards for filing plea withdrawal motions go inherently
to “jurisdiction” and not “preservation” (as the concurrence here
suggests). It was that the 1989 amendment to the Plea Withdrawal
Statute set a strict time deadline8 for filing a motion to withdraw and
that a failure to meet that deadline “extinguishes a defendant’s right
to challenge the validity of the guilty plea on appeal.” Reyes, 2002 UT
13, ¶ 3. And it was that conclusion—rooted in the language and
structure of the statute—that led to the Reyes court’s determination
that the Plea Withdrawal Statute foreclosed plain error review of the
merits of an unpreserved motion to withdraw.
¶49 For these reasons our approach does not overturn the Reyes
decision. Infra ¶ 91. It is fully consistent with Reyes. The current Plea
_____________________________________________________________
8 The statute at issue in Reyes was similar to the current version.
But instead of requiring a motion to withdraw before the sentence is
imposed, the statute at issue in Reyes required the motion to be filed
within 30 days after entry of the plea. Reyes, 2002 UT 13, ¶ 4 (citing
Utah Code section 77-13-6 (1989)).
14
Cite as: 2017 UT 83Opinion of the Court
Withdrawal Statute establishes a preservation standard that stands
as a jurisdictional bar to plain error review.
¶50 The Reyes line of cases all say the same thing. They all arise
under a version of the Plea Withdrawal Statute that establishes a
strict time standard for preservation of a motion to withdraw a
guilty plea—and imposes a strict sanction of waiver without the
possibility of direct review for plain error or ineffective assistance of
counsel.9 In that setting it is completely correct to refer to the Plea
Withdrawal Statute, as Reyes did, as establishing a “jurisdictional”
bar on appellate review for plain error or ineffective assistance. And
we are making the same point here.
¶51 Thus, it is not accurate to say that the Plea Withdrawal
Statute (as establishing a standard of preservation) requires us to
analyze whether Rettig received ineffective assistance of counsel or
was a victim of plain error. The Plea Withdrawal Statute is a
jurisdictional bar on direct review of these issues. It also establishes a
rule of preservation.
B
¶52 Rettig also challenges section 77-13-6(2)(c), arguing that the
legislature lacks the authority under article VIII, section 4 of the Utah
Constitution to require that he pursue his claim through the PCRA.
We hold that the legislature acted clearly within its constitutional
authority in enacting subsection (2)(c) of the Plea Withdrawal
Statute. And Rettig has not asserted a challenge to subsection (2)(b).
¶53 Subsection (2)(c) states that a “challenge to a guilty plea not
made within the time period specified in Subsection (2)(b) shall be
pursued” under the PCRA. UTAH CODE § 77-13-6(2)(c). This is the
establishment of a new legal remedy—a quintessential matter of
substance.10 That is dispositive. The establishment of a new remedy
is a core matter of substance—clearly within the power of the
legislature. See Petty v. Clark, 192 P.2d 589, 593 (Utah 1948)
_____________________________________________________________
9 Reyes, 2002 UT 13, ¶ 4 (addressing the 1989 version of section
77-13-6); State v. Wright, 2002 UT App 180 (1989 version); State v.
Rhinehart, 2007 UT 61, ¶ 2, 167 P.3d 1046 (current—post-2003—
statute); State v. Lee, 2011 UT App 356, ¶ 2, 264 P.3d 239 (current).
10 To some degree the concurrence seems to agree. It notes that
subsection (2)(c) “arguably gives the defendant the right to bring [an
ineffective assistance of counsel] claim under the PCRA. Infra ¶ 115.
15
STATE v. RETTIG
Opinion of the Court
(“Substantive law is . . . the positive law which creates, defines[,] and
regulates the rights and duties of the parties and which may give rise
to a cause [of] action.”); see also State v. Drej, 2010 UT 35, ¶ 26, 233
P.3d 476 (quoting Petty, 192 P.2d at 593). And Rettig accordingly
cannot claim that subsection 2(c) encroaches on the court’s power to
promulgate rules of “procedure” under article VIII, section 4 of the
constitution.
¶54 This is the approach taken by the concurrence in Gailey. The
concurrence noted the existence of a “fair question” about the
legislature’s constitutional authority to adopt a rule of preservation
in the Plea Withdrawal Statute. Gailey, 2016 UT 35, ¶ 45 (Lee, A.C.J.,
concurring). It cited article VIII, section 4 of the Utah Constitution,
which recognizes this court’s power to “adopt rules of procedure
and evidence to be used in the courts of the state” and to “manage
the appellate process” but acknowledges the legislature’s power to
“amend” such rules “upon a vote of two-thirds of all members of
both houses.” Id. (quoting UTAH CONST. art. VIII, § 4).
¶55 The concurrence alludes to this same important issue. It
asserts that the Plea Withdrawal Statute “contains both procedural
and substantive components,” infra ¶ 125, and suggests that “purely
procedural” components of the statute may be beyond the
legislature’s authority under article VIII, section 4, as illuminated by
our opinion in Brown v. Cox, 2017 UT 3, 387 P.3d 1040, infra ¶ 120.
That said, the concurrence ultimately rejects Rettig’s article VIII,
section 4 challenge to subsection 2(c) of the Plea Withdrawal Statute.
And in so doing it characterizes various provisions of the statute as
either “procedural” or “substantive” and holds that the only
provision challenged by Rettig—subsection 2(c)—is so “inextricably
intertwined” with substantive elements of the statute that it is
“substantive” and thus within the legislature’s power under article
VIII, section 4. Infra ¶ 125.
¶56 The concurrence’s discussion of the “procedural” and
“substantive” elements of the statute is both troubling and
unnecessarily confusing. It confounds our law by suggesting that
subsection (2)(c) may be “procedural in that it manages the judicial
process by directing defendants to the PCRA.” Infra ¶ 125. And it
multiplies the confusion by treating subsection (2)(b) as
16
Cite as: 2017 UT 83Opinion of the Court
“substantive” (or at least “inextricably intertwined” with substantive
law). See infra ¶ 125. This gets the matter backwards.11
¶57 Subsection (2)(c) is a classic matter of substance in that it
establishes a new remedy or cause of action. And it doesn’t become
quasi-procedural just because we refer to it as a provision that
“manages the judicial process.” Infra ¶ 125. (In that sense any new
cause of action would be procedural, and this court would have the
power to promulgate a rule of “procedure” establishing a new cause
of action in tort or contract.)
¶58 Subsection (2)(b), by contrast, is quintessentially
procedural—in that it prescribes the manner and means of raising a
particular issue in court proceedings. See Petty, 192 P.2d at 593–94
(procedural rules or laws “pertain[] to and prescribe[] the practice
_____________________________________________________________
11 The substance-procedure distinction is a wide-ranging one in
the law. See Guaranty Tr. Co. of N.Y. v. York, 326 U.S. 99, 108 (1945)
(noting that the substance-procedure distinction is “relevant to
questions pertaining to ex post facto legislation, the impairment of
the obligations of contract, the enforcement of federal rights in the
State courts[,] and the multitudinous phases of the conflict of laws”).
And the slippery, varying nature of these terms has been often
acknowledged. See id.The line between substance and procedure under one legal
construct may often differ from the line between those terms in a
different construct. See id. (noting that “‘substance’ and ‘procedure’
are the same key-words to very different problems,” that “[n]either
‘substance’ nor ‘procedure’ represents the same invariants,” and that
“[e]ach implies different variables depending upon the particular
problem for which it is used”). Thus, the fact that a statute is
sufficiently “substantive” to bar its retroactive application doesn’t
tell us anything meaningful about whether it is “substantive” under
article VIII, section 4—a provision reserving the power to “adopt
rules of procedure” for this court, while (implicitly) leaving for the
legislature the power to adopt substantive law. See UTAH CONST. art.
VIII, § 4.
And on that score it is troubling to suggest that a time deadline
for filing in the trial court could be a matter within the legislature’s
power if it merely “cut[s] off substantive rights.” Infra ¶ 123. Most
time deadlines, if missed, can extinguish a substantive right. If that
characterization is enough to give the legislature the power to
promulgate a rule then the limitation in article VIII, section 4 may
easily be erased.
17
STATE v. RETTIG
Opinion of the Court
and procedure or the legal machinery by which” cases are
conducted); Drej, 2010 UT 35, ¶ 27 (“Statutes are purely procedural
only where they provide a different mode or form of procedure for
enforcing substantive rights. . . . Procedural laws are concerned
solely with the judicial processes.” (internal quotation marks
omitted)). You can’t get much more procedural than a filing
deadline.12 Yet the concurrence implies the contrary by suggesting
that subsection (2)(c) (which it views as at least partly procedural)
might nonetheless fall within the legislature’s authority over matters
of substance because it is “inextricably intertwined” with the
“substantive” time limit in subsection (2)(b).13 See infra ¶ 125.
¶59 Again that is backwards. We don’t need to get into the
“inextricable” connectedness between these two provisions because
_____________________________________________________________
12 The establishment of filing deadlines is perhaps the most
rudimentary form of procedure. So if we treat the power to regulate
appellate jurisdiction as encompassing the power to set filing
deadlines in the trial courts, then the legislature will have the power
to promulgate even basic rules of procedure (establishing time
deadlines). That cannot follow unless we are prepared to allow the
article VIII, section 3 power to regulate “appellate jurisdiction” to
swallow the prohibition in article VIII, section 4 on the legislature
promulgating rules of “procedure.” The concurrence’s analysis
suggests just that, in a case in which we have no need to consider
this question.
13 “[A] statute of limitations is a filing deadline in a district
court.” Infra ¶ 130. But this kind of filing deadline has long been
understood to fall within the domain of the legislature. See Fortier v.
Traynor, 330 N.W.2d 513, 515 (N.D. 1983) (noting that setting statutes
of limitation “historically has been the function of the Legislature”);
Aicher ex rel. LaBarge v. Wisc. Patients Comp. Fund, 613 N.W.2d 849,
865 (Wis. 2000) (“Statutes limiting the time period for filing actions
historically have been policy decisions within the province of the
legislature.”). On that basis we can easily respect the legislature’s
power to enact statutes of limitations without overriding the terms of
article VIII, section 4. Statutes of limitations are an historical
exception to the general rule that rules of procedure are the domain
of the courts.
18
Cite as: 2017 UT 83Opinion of the Court
subsection (2)(c) is clearly substantive and subsection (2)(b) is not
challenged by Rettig.14
¶60 We do not need to reach whether subsections (2)(b) and
(2)(c) are “inextricably intertwined” in a manner insulating the
broader statutory scheme from challenge (even if one of these
provisions is procedural). See infra ¶ 125. This question is not
properly presented, as again the only provision that is challenged by
Rettig—subsection 2(c)—is plainly within the legislature’s
constitutional power. And the “inextricably intertwined” analysis in
the concurrence at least implies that subsection (2)(b) would
withstand scrutiny under article VIII, section 4 even if it is plainly
procedural. We have doubts on that point but do not forecast an
answer to it here.15
_____________________________________________________________
14 For these reasons we are not at all saying that the Plea
Withdrawal Statute is constitutional because “the jurisdictional bar is
created through a rule of preservation.” Infra ¶ 85. Quite the
contrary. The procedural dimension of the preservation rule in the
statute—the time deadline it sets for the filing of motions—may be a
potent basis for questioning the constitutionality of this statute
under article VIII, section 4. The problem is that Rettig has not
asserted an article VIII, section 4 challenge to this procedural bar (in
subsection 2(b)).
15 State v. Drej, 2010 UT 35, 233 P.3d 476, addressed a more
complex problem than the one presented here. There we considered
whether a statute that allocating burdens of proof for special
mitigation at trial was procedural or substantive. On that question,
we noted that some state courts had “held that assignment of a
burden of proof is a substantive right as a matter of law” while
others had “held that the assignment of a burden of proof is always
procedural.” Id. ¶ 29. We also identified a third set of state courts
(and the U.S. Supreme Court) that had “declined to create such
bright line rules,” choosing instead “to treat burdens of proof as
substantive when the rule ‘is inseparably connected with the
substantive rights of the parties.’” Id. ¶ 30 (citation omitted). Faced
with a difficult problem of categorizing the burden of proof, we
followed this latter path in Drej. But we have no occasion to pursue
that course here because the only provision challenged—subsection
2(c)—is quite obviously within the legislature’s authority.
19
STATE v. RETTIG
DURHAM, J., concurring in the result
III
¶61 We conclude that Rettig’s two constitutional challenges to
the Plea Withdrawal Statute fail. The statute establishes a rule of
preservation, and such rules do not foreclose an appeal. We also
hold that the legislature acted clearly within its constitutional
authority in enacting subsection (2)(c) of the Plea Withdrawal
Statute. We therefore lack appellate jurisdiction to address Rettig’s
underlying voluntariness claims under section 77-13-6(2)(a).
JUSTICE DURHAM, concurring in the result:
¶62 As the majority acknowledges, we must determine if we
have jurisdiction before we can address Mr. Rettig’s substantive
arguments that he should be allowed to withdraw his guilty plea.
Mr. Rettig has brought two constitutional challenges to the Plea
Withdrawal Statute’s jurisdictional bar.16 First, he argues that the
Plea Withdrawal Statute violates his constitutional right to appeal
and the associated rights to effective assistance of counsel and paid
counsel on direct appeal. Alternatively, he argues that the legislature
exceeded its constitutional authority under article VIII, section 4, by
passing subsection (2)(c) of the Plea Withdrawal Statute. The
majority holds that he has failed to establish that we have
jurisdiction over this appeal. While I agree that Mr. Rettig has failed
to establish that we have jurisdiction, I disagree with the majority’s
analysis of the constitutional right to appeal and of the
_____________________________________________________________
16 Mr. Rettig also brought a third constitutional challenge to the
Plea Withdrawal Statute, but it was not a direct challenge to the
jurisdictional bar. The Plea Withdrawal Statute only allows a
defendant to withdraw a guilty plea if he can establish that it was
unknowingly or involuntarily entered, even if a defendant is
afforded ineffective assistance of counsel. UTAH CODE § 77-13-6(2)(a);
State v. Rhinehart, 2007 UT 61, ¶ 13, 167 P.3d 1046 (“The
ineffectiveness of counsel that contributes to a flawed guilty plea,
however, can spare a defendant the consequences of her plea only if
the defendant makes out the same case required of every defendant
who seeks to withdraw a plea: that the plea was not knowing and
voluntary.”). Mr. Rettig argues this unconstitutionally limits a
defendant’s ability to withdraw a guilty plea for ineffective
assistance of counsel. The majority does not address this
constitutional challenge, likely because it holds that we do not have
jurisdiction over this appeal.
20
Cite as: 2017 UT 83DURHAM, J., concurring in the result
constitutionality of Utah Code section 77-13-6(2)(c) under article VIII,
section 4 of the Utah Constitution. I address my concerns with each.
I. THE CONSTITUTIONAL RIGHT TO APPEAL
¶63 To avoid the jurisdictional bar, Mr. Rettig argues that the
Plea Withdrawal Statute violates his constitutional “right to appeal
in all cases.” see UTAH CONST. art. I, § 12. He also argues that this
violates his associated right to the “effective assistance of an
attorney” on direct appeal, see Evitts v. Lucey, 469 U.S. 387, 396 (1985);
cf. Hill v. Lockhart, 474 U.S. 52, 56–57 (1985) (right to effective counsel
in “the plea process”), and his “right to state-paid counsel” on direct
appeal, Gailey v. State, 2016 UT 35, ¶ 26, 379 P.3d 1278. The majority
dismisses these arguments, holding that the Plea Withdrawal Statute
creates both an issue of preservation and an issue of jurisdiction,
although we have never so held before. Supra ¶ 26. It justifies this
bold new approach through two steps. First, it establishes a new
category of jurisdiction, one that we have never expressly
recognized. Supra ¶¶ 35–42. Second, it creates a new branch of
preservation when a statute includes timing requirements that may
or may not be subject to the common law exceptions to preservation.
Supra ¶¶ 28–32. I disagree with the majority’s view of our
jurisdiction, our rules of preservation, and how these two doctrines
apply.
¶64 I first discuss the issues I see with the majority’s creation
of a new category of jurisdiction. Next, I address my concerns with
the majority’s analysis concerning preservation. Finally, I address
why I believe the majority’s analysis concerning the Plea Withdrawal
Statute under the constitutional right to appeal is incorrect.
A. Jurisdiction
¶65 When a defendant fails to move to withdraw a guilty plea
prior to sentencing, we have interpreted the Plea Withdrawal Statute
as cutting off the jurisdiction of our district courts, and as either
cutting off the jurisdiction of the court of appeals or as requiring us
to exercise our jurisdiction only through a PCRA proceeding. UTAH
CODE § 77-13-6(2)(c); see also Gailey, 2016 UT 35, ¶¶ 17–18 (Utah Code
section 77-13-6(2)(c) “expressly provide[s] that the right to withdraw
a plea is extinguished” after sentencing). We have previously
recognized appellate, subject matter, and personal jurisdiction, and
have often used the hazy term “jurisdiction” without any
classification or definition.
¶66 In an attempt to treat the Plea Withdrawal Statute as both
an issue of jurisdiction and an issue of preservation, the majority
21
STATE v. RETTIG
DURHAM, J., concurring in the result
establishes a new, amorphous category of jurisdiction that it broadly
defines as the “power [of a court] to reach a certain question
presented.” Supra ¶ 39. It then goes on to state that “the power to
regulate this kind of ‘jurisdiction’ is not vested exclusively (or even
principally) in the legislature; this kind of ‘jurisdictional bar’ is a
proper subject for our rules of procedure.” Supra ¶ 35. Because of
this, the majority holds that “[r]ules of preservation and waiver may
sometimes create a ‘jurisdictional bar,’” supra ¶ 35, presumably if the
rule of preservation is created by a statute or rule of procedure that
does not allow for any exceptions. Supra ¶ 32.
¶67 The majority further attempts to draw a boundary around
this new category of jurisdiction by stating that many statutes,
including statutes of limitation, are a legislative exercise of its
authority to govern subject matter jurisdiction, whereas our rules of
procedure (be they civil, criminal, appellate, or otherwise) generally
limit our jurisdiction under this new category of jurisdictional bars.
Supra ¶ 40. I agree to some extent with this new category of
jurisdiction, but I disagree with the boundaries that the majority
attempts to adopt as they ignore the nature of our constitutional
jurisdiction.
¶68 Some other states have determined that “[j]urisdiction is
composed of three elements: (1) personal jurisdiction; (2) subject
matter jurisdiction; and (3) the court’s power to render the particular
judgment requested.”17 Limehouse v. Hulsey, 744 S.E.2d 566, 572 (S.C.
2013) (alteration in original) (citation omitted); see also Indep. Sch.
Dist. No. 1 of Okla. Cty. v. Scott, 15 P.3d 1244, 1248 (Okla. Civ. App.
2000); 21 C.J.S. Courts § 11 (2017 update) (“Jurisdiction encompasses:
jurisdiction of the subject matter, jurisdiction of the person,
jurisdiction of the res or property, and, by the rule applicable in
some courts, jurisdiction to render the particular judgment in the
particular case.” (footnotes omitted)). The majority appears to adopt
this third prong, which is sometimes called “‘particular-case’
jurisdiction.” 21 C.J.S. Courts § 14 (2017 update). This type of
jurisdictional analysis deprives a court of the “authority to hear a
particular case if a party fails to follow the statutory procedures for
invoking the court’s authority in that particular case.” Id. However,
the majority expands this type of jurisdictional bar from when a
“party fails to follow the statutory procedures for invoking the
_____________________________________________________________
17 Our constitution also specifically recognizes appellate
jurisdiction.
22
Cite as: 2017 UT 83DURHAM, J., concurring in the result
court’s authority,” id. (emphasis added), to a party’s failure to follow
a rule of procedure promulgated by this court.
¶69 While I agree to some extent with recognition of this
category of jurisdiction, I believe it must be utilized with caution and
in light of our constitution. I would read the third prong of
jurisdiction as only applying to constitutional and legislative limits
on a court’s power to render a particular judgment requested. Our
constitution does not give this court power to expand or limit the
jurisdiction of the courts generally.
¶70 Jurisdiction is generally defined as “[a] court’s power to
decide a case or issue a decree,” and it typically “speak[s] from a
position outside the court system [that] prescribe[s] the authority of
the courts within the system.” Jurisdiction, BLACK’S LAW DICTIONARY
(10th ed. 2014); 21 C.J.S. Courts § 1 (2017 update) (“Courts are not
self-conceived but exist by force of law under the authority of
constitutional provisions or statutes, and not by the courts’ rule-
making power or by the parties’ stipulation or conduct.”). Thus, we
have stated that the jurisdiction of our courts is “established by the
Utah Constitution and by statute.” S. Utah Wilderness All. v. Bd. of
State Lands & Forestry of Utah, 830 P.2d 233, 234 (Utah 1992). While
the majority attempts to grant this court the authority to limit our
own jurisdiction and the jurisdiction of the other courts in this state,
the language of the Utah Constitution does not support such an
interpretation. Article VIII, section 3 governs the jurisdiction of this
court, and article VIII, section 5 governs the jurisdiction of every
other court in this state.
¶71 Article VIII, section 3 provides that this court “shall have
appellate jurisdiction over all . . . matters to be exercised as provided
by statute,” and that we “shall have original jurisdiction to issue all
extraordinary writs and to answer questions of state law certified by
a court of the United States.” UTAH CONST. art. VIII, § 3 (emphases
added). There is not much wiggle room in this language. This
constitutional provision defines the outer limits of our power, and its
use of “shall” mandates that this court cannot expand or limit our
own jurisdiction. Indeed, the legislature cannot even limit our
appellate jurisdiction. It can only require that we exercise our
appellate jurisdiction “as provided by statute.” Id. It typically does
23
STATE v. RETTIG
DURHAM, J., concurring in the result
so by requiring certain categories of appeals to pass through the
court of appeals prior to reaching this court.18
¶72 Similarly, the Utah Constitution defines the jurisdiction of
our district courts. It provides that “[t]he district court shall have
original jurisdiction in all matters except as limited by this
constitution or by statute . . . .” UTAH CONST. art. VIII, § 5 (emphasis
added). Contrary to the majority’s holding, the “power [of the
district court] to reach a certain question presented” is not, and
cannot, be limited by a rule of procedure promulgated by this court.
Supra ¶ 39. The constitution is clear; the district court “shall have
original jurisdiction in all matters” unless the constitution itself, or a
statute that complies with our constitution, limits that jurisdiction.
UTAH CONST. art. VIII, § 5 (emphasis added).
¶73 The constitution clearly establishes and outlines the power
of this and the district court and provides the only means whereby
this or the district court’s jurisdiction may be altered.19 Nevertheless,
the majority holds that we, through our rules of procedure, may
“circumscribe our jurisdiction.” Supra ¶ 40. It does so by trying to
draw an untenable line between the legislature’s “constitutional
authority to regulate subject-matter jurisdiction” and its belief that
this court can expand or limit particular case jurisdiction. Supra ¶ 37.
This does not comport with the plain language of our constitution. It
clearly states that district courts “shall have” jurisdiction unless the
constitution or a statute provides otherwise. The constitution does
not draw an arbitrary line between subject matter jurisdiction and
particular case jurisdiction.
_____________________________________________________________
18 As an example, the legislature has given the court of appeals
appellate jurisdiction over certain categories of cases, such as all
appeals from “criminal cases, except those involving a conviction or
charge of a first degree felony or capital felony.” See UTAH CODE
§ 78A-4-103(2)(d), (e). We can exercise our appellate jurisdiction over
“a judgment of the Court of Appeals,” or “judgments . . . of any
court of record over which the Court of Appeals does not have
original appellate jurisdiction.” UTAH CODE § 78A-3-102(3)(a), (j).
19 The constitution also clearly defines the jurisdiction of our
statutory courts and provides the only means whereby their
jurisdiction may be altered. “The jurisdiction of all other courts, both
original and appellate, shall be provided by statute.” UTAH CONST.
art. VIII, § 5. When the constitution says that our statutory courts’
jurisdiction “shall be provided by statute,” it leaves no room for this
court to expand or limit their jurisdiction by procedural rule.
24
Cite as: 2017 UT 83DURHAM, J., concurring in the result
¶74 Indeed, there is no real difference between these two
classifications as “[p]articular case jurisdiction is a subset of subject
matter jurisdiction . . . .” Hisle v. Lexington-Fayette Urban Cty. Gov’t,
258 S.W.3d 422, 429 (Ky. Ct. App. 2008). Whether a court can hear
the subject matter of a particular argument in a particular case
because the argument is untimely is necessarily a subset of whether
a court can hear the broader subject matter of the claim in general. In
any event, the plain language of our constitution does not support a
distinction between these two classifications of jurisdiction.
¶75 The majority’s analysis concerning how we have the
power to limit or expand our jurisdiction is not persuasive. First, it
looks to the mandatory language in rule 12 of both our Rules of Civil
Procedure and our Rules of Criminal Procedure to show that
somehow, these rules must be jurisdictional. Supra ¶¶ 29–33. It
supports this statement by citing two cases. See supra ¶ 33 n.5. But
neither of those cases dealt with the Utah Constitution and there are
plenty of cases that state the opposite. Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 89 (1998) (“[J]urisdiction . . . is not defeated . . . by
the possibility that the averments might fail to state a cause of action
on which petitioners could actually recover.” (second and third
alterations in original) (citation omitted)); Davoll v. Webb, 194 F.3d
1116, 1128 n.3 (10th Cir. 1999) (stating that “the difference between a
question of subject matter jurisdiction and one of failure to state a
claim is a lesson that has been taught as often in decision as it has
been ignored in argument and dicta,” and “courts should carefully
consider whether a dismissal is truly jurisdictional”) (citations
omitted) (internal quotation marks omitted)).
¶76 Second, the majority looks to our constitutional power to
promulgate rules of procedure. Supra ¶¶ 35, 38. Thus, the majority
reasons, because we have the constitutional power to promulgate
procedural rules, and some procedural rules are allegedly
jurisdictional, we must have the constitutional power to expand or
limit our jurisdiction. We certainly have the power to promulgate
procedural rules. But, as shown above, we do not have the
constitutional power to alter the jurisdiction of any court in this
state.
¶77 The majority’s analysis misunderstands the role of our
rules of procedure. Not all procedural or substantive bars, whether
in a statute or a rule, deal with a court’s authority to hear a case.
Some statutes and rules speak “only to the rights and obligations of
the litigants, not to the power of the court.” City of New York v.
Mickalis Pawn Shop, LLC, 645 F.3d 114, 127 (2d Cir. 2011); Union Pac.
R.R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm. of
25
STATE v. RETTIG
DURHAM, J., concurring in the result
Adjustment, Cent. Region, 558 U.S. 67, 81 (2009) (“Not all mandatory
‘prescriptions, however emphatic, are . . . properly typed
jurisdictional.’” (alteration in original) (citation omitted)). I see both
the criminal and civil version of rule 12 differently from the majority.
I see them, and every other procedural rule we promulgate, as
imposing “rights and obligations” on the litigants. We are simply
warning parties that if they do not comply with our procedural
rules, they may be barred from raising a claim or argument.
¶78 I believe this interpretation of our procedural rules is
mandated by the constitution. The constitution and statute are the
only things that can actually define the limits of a court’s power to
hear a case or address a particular question. We cannot expand or
limit our jurisdiction through rulemaking.
¶79 The rules themselves support this interpretation. Utah
Rule of Civil Procedure 1 recognizes that our rules “govern the
procedure in the courts of the state of Utah in all actions of a civil
nature.” These rules—such as the timing requirements for filing a
motion under rule 12—are intended to assist us in achieving “the
just, speedy, and inexpensive determination of every action.” UTAH
R. CIV. P. 1.20 They are not intended to, nor can they, expand or limit
our jurisdiction. Our rules of procedure impose rights and
obligations on the parties and inform litigants what steps they must
follow in order for us to address a question, i.e. to properly invoke
our jurisdiction, with consequences for the litigants if they fail to
comply with those rules. They do not abrogate or limit our power to
hear a case or an issue. It would be somewhat counterintuitive to say
that our rules limit our power to hear a particular issue when we can
simply amend those rules tomorrow.21
_____________________________________________________________
20 Utah Rule of Criminal Procedure 1 similarly provides that
“[t]hese rules shall govern the procedure in all criminal cases in the
courts of this state except juvenile court cases.” UTAH R. CRIM. P.
1(b). They are not intended to expand or limit our jurisdiction, they
are merely “intended and shall be construed to secure simplicity in
procedure, fairness in administration, and the elimination of
unnecessary expense and delay.” Id.21 While the legislature can amend its statutes governing our
jurisdiction, this is a different issue. As mentioned above,
adjudicatory jurisdiction is typically defined by some external force,
such as the constitution or statute. See supra ¶ 73. Our government is
one of checks and balances. The constitution and legislature define
the jurisdiction of the courts in this state. Similarly, the constitution,
(continued . . .)
26
Cite as: 2017 UT 83DURHAM, J., concurring in the result
¶80 Our Rules of Appellate Procedure explicitly acknowledge
that we do not have the constitutional power to expand or limit our
own jurisdiction. Utah Rule of Appellate Procedure 1(d) provides
that “[t]hese rules shall not be construed to extend or limit the
jurisdiction of the Supreme Court or Court of Appeals as established
by law.” I acknowledge that we have classified the timing
requirement for filing a notice of appeal in Utah Rule of Appellate
Procedure 4(a) as “jurisdictional.” State v. Collins, 2014 UT 61, ¶ 22,
342 P.3d 789 (citation omitted). However, I believe this should be
viewed as a statement that the appellant has failed to invoke our
jurisdiction and is procedurally barred, rather than that we have no
jurisdiction. See id. (stating that the requirement to file within 30 days
is a “procedural prerequisite to invoking appellate court
jurisdiction”).22
¶81 I reject the assertion that a procedural rule that was
promulgated by this court can govern our jurisdiction. I also note
_____________________________________________________________
(continued . . .)
as interpreted by this court, limits the power of the legislature. After
we have interpreted the constitutional limits of the legislature, they
cannot simply pass another statute to expand or limit their power.
Likewise, it would be very odd if we could define what power we
have to hear a case and then change it the next day by amending our
rules. Additionally, the majority’s implication that we have power to
expand or limit our jurisdiction outside of, and contrary to the plain
language of, the constitution cannot be accurate. Supra ¶¶ 35–39
(stating that the constitution only regulates subject matter
jurisdiction, not our authority to restrict other jurisdictional
boundaries). The better view is that our rules govern the rights and
obligations of the parties, not our own power.
22 While I would limit such statements, I recognize that we have
clearly stated that the failure to comply with Utah Rule of Appellate
Procedure 4(a) deprives this court of jurisdiction. Collins, 2014 UT 61,
¶ 22 (stating that failure to timely file means “that an appellate court
simply has no power to hear the case”). However, I believe this is
“symptomatic of the widespread epidemic of fuzzy, shorthand,
imprecise and variegated usage of the term ‘jurisdiction’ by courts,
litigants and commentators . . . .” N-Tron Corp. v. Rockwell
Automation, Inc., CIV. A. No. 09-0733-WS-C, 2010 WL 653760, at *4
(S.D. Ala. Feb. 18, 2010). I would reject such statements as our
constitution and the Rules of Appellate Procedure do not allow us to
expand or limit the jurisdiction of any court.
27
STATE v. RETTIG
DURHAM, J., concurring in the result
that the majority’s discussion of these procedural rules is dicta, as
the only question at issue in this case is how the Plea Withdrawal
Statute governs jurisdiction. I turn now to how, in my view, a statute
governs a court’s jurisdiction.
¶82 I believe that there are at least two categories of statutes
that govern jurisdiction.23 One type of statute governs subject matter
jurisdiction, which is a court’s power to hear a class of cases. See
Johnson v. Johnson, 2010 UT 28, ¶ 10, 234 P.3d 1100 (stating that “most
of our cases that have addressed subject matter jurisdiction have
considered the authority of the court to adjudicate a class of cases,
rather than the specifics of an individual case”). The other type
governs our jurisdiction to render a particular judgment in a
particular case. See Limehouse, 744 S.E.2d at 572. Any time a statute
limits particular case jurisdiction, it does so as a subset of subject
matter jurisdiction. Thus, there may be instances when we have the
jurisdictional power to hear a class of cases, but we lack the
jurisdictional power to render a particular judgment in a case.
¶83 I believe the Plea Withdrawal Statue is such a statute. We
have the power to hear arguments that a guilty plea should be
withdrawn, but the legislature has limited our power to hear such a
claim if the motion is not made before sentencing. Obviously, not all
statutes containing “mandatory ‘prescriptions, however emphatic,
are . . . properly typed jurisdictional.’” Union Pac. R.R. Co., 558 U.S. at
81 (alteration in original) (citation omitted). However, I believe that
the Plea Withdrawal statute is clearly jurisdictional. It not only
speaks of the defendant’s obligation to timely move to withdraw, it
also speaks to this court’s power by identifying the only route
through which we may hear an untimely claim: a civil action under
the PCRA. See UTAH CODE § 77-13-6(2)(c) (“Any challenge to a guilty
plea not made” before sentencing “shall be pursued under” the
PCRA. (emphases added)).
¶84 Having clarified how I understand our jurisdiction is
defined and controlled, and why the Plea Withdrawal Statute is
jurisdictional, I move to the majority’s treatment of preservation.
B. Preservation
¶85 The majority holds that the Plea Withdrawal Statute’s
jurisdictional bar is created through a rule of preservation, thereby
_____________________________________________________________
23 There are obviously other types of statutes that deal with
jurisdiction. For instance, the Nonresident Jurisdiction Act addresses
a court’s jurisdiction over a person. See, e.g., UTAH CODE §§ 78B-3-201
through -209.
28
Cite as: 2017 UT 83DURHAM, J., concurring in the result
insulating it from the protections of the constitutional right to appeal
and the associated rights to paid counsel and effective assistance of
counsel on direct appeal. In doing so, the majority creates a new
category of preservation that is not subject to the common law
exceptions to preservation. I do not agree that preservation creates a
jurisdictional bar. Preservation and jurisdiction are two distinct
doctrines, as recognized by our precedent. I will first address that
precedent, then discuss why I believe it is correct in holding that
preservation and jurisdiction are doctrinally distinct under the
constitution. Finally, I discuss the damage the majority’s holding will
have on our common law of preservation and waiver and the way
we interpret and apply statutes.
1. The Majority Overturns Precedent Without Conducting the
Proper Analysis
¶86 Under a previous version of the Plea Withdrawal Statute,
this court held that preservation created the procedural bar to post-
sentencing motions to withdraw a guilty plea, but we later rejected
that analysis when the statute was amended in 1989. “The legislature
enacted the Plea Withdrawal Statute in 1980, with two
significant substantive amendments in 1989 and 2003. The 1980
version of the statute did not include a time limitation for
withdrawing a guilty plea . . . .” Gailey v. State, 2016 UT 35, ¶ 12, 379
P.3d 1278. It was not until 1989 that the legislature included a time
limit for filing a motion to withdraw a guilty plea. Id. ¶ 13.
¶87 Under the 1980 version of the statute, we recognized that
the law of preservation created a procedural bar to a defendant
withdrawing a guilty plea. State v. Reyes, 2002 UT 13, ¶ 4, 40 P.3d 630(stating that under the 1980 Plea Withdrawal Statute, “the filing of a
motion to withdraw a guilty plea was an issue of preservation.”).
During the time that we relied on the law of preservation to create a
procedural bar, we recognized that a defendant was still entitled to
review on direct appeal if an exception to preservation applied. See
State v. Marvin, 964 P.2d 313, 318 (Utah 1998) (recognizing that under
the 1980 Plea Withdrawal Statute, the court “will, however, entertain
[a motion to withdraw a guilty plea] for the first time on appeal if
plain error or exceptional circumstances exist”).
¶88 We later rejected preservation as the grounds for the
procedural bar when the Plea Withdrawal Statue was amended in
1989 and a time limit for filing a motion to withdraw was added. In
Reyes the defendant argued that, even though the Plea Withdrawal
Statute’s procedural bar is jurisdictional, the bar was a matter of
preservation and thus was subject to the preservation exceptions
such as plain error or exceptional circumstances. 2002 UT 13, ¶ 4. We
29
STATE v. RETTIG
DURHAM, J., concurring in the result
rejected this argument, stating that the procedural bar under the
1980 version of the statute was “an issue of preservation,” but that
once the legislature included a time limit to withdraw a guilty plea
in 1989, the procedural bar was no longer an issue of preservation,
but became “an issue of jurisdiction.” Id. We went on to state that
“[t]his court may choose to review an issue not properly preserved
[under an exception to preservation]. It cannot, however, use [an
exception to preservation] to reach an issue over which it has no
jurisdiction.” Id. (citation omitted).
¶89 This language clearly distinguished between jurisdiction
and preservation. It treated preservation as an issue that is always
subject to the common law exceptions to preservation. However,
when a court lacks jurisdiction, preservation is not an issue.
¶90 Our courts have affirmed the holding in Reyes on many
occasions. State v. Rhinehart, 2007 UT 61, ¶ 14, 167 P.3d 1046 (“We . . .
are without jurisdiction to consider” the defendant’s “claims of
ineffective assistance of counsel raised in the context of challenges to
[her] . . . guilty plea[] . . . .”); State v. Lee, 2011 UT App 356, ¶ 2, 264
P.3d 239 (“[T]he jurisdictional bar prohibits review of a guilty plea
even when . . . ‘styled as a claim of ineffective assistance of counsel.’”
(citation omitted)); State v. Wright, 2002 UT App 180, *1 (“We
lack jurisdiction to consider a . . . claim that counsel was ineffective
. . . because [defendant] did not file a timely motion to withdraw the
guilty plea.”). The Plea Withdrawal Statute cuts off the jurisdiction
of the district court to hear challenges to guilty pleas that are made
for the first time post-sentencing, and we are barred from hearing
such a challenge for the first time on direct appeal. This jurisdictional
bar is not created by the law of preservation, as Reyes clearly
recognized that preservation is always subject to the common law
preservation exceptions. We most recently affirmed this precedent in
Gailey, 2016 UT 35, ¶¶ 12–20.
¶91 The majority overrules State v. Reyes without conducting
any analysis under stare decisis. “Stare decisis ‘is a cornerstone of
Anglo–American jurisprudence’ because it ‘is crucial to the
predictability of the law and the fairness of adjudication.’” Eldridge v.
Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 553 (citation omitted). Under
this doctrine, we presume that our precedent controls the case before
us, and “[t]hose asking us to overturn prior precedent have a
substantial burden of persuasion.” State v. Menzies, 889 P.2d 393, 398
(Utah 1994) superseded on other grounds as recognized by State v. Goins,
2017 UT 61, --- P.3d ---. We only overrule precedent when we
determine that it is not the weightiest of precedent. We have
recognized two “broad factors that distinguish between weighty
30
Cite as: 2017 UT 83DURHAM, J., concurring in the result
precedents and less weighty ones: (1) the persuasiveness of the
authority and reasoning on which the precedent was originally
based, and (2) how firmly the precedent has become established in
the law since it was handed down.” Eldridge, 2015 UT 21, ¶ 22.
¶92 Despite this great burden on overruling precedent, the
majority opinion treats our precedent as expendable. It asserts that
its analysis “is fully consistent with” Reyes, apparently in an attempt
to avoid having to overrule Reyes’s holding. Supra ¶ 49. However, as
noted above, Reyes clearly rejects the majority opinion’s approach by
treating preservation and jurisdiction as two separate and distinct
doctrines with different implications. If the bar is due to
preservation, it must be subject to the exceptions to preservation.
Reyes, 2002 UT 13, ¶ 4. If the bar is jurisdictional, then it is not an
“issue of preservation.” Id. In Reyes, we rejected preservation as the
grounds for the procedural bar and drew a line between jurisdiction
and preservation.
¶93 The majority’s strained reading of Reyes is untenable. If the
majority wishes to make the Plea Withdrawal Statute’s procedural
bar both and issue of preservation and an issue of jurisdiction, it
must deal with the fact that Reyes treated them as separate and
distinct.
2. Jurisdiction is Governed by Statute, not Preservation
¶94 The majority argues that my distinction between
preservation and jurisdiction is “a false dichotomy,” because some
rules and statutes “prescribe a rule of preservation [that] establish a
waiver sanction that stands as a jurisdictional bar.” Supra ¶¶ 26–27.
Obviously, when a party fails to raise an issue, it is waived and is not
preserved. But the majority puts the cart before the horse. Waiver
and preservation do not create the jurisdictional bar. The statute
creates the jurisdictional bar.
¶95 As described above, the jurisdiction of our courts “is
established by the Utah Constitution and by statute.” S. Utah
Wilderness All. v. Bd. of State Lands & Forestry of Utah, 830 P.2d 233,
234 (Utah 1992). District courts have “original jurisdiction in all
matters except as limited . . . by statute.” UTAH CONST. art. VIII, § 5.
This court has “appellate jurisdiction over all . . . matters to be
exercised as provided by statute.” Id. art. VIII, § 3. The jurisdiction of
Utah courts is not established by whether a party preserves or
waives an issue, it is established and managed by the constitution
and statute.
¶96 The Plea Withdrawal Statute cuts off the jurisdiction of our
district and appellate courts, preventing them from reaching the
31
STATE v. RETTIG
DURHAM, J., concurring in the result
substance of a challenge to a guilty plea if the challenge is not made
prior to sentencing. Supra ¶ 83. Preservation is not what creates the
jurisdictional bar. The statute creates the jurisdictional bar as
recognized by the constitution. The Utah Constitution does not say
that the district courts’ and our jurisdiction is governed by
preservation—it says it is governed by statute.24
¶97 If we lack jurisdiction to hear an appeal, then preservation
never becomes an issue. Lack of jurisdiction automatically divests
_____________________________________________________________
24 The majority is concerned with this statement. It argues that if
the legislature has “the power to set filing deadlines . . . then [it] will
have the power to promulgate even basic rules of procedure.” Supra
¶ 58 n.12. That would be a concerning proposition, but it
misrepresents the nature of my analysis.
Our constitution delineates the responsibilities of this court and
the legislature. This court has the power to manage the procedure
and process in all state courts exercising original and appellate
jurisdiction. UTAH CONST. art. VIII, § 4 (stating that this court has the
power to “adopt rules of procedure and evidence to be used in the
courts of this state and shall by rule manage the appellate process”).
On the other hand, the legislature has the power to “amend the
Rules of Procedure and Evidence adopted by the Supreme Court,”
id., limit the jurisdiction of our district courts by statute, id. art. VIII,
§ 5, create and define the jurisdiction of our statutory courts by
statute, id., and manage the exercise of our “appellate jurisdiction”
“by statute,” id. art. VIII, § 3.
This court’s power to manage the process and procedure of our
courts is different than the legislature’s power to manage or define
the jurisdiction of our courts. The majority misses this key
distinction. When a statute defines the jurisdiction of the district or
statutory courts, or when it manages the exercise of our appellate
jurisdiction, the legislature is not promulgating “basic rules of
procedure.” Supra ¶ 58 n.12. It is managing the jurisdiction of our
courts, which it has the clear constitutional authority to do. If, on the
other hand, the legislature attempts to alter a rule of procedure that
truly is “routine” and does not address the jurisdiction of the courts
of this state, then it certainly would need to comply with the
requirements for amending our rules in article VIII, section 4.
The majority asserts that there is “no need to consider this
question” in this case. Supra ¶ 58 n.12. I disagree. I merely apply our
precedent and the language of the constitution to the case at bar in
explaining why the Plea Withdrawal Statute is a matter of
jurisdiction, not a matter of preservation.
32
Cite as: 2017 UT 83DURHAM, J., concurring in the result
the court of the ability to reach a holding on the merits, including
holding whether an issue has been properly preserved. This is
because we always address jurisdictional issues first. Rivers v. Exec.
Dir. of the Utah Dep’t of Envtl. Quality, 2017 UT 64, ¶ 26, --- P.3d ---
(stating that, “[b]efore we consider the arguments before us on
appeal, we must evaluate whether” we have jurisdiction); State v.
Abeyta, 852 P.2d 993, 995 (Utah 1993) (“We begin with the threshold
issue of the trial court’s jurisdiction.”). Preservation is only an issue
in cases in which we have jurisdiction.
¶98 While a defendant’s failure to comply with the statute
certainly means that he has not preserved his motion to withdraw in
the district court, the correlation between preservation and
jurisdiction does not mean that the lack of preservation causes the
jurisdictional bar. The jurisdictional bar is created by a defendant’s
failure to comply with the statute, not the failure to preserve an issue
in the district court. See, e.g., Patterson v. Am. Fork City, 2003 UT 7,
¶ 10, 67 P.3d 466 (“A plaintiff’s failure to comply with the [Utah
Governmental Immunity Act’s] notice of claim provisions,” and in
particular, the timing in which a notice of claim is supposed to be
submitted to a political subdivision, “deprives the trial court of
subject matter jurisdiction.”); Winward v. State, 2012 UT 85, ¶ 13, 293
P.3d 259 (noting that a party “acknowledge[d] that his petition is
procedurally barred by the PCRA’s one-year statute of limitations”).
If we treat statutes with timing requirements the same as any other
statute, this becomes clear. We do not incorporate unnecessary
common law into every statute that includes a procedural or
substantive requirement, we merely say that the failure of a party to
comply with a statute results in a procedural or substantive bar. Infra
¶ 104.
¶99 For instance, there are many different types of statutes that
govern the jurisdiction of our courts. Not all of them deal with
timing. The Utah Constitution provides that the jurisdiction of the
district court can be limited by statute. The legislature has limited, in
certain circumstances, our district courts’ jurisdiction to hear cases
that deal with minors. See UTAH CODE § 78A-6-103 (providing that
“the juvenile court has exclusive original jurisdiction” over certain
types of cases involving minors (emphasis added)); State v. Hodges,
2002 UT 117, ¶¶ 8–10, 63 P.3d 66 (discussing the different
jurisdictions that can be exercised by the juvenile court and the
district court under a previous version of Utah Code section 78A-6-
103). These statutes limit district courts’ jurisdiction to hear the
33
STATE v. RETTIG
DURHAM, J., concurring in the result
subject matter of these issues in any case.25 Conversely, under the
Plea Withdrawal Statute, the district court typically has jurisdiction
to hear the subject matter of a motion to withdraw a guilty plea. But
if the defendant fails to move to withdraw prior to sentencing, the
defendant fails to properly invoke that jurisdiction and the district or
appellate court cannot hear the claim. Supra ¶ 80.
¶100 These two types of statutes create jurisdictional bars, but
do so in different ways. One says a court can never hear a particular
class of case (or subject matter jurisdiction), and another says a court
can hear a particular case or issue only if a party meets certain
prerequisites (or particular case jurisdiction, which is a subset of
subject matter jurisdiction). Supra ¶ 82. When a statute deprives a
court of subject matter jurisdiction, we would never say that the
rules of preservation create the jurisdictional bar. The statute creates
the jurisdictional bar. Arguing that the rules of preservation create
the jurisdictional bar in the Plea Withdrawal Statute (which governs
particular case jurisdiction) imposes a disconnected dichotomy
between these two types of statutes that is not supported by our
constitution. Regardless of how a statute governs our jurisdiction, it
is the statute itself that does so, not the rules of preservation.
3. Statutes Prescribe Actions and Announce Penalties, Not
Preservation
¶101 The majority’s approach inserts uncertainty and confusion
into our rules of preservation. It incorporates preservation
terminology into every statute and rule that includes a timing
requirement. Supra ¶¶ 28–29. It then attempts to distinguish between
_____________________________________________________________
25 The legislature also limits the substantive issues that our
juvenile and justice courts can hear. See UTAH CONST. art. VIII, § 5
(stating that “[t]he jurisdiction of all other courts, both original and
appellate, shall be provided by statute”); see also UTAH CODE § 78A-6-
103 (defining the substantive issues that a juvenile court has
jurisdiction to hear); id. § 78A-7-106 (granting jurisdiction to the
justice courts to hear only “class B and C misdemeanors” and other
limited, substantive matters). Preservation has nothing to do with
the legislature’s definition of the jurisdiction of these courts. Their
jurisdiction is defined by the statutes.
Additionally, while the constitution grants this court appellate
jurisdiction over all cases that we do not have original jurisdiction
over, the legislature has exercised its constitutional power to
regulate the manner in which we exercise our appellate jurisdiction.
UTAH CONST. art. VIII, § 3; see supra ¶ 71 n.3.
34
Cite as: 2017 UT 83DURHAM, J., concurring in the result
our common law of preservation and preservation mandated by a
statute or rule by holding that the exceptions to preservation apply
only to statutory preservation requirements in limited
circumstances. Supra ¶ 32. I believe there is a more straightforward
approach. Rather than trying to draw a statute’s or a rule’s
requirements into our common law of preservation, these should be
seen as separate and distinct doctrines to avoid confusing the
common law of preservation.
¶102 Our common law of preservation imposes procedural
requirements on litigants to raise issues at the necessary time to
avoid waiving them and to “preserve” those issues for review on
appeal. State v. Johnson, 2017 UT 70, ¶¶ 14–15, --- P.3d ---. The
common law of preservation is self-imposed and is one of prudence
that is intended to serve the interests of justice and procedural
regularity. Id. ¶ 12. To further serve those interests of justice, the
common law of preservation is subject to exceptions. While some
preservation exceptions are well defined, this area of law is still in
development. Id. ¶ 39 (stating that our exceptions to preservation
may “continue to evolve as we confront future challenges”). That is
how the common law operates. As each case comes before us, we
have the opportunity to refine the common law as justice so requires.
¶103 Unlike the common law, we are bound by the language
and intent of statutes and rules (even if the rules are self-imposed).
Our sole task is to interpret and apply the statute or rule to the facts
before us. Most statutes and rules govern the actions of individuals
or entities. Some statutes deal with substantive obligations and
rights, such as the prohibition on committing a crime or the
requirement to pay taxes. Other statutes govern the process an
individual or entity must follow to protect or enforce those rights
and obligations, such as a requirement to file something within a
particular time or the allocation of the burden of proof between
parties in a lawsuit.
¶104 When an individual brings suit to enforce an alleged right
or obligation, the individual or entity can be substantively barred
from that suit if no actual right or obligation exists. See UTAH R. CIV.
P. 12(b)(6) (stating that a party must actually state a legally
enforceable claim that entitles them to some form of remedy or the
case will be dismissed); see also Harvey v. Ute Indian Tribe of the Uintah
& Ouray Reservation, 2017 UT 75, ¶ 73, --- P.3d --- (holding that there
is no currently enforceable civil cause of action for extortion). Also,
an individual or entity can be procedurally barred if they fail to take
the steps necessary to enforce those rights or obligations. See, e.g.,
UTAH R. CIV. P. 12(b)(5) (allowing a court to dismiss a case if there
35
STATE v. RETTIG
DURHAM, J., concurring in the result
was “insufficien[t] . . . service of process”); Adamson v. City of Provo,
819 F. Supp. 934, 939 (D. Utah 1993) (discussing “procedural and
substantive bars” raised by a party). The statute or rule provides the
necessary procedural steps to enforce substantive rights; whether it
is a timing requirement, a requirement to bring the suit in the correct
court or administrative agency, or a requirement to serve a
complaint on the opposing party. When a party fails to comply with
the statute or rule, they are procedurally barred. This bar exists
because of a failure to comply with the statute or rule.26
¶105 Inserting our common law of preservation and waiver into
the Utah Code and into our procedural rules is unnecessary and only
brings confusion into this area of the law. I would keep our common
law of preservation separate from our analysis under a statute or
rule, with one obvious exception. When a statute or rule refers to
and incorporates our common law, it must be read in light of the
common law. Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647(“When the legislature ‘borrows terms of art in which are
accumulated the legal tradition and meaning of centuries of practice,
it presumably knows and adopts the cluster of ideas that were
attached to each borrowed word in the body of learning from which
it was taken.’” (citation omitted)). But when a statute simply says
that a party must file a motion to withdraw a guilty plea before
sentencing, I would not invoke our common law of preservation. If a
party fails to comply with the statutory timing requirement, I would
simply hold that they are barred because the statute says they are
barred.
¶106 Only a small minority of statutes and rules deal with
timing requirements. The majority would have us insert preservation
analysis into these statutes and rules, thereby treating them
differently from every other statute or rule. I would keep our
statutory and rule analysis separate from our common law of
preservation in order to prevent any confusion as to whether a
statute is dealing with preservation, and whether the exceptions to
preservation should apply to that statute. However, when a statute
or rule clearly intends for our common law preservation exceptions
to apply to a timing requirement, then it incorporates our common
law and must be read in that context. See, e.g., UTAH R. CRIM. P. 19(e)
(“Unless a party objects to an instruction or the failure to give an
instruction, the instruction may not be assigned as error except to
_____________________________________________________________
26 Some of these statutory bars affect the jurisdiction of a court,
and some statutory or rule based bars simply bar individuals from
enforcing their rights because the statute or rule says they are barred.
36
Cite as: 2017 UT 83DURHAM, J., concurring in the result
avoid a manifest injustice.”); Johnson, 2017 UT 70, ¶ 57 n.16 (holding
that the “manifest injustice” exception in Utah Rule of Criminal
Procedure 19 “incorporates the exceptions to the preservation
requirement”). When it does not, we should simply apply the statute
or rule as written without muddying the waters by using
preservation terminology.
C. The Plea Withdrawal Statute and the Right to Appeal
¶107 Having laid out my framework for understanding our
jurisdiction and the proper role of preservation, I now turn to
whether the Plea Withdrawal Statute violates the constitutional right
to appeal. The Utah Code of Criminal Procedure grants defendants
the right to plead guilty with the associated right to engage in plea
bargaining. See UTAH CODE § 77-13-1. Once a guilty plea has been
entered, the guilty plea is binding on the guilt phase of litigation. If
the defendant wishes to challenge his guilty plea, he must do so “by
motion before sentence is announced.” Id. § 77-13-6(2)(b).
¶108 After the defendant enters the guilty plea, the defendant
must be sentenced “not less than two nor more than 45 days after the
. . . plea, unless the court, with the concurrence of the defendant,
otherwise orders.” UTAH R. CRIM. P. 22(a). Thus, the defendant has
time to consider his guilty plea before he is barred from moving to
withdraw that plea. If the defendant fails to move to withdraw his
guilty plea before sentencing, “[a]ny challenge” to his plea must be
made under the PCRA. UTAH CODE § 77-13-6(2)(c).
¶109 The majority looks at how long the defendant has to file a
motion to withdraw a guilty plea in determining whether his right to
appeal has been unconstitutionally denied. It determines that so long
as a statute does not create “an ‘absurdly short’ time” for raising an
issue or the preservation requirement does not otherwise
“eliminate[] any meaningful avenue for appellate review,” it is
constitutional and the defendant must comply with the requirement.
Supra ¶ 23. Certainly, appellants must comply with procedural
requirements to invoke the jurisdiction of the appellate court, such as
filing a timely notice of appeal. Just as certainly, a timing
requirement could violate the right to appeal if it is absurdly short.
¶110 However, this is not the only way a criminal defendant’s
right to appeal could be infringed. The right to appeal also
guarantees defendants the right to have a claim heard, assuming
they meet the procedural requirements to invoke our jurisdiction.
The majority rejects this assertion, holding that the Plea Withdrawal
Statute only narrows the issues that an appellate court can hear.
However, just because it narrows the issues an appellate court can
37
STATE v. RETTIG
DURHAM, J., concurring in the result
hear does not make it “uncontroversial.” Supra ¶ 18. For example,
imagine that the legislature passed a statute saying the following:
Any private party may sue a university for its
negligence. If, however, the district court holds that the
university is not negligent, the private party may not
appeal such a holding. On the other hand, if the
university is held to be negligent by the district court,
the university may appeal the district court’s ruling.
This would certainly violate the private party’s right to appeal, along
with a few other constitutional rights, even though it is only
narrowing the issues that an appellate court can review.
¶111 The majority’s holding insulates such a statute from the
constitutional right to appeal in this case. Mr. Rettig has argued that
his plea counsel was ineffective in advising him to plead guilty. A
claim for ineffective assistance is sometimes considered an exception
to preservation. Unfortunately for Mr. Rettig, the majority holds that
the Plea Withdrawal Statute is insulated from preservation
exceptions because it creates both a bar based on preservation and
on jurisdiction. Apparently, the majority believes that this claim
must be preserved in the district court by bringing such a claim
before sentence is announced, otherwise it is unpreserved and we
cannot hear it under any circumstances. This misunderstands a claim
for ineffective assistance of counsel.
¶112 While ineffective assistance of counsel is “sometimes
characterized as an exception to preservation,” it is actually “a stand-
alone constitutional claim attacking the performance of a criminal
defendant’s counsel.” Johnson, 2017 UT 70, ¶ 22. Such a claim does
not accrue until after the defendant’s counsel provides ineffective
assistance. Id. ¶ 23. Typically, when a defendant receives ineffective
assistance of counsel, the defendant may either raise the new
constitutional claim in a post-trial motion or on direct appeal
because that is the first opportunity the defendant has to raise the
claim. Id.; State v. Templin, 805 P.2d 182, 185 (Utah 1990) (stating that
“the same principles [that] apply in addressing ineffective assistance
claims in motions for new trials apply on direct appeal and in habeas
corpus actions” (citation omitted)). Even though this new
constitutional claim can typically be brought after the time has
passed to preserve an issue (because it could not be brought earlier),
the majority holds that it is barred by the statute and the statute does
not unconstitutionally limit what issues can be brought on direct
appeal. I disagree. We must recognize the nature of a claim for
ineffective assistance of counsel and the fact that the plea withdrawal
statute could infringe the constitutional right to appeal.
38
Cite as: 2017 UT 83DURHAM, J., concurring in the result
¶113 Say, for instance, that a defendant is charged with arson.
Arson requires that a “person by means of fire or explosives
unlawfully and intentionally damages” property. UTAH CODE § 76-6-
102(1). Also assume that the defendant pleads guilty to arson upon
the advice of his attorney. However, the facts entered in the guilty
plea admit only that he intentionally started a garbage fire at his
place of employment under the direction of his employer, but that
the fire got out of control and burned the building down. His
statement in support of the guilty plea asserts that he did not intend
to damage the building.27
¶114 Under these facts, the defendant is not actually guilty of
arson as the defendant did not intentionally damage his employer’s
building. However, his attorney advised him that he was guilty of
arson and should enter a plea of guilty. Immediately after being
sentenced, the defendant obtains new counsel who advises him that
he is not actually guilty of arson. If the Plea Withdrawal Statute did
not cut off the district court’s jurisdiction to hear a post-sentencing
motion, and our appellate jurisdiction to hear a challenge to the
guilty plea, the defendant would be able to bring this new
constitutional claim on direct appeal. However, the Plea Withdrawal
Statute cuts off our jurisdiction, so we cannot review it on direct
appeal. This is despite the fact that he could not have preserved this
claim in the district court and we typically could review such a claim
on direct appeal regardless of preservation.
¶115 The Plea Withdrawal Statute arguably gives the defendant
the right to bring such a claim under the PCRA. However, a criminal
defendant’s constitutional right to direct appeal includes the
associated constitutional rights to paid counsel and effective
assistance of counsel on direct appeal. If the defendant was allowed
to bring his ineffective assistance of counsel claim on direct appeal,
he could get his appellate counsel’s fees paid for by the State. Also, if
his appellate counsel made a case-altering mistake, such as by failing
to file a notice of appeal within the required time, he would have a
new claim that his appellate counsel was ineffective.
¶116 The majority’s approach eviscerates these rights. Under
this approach, if the criminal defendant wants to bring his ineffective
assistance of counsel claim—one that he could not have preserved in
the district court—he must bring such a claim in a PCRA proceeding
_____________________________________________________________
27 These facts are taken from State v. Breckenridge, 688 P.2d 440(Utah 1983), with some alterations to show their applicability to the
Plea Withdrawal Statute.
39
STATE v. RETTIG
DURHAM, J., concurring in the result
where he is not guaranteed the right to State paid counsel or the
right to effective assistance of counsel. This is the only route for the
defendant to bring this claim.
¶117 The majority insulates the Plea Withdrawal Statute from
the constitutional right to appeal. However, “[i]t is a proposition too
plain to be contested, that the constitution controls any legislative act
repugnant to it . . . .” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177
(1803) (emphasis added). In this case, Mr. Rettig argued that he was
unconstitutionally denied the right to appeal because he could be
denied the constitutional right to effective assistance of paid counsel
in a PCRA proceeding. Mr. Rettig’s right to appeal may very well be
abrogated. Despite this possibility, I would follow Gailey and hold
that this issue is not ripe for determination because he has not yet
been denied paid counsel nor has he suffered from ineffective
assistance of counsel in a PCRA proceeding. 2016 UT 35, ¶ 30.
II. THE CONSTITUTIONALITY OF SUBSECTION (2)(C)
UNDER ARTICLE VIII, SECTION 4
¶118 As mentioned above, Mr. Rettig brought two
constitutional challenges to the Plea Withdrawal Statute’s
jurisdictional bar. His second argument is that subsection (2)(c) of
the Plea Withdrawal Statute is purely procedural and is therefore
unconstitutional under article VIII, section 4 of the Utah
Constitution.
¶119 Under article VIII, section 4, this court has the authority to
“adopt rules of procedure and evidence to be used in the courts of
the state.” UTAH CONST. art. VIII, § 4. On the other hand, the
legislature has the authority to amend those rules “upon a vote of
two-thirds of all members of both houses of the Legislature.” Id.; see
also Injured Workers Ass’n v. State, 2016 UT 21, ¶¶ 23–26, 374 P.3d 14(In order to “maintain[] an independent judiciary,” this court has the
power to promulgate rules of procedure, but “the constitution
permits legislative oversight of” those rules. (citation omitted)). The
core question under this article is whether subsection (2)(c) “is a rule
of procedure or creates a substantive right.” State v. Drej, 2010 UT 35,
¶ 26, 233 P.3d 476.
¶120 In State v. Drej, we classified three categories of statutes
under article VIII, section 4: (1) “purely procedural,” (2) substantive,
and (3) procedural provisions that are “so intertwined with a
substantive right that the court must view it as substantive.” Id.¶¶ 25–31. When the legislature codifies statutes that fall under the
latter two, they do not violate article VIII, section 4. But the
legislature does not have the constitutional power to “adopt rules of
procedure.” Brown v. Cox, 2017 UT 3, ¶ 17, 387 P.3d 1040. Its power is
40
Cite as: 2017 UT 83DURHAM, J., concurring in the result
limited to “amend[ing] the . . . Supreme Court [rules] upon a vote of
two-thirds of all members of both houses of the Legislature.” UTAH
CONST. art. VIII, § 4. As we clarified in Brown v. Cox, when the
legislature intends to exercise its power of oversight under article
VIII, section 4, the legislative action must “contain a reference to the
rule to be amended and a clear expression of the Legislature’s intent
to modify our rules.” 2017 UT 3, ¶ 20. Thus, when a statute is purely
procedural and does not comply with the requirements to amend
one of this court’s rules, the statute violates Utah’s constitutional
separation of powers. See UTAH CONST. art. V, § 1 (“[N]o person
charged with the exercise of powers properly belonging to one of
these departments, shall exercise any functions appertaining to
either of the others, except in the cases herein expressly directed or
permitted.”).
¶121 The tricky issue is determining whether a statute is purely
procedural. See Ohlhoff v. Ohlhoff, 586 A.2d 839, 844 (N.J. Super. Ct.
App. Div. 1991) (“[T]he line between procedural and substantive law
is blurry.”); State v. Coats, 797 P.2d 693, 696 (Ariz. Ct. App. 1990)
(noting that “a rule may be procedural in one context and
substantive in another”); Kent R. Hart, Note, Court Rulemaking in
Utah Following the 1985 Revision of the Utah Constitution, 1992 UTAH L.
REV. 153, 154 (1992) (stating that “both legislative enactments and
court rules contain elements of substance and procedure”). Many
courts in states with a constitutional provision that mirrors ours are
“extremely hesitant to characterize a subject as purely procedural
and consequently within the exclusive authority of the Supreme
Court.” Ohlhoff, 586 A.2d at 844 (citing Busik v. Levine, 307 A.2d 571,
583 (N.J. 1973)).28 These courts avoid over-stepping their
_____________________________________________________________
28 See also Borer v. Lewis, 91 P.3d 375, 380 (Colo. 2004) (despite sole
authority of court to promulgate rules of procedure, “we strive to
avoid any unnecessary ‘[c]onfrontation[s] of constitutional
authority,’ and instead seek to reconcile the language . . . of the
legislative enactment with our own . . . rules of procedure” (first and
second alterations in original) (citation omitted)); Daou v. Harris, 678
P.2d 934, 939 (Ariz. 1984) (holding that “all legislative enactments
relating to procedure shall be deemed rules of court” when they do
not conflict with the rules promulgated by the supreme court); City
of Fargo v. Ruether, 490 N.W.2d 481, 483 (N.D. 1992) (holding that,
despite the court’s “final authority over procedural rules,” the court
“will recognize ‘statutory arrangements which seem reasonable and
workable’ and which supplement the rules we have promulgated”
(citations omitted)); State v. Radford, No. 2005-CA-58, 2006 WL
(continued . . .)
41
STATE v. RETTIG
DURHAM, J., concurring in the result
constitutional power by crossing into the legislature’s lane. We are
treading on thin constitutional ice when we declare a statute purely
procedural and strike it down as unconstitutional, because most
statutes contain substantive and procedural elements.
¶122 These same concerns are what led us in Drej to defer to the
legislature when a statute’s substance is intertwined with its
procedural components. When those procedural components do not
directly conflict with our rules and they are inextricably connected to
the substantive provisions in the statute, we will not strike down the
procedural components of the statute under article VIII, section 4.
See Drej, 2010 UT 35, ¶ 31.
¶123 Substantive statutes “create[], define[] and regulate[] the
rights and duties of the parties . . . which may give rise to a cause for
action,” Id. ¶ 26 (fourth alteration in original) (citation omitted), and
they cut off substantive rights as well, Brown & Root Indus. Serv. v.
Indus. Comm’n, 947 P.2d 671, 676 (Utah 1997) (holding that statutory
amendment that cut off a party’s rights “defines and regulates
substantive rights”). Conversely, a statute is procedural when it
“prescribes the practice and procedure or the legal machinery by
which the substantive law is determined or made effective” and
provides the “procedure for enforcing substantive rights.” Drej, 2010
UT 35, ¶¶ 26–27 (citations omitted). “Procedural laws are ‘concerned
solely with the judicial processes.’” Id. ¶ 27 (citation omitted).
¶124 The majority holds that “[s]ubsection (2)(c) is a classic
matter of substance in that it establishes a new remedy or cause of
action.” Supra ¶ 57. I do not see how subsection (2)(c) does anything
but point defendants to a pre-existing remedy or cause of action and
cut off our jurisdiction to hear an untimely challenge. Subsection
(2)(c) provides that “[a]ny challenge to a guilty plea not made”
before sentencing “shall be pursued under [the PCRA].” UTAH CODE
§ 77-13-6(2)(c). Nothing in subsection (2)(c) creates or expands a
defendant’s rights under the PCRA. The PCRA itself creates the
defendant’s cause of action to challenge a guilty plea in a separate
proceeding. If a defendant who fails to move to withdraw a guilty
plea before sentencing seeks to challenge that plea under the PCRA,
he must comply with all of the substantive and procedural
_____________________________________________________________
(continued . . .)
827380, at *4 (Ohio Ct. App. Mar. 31, 2006) (holding that when rules
of evidence are “silent concerning” a particular issue, the legislature
does not violate separation of powers in enacting evidentiary rules in
a statute (citation omitted))
42
Cite as: 2017 UT 83DURHAM, J., concurring in the result
requirements under that statute. Subsection (2)(c) does not grant
defendants any rights that do not already exists. It merely points
defendants to a statute that does create rights, and then cuts off their
ability to challenge their guilty plea in the criminal case by creating a
jurisdictional bar.
¶125 Subsection (2)(c) contains both procedural and substantive
components. While it is procedural in that it manages the judicial
process by directing defendants to the PCRA, it is also substantive in
cutting off the ability of a defendant to challenge a guilty plea and in
cutting off the jurisdiction of the criminal court. See supra ¶ 83; State
v. Gailey, 2016 UT 35, ¶ 19, 379 P.3d 1278 (Plea Withdrawal Statute
cuts off jurisdiction of criminal court and appellate review).
Regardless of whether subsection (2)(c) is more procedural or more
substantive, I would hold that it is inextricably intertwined with the
substantive right to withdraw a guilty plea.
¶126 Title 77, chapter 13 of the Utah Code grants criminal
defendants several substantive rights. It grants them the right to
enter a plea of guilty. UTAH CODE § 77-13-1. It also grants them the
right to withdraw the guilty plea. Id. § 77-13-6(1). However, the
legislature appears to have been concerned with granting an
unqualified right to withdraw a plea of guilty. So, it included certain
restrictions on that right. First, a defendant can only withdraw a
guilty plea “upon leave of the court and a showing that it was not
knowingly and voluntarily made.” Id. § 77-13-6(2)(a). Second, a
defendant must “request to withdraw a plea of guilty . . . before
sentence is announced.” Id. § 77-13-6(2)(b). Finally, if the motion to
withdraw the guilty plea is not made before sentencing, “[a]ny
challenge to [the] guilty plea” must be made in a separate PCRA
proceeding. Id. § 77-13-6(2)(c).
¶127 These restrictions are presumably intended to prevent a
defendant from gaming the system, or experiencing buyer’s remorse,
by previewing his sentence and then deciding to withdraw his plea if
he does not like the sentence imposed. Entering a guilty plea is a
serious matter that should be thoughtfully considered by a
defendant. Once the plea is entered, the defendant cannot simply
decide to withdraw it the next day. The defendant must have
unknowingly or involuntarily entered the plea before he can
withdraw it. These provisions imply that the legislature had one
major concern when it granted defendants the rights to enter and
withdraw a guilty plea: finality. While the legislature built in a
release by allowing defendants to withdraw their guilty plea when
they were legitimately uninformed or coerced, the right to withdraw
is intended to be a narrow right.
43
STATE v. RETTIG
DURHAM, J., concurring in the result
¶128 Pulling subsection (2)(c) out of the web of rights and
restrictions would cause the rest of the Plea Withdrawal Statute’s
structure to crumble. See Drej, 2010 UT 35, ¶ 31 (holding that a
statutory assignment of the burden of proof was inextricably
intertwined with a substantive right because “the procedures
attached to the substantive right cannot be stripped away without
leaving the right or duty created meaningless”). It would strip the
right to withdraw a guilty plea of some of its restrictions and would
greatly damage the statutory scheme. Removing this restriction on
the right to withdraw a guilty plea could even pressure the
legislature to remove that statutory right if they feel they are unable
to place limitations on it. Because subsection (2)(c) is so intertwined
with the substantive rights to enter and withdraw a guilty plea, I
would deem it as substantive and hold that it is constitutional under
article VIII, section 4.
¶129 The majority is concerned that my analysis weighs in favor
of the constitutionality of subsection (2)(b). I do not address the
constitutionality of that subsection, nor do I apologize for my
analysis concerning subsection (2)(c). Our role as judges is to apply
the facts and arguments presented to the law. That is all I have done
here.
¶130 I am equally concerned with the majority’s statement that
“[s]ubsection (2)(b) . . . is quintessentially procedural,” essentially
ruling on subsection (2)(b)’s constitutionality even though it says it is
not reaching that issue. Supra ¶¶ 58, 60. It then goes on to say that
“[y]ou can’t get much more procedural than a filing deadline.” Supra
¶ 58. This weighs heavily in favor of all filing deadlines being
unconstitutional under article VIII, section 4. Certainly, a statute of
limitations is a filing deadline in a district court. We do not typically
take issue with a run-of-the-mill statute of limitations.
¶131 The majority tries to shore up its analysis by stating that a
statute of limitations is a “kind of filing deadline [that] has long been
understood to fall within the domain of the legislature.” Supra ¶ 58
n.13. This is a distinction without a difference. Prior to 1985, when
our constitution was amended to give this court its rule making
authority, the legislature had ultimate authority over procedural
rulemaking, including timing requirements. Hart, supra ¶ 121, at
155–56 (“[A]lthough the supreme court possessed some power over
procedural rulemaking . . . during this period, the legislature
retained ultimate control over establishing procedural rules for Utah
courts.”). Historically, every kind of filing deadline was “understood
to fall within the domain of the legislature.” Supra ¶ 58 n.13.
44
Cite as: 2017 UT 83DURHAM, J., concurring in the result
III. CONCLUSION
¶132 The majority holds that Mr. Rettig has failed in his
constitutional challenges to the Plea Withdrawal Statute’s
jurisdictional bar. I concur in the outcome in this opinion, but I have
grave concerns about the route the majority takes to get there. It has
altered our jurisdictional analysis, the way we view our common law
of preservation, and the way we interpret every statute and
procedural rule with a time restriction. It also classifies subsection
(2)(c) of the Plea Withdrawal Statute as creating a substantive cause
of action when it merely points defendants to the PCRA (that
actually creates the cause of action). The majority’s opinion could
have many unforeseen consequences in future cases.
45