M ORE L AW
LEXAPEDIA
Salus Populi Suprema Lex Esto

Information
About MoreLaw
Contact MoreLaw

Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 11-26-2017

Case Style:

STATE OF UTAH v. BENJAMIN DAVID RETTIG

Man gets 25 years to life for his role in BYU prof's slaying

Case Number: 2017 UT 83

Judge: Thomas Rex Lee

Court: SUPREME COURT OF THE STATE OF UTAH

Plaintiff's Attorney: Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Att’y Gen.

Defendant's Attorney: Steven Christensen
Clinton R. Brimhall

Description: 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.
Cite as: 2017 UT 83 Opinion of the Court
3

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
STATE v. RETTIG Opinion of the Court
4

“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. § 77-136(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 § 77-136(2)(c). ¶13 We reject Rettig’s constitutional challenges. We conclude that the Plea Withdrawal Statute does not infringe the constitutional
Cite as: 2017 UT 83 Opinion of the Court
5

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 84, __ 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
STATE v. RETTIG Opinion of the Court
6

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
Cite as: 2017 UT 83 Opinion of the Court
7

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.
STATE v. RETTIG Opinion of the Court
8

¶¶ 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
Cite as: 2017 UT 83 Opinion of the Court
9

“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.
STATE v. RETTIG Opinion of the Court
10

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.
Cite as: 2017 UT 83 Opinion of the Court
11

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 subjectmatter 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 subjectmatter 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 . . .)
STATE v. RETTIG Opinion of the Court
12

¶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 subjectmatter 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.
Cite as: 2017 UT 83 Opinion of the Court
13

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
STATE v. RETTIG Opinion of the Court
14

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)).
Cite as: 2017 UT 83 Opinion of the Court
15

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.
STATE v. RETTIG Opinion of the Court
16

(“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
Cite as: 2017 UT 83 Opinion of the Court
17

“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.
STATE v. RETTIG Opinion of the Court
18

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.
Cite as: 2017 UT 83 Opinion of the Court
19

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

Outcome: 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).

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
Home | Add Attorney | Add Expert | Add Court Reporter | Sign In
Find-A-Lawyer By City | Find-A-Lawyer By State and City | Articles | Recent Lawyer Listings
Verdict Corrections | Link Errors | Advertising | Editor | Privacy Statement
© 1996-2018 MoreLaw, Inc. - All rights reserved.