Gailey v. State

• Decision Date: 01 August 2016
• Docket Number: No. 20130637,20130637
• Citation: 2016 UT 35,379 P.3d 1278
• Parties: Shanelle Gailey, Appellant, v. State of Utah, Appellee.
• Court: Utah Supreme Court

379 P.3d 1278

2016 UT 35

Shanelle Gailey, Appellant,

v.State of Utah, Appellee.

No. 20130637

Supreme Court of Utah.

Filed August 1, 2016

Catherine E. Lilly, Nathalie S. Skibine, Salt Lake City, for appellant

Sean D. Reyes, Att'y Gen., Christopher D. Ballard, Asst. Att'y Gen., for appellee

Justice Durham authored the opinion of the Court, in which Justice Himonas and Justice Pearce joined.

Associate Chief Justice Lee filed an opinion concurring in the judgment, in which Chief Justice Durrant joined.

On Certification from the Court of Appeals

Justice Durham, opinion of the Court:

INTRODUCTION

¶1 Over the course of a few hours on June 17, 2013, defendant Shanelle Gailey entered her initial appearance in the district court for burglary-related charges, was appointed counsel, waived her right to a preliminary hearing and trial, pled guilty, waived the waiting period for sentencing, and received judgment and sentence.

¶2 Ms. Gailey now wishes to challenge her plea as unknowing and involuntary, but Utah Code section 77–13–6 (Plea Withdrawal Statute) cuts off a defendant's right to a direct appeal once sentencing is announced, requiring the defendant instead to pursue plea withdrawal claims collaterally through the Post–Conviction Remedies Act (PCRA). Ms. Gailey argues—contrary to our caselaw—that the Plea Withdrawal Statute does not cut off her right to a direct appeal, but merely allows a defendant to pursue either a direct appeal or postconviction relief. If the statute does in fact preclude a direct appeal, then Ms. Gailey argues that the statute is unconstitutional because article I, section 12 of the Utah constitution provides that “[i]n criminal prosecutions the accused shall have ... the right to appeal in all cases” and she claims that the PCRA remedy is not an adequate substitute for a direct appeal.

¶3 We reaffirm our caselaw and conclude that the Plea Withdrawal Statute bars direct appeals once sentencing takes place, and requires defendants to pursue postconviction relief. We also determine that Ms. Gailey's constitutional right to an appeal has not been violated—the Plea Withdrawal Statute does not altogether foreclose the right to an appeal; rather, it provides an alternative procedural route for challenging a plea. Although Ms. Gailey also argues that she could hypothetically be denied state-paid counsel or the effective assistance of counsel in the PCRA proceeding, which she claims would render such a proceeding an inadequate substitute for an ordinary appeal, she has not chosen to pursue such a proceeding and therefore these claims are not ripe for our review.

BACKGROUND

¶4 The State charged Ms. Gailey with burglary, theft, and criminal mischief for allegedly breaking into her mother's home and stealing cash and her mother's car keys. Ms. Gailey's case was assigned to Early Case Resolution (ECR) Court. On June 17, 2013, Ms. Gailey entered her initial appearance, was appointed counsel, and waived her right to a preliminary hearing. After the State agreed to drop two of the charges and reduce the burglary charge to criminal trespass, Ms. Gailey agreed to plead guilty.

¶5 A person may be guilty of criminal trespass under Utah Code section 76–6–206(2)(a) if she “enters or remains unlawfully on property and ... intends to cause [an] annoyance.” Ms. Gailey's plea affidavit stated that “On March 13, 2013, in Salt Lake County, Shanelle Gailey unlawfully entered onto another's property intending to cause an annoyance.” Ms. Gailey's counsel read this statement to the court and the judge asked Ms. Gailey if that was what happened. The following exchange then took place:

DEFENDANT GAILEY: Not exactly but it's my mother's house, I stayed there but I did annoy her. I will say that, didn't intend to but I did.

THE COURT: So it sounds like you started by saying that you didn't really do it and then you came around and those facts are basically the facts of the case?

DEFENDANT GAILEY: Yeah, they are.

THE COURT: So do you admit that those facts that your counsel described are essentially what happened in the case?

DEFENDANT GAILEY: Yes.

THE COURT: Okay. And are you pleading guilty to the charge because you're guilty of it?

DEFENDANT GAILEY: Yes.

¶6 The judge informed Ms. Gailey that by pleading guilty she would be giving up “important constitutional rights,” including the right to trial and the right to appeal any conviction at trial to an appellate court. The judge also advised Ms. Gailey that by waiving the minimum two-day waiting period for sentencing she would waive any chance she would otherwise have to withdraw her guilty plea. Ms. Gailey indicated that she understood and the court then entered judgment and sentence.

¶7 Ms. Gailey filed a notice of appeal without filing a motion to withdraw her plea. The court of appeals sua sponte offered a motion for summary disposition “on the basis that th[e] court lacks jurisdiction because there was no timely motion to withdraw the guilty plea.” Ms. Gailey then “assert[ed] that the nature of the court process under which her case proceeded precludes meeting the requirements for perfecting an appeal, and ... there are constitutional issues implicated by the process.” In response, the court of appeals issued an order withdrawing the motion for summary disposition, and ordered that the case would go forward solely on the jurisdictional and constitutional questions raised. The court of appeals certified the case to this court. We have jurisdiction under Utah Code section 78A–3–102(3)(b).

STANDARD OF REVIEW

¶8 “Whether appellate jurisdiction exists is a question of law which we review for correctness....” Migliore v. Livingston Fin., LLC , 2015 UT 9, ¶ 15, 347 P.3d 394 (citation omitted). The constitutionality of a statute is also a question of law reviewed for correctness. Injured Workers Ass'n v. State , 2016 UT 21, ¶ 12, 374 P.3d 14.

ANALYSIS

¶9 Article I, section 12 of the Utah constitution provides that “[i]n criminal prosecutions the accused shall have ... the right to appeal in all cases.” This right is not unlimited, however, as “the appeal must be taken within such limitations and restrictions as to time and orderly procedure as the Legislature may prescribe.” Weaver v. Kimball , 59 Utah 72, 202 P. 9, 10 (1921). One such limitation is Utah Code section 77–18a–1(1)(a), which permits defendants an appeal “as a matter of right ... [from] a final judgment of conviction, whether by verdict or plea.”

¶10 The Plea Withdrawal Statute further limits a defendant's right to appeal by requiring the defendant to either withdraw the plea prior to sentencing, or pursue postconviction relief after sentencing. Ms. Gailey argues that the Plea Withdrawal Statute provides postconviction relief as a permissive alternative to pursuing a direct appeal, not a mandatory replacement. She contends that “[t]here is nothing in the language of the [Plea Withdrawal Statute] that explicitly strips courts of jurisdiction,” and that our caselaw has mistakenly interpreted the statute as requiring defendants to pursue postconviction relief exclusively.

¶11 We use this opportunity to clarify and reaffirm our precedent holding that the Plea Withdrawal Statute is a procedural bar to a direct appeal post-sentencing. We next consider Ms. Gailey's constitutional arguments, and conclude that the Plea Withdrawal Statute does not on its face violate the constitutional right to appeal, because it provides a mechanism for review of and relief from an unknowing or involuntary plea, including appellate review. Finally, we conclude that this statute is not unconstitutional as applied to Ms. Gailey as she has not yet encountered any deficiencies—specifically, the deprivation of state-paid counsel or ineffective assistance of counsel—associated with pursuing postconviction relief. While the PCRA does not require an attorney to be appointed, the judge may nevertheless choose to appoint one for the defendant. And while effective assistance of counsel is not mandated in postconviction proceedings, Ms. Gailey has not pursued this remedy and we therefore do not know whether she would encounter ineffective assistance of counsel. Thus, these claims are not ripe for review.

I. THE PLEA WITHDRAWAL STATUTE PROCEDURALLY REQUIRES DEFENDANTS TO PURSUE POSTCONVICTION RELIEF POST–SENTENCING

¶12 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; instead it provided that a “plea of guilty or no contest may be withdrawn only upon good cause shown and with leave of court.” UTAH CODE § 77–13–6 (1982) ; see Grimmett v. State , 2007 UT 11, ¶ 11, 152 P.3d 306 ; State v. Abeyta , 852 P.2d 993, 994–96 (Utah 1993) (per curiam) (allowing the defendant to withdraw a guilty plea almost three years post-sentencing). Under the 1980 version of the statute, “even when a judge found that a plea was knowingly and voluntarily entered, he or she still retained broad discretion to determine whether other circumstances in the case constituted good cause for allowing the defendant to withdraw his plea.” State v. Ruiz , 2012 UT 29, ¶ 31, 282 P.3d 998.

¶13 But in 1989 the legislature amended the statute and created a thirty-day filing limitation on the defendant's right to withdraw a guilty plea. UTAH CODE § 77–13–6(2)(b) (1989). The statute provided that this thirty-day limitation began to run at the “entry of the plea,” which we interpreted as referring to thirty days after the entry of final judgment, and not thirty days from the plea colloquy. State v. Ostler , 2001 UT 68, ¶ 11, 31 P.3d 528.

¶14 In State v. Abeyta, we remarked that after this thirty-day period, “the right [to withdraw a guilty plea] is extinguished.” 852 P.2d at 995. Although we later characterized this statement in Abeyta as dictum, we reaffirmed the principle in several cases and expressly held the thirty-day limit to be a procedural bar...