State v. Lopez

• Decision Date: 17 November 2005
• Docket Number: No. 20040816-CA.,20040816-CA.
• Citation: 2005 UT App 496,128 P.3d 1
• Parties: STATE of Utah, Plaintiff and Appellant, v. Rey de la Cruz LOPEZ, Defendant and Appellee.
• Court: Utah Court of Appeals

Page 1

128 P.3d 1

2005 UT App 496

STATE of Utah, Plaintiff and Appellant, v. Rey de la Cruz LOPEZ, Defendant and Appellee.

No. 20040816-CA.

Court of Appeals of Utah.

November 17, 2005.

Mark L. Shurtleff, Atty. Gen., Karen A. Klucznik, and Richard G. Hamp, Asst. Attys. Gen., Salt Lake City, for Appellant.

Debra M. Nelson, Salt Lake City, Salt Lake Legal Defenders Ass'n, for Appellee.

Before BILLINGS, P.J., BENCH, Associate P.J., and THORNE, Jr., J.

OPINION

BILLINGS, Presiding Judge:

¶ 1 The State appeals the trial court's sua sponte order withdrawing Defendant Rey de la Cruz Lopez's guilty pleas to two counts of forgery, third degree felonies, in violation of Utah Code section 76-6-501. See Utah Code Ann. § 76-6-501 (1999). We affirm.

BACKGROUND

¶ 2 In April 1999, Defendant presented an invalid social security number and a counterfeit residency card in order to secure a United States Department of Housing and Urban Development guaranteed home loan. Defendant was charged with one count of forgery, a third-degree felony, and one count of communications fraud, a second-degree felony, or in the alternative, one count of theft by deception, a second-degree felony.

¶ 3 On August 19, 2004, Defendant entered into a plea agreement with the State whereby the State agreed to amend the communications fraud count to a count of forgery, and Defendant agreed to plead guilty to two counts of forgery.

¶ 4 Because Defendant spoke Spanish, the trial court conducted a plea colloquy with Defendant through an interpreter. The trial court asked Defendant if he had reviewed the Statement of Defendant in Support of Guilty Plea (Plea Statement). Through his interpreter, Defendant acknowledged that he had. The trial court also asked whether the Plea Statement was printed in Spanish. Defense counsel indicated that while the Plea Statement was in English, he had gone through it very carefully with Defendant. The trial court questioned defense counsel as to why the Plea Statement was not printed in Spanish. Defense counsel answered that although he had a Spanish form available, he mistakenly filled out the English form, which is why he went through it in detail with Defendant. The State also indicated that it observed defense counsel taking a significant amount of time to ensure that Defendant understood the Plea Statement.

¶ 5 Defendant pleaded guilty to both counts of forgery, and the trial court accepted Defendant's guilty pleas. Defense counsel indicated that he had discussed sentencing with Defendant, and that it was Defendant's desire to waive the minimum time for sentencing. Defense counsel then requested that sentence be imposed immediately and that Defendant be released to immigration officials (INS) for deportation to Mexico. The trial court asked Defendant whether he understood that (1) if he was sentenced immediately, he would give up his right to withdraw his guilty plea, and (2) if he was released to INS, he would be prohibited from reentering the United States without INS's permission. Through his interpreter, Defendant responded affirmatively to both questions. The trial court then imposed two concurrent sentences of zero to five years in Utah State Prison, which the trial court stayed, placed Defendant on probation, and authorized his release to INS.

¶ 6 The trial court never entered a final order of judgment. Rather, in the change of plea minute entry dated the same day, the trial court sua sponte reconsidered the acceptance of Defendant's plea. The trial court stated, "Based upon information brought to the [c]ourt, the court sets aside [D]efendant's plea in this matter. Plea is stayed pending a hearing in this matter."

¶ 7 On August 23, 2004, the trial court held a hearing on the matter. The State indicated to the trial court that it was not sure of the current status of the case and the trial court responded,

The current status is ... that ... the record will indicate that [Defendant] entered a plea to two third degree felonies, forgery charges. It's been brought to the [c]ourt's attention — in fact we discussed this at the time that the [P]lea [Statement] itself was in English and not in Spanish. [Defendant] is not fluent in English. This form was translated for him, but based upon information the [c]ourt received, I have serious concerns that [Defendant] understands the ramifications of what he is doing and what a plea to these charges means to him.

¶ 8 The trial court then set aside Defendant's pleas and allowed him a week to decide whether he wanted to proceed with a change of plea. The trial court directed defense counsel to present a Plea Statement printed in Spanish to Defendant. The State appeals the trial court's sua sponte withdrawal of Defendant's plea.

ISSUE AND STANDARD OF REVIEW

¶ 9 The State argues that the trial court did not have jurisdiction under Utah Code section 77-13-6 (plea withdrawal statute) to withdraw Defendant's guilty pleas after sentence was announced. See Utah Code Ann. § 77-13-6 (Supp.2005). Whether the trial court has subject matter jurisdiction presents a question of law that we review for correctness. See Beaver County v. Qwest, Inc., 2001 UT 81,¶ 8, 31 P.3d 1147. Similarly, "[b]ecause the interpretation of a statute presents a question of law, we review for correctness." State v. Amador, 804 P.2d 1233, 1234 (Utah Ct.App.1990).

ANALYSIS

I. The State's Right to Appeal

¶ 10 As a preliminary matter, Defendant asserts the State may not appeal the trial court's sua sponte order to set aside his guilty pleas. The State argues that it has a statutory right under Utah Code section 77-18a-1 to appeal the trial court's order. See Utah Code Ann. § 77-18a-1 (2003). We agree with the State.

¶ 11 Utah Code section 77-18a-1 sets forth a narrow set of specific judgments and orders from which the State may appeal. See id.; Amador, 804 P.2d at 1234. "To determine whether an appeal falls within one of the statutorily enumerated grounds, we look to general rules of statutory construction." Amador, 804 P.2d at 1234. "[O]ur primary goal in interpreting statutes is to give effect to the legislative intent, as evidenced by the plain language, in light of the purpose the statute was meant to achieve." State v. Burns, 2000 UT 56, ¶ 25, 4 P.3d 795.

¶ 12 The statute provides, in relevant part, "[a]n appeal may be taken by the prosecution from ... an order of the court granting a motion to withdraw a plea of guilty or no contest." Utah Code Ann. § 77-18a-1(2)(g). Defendant argues that this provision only allows the State to appeal a trial court's grant of a defendant's motion to withdraw. However, there is nothing in the plain language of this statute that limits its application to only motions filed by a defendant.

¶ 13 In addition, Defendant provides no rational explanation as to why the legislature would limit the State's right to appeal to only those cases where a defendant instituted the withdrawal motion. We agree with the State that the intent of the legislature by enacting this statute is to protect the finality of criminal convictions by providing the State with a mechanism to challenge a trial court's ruling that upsets such convictions. Furthermore, the State's interest in appealing from a trial court's sua sponte order withdrawing a guilty plea is substantial because of the potential double jeopardy implications. See, e.g., State v. Bernert, 2004 UT App 321,¶ 8 n. 1, 100 P.3d 221 (noting that in Utah, jeopardy attaches once a trial court accepts a guilty plea and thus a trial court's sua sponte withdrawal of a plea could possibly preclude retrial absent a showing of "manifest necessity"). Accordingly, we hold that the State has a statutory right to appeal the trial court's sua sponte withdrawal of Defendant's guilty pleas.

II. Plea Withdrawal Statute

¶ 14 Prior to May 5, 2003, the plea withdrawal statute provided that "[a] request to withdraw a plea of guilty ... shall be made within 30 days after the entry of the plea." Utah Code Ann. § 77-13-6(2)(b) (1999). After some confusion in the case law regarding when the statute begins to run, the Utah Supreme Court ruled that "the thirty-day [time] limit for filing a motion to withdraw a guilty plea found in section 77-13-6(2)(b) of the Utah Code begins to run at the time the district court enters final judgment" and not "from the date of the plea colloquy." State v. Ostler, 2001 UT 68, ¶¶ 11, 13, 31 P.3d 528.

¶ 15 After Ostler, the Utah Legislature amended the plea withdrawal statute to provide that "[a] plea of guilty ... may be withdrawn only upon leave of the court and a showing that it was not knowingly and voluntarily made.... A request to withdraw a plea of guilty ... shall be made by motion before sentence is announced." Utah Code Ann. § 77-13-6(2) (Supp.2005) (emphasis added). Thus, any time after a defendant has entered a guilty plea but before a "sentence is announced," a defendant may move to withdraw a guilty plea. Id.

¶ 16 While the Utah Supreme Court has not addressed the amended plea withdrawal statute, it has recently reaffirmed that the plea withdrawal statute is unequivocally jurisdictional. See State v. Merrill, 2005 UT 34,¶ 20, 114 P.3d 585 (applying the previous plea withdrawal statute and "confirm[ing] our conclusion ... that [Utah Code] section 77-13-6(2)(b) [(Supp.2004)] is indeed jurisdictional"); see also State v. Mullins, 2005 UT 43,¶ 11 n. 2, 116 P.3d 374 (applying the previous plea withdrawal statute and noting that in Merrill the court "removed any lingering doubt as to the jurisdictional consequences of a failure to seek a timely withdrawal of a plea").

¶ 17 If we were to conclude that the amended plea withdrawal statute applies to a trial court's sua sponte withdrawal of Defendant's plea, the trial court was without jurisdiction to set aside Defendant's plea in this case. However, Defendant asserts that the amended plea withdrawal statute does not apply to a trial court's sua sponte decision to...