State v. McGee

• Citation: 2001 UT 69,31 P.3d 531
• Decision Date: 10 August 2001
• Docket Number: No. 980136.,980136.
• Parties: STATE of Utah, Plaintiff and Appellee, v. John A. McGEE, Defendant and Appellant.
• Court: Supreme Court of Utah

31 P.3d 531

2001 UT 69

STATE of Utah, Plaintiff and Appellee, v. John A. McGEE, Defendant and Appellant.

No. 980136.

Supreme Court of Utah.

August 10, 2001.

Mark L. Shurtleff, Att'y Gen., Kris C. Leonard, Asst. Att'y Gen., Salt Lake City, Eric A. Ludlow, Washington County, for plaintiff.

Kenneth L. Combs, St. George, for defendant.

DURHAM, Justice:

¶ 1 On March 2, 1995, Defendant John A. McGee was charged with attempted aggravated murder, a first degree felony, receiving stolen property, a second degree felony, and failure to respond to an officer's signal to stop, a third degree felony. McGee pled guilty to all charges. Two years later, he filed a motion to reduce the first degree felony conviction to a second degree felony. During the resolution of this motion, the State stipulated to a new sentencing hearing, which the trial court granted. Nineteen days after being resentenced, McGee filed a motion to withdraw his plea of guilty to the first degree felony. The district court granted the State's motion to dismiss based on lack of jurisdiction under section 77-13-6(2)(b) of the Utah Code, which requires that plea withdrawals be made "within 30 days after the entry of the plea." We reverse in part and affirm in part.

BACKGROUND

¶ 2 On March 15, 1995, McGee pled guilty to charges of attempted aggravated murder, receiving stolen property and failure to respond to an officer's signal to stop.¹ Because McGee waived the time for sentencing and the preparation of a presentence report, he was immediately sentenced to serve concurrent terms of five years to life for the first degree felony, one to fifteen years for the second degree felony, and up to five years for the third degree felony.

¶ 3 Sometime in 1995, McGee filed a pro se petition for extraordinary relief in connection with this case.² Two years later, after obtaining new counsel, McGee filed a motion to reduce his conviction for the first degree felony to a second degree felony.³ During the hearing on this motion, McGee entered into a stipulation with the State whereby he agreed to withdraw his petition for extraordinary relief in exchange for receiving a new sentencing hearing, in which he could request the reduction of the first felony conviction after providing the court with a presentence report and other evidence.⁴

¶ 4 The new sentencing hearing was held on January 14, 1998.⁵ After taking the matter under advisement, the district court denied McGee's request for the reduction explaining that "the conduct engaged in by the defendant in his drug-induced paranoia does not justify the reduction in severity of the offense." Accordingly, McGee's conviction on the original charges was again reduced to judgment, and he was resentenced on February 6, 1998.⁶

¶ 5 On February 25, 1998, McGee moved to withdraw his guilty plea for the first degree felony, alleging ineffective assistance of counsel, challenging the voluntariness of his plea,⁷ claiming the trial court failed to comply with rule 11(e) in taking the plea, and arguing that he was convicted and sentenced for the first degree felony under the wrong statute. The State filed a motion to dismiss, arguing that the motion was untimely under section 77-13-6(2)(b) of the Utah Code⁸ and that therefore the court lacked jurisdiction. The district court granted the State's motion and McGee appealed on various grounds: (1) ineffective assistance of counsel; (2) error in the denial of his motion to withdraw his guilty plea; (3) error in the denial of his request for a reduction of the first degree felony; and (4) the inapplicability of the statute under which he was convicted and sentenced for the first degree felony.⁹

STANDARD OF REVIEW

¶ 6 The issues before us are (1) whether the district court erred in denying McGee's motion to withdraw his guilty plea,¹⁰ and (2) whether the district court erred in denying his request for a reduction of the first degree felony at his resentencing hearing. The first issue requires review of the district court's interpretation of section 77-13-6 of the Utah Code. This court reviews a district court's statutory interpretation for correctness, affording no deference to the district court. State v. Vigil, 842 P.2d 843, 844 (Utah 1992). With respect to the second issue, district courts have wide latitude and discretion in sentencing; therefore a sentence is set aside on appeal only if we find it is "inherently unfair or clearly excessive." State v. Woodland, 945 P.2d 665, 671 (Utah 1997).

DISCUSSION

I. MOTION TO WITHDRAW

¶ 7 The State argues that McGee is not entitled to appellate review of the claims relating to his untimely motion to withdraw his guilty plea. Specifically, the State contends that the thirty-day limit set forth in section 77-13-6(2)(b) of the Utah Code is jurisdictional in nature. To support this argument, the State cites State v. Price, 837 P.2d 578 (Utah Ct.App.1992), which held that section 77-13-6(2)(b)'s thirty-day limit for filing a motion to withdraw a guilty plea ran from the date of the plea colloquy and was jurisdictional in nature.

¶ 8 In the case of State v. Ostler, 2001 UT 68, 31 P.3d 528, also issued today, we overruled the holding in State v. Price, that the statutory thirty-day limit runs from the plea colloquy. We held that the thirty-day limitation on the filing of a motion to withdraw a plea of guilty or no contest begins to run at the time the trial court enters a final judgment of conviction based on the plea. See id. at ¶ 11. In the context of criminal cases, "[the] sentence . . . is [the] final judgment," State v. Soper, 559 P.2d 951, 953 (Utah 1977), and is the event that triggers the "entry" of the plea within the meaning of the statute. Here the State agreed to permit McGee to be resentenced almost three years after the entry of his original sentence. Accordingly, on February 6, 1998, the district court signed a new sentencing order. The new sentencing order constitutes the final judgment in this case. Because McGee's motion to withdraw his guilty plea was filed nineteen days after the entry of final judgment, it was timely under section 77-13-6(2)(b). Accordingly, we reverse the district court's dismissal of McGee's motion to withdraw his guilty plea. The State's arguments as to the jurisdictional nature of the limit therefore are moot.

II. MOTION TO REDUCE THE FIRST-DEGREE FELONY

¶ 9 McGee argues that the district court erred in denying his motion for a reduction of the first degree felony to a second degree felony. In this case, rather than reviewing McGee's request during the evidentiary hearing for said motion, the court held a new sentencing hearing pursuant to the stipulation between McGee and the State. In accord with the stipulation, a presentence report was prepared and reviewed by the district court, and McGee was allowed to present argument supporting reduction of the degree of his offense at the hearing on January 14, 1998. At the conclusion of the hearing the court took the matter under advisement.

¶ 10 On January 29, 1998, the court issued a memorandum decision denying McGee's request. In its ruling the court noted McGee's "good behavior . . . [and] his clear understanding of the nature of his drug abuse and its contribution to this offense. . . ." The court even acknowledged that McGee's statements during the resentencing hearing "show[ed] a remarkably refreshing insight into his situation." Nevertheless, the court held that "the conduct engaged in by the defendant in his drug-induced paranoia does not justify the reduction in the severity of the offense." Therefore, McGee was again sentenced to serve a term of five years to life on the first degree felony offense. In its order, however, the court included a recommendation that McGee be considered for parole after serving fifteen years.

¶ 11 On appeal, McGee argues that "given [his] history and character . . . such as his good work history and relatively clean record up to a two year period immediately prior to the incident . . . it would be unduly harsh to record the conviction as being for that degree of offense established by statute." Furthermore, he contends the court's conclusions of law in the resentencing order—specifically the recommendation that he serve fifteen years and then be paroled—is inconsistent with the court's...