State v. Rettig

• Citation: 416 P.3d 520
• Decision Date: 22 November 2017
• Docket Number: No. 20131024,20131024
• Parties: STATE of Utah, Appellee, v. Benjamin David RETTIG, Appellant.
• Court: Supreme Court of Utah

416 P.3d 520

STATE of Utah, Appellee,

v.Benjamin David RETTIG, Appellant.

No. 20131024

Supreme Court of Utah.

Filed November 22, 2017

Sean D. Reyes, Attorney General, Christopher D. Ballard, Asst. Attorney General, 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.

On Direct Appeal

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-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 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 "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 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....