State of Utah, v. Mullikin

State of Utah v. Mullikin, Case No. 981330-CA, Filed October 1, 1998. MEMORANDUM DECISION (Not For Official Publication)
IN THE UTAH COURT OF APPEALS

----ooOoo----

State of Utah, Plaintiff and Appellee, 

v. 

John A. Mullikin, Defendant and Appellant. 

Case No. 981330-CA

F I L E D
(October 1, 1998)   ----- Fifth District, St. George Department

The Honorable James L. Shumate

Attorneys: Kenneth L. Combs, St. George, for Appellant

Jan Graham and Norman E. Plate, Salt Lake City, for Appellee

-----

Before Judges Davis, Wilkins, and Orme.

PER CURIAM:

This case is before the court on its own motion for summary disposition. We affirm the trial court.

Appellant appeals his conviction and sentence entered following a ninety day diagnostic evaluation, challenging the district court's finding that his guilty plea was voluntary. Appellant pleaded guilty to Forcible Sexual Abuse, a second degree felony. Within thirty days of entering his plea, appellant moved the district court to set aside his plea. However, appellant failed to pursue his motion, and did not object to the entry of a conviction and sentencing, thus failing to preserve the issue for appeal. In response to the court's sua sponte motion, appellant asserts for the first time on appeal that he did not voluntarily and knowingly waive his motion to set aside his plea of guilty.

Generally, "a defendant who fails to bring an issue before the trial court is barred from asserting it initially on appeal." State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994); State v. Price, 837 P.2d 578, 580 (Utah Ct. App. 1992). The policy underlying the general rule is "that the trial court's attention should be called to potential error so that it may attend to it expeditiously and effectively, correcting any problems and obviating the need for appellate or collateral proceedings." State v. Irwin, 924 P.2d 5, 7 (Utah Ct. App. 1996). An appellate court may address an issue for the first time on appeal only if the trial court committed plain error or there are exceptional circumstances. Id. "Plain error" means, in part, that the record must show that it should have been obvious to the trial court that it was committing error. State. v Eldredge, 773 P.2d 29, 35 (Utah 1989). An "exceptional circumstance" exists only in truly unusual cases involving rare procedural anomalies. Irwin, 924 P.2d at 11.

In the case at hand, appellant has failed to demonstrate that the trial court committed plain error or that there are exceptional circumstances warranting this court's consideration of the issues raised for the first time on appeal.

Accordingly, we affirm appellant's conviction and sentence.
 
 

______________________________

James Z. Davis,

Presiding Judge
 
 

______________________________

Michael J. Wilkins,

Associate Presiding Judge
 
 

______________________________

Gregory K. Orme, Judge