State v. Gibson

State v. Gibson

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Levi Malon Gibson,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20021019-CA
 

F I L E D
(March 25, 2004)
 

2004 UT App 77

 

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Third District, Salt Lake Department

The Honorable Timothy R. Hanson

Attorneys: Paul Gotay and Kevin C. Sullivan, Salt Lake City, for Appellant

Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee

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Before Judges Bench, Greenwood, and Orme.

PER CURIAM:

Defendant Gibson appeals from the denial of his second motion to withdraw his guilty plea to two counts of sexual abuse of a child, see Utah Code Ann. § 76-5-404.1 (1999), and one count of attempted sexual abuse of a child, see id. §§ 76-4-101, 76-5-404.1.

Defendant contends that there is reasonable doubt as to whether the district court had subject matter jurisdiction to accept his plea.(1) The State responds that Defendant's second motion to withdraw his guilty plea, filed on May 10, 2002, was untimely. The State therefore contends that the district court did not have jurisdiction to consider the motion and the proper way for Defendant to seek relief is by post-conviction petition.

"A request to withdraw a plea of guilty . . . is made by motion and shall be made within [thirty] days after entry of the plea." Utah Code Ann. § 77-13-6(2)(b) (1999). Once Defendant entered his plea, he actually had thirty days from the entry of final judgment, which is ordinarily the sentence in a criminal case, to file a motion to withdraw his plea. See State v. Ostler, 2001 UT 68,¶11 & n.3, 31 P.3d 528. "[T]he thirty-day time period for moving to withdraw a guilty plea is jurisdictional." State v. Canfield, 917 P.2d 561, 562 (Utah Ct. App. 1996) (per curiam); see also State v. Reyes, 2002 UT 13,¶¶3-4, 40 P.3d 630 (concluding appellate court could not review challenge to validity of guilty plea for plain error or exceptional circumstances because timely motion to withdraw plea is jurisdictional). "Accordingly, if a defendant is advised of the [thirty-day] deadline when the plea is entered, the trial court lacks jurisdiction to consider a motion to withdraw filed after the thirty-day period." Canfield, 917 P.2d at 562; see also Utah R. Crim. P. 11(f).

Defendant's first motion to withdraw his plea was timely filed on September 5, 2001. After denying that motion, the district court entered Defendant's sentence. Defendant did not timely appeal from his sentence. See Utah R. App. P. 4(a) (requiring appeal to be filed within thirty days of entry of final judgment). Rather, five months after Defendant's sentence was entered, Defendant filed his second motion to withdraw his plea. Defendant does not contend that he was not properly advised of the time limit for filing a motion to withdraw his plea. Moreover, the district court did not grant Defendant an extension of time to file his second motion to withdraw his plea. Rather, the district court concluded that Defendant's second motion was untimely.

Although Defendant's second motion was untimely, Defendant contends that by pleading guilty he did not waive subject matter jurisdiction, which can be raised at any time, even in an untimely motion to withdraw a guilty plea. See State v. Perank, 858 P.2d 927, 930 (Utah 1992) (holding that issue of subject matter jurisdiction raised in probation revocation proceeding was properly before court on appeal because plea of guilty does not waive claim that trial court lacked authority to adjudicate a charge). Even assuming a district court can consider an untimely motion to withdraw a guilty plea challenging the district court's subject matter jurisdiction to accept the plea, in the present case the district court found that during the plea colloquy, Defendant affirmatively represented to the court that the offenses were committed between October 1, 2000 and November 1, 2000. After reviewing the colloquy, we cannot say that the district court's finding is clearly erroneous. Further, it is undisputed that Defendant turned eighteen in August 2000. Therefore, based upon Defendant's admissions of the predicate jurisdictional facts during the colloquy, we must conclude that the district court had jurisdiction to accept Defendant's plea.

Defendant contends that at trial, the State would have been required to prove beyond a reasonable doubt that he was eighteen when he committed the offenses.(2) Therefore, Defendant contends that before accepting his plea, the district court was required to find beyond a reasonable doubt that he was eighteen when he committed the offenses. However, Defendant does not contend that a defendant's admission to predicate facts establishing jurisdiction is not sufficient to support the district court's jurisdiction to accept a plea. Rather, Defendant contends that he did not understand that the facts he was admitting had jurisdictional significance. That Defendant may have been subjectively unaware that he was admitting the predicate facts for jurisdiction does not mean that the district court did not have jurisdiction to accept his plea.

Accordingly, we deny Defendant's request for a remand and affirm.

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Russell W. Bench, Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge

1. Defendant also contends that his plea is not valid because the district court did not comply with rule 11 of the Utah Rules of Criminal Procedure. However, in support of his first motion to withdraw his plea, Defendant acknowledged the district court's compliance with rule 11.

2. Defendant asserts that the victim's preliminary hearing testimony creates reasonable doubt as to the court's subject matter jurisdiction to accept his plea. However, rather than creating reasonable doubt, the victim's testimony is fully consistent with the district court's exercise of subject matter jurisdiction.