State v. Helbach

State v. Helbach

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Aaron L. Helbach,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040671-CA
 

F I L E D
(October 28, 2004)
 

2004 UT App 388

 

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Second District, Ogden Department

The Honorable Roger S. Dutson

Attorneys: Aaron L. Helbach, Gunnison, Appellant Pro Se

Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Orme.

PER CURIAM:

Aaron Helbach appeals the trial court's denial of his motion to be resentenced. This is before the court on the State's motion for summary disposition based on lack of jurisdiction.

Helbach pleaded guilty to a charge of aggravated robbery in August 2003. Helbach completed a statement in support of his guilty plea, giving the factual basis for his plea and waiving specific rights, including his right to appeal. The document also specified that he could withdraw his plea only on good cause shown, and that he must file a motion to withdraw his plea before the announcement of sentence. Helbach was sentenced in September 2003.

In March 2004, Helbach filed a motion for resentencing in the trial court in his criminal case. Helbach asserted that he was incompetent at the time of his plea, and thus the plea was invalid. The trial court denied the motion on its merits, finding there was no indication that Helbach was not fully capable of entering a knowing and voluntary plea, and that the mental evaluation from the State did not indicate any disorder that would impact his competency. The trial court also noted the motion was filed several months after sentencing, but did "not address [the] timeliness of the Motion."

Helbach asserts that his motion was filed "under the philosophy" of State v. Rees, 2003 UT App 4, 63 P.3d 120, cert. granted, 73 P.3d 946 (Utah 2003), which permitted a defendant to file a motion for resentencing in the sentencing court under particular circumstances. Helbach has apparently seized on Rees to avoid going through the procedures for post-conviction relief as set forth in the Utah Post-Conviction Remedies Act (Act), Utah Code sections 78-35a-101 to -304 (2002), and Utah Rule of Civil Procedure 65C. However, after Rees, this court has held that requests to be resentenced to permit a renewal of an opportunity to appeal fall squarely within rule 65C and the Act. See State v. Manning, 2004 UT App 87,¶21, 89 P.3d 196, cert. granted, 2004 Utah LEXIS 172(Utah Aug. 11, 2004).

Additionally, Helbach has not shown that he comes within the scope of Rees. In Rees, this court held that extraordinary relief may be available in the sentencing court if a defendant has been denied the effective assistance of counsel on appeal. See Rees, 2003 UT App 4 at ¶6. Such relief, however, is available only in "limited circumstances, to modify or vacate a judgment where extra-record facts show that the defendant has been deprived of his constitutional right to a fair trial or meaningful appeal." Id. at ¶13. Helbach waived his right to a trial and appeal by pleading guilty and does not come within the narrow scope of Rees.

Instead, Helbach's motion is governed by Utah Code section 77-13-6, providing for the methods of challenging a guilty plea. Section 77-13-6 provides that a guilty plea "may be withdrawn only upon leave of the court and a showing that it was not knowingly and voluntarily made." Utah Code Ann. § 77-13-6(2)(a) (2003). A request to withdraw a plea "shall be made by motion before sentence is announced." Id. § 77-13-6(2)(b). If a defendant does not timely request to withdraw his plea, any challenge to the plea must be made pursuant to rule 65C and the Act. See id. § 77-13-6(2)(c).

Helbach's motion requested resentencing, but attacked the validity of his plea, arguing he was incompetent. The trial court addressed the merits, finding that Helbach was not incompetent at his plea. The trial court also noted, but did not rule on, the late filing of the motion. In substance, Helbach's motion was a motion to withdraw his plea, and the trial court considered it as such. However, under section 77-13-6, the trial court had no jurisdiction to consider the motion because it was made months after sentence was announced. Section 77-13-6 limits a defendant's right to withdraw a guilty plea to the time before the announcement of sentence. See id. § 77-13-6(2)(b). "Thereafter, the right is extinguished." State v. Abeyta, 852 P.2d 993, 995 (Utah 1993) (holding that failure to file a timely motion for withdrawal extinguishes the right). The timely filing of a notice to withdraw a plea is jurisdictional. See State v. Reyes, 2002 UT 13,¶¶3-4, 40 P.3d 630.

The trial court lacked jurisdiction over Helbach's motion, and thus this court likewise lacks jurisdiction over this appeal. See State v. Montoya, 825 P.2d 676, 678-79 (Utah Ct. App. 1991). Accordingly, this appeal is dismissed.

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

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Gregory K. Orme, Judge