State v. King

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Mario D. King,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030544-CA
 

F I L E D
(March 25, 2004)
 

2004 UT App 79

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Fifth District, Cedar City Department

The Honorable J. Philip Eves

Attorneys: Randall C. Allen, Cedar City, for Appellant

Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

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Before Judges Billings, Jackson, and Thorne.

PER CURIAM:

Mario D. King appeals his conviction and sentence for Forgery, a third degree felony, and Attempted Unlawful Use of a Credit Card, a class A misdemeanor. This appeal is before the court on King's motion for a remand pursuant to rule 23B of the Utah Rules of Appellate Procedure and on the State's motion for partial dismissal of the appeal.

King did not file a timely motion to withdraw his guilty pleas; nevertheless, he seeks to challenge the validity of the pleas on appeal, contending that his trial counsel was ineffective in advising him. The claim is, in substance, that his pleas were not knowing and voluntary when entered.

Failure to file a timely motion to withdraw a guilty plea "extinguishes a defendant's right to challenge the validity of the guilty plea on appeal," State v. Reyes, 2002 UT 13,¶3, 40 P.3d 630, including any right to challenge the guilty plea on the basis of ineffective assistance of counsel. See State v. Melo, 2001 UT App 392,¶¶7-8, 40 P.3d 646. Because King failed to file a timely motion to withdraw his guilty pleas, this court lacks jurisdiction to consider the claim that his guilty plea was not voluntary as a result of ineffective assistance of trial counsel. King also failed to respond to the State's motion for partial dismissal. Finally, the rule 23B motion seeks a remand to enter findings of fact only on a claim that counsel was ineffective in representing King in connection with his guilty pleas.(1) Accordingly, because we dismiss appeal to the extent that it challenges the validity of the guilty pleas, we must also deny the rule 23B motion.

We dismiss the appeal for lack of jurisdiction only insofar as it raises issues challenging the validity of the guilty plea. The appeal shall continue as to the remaining issues related to sentencing.

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Judith M. Billings,

Presiding Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge

1. Even if the merits of the motion were considered, it does not satisfy rule 23B's requirement to allege a nonspeculative allegation of facts and instead makes conclusory allegations that King seeks to support on remand. See Utah R. App. P. 23B(a); State v. Johnson, 2000 UT App 290,¶7, 13 P.3d 175.