State v. Sanwick

State v. Sanwick

IN THE UTAH COURT OF APPEALS

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

Paul T.R. Sanwick,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030845-CA
 

F I L E D
(March 25, 2004)
 

2004 UT App 80

 

-----

Third District, Salt Lake Department

The Honorable Robin W. Reese

Attorneys: Mary C. Corporon and Rebecca R. Long, Salt Lake City, for Appellant

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

-----

Before Judges Billings, Jackson, and Thorne.

PER CURIAM:

In this appeal from the denial of a motion for new trial, Paul Sanwick challenges the validity of his 1984 guilty plea to rape, a first degree felony. This appeal is before the court on a sua sponte motion for summary disposition.

The district court entered its judgment and sentence in August 1984. Sanwick filed a timely, but unsuccessful, appeal from his sentence. See State v. Sanwick, 713 P.2d 707 (Utah 1986) (per curiam). In 1993, Sanwick filed a "Motion for Court to Refuse Unlawful Plea," in which he claimed the guilty plea was illegal and should not have been accepted. The district court denied the motion, and the Utah Supreme Court summarily affirmed. See State v. Sanwick, No. 93089, slip op. (Utah Jan. 25, 1994).

In May 2003, Sanwick filed a "Renewed Motion for New Trial," which the district court denied as untimely. In September 2003, Sanwick again filed a motion for new trial alleging the same grounds as in the previous motion. The motion stated that Sanwick's son, who was represented to be the "putative victim," now denied that he had been sexually abused or that he had witnessed any abuse of his sisters by Sanwick. The district court denied the motion, finding that (1) the only alleged victims were Sanwick's two daughters; (2) the presentence report referred to possible abuse of Sanwick's son and stated that he may have witnessed abuse of his sisters; (3) the claim that information about the son was improperly considered at sentencing was rejected on appeal; (4) any evidence from the son was discoverable at trial or on appeal; and (5) the information provided would not have changed the outcome, which was based upon a guilty plea. Sanwick appeals this order.

In his docketing statement, Sanwick challenges only the validity of his 1984 guilty plea, claiming it was entered in violation of both rule 11 of the Utah Rules of Criminal Procedure and due process requirements. Neither issue was raised in the motion for new trial. Accordingly, Sanwick seeks to challenge his guilty plea on appeal based upon a motion for new trial asserting other grounds, and filed years after the expiration of the time for filing such a motion under rule 24(c) of the Utah Rules of Criminal Procedure.

Rule 24(c) requires a motion for new trial to be filed "within 10 days after imposition of sentence, or within such further time as the court may fix during the ten-day period." Only a timely motion for new trial suspends the running of the time to appeal from a final judgment. See Utah R. App. P. 4(b) ("[I]f a timely motion is filed . . . for a new trial under Rule 24 of the Utah Rules of Criminal Procedure . . . the time for appeal for all parties shall run from the entry of the order denying a new trial."). Sanwick cites no authority for his assertion that rule 24's time limits do not apply to a motion based upon alleged newly discovered evidence. No provision of rule 24 or any other rule allows a defendant to file a motion for new trial almost two decades after conviction to revive a right to appeal a guilty plea and conviction. Accordingly, we lack jurisdiction to consider the appeal on the merits.

In the alternative, we also lack jurisdiction to consider the validity of the guilty plea because Sanwick did not file a motion to withdraw his guilty plea in the trial court. See State v. Reyes, 2002 UT 13,¶¶3-4, 40 P.3d 630. As in Reyes, rather than focusing on the claims actually raised in the motion for new trial, Sanwick attacks only his 1984 guilty plea. See id. at ¶¶2-3. We lack jurisdiction to consider a claim that the guilty plea was not validly entered.

Finally, even if the motion for new trial is liberally construed as a claim for post-conviction relief, we affirm its denial. Sanwick was neither charged with, nor convicted of, sexual abuse of his son. The original charges each pertained to his two daughters, and he pleaded guilty to the rape of one daughter in exchange for the dismissal of the remaining charges. A challenge to references in the presentence report identifying the son as a possible victim was rejected on appeal. The evidence would not undermine the conviction, which was the result of a guilty plea to rape of Sanwick's daughter.

To the extent that Sanwick seeks to challenge his 1984 guilty plea and conviction, we lack jurisdiction to consider the appeal because the untimely motion for new trial did not toll the time for appeal and because Sanwick did not move to withdraw his guilty plea. Even if the appeal is deemed to be taken solely from the denial of the motion for new trial, it is without merit.

Accordingly, we affirm.

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Norman H. Jackson, Judge

______________________________

William A. Thorne Jr., Judge