State of Utah v. Tenangueno

State v. Tenangueno

IN THE UTAH COURT OF APPEALS

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

Bernardo Tenangueno,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040067-CA
 

F I L E D
(March 18, 2004)
 

2004 UT App 67

 

-----

Third District, Silver Summit Department

The Honorable Bruce C. Lubeck

Attorneys: Bel-Ami De Montreux, 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:

Bernardo Tenangueno appeals the denial of his motion to withdraw his guilty plea. Tenangueno entered his guilty plea April 16, 2002, and was sentenced July 2, 2002. On September 2, 2003, he filed a motion to set aside the guilty plea. The trial court held an evidentiary hearing on November 18, 2003. On November 20, 2003, the trial court denied Tenangueno's motion as untimely.

A plea of guilty may be withdrawn only upon good cause shown, and only by motion filed within thirty days after the entry of the plea. See Utah Code Ann. § 77-13-6 (1999).(1) The plea statute limits a defendant's right to withdraw a guilty plea to a specific time. "Thereafter, the right is extinguished." State v. Abeyta, 852 P.2d 993, 995 (Utah 1993). The failure to file a timely motion to withdraw a guilty plea deprives a trial court of jurisdiction to consider such a motion. See State v. Dean, 2002 UT App 323,¶6, 57 P.3d 1106 ("[t]he time limit on withdrawing a guilty plea is jurisdictional"); State v. Price, 837 P.2d 578, 583 (Utah Ct. App. 1992) (stating section 77-13-6(2)(b) is jurisdictional), overruled on other grounds by State v. Ostler, 2001 UT 68, 31 P.3d 528.

A narrow exception to the time limit for a motion to withdraw a plea is provided in Utah Rule of Criminal Procedure 11(f). "Failure to advise the defendant of the time limits for filing any motion to withdraw a plea of guilty . . . is not a ground for setting the plea aside, but may be the ground for extending the time to make a motion under Section 77-13-6." Id. This rule does not alter the jurisdictional nature of section 77-13-6, but permits the filing period to be extended if a defendant demonstrates that he was not informed of the jurisdictional time limits. See Price, 837 P.2d at 583. "Accordingly, if a defendant is advised of the deadline when the plea is entered, the trial court lacks jurisdiction to consider a motion to withdraw filed after the thirty-day period." Dean, 2002 UT App 323 at ¶6 (citation omitted).

Here, Tenangueno filed his motion to withdraw his guilty plea over one year after the time for such a motion had passed. After holding an evidentiary hearing, the trial court found as a matter of fact that Tenangueno had been informed of the time limits in which to file a motion to withdraw his plea. As a result, the possibility of an extended time in which to file as provided by Rule 11(f) was foreclosed, and Tenangueno's motion was untimely. The trial court correctly denied the motion.

Tenangueno asserts that trial court waived the defect of the late motion by holding an evidentiary hearing rather than summarily denying the motion as late. Tenangueno's assertion is not persuasive, however, because subject matter jurisdiction cannot be waived, and may be raised at any time. Subject matter jurisdiction goes to the competence of a court to resolve an issue and, unlike personal jurisdiction, cannot be waived. See Castle Valley Special Serv. Dist. v. Utah Bd. Oil Gas & Mining, 938 P.2d 248, 254 (Utah 1996); Barnard v. Wassermann, 855 P.2d 243, 247 (Utah 1993). Furthermore, the evidentiary hearing assisted the court in evaluating jurisdictional facts, although ultimately the facts did not support jurisdiction.

Because the motion to withdraw the guilty plea was untimely, this court lacks jurisdiction to consider any of the substantive issues of Tenangueno's challenge to his plea. See State v. Reyes, 2002 UT 13,¶3, 40 P.3d 630 (holding failure to file a

timely motion to withdraw "extinguishes a defendant's right to challenge the validity of the guilty plea on appeal").

Accordingly, we affirm.

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Norman H. Jackson, Judge

______________________________

William A. Thorne Jr., Judge

1. This section was amended effective May 2003 to require a motion to withdraw a plea to be filed before sentencing. See Utah Code Ann. § 77-13-6 (2003). The change does not affect the outcome in this matter.