State of Utah v. Swensen

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State of Utah,
Plaintiff and Appellee,

v.

Loran Elmo Swensen,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990686-CA

F I L E D
December 2, 1999
  1999 UT App 340 -----

Third District, Salt Lake Department
The Honorable William A. Thorne

Attorneys:
William R. Morse, Salt Lake City, for Appellant
Jan Graham and Scott Keith Wilson, Salt Lake City, for Appellee

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Before Judges Greenwood, Bench, and Orme.

PER CURIAM:

Loran Elmo Swensen appeals from the denial of a motion to withdraw his guilty plea. This case is before the court on a sua sponte motion for summary affirmance.

The State contends this court lacks jurisdiction over the appeal because the motion to withdraw the guilty plea was not timely filed in the district court. However, Swensen filed a timely notice of appeal following entry of the decision of the district court denying the motion, and this court has appellate jurisdiction to review that decision.

Swensen entered a guilty plea in January 1994 to two counts of sexual abuse of a child, a second degree felony. At the change of plea hearing, the district court advised Swensen that any motion to withdraw the guilty plea must be filed within thirty days of entry of the guilty plea. Swensen did not file a timely motion to withdraw, but filed a direct appeal challenging his sentence. This court affirmed the sentence in an unpublished memorandum decision. See State v. Swensen, No. 940277-CA, slip op. (Utah Ct. App. May 11, 1995).

In 1999, Swensen filed a motion to withdraw his 1994 guilty plea, contending it was not taken in compliance with Rule 11 of the Utah Rules of Criminal Procedure and was involuntary. The district court denied the motion both for lack of merit and based upon its conclusion that "[t]he defendant has shown no good cause to allow the court to consider withdrawing his guilty pleas of 31 January 1994 more than thirty days after they were entered."

We may affirm the trial court's judgment on any proper ground, even though not relied upon below. See Gardner v.Madsen, 949 P.2d 785, 789 n.2 (Utah Ct. App. 1997). A motion to withdraw a guilty plea must be "made within 30 days after the entry of the plea." Utah Code Ann. § 77-13-6 (2)(b)(1999). In State v. Price, 837 P.2d 578, 583 (Utah Ct. App. 1992), this court held that "[i]f a defendant is informed of the statute's thirty-day deadline for filing a motion to withdraw a guilty plea, section 77-13-6(2)(b) is jurisdictional." Accordingly, "[i]f the timeliness issue [is] properly addressed in the trial court, that court [is] without jurisdiction to hear defendant's motion and without a basis for extending the time for defendant to file his motion." Id.

Because Swensen was advised of the thirty-day deadline for making a motion to withdraw his guilty plea, the district court lacked jurisdiction to consider the merits of the untimely motion to withdraw the guilty plea or to extend the time for bringing a motion to withdraw. On that basis, we affirm the district court's denial of the motion to withdraw the guilty plea.

The judgment is affirmed.
 
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge