State of Utah v. Farabee

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Ryan E. Farabee,
Defendant and Appellant.

MEMORANDUM DECISION
(Not for Official Publication)

Case No. 20000972-CA

F I L E D
May 24, 2001 2001 UT App 167 -----

Seventh District, Moab Department
The Honorable Lyle R. Anderson

Attorneys:
Mary Corporon, Salt Lake City, for Appellant
Mark L. Shurtleff and Kent M. Barry, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Billings, and Davis.

PER CURIAM:

This case is before the court on defendant's motion for remand under Rule 23B of the Utah Rules of Appellate Procedure and on the State's motion for partial dismissal of the appeal.

Defendant filed two notices of appeal, one from his conviction and one from the trial court's denial of his motion to withdraw his guilty plea ("the second appeal"). We consolidated the appeals. The State argues that we do not have jurisdiction over the second appeal because the trial court did not have jurisdiction to consider the motion. An absence of jurisdiction in the trial court does not necessarily deprive this court of jurisdiction. See State v. Ostler, 2000 UT App 28,¶8, 996 P.2d 1065 (reviewing entry of a guilty plea for plain error even though trial court would not have had jurisdiction). When a timely notice of appeal is filed from a final order, as it was here, we have jurisdiction. See Utah R. App. P. 3(a) and 4(a).

However, we find that the second appeal presents an insubstantial question, making summary affirmance appropriate. The State correctly points out that the trial court did not err in denying defendant's untimely motion to withdraw his plea.

A motion to withdraw a guilty plea must be made within 30 days after the entry of the plea. See Utah Code Ann. § 77-13-6(2)(b) (1999). Defendant entered his plea on September 6, 2000, and was convicted and sentenced on October 17, 2000. His motion to withdraw the plea was filed on November 13, 2000. Although in Ostler we reviewed the taking of a guilty plea for plain error even though no timely motion to withdraw the plea was filed, seeOstler at ¶8, defendant has not asserted plain error on appeal. Defendant asserted in his docketing statement that the 30 days for filing a motion to withdraw a plea runs from the date of sentencing rather than the date of entry of the plea; however, his claim is contrary to the language of section 77-13-6(2)(b) and was rejected by this court in State v. Price, 837 P.2d 578, 583 (Utah Ct. App. 1992).

Regarding defendant's motion to remand for findings under rule 23B, we find that defendant has not met his burden under the rule. A rule 23B remand is available only upon "a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective," accompanied by affidavits that show "the claimed deficient performance of the attorney" and "the claimed prejudice suffered by the appellant as a result of the claimed deficient performance." Utah R. App. P. 23B(a) and (b). Although the affidavits of defendant's wife and brother state that trial counsel did not inform defendant that he could be sentenced to a prison term of five years to life on each offense, defendant himself does not make that assertion. Regarding defendant's claims that counsel performed deficiently by not moving to suppress defendant's confession, by not challenging statements made by the victim's mother, and by refusing to argue bias on the part of the trial court, we find that the motion and affidavits do not show deficient performance. Finally, although defendant's wife asserts that defendant is of limited intelligence and could not read the presentence investigation report, defendant himself has not claimed as much and we are given no reason to conclude trial counsel was aware of defendant's alleged impairment.

In light of the foregoing, we summarily affirm the trial court only as to that portion of the appeal taken from the denial of defendant's motion to withdraw his guilty plea. In addition, we deny defendant's motion for remand under rule 23B.
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

______________________________
Judith M. Billings, Judge
 
 

______________________________
James Z. Davis, Judge