State of Utah v. Kelley

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Gene Michael Kelley,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010201-CA

F I L E D
March 21, 2002 2002 UT App 86 -----

Second District, Farmington Department
The Honorable Rodney S. Page

Attorneys:
Scott Wiggins, Salt Lake City, for Appellant
Mark Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee -----

Before Judges Billings, Orme, and Thorne.

PER CURIAM:

This case is before the court on its own motion for summary disposition for lack of jurisdiction. This court lacks jurisdiction because Appellant voluntarily pleaded guilty, thereby waiving his right to appeal the issue of the trial court's ruling on Appellant's motion to suppress. "[A] voluntary guilty plea is a waiver of the right to appeal all nonjurisdictional issues, including pre-plea constitutional violations." State v. Jennings, 875 P.2d 566, 567 n.1 (Utah Ct. App. 1994); accord State v. Parsons, 781 P.2d 1275, 1278 (Utah 1989). Appellant's plea was not made conditional upon reserving Appellant's right to appeal the trial court's ruling on Appellant's motion to suppress evidence. See State v. Sery, 758 P.2d 935 (Utah Ct. App. 1988).

Appellant argues for the first time in his response to this court's sua sponte motion that his trial counsel was ineffective in not making Appellant's plea conditional upon reserving his right to appeal. Appellant may not raise this claim for the first time on appeal. Appellant must first file a timely motion to withdraw the plea in the trial court. See State v. Reyes, 2002 UT 13,¶¶3-4, 438 Utah Adv. Rep. 28. The only possible means by which Appellant could now raise the ineffective assistance of counsel claim is by filing a petition for post-conviction relief in the district court.

For the reasons stated above, this appeal is dismissed for lack of jurisdiction.
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Gregory K. Orme, Judge
 
 

______________________________
William A. Thorne Jr., Judge