State of Utah v. Rodriguez

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Victor Manuel Rodriguez,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010514-CA

F I L E D
April 18, 2002 2002 UT App 121 -----

Third District, Salt Lake Department
The Honorable Judith S. Atherton

Attorneys:
Joseph Jardine, Salt Lake City, for Appellant
Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee -----

Before Judges Billings, Davis, and Greenwood.

PER CURIAM:

Appellant Victor Manuel Rodriguez appeals his conviction of Unlawful Possession of a Controlled Substance or Counterfeit Substance with Intent to Distribute, a second degree felony.

The district court entered its judgment and sentence on May 18, 2001. Rodriguez filed a timely notice of appeal on June 12, 2001. He concedes he did not file a motion to withdraw his guilty plea in district court, but contends this court may consider the challenge to his guilty plea based upon plain error. See State v. Melo, 2001 UT App 392,¶7, 436 Utah Adv. Rep. 41. After Rodriguez filed his opening brief, the Utah Supreme Court issued its decision in State v. Reyes, 2002 UT 13, 439 Utah Adv. Rep. 28. In Reyes, the supreme court reiterated that failure to file a timely motion to withdraw a guilty plea "extinguishes a defendant's right to challenge the validity of the guilty plea on appeal." 2002 UT 13 at ¶3. Accordingly, the supreme court held it lacked jurisdiction to address the validity of a guilty plea where no timely motion to withdraw had been filed. See id. The court further held that although an appellate court "may choose to review an issue not properly preserved for plain error," it cannot "use plain error to reach an issue over which it has no jurisdiction." Id. at ¶4. Because Rodriguez filed no motion that may be construed as a timely motion to withdraw his guilty plea, we lack jurisdiction to consider the issues on appeal. We decline to construe the notice of appeal as a motion to withdraw.

Rodriguez also claims, for the first time on appeal, that the thirty day time limit to make a motion to withdraw guilty plea is unconstitutional because it violates due process and equal protection guarantees. He contends that this case presents exceptional circumstances that warrant addressing his constitutional argument for the first time on appeal. When Rodriguez entered his guilty plea, case law interpreted Utah Code Ann. § 77-13-6 to require that a motion to withdraw be filed within thirty days of entry of a guilty plea. See State v. Ostler, 2001 UT 68,¶¶8-11, 31 P.3d 528. The Utah Supreme Court interpreted the statutory language "within 30 days after entry of the plea" to mean within thirty days after entry of the judgment and sentence. See id. Rodriguez contends both that he was not aware of the errors in taking his plea until after sentencing and that he did not file a motion to withdraw after sentencing based upon his understanding that existing case law precluded filing the motion more than thirty days after the date on which the plea was entered.(1)

We conclude Rodriguez lacks standing to pursue the constitutional claim. He calls upon this court to speculate about his reasons for not seeking to withdraw his guilty plea after sentencing, as the appellant in Ostler did. Because Rodriguez has never filed a motion to withdraw his guilty plea, he cannot establish the requisite causal relationship between his claimed injury and application of the statutory time limit. See State v. Mace, 921 P.2d 1372, 1379 (Utah 1996) (stating litigant must demonstrate a personal stake in challenge of statutory scheme). Finally, he provides inadequate legal analysis for a claim that the thirty day limit, as construed in Ostler, would violate due process and equal protection. See State v. Smith, 1999 UT App 370,¶8, 995 P.2d 14 (noting court may disregard issues not properly briefed).

We dismiss the appeal because we lack jurisdiction to consider the challenge to the guilty plea, and decline to consider the constitutional claim for the first time on appeal.
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Pamela T. Greenwood, Judge

1. The State correctly notes that the claimed violations of Rule 11 of the Utah Rules of Criminal Procedure should have been known at or about the time of entry of the guilty plea.