State of Utah v. Brooks

State v. Brooks

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Vear Brooks,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20020669-CA
 

F I L E D

(March 27, 2003)
 

2003 UT App 84

 

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Third District, Salt Lake Department

The Honorable J. Dennis Frederick

Attorneys: Vear Brooks, West Valley City, Appellant Pro Se

Mark L. Shurtleff and Jeffrey T. Colemere, Salt Lake City, for Appellee

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Before Judges Jackson, Greenwood, and Orme.

PER CURIAM:

Appellant Vear Brooks appeals the denial of a motion to withdraw his guilty plea and multiple motions to correct an illegal sentence.

A motion to withdraw a guilty plea must be filed within thirty days after entry of the plea. See Utah Code Ann. § 77-13-6 (1999). Brooks's guilty plea was entered when he was sentenced on December 9, 1994. See State v. Ostler, 2001 UT 68,¶11, 31 P.3d 528 (holding guilty plea entered when defendant is sentenced). Failure to file a motion to withdraw a guilty plea within thirty days of its entry "extinguishes a defendant's right to challenge the validity of the guilty plea on appeal." State v. Reyes, 2002 UT 13,¶3, 40 P.3d 630. The motion to withdraw a guilty plea in this case was filed over six years after its entry. We lack jurisdiction to consider an appeal from the denial of an untimely motion to withdraw the guilty plea. See id.

In his motions to correct an illegal sentence, filed pursuant to rule 22(e) of the Utah Rules of Criminal Procedure, Brooks claims that the district court lacked jurisdiction to sentence him because the court did not comply with rule 11 of the Utah Rules of Criminal Procedure in accepting his guilty plea. The motions sought to collaterally challenge the guilty plea and resulting conviction. "A request to correct an illegal sentence under rule 22(e) presupposes a valid conviction." State v. Brooks, 908 P.2d 856, 860 (Utah 1995). Accordingly, "rule 22(e) does not allow a court to review a claim of an illegal sentence when the substance of the claim is a challenge to the underlying conviction." Id. at 860-61; see also State v. Telford, 2002 UT 51,¶7, 48 P.3d 228 ("[A] defendant may not employ rule 22(e) to attack the underlying conviction."). The assertion that rule 11(e) of the Utah Rules of Criminal Procedure creates a jurisdictional requirement for imposition of sentence is not persuasive. To the contrary, failure to make a timely motion to withdraw a guilty plea extinguishes the right to challenge the validity of the guilty plea. See State v. Abeyta, 852 P.2d 993, 995 (Utah 1993).

To the extent that Brooks challenges his sentence, the record does not support his factual assertions. He was not sentenced to a minimum mandatory term in this case. The court sentenced him to an indeterminate term of zero to five years on each of two counts of attempted sexual abuse of a child, a third degree felony. The court ordered the terms to run concurrently to each other and consecutively to a sentence Brooks was then serving as a result of a probation violation in a separate case. The sentence in this case was within the allowable range for the third degree felony convictions. The claim that Brooks was denied an opportunity to review the presentence report is raised for the first time on appeal, and we do not consider it other than to note that the record also reflects that counsel who represented Brooks at sentencing had reviewed the presentence report.

Accordingly, we affirm the denial of the motions to withdraw the guilty plea and to correct an illegal sentence.

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Norman H. Jackson,

Presiding Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge