State of Utah v. Lucius

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Michael Lucius,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020705-CA

F I L E D
January 24, 2003 2003 UT App 17 -----

Second District, Farmington Department
The Honorable Glen R. Dawson

Attorneys:
Michael J. Boyle, Ogden, for Appellant
Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee -----

Before Judges Davis, Orme, and Thorne.

PER CURIAM:

Appellant Michael Lucius appeals the denial of a motion to withdraw his guilty plea, or, in the alternative, a motion to correct illegal sentence. This case is before the court on a sua sponte motion for summary disposition on grounds that (1) the motion to withdraw guilty plea was untimely; (2) the plain error analysis is precluded by State v. Reyes, 200@ UT 13, 40 P.3d 630; and (3) the alternative motion to correct illegal sentence was properly denied because a motion under rule 22(e) of the Utah Rules of Criminal Procedure presumes a valid conviction.

A motion to withdraw guilty plea must be filed within thirty days after entry of the plea. See Utah Code Ann. § 77-13-6 (1999). Lucius's guilty plea was entered when he was sentenced on June 8, 2001. 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 guilty plea in this case was filed roughly a year 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 a cursory alternative motion to correct an illegal sentence, Lucius claimed the district court lacked jurisdiction to sentence him because the court should not have accepted his guilty plea. The motion sought to collaterally challenge the guilty plea, despite his failure to make a timely motion to withdraw the guilty plea. "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).

We affirm the denial of the motions to withdraw guilty plea and to correct illegal sentence.
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Gregory K. Orme, Judge
 
 

_____________________________
William A. Thorne Jr., Judge