State v. Quintana

State v. Quintana

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Raymond Michael Quintana,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030534-CA
 

F I L E D
(July 9, 2004)
 

2004 UT App 231

 

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Third District, Salt Lake Department

The Honorable Sheila K. McCleve

Attorneys: Kent R. Hart, Salt Lake City, for Appellant

Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Orme.

ORME, Judge:

We recognize that, on the record before us, the trial court did not accurately advise Defendant about the time within which he had to file his motion for leave to withdraw his guilty plea. See State v. Dean, 2004 UT 45,¶9 (stating that the trial court bears the burden of ensuring defendant's guilty plea is knowingly and voluntarily made). The plea affidavit stated one thing and the trial court stated another during the colloquy. Moreover, the trial court did not emphasize that there was a recent change of law or indicate that the change was inconsistent with the contents of the affidavit. On the contrary, on several occasions the court directed Defendant's attention to the affidavit as a more comprehensive summary of his rights.

Under the rule now in effect, which is the same version in effect when Defendant's plea was taken, failure to properly advise Defendant of the applicable time frame does not undercut the voluntariness of the plea but may warrant an extension of time to file the motion. See Utah R. Crim. P. 11(f). However, Defendant essentially waived his right to avail himself of the opportunity to secure an extension when he failed to file a motion for extension of time and instead--as though entitled as a matter of right--filed a motion to withdraw guilty plea. That motion was untimely. See Utah Code Ann. § 77-13-6(2)(b) (2003).

Nor does our decision turn on an overly formalistic view of motion practice. Not only did Defendant fail to move for an extension of time at the outset, but he also failed to seek an extension or otherwise address the question of timeliness when the State, in its response to his motion to withdraw the guilty plea, identified the timeliness problem. Indeed, Defendant chose to stand firm on the propriety of his motion to withdraw as filed and simply appealed when the trial court denied his motion, again sending the clear signal that he was convinced he was entitled to file his motion to withdraw as a matter of right. Appellate counsel's effort to at last put the matter on a proper procedural footing, seeking only a remand for the trial court to now consider the propriety of an extension, runs afoul of the prohibition against raising issues for the first time on appeal. See State v. Holgate, 2000 UT 74,¶11, 10 P.3d 346.

Affirmed.

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Gregory K. Orme, Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge