Opinion
Case No. 20010345-CA.
FILED May 23, 2002. (Not For Official Publication)
Third District, Salt Lake Department, The Honorable Pat B. Brian.
Attorneys: Edward R. Montgomery, Salt Lake City, for Appellant.
Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee.
Before Judges Bench, Davis, and Thorne.
MEMORANDUM DECISION
Appellant Scott Allen Wright appeals his conviction and sentence for Operation of a Clandestine Laboratory, a first degree felony. This appeal is before the court on the State of Utah's Motion for Partial Dismissal.
Wright did not file a timely motion to withdraw his guilty plea; however, he challenges the validity of the plea on appeal. Wright contends that his trial counsel was ineffective in advising him regarding the evidence necessary to support a conviction. This constitutes a claim that the guilty plea was not knowing or voluntary. In his docketing statement on appeal, Wright also asserts that the trial court erred by not conducting a sufficient colloquy under rule 11 of the Utah Rules of Criminal Procedure.
In State v. Reyes, 2002 UT 13, 40 P.3d 630, the Utah Supreme Court reiterated that failure to file a timely motion to withdraw a guilty plea under Utah Code Ann. § 77-13-6 (1999) "extinguishes a defendant's right to challenge the validity of the guilty plea on appeal." Id. at ¶ 3. Accordingly, the supreme court held that it lacked jurisdiction to address the validity of a guilty plea where no timely motion to withdraw has been filed. See id. The supreme court rejected the argument that the court could "review a guilty plea, regardless of whether a motion to withdraw the plea was filed, if plain error or exceptional circumstances exist." Id. at ¶ 4. The court stated that the statutory requirement of a timely motion to withdraw makes filing the motion not "an issue of preservation," but "an issue of jurisdiction."Id. Thus, although an appellate court "may choose to review an issue not properly preserved for plain error," the court "cannot, however, use plain error to reach an issue over which it has no jurisdiction." Id. We lack jurisdiction to consider a challenge to the guilty plea based upon either Wright's rule 11 claim or his claim that counsel was ineffective in advising him prior to entry of the guilty plea because Wright did not file a timely motion to withdraw the guilty plea.
We dismiss the appeal for lack of jurisdiction only insofar as it raises issues challenging the validity of the guilty plea. The appeal shall continue as to the remaining issue alleging that trial counsel was ineffective in representing him at sentencing.
Russell W. Bench, Judge, James Z. Davis, Judge, and William A. Thorne Jr., Judge, concur.