STATE v. CARAPIA, 2009 UT App 71

Case No. 20090004-CA.Utah Court of Appeals.
Filed March 12, 2009. Not For Official Publication

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Appeal from the Third District, Tooele Department, 081300296, The Honorable Stephen L. Henriod.

Steven R. McCaughey, Salt Lake City, for Appellant.

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

Before Judges Greenwood, Thorne, and Orme.

MEMORANDUM DECISION
PER CURIAM:

Defendant Juan Manuel Carapia appeals his conviction based upon his guilty plea to possession of a controlled substance with intent to distribute, a third degree felony. This case is before the court on a sua sponte motion for summary disposition for lack of jurisdiction. Neither Defendant nor the State opposes the motion, and Defendant moves to dispose of the case in a manner that will allow him to pursue the issues in a petition for post-conviction relief.

Defendant’s failure to file a timely motion to withdraw his guilty plea leaves this court without jurisdiction to review the only issue he raises on appeal: the validity of his guilty plea based on the alleged ineffective assistance of counsel. “A request to withdraw a plea of guilty or no contest, except for a plea held in abeyance, shall be made by motion before sentence is announced.” Utah Code Ann. § 77-13-6(2)(b) (2008). A motion to withdraw a guilty plea must be disposed of prior to sentencing. See id. Where no timely motion to withdraw a guilty plea is filed in the trial court, we lack jurisdiction to consider a challenge to the validity of the guilty plea. See Grimmett v. State, 2007 UT 11, ¶ 8, 152 P.3d 306 (“Section 77-13-6(2)(b) imposes a jurisdictional bar on late-filed motions to withdraw

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guilty pleas.”); see also State v. Briggs, 2006 UT App 448, ¶ 6, 147 P.3d 969. Failure to file a timely motion to withdraw a guilty plea also deprives an appellate court of jurisdiction to consider a claim that the guilty plea is involuntary as a result of ineffectiveness of counsel.See Briggs, 2006 UT App. 448 ¶ 6 (“[B]ecause Defendant failed to timely file a motion to withdraw his guilty plea, this court lacks jurisdiction to consider his ineffectiveness of counsel claim.”); see also State v.Rhinehart, 2007 UT 61, ¶ 1, 167 P.3d 1046 (holding that claims of ineffective assistance of counsel raised in the context of challenges to the lawfulness of guilty pleas are subject to the jurisdictional bar imposed by Utah Code section 77-13-6).

Defendant pleaded guilty on July 1, 2008, and was sentenced on December 3, 2008. On August 20, 2008, Defendant filed a motion seeking to withdraw his guilty plea, but he withdrew the motion prior to sentencing. Because the motion was withdrawn and not addressed prior to sentencing, we lack jurisdiction to consider claims challenging the validity of the guilty plea, including claims of ineffective assistance of counsel. Accordingly, we dismiss the appeal because we lack jurisdiction to consider the merits of the issue raised on appeal. Defendant’s remedy is under the Post-Conviction Remedies Act,see Utah Code Ann. §§ 78B-9-101 to-405 (Supp. 2008), and rule 65C of the Utah Rules of Civil Procedure, see Utah R. Civ. P. 65C.

William A. Thorne Jr., Associate Presiding Judge, Gregory K. Orme, Judge