*1 CONCLUSION juvenile proper 16 A determina- precise
tion of the existence of the circum- §
stances Ann. described Utah Code 78-
3a-408(2)(e), construed, properly is sufficient support parental a determination of unfit-
ness. we do not disturb the
court’s determination that the father is unfit.
Furthermore, we see no abuse discretion pa-
in the court’s termination of the father’s rights, given undisputed findings
rental
underlying the court’s determination that daughter’s
termination is in the best interest.
¶ 17 Affirmed.6
¶ 18 WE H. CONCUR: NORMAN
JACKSON, Presiding Judge and JAMES Z.
DAVIS, Judge. Utah, Appellee,
STATE of Plaintiff and DEAN, Appellant.
Wallace Defendant and
No. 20000340-CA. Appeals of Utah.
3,Oct. 2002. Jackson, Bryan City, Appel-
J. Cedar lant. R.A.J., ¶¶ 11-12, not, however, In re dispute vacated.” The father does State, rule, general that "[t]he as a will not proceed adoption appellant with an until an has
6. The father also the State has violated appellate rights.” exhausted his The will father requiring adoptions federal law of children complain alleged not be heard to about the inac- parents' parental rights whose have been termi- regarding daughter’s tion of perma- the State expeditiously. nated be finalized The father con- nency when his own is the main reason tends that because of this claimed "the violation adoption delayed. has been parental rights termination of [his] [should] be
H07
General,
appeal challenges the denial of that mo-
Shurtleff, Attorney
and
L.
Mark
Attorney
Inouye,
Gener-
[on
B.
Assistant
“for the first
time on
tion
Jeanne
City, Appellee.
al,
Lake
him
Salt
that the trial court failed
inform
basis]
speedy trial”
right[s]
his
and
P.J.,
JACKSON,
and BENCH and
Before
jury.
impartial
GREENWOOD, JJ.
“must
P.3d 101.
he
show
plain error.
committed]
[that
OPINION
error,
a
succeed on a claim of
defen-
To
JACKSON, Presiding Judge:
(i)[a]n
showing
has the burden of
dant
(ii)
exists;
have
the error should
been obvi-
BACKGROUND
(iii)
court;
is
to the trial
and
the error
ous
8, 2000,
pleaded guilty
Dean
1 On March
(quotations
Id.
and citations omit-
harmful.”
abuse,
degree
child
a second
count of
to one
ted).
abuse,
A
a class
felony,
count of child
one
misdemeanor,
assault,
B
a class misde-
ANALYSIS
plea, he
In connection with his
meanor.
I.
Jurisdiction
the consti-
that detailed
executed a statement
waiving.
ini-
Dean
tutional
he was
reaching
Dean
4 Before
the issue
Be-
paragraph of the statement.
tialed each
raises,
argument
we address the State’s
trial court
guilty pleas, the
accepting his
fore
to review Dean’s
we lack
if he had read the statement
Dean
asked
effectively
argument.
In order to
ad
and initialed each of
had executed
he
jurisdictional challenge,
we
dress
State’s
affirmatively,
paragraphs. Dean answered
previous
sketch Utah’s
decisions relat
first
plead guilty to the above-
proceeded to
challenges
guilty pleas.
ing to
advised,
charges. Dean was not
either
listed
Gibbons,
In State v.
court,
by the trial
signed statement or
in his
11(e) squarely places
court held that “Rule
waiving
only his
he was
not
ensuring that
trial,
speedy trial
on trial courts the burden of
right to a
but also his
11(e)
impartial jury.
requirements
constitutional and Rule
guilty plea is en
complied with when a
are
10, 2000,
a motion
April
Dean filed
On
(Utah 1987).1
1309, 1312
tered.” 740 P.2d
argued
guilty plea. He
his
to withdraw
comply
with
court failed to
Gibbons,
Proce-
Rules of Criminal
deter-
of the Utah
[i]n
ways.
argued, incor-
He first
simply
dure
two
not
mined that a defendant could
rectly,
advised of the
that he had not been
guilty plea.
on a
appeal a conviction based
withdraw his
filing a motion to
time limit for
Rather,
a motion
must first file
defendant
However, the court did advise
guilty plea.
giving the
plea,
court
[his]
to withdraw
did not
thirty-day deadline. He
him of the
to con-
the first chance
who took
second violation. On
specify the basis for the
arguments.
If the mo-
sider defendant’s
and sen-
April
Dean was convicted
denied,
ap-
could then
defendant
tion is
his motion
tenced after the trial court denied
se,
per
but
peal—not from the conviction
guilty plea.
appeals that
He
to withdraw
from the denial of the motion.
conviction.
denial and his
Cook,
341, 342-43
Summers
a
fails to
Ct.App.1988). If
defendant
REVIEW
AND STANDARD OF
ISSUE
guilty plea, he
a motion to withdraw
file
argues for the first time on
¶ 8 Dean
collaterally.
may only
attack his
committed
appeal that the trial court
See id.
advised of his
he was never
error because
entered,
guilty plea
has been
6 Once
jury,
impartial
entry
thirty days from “the
has
jury.
by a
Dean
opposed to a mere trial
as
the district
judgment
conviction at
guilty plea,
final
but
filed a motion to withdraw
voluntary guilty
Gibbons,
dealing
knowing and
adopted
cases
with
a ‘strict com-
1. "In
this court
Maguire,
pleas.”
superseded
as a
pliance'
the ‘record
test which
(Utah 1991).
traditionally applied on review in
whole’ test
nothing
court” to file a motion to withdraw his
more than a direct attack on his
68,¶
guilty plea
challenge
n.
See State
&
rather
than a
(Ostler II).
previously
denial of his motion to withdraw.
We have
withdrawing
held that
the time limit on
¶ However, in Reyes,
guilty plea
jurisdictional.
is
See State v.
sufficiency
did not address the
aof motion to
*3
(Utah
Price,
578,
Ct.App.
P.2d
guilty
Rather,
withdraw a
it stated
1992). “Accordingly, if a defendant
is ad
that the defendant must file motion
with-
plea
vised of the deadline
the
when
is en
thirty-day
in the
deadline. See id. Unlike
tered,
jurisdiction
the trial court lacks
Reyes,
timely
the
in
Dean filed a
consider a motion to withdraw filed after the
Thus,
guilty plea.
motion
withdraw his
thirty-day period.”
Canfield,
State v.
917 although
specify
Dean failed to
the basis for
Nevertheless,
Ct.App.1996).
P.2d 561
withdraw,
supreme
his motion to
the
“in
App
ruling Reyes
preclude
does not
this court
(Ostler I),
recognized
court
this
nar
reviewing
plain
argument.
from
jurisdictional
row
exception to the
rule
challenge
we review his
under
although
Price.
concluded
We
that
district
plain
the
error standard.
jurisdiction
courts lack
under Price to consid
untimely
er the merits of
motions to with
II. Plain Error
guilty pleas,
may
alleged
draw
we
review
argues
10 Dean
for the first time on
violations
of Rule
the Utah Rules of
of.
appeal that the
plain
trial court committed
...
plain
Criminal Procedure
for
error.”
error because he was never advised of his
Melo,
392,¶ 4,
App
State
2001 UT
right
by
to a
impaHial jury,
trial
646;
accord
State
2000 UT
opposed
by jury.
as
to a mere trial
As we
186,¶ 11,
App
Hittle,
concluded in
which discussed identical
recently
7 The
issues,
court
eliminated
trial
“[t]he
court did not
com
rule,
exception
jurisdictional
this
stat-
ply with
rule
because it failed to advise
ing
appellant
that because the
failed to file a
right[s]
Defendant of
speedy [public]
to a
guilty plea,
motion to withdraw his
the court
impartial jury]
orally
trial
[and
either
or
challenge
lacked
to address his
plea
Therefore,
in the
affidavit.
plea,
plain
the
even for
error. See State v.
App
court erred.”2
2002 UT
(“This
13,¶¶ 3-4,
Reyes, 2002 UT
H09
not an
CONCLUSION
in Martinez was
issue
the defendant
id.
in that cáse. See
the court
¶ 13 “Because the trial court committed
Martinez overrules Tar-
we cannot
advising
rights,
error in
of his
[Dean]
Hittle.
naiviecki
[the
we reverse
denial of Dean’s motion to
Visser,
¶ Next,
light
“in
[State
plea,
withdraw his
vacate his
conviction]
(Visser I),
P.2d 998
proceedings
remand for
consistent with this
grounds Visser
on other
rev’d
opinion.”
at 11.
Id.
and Rule
the error
12423]
¶ 14 I
T.
CONCUR: PAMELA
GREEN-
trial court.”
have been obvious to the
should
WOOD, Judge.
¶ 18,
at
BENCH, Judge (dissenting):
Finally,
trial court’s omission was
*4
with a
because the omission dealt
harmful
¶
say
respectfully
15 I
dissent.
I cannot
right.
It is well
constitutional
substantial
“plainly
the trial court
erred” in not
will
under
law that we
established
Utah
advising
right
“speedy”
Defendant of his
to a
analysis
presume
plain
harm under
error
by
“impartial” jury.
trial
to inform a defen
a trial court fails
when
¶
a
16 To establish
rights under rule
dant of his constitutional
“ ‘(1)
(2)
exists;
must show that
the
See,
Tarnawiecki,
1222,
e.g.,
11.
error should have been obvious to the trial
App
(presuming
186 at 18
harm
2000 UT
(3)
court; and
the error was harmful....’”
to inform Defendant
when trial court failed
(Utah
Ross,
236,
v.
P.2d
238
State
951
Ct.
“speedy
to a
trial
that she was entitled
omitted)
(citation
(emphasis
impartial jury”);
App.1997)
v.
add
before an
State
ed).
28,¶¶ 25-26,
App
1065
repeatedly
2000 UT
“Utah courts have
held that
court failed
(presuming harm where trial
a trial court’s error is not
where there
inform defendant that he would waive
appellate
guide
to
trial
is no settled
law to
the
by
rights
pleading
Braun,
certain constitutional
239;
Id. at
also
court.”
see
guilty)....
1336,
Ct.App.1990)
P.2d
“
(rejecting
a claim of
error where
‘the
Hittle,
App
P.3d 101
not have the benefit of
(first
omitted).
[a
trial court did
trial
citation
the
” (citation omitted)
appellate
later]
decision’
by failing
plain error
court committed
(alteration
original)).
disagree
in
I
with the
right
speedy
trial
advise Dean of his
majority’s
trial
impartial jury.4
conclusion that
the
the
oral
ed at least as much as would
mere
3. The dissent
that "Tamawiecki’s reliance
“right
speedy public
upon
suspect given that
the
trial
J] is ...
Visser I
recitation of
[Visser
by
Supreme
impartial jury.”
in
was reversed
the Utah
Court
before an
II,
(empha-
Visser II was decided on
III"
[Visser
Visser
2000 UT
P.3d
14, 2000,
added).
November
after both
sis
15, 2000,
case,
was decided on June
and the
plea
which
present
taken
In the
Dean’s
was not
denial Dean's motion to withdraw
trial court’s
of
a mid-trial context. Because the trial court's
in
11,
guilty plea April
2000.
colloquy
given in a mid-trial
was
context
by
I
in this case was still constrained Visser
that the trial had been
there was no indication
date of its denial of Dean's motion to
as of the
delayed,
supreme
II
the
court in Visser
assumed
withdraw.
already received the benefit of his
that Visser had
Similarly,
speedy
right.
the
trial
See id. at 14.
Moreover,
supreme
VisserI'
the
court reversed
participation
supreme
court held that Visser’s
because a defendant is not entitled to be
not
jury
process was instrumental
his own
selection
trial before an
informed of
voluntary.
ensuring
See id.
that his
was
impartial jury, but because the record in that
case,
present
Dean’s
had not
at 16. In the
trial
been informed of
case reflected
Visser had
jury
yet
II,
yet begun,
Thus,
been selected.
and the
had not
rights.
court held
In Visser
say
in this case
we cannot
that the record
light
colloquy,
that the trial court’s
mere oral
"at
as much as would the
plea, provided
reflects
least
an ade-
mid-trial context
speedy public
'right
trial
recitation of the
quate
basis in the record to conclude that
jury.’”
impartial
Id. atH13.
strictly
before an
complied
trial court
with rule 11....
personal trial ex-
[T]he record details Visser's
decision,
light
we decline to address
up
plea agreement.
In
of this
perience
point
of his
remaining arguments.
experience communicat-
Dean’s
We conclude that this
advising
rights
that Tamawiecki and Hittle have been
error in not
Defendant of his
Menzies,
the trial court in
overruled. See
Tamawiecki and its but this was expressly.
never done I therefore cannot processing computers, 1. Controversies such as the one before us should of word it would not relatively easy practical (or be to avoid as a matter. modify existing prepare be difficult to forms problem The we now face could have been avoid- ones) precisely new track a defendant’s plea agreement exactly ed if had tracked rights. rights mentioned in rule 11. In the modern era