State v. Gailey
379 P.3d 1278
Utah
2016
Check Treatment

*1 Rocky power purchase agreement with

MountainPower. GAILEY, Appellant,

Shanelle Utah, Appellee.

STATE

No. 20130637 of Utah.

Supreme Court August 1, 2016

Filed

violated-the Plea Statute does Withdrawal altogether foreclose the rather, proce- peal; provides it an alternative Skibine, Lilly, E. S8. Nathalie Catherine ' plea. Although challenging route for dural City, appellant for Lake Salt Gailey argues hypo- Ms. she could Gen., Christopher D. Reyes, Att'y Sean D. thetically state-paid counsel or be denied Gen., Ballard, Att'y appellee Asst. of counsel in effective assistance the PCRA proceeding, render which she claims would opinionof Durham authored the Justice proceeding inadequate substitute Court, in Himonas which Justice and ordinary for an she has not chosen to appeal, joined. Justice Pearce pursue proceeding such a and therefore ripe Justice these claims Chief Lee filed are review. Associate judgment, in which opinion concurring the BACKGROUND joined. Chief Durrant Justice charged Gailey bur- T4The Ms. Appeals Certification from the Court On theft, glary, alleg- criminal and mischief Durham, opinion of the Court: Justice edly breaking into her mother's home and stealing keys. and her mother's cash car Ms. INTRODUCTION Gailey's Early case was Case assigned the course of a hours June T1 Over few (ECR) 17, 2018, Resolution Court. On June Gailey entered defendant Shanelle Gailey appearance, entered her initial appearance in the court her initial district counsel, appointed was and her waived charges, burglary-related appointed was preliminary hearing. to a After the State counsel, preliminary her waived agreed drop charges and two reduce trial, hearing pled guilty, and waived burglary charge trespass, eriminal sentencing, waiting period for received and agreed plead guilty. Gailey judgment and sentence. person may 5 A criminal now wishes trespass under Utah Code section 76-6- unknowing involuntary, but Utah 206(2)(a) unlawfully if she or "enters remains (Plea Stat- Code section 77-18-6 property and ... to cause [an] intends ute) Gailey'splea to a direct annoyance."Ms. affidavitstated cuts off defendant's announced, requir- March Lake Coun- appeal that "On Salt once is pursue plea ing the defendant instead ty, Gailey unlawfully onto Shanelle entered collaterally claims through withdrawal intending an- property another's cause an noyance." Gailey's counsel read this (PCRA). Act Remedies Post-Conviction judge to the asked statement argues-contrary to our caselaw- happened. if not Ms. what The that the Plea Statute followingexchange place: then took appeal, off cut direct but merely exactly either Not but allows defendant DEFENDANT GAILEY: house, stayed I my mother's but it's there If the relief. that, preclude in fact annoy say statute does I- I didn't did her. will I intend to but did. argues then Ms. I, you unconstitutional because article THE it like start- COURT: sounds So really saying you didn't do Utah ed by "iln prosecutions criminal the accused shall have you then came around and those facts basicallythe of the case? are ... all cases" she facts Yeah, they are. not an DEFENDANT GAILEY: the PCRA claims that adequate for direct substitute you that those THE COURT: So do admit your facts es- described and conclude 13 We reaffirm our caselaw sentially happened the case? what bars direct that the Plea Withdrawal Statute Yes. GAILEY: DEFENDANT place, appeals sentencing takes and re- once pursue postconviction quires defendants Okay. you pleading THE And COURT: relief, you're guilty charge guilty to the that Ms. also determine been of it? GAILEY:Yes. DEFENDANT limitation Utah Code section 77-18a- 1(1)(a), permits which defendants an judge informed "as a ... a final [from] matter giving up "im- pleading guilty would be she conviction, judgment of verdiet rights," including the portant constitutional plea." appeal any right to trial and the 5110The Plea Withdrawal Statute further at trial to an court. The *3 appeal by requir- limits a Gailey judge also advised Ms. waiv- ing plea the defendant to either withdraw the waiting period ing two-day for the minimum prior sentencing, pursue postconviction or she would waive chance she sentencing. Gailey argues relief after Ms. guilty have to withdraw her would otherwise provides the Plea Withdrawal Statute plea, that she indicated under- permissive relief as a alterna- judgment stood and the court then entered pursuing appeal, not a tive manda- and sentence. replacement. tory "[tlhere She contends that filed notice with- nothing language [Plea With- filing plea. a motion to out withdraw her The explicitlystrips Statute] drawal appeals sponte motion court of sua offered a jurisdiction," and that our mis- caselaw has summary disposition "on the basis that takenly interpreted requiring as jurisdiction lacks thle] court because there pursue postconviction defendants relief ex- timely guilty was motion withdraw the clusively. plea." "assert[ed] then opportunity clarify 11 We use this process nature of the under which her precedent holding reaffirm our that the proceeded precludes meeting case the re- is a Statute bar perfecting appeal, quirements for an and ... appeal post-sentencing. next con- We implicated by there are constitutional issues arguments, sider Ms. response, In process." the court of and conclude the Plea Withdrawal Stat- peals withdrawing an the mo- issued order ute does not on its face violate the constitu- summary disposition, tion for and ordered provides tional because it go solely case that the forward mechanism review and relief from jurisdictional questions and constitutional unknowing involuntary plea, including ap- appeals court of raised. The certified case Finally, pellate review. we conclude this court, to this under applied statute is unconstitutional as 78A-8~102@8)(b). Utah Code section as she has not encountered any deficiencies-specifically, deprivation OF STANDARD REVIEW ineffective assistance appellate jurisdiction 18 "Whether pursuing post- counsel-associated question exists is a of law which review relief, conviction While PCRA does Migliore Livingston for correctness...." v. require attorney appointed, to be Fin., LLC, 9, 15, € 347 P.3d 894 judge may appoint nevertheless choose omitted). constitutionality of a {citation The one for the defendant. And while effective statute is also a of law reviewed post- assistance of counsel is not mandated State, Injured Ass'n correctness. Workers v. proceedings, 14. UT 374 P.3d pursued and we therefore do know whether she would encounter ineffec- ANALYSIS Thus, tive assistance of counsel. these claims ripe for are not review. I, T9 12 of Article the Utah pros eriminal "[in I. THE PLEA WITHDRAWAL STAT- shall have ... ecutions the accused REQUIRES PROCEDURALLY UTE in all cases." This DEFENDANTS TO POST- PURSUE unlimited, however, "the must be RELIEF CONVICTION POST-SEN- taken within limitations and restrictions TENCING orderly procedure as to time and as the legislature enacted Legislature may prescribe." v. Kim Weaver signifi Statute with two (1921), bail, 202 P. One such Utah ("Although pro the retroactive P.3d.585 1989 and amendments cant substantive holding practice of the statute did not motion of dictum to The 1980 version endorse, apologize we neither for our withdrawing do a time limitation include "plea provided that a plea; instead guilty jurisdictional assessments of the nature only may be withdrawn period Abeyto or no contest thirty-day filing good and with leave upon cause shown clearly nor from what is Ostler retreat Copm (1982); holding Reyes, imposes all of UTAH 77-18-6 which court." State, T jurisdictional bar on late-filed motions to Grimmett 806; Abeyta, 994- guilty pleas."); withdraw curiam) (Utah 1993) (per (allowing the ("Section 77-18-6, 12, 152 almost to withdraw a however, amended was years post-sentencing). Under the 1980 three jurisdictional impose a strict time 1989 to statute, judge "even when version limit."). knowingly and volun found that a *4 2008, legislature 15 In made the most entered, tarily or she still retained broad he substantive amendments the Plea recent cir other discretion determine whether by incorporating two ma Statute Withdrawal good in the case constituted cumstances First, changes. legislature jor removed allowing the defendant withdraw cause deadline, filing thirty-day and instead Ruiz, 1 plea." his v. 2012 UT 282 State plea required "request a to withdraw a that P.3d 998. by guilty ... motion shall be made before legislature But in 13 1989 amended Cop®§ Urax sentence is announced." 77-13- filing thirty-day a the statute and created 6(2)(b). the first time Second-and the, to with limitation provided history 1-the a statute's Copr § guilty plea a Utax T7-13- draw remedy for relief where the de (1989). 6(2)(b) provided that this The statute challenge guilty plea a but fendant wishes began to run at "en thirty-day limitation remedy This the deadline. re has missed interpreted as try plea," of the which we plea quires any post-sentencing with referring thirty days entry of after pursued challenges through "shall" be drawal thirty days from judgment, final postconvictionrelief with the accordance Ostler, 68, colloquy. v. 2001 UT plea State Utah Rules of PCRA and rule 65C the «[11, P.3d 528. 31 77-18-6(@2)(c). § Civil Procedure. Id. Abeyta, 14 In State v. we remarked interpreting the 2008 T16 Our cases ver period, thirty-day [to "the after this Statute sion extinguished." guilty pleal a 852 withdraw im principle that this statute reaffirmed the Although P.2d at 995. we later characterized poses procedural a bar. See 2007 dictum, Abeyto we reaf statement ("Because 11, 25, 1 152 P.3d 306 UT Grim- principle in cases firmed the several untimely ... mett's motion to withdraw was thirty-day limit to a expressly be held jurisdiction no to consider his chal we have plea ap procedural bar to withdrawals and guilty pleas."); lenge validity of his to the Ostler, pleas. peals guilty See UT 61, 14, Rhinehart, UT State v. 68, 10, (noting if a defen T 81 P.3d 528 ("[Cllaims of ineffective assistance deadline, thirty-day filing dant misses the challenges in the context raised pow court of the "deprive the district governed guilty pleas to the lawfulness Reyes, 2002 plea"); v. er to review State therefore are by section 77-18-6.... ("[Blecause 13, 3, Reyes did 40 P.3d 630 guilty plea jurisdiction to consider Ms. Rhine- his within move withdraw without 18, claim."); Oft, plea, 2010 UT thirty days entry of the after the hart's State ("[F ap jurisdiction guilty lack to address the issue to withdraw a 247 P.3d lailure frame see plea within the time dictated Merrill, peal."); 2005 UT above, thirty-day limitation is found incorrectly the 1989 detailed conflated 1. State v. Merrill articulating only in version of the statute while statute and the 2003 statute the 1989 thirty-day filing PCRA only limitation and the as two version is found the 2003 ~ withdrawing plea. options alternative of the statute. 585. As 25, 30, 39, 1% (citation 15-16, omitted). T4 deprives tion 77-18-6 the trial court jurisdiction appellate to review the courts Because the defendant Grimmett failed Smith, validity plea."); sentencing, his before held withdraw (TIlf App 263 P.3d 1219 his "we have to consider timely to file a motion defendant fails challenge validity pleas." to the of his guilty plea, his withdraw Id. %25. jurisdiction to any consider claim ex lacks prior case- 20 We therefore reaffirm our cept.a challenge to If the sentence.... entered, holding law that after timely motion withdraw not file a motion to with- filed, guilty plea must be guilty plea directly plea, draw a [PCRA]."). pursued under the but relief must Gailey challenges 117 Ms. our in- caselaw through the PCRA and 65C of rule the Utah Statute, terpreting the Plea as- Rules CivilProcedure. serting nothing lan- "[there current statute guage, former explicitly jurisdiction." Al- strips IL MS. GAILEY'S CONSTITUTIONAL though language current APPEAL RIGHT TO AN HAS NOT specificallyprovides "[alny challenge BEEN VIOLATED guilty plea [pre-sentencing] made shall PCRA]," pursued under Copm Urax [the asks this court to reconsid Ms, 77-13-6(2)(c) added), (emphasis regarding er caselaw the Plea Withdraw *5 argues language interpret- that this could be light al Statute in of the recent United States directory mandatory, as not and and Supreme precedent recognizing the Court ed right not cut off a therefore does defendant's plea-bargaining process. critical nature of the appeal post-sentencing, to a direct - | Frye, --, See Missourt v. U.S. (2012)("In reject reading of Gailey's 18 We Ms. 8.Ct. 182 L.Ed.2d 379 justice today's system nego criminal ... the Although statute. the 1989 of version expressly provide not did that the bargain, statute plea tiation rather than the right plea trial, extinguished unfolding withdraw always of a is almost after deadline, thirty-day proce- we inferred a defendant."); point critical for a Lofler -- language bar from its dural and structure. --, Cooper, 132 S.Ct. U.S. longer on this is no Reliance inference neces- (2012)(noting per L.Ed.2d that 94 sary. plain language current Plea cent of state convictions are the result of explicitly provides Withdrawal Statute rejecting pleas and the notion that a procedural roadmap post-sentencing for mo- wipes "fair perform trial clean deficient plea-and through tions to withdraw a that is during plea bargainin ance defense counsel postconviction relief. g")2 19 There also indication that the plea claims her was intended relief aas unknowing involuntary there- permissible alternative to a route appeal fore her waiver to a direct peal; goes way. fact the inference the other Further, process. violated due Ms. example, In we noted argues that the PCRA does sat- "legislature apparently this amend- enacted isfy appeal constitutional her an response ment to our decision appeal-the Ostler.... The 2008 amendment eliminates a direct because-unlike thirty-day deadline] and instead man- guarantee state-paid [the does or the counsel any motion plea dates withdraw effective of counsel in a ' before sentence filed is announced."2007 UT plea. "[iinnocence, 2. It is also true that while a rele- Plea-Bargaining Frye, Law Lafler and After Dug. charged vant consideration (2013) (citing police L. Rev. 615-16 two considering offense who whether percent sixty-four scandals wherein 81 criminal actual- guilty plea, dispositive not to enter a is not a ly pled guilty exonmerees innocent to false prevent consideration and criminal de- charges). pleading guilty." Covey, fendants from RussellD. PCRA, has the 25 Under Ms. do not reach 123 We unknowing Gailey's plea judgment from the final involuntary, been asked we have postconviction proceeding the district fact, $ court. both only Urax 78B-9-110.In whether the Withdrawal determine Cop® Gailey pursue requirement that Ms. Frye-the Statute's cases Ms. relies Lofler consti postconviction relief violated her upon importance emphasize appeal. hold that the tutional We bargaining proceedings-are appeals not, on its Statute does postconvictionproceedings. Laffer, 182 S.Ct. face, ap constitutional violate the 1888-84;Frye, at at 1405. There- S.Ct. simply It peal. dictates mech fore, hold that the Plea Withdrawal Stat- claim; it alto pursuing anism for does not facially constitu- ute does withhold the gether also hold foreclose relief3 tional Gailey's claims to Amendment Sixth assis state-paid counsel and the effective Appointment B. Right Counsel-and ripe, tance of as counsel Assistance Counsel Effective yet petitioned the court counsel right to 126 The Sixth Amendment do not that counsel know whether first extends therefore hold would be ineffective.We right. This as includes indigent defendants. has not been violated. Finley, Pennsylvamia v. 481 U.S. (1987)("[Dle- 1990,95 L.Ed.2d 539 107 S.Ct. Re- A. The Fundamental Constitutional indigents of counsel to on first nial quirement Appeal May Be to unconstitutional dis amount[s] Through Alternative Procedur- Served against poor."). Indigent de crimination al Routes statutory fendants maintain Notwithstanding unavailabili state-paid counsel See Utah case, ty appeal in § 77-32-304; eriminal of a direct Holden, Gardnerv. Code Gailey is not left chal without recourse (Utah 1994) (articulating lenge post-sentencing; she *6 assignment of "provides for the may challenge postconviction in a expense only during trial counsel at state the PCRA, in provided the proceeding including right or proceedings appeal the first of plenary ap an eventual review conviction other remedies before after 11, State, pellate UT court. Grimmett v. 2007 to in inter that the the considers attorney ("Our 26, today 152 does P.3d 306 decision justice."). of est remedy, leave Grimmett without how ever, additionally the have 1127Defendants express Statute] [The of on right to counsel the effective assistance ly untimely states an Carver, 920 appeal. Bruner v. P.2d guilty plea pursued 'shall be under 1996) ("The (Utah Due Process of 1157 of the Utah Rules PCRA and rule 65C guar of the Fourteenth Clause Amendment Procedure."); see Latorre v. United Civil of to effective (8th 1999) antees assistance States, 193 n.1 Cir. F.3d 1037 counsel."); Lucey, Avitétsv. 469 U.S. appellate ("Our upholding of direct- decisions waivers (1985) 387,396, 105 83 L.Ed.2d 821 S.Ct. rights the avail appeal explicitly have noted ("A adjudi appeal as of ... is first attack."). [postconviction] ability of collateral VIII, 12, in argues constitution State that "the article section concert with section authority regu- granted legislature always to unique between the article connection ju- appellate how a invoke Defendant must express guarantee and an to I of late risdiction," power legislature has the because the give grant practical effect to to of the constitution to VIII, under article section 5 upholding right."). Plea With- original regarding create statutes may legislature not because the drawal Statute jurisdiction. provision of But this chooses-regardless any legislation it enact grant power eviscerate to 'does not litigants' rights-but because including rights, other constitutional facially the constitutional statule does not right violate I, in 12. See State v. appeal found article I, Lara, 70, 21, ("Article [ UT 124 P.3d 243 2005 1284 process argument if

cated in with due of law the the merits of his have not accord been addressed, appellant appears [the defendant] does have effective assis abe prime candidate to benefit from the district attorney."). of an tance counsel."); appoint court's discretion %28Neither Stone, 148, 11, App v. 2018 UT T nor the effective assistance counsel ("[Defendant] has not demonstrated that constitutionally statutorily counsel he would be forced to relief under the guaranteed postconviction proceedings. counsel."). PCRA without the aid can We State, Hutchings v. not declare the PCRA abe consti (noting that defendants "no tutional violation right to statutory or constitutional counsel on hypothetical counsel based on a relief"); postconviction petition a civil future counsel.4See Fundamental denial 722,752, Thompson, 501 U.S. Coleman v. Latter-Day ist Church Jesus Christ (1991)("'There 2546, S.Ct. L.Ed.2d Lindberg, Saints attorney in no constitutional state ("The ripeness P.3d 1054 doctrine 'serves postconviction proceedings. Consequently, a prevent issuing opin courts advisory petitioner constitutionally cannot claim inef ripe adjudica on ions' issues proceed fective assistance counsel (citation omitted)). (citations omitted)). Thus, ings." tion." argues that Withdrawal Statute un reasoning applies 130 This same to Ms. infringes constitutionally on Gailey's argument that she be de- it mandates review under prived guarantee of effective assis- PCRA, guarantee coun where there is proceeding. counsel the PCRA tance recognize sel. that the PCRA While we does provide "[nljothing The PCRA guarantee state-paid counsel, pro it does chapter creating shall be construed as may, upon request of vide that "the post- to the effective assistance of indigent appoint petitioner, counsel on a counsel, and relief not be represent petitioner." bono pro basis granted claim that Cope 78B-9-109(1) (emphasis Urax add Copr $ counsel was ineffective." Urax 78B- ed); Merrill, accord State 9-202(4). But unless and until Ms. (The 47,T expressly PCRA denied the effective assistance of appoint authorizes district proceeding, her claim that it un- pro pursuing bono basis to a defendant constitutionally denies her relief."). post-conviction ripe. Gailey argues permissive that this enough, language is not "is not because she CONCLUSION position prove to this Court that she Today holding reaffirm our caselaw *7 in appointed will not be PCRA counsel procedural- that the Plea Withdrawal Statute argument why future." .This demonstrates ly cuts off a defendant's to a direct Gailey's claims of constitutional inade However, appeal post-sentencing. defendants quacy premature. we are As observed remedy are not left a to without Merrill, guaranteeing not State v. "Iwlhile pleas invalid to and review of such counsel, appointed deny the PCRA does counsel, challenges; they may pursue their claims col- defendants access to [The defen laterally through postconvictionproceedings. dant] has no demonstration PCRA made that Gailey's arguments As for Ms. that himself, petitioners like who seek to with guarantee state-paid PCRA does not generally, ever, pleas, draw are required counsel, by to their claims unaided or the effective assistance of 585; requesting 34, 47, ruling conclude that she is a counsel." 2005 UT , hypothetical possibility of ineffective as- Grimmett, 2007 UT 11 ("Given or the the cireumstances that sistance denial have led counsel. point [the to ripe defendant] and the fact that these issues are not determine Grimmett, ("Grimmett greatly ainpears 4. As in would bene- 152 P.3d 306 to be appointment post- prime fit from her a candidate to benefit from the district counsel."). proceeding. appoint See court's discretion to they certain means. And treat a and times procedurally review. Because comply as a waiver of the appeal, we failure pursuing this direct barred litigation. raise such issues later in the dismiss. the law 136 These sorts rules-in Lee, concurring in Associate Chief Justice procedure- our rules of preservation judgment: thought impinge on never been deprived has not been appeal. Shanelle Yet one, and appeal. of an filed proceeds premise they She majority on the do, opinions it in in this case. considering our It characterizes the Thus, Stat- effect the Withdrawal that "cuts off" Statute as a law 77-18-6, ute, is not "right to a direct once Code section Utah announced," proceeds question off a "cut[{] only to limit the Supro T 2. It is appeal." "the ... an ade- therein, by a rule may issues raised quate appeal." Supra for 'a substitute | preservation 11 2-8. or waiver. Statute does 134 The Plea Withdrawal stops resolving court 37 The short says simply It that a on its merits. the heart of the issue foreclose Because may presented not seek to "withdraw issue concerns wheth guilty" at after a "sentence is time appeal encompasses er the Cops 77-18-6(@)(b). announced." Urarx counsel, paid has preservation, or in other This is a rule counsel, deprived paid been majority words, says only guilty plea claim to concludes It waiver. challenged further-cither not be ripe." "state-paid Supra is "not counsel" it appeal-if or on is not with- district court it And dismisses the without 28. Thus, Gailey sentencing. prior right. opining3 drawn of such a the existence simply appeal; not lost her she proceeds implicit Yet on the (the specific issue waived the to raise premise right to that the state constitutional preserving validity guilty plea) of her appeal encompasses paid counsel. required by argument at time It so the lines of its between discussion governing law. paragraphs and 29. There the court acknowledges commonplace. that there is neither 85 Rules of this sort are "right "state-paid nor a to effective counsel" They in our caselaw under the embedded postconvictionpro- "in counsel" preservation1 law of reflected proceeds it require par ceedings." Supra "T28. But procedure.2 Such rules rules "although paid-counsel arguments specified note state ties to raise issues or at Rhinehart, holding; accurately, yields no 3. More the court % 167 put ("Except proceeds in which a thumb on the scale P.3d 1046 those instances nonetheless as-yet anticipation court's or where In of an errors affect the for future reference. preserved expressly majority proceeding, of error are com- claims unfiled PCRA peal, greatly acts as conviction or a waiver benefit ments "Ms. flaws."); Pinder, postcon- of earlier appointment of counsel in from the proceeding." Supra (precluding seems n. 4. That viction % objections raising evidentiary defendant from question presented inappropriate. If is un- trial; putting preserved explaining ripe, properly our thumb on at that defen- we have no business *8 evidentiary arguments be- any And in event these the scale for future reference. dant "waived them). preserve" properly question in has little or he did not the briefed this court cause anticipated by nothing the to do with the issue 12F) (stating general Uram R. P. the 2. See Crm. briefing majority. on We have no the standard timely to "[flailure rule that of the defendant pro appointment counsel under Utah of bono objections requests make or or to raise defenses Code section 78B-9-109. prior time or at the which must be made to trial opine not on Gai- For would thereof"); reasons I waiver the shall set court these constitute agreed pro Candland, ley's even if I need for bono counsel " analysis. To an- the balance of the court's (explaining taken in that a 230 where not statute that was nounce our views a on "many consti- rule accordance with criminal yet been filed entry a challenges briefed on case that the of a to tutional troubling advisory opinion. very appeal). being me as a on strikes are foreclosed" from raised 1286 of

guaranteed, the PCRA 'the a waiver the to raise the that forfeiture in subsequent proceedings. request indigent may, upon issue court the of an petitioner, appoint pro on bono counsel a may subject to constitu- Such rules be (cita- represent petitioner,'" basis the Id. challenging challenge, But tional the basis omitted). tion it constitu- And deems they them be that eliminate the would not basis, says argument unripe on that It tional appeal. of preservation of Rules declare the PCRA "[wle cannot always forfeiture foreclose the waiver to be the a constitutionalviolation appeal. They on cannot raise issue appeal based on a on counsel alone, on that basis un- unconstitutional hypothetical Supra denial of future counsel." prepared say less that such rules added). 29 (emphasis per se unconstitutional. implication is that Gailey's state [44 I see no blanket kind basis im- may be constitutional Certainly Gailey conclusion. identi- given plicated ultimately if she is counsel fied one. in That seems proceeding. future PCRA problematic, argument question At oral as the arose legislature's power to dictate rules the impulse I in the favor of understand governing timing filings in district Perhaps court avoidance. constitutional of preservation or the in the Plea court law perceives its decision as matter restraint. may ques- be a Withdrawal Statute. fair That opposite, By kicking it strikes me But as the tion for road, implies in a See consideration future case. the can down Const, art, appoint- require constitution state VIH, § 4 (providing Utax proceeding ment in a chal- power "adopt this court has the rules lenging guilty plea. of a the voluntariness procedure and to be used in evidence "manage of the state" and to significant I proposition, That is a rule," process" "by recognizing leg- while lightly would assume power "upon islature's to "amend" rules such paid implied by the state constitu vote of two-thirds all members both "right appeal," as those words were tional houses"). I no originally reason challenged understood. 4And But one has the Plea 4. Statute under article here, even resolve that us to matter implicitly. challenge, in And absence such filing requirement prescribed this statute Instead, I affirm would thresh- range any is no of a different than of other reaching old basis identified above. Before preservation or rules of waiver set forth else- question PCRA an ade- whether the in our where law. quate for an I first substitute would meaningfully ask such implicate the state Such rules do impinged by the I Statute. I constitutional would it not. I hold that was would would hold basis,. affirm that implicated is not rules dictating timing means proper preserving court. And an issue the district

I would the failure to follow deem rules na (third interpret original) permanent'" I to be alteration in would constitutional Madison, (1 Cranch) encompass (quoting Marbury the core of an 5 U.S. elements 137, 176-177, (1803))). traditionally inquiry at the time L.Ed. That understood Constitution, framing briefing analysis. of Utah full careful I deserves away Houston, here. I would not it And assume T4 J,, (Lee, concurring part concurring examination of the decide careful without (to judgment) (presenting "premise{s]} of various historical record assess whether the tradition- ' originalism understanding "appeal" encompassed al of an interpretation," in- counsel). paid briefing We receivedsome cluding 'evolving rooted "constitution (pursuant sup- ca- on this case standards' ... 'written' *9 order), briefing pable 'form{[ing] para- plemental but we have no need fundamental nation,' establishing given or of 'cer- resolve it waived mount law the guiltyplea 'designed tain limits not to transcended"

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