State v. RippeyState v. Rippey
Attorneys*:
Sean D. Reyes, Att‘y Gen., William M. Hains, Asst. Solic. Gen., Salt Lake City, for appellee
Ann Marie Taliaferro, Dain Smoland, Salt Lake City, for appellant
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which JUSTICE PETERSEN, JUSTICE HAGEN, JUSTICE POHLMAN, and JUDGE LUTHY joined.
Having recused himself, ASSOCIATE CHIEF JUSTICE PEARCE did not participate herein; COURT OF APPEALS JUDGE JOHN D. LUTHY sat.
* Additional attorneys: Benjamin Miller, Debra M. Nelson, Salt Lake City, for amicus curiae Utah Indigent Appellate Defense Division, in support of appellant; Dallas Young, Staci Visser, David Ferguson, Salt Lake City, for amicus curiae Utah Association of Criminаl Defense Lawyers, in support of appellant.
INTRODUCTION
¶1 Stephen Rippey pled guilty to one count of aggravated sexual abuse of a child and one count of object rape of a child. He was sentenced to serve two prison terms of fifteen years to life, which were ordered to run concurrently. Ten years after his conviction, a district court reinstated Rippey‘s time to file a direct appeal. On appeal, Rippey challenges several aspects of his plea, conviction, and sentence. We recalled his appeal to address a threshold issue: whether the Plea Withdrawal Statute (PWS)1 is constitutional.
¶2 In this opinion we reach solely that issue. We hold that subsection (2)(b)‘s preservation rule and the corresponding waiver housed in subsection (2)(c) of the PWS violate the separation of powers required by the Utah Constitution. Because those provisions are unconstitutional, the PWS does not bar Rippey‘s challenge to his guilty plea and his appeal is now governed—as are similar challenges brought by other defendants—by our standard rules of preservation. Having resolved Rippey‘s constitutional challenge to the PWS, we instruct the parties to brief the merits of
BACKGROUND
¶3 The State charged Rippey with fivе first-degree felonies—three counts of aggravated sexual abuse of a child and two counts of object rape of a child—for acts that allegedly occurred between January 2005 and July 2008. Rippey pled guilty to one count of aggravated sexual abuse of a child and one count of object rape of a child. In exchange for his guilty plea, the State dismissed the other charges and amended the information to specify that the charged offenses occurred in December 2007.2
¶4 Before Rippey entered his plea, the court engaged in a colloquy with him. Rippey told the court that he had reviewed the plea statement with his counsel, and thаt he understood the rights he was giving up by pleading guilty. He also told the court that he could read and understand English, had not taken drugs or alcohol in the previous forty-eight hours, and was not aware of mental or physical impairments preventing him from understanding the ramifications of his guilty plea. Finally, Rippey told the court that he was “still willing to go forward” with the plea despite the possibility that he could spend the rest of his life in prison.
¶5 After this exchange, Rippey signed a plea form certifying that he believed he was “of sound and discerning mind“; “mentally capable of understanding the[] proceedings and the consequences of [the guilty] plea“; and “free of any mental disease, defect, or impairment that would prevent [him] from understanding what [he was] doing or from knowingly, intelligently, and voluntarily entering [his] plea.” The plea form also described the requirements and limitations for withdrawing a guilty plea and explained that
¶6 Rippey‘s counsel then provided the district court with a factual basis for the guilty plea. Rippey attested to its accuracy and affirmed that he was, in fact, guilty of the offenses. The court accepted Rippey‘s plea and told him that if he wanted to withdraw the plea, he would “need to ask [the court] in writing sometime prior to [his] sentencing date.” Rippey did not move to withdraw his plea before sentencing. He was sentenced to two concurrent prison terms of fifteen years to life.
¶7 Rippey did not appeal his conviction within the permitted timeframe. About a year after his sentencing, however, he filed a pro se petition for post-conviction relief under the PCRA and rule 65C. In the petition, Rippey listed seventeen claims for relief.
¶8 At the frivolity review stage,3 the district court dismissed eight of Rippey‘s seventeen claims for relief. The State then moved to dismiss the remaining claims for failure to state a claim upon which relief could be granted, arguing that Rippey could have but did not challenge the validity of his plea before sentencing, that he entered his plea knowingly and voluntarily, and that he could not show that his trial counsel was constitutionally ineffective.
¶9 At a hearing on the State‘s motion to dismiss, Rippey, representing himself, asserted that his mental health records would demonstrate both that he was incompetent when he entered his guilty plea and that his trial counsel was ineffective. The State responded that because Rippey did not move to withdraw his guilty plea before sentencing, all his claims except ineffective assistance of counsel had been waived. And, the State added, Rippey could not show that his trial counsel performed ineffectively.
¶10 The court granted the State‘s motion to dismiss. In its written dismissal order, the court reasoned that Rippey‘s plea challenges were procedurally barred because they could have been but were not raised in the district court or on direct appeal. And it explained that Rippey‘s ineffective assistance of counsel claims, though not procedurally barred, were “without merit.”
¶12 The court denied Rippey‘s requests for the appointment of counsel, though it did “reserve[] the possibility that the need for counsel m[ight] become more apparent as the case proceed[ed] further.” In the court‘s view, the appointment of counsel was not yеt “necessary” under the PCRA because an evidentiary hearing would not likely be needed, and because Rippey‘s petition did not present “complicated issues of law or fact.”4
¶13 Rippey appealed the post-conviction court‘s dismissal of his petition. At this point, the court appointed counsel to represent him. Regarding the challenges to the validity of his plea, Rippey argued to the court of appeals that because the PWS mandates that guilty plea challenges not raised in a motion to withdraw be raised under the PCRA, he had not waived his claims in post-conviction proceedings under the PCRA by failing to raise them on appeal.5 And Rippey maintained that his ineffective assistance of counsel claims had merit.6
¶14 The court of appeals determined that Rippey‘s claims, other than ineffective assistance of counsel, were not preserved.7 Accordingly, the court did not address the unpreserved claims on their merits.8 And the court upheld the district court‘s dismissal of Rippey‘s ineffective assistance of counsel claims.9 It concluded that although Rippey had made some allegations that, “if taken as true,
¶15 Ten years later, Rippey—again acting pro se—moved to reinstate the time to file a direct appeal in his criminal case. He attached to the motion a letter that he purportedly wrote to his trial counsel a few days after his sentencing. In the letter, Rippey instructed his counsel, “Appeal if possible.”
¶16 The district court denied Rippey‘s motion. Rippey appealed, and the court of appeals summarily reversed the district court ruling because Rippey was not represented by counsel in bringing the mоtion. On remand, this time with Rippey represented by counsel, the district court granted Rippey‘s motion.
¶17 Upon reinstatement of his time for appeal, Rippey timely filed a notice of appeal. In this first direct appeal, Rippey claims that the PWS is unconstitutional, his plea was not knowingly and voluntarily entered, and the district court abused its discretion at sentencing.
¶18 We instructed the parties to brief only the threshold issue of whether the PWS is constitutional.11 We now address that issue.
¶19 Rippey contends that the PWS is unconstitutional on its face and as applied to him. He argues it is facially unconstitutional because subsection (2)(b) of the PWS violates the separation-of-powers principles enshrined in аrticle VIII, section 4 of the Utah Constitution. As applied to him, Rippey argues subsections (2)(b) and (2)(c), working in tandem, violate his federal constitutional rights to appeal, to the effective assistance of trial counsel, to the effective assistance of state-paid counsel and defense resources on appeal, to due process of law, and to equal protection. He also argues that the statute violates his Utah constitutional open courts and uniform operation of laws rights.
¶20 Subsections (2)(b) and (2)(c) of the PWS read:
(b) 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 annоunced. Sentence may not be announced unless the motion is denied. For a plea held in abeyance, a motion to withdraw the plea shall be made within 30 days of pleading guilty or no contest.
(c) Any challenge to a guilty plea not made within the time period specified in Subsection (2)(b) shall be pursued under Title 78B, Chapter 9, Postconviction Remedies Act, and Rule 65C, Utah Rules of Civil Procedure.12
These subsections require a defendant seeking to withdraw a guilty plea to do so by motion before sentencing. A defendant who seeks to withdraw a guilty plea after sentencing can raise the issue only in a petition filed under the PCRA.
¶21 First, we review the separation-of-powers principles that apply to the PWS. Next, we apply those principles and conclude that the preservation and waiver rules contained in subsections (2)(b) and (2)(c) are procedural. And we clarify that these subsections inappropriately regulate the judiciary‘s issue-specific jurisdiction. Last, we determine whether the procedural component of the PWS is inextricably intertwined with its substance. Concluding that the procedural component is extractable, we hold that the legislature unconstitutionally created
I. THE UTAH CONSTITUTION EMPOWERS THE LEGISLATURE TO ENACT SUBSTANTIVE LAWS AND THE JUDICIARY TO ADOPT PROCEDURAL RULES
¶22 We begin by discussing the principles that guide a separation-of-powers analysis and how those principles apply to the PWS. The Utah Constitution declares that the “powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial.”13 This division means that each branch of government has powers reserved to it, but also that each branch‘s exercise of its powers is checked and balanced by the powers of the other two branches.
¶23 Relevant here, the Utah Constitution designates to the legislature the power to enact substantivе laws.14 Substantive laws are laws that create, destroy, or alter “the rights and duties of ... parties and which may give rise to a cause [of] action.”15 But the Utah Constitution designates to the judiciary the power to adopt rules to govern procedure in Utah courts.16 Procedural rules prescribe the “practice and procedure or the legal machinery by which the substantive law is ... made effective.”17 While the legislature cannot independently create procedural rules,18 it can by agreement of a super-majority of legislators amend the rules of procedure the judiciary has adopted.19
II. SUBSECTION (2)(b) OF THE PLEA WITHDRAWAL STATUTE IS PROCEDURAL
¶25 With this separation-of-powers framework in mind, we now address Rippey‘s argument that subsection (2)(b) of the PWS is procedural. Rippey‘s position is straightforward: subsection (2)(b) is procedural because this court said it is. And Rippey is right. In State v. Rettig, we reasoned that subsection (2)(b) is “quintessentially procedural” because it “prescribes the manner and means of raising a particular issue in court proceedings.”22
¶26 Subsection (2)(b)‘s text supports Rettig‘s conclusion. Subsection (2)(b) states that “[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.”23 “For a plea held in abeyance, a motion to withdraw the plea shall be made within 30 days of pleading guilty or no contest.”24 And, the “[s]entence may not be announced unless the motion [to withdraw the guilty plea] is denied.”25 These statutory requirements amount to little more than deadlines for a defendant to file a motion to withdraw, and as Rettig pointed out, “[y]ou can‘t get much more procedural than a filing deadline.”26
¶28 Like other rules of preservation, subsection (2)(b) does not create or extinguish legal rights, but instead controls the legal machinery by which those rights operate. Subsection (2)(b) establishes the method for withdrawing a guilty plea and the deadline for doing so.28 And subsection (2)(c) prevents defendants who miss (2)(b)‘s withdrawal deadline from challenging their plea on direct appeal—a waiver sanction that naturally flоws from (2)(b)‘s preservation rule.29
III. SUBSECTION (2)(b) OF THE PLEA WITHDRAWAL STATUTE DOES NOT REGULATE SUBJECT MATTER JURISDICTION
¶29 Having confirmed that subsection (2)(b) of the PWS is procedural, we now address the State‘s alternative argument that “[r]egardless of whether the time limit in the [PWS] is procedural or substantive, it is jurisdictional and thus within the legislature‘s purview.” Specifically, the State contends that “when the legislature enacts a statute that has the effect of cutting off a court‘s authority to reach an issue, that is a valid exercise of the legislature‘s authority to regulate jurisdiction no matter if the statute may be considered procedural.” This argument lumps together distinct types of “jurisdiction.” And the distinction matters, because not all types of jurisdiction fall under the legislature‘s authority to regulate.
¶31 The first type is subject matter jurisdiction. We have referred to this type of jurisdiction in part as the “statutory limits on the class of cases assigned to the authority of a certain court.”33 Article VIII, section 3 of the Utah Constitution gives the legislature the authority to set certain limits on this type of jurisdiction, and the legislature‘s exercise of that power does not infringe on the judiciary‘s authority to adopt rules of procedure.34
¶32 The second relevant type of jurisdiction is the judiciary‘s issue-specific jurisdiction. This is “the more limited notion” of a court‘s “power to reach a certain question presented.”35 We noted in Rettig that we have authority to enact “commonplace” procedural rules, including rules of preservation and waiver.36 These rules “create a jurisdictional bar ... in the sense that they foreclose the power of the court to consider issues not properly preserved and barred by a principle of waiver.”37 The Utah Constitution “indicate[s] that this sort of jurisdictional bar is a matter within our power to regulate by the promulgation of a rule of procedure.”38 And though distinct from subject matter jurisdiction, “thе effect of this kind of rule is properly viewed as
¶33 Many of our cases analyzing the PWS describe subsection (2)(b) as imposing “a jurisdictional bar on late-filed motions to withdraw guilty pleas.”40 The State is correct to note that (2)(b), in creating a rule of preservation, has jurisdictional effect. But, as we made clear in Rettig, the jurisdiction it regulates is the limited kind that we control through rules of procedure, not the subject matter jurisdiction that the legislature controls through statute.41 And because (2)(b)—an otherwise procedural rule—does not implicate subject matter jurisdiction, the legislаture lacks authority to impose it.
IV. SUBSECTION (2)(c) OF THE PLEA WITHDRAWAL STATUTE INCLUDES BOTH A SUBSTANTIVE RIGHT AND A PROCEDURAL RULE
¶34 Having established that subsection (2)(b) of the PWS is procedural, we now consider whether subsection (2)(c) also contains a procedural rule. Rippey directs his separation-of-powers challenge only at subsection (2)(b) of the PWS. And under normal
¶35 Subsection (2)(c) reads, “Any challenge to a guilty plea not made within the time period specified in Subsection (2)(b) shall be pursued under” the PCRA.42 Rettig is clear that subsection (2)(c) includes a substantive right: (2)(c) allows a defendant to raise unpreserved challenges to a guilty plea through the PCRA, and that established “a new legal remedy.”43 “The establishment of a new remedy is a core matter of substance—clearly within the power of the legislature.”44 Because neither party challenges Rettig‘s holding on this point, we treat it as binding.
¶36 Although we held in Rettig that (2)(c) is substantive, our analysis of (2)(c) was incomplete. There, the appellant challenged only the constitutionality of subsection (2)(c), so we expressly declined to consider any challenge to (2)(b)—the preservation rule—or to consider whether the two provisions were inextricably intertwined.45 At the same time, we intimated that, along with a substantive right, subsection (2)(c) also contains a procedural component: the cоmpanion “waiver” to (2)(b)‘s preservation rule.46 And we noted that the “procedural dimension of the preservation rule in the statute—the time deadline it sets for the filing of motions—may be a potent basis for questioning the constitutionality of this statute under article VIII, section 4.”47 We also held that ordinary rules of preservation and waiver do not foreclose any substantive right.48 “They simply prescribe a sanction
¶37 Rippey today brings that forecasted challenge to subsection (2)(b). And we now determine that subsections (2)(b) and (2)(c) together create a rule of preservation and waiver, with subsection (2)(c) contаining the waiver. It does so by making explicit reference to the rule of preservation created by subsection (2)(b): “[a]ny challenge to a guilty plea not made within the time period specified in Subsection (2)(b) shall be pursued under” the PCRA.50
¶38 We have already concluded that subsection (2)(b) is procedural, and accordingly must be stricken from the text of the PWS. But because subsection (2)(c) relies on (2)(b)‘s procedural mechanism, removing (2)(b) leaves (2)(c)‘s waiver untethered. Without being able to reference “the time period specified in Subsection (2)(b),” (2)(c) contains an inactionable command. And without a defined time period, no defendant could be subject to the waiver rule or rеquired to pursue their challenge to their plea through the PCRA. We thus conclude that we cannot fully address Rippey‘s challenge to subsection (2)(b) without addressing (2)(c) as well.
¶39 To the extent subsection (2)(c) allows defendants to challenge their plea under the PCRA, that is a clear substantive right. But to the extent (2)(c) embeds a sanction for not meeting the requirements of (2)(b), that portion is procedural and beyond the power of the legislature to enact.
V. THE PROCEDURAL RULES OF SUBSECTIONS (2)(b) AND (2)(c) ARE NOT INEXTRICABLY INTERTWINED WITH SUBSECTION (2)(c)‘S SUBSTANTIVE RIGHT
¶40 Having established that the PWS contains unconstitutional procedural rules of preservation and waiver, we now analyze whether we must still uphold those rules because they are inextricably intertwined with the substantive law of the PWS. In Rettig, wе did “not need to reach whether subsections (2)(b) and (2)(c) are ‘inextricably intertwined’ in a manner insulating the broader statutory scheme from challenge (even if one of these provisions is procedural)” because the appellant did not challenge
¶41 We have previously held that a procedural provision in a statute does not violate separation-of-powers principles when it is attached to a substantive right and “cannot be stripped away without leaving the right or duty created meaningless.”52 Said another way, “a procedural rule may be so intertwined with a substantive right that the cоurt must view it as substantive.”53 The State argues that we should view the procedural parts of subsections (2)(b) and (2)(c) as inextricably intertwined with their substance because “the exclusive nature of [the PCRA] remedy comes into play only in conjunction with” and “is superfluous” without the time limits of subsection (2)(b).
¶42 The State points to our analysis in Drej as supportive of its position that we cannot untangle the substance and procedure of the PWS, but our reasoning in Drej is distinguishable.54 In Drej, we considered whether the special mitigation statute complied with the separation-of-powers provisions of article VIII.55 The statute at issue allowed criminal defendants to raise the affirmative defense of special mitigation.56 The parties in Drej did not argue that the creation of the special mitigation defense was procedural.57 Nor could they have; the “statute plainly creates and defines the right to present special mitigation to a jury,” and therefore is substantive.58
¶43 The issue instead was what burden of proof the special mitigation statute required a defendant to meet to successfully invoke that defense.59 We noted that whether a statute that assigned a burden of proof was procedural or substantive was a
¶44 The State claims that our reasoning from Drej applies here. Specifically, it argues that subsections (2)(b) and (2)(c) are inextricably intertwined because “the exclusive nature of [subsection (2)(c)‘s PCRA] remedy comes into play only in conjunction with the time limits of subsection (2)(b).” And because stripping away the procedure created by (2)(b) would render the substantive right created by (2)(c) meaningless, we must treat that procedural subsection as substantive.65
¶45 But the scenario we faced in Drej is not what we face today. In Drej, the legislature created a statute that was overwhelmingly substantive aside from a small procedural component. Here, the legislature has enacted a statute that is, at its core, a procedural rule. Subsections (2)(b) and (2)(c) of the PWS are fundamentally a rule of
¶46 Our primary concern when interpreting article VIII is to ensure that the branches of government, including the judiciary, exercise only the powers that the Utah Constitution appоints to them. In Drej, we held that it was appropriate to allow the legislature to “incidental[ly]” infringe upon the judiciary‘s authority to adopt procedural rules because that infringement was necessary for the legislature to define the right that it had created.67 That logic does not apply when the balance between substantive law and procedural infringement tips in the other direction.
¶47 Accordingly, we reject the State‘s argument that our holding in Drej prevents us from excising the procedural portions of subsection (2) of the PWS from the substantive ones. Because subsection (2)(b) is procedural, we strike it down as an unconstitutional infringement on this court‘s authority to adopt rules of prоcedure. And while we abide by Rettig‘s conclusion that subsection (2)(c) creates a substantive right to challenge a guilty plea under the PCRA, for the reasons articulated above, we hold that its procedural component lacks legal effect once subsection (2)(b) is removed. Thus, when shorn of its procedural content by our decision today, subsection (2)(c) simply allows any challenge to a guilty plea to be pursued under the PCRA.
VI. THE STANDARD RULES OF PRESERVATION APPLY TO PLEA WITHDRAWAL
¶48 Having stricken subsection (2)(b) and the corresponding waiver rule embedded in subsection (2)(c) of the PWS, we next address how plea withdrawal works in the absence of these procedural rules.68 We hold that without subsection (2)‘s special rule of preservatiоn and waiver, our normal rules of preservation and waiver apply. Under those rules, “[a]n issue is preserved for appeal when it has been presented to the district court in such a
¶49 In practice, this means that whether a defendant may challenge a guilty plea on direct appeal will depend on whether he attempted to withdraw that plea in the district court in a way that the district court had the opportunity to rule on it. If the defendant does, then the issue of the plea‘s validity is preserved and may be argued on direct appeal. If the defendant does not preserve the issue of the plea‘s validity, then to challenge that plea on direct appeal the defendant will need to show that an exception to preservation applies.71
¶50 Moving forward, this case is governed by those same rules. In an order issued alongside this decision, we ask the parties to brief the merits of Rippey‘s challenges to his plea, conviction, or sentence under the standards articulated in this opinion.72
CONCLUSION
¶51 Rippey challenges the constitutionality of the PWS. We hold that subsection (2)(b) and the waiver component of subsection (2)(c) of the PWS were unconstitutionally enacted in violation of article VIII, section 4 of the Utah Constitution. We keep this case to hear further argument on Rippey‘s challenges to his guilty plea, conviction, or sentence.