Case Information
*1 IN THE UTAH COURT OF APPEALS
‐‐‐‐ ooOoo ‐‐‐‐ of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. ) ) F I L E D
) (August 2012) Shawn Michael Smith, )
) Appellant. ) ‐‐‐‐‐
Fifth District, Cedar City Department,
The Honorable G. Michael Westfall
Attorneys: Matthew D. Carling, Cedar City, Appellant
Mark Shurtleff Ryan D. Tenney, Salt Lake City, Appellee Before Judges Roth.
ORME, Judge: appeals
entered fifteen ago. be untimely. affirm. Defendant, having escaped detention facility juvenile
delinquents, broke into home elderly couple. After abusing eighty year old husband, accomplice bound couple duct tape and chains. two ransacked home stole couple’s car their belongings.
¶3 As result, charged counts aggravated robbery burglary. He one count aggravated *2 exchange for dropping remaining charges. Almost immediately after plea, Defendant sent a letter to court seeking to withdraw to secure a new attorney, “disagree[d] plea.” to was denied, court proceeded sentencing. ¶4 Because Defendant already had a substantial criminal record, court rejected defense counsel’s pleas for probation sentenced Defendant five life prison. Defendant which we denied ¶5 following year, Defendant for resentencing of Procedure. Defendant alleged was illegal because court sentenced without investigating Defendant’s request for new counsel, because right allocution was denied sentencing, because given opportunity contest alleged inaccuracies presentence investigation report. sat dormant seven years. With arrival newly appointed
judge, court vacated Defendant’s finding sentencing court erred providing speak on own behalf. Prior to resentencing, again court on grounds first withdraw. court noted this court had decided issue several prior therefore jurisdiction reconsider claims regarding then life prison, which afforded further appeal—the appeal before us. most recent motion determining whether is timely whether motion, give no deference rulings them correctness, questions law. See Lovell 575.
¶8 At time sentenced, days “after entry plea.” Code Ann. § (1995). If untimely, lack consider its merits. 8–9, (denying motion *3 under section ‐ ‐ the motion after the defendant pled guilty).
¶9 Defendant pled guilty in 1997. Defendant asks us the his withdraw, ten later. far beyond the statutory window filing guilty plea, agree district court’s determination that it consider it. apparently that when district under
rule 22(e) Utah Procedure, thirty ‐ day period Defendant guilty somehow restarted. Rule 22(e) explains that “court may correct an illegal imposed an illegal manner, any time.” Utah R. Crim. P. 22(e). However, Utah Supreme Court effectively narrowed scope rule 22(e), rule “cannot veiled attempt challenge underlying by challenging sentence.” v. Candedo 9, 1008. other words, successful rule 22(e) may have effect undoing it will not vest defendant opportunities challenge case ways unrelated sentencing. Thus, we will reject purportedly brought via rule 22(e) is, “in reality, second [the original] Wareham ¶11 The Supreme Court rejected argument makes where contended successful 22(e) opened door file otherwise untimely id., 7–9. Supreme Court this argument, holding “no consider challenge validity pleas.” Id., 25. Likewise, successful this case provide move after thirty day deadline expired. Accordingly, reject contention motion.
We agree conclusion bars had, availed himself of, during original period after guilty. His court, subsequently denial. court’s decision, Supreme Court did fit disturb our ruling.
(continued...) there were defects information charge him. claim court. “By knowing voluntary waives all non jurisdictional challenges Medel , (citation internal quotation marks omitted). jurisdictional, id. so, contrary contention, cannot raised late date.
¶13 Affirmed.
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Gregory K. Judge
¶14 WE CONCUR:
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James Z. Judge
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Stephen Roth, Judge
(...continued) 2000). To again merits would constitute another bite at apple, violation basic principles judicata. Buckner Kennard (“In effect, once party or her lost, she get chance prevail issues.”).