Case Information
_________________________________________________________
T HE U TAH C OURT OF A PPEALS
S TATE OF U TAH , Plaintiff Appellee, v.
S HAWN M ICHAEL S MITH ,
Defendant Appellant.
Opinion No.
Filed February
Fifth District, Cedar City Department Honorable G. Michael Westfall
No.
Herschel Bullen, Attorney for Appellant
John E. Swallow Jeanne B. Inouye, Attorneys for Appellee
J UDGE J AMES Z. D AVIS authored Memorandum Decision, J UDGES C AROLYN B. M C H UGH M ICHELE M. C HRISTIANSEN concurred.
DAVIS, Judge: Shawn Michael appeals from conviction
sentence second degree felony possession use controlled substance drug free zone, 8(2)(a)(i) 2012), reverse remand. Smith
BACKGROUND
¶2 On or about July Adult Probation and Parole agents found crystal methamphetamine Smith’s bedroom. Smith and his wife (Wife) both admitted to having smoked methamphetamine that morning and both tested positive methamphetamine. Subsequently, Division Child and Family Services (DCFS) took custody couple’s two children. Smith Wife reached a agreement with State, wherein agreed to plead to second degree felony Wife agreed to plead to class A misdemeanor. Their apparent goal was to keep Wife out jail so she could participate reunification plan with DCFS regain custody children. A preliminary scheduled August when appeared at hearing, counsel immediately proceeded business discussing his plea. never asked willing waive right preliminary hearing, Smith’s written statement did refer right. sentenced different judge than one who took plea. Just before announced sentence, exchange took place:
THE COURT: . . . I don’t know if Judge Walton has practice making sure a felony you have waived your right a but I want make sure we address point.
. . . I want make sure you understand you have right have preliminary hearing. I don’t know if you waived your before you entered your But if I proceed sentencing today, means you will never have hearing. Do you (continued...) Nevertheless, Smith pleaded guilty to second degree felony possession or use controlled substance drug free zone accordance with agreement. Both Smith and Wife were represented same attorney throughout process. ¶4 On September Smith filed Notice Conflict and Request for Counsel, expressing concern his attorney was incapable providing him with effective representation because he was also representing Wife. At hearing September 2010, permitted attorney to withdraw and appointed new counsel represent him. On February 2011, Smith filed motion withdraw his plea, arguing was not knowing and voluntary. Specifically, Smith claimed his attorney’s representation both him Wife conflict interest resulted Smith being “improperly unduly influenced coerced enter his own plea,” which “benefitted his wife his detriment.” He also claimed he was confused at hearing could remember afterward he taking necessary medications time. when appeared before on motion withdraw, reluctantly informed he wanted withdraw motion withdraw proceed with sentencing. sentenced Smith, appeal followed.
(...continued) understand that?
MR. SMITH: I don’t know what happened my—that’s fine, I—I guess. This discussion, occurring after had already entered his plea, only record instance aware informed given opportunity waive it.
State v.
ISSUE AND STANDARD OF REVIEW
¶5 argues district court erred by accepting his plea sentencing him without bindover. [2] maintains error deprived of entertain his plea his plea therefore invalid. Whether has subject matter “a question of law, which we review correctness, granting no deference court.” State v. Nicholls 2006 76, ¶ 3, 148 990.
ANALYSIS asserts we lack consider
validity of plea because he failed file timely motion to withdraw his When pleads guilty, “waives all nonjurisdictional defects, including alleged pre ‐ constitutional violations.” Rhinehart 2007 167 quotation omitted). Thus, “failure to withdraw within time frame dictated by [Utah Code] section ‐ ‐ 6 deprives [both] trial appellate also argues lacked jurisdiction information defective because his attorney’s representation Wife conflict of interest denied him counsel. In light manner in which we dispose issue, need consider these other claims error. do observe, however, his assertion conflict interest part counsel created jurisdictional bar invalidating questionable light supreme decision Rhinehart P.3d held “that claims ineffective assistance of counsel raised context challenges lawfulness pleas governed [Utah Code] section ‐ 6” therefore reviewable court, generally 2012).
State v. courts jurisdiction to review the validity of the plea.” Ott , 2010 1, ¶ 18, 247 P.3d generally Utah Code 77 ‐ 13 ‐ 6(2)(b) (LexisNexis 2012) (“A request to withdraw guilty . . . shall be made by motion before sentence announced.”). This applies also to review the constitutionality pre ‐ plea proceedings. Rhinehart 2007 ¶¶ 16–18 (holding that lacked jurisdiction to evaluate the defendant’s claim that she was denied the right to confront witnesses during her preliminary explaining that defendant “cannot achieve through a challenge the what she was foreclosed from doing by [Utah Code] section ‐ 13 ‐ 6—assail the lawfulness her plea”). Smith argues that the errors claims are jurisdictional that “errors affect[ing] the jurisdiction” excepted from the general rule, see because subject matter jurisdiction cannot be waived, Todd App 9, (explaining “[s]ubject matter . . . can neither be waived nor conferred consent the accused” and an “[o]bjection over the subject matter may be urged any stage proceedings” quotation omitted)), rev’d other grounds UT 1199. parties do dispute neither received a hearing nor waived right one prior time was accepted was thus never bound over answer court. They dispute only error jurisdictional. asserts he never formally bound over, never obtained subject matter over while maintains error waivable thus subject challenge only under Post Conviction Remedies Act, Ann. §§ 78B ‐ 2012). agree a failure bind either preliminary waiver jurisdictional defect renders void.
State v.
State asserts bindover is unnecessary in order the district court exercise jurisdiction, pointing out the
“district court has original jurisdiction all matters civil and
criminal, not excepted the Utah Constitution not prohibited
law.”
See
§ 78A ‐ 5 ‐ 102(1). Because case is “one type cases [district] court has been empowered entertain,”
see Myers v.
31, 16,
¶9 However, even where a has subject matter jurisdiction over a particular type may be unable exercise jurisdiction where certain procedural prerequisites have not been met invoke it. For example, regardless have subject matter jurisdiction over a particular class cases, court may not exercise where order appealed from is not final, see Bradbury Valencia ¶¶ 8–14, 649, where notice appeal has not been timely filed, Todd , App generally Utah Code Ann. § 78A ‐ ‐ 2012) (outlining appeals’ subject matter jurisdiction). Similarly, while may have original criminal cases, there are procedural limits on its ability exercise jurisdiction. Specifically, criminal cases entitled hearing, “the district does acquire until after order issues information all other records transferred to court.” Humphrey n.2 (Utah 1991).
¶10 The State’s argument focuses jurisdictional effect failure hold asserting may be waived, unconstitutional denial nonjurisdictional can be contested only virtue petition post ‐ conviction relief. 6(c) (“Any challenge plea made within time period specified Subsection (2)(b) shall be pursued under Title 78B, Chapter Post Conviction Remedies Act, and Rule 65C, Utah Rules of Civil Procedure.”); Rhinehart , 2007 (“Except in those instances in errors affect the court’s or where claims of error are expressly preserved appeal, a conviction or guilty plea acts as a waiver of earlier procedural flaws.”). While agree constitutional and other defects in preliminary hearing or waiver thereof are nonjurisdictional, see, e.g. , Rhinehart , ¶¶ 16–18 (holding depriving a defendant right confront witnesses at preliminary hearing a nonjurisdictional defect could be waived via a guilty plea), complete lack a order in this case—based on either a determination probable cause a preliminary hearing or a determination waived right a preliminary hearing, R. Crim. P. 7(h)(1), (i)(2)—deprived to entertain Smith’s guilty See Humphrey at n.2. Claims relating validity waiver itself waivable thus reviewable any means other than a petition post conviction relief once a plea sentence have been entered. Rhinehart (explaining guilty “waives all nonjurisdictional defects, including alleged pre ‐ constitutional violations” quotation omitted)). Thus, even constitutionally defective waiver defendant’s could invest if it resulted bindover. However, no waiver—valid otherwise—was effected prior to time accepted entered plea, thus never bound at all. relies holding Canfield (Utah Ct. App. 1996) (per curiam), “[a]ny alleged pre ‐ defects, including absence were waived entry plea” support its assertion lack jurisdictional. 562. unclear from factual background contained
(continued...)
CONCLUSION
¶11 We hold cannot exercise its jurisdiction accept until has been bound over either defendant’s waiver of hearing. Because lack bindover this case deprived accept guilty plea, is invalid. Accordingly, we reverse remand further proceedings.
(...continued) short per curiam decision defendant, spite apparently having had actually bound answer court. Because determine itself has jurisdictional implications, not events resulting bindover, isolated statement from Canfield helpful our analysis. express no opinion regarding effect ruling may have agreement involving Wife.