Opinion
Case No. 20030848-CA.
Filed June 30, 2005. (Not For Official Publication).
Appeal from the First District, Logan Department, 011100562, The Honorable Clint S. Judkins.
Gregory N. Skabelund, Logan, for Appellant.
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.
Before Judges Bench, Greenwood, and Thorne.
MEMORANDUM DECISION
James J. Quinn appeals his judgment and sentence under Utah Code section 41-6-44. See Utah Code Ann. § 41-6-44 (Supp. 2003). We affirm.
The language of this statute has since been amended. See Utah Code Ann. § 41-6-44 (Supp. 2004). The amendments do not affect the issues on appeal.
Quinn argues the district court erred when it entered a third degree felony sentence pursuant to Utah Code section 41-6-44(3). The record reveals that Quinn waived this argument.
During his colloquy with the district court, Quinn's counsel expressly stated that the offense at issue placed Quinn squarely within the statute:
THE COURT: I understand we have a third degree felony, driving under the influence. Driving with the wrong class of license and an open container. Any reason sentence should not be passed at this time?
[COUNSEL FOR DEFENDANT]: No, your honor.
THE COURT: Anything you or your client would like to say?
[COUNSEL FOR DEFENDANT]: Just that I've had an opportunity to review the presentence report with defendant in this particular matter. We would note to the court that the two prior DUI offenses occurred approximately nine-and-a-half years ago. This is a third DUI that did occur within the ten year statutory period of time.
THE COURT: Anything from the defendant?
[DEFENDANT]: I'd first like to say that I take full responsibility for my actions. I missed my sentencing and I shouldn't have. It was a poor choice. I was emotionally stressed over the last year. I'd like treatment if the court would allow it. I'd just like to say I'm very sorry and I'll never be in front of you again.
Quinn failed to object to the district court's assertion that "we have a third degree felony." Moreover, Quinn affirmatively asserted that "this is a third DUI that did occur within the ten year statutory period of time." As a result, Quinn waived his argument that the felony enhancement should not apply.
"`A party who fails to make a clear and timely objection waives the right to raise the issue at the appellate level.'" State v. Olsen, 860 P.2d 332, 336 (Utah 1993) (quoting State v. Matsamas, 808 P.2d 1048, 1052 (Utah 1991)); see also State v. Jones, 2002 UT 1, ¶ 11, 44 P.3d 658 (holding that the defendant waived the right to raise argument regarding intent when he admitted intent by pleading guilty and mentally ill to the charges against him).
Even if this argument had not been waived, it is without merit. While Quinn fails to specify in his appeal brief the precise problem with the plea, he maintains that the burden of proof was at all times on the State. This is incorrect. "A previous judgment of conviction . . . is entitled to a presumption of regularity, including a presumption that the defendant was represented by counsel." State v. Triptow, 770 P.2d 146, 149 (Utah 1989).
In State v. Gutierrez, 2003 UT App 95, 68 P.3d 1035, we held that a defendant's self-serving affidavit testimony "is not sufficient to overcome the presumption of regularity established in Triptow. A defendant must demonstrate the involuntariness of his plea by some evidentiary method other than his own bare assertions." Id. at ¶ 12.
Quinn presented no evidence at trial to rebut the presumption that he entered his prior plea voluntarily nor evidence that there may have been any irregularities in his prior plea colloquy. Thus, we conclude that Quinn has not overcome the presumption of voluntariness that attached to his prior guilty plea. Accordingly, the district court was correct in presuming the regularity of that conviction, see id. at ¶¶ 8-13, and its use of the plea as the predicate for a sentence enhancement was proper.
Quinn's reply brief incorporated wholesale and without analysis an argument set forth in the State's unsuccessful motion for summary reversal filed previously pursuant to rule 10(a)(2)(b) of the Utah Rules of Appellate Procedure. This argument was not presented in Quinn's opening brief. As set forth in Utah Rule of Appellate Procedure 24(c), "reply briefs shall be limited to answering any new matter set forth in the opposing brief." Utah R. App. P. 24(c). Issues "raised by an appellant in the reply brief that were not presented in the opening brief are considered waived and will not be considered by the appellate court." Brown v. Glover, 2000 UT 89, ¶ 23, 16 P.3d 540. Therefore, this court need not address this argument. In any event, Quinn fails to show why the issue warrants further attention from this court.
Accordingly, we affirm the judgment of the district court.
Russell W. Bench, Associate Presiding Judge, Pamela T. Greenwood, Judge and William A. Thorne Jr., Judge.