Opinion
20190274-CA
12-23-2021
State of Utah, Appellee, v. Wade Leon Willis, Appellant.
Dallas B. Young and Thomas C. Taylor, Attorneys for Appellant Sean D. Reyes and Christopher D. Ballard, Attorneys for Appellee
Fourth District Court, Provo Department The Honorable Kraig Powell No. 181401492
Dallas B. Young and Thomas C. Taylor, Attorneys for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys for Appellee
Before Judges Gregory K. Orme, Michele M. Christiansen Forster, and Diana Hagen.
OPINION
PER CURIAM:
¶1 Wade Leon Willis appeals the district court's order striking his motion to clarify his sentence or withdraw his guilty plea. Willis challenges the court's application of Utah Code section 77-13-6-the Plea Withdrawal Statute (the PWS)-as violating his right to effective assistance of counsel under both article I, section 12 of the Utah Constitution and the Sixth Amendment to the United States Constitution. In the alternative, Willis claims that his sentence was ambiguous and asks this court to reverse the district court's denial of his motion to correct his sentence under rule 22(e) of the Utah Rules of Criminal Procedure. We affirm.
¶2 Willis entered a plea of no contest to two of the seven counts in the Information. Willis pled no contest to assault against a police officer, a second degree felony, and to possession or use of a controlled substance, a third degree felony. He requested that the court impose sentence immediately. The written statement in advance of the plea reflected that Willis had entered into the following agreement with the State: "Run time concurrent with federal charges time. Defendant agrees to prison." This written form included the acknowledgment that Willis would not be allowed to withdraw his plea once sentencing was imposed and thereafter any claims must be pursued through the Post-Conviction Remedies Act (the PCRA).
Because Willis refers to his plea as a guilty plea in briefing, we do the same.
¶3 Through counsel, Willis confirmed that he was not seeking probation and agreed to be sentenced to the indeterminate prison terms required by statute. Counsel represented that, because Willis was pleading guilty to offenses that would violate the conditions of his federal supervised release, Willis expected to be sentenced to prison in federal court as well. Counsel and Willis "were anticipating that [Willis] would, of course, be in prison at that time and his state time would run concurrent there at federal prison." The district court stated that it would order that the state sentences would "run concurrent to each other and [to] any other sentences that he's serving at the same time."
¶4 The district court announced Willis's sentence on September 17, 2018, and entered the signed judgment the next day. The court sentenced Willis to serve one to fifteen years in prison on the second degree felony and zero to five years in prison on the third degree felony, with the sentences to run concurrently to each other and to any other sentence.
¶5 On October 9, 2018, Willis, through substitute counsel, filed an untimely motion to withdraw his guilty plea, claiming that he received ineffective assistance of counsel "prior to the entry of his guilty pleas" that rendered "his guilty plea and resulting sentence constitutionally infirm." He argued that he agreed to plead guilty based on the understanding that his state prison term would run concurrent with "time he anticipated would be ordered by the federal court arising out of the probation violation that would follow his conviction." Willis had anticipated that he would be taken into federal custody due to the probation violations, allowing him to serve both his state and federal sentences concurrently in a federal facility. To his surprise, federal authorities refused to take him into custody until he was discharged from state custody. Willis claimed this resulted in de facto consecutive sentences "in direct contravention to the plea agreement the parties reached." He stated his counsel did not advise him of this possibility and instead told him that he would "be allowed to go to federal custody, where his state sentence would run concurrent to his federal sanction." Willis said if he had been advised of "the risk that he could serve de facto consecutive terms, he would not have pled guilty."
¶6 As an alternative, Willis filed a motion to correct his sentence under rule 22(e) of the Utah Rules of Criminal Procedure. See Utah R. Crim. P. 22(e)(1)(D) ("The court must correct a sentence when the sentence imposed . . . is ambiguous as to the time and manner in which it is to be served."). He claimed that the phrase "concurrently to any other sentence" was ambiguous as applied to his case because it did not result in the anticipated result of allowing him to serve his state and federal sentences concurrently in a federal prison. He again asked the district court to let him withdraw his guilty plea, claiming that his plea was not knowing and voluntary "because it was the product of ineffective assistance of counsel in violation of his Sixth Amendment rights." Willis acknowledged that the Utah Supreme Court had interpreted the PWS as a jurisdictional bar to untimely motions to withdraw and that the plain language of the statute deprives the district court of jurisdiction to hear his ineffectiveness claim because he did not move to withdraw his plea until after he was sentenced. However, Willis argued his claim was distinguishable because it was "grounded on the Sixth Amendment right to effective assistance of counsel at the trial court level and not grounded on the right to appeal guaranteed by article I, section 12 of the Utah Constitution."
¶7 The State moved to deny or strike both motions. First, the State argued that the sentence was not ambiguous. The fact that the sentence was not implemented by federal authorities in the manner Willis expected did not support allowing the district court to modify the sentence. The State also argued that the jurisdictional bar of the PWS includes claims premised on ineffective assistance of counsel. See State v. Rhinehart, 2007 UT 61, ¶ 14, 67 P.3d 1046 ("Claims of ineffective assistance of counsel raised in the context of challenges to the lawfulness of guilty pleas are governed by Section 77-13-6.").
¶8 The district court granted the State's motion, ruling that the sentence imposed on Willis was not ambiguous and noting that the court had no authority to control the sentence imposed by the federal court. The district court, citing Rhinehart, 2007 UT 61, ¶ 14, also ruled that it lacked jurisdiction to consider the motion to withdraw the plea based upon the claim of ineffective assistance of counsel because the "jurisdictional bar includes ineffective assistance of counsel claims as to the plea."
¶9 On appeal, Willis claims that the application of the PWS to the facts of his case would unconstitutionally deny him an opportunity to have the district court consider his claim that he received ineffective assistance of counsel in connection with the entry of his guilty plea and to have the ineffective assistance claim reviewed on appeal. He further asserts that the district court erred in determining that his sentence was not ambiguous and therefore not subject to modification or correction under rule 22(e) of the Utah Rules of Criminal Procedure.
I. The Plea Withdrawal Statute Bars Untimely Motions to Withdraw a Guilty Plea Based Upon a Claim of Ineffective Assistance of Counsel.
¶10 Willis acknowledges that the plain language of the PWS- as well as the line of cases interpreting it-bars his constitutional challenge because it was not raised in a motion to withdraw the guilty plea filed in the district court before he was sentenced. But Willis claims that this case presents an issue of first impression because he bases his argument on state and federal guarantees of effective assistance of counsel rather than on the right to appeal. It does not.
¶11 In Rhinehart, the Utah Supreme Court considered the claim that the appellant should be allowed to challenge her guilty plea despite not timely moving to withdraw it because the alleged ineffectiveness of trial counsel caused her both to enter the guilty plea and to fail to bring a timely motion to withdraw it. See State v. Rhinehart, 2007 UT 61, ¶ 11, 167 P.3d 1047. The appellant argued that, under these circumstances, "the requirement contained in section 77-13-6 that she move to withdraw her guilty plea as a condition to challenging her plea on direct appeal unconstitutionally deprives her of her right to appeal." Id. The supreme court rejected this argument. The supreme court first stated that it had previously "settled the question of whether section 77-14-6 was jurisdictional and constitutional" in State v. Merrill, 2005 UT 34, 1145 P.3d 585. See Rhinehart, 2007 UT 61, ¶ 12. The court then addressed the argument that the case was distinguishable "because it was her lawyer's fault that she entered her plea and failed to bring a timely motion to withdraw it" and because "neither Merrill nor any of our other pronouncements on section 77-13-6 confronted a claim of ineffective assistance of counsel." Id. She claimed that this distinction mattered, but the supreme court concluded that it did not, see id. ¶ 13, stating,
The classification within which she seeks refuge- that defendants who seek leave to withdraw pleas based on claims of ineffective assistance of counsel are free of the constraints of section 77-13-6-is . . . a phantom classification. To honor this classification would be to invite every tardy application to withdraw a plea to be styled as a claim of ineffective assistance of counsel, a consequence that would vitiate section 77-13-6. We therefore hold that claims of ineffective assistance of counsel raised in the context of challenges to the lawfulness of guilty pleas are governed by section 77-13-6.Id. ¶ 14 (cleaned up).
¶12 In State v. Rettig, 2017 UT 83, 416 P.3d 250, the supreme court reaffirmed that the PWS is a jurisdictional bar on direct review of claims that defendant's plea counsel was ineffective. See id. ¶ 51; see also State v. Ott, 2010 UT 1, ¶ 18, 247 P.3d 344 ("In Rhinehart, we further held that a defendant may not overcome a failure to timely withdraw his guilty plea even if the failure is styled as a claim of ineffective assistance of counsel." (cleaned up)); State v. Nicholls, 2017 UT App 60, ¶ 23, 397 P.3d 709 (holding that, under Rhinehart, ineffective assistance of counsel claims "raised in the context of challenges to the lawfulness of guilty pleas are governed by the Plea Withdrawal Statute" (cleaned up)). In interpreting the PWS, "our supreme court has explained that, by requiring defendants to seek withdrawal of guilty pleas prior to sentencing, the statute establishes a standard of preservation and imposes a strict sanction of waiver that is not subject to the common-law exceptions to our preservation doctrines, including plain error and ineffective assistance of counsel." State v. Littlejohn, 2021 UT App 73, ¶ 17, 496 P.3d 726 (cleaned up). "Thus, the Plea Withdrawal Statute, combined with long-standing preservation doctrines, operates to prevent a defendant from raising, on direct appeal, new grounds for withdrawal of a plea-even by means of plain error review or claims for ineffective assistance of counsel-that were not brought to the attention of the trial court prior to sentencing." Id. (cleaned up).
¶13 Willis attempts to distinguish the above-cited cases from his own by arguing that those cases addressed only whether the jurisdictional bar of the PWS violated the right to appeal. Willis argues that he is making a distinct claim that the jurisdictional bar is unconstitutional as applied to this case because it violates his state and federal right to effective assistance of counsel in connection with his guilty plea. Thus, he asserts that the district court erred by applying it to his untimely motion to withdraw his guilty plea.
¶14 Rhinehart, Rettig, and later cases, rejected the same assertion that a claim of ineffective assistance of counsel excuses a defendant from making a timely motion to withdraw a guilty plea and concluded that it is not unconstitutional to require defendants to pursue untimely challenges under the PCRA. See 2007 UT 61, ¶ 13-14; 2017 UT 83, ¶ 51. Those cases have addressed whether the PWS infringes a defendant's constitutional right to appeal because the failure to timely move to withdraw a guilty plea forecloses review on direct appeal. See State v. Brown, 2021 UT 11, ¶ 22, 489 P.3d 152 (citing Rettig as holding that "[t]he standard set forth in the Plea Withdrawal Statute is both a rule of preservation and a jurisdictional bar on appellate consideration of matters not properly preserved" (cleaned up)). The statute does not waive the defendant's right to raise an ineffective assistance of counsel claim; it merely requires that untimely claims be raised in a PCRA petition. Therefore, the PWS does not infringe on Willis's right to effective assistance of counsel.
II. The Sentence Was Not Ambiguous
¶15 In the alternative, Willis argues that the district court should have corrected his sentence under rule 22(e) of the Utah Rules of Criminal Procedure as "ambiguous" because it will not be served concurrently to his federal prison term, as his counsel allegedly assured him it would. See Utah R. Crim. P. 22(e)(1)(D) (stating that "a court must correct a sentence when the sentence imposed . . . is ambiguous as to the time and manner in which it is to be served"). The State characterizes this argument as a restatement of the ineffectiveness challenge to counsel's performance during the plea process that is not related to the actual terms of Willis's state sentence. We agree with the State.
¶16 The sentence imposed reflected the statutorily-required indeterminate terms and was not ambiguous as to the duration of the prison terms. The sentence stated that the terms would run concurrently to each other and to any other sentence, but did not-and could not-proscribe how Willis's federal sentence would be executed. Because Willis could not demonstrate that his sentence was ambiguous, the district court correctly concluded that no correction of the sentence was warranted.
CONCLUSION
¶17 Because Willis did not timely move to withdraw his guilty plea, the district court correctly ruled that it lacked jurisdiction to consider the challenge. Alternatively, Willis did not demonstrate that his actual sentence was ambiguous. The district court sentenced Willis in accordance with the plea agreement and the fact that the federal system did not act as Willis expected, or was led to believe, it would does not make his state sentence ambiguous.
¶18 Accordingly, we affirm