State v. Tenorio

2007 UT App 92, 156 P.3d 854, 573 Utah Adv. Rep. 29, 2007 Utah App. LEXIS 82, 2007 WL 765273
CourtCourt of Appeals of Utah
DecidedMarch 15, 2007
DocketCase No. 20050976-CA
StatusPublished
Cited by18 cases

This text of 2007 UT App 92 (State v. Tenorio) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tenorio, 2007 UT App 92, 156 P.3d 854, 573 Utah Adv. Rep. 29, 2007 Utah App. LEXIS 82, 2007 WL 765273 (Utah Ct. App. 2007).

Opinion

© OPINION

DAVIS, Judge:

T1 Defendant Robert Osorio Tenorio appeals his convictions resulting from guilty pleas to communications fraud, a second degree felony, see Utah Code Ann. § 76-10-1801(1)(d) (Supp.2006), and forgery, a third degree felony, see id. § 76-6-501(8) (2003). We affirm.

BACKGROUND

T2 Defendant is in this country illegally, but has lived and worked here for several years. In 1996, an individual on the street gave Defendant a social security number, and Defendant later obtained a corresponding social security card. Although the card was counterfeit, the social security number was valid and belonged to a now-deceased individual from New York. In 1999, Defendant used the social security card to apply for a mortgage guaranteed by the United States Department of Housing and Urban Development (HUD). The application was approved, and Defendant received a loan in the amount of $83,871, secured by his newly purchased home. Defendant subsequently defaulted on the loan, which caused HUD to lose over $50,000.

T3 Eventually, the State charged Defendant with forgery and communications fraud, or alternatively, theft by deception. On April 22, 2005, Defendant entered into a plea agreement with the State whereby he plead *856 ed guilty to forgery and communications fraud. Before entering Defendant's plea, the trial court verified on the record that Defendant understood the nature of the rights he was waiving by pleading guilty and that he was "severely limiting [his] appeal rights." The trial court also explained to Defendant the elements of his crimes and the associated penalties. Finally, after hearing the State's intended evidence, the trial court concluded that those facts established the elements of the crimes with which Defendant was charged.

14 On July 22, 2005, the trial court sentenced Defendant to a suspended term of 865 days in jail. Defendant did not move to withdraw his guilty plea prior to the court's imposition of sentence. One month after the sentencing hearing, the State moved to correct Defendant's sentence. At an October 7, 2005 hearing on the State's motion, the trial court corrected Defendant's sentence and ordered him to serve two suspended prison terms: zero to five years for the forgery conviction and one to fifteen years for the communications fraud conviction. On October 20, 2005, Defendant filed a notice of appeal "from the final judgment/order rendered against him on the 7th day of October, 2005."

ISSUES AND STANDARD OF REVIEW

15 Defendant urges us to hear his appeal and reverse his guilty plea under the doctrines of ineffective assistance of counsel, exceptional cireumstances, and plain error. In response, the State claims that we lack jurisdiction to consider Defendant's appeal. "An appellate court's 'determination of whether it has jurisdiction to hear an appeal is a question of law.' " State v. Norris, 2002 UT App 305, 15, 57 P.3d 238 (quoting Miller v. USAA Cas. Ins. Co., 2002 UT 6, 118, 44 P.3d 663). Defendant alternatively asserts that our statutory scheme and related case law governing appellate review of guilty pleas is unconstitutional. "Constitutional challenges to statutes present questions of law, which [appellate courts] review for correctness." State v. Green, 2004 UT 76, 1 42, 99 P.3d 820 (quotations and citation omitted).

ANALYSIS

16 Although Defendant raises various challenges to his guilty plea, this court cannot review his claims unless Defendant has complied with Utah code section 77-13-6(2). See Utah Code Ann. § 77-13-6(2) (Supp. 2006). Accordingly, to challenge a guilty plea, a defendant must move to withdraw the plea prior to the trial court's announcement of sentencing. See id. at § 77-13-6(2)(b) ("A. request to withdraw a plea of guilty ... shall be made by motion before sentence is announced."). A defendant's failure to do so precludes a challenge to that plea, except as provided under the Post-Conviection Remedies Act, see id. §§ 78-35a-101 to -304 (2002 & Supp. 2006), and rule 65C of the Utah Rules of Civil Procedure, see Utah R. Civ. P. 65C. See Utah Code Ann. § 77-13-60@)(c) (stating that any challenge to a guilty plea not made prior to sentencing "shall be pursued under ... [the] Post-Conviction Remedies Act, and Rule 65C, Utah Rules of Civil Procedure").

T7 Moreover, the Utah Supreme Court has interpreted the language of Utah Code section 77-13-6(2) to be jurisdictional. See Grimmett v. State, 2007 UT 11, T8, 570 Utah Adv. Rep. 3, 152 P.3d 306 ("Section 77-13-6(2)(b) imposes a jurisdictional bar on late-filed motions to withdraw guilty pleas -.." (quotations and citation omitted)); State v. Merrill, 2005 UT 34, 120, 114 P.3d 585 (stating that "section 77-13-6(@2)(b) is indeed jurisdictional"); State v. Reyes, 2002 UT 183, 1 8, 40 P.3d 630 (refusing to consider, for lack of jurisdiction, the defendant's attacks on his guilty plea because he failed to comply with section 77-13-6(2)); see also Manning v. State, 2005 UT 61, 1 36, 122 P.3d 628 ("Any challenge to ... a plea agreement, or to waivers contained therein, may only be undertaken following a timely motion for withdrawal of the guilty plea."). Thus, a defendant's failure to comply with section 77-13-6(2) precludes this court from reviewing his or her appeal from a guilty plea.

18 Here, Defendant pleaded guilty on April 22, 2005, and did not move to withdraw or otherwise challenge his plea prior to sentencing on July 22, 2005. Once the trial *857 court entered its sentencing order, Defendant lost his right to withdraw his guilty plea. Therefore, Defendant's failure to comply with section 77-13-6(2) precludes our review of his appeal because we lack jurisdiction to do so. 1 See Merrill, 2005 UT 34 at 1119-20, 114 P.3d 585. As such, "Defendant's challenge to his guilty plea, having been made outside the time period specified by statute, can only be pursued under ... [the] Post-Conviction Remedies Act, and rule 65C, Utah Rules of Civil Procedure." State v. Nicholls, 2006 UT 76, 16, 148 P.3d 990 (quotations and citation omitted).

19 Defendant argues at length that despite his failure to comply with section T7-13-6(2), we may review his claim under ineffective assistance of counsel, exceptional circumstances, or plain error. Defendant concedes that current case law prevents us from reviewing his claim under plain error and ineffective assistance. See, eg., State v. Melo, 2001 UT App 392, 14, 40 P.3d 646 (holding that court lacked jurisdiction to hear the defendant's plain error and ineffective assistance of counsel claims due to the defendant's failure to timely move to withdraw his guilty plea). Nonetheless, Defendant asks us to overturn this precedent. 2 This we cannot do because we are bound by our previous decisions as well as the decisions of the Utah Supreme 'Court. "Vertical stare decisis ... compels a court to follow strictly the decisions rendered by a higher court." State v. Menzies, 889 P.2d 393, 399 n. 8 (Utah 1994).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re E.R.
2019 UT App 208 (Court of Appeals of Utah, 2019)
Khan v. Tax Commission
2018 UT App 13 (Court of Appeals of Utah, 2018)
State v. Legg
2016 UT App 168 (Court of Appeals of Utah, 2016)
State v. Pham
2016 UT App 105 (Court of Appeals of Utah, 2016)
Asset Acceptance LLC v. Utah State Treasurer
2016 UT App 25 (Court of Appeals of Utah, 2016)
State v. Becker
2015 UT App 304 (Court of Appeals of Utah, 2015)
State v. Marchet
2012 UT App 267 (Court of Appeals of Utah, 2012)
State v. Harris
2011 UT App 274 (Court of Appeals of Utah, 2011)
State v. MATA-MARTINEZ
2011 UT App 135 (Court of Appeals of Utah, 2011)
State v. Smith
2011 UT App 124 (Court of Appeals of Utah, 2011)
State v. Baskins
2011 UT App 61 (Court of Appeals of Utah, 2011)
State v. Newland
2010 UT App 380 (Court of Appeals of Utah, 2010)
State v. Navarro
2010 UT App 302 (Court of Appeals of Utah, 2010)
Ewing v. State, Department of Transportation
2010 UT App 158 (Court of Appeals of Utah, 2010)
Clearfield City v. Hoyer
2008 UT App 226 (Court of Appeals of Utah, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
2007 UT App 92, 156 P.3d 854, 573 Utah Adv. Rep. 29, 2007 Utah App. LEXIS 82, 2007 WL 765273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tenorio-utahctapp-2007.