State v. Brown

2013 UT App 99
_________________________________________________________
THE U TAH COURT OF A PPEALS
STATE OF U TAH,
Plaintiff and Appellee,
v.
KEITH SCOTT BROWN ,
Defendant and Appellant.
Per Curiam Decision
No. 20130095‐CA
Filed April 18, 2013
Fourth District, Provo Department
The Honorable David N. Mortensen
No. 111400408
Taylor C. Hartley and H.D. Gailey, Attorneys for Appellant
John E. Swallow and Marian Decker, Attorneys for Appellee
Before J UDGES ORME , D AVIS, and MCHUGH.
PER CURIAM:
¶1 	Keith Scott Brown appeals the denial of his motion for a
misplea seeking to set aside his guilty pleas to one count of sodomy
on a child, a first degree felony, and two counts of sexual abuse of
a child, a second degree felony. This case is before the court on a
sua sponte motion for summary disposition. We dismiss the appeal
because we lack jurisdiction to consider the belated challenge to his
guilty pleas.
¶2 	Brown pleaded guilty to the charges on February 17, 2011.
On March 31, 2011, the district court announced the sentence and
entered a signed judgment and sentence. Brown did not make a

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20130095‐CA 	2013 UT App 99	2
motion to withdraw his guilty pleas at any time prior to sentencing.
See Utah Code Ann. § 77‐13‐6(2)(b) (LexisNexis 2012) (“A request
to withdraw a plea of guilty . . . shall be made by motion before
sentence is announced.”). On November 6, 2012, Brown filed a
motion for misplea requesting the district court to sua sponte set
aside his guilty plea. The district court “decline[d] to exercise its
discretion and find a misplea.” The district court further con‐
cluded, “In the absence of the court sua sponte considering the
misplea, the court no longer has jurisdiction to consider the
matter.”
¶3 	Failure to file a motion to withdraw a guilty plea within the
time frame required by section 77‐13‐6 deprives the trial court and
appellate courts of jurisdiction to review the validity of the plea. See
State v. Rhinehart, 2007 UT 61, ¶¶ 12–14, 167 P.3d 1046; see also
Grimmett v. State, 2007 UT 11, ¶ 8, 152 P.3d 306 (“Utah Code section
77‐13‐6(2)(b) establishes the filing limitations that govern a criminal
defendant’s right to withdraw a guilty plea. These filing limitations
are jurisdictional.”). The failure to file a timely motion to withdraw
a guilty plea “extinguishes a defendant’s right to challenge the
validity of the guilty plea on appeal.” Grimmett, 2007 UT 11, ¶ 8.
“Any challenge to a guilty plea not made within the time period
specified in [section 77‐13‐6(2)(b)] shall be pursued under Title 78B,
Chapter 9, Post‐Conviction Remedies Act, and Rule 65C, Utah
Rules of Civil Procedure.” Utah Code Ann. § 77‐6‐13(2)(c).
¶4 	Brown did not move to withdraw his guilty plea within the
time required by section 77‐13‐6, but he sought to challenge its
validity by a motion for a misplea filed over a year and a half after
entry of his guilty plea. Brown argued that the request for the
district court to act to vacate a guilty plea was not subject to the
time restrictions on a motion to withdraw a guilty plea. In State v.
Ott, 2010 UT 1, 247 P.3d 344, the Utah Supreme Court rejected an
argument “that this court should disregard [Ott’s] failure to timely
move to withdraw his guilty plea because his guilty plea consti‐
tutes a misplea.” Id. ¶ 19. The supreme court declined “to discuss
whether Mr. Ott’s plea met the requirements for a court to grant a

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20130095‐CA 	2013 UT App 99	3
misplea because we hold that the misplea doctrine . . . cannot be
used to circumvent juridictional requirements.” Id. ¶ 20. Citing
State v. Lopez, 2005 UT App 496, ¶ 19, 128 P.3d 1, the supreme court
acknowledged that under appropriate circumstances a trial court
“may sua sponte set aside a guilty plea even after the time restric‐
tions of section 77‐13‐6 have expired.” Ott, 2010 UT 1, ¶ 20.
However the Ott decision distinguished the facts of Ott’s case from
the facts of Lopez because the district court in Lopez actually
exercised its discretion to sua sponte set aside the guilty plea prior
to entering its judgment and sentence. See id.; see also Lopez, 2005
UT App 496, ¶ 28 (concluding that the “trial court had jurisdiction
to sua sponte withdraw Defendant’s guilty plea after announce‐
ment of his sentence but before entry of a written judgment”).
Under the circumstances in Ott, where the district court did not
exercise its discretion to set aside the guilty plea prior to entering
judgment, the supreme court held that the jurisdictional bar of
section 77‐6‐13 applied and that it therefore lacked jurisdiction to
determine the validity of the guilty plea under the misplea
doctrine. Ott, 2010 UT 1, ¶ 20. Similarly, the district court in
Brown’s case did not declare a misplea sua sponte prior to entering
judgment, and it declined to do so later at Brown’s suggestion.
Therefore, we are jurisdictionally barred from considering a
challenge to the validity of the guilty plea.
¶5 	Even after restating the Ott holding, Brown repeats the
arguments made in, and rejected by, the district court that a
misplea should have been granted sua sponte by that court.
Brown’s motion for misplea cannot “be used to circumvent
jurisdictional requirements.” Id. Because we conclude that we lack
jurisdiction to review a challenge to the validity of Brown’s guilty
plea, we do not consider the merits of the arguments that the
district court erred in denying the motion for a misplea. Accord‐
ingly, we dismiss the appeal for lack of jurisdiction.