State v. Featherston

2020 UT App 106
THE UTAH C OURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
J AMES P AUL FEATHERSTON,
Appellant.
Opinion
No. 20180290-CA
Filed July 9, 2020
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 161906299
Emily Adams, Attorney for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
J UDGE MICHELE M. C HRISTIANSEN FORSTER authored this Opinion,
in which J UDGES G REGORY K. ORME and KATE A PPLEBY concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 	James 	Paul 	Featherston 	pleaded 	guilty 	to 	aggravated
kidnapping, and the district court sentenced him to fifteen years
to 	life 	in 	prison. 	During 	the 	sentencing 	hearing, 	the 	State
breached the plea agreement. Featherston appealed. On appeal,
the State conceded the breach, and the parties requested remand
for resentencing before a new district court judge. Accordingly,
this 	court 	remanded 	the 	case 	to 	the 	district 	court 	for 	that
purpose. On remand, Featherston moved to withdraw his guilty
plea; the court denied that motion and again imposed a sentence
of fifteen years to life. Featherston again appeals, this time
arguing his prior appellate counsel performed deficiently by
agreeing to resentencing as the correct remedy for the State’s
breach instead of requesting remand to seek plea withdrawal.

State v. Featherston
20180290-CA 	2 	2020 UT App 106
Featherston 	seeks 	reversal 	under 	this 	claim 	of 	ineffective
assistance 	of 	counsel. 	Alternatively, 	he 	argues 	that 	the
sentencing court erred in considering this court’s prior order as
mandating only resentencing when two possible remedies for
the State’s breach were available to Featherston on remand.
Because 	Utah’s 	Plea 	Withdrawal 	Statute 	applies 	and 	bars
appellate review of Featherston’s claims of error, we affirm his
conviction and sentence.
BACKGROUND
¶2 	The 	State 	charged 	Featherston 	with 	aggravated
kidnapping, aggravated abuse of a vulnerable adult, obstruction
of 	justice, 	and 	criminal 	mischief. 	After 	his 	victim 	(Victim)
testified at the preliminary hearing, Featherston and the State
entered 	into 	a 	plea 	agreement. 	As 	part 	of 	that 	agreement,
Featherston pleaded guilty to aggravated kidnapping, and in
return, the State dismissed the remaining three charges and
agreed to recommend a sentence of six years to life in prison, as
opposed 	to 	the 	statutory 	fifteen 	years 	to 	life. 	During 	the
sentencing hearing, the State emphasized the “depravity” of
Featherston’s crime and argued that the plea agreement was
“against [the State’s] better judgment.” The State further alleged
Featherston “violated the protective order” in favor of Victim
and “sent his former cell mate to visit her to shake her down.”
Despite the State’s “recommendation” of six years to life in
prison, the district court imposed a prison sentence of fifteen
years to life. Featherston appealed, alleging that the district court
abused its discretion by imposing a clearly excessive sentence
and that the State breached the plea agreement.
¶3 	In the first appeal, the State conceded that it breached the
agreement by undercutting its purported recommendation with
its ancillary commentary, and Featherston withdrew his abuse of
discretion claim. Pursuant to a stipulation between Featherston
and the State, this court issued an order reversing Featherston’s

State v. Featherston
20180290-CA 	3 	2020 UT App 106
sentence 	and 	remanding 	the 	case 	to 	the 	district 	court 	for
resentencing before a new judge.
¶4 	Back before the district court, citing this court’s decision
in State v. Smit, 2004 UT App 222, 95 P.3d 1203, Featherston
moved to withdraw his guilty plea. He argued that when the
State breaches a plea agreement, the district court has discretion
to 	determine 	whether 	specific 	performance 	of 	the 	plea
agreement or withdrawal of the guilty plea is the appropriate
remedy 	for 	the 	State’s 	breach. 	In 	support 	of 	his 	motion,
Featherston alleged that the State improperly pressured Victim
and 	Featherston’s 	grandparents, 	which 	pressure 	he 	claimed
forced him to plead guilty. Victim also recanted her preliminary
hearing testimony, claimed she was unsure whether Featherston
was her attacker, and supported Featherston’s allegation of
prosecutorial pressure.
¶5 	At 	the 	new 	sentencing 	hearing, 	the 	court 	denied
Featherston’s motion to withdraw his guilty plea, explaining that
under 	the 	mandate 	rule,1 	“the 	appeal 	addressed 	only 	the
sentence.” The court noted that (1) “the mandate from the Court
of 	Appeals 	was 	[that 	Featherston 	was] 	‘entitled 	to 	a 	new
sentencing hearing’”; (2) “the language of the [Court of Appeals’
order] itself is clear, come back for sentencing before another
judge”; and (3) the parties had stipulated to the resentencing.
¶6 	Before imposing Featherston’s sentence, the sentencing
court “asked for mitigation” but, having heard from Victim and
Featherston, 	determined 	that 	nothing 	presented 	during 	the
hearing 	“suggest[ed] 	mitigation.” 	Instead, 	the 	court 	noted
1. “The mandate of an appellate court binds the district court
and the parties and affords the district court no discretion
whether to comply with that mandate.” Utah Dep’t of Transp. v.
Ivers, 2009 UT 56, ¶ 8, 218 P.3d 583.

State v. Featherston
20180290-CA 	4 	2020 UT App 106
“aggravating 	circumstances” 	and 	that 	“[t]he 	offense 	caused
substantial physical and psychological injury to [Victim]. It was
characterized by extreme cruelty and depravity.” The court
stated that Featherston did not admit guilt or show “remorse or
contriteness, but rather defiance,” and it consequently found no
evidence to support deviation from the statutory “presumption
of 15 years to life.” The court then imposed the original sentence
of fifteen years to life in prison. Represented by new appellate
counsel, Featherston again appeals.
ISSUES AND STANDARDS OF REVIEW
¶7 	Featherston raises two main issues on appeal. First, he
argues his prior appellate counsel was ineffective for not seeking
plea withdrawal as a remedy for the State’s breach when he and
the 	State 	stipulated 	to 	remand. 	An 	ineffective-assistance-of-
counsel claim raised for the first time on appeal presents a
question of law. Layton City v. Carr, 2014 UT App 227, ¶ 6, 336
P.3d 587.2
2. Featherston also argues that the exceptional circumstances
doctrine should be applied to allow him to withdraw his guilty
plea. But the exceptional circumstances doctrine is an exception
to the preservation rule; it is reserved “for the most unusual
circumstances where our failure to consider an issue . . . would
have resulted in manifest injustice” and allows an appellate
court to reach the merits of an unpreserved issue only when “a
rare procedural anomaly has either prevented an appellant from
preserving an issue or excuses a failure to do so.” State v. Brown,
2019 UT App 122, ¶ 24, 447 P.3d 1250 (quotation simplified). The
exceptional 	circumstances 	doctrine 	does 	not 	provide 	an
alternative remedy or avenue for Featherston to seek withdrawal
of his guilty plea in this case.

State v. Featherston
20180290-CA 	5 	2020 UT App 106
¶8 	Second, 	Featherston 	alleges 	that 	the 	district 	court
incorrectly applied the mandate rule after this court returned the
case to the district 	court for resentencing. “We review the
application of the mandate rule for correctness.” Fish v. Fish, 2016
UT App 125, ¶ 10, 379 P.3d 890.3
ANALYSIS
I. Ineffective Assistance of Appellate Counsel
¶9 	Featherston asserts that his former appellate counsel was
ineffective for failing to request plea withdrawal as a remedy for
the State’s breach of the plea agreement. To succeed on a claim
of ineffective assistance of counsel, the appellant must show
both objectively deficient performance of counsel and that the
deficient 	performance prejudiced 	the 	appellant. 	Strickland 	v.
Washington, 466 U.S. 668, 687 (1984). Featherston’s ineffective
assistance 	claim 	hinges 	on 	his 	assertion 	that 	Utah’s 	Plea
Withdrawal Statute, see Utah Code Ann. § 77-13-6 (LexisNexis
2017), does not apply when the State breaches a plea agreement
and 	that 	his 	prior 	appellate 	counsel 	should 	therefore 	have
requested 	a 	remand 	for 	plea 	withdrawal 	rather 	than
3. Featherston also asks this court to remand the case to the
district court pursuant to rule 23B of the Utah Rules of Appellate
Procedure so that letters he sent to his prior counsel can be made
part of the record to support his claim of ineffective assistance of
appellate counsel. See Utah R. App. P. 23B. In those letters,
Featherston allegedly asked prior appellate counsel to pursue a
remedy of plea withdrawal. But because we determine that
resentencing was Featherston’s only option on remand from the
first appeal, see infra ¶¶ 9–12, supplementing the record with
letters could not “support a determination that counsel was
ineffective,” 	and 	we 	therefore 	deny 	Featherston’s 	rule 	23B
motion. See Utah R. App. P. 23B(a).

State v. Featherston
20180290-CA 	6 	2020 UT App 106
resentencing. We disagree and hold that the Plea Withdrawal
Statute applies to all plea withdrawals and limits a defendant
who has not timely moved to withdraw a plea to challenging
that guilty plea or the denial of a plea withdrawal request
through post-conviction proceedings. See State v. Badikyan, 2020
UT 3, ¶ 17, 459 P.3d 967; State v. Flora, 2020 UT 2, ¶ 26, 459 P.3d
975. And because Featherston did not comply with the Plea
Withdrawal Statute by moving to withdraw his guilty plea
before he was sentenced originally, the statute prevents this
court from considering his challenge to his guilty plea on appeal
and resolves the issue of whether his appellate counsel rendered
deficient performance.
¶10 	Through the Plea Withdrawal Statute, our legislature has
dictated that a plea of guilty may be withdrawn “only upon
leave 	of 	the 	court 	and 	a 	showing,” 	“before 	sentence 	is
announced,” “that [the plea] was not knowingly and voluntarily
made.” Utah Code Ann. § 77-13-6(2)(a)–(b). Once a defendant
has 	been 	sentenced, 	the 	statute 	expressly 	states 	that 	any
challenge to a guilty plea may be pursued only under the Post-
Conviction Remedies Act (PCRA). Id. § 77-13-6(2)(c). Precedent
from our supreme court supports this conclusion. See Flora, 2020
UT 2, ¶ 12 (“Any challenge to a guilty plea that does not meet
[the] requirements [of the Plea Withdrawal Statute] must be
pursued under the [PCRA] . . . .” (quotation simplified)); State v.
Allgier, 2017 UT 84, ¶¶ 14, 18, 416 P.3d 546 (explaining that “the
Plea Withdrawal Statute limits a defendant’s right to appeal by
requiring the defendant to either withdraw the plea prior to
sentencing, or pursue postconviction relief after sentencing,” and
that “the plain language of the current Plea Withdrawal Statute
explicitly provides the procedural roadmap for post-sentencing
motions to withdraw a plea—and that is through postconviction
relief” (quotation simplified)).
¶11 	Thus, there is a fundamental problem with Featherston’s
assertion that his prior appellate counsel was ineffective for not

State v. Featherston
20180290-CA 	7 	2020 UT App 106
demanding the option of plea withdrawal as a remedy for the
State’s breach of the plea agreement: because Featherston did not
seek to withdraw his plea before he was sentenced, the district
court 	could 	have 	no 	jurisdiction 	to 	consider 	a 	motion 	to
withdraw the plea on remand. See Grimmett v. State, 2007 UT 11,
¶ 24, 152 P.3d 306 (determining that a district court lacks
jurisdiction 	to 	consider 	a 	defendant’s 	untimely 	motion 	to
withdraw his guilty plea on resentencing); State v. Saenz, 2016
UT App 95, ¶ 6, 373 P.3d 220 (“[B]ecause [the appellant] made
his motion to withdraw his plea after sentencing, the district
court did not have jurisdiction to consider it.”). Rather, any
challenge to the plea would have had to be pursued in post-
conviction 	proceedings. 	See 	Utah 	Code 	Ann. 	§ 	77-13-6(2)(c)
(stating that any challenge to a guilty plea made after sentencing
must be pursued under the PCRA); see also Gailey v. State, 2016
UT 35, ¶ 20, 379 P.3d 1278 (“We therefore reaffirm our prior
caselaw holding that after sentencing is entered, a defendant
may not file a motion to withdraw a guilty plea or directly
appeal the plea, but must pursue postconviction relief through
the PCRA . . . .”). Consequently, specific performance was the
only procedural option Featherston’s counsel could ask this
court to order in remanding the case. Any request from appellate
counsel for a remedy of plea withdrawal would have been futile
because we could not order a remedy the district court lacked
jurisdiction to entertain. See State v. Nicholls, 2017 UT App 60,
¶ 21, 397 P.3d 709 (“[A] defendant has only a finite window of
time during which to seek plea withdrawal, and missing the
window divests the defendant of the right to appeal anything
but the sentence itself.”); see also State v. Perez-Avila, 2006 UT
App 71, ¶ 7, 131 P.3d 864 (“It is well settled that counsel’s
performance at trial is not deficient if counsel refrains from
making futile objections, motions, or requests.”).
¶12 	That the State breached the plea agreement at the original
sentencing 	hearing 	does 	not 	provide 	Featherston 	a 	post-
sentencing 	avenue 	to 	seek 	withdrawal 	of 	his 	guilty 	plea.

State v. Featherston
20180290-CA 	8 	2020 UT App 106
Although a defendant “has a constitutional right to a remedy” if
the State breaches a plea agreement, State v. Smit, 2004 UT App
222, ¶ 9, 95 P.3d 1203, the appropriate remedy will depend on
the circumstances of each case, see Santobello v. New York, 404
U.S. 257, 263 (1971) (“The ultimate relief to which petitioner is
entitled we leave to the discretion of the state court, which is in a
better position to decide wh[at] the circumstances of this case
require . . . .”).4 Here, the plain language of the Plea Withdrawal
4. Featherston asserts that State v. Saenz, 2016 UT App 95, 373
P.3d 220, was incorrectly decided and that we should overrule it.
But Saenz was neither incorrectly decided nor inconsistent with
State v. Smit, 2004 UT App 222, 95 P.3d 1203. Like Featherston,
Saenz 	pleaded 	guilty 	in 	exchange 	for 	the 	prosecutor’s
recommendation at sentencing. See Saenz, 2016 UT App 95, ¶ 2.
At sentencing, the prosecutor made the agreed recommendation
but 	then 	drew 	the 	court’s 	attention 	to 	prior 	juvenile
adjudications that seemed to require an enhanced sentence. Id.
¶ 3. The court sentenced Saenz to an enhanced sentence, and
Saenz later sought to withdraw his guilty plea, arguing that the
enhanced sentence was not correctly imposed. Id. ¶¶ 3–4. The
sentencing court agreed with Saenz that it erred in imposing an
enhanced 	sentence 	but 	denied 	as 	untimely 	his 	motion 	to
withdraw his guilty plea. Id. ¶ 4. On appeal, this court agreed
that the enhanced sentence was illegal and that Saenz had timely
pursued correction of the sentence under rule 22(e) of the Utah
Rules of Criminal Procedure, id. ¶ 8, but it upheld the denial of
the motion to withdraw as untimely “because Saenz made his
motion to withdraw his plea after sentencing [and] the district
court did not have jurisdiction to consider it,” id. ¶ 6. Here, the
sentence imposed by the sentencing court was not illegal and not
subject to correction under rule 22. See Utah R. Crim. P. 22(e).
In addition, Featherston suggests that Saenz is inconsistent
with Smit, wherein the defendant moved to withdraw his plea
after sentence was imposed and this court concluded that “when
(continued…)

State v. Featherston
20180290-CA 	9 	2020 UT App 106
Statute 	requires 	a 	defendant 	to 	make 	the 	motion 	for 	plea
withdrawal before the court announces sentence. See Utah Code
Ann. § 77-13-6(2)(b) (“A request to withdraw a plea of guilty or
no contest . . . shall be made by motion before sentence is
announced. Sentence may not be announced unless the motion is
denied.”).5 And our supreme court has repeatedly held that the
Plea Withdrawal Statute imposes a jurisdictional bar and does
(…continued)
a plea agreement is breached by the prosecutor, the proper
remedy is either specific performance of the plea agreement or
withdrawal of the guilty plea both at the discretion of the trial
judge. Accordingly, if the prosecutor in the instant case had
breached the plea agreement, we would remand to the trial court
for a determination of the appropriate remedy.” Smit, 2004 UT
App 222, ¶ 17. But Smit was decided under a prior version of the
Plea Withdrawal Statute, which had a different deadline to seek
withdrawal (within 30 days after sentencing) and a different
standard for granting withdrawal (good cause). See id. ¶¶ 18, 26.
In any event, the Smit court determined that the prosecutor did
not 	breach 	the 	plea 	agreement, 	so 	any 	discussion 	of 	plea
withdrawal was not necessary to the court’s decision. Id. ¶ 17.
5. Featherston argues that applying the requirements of the Plea
Withdrawal Statute to plea breach situations will require a
defendant 	to 	be 	omniscient, 	requiring 	a 	defendant 	to 	seek
withdrawal of a guilty plea before the breach even occurs. To the
contrary, those participating in the sentencing hearing are in the
best position to recognize a breach as it occurs. That is, trial
counsel is in the best position to recognize if the State is not
undertaking the agreed commitments, and the district court is in
the best position to consider the merits of a plea withdrawal
request and the appropriate remedy if a breach has occurred,
having just observed the actions and recommendations of both
parties before imposing sentence.

State v. Featherston
20180290-CA 	10 	2020 UT App 106
not allow defendants to work around this jurisdictional bar
through the exceptions to preservation or through other means.
See Allgier, 2017 UT 84, ¶ 26 (“The [Plea Withdrawal Statute]
speaks directly and comprehensively to the result of failure to
move to withdraw prior to sentencing. . . . Any challenge to a
guilty 	plea 	not 	made 	within 	the 	time 	period 	specified 	in
Subsection 	(2)(b) 	shall 	be 	pursued 	under 	the 	[PCRA].”
(quotation simplified)). Accordingly, even in the instance of the
State’s breach, because Featherston did not seek to withdraw his
guilty plea before he was sentenced, the district court did not
have jurisdiction to consider his motion to withdraw his plea
later, and his appellate counsel was limited to seeking specific
performance on remand. Thus, counsel was not deficient in
stipulating 	to 	that 	remedy, 	and 	Featherston’s 	ineffective-
assistance-of-counsel challenge accordingly fails. See Strickland,
466 U.S. at 687 (stating that ineffective assistance requires a
showing of deficient performance and prejudice). Featherston
must pursue any challenge to his guilty plea through the PCRA.
II. Mandate Rule
¶13 	Alternatively, Featherston argues that we should direct
the district court to read the mandate from this court’s prior
order 	to 	allow 	either 	withdrawal 	of 	his 	guilty 	plea 	or
resentencing 	before 	a 	new 	district 	court 	judge. 	Featherston
argues that this court’s prior order should be read to include the
ability to withdraw his guilty plea because under Santobello v.
New York, 404 U.S. 257 (1971), the remedy for prosecutorial
breach 	of 	a 	plea 	agreement 	is 	withdrawal 	of 	the 	plea 	or
resentencing. Id. at 263.
¶14 	“The mandate rule, unlike the law of the case before a
remand, binds both the district court and the parties to honor the
mandate of the appellate court. The mandate is also binding on
the 	appellate 	court 	should 	the 	case 	return 	on 	appeal 	after
remand.” IHC Health Services, Inc. v. D & K Mgmt., Inc., 2008 UT

State v. Featherston
20180290-CA 	11 	2020 UT App 106
73, ¶ 28, 196 P.3d 588 (quotation simplified). When Featherston
appealed his first sentence after the State breached the plea
agreement, both parties moved for remand and stipulated to the
appropriate remedy: resentencing before a new district court
judge. Based upon the stipulation, this court issued an order that
granted 	the 	parties’ 	joint 	motion 	for 	summary 	reversal 	of
Featherston’s sentence and remanded the case to a different
district 	court 	judge 	for 	resentencing. 	Prior 	to 	resentencing,
Featherston moved to withdraw his guilty plea, but the district
court declined to grant that motion, citing our rather specific
order 	and 	the 	mandate 	rule. 	Our 	mandate 	was 	limited 	to
resentencing 	not 	as 	an 	exercise 	of 	discretion, 	but 	because
resentencing (without the option to move for withdrawal of the
plea) was the only statutory option available to the district court.
At the time Featherston moved to withdraw his plea post-
remand, he had already been sentenced. And although we
reversed 	the 	sentence 	he 	had 	received 	and 	remanded 	for
resentencing so that Featherston was allowed to receive the
benefit of the bargain he had struck with the State, our order to
that effect did not restart the period allowed for plea withdrawal
or provide him with an opportunity to challenge his guilty plea.
See Grimmett v. State, 2007 UT 11, ¶ 24, 152 P.3d 306 (holding that
a resentencing order did not reopen the window for a defendant
to seek to withdraw a guilty plea after the jurisdictional deadline
had passed); see also State v. Samul, 2015 UT App 23, ¶ 26, 343
P.3d 719 (“Consequently, ‘a successful motion under rule 22(e)
may have the effect of undoing the sentence, but it will not vest
the defendant with new opportunities to challenge his case in
ways unrelated to sentencing.’” (quoting State v. Smith, 2012 UT
App 247, ¶ 10, 286 P.3d 314)). The district court was not so much
limited 	by 	our 	mandate 	as 	by 	the 	parameters 	of 	the 	Plea
Withdrawal Statute, which our mandate merely reflected as
Featherston’s only available course of action. Thus, we find no
fault in the district court’s decision to follow that direction.

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20180290-CA 	12 	2020 UT App 106
CONCLUSION
¶15 	Because Featherston did not seek to withdraw his guilty
plea before he was first sentenced based on the State’s breach,
the 	Plea 	Withdrawal 	Statute 	prevents 	this 	court 	from
considering the challenge to his guilty plea on appeal and
resolves the issue of whether his appellate counsel rendered
deficient performance. Moreover, the district court appropriately
followed our mandate in resentencing Featherston after his case
was remanded. Affirmed.