State v. Npimnee

2020 UT App 80
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
HOPE TUAKA NPIMNEE,
Appellant.
Per Curiam Opinion
No. 20200074-CA
Filed May 29, 2020
Seventh District Court, Monticello Department
The Honorable Don Torgerson
No. 201700007
K. Andrew Fitzgerald, Attorney for Appellant
Alex J. Goble and Kendall G. Laws, Attorneys
for Appellee
Before JUDGES GREGORY K. O RME, M ICHELE M. C HRISTIANSEN
F ORSTER , and R YAN M. HARRIS.
PER CURIAM:
¶1 	Hope Tuaka Npimnee was charged with one count of
possession of a controlled substance, a class A misdemeanor, one
count 	of 	possession 	of 	a 	controlled 	substance, 	a 	class 	B
misdemeanor, 	and 	one 	count 	of 	possession 	of 	drug
paraphernalia, a class B misdemeanor. Npimnee filed a motion
seeking “discovery” intended to compel the State to enter into
plea negotiations. The district court ordered the State to comply
with Npimnee’s discovery request but clarified that the court
would not become involved in plea negotiations. On January 16,
2020, Npimnee filed a second pro se motion requesting that an
arraignment be held on January 20, 2020, “because I would
possibly like to respectfully enter a plea in abeyance to all
charges (or no contest) if prosecution agrees to stay prison for

State v. Npimnee
20200074-CA 	2 	2020 UT App 80
concurrent 	probation 	in 	case 	no. 	191700135 	[and] 	case 	no.
191700213.” The State responded that negotiations would take
place after the court held an initial appearance but that a plea in
abeyance would not be offered. The court again denied the
motion on the 	basis that the court does not participate 	in
settlement negotiations and could not force the State to negotiate
with Npimnee. On January 17, 2020, Npimnee filed a pro se
notice of appeal from the denial of his motion for arraignment.
¶2 	At his first appearance in this case, Npimnee wanted to
resolve the case “today” and stated that he wished to represent
himself. 	Based 	upon 	a 	colloquy 	and 	the 	court’s 	previous
experience with Npimnee, the court found that the decision to
represent himself was made voluntarily and that he understood
the consequences of representing himself and not having the
assistance of an attorney. The prosecutor made a plea offer in
open court for Npimnee to plead guilty to the two class B
misdemeanor charges, and, in exchange, the State would dismiss
the class A misdemeanor charge. The State further agreed to
recommend 	that 	the 	sentences 	could 	run 	concurrently 	to
sentences 	that 	Npimnee 	was 	currently 	serving. 	Npimnee
accepted the offer and asked to be sentenced immediately. The
district court found that the guilty pleas were knowing and
voluntary and that Npimnee waived the time for sentencing.
¶3 	The district court sentenced Npimnee to six months in jail
on each of the two class B misdemeanors in this case with the
sentences, if served, to run concurrently with each other but
consecutively 	to 	the 	sentences 	in 	cases 	191700213 	and
191700135.1 The court suspended all jail time, placing Npimnee
1. 	In 	case 	number 	191700213, 	Npimnee 	pled 	no 	contest 	to
witness tampering, a third-degree felony, and was sentenced to
zero to five years in prison. In case number 191700135, Npimnee
pled 	guilty 	to 	possession 	of 	a 	controlled 	substance 	and
(continued…)

State v. Npimnee
20200074-CA 	3 	2020 UT App 80
on court-supervised probation for twenty-four months on the
same terms as in his other cases. Accordingly, the conditions of
probation in all three cases included serving sixty days in jail, as
well as obtaining a 	drug and alcohol assessment, domestic
violence 	counseling, 	and 	a 	mental 	health 	assessment, 	and
completing any recommended treatments.
¶4 	The only notice of appeal filed in this case complained
that the court denied his “motion for arraignment.” No further
notice of appeal was filed from the final judgment and sentence.
Npimnee entered a guilty plea and did not move to withdraw
the plea. It follows that Npimnee waived any issues regarding
the interlocutory order denying his motion for arraignment
when he entered his guilty plea. “The general rule applicable in
criminal 	proceedings, 	and 	the 	cases 	are 	legion, 	is 	that 	by
pleading guilty, the defendant is deemed to have admitted all of
the essential elements of the crime charged and thereby waives
all 	non-jurisdictional 	defects, 	including 	alleged 	pre-plea
constitutional violations.” State v. Parsons, 781 P.2d 1275, 1278
(Utah 1989); see also State v. Rhinehart, 2007 UT 61, ¶ 15, 167 P.3d
1046 (“Except in those instances in which errors affect the court’s
jurisdiction or where claims of error are expressly preserved for
appeal, a conviction or guilty plea acts as a waiver of earlier
procedural flaws.”).
¶5 	Soon after the appeal was docketed, this court, on its own
motion, sent out a notice indicating that the case was being
considered for summary disposition. In response, Npimnee’s
appellate 	counsel 	argues 	that 	the 	sua 	sponte 	motion 	for
summary disposition is premature because he must be allowed
(…continued)
obstructing justice, both class A misdemeanors; to possession of
a controlled substance and possession of drug paraphernalia,
both class B misdemeanors; and to a traffic infraction.

State v. Npimnee
20200074-CA 	4 	2020 UT App 80
the opportunity to file a brief pursuant to Anders v. California, 386
U.S. 738 (1967). However, counsel’s response appears to be
based 	upon 	a 	misconception 	of 	the 	summary 	disposition
procedure. 	Our 	appellate 	courts 	have 	held 	that 	a 	criminal
defendant is not denied the constitutional right to appeal by a
summary disposition procedure. See State v. Palmer, 786 P.2d 248,
249 (Utah Ct. App. 1990); see also Brown v. Glover, 2000 UT 89,
¶ 17, 16 P.3d 540 (confirming the rationale of the court of appeals
that the right to appeal is not denied when a case is determined
by summary disposition). While Anders, as adopted by State v.
Clayton, 639 P.2d 168 (Utah 1981), describes a procedure that
may 	be 	utilized 	by 	appointed 	counsel 	when 	faced 	with 	a
potentially frivolous criminal appeal, those decisions do not
mandate 	allowing 	a 	case–otherwise 	subject 	to 	summary
disposition–to go forward for the purpose of allowing counsel
an opportunity to file an Anders brief.
Appellant 	argues that 	[Utah 	Rule 	of 	Appellate
Procedure 	10] 	governing 	summary 	disposition
denies him his constitutional right of appeal. There
is no question that defendant has a right of appeal
under article 1, section 12 of our Utah Constitution.
That right is not denied when appellant filed a
notice of appeal, has an adequate opportunity to
present his arguments to the appellate court with
supporting authority, and the issues, arguments,
and record are all considered and determined by
an impartial panel of judges in accordance with
applicable 	statutes 	and 	rules. 	Appellant 	is 	not
afforded less by summary disposition.
Palmer, 786 P.2d at 249 (quotation simplified). A defendant “does
not have the immutable constitutional right to unlimited review,
unfiltered by the statutes and rules that regulate the appellate
process.” Id. This court emphasized in Palmer that when a case is
considered 	for 	possible 	summary 	disposition, 	“reversal 	or

State v. Npimnee
20200074-CA 	5 	2020 UT App 80
affirmance 	is rarely, 	if 	ever, 	granted 	without 	our 	complete
review of all pertinent portions of the record.” Id. “Therefore,
when summary disposition is considered in criminal matters, we
await the filing of all designated trial and hearing transcripts and
will 	review 	them 	before 	determining 	whether 	summary
affirmance or reversal is appropriate.” Id.
¶6 	Accordingly, 	because 	it 	is 	well-settled 	that 	a 	party,
including 	a 	criminal 	defendant, 	has 	no 	“immutable
constitutional right” to file a regular appellate brief, or have oral
argument, 	when 	this 	court 	has 	determined 	that 	summary
disposition procedures are warranted, this principle applies with
equal force when an appointed attorney seeks an opportunity to
employ the Anders procedures. See id.
¶7 	This court afforded Npimnee an opportunity to present
his issues and arguments in a summary disposition procedure,
which this court and the Utah Supreme Court have concluded
satisfies the constitutional right to appeal. The court also awaited
the filing of the designated transcript in this case and has
reviewed it. Based upon that review, we conclude that the issues
in this appeal are insubstantial, and that summary affirmance is
appropriate. 	Npimnee 	pleaded 	guilty 	to 	two 	class 	B
misdemeanors pursuant to a plea bargain. Npimnee did not
move to withdraw his guilty plea and asked to be sentenced
immediately. 	He 	received 	a 	sentence 	that 	was 	within 	the
statutory range for his offenses. The jail sentence was stayed,
and he was placed on probation on the same terms as in his
other two cases, which is what he requested. This court is not
required to defer its disposition of the case until after counsel
has filed a brief per the Anders procedure. In this case, we have
determined that the appeal presents an insubstantial question
and therefore that the judgment and sentence may be summarily
affirmed under rule 10 of the Utah Rules of Appellate Procedure.
See Utah R. App P. 10(a)(2) (stating the court “may summarily

State v. Npimnee
20200074-CA 	6 	2020 UT App 80
affirm the judgment or order that is the subject of review if it
plainly appears that no substantial question is presented”).
¶8 	Affirmed.