State v. Millward

1. The Honorable Judith M. Billings, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 174
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JEANETTE VICTORIA MILLWARD,
Defendant and Appellant.
Memorandum Decision
No. 20130022-CA
Filed July 25, 2014
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 101900245
Nathalie S. Skibine, Attorney for Appellant
Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee
SENIOR JUDGE JUDITH M. BILLINGS authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and STEPHEN L.
ROTH concurred.1
BILLINGS, Senior Judge:
¶1 Jeanette Victoria Millward appeals from the denial of her
motion to withdraw her plea in abeyance. We dismiss her appeal
for lack of jurisdiction.
¶2 As Millward recognizes, “[t]he law is well-settled that,
because there has been no final judgment, a direct appeal cannot be

State v. Millward
20130022-CA 2 2014 UT App 174
taken from a plea in abeyance agreement.” State v. Comer, 2002 UT
App 219, ¶ 14, 51 P.3d 55; see also State v. Hunsaker, 933 P.2d 415,
416 (Utah Ct. App. 1997) (per curiam); State v. Moss, 921 P.2d 1021,
1025 n.7 (Utah Ct. App. 1996). Thus, under well-settled law,
Millward is not guaranteed an appeal as of right.
¶3 Notwithstanding the settled nature of the law on this issue,
Millward asks that we overturn our prior precedent and consider
her appeal. The doctrine of stare decisis, “under which the first
decision by a court on a particular question of law governs later
decisions by the same court, is a cornerstone of the
Anglo-American jurisprudence that is crucial to the predictability
of the law and the fairness of adjudication.” State v. Menzies, 889
P.2d 393, 399 (Utah 1994) (citation and internal quotation marks
omitted). Therefore, “[t]hose asking us to overturn prior precedent
have a substantial burden of persuasion.” Id. at 398. Millward has
not met this burden.
¶4 Millward argues that we should depart from precedent
because it is not “weighty.” We disagree. The rule is well
established and sound. “In criminal cases, the sentence itself is the
final judgment from which an appeal can be taken.” Hunsaker, 933
P.2d at 416 (citing State v. Gerrard, 584 P.2d 885, 886 (Utah 1978)).
The Utah Code defines a plea in abeyance as “an order
. . . accepting a plea of guilty or of no contest from the defendant
but not, at that time, entering judgment of conviction against him nor
imposing sentence upon him on condition that he comply with
specific conditions as set forth in a plea in abeyance agreement.”
Utah Code Ann. § 77-2a-1(1) (LexisNexis 2012) (emphasis added).
The Utah Code also states,
At any time after acceptance of a plea of guilty or no
contest but prior to entry of judgment of conviction and
imposition of sentence, the court may, upon motion of
both the prosecuting attorney and the defendant,
hold the plea in abeyance and not enter judgment of
conviction against the defendant nor impose sentence
upon the defendant . . . .

State v. Millward
20130022-CA 3 2014 UT App 174
Id. § 77-2a-2(1) (emphasis added). Thus, the Utah Code plainly
provides “that a plea in abeyance is not a final adjudication.” Moss,
921 P.2d at 1025 n.7.
¶5 Millward also argues that our precedent does not address
the application of this rule to a person in her position. Again, we
disagree. Our prior decision in State v. Comer, 2002 UT App 219, 51
P.3d 55, is particularly analogous. In Comer, the defendant had filed
a motion to suppress, arguing that his constitutional rights were
violated by police officers’ warrantless entry into his home. Id. ¶ 5.
The district court denied the motion to suppress. Id. Thereafter the
defendant entered into a plea in abeyance agreement, which
expressly purported to allow him to appeal the denial of his motion
to suppress. Id. ¶ 8. The defendant then appealed to this court. Id.
The Comer court held that “a direct appeal cannot be taken from a
plea in abeyance agreement.” Id. ¶ 14. The court then dismissed the
appeal without prejudice. Id.
¶6 Millward raises some concerns about the inability to obtain
relief from constitutional violations that happen to a defendant
who has entered into a plea in abeyance agreement. However, our
rules governing interlocutory review provide an alternate route to
obtain this relief: “An appeal from an interlocutory order may be
granted only if it appears that the order involves substantial rights
and may materially affect the final decision or that a determination
of the correctness of the order before final judgment will better
serve the administration and interests of justice.” Utah R. App. P.
5(f). Thus, relief may still be attainable for a defendant who enters
into a plea in abeyance agreement even if there is no appeal as of
right from that plea agreement. In sum, Millward has not met her
burden of persuading us to overturn our prior precedent.
¶7 Millward argues, in the alternative, that rule 5 of the Utah
Rules of Appellate Procedure would allow us to treat her timely
appeal “as a petition for permission to appeal an interlocutory
order.” See id. R. 5(a). However, rule 5 allows for such treatment
only for “[a] timely appeal from an order certified under Rule
54(b), Utah Rules of Civil Procedure, that the appellate court

State v. Millward
2. It is unfortunate that the district court misadvised Millward that
she had thirty days to file an appeal. But “when subject matter
jurisdiction does not exist, neither the parties nor the court can do
anything to fill that void.” Crump v. Crump, 821 P.2d 1172, 1174
(Utah Ct. App. 1991) (citation and internal quotation marks
omitted).
20130022-CA 4 2014 UT App 174
determines is not final.” Id. Even were we to agree with Millward
that the rule 54(b) exception may apply in criminal cases, see
generally Utah R. Civ. P. 81(e) (“These rules of procedure shall also
govern in any aspect of criminal proceedings where there is no
other applicable statute or rule, provided, that any rule so applied
does not conflict with any statutory or constitutional
requirement.”), we do not see that the exception would be met
here. Rule 54(b) has specific requirements, including that “the
[district] court may direct the entry of a final judgment as to one or
more but fewer than all of the claims or parties only upon an
express determination by the court that there is no just reason for
delay and upon an express direction for the entry of judgment.” Id.
R. 54(b). There is nothing in the record that would indicate that the
order from which Millward appeals meets this requirement.
¶8 “Unless an order is certified as final pursuant to rule 54(b)
of the Rules of Civil Procedure, any petition seeking interlocutory
review must be filed within twenty days of the issuance of the
order sought to be appealed.” Powell v. Cannon, 2008 UT 19, ¶ 25,
179 P.3d 799; see also Utah R. App. P. 5(a). Millward’s appeal was
filed thirty days after the issuance of the order appealed from here.
Thus, even if we were to treat her notice of appeal as a petition for
permission to appeal an interlocutory order, it would be of no
avail. Because the time limitation of rule 5 is jurisdictional, see
Powell, 2008 UT 19, ¶ 25, we must dismiss the appeal.2
¶9 We dismiss this appeal without prejudice and remand to the
district court for further proceedings.