State v. Rhinehart

2007 UT 61
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, No. 20050635
Plaintiff and Appellee,
v.
F I L E D
Tamra Rhinehart,
Defendant and Appellant. August 14, 2007
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First District, Logan Dep’t
The Honorable Gordon J. Low
No. 031100633
Attorneys: Mark L. Shurtleff, Att’y Gen., Laura B. Dupaix, Asst.
Att’y Gen., Salt Lake City, N. George Daines, Donald
G. Linton, Scott L. Wyatt, Logan, for plaintiff
Elizabeth Hunt, Salt Lake City, for defendant
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NEHRING, Justice:
¶1 Michael Boudrero’s body was discovered lying in the
basement of a home under construction in North Logan, Utah, in
July 2003. He had been shot twice, once in the chest and once in
the back. Mr. Boudrero’s ex-wife, Tamra Rhinehart, pled guilty
to aggravated murder for her participation in the crime that took
Mr. Boudrero’s life. The district court sentenced her to life in
prison without the possibility of parole.
¶2 After her sentence was imposed, Ms. Rhinehart brought
this appeal. She places a sizeable catalogue of issues before
us. We will speak to the merits of two of the issues. We hold
that the relevant statutory requirement contained in section 77-
13-6--an attempt to withdraw a guilty plea on appeal must be
preceded by a motion before the district court--is constitutional
and has jurisdictional effect. See Utah Code Ann. § 77-13-6
(2004). We also hold that Ms. Rhinehart waived any right to
challenge her bindover when she entered her guilty plea. Based
on these holdings, we affirm the district court.

No. 20050635 2
BACKGROUND
¶3 Police discovered Mr. Boudrero’s body lying in the
basement of a vacant North Logan home still undergoing
construction. Mr. Boudrero had been shot twice and left face
down in the doorway of a storage room. Within a week of
Mr. Boudrero’s murder, police received an anonymous phone call
from a woman who claimed to know the murderer’s identity. The
woman, later identified as Marnie Christianson and Ms.
Rhinehart’s hairdresser, suggested that Ms. Rhinehart was
responsible for Mr. Boudrero’s death. Ms. Christianson proposed
police contact Jessica Goalen, Ms. Rhinehart’s former babysitter
and friend who, as we shall soon see, proved to be a source of
valuable information about Ms. Rhinehart’s ties to the murder.
Ms. Christianson also suggested that Ms. Rhinehart had a
boyfriend from South Africa who was likely involved.
¶4 That boyfriend was Craig Nicholls. Ms. Rhinehart met
Mr. Nicholls earlier in 2003 on the Internet. Mr. Nicholls
purchased a prepaid phone card in Brigham City, Utah, called
Mr. Boudrero from a pay phone, and lured Mr. Boudrero to the
vacant house by indicating that he had plumbing work at the site
that Mr. Boudrero might perform. When Mr. Boudrero arrived at
the house that fateful July evening, Mr. Nicholls shot him.
¶5 Although Ms. Rhinehart was not present at the shooting,
she had incurred sizeable debts and had persuaded Mr. Nicholls to
kill Mr. Boudrero for her pecuniary gain. For months prior to
the murder, Ms. Rhinehart had been trying to secure insurance
policies on the life of her former husband that named herself or
one of her minor children as beneficiary. When Mr. Boudrero
learned about the existence of one policy, he cancelled it.
Other attempts by Ms. Rhinehart to purchase insurance on
Mr. Boudrero’s life failed because the applications were
incomplete or because the companies determined that the size of
the policies was disproportionate to Mr. Boudrero’s means and
therefore constituted excess coverage. A persistent
Ms. Rhinehart finally succeeded in purchasing a $50,000 life
insurance policy for Mr. Boudrero in April 2003 in which she
listed herself as the beneficiary. Because the insurance company
required Mr. Boudrero’s signature prior to issuance,
Ms. Rhinehart forged it. Ms. Rhinehart described these efforts
to secure life insurance and the plan to kill her former husband
to Ms. Goalen, who later recounted the information to police.
¶6 Police arrested Mr. Nicholls. He later pled guilty to
aggravated murder and in accordance with his plea agreement,
provided police with a sworn statement regarding his and
Ms. Rhinehart’s participation in Mr. Boudrero’s murder.

3 No. 20050635
Mr. Nicholls agreed to testify against Ms. Rhinehart. (We
considered an improperly brought challenge to his guilty plea in
State v. Nicholls, 2006 UT 76, ¶ 6, 148 P.3d 990.)
¶7 In light of these events and associated evidence, the
State charged Ms. Rhinehart with one count of aggravated murder,
a capital felony in violation of Utah Code section 76-5-202; one
count of forgery, a third degree felony in violation of section
76-6-501; and four counts of communications fraud, a second
degree felony in violation of section 76-10-1801. In a separate
information, the State charged Ms. Rhinehart with one count of
burglary, a second degree felony in violation of section
76-6-202; three counts of theft, a second degree felony in
violation of section 76-6-404; and another count of
communications fraud.
¶8 The district court held a single preliminary hearing
where both Mr. Nicholls and Ms. Goalen invoked their rights
against self-incrimination and refused to testify against
Ms. Rhinehart. Instead, the district court admitted
Mr. Nicholls’s and Ms. Goalen’s sworn statements into evidence.
After being bound over on all charges, Ms. Rhinehart
unsuccessfully moved to quash the bindover order at the
preliminary hearing on the grounds that admission of hearsay
violated her rights under the Confrontation Clause of the United
States Constitution.
¶9 The burglary and aggravated murder cases were
ultimately severed. Ms. Rhinehart was convicted in the burglary
case, which proceeded first. She pled guilty nearly three months
later to aggravated murder in exchange for the State’s agreement
to drop all other charges and to refrain from seeking the death
penalty. Ms. Rhinehart appeals from this plea.
ANALYSIS
I. WE LACK JURISDICTION TO CONSIDER MS. RHINEHART’S CHALLENGE TO
THE LAWFULNESS OF HER GUILTY PLEA
¶10 The Utah Constitution mandates that all criminal
defendants be afforded the right of appeal. Utah Const. art. I,
§ 12; see Manning v. State, 2005 UT 61, ¶ 26, 122 P.3d 628.
Moreover, a defendant who has “‘been prevented in some meaningful
way from proceeding’” with a direct appeal of right is likely to
have been denied the due process of law guaranteed in article I,
section 7. Manning, 2005 UT 61, ¶ 26 (quoting State v. Penman,
964 P.2d 1157, 1166 (Utah Ct. App. 1998)).

No. 20050635 4
¶11 Ms. Rhinehart contends that the ineffectiveness of her
trial counsel caused her to enter her plea and to fail to bring a
timely motion to withdraw it. Under these circumstances,
Ms. Rhinehart insists, the requirement contained in section 77-
13-6 that she move to withdraw her guilty plea as a condition to
challenging her plea on direct appeal unconstitutionally deprives
her of her right to appeal.
¶12 Mindful that in State v. Merrill, 2005 UT 34, 114 P.3d
585, we settled the question of whether section 77-13-6 was
jurisdictional and constitutional by answering “yes” to both
inquiries, Ms. Rhinehart has nevertheless labored to set herself,
her circumstances, and her legal claims apart from those present
in Merrill. See also Grimmett v. State, 2007 UT 11, ¶ 8, 152
P.3d 306 (confirming the constitutional and jurisdictional nature
of the statute that experienced a substantial revision from the
version in Merrill). She argues that we should now answer “no”
to the two Merrill questions because it was her lawyer’s fault
that she entered her plea and failed to bring a timely motion to
withdraw it. According to Ms. Rhinehart, neither Merrill nor any
of our other pronouncements on section 77-13-6 confronted a claim
of ineffective assistance of counsel. She claims that this
distinction matters.
¶13 It does not. The ineffectiveness of a defendant’s
counsel may take many forms and result in relieving a criminal
defendant of an undesirable result. The ineffectiveness of
counsel that contributes to a flawed guilty plea, however, can
spare a defendant the consequences of her plea only if the
defendant makes out the same case required of every defendant who
seeks to withdraw a plea: that the plea was not knowing and
voluntary. See State v. West, 765 P.2d 891, 896 (Utah 1988)
(remanding the case to determine whether the defendant’s original
plea was knowing and voluntary where the facts suggest that the
defendant “received nothing in return for his guilty plea” and
“apparently received seriously deficient information from all
persons involved in his case”). As a practical matter, there is
no alleged flaw in a guilty plea of a defendant represented by
counsel that could not be attributed in some way to deficient
representation. Examples abound in our cases, but a review
confined only to the cases cited by Ms. Rhinehart, as
illustrative of appeals that did not involve claims of
ineffective assistance of counsel, provides sufficient evidence
to defend this point. Mr. Merrill filed a late motion to
withdraw his plea because he did not discover until too late the
effect the psychotropic medicine he was taking may have had on
his ability to enter a knowing and voluntary plea. Merrill, 2005
UT 34, ¶ 9. In State v. Reyes, 2002 UT 13, 40 P.3d 630,
Mr. Reyes claimed that the trial court committed plain error when

5 No. 20050635
it failed to strictly comply with rule 11 of the Utah Rules of
Criminal Procedure. Id. ¶ 3. The defendant in State v. Mullins,
2005 UT 43, 116 P.3d 374, pointed to duress and his counsel’s
misrepresentation of critical aspects of the plea agreement as
grounds for his motion to withdraw his plea. Id. ¶ 3. Each of
these cases could easily have been recast as claims of
ineffective assistance of counsel and, presumably, have been
pursued under rule 23B of the Utah Rules of Appellate Procedure
as Ms. Rhinehart seeks to do here.
¶14 The classification within which she seeks refuge--that
defendants who seek leave to withdraw pleas based on claims of
ineffective assistance of counsel are free of the constraints of
section 77-13-6--is, therefore, a phantom classification. To
honor this classification would be to invite every tardy
application to withdraw a plea to be styled as a claim of
ineffective assistance of counsel, a consequence that would
vitiate section 77-13-6. We therefore hold that claims of
ineffective assistance of counsel raised in the context of
challenges to the lawfulness of guilty pleas are governed by
section 77-13-6 as construed by Merrill and confirmed by
Grimmett. We therefore are without jurisdiction to consider
Ms. Rhinehart’s claim.
II. MS. RHINEHART WAIVED HER RIGHT TO CHALLENGE DEFECTS IN HER
BINDOVER WHEN SHE ENTERED HER GUILTY PLEA
¶15 Ms. Rhinehart next asks us to relieve her of the effect
of her guilty plea because her preliminary hearing and bindover
were infected with errors. 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. See, e.g.,
Benvenuto v. State, 2007 UT 53, ¶ 31, ___ P.3d ___; State v.
Parsons, 781 P.2d 1275, 1278 (Utah 1989); State v. Sery, 758 P.2d
935, 937-40 (Utah Ct. App. 1988). As we explained in Parsons,
“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 nonjurisdictional defects,
including alleged pre-plea constitutional violations.” 781 P.2d
at 1278.
¶16 Ms. Rhinehart attempts to avoid falling prey to the
general rule in two ways. First, she asserts that she did not
enter a knowing and voluntary guilty plea and therefore could not
have waived defects in the preliminary hearing and bindover.
Next, she insists that even if her plea were lawful, it is not
the preliminary hearing and bindover itself with which she takes

No. 20050635 6
issue, but rather with constitutional deprivations of her right
to confront witnesses at the preliminary hearing. She argues
that since those constitutional defects are jurisdictional and
not subject to waiver, we must take up their merits. We
disagree.
¶17 We may with dispatch dispose of Ms. Rhinehart’s
reinvocation of her challenge to the lawfulness of her plea. Put
simply, she cannot achieve through a challenge to the bindover
what she was foreclosed from doing by section 77-13-6--assail the
lawfulness of her plea.
¶18 We turn, then, to Ms. Rhinehart’s claim that she was
deprived of constitutional rights in the preliminary hearing and
that these transgressions stripped the court of jurisdiction. We
note at the outset that the Utah Constitution expressly permits
the waiver of a preliminary hearing “by the accused with the
consent of the State.” Utah Const. art. I, § 13. In light of
this provision, it is difficult for us to conceive of why a
constitutionally authorized waiver of a preliminary hearing would
be foreclosed by the existence of defects, even constitutional
defects, that occurred during the hearing. Of course, as
Ms. Rhinehart properly notes, she never expressly waived her
right to a preliminary hearing and, in fact, fought to exhaustion
to prevail on her claims of preliminary hearing error. The fact
that she put up a stern fight does not mean that she could not
have surrendered and expressly waived her constitutional
challenges by waiving her preliminary hearing. In our view, the
entry of Ms. Rhinehart’s guilty plea achieved the same waiver of
her constitutional claims as a waiver of her preliminary hearing
would have accomplished.
¶19 Finally, we find little merit in Ms. Rhinehart’s claim
that the alleged denial of her right to confront witnesses at the
preliminary hearing implicated the subject matter jurisdiction of
the court and was, therefore, immune from waiver. Without
subject matter jurisdiction, a court is powerless to adjudicate a
case. See United States v. Cotton, 535 U.S. 625, 630 (2002).
Ms. Rhinehart directs us to State v. Marshall, an unpublished
memorandum decision from our court of appeals, and its
observation that “a preliminary hearing is essential to a court’s
jurisdiction over a felony.” 2005 UT App 269U, para. 2. We are,
of course, not bound by decisions issued by our court of appeals.
We take note, however, that nothing in the court of appeals’
decision leads us to conclude that defects in a preliminary
hearing strip a district court of subject matter jurisdiction,
including the jurisdiction to assess the lawfulness of a
preliminary hearing and bindover and to adjudicate waivers of

7 No. 20050635
defects in preliminary hearings and bindovers in the context of
taking a guilty plea from an accused.
¶20 We have held that a district court is empowered to
conduct a trial in the wake of an allegedly flawed bindover
because a subsequent conviction beyond a reasonable doubt cures
any bindover defect. State v. Winfield, 2006 UT 4, ¶ 26, 128
P.3d 1171. Ms. Rhinehart attempts to overcome this proposition
with the contention that a guilty plea is not entitled to the
same dignity as a “unanimous jury verdict reflecting proof beyond
a reasonable doubt.” It is not evident to us why a guilty plea
is inferior to a jury verdict in this respect, but more
importantly, this argument fails to address the central question
of why a district court may exercise subject matter jurisdiction
to conduct a trial after a defective bindover but not take a
plea.
III. MS. RHINEHART FAILED TO PRESERVE THE OTHER ISSUES FOR
APPEAL
¶21 Ms. Rhinehart has asked us to take up the merits of her
challenges to the manner in which the penalty phase of her
proceeding was conducted and to the constitutionality of Utah’s
life without parole statute. See Utah Code Ann. § 76-3-207(5)
(2004). These issues were not preserved below. Because they
were not, we will not consider them absent plain error or
exceptional circumstances. See State v. Holgate, 2000 UT 74,
¶ 11, 10 P.3d 346. Considering this rule, defendants are best
served by presenting unpreserved arguments to this court through
the lens of one or all of these exceptions. Without more, the
presentation of the merits of an issue cannot access an exception
to the preservation doctrine. Not only has Ms. Rhinehart failed
to persuade us that any of her unpreserved issues are eligible
for either exception to the preservation rule, she has declined
to present an argument to support the application of either
exception to those issues. We accordingly decline to address
their merits.
CONCLUSION
¶22 Because Ms. Rhinehart failed to make a timely motion to
withdraw her guilty plea as required by statute, we lack
jurisdiction to consider the validity of her plea on appeal.
Ms. Rhinehart’s ineffective assistance of counsel claim cannot
successfully evade this well-established jurisdictional bar. We
further hold that Ms. Rhinehart waived the right to challenge the
validity of her bindover when she entered a guilty plea. We
decline to address the merits of Ms. Rhinehart’s remaining
unpreserved issues. Accordingly, we affirm the district court.

No. 20050635 8
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¶23 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.