State v. Taufui

2015 UT App 118
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
SEMISI TAUFUI,
Defendant and Appellant.

Memorandum Decision
No. 20131110-CA
Filed May 7, 2015

Third District Court, Salt Lake Department
The Honorable Denise P. Lindberg
No. 101904760

T. Laura Lui and Alexander J. Helfer, Attorneys
for Appellant

Sean D. Reyes and Ryan D. Tenney, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES JOHN A. PEARCE and KATE A. TOOMEY concurred.

ROTH, Judge:

¶1 Semisi Taufui appeals from the district court’s denial of
his motion to withdraw guilty pleas to charges of attempted
possession of a controlled substance with intent to distribute and
unlawful possession of another’s identification documents. We
affirm.

¶2 Taufui was charged with one count of unlawful
possession of a controlled substance with intent to distribute, a
second degree felony; one count of unlawful possession of
identification documents without authorization, a class A
State v. Taufui

misdemeanor; and one count of possession of drug
paraphernalia, a class B misdemeanor. The State agreed to
recommend suspension of any jail or prison sentence if Taufui
would plead guilty to one count of attempted unlawful
possession of a controlled substance with intent to distribute, a
third degree felony, and one count of unlawful possession of
identification documents, a class A misdemeanor.

¶3 At the plea hearing, defense counsel stated that Taufui’s
immigration status was “currently under threat.” She explained
that the State’s offer was designed to allow him to remain in the
country should he be able to prevail in immigration court. The
district court then engaged in a colloquy with Taufui pursuant to
rule 11 of the Utah Rules of Criminal Procedure. Among other
questions, the district court asked Taufui if he understood the
rights he was waiving by pleading guilty and the maximum
sentence possible for the charges. Taufui answered, “Yes,” to
both questions. The court then asked Taufui to sign the plea
form, which the district court incorporated into the record before
finding that the plea had been entered “knowingly, voluntarily,
and intelligently.”

¶4 Defense counsel asked that Taufui be sentenced
immediately. She further stated, “I’d also note for advice of the
Court that I did advise him regarding his immigration status
that these will have serious consequences in regard to that.”
Counsel also told the court that she had advised Taufui to
consult with an immigration attorney before taking the plea. The
court asked Taufui, “You understand this can get you deported,
most likely will. You want to go ahead today?” Taufui answered,
“Yes.” The prosecutor noted that Taufui was already under a
“hold” imposed by immigration authorities.

¶5 The district court sentenced Taufui to the statutory prison
and jail terms for the offenses. The court credited Taufui 180
days for time already served and suspended the balance,
imposed a fine of $7,500, and placed him on thirty-six months

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unsupervised probation. At the end of the sentencing hearing,
the court released Taufui to immigration authorities.

¶6 More than two years later, Taufui, who apparently had
not been deported, filed a motion to withdraw his plea. He
argued that violations of rule 11(e) of the Utah Rules of Criminal
Procedure rendered his plea involuntary and that his plea was
invalid due to the ineffective assistance of his trial counsel.
Alternatively, Taufui asked the court to reinstate his right to
appeal under Manning v. State, 2005 UT 61, 122 P.3d 628, and
rule 4(f) of the Utah Rules of Appellate Procedure. The court
denied the motion, concluding that “based upon this court’s lack
of jurisdiction and [Taufui’s+ failure to use the proper remedy
found in the Post-Conviction Remedy Act,” Taufui’s motion to
withdraw his guilty plea or have his right to appeal reinstated
must be dismissed.

¶7 Taufui appeals, arguing that the district court erred in
determining that it lacked jurisdiction to consider his motion to
withdraw his plea. Alternatively, Taufui argues that even if the
court correctly decided the jurisdiction issue, it erred in denying
his motion to extend the time for appeal under Manning and rule
4(f).

¶8 First, we conclude that the district court correctly
determined that it lacked jurisdiction to consider Taufui’s
motion to withdraw his pleas. “A request to withdraw a plea of
guilty . . . shall be made by motion before sentence is
announced.” Utah Code Ann. § 77-13-6(2)(b) (LexisNexis 2012).
If a motion to withdraw a plea is not made before sentencing,
“*a+ny challenge to a guilty plea . . . shall be pursued under . . .
[the] Post-Conviction Remedies Act.” Id. § 77-13-6(2)(c). The
Utah Supreme Court has held that the procedural requirement of
“section 77-13-6(2)(b) is indeed jurisdictional.” State v. Merrill,
2005 UT 34, ¶ 20, 114 P.3d 585. “*F+ailure to withdraw a guilty
plea within the time frame dictated by [Utah Code] section
77-13-6 deprives [both] the trial court and appellate courts of

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jurisdiction to review the validity of the plea.” State v. Stone, 2013
UT App 148, ¶ 5, 305 P.3d 167 (second and third alterations in
original) (citations and internal quotation marks omitted). “This
jurisdictional bar extends to claims concerning the effectiveness
of counsel.” State v. Bradshaw, 2012 UT App 135, ¶ 3, 278 P.3d 155
(per curiam). Thus, because Taufui’s motion to withdraw his
plea was not filed until after sentencing, the district court
correctly concluded that it lacked jurisdiction to consider
Taufui’s claims that his plea was not knowing and voluntary or
the result of ineffective assistance of counsel. See Merrill, 2005 UT
34, ¶¶ 19–20.

¶9 Taufui argues several theories he contends support a view
that the district court retained jurisdiction over his motion to
withdraw his plea despite the plain language of section
77-13-6(2). We find his arguments unpersuasive.

¶10 Taufui first argues he was “never advised of his right to
file a motion to withdraw his guilty plea, nor the time frame in
which to do so, in violation” of rule 11(f) of the Utah Rules of
Criminal Procedure. Rule 11(f) states that “*f+ailure to advise the
defendant of the time limits for filing any motion to withdraw a
plea of guilty . . . is not a ground for setting the plea aside, but
may be the ground for extending the time to make a motion
under Section 77-13-6.” Utah R. Crim. P. 11(f). Accordingly,
Taufui argues that the district court retained jurisdiction over
any subsequent motion to withdraw. We agree with the State,
however, that Taufui was indeed informed of the timeframe in
which he needed to file a motion to withdraw his plea.

¶11 In determining whether “the defendant had a sufficient
understanding of the law in relation to the facts,” we may look
not just to the rule 11 plea colloquy conducted by the district
court but also to the “surrounding facts and circumstances.”
State v. Alexander, 2012 UT 27, ¶ 31, 279 P.3d 371 (citation and
internal quotation marks omitted). The plea affidavit signed by
Taufui, and incorporated into the plea colloquy, contained the

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following statement in bold letters: “I understand that if I want
to withdraw my guilty (or no contest) plea(s), I must file a
written motion to withdraw my plea(s) before sentence is
announced.” Taufui further acknowledged in the affidavit that
he understood that “any challenge to *his+ plea(s) made after the
sentencing must be pursued under the Post-Conviction
Remedies Act.” In light of this signed affidavit, as well as his
own assurances to the court that he had read and understood the
affidavit prior to signing it, we conclude that there was no
violation of rule 11(f) that provides Taufui with relief from the
jurisdictional bar set forth in section 77-13-6.

¶12 Taufui next argues that “the trial court possesses
continual jurisdiction to withdraw [his] guilty plea via its sua
sponte powers.” It is true “that section 77-13-6 does not supplant
the district court’s jurisdiction to act sua sponte” in setting aside
guilty pleas. State v. Mardoniz-Rosado, 2014 UT App 128, ¶ 11, 328
P.3d 864. However, as the State points out, “the district court’s
jurisdiction to set aside a defendant’s guilty plea on its own
initiative generally terminates upon the entry of final judgment
in the case.” Id. “In a criminal case, it is the sentence itself which
constitutes a final judgment . . . .” State v. Bowers, 2002 UT 100,
¶ 4, 57 P.3d 1065 (emphasis, citation, and internal quotation
marks omitted); see also State v. Vaughn, 2011 UT App 411, ¶ 17,
266 P.3d 202 (“*A]fter sentencing, trial courts lose subject matter
jurisdiction over a case.”). We recognize that the defendant in
Mardoniz-Rosado had completed his probation when he filed his
motion to withdraw his plea, see 2014 UT App 128, ¶¶ 2–3, and
that Taufui had not yet completed the terms of his probation
when his own motion to withdraw was filed, potentially leaving
the court with some limited jurisdiction over Taufui’s case.
Taufui, however, has failed to respond to the State’s argument
that jurisdiction to permit a plea withdrawal terminated when
the sentence was announced. As a consequence, Taufui has

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failed to persuade us that the district court retained the sort of
jurisdiction over the case that would enable it to exercise its sua
sponte powers in the way Taufui suggests.1

¶13 Furthermore, the court did not retain jurisdiction after
sentencing to “reopen” the case as Taufui claims is permitted
under State v. Jackson, 2010 UT App 328, 243 P.3d 902. Taufui’s
reliance on Jackson is misplaced. In Jackson, this court recognized
that a district court has discretion to reopen a case to consider
additional evidence. Id. ¶ 23. However, in Jackson, sentencing
had not yet taken place when the court exercised its discretion to
hear additional testimony. See id. ¶¶ 7–8. In this case, sentencing
had occurred and a final judgment had been entered against
Taufui prior to the filing of his motion to withdraw his plea.
Thus, Jackson does not support Taufui’s argument, and we are
again unpersuaded that the court retained jurisdiction to accord
the relief Taufui seeks. See Vaughn, 2011 UT App 411, ¶ 17.

¶14 Finally, Taufui contends that he qualified for relief in the
district court under three common law theories: (1) a writ of
coram nobis, (2) the “unusual circumstances” exception, or (3)
the “egregious injustice” exception. The court in Mardoniz-Rosado
considered the same arguments and concluded that none of
them overcame the jurisdictional bar set forth in Utah’s plea

1. And under the circumstances, we decline to affirmatively
resolve the issue of whether a probationary period extends a
district court’s jurisdiction beyond the minimum necessary to
manage the probation itself. A district court’s decision to utilize
its sua sponte power is entirely discretionary. See State v. Ott,
2010 UT 1, ¶ 20, 247 P.3d 344; State v. Brown, 2013 UT App 99,
¶¶ 2, 4, 300 P.3d 1289 (per curiam). Even had the court retained
sufficient jurisdiction to utilize this power, Taufui has failed to
convince us that the court’s decision to deny his motion to
withdraw his plea was an abuse of its discretion.

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withdrawal statute. See 2014 UT App 128, ¶¶ 12–13. We come to
the same conclusion here. “A writ of error coram nobis is a
common-law writ of ancient origin devised by the judiciary,
which constitutes a remedy for setting aside a judgment which
for a valid reason should never have been rendered.” Manning v.
State, 2005 UT 61, ¶ 13 n.2, 122 P.3d 628 (citation and internal
quotation marks omitted). However, this remedy is not available
to a defendant if relief is available to him or her under the
Post-Conviction Remedies Act, as it still appears to be here.
Mardoniz-Rosado, 2014 UT App 128, ¶ 13. Reliance on the
“unusual circumstances” and “egregious injustice” exceptions is
also premature because these remedies, if they survived the 2008
amendments to the Post-Conviction Remedies Act, are only
available to a defendant when he or she is “otherwise ineligible
to receive postconviction relief.”2 Lucero v. Kennard, 2005 UT 79,

2. As this court noted in State v. Mardoniz-Rosado,
Because [the defendant] has raised his common
law arguments prematurely, we need not address
whether the 2008 amendments to the [Post-
Conviction Remedies Act] and subsequent
modifications to rule 65C have subsumed the
powers [the defendant] has attempted to invoke.
See Winward v. State, 2012 UT 85, ¶¶ 14, 19, 293
P.3d 259 (leaving open the question of “whether
the [Post-Conviction Remedies Act] and [r]ule 65C
now wholly accommodate the full measure of our
constitutional authority or whether the Utah
Constitution requires that we be able to consider,
in some cases, the merits of claims otherwise
barred by the [Post-Conviction Remedies Act]”
([second] alteration in original) (citation and
internal quotation marks omitted)). Winward v.
State also outlines the framework under which the
supreme court might consider a claim that a
(continued...)

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¶ 43, 125 P.3d 917 (discussing the unusual circumstances
exception); see also Winward v. State, 2012 UT 85, ¶¶ 13–18, 293
P.3d 259 (discussing the egregious injustice exception). We
therefore conclude, as did this court in Mardoniz-Rosado, that
because Taufui has not yet sought relief under the
Post-Conviction Remedies Act, his resort to these two remedies
is unavailing. See 2014 UT App 128, ¶ 13. Thus, Taufui “is not
entitled to pursue relief under any of the common law theories
that he identifies.” See id. ¶ 14. “Instead, he must seek post-
conviction relief via the [Post-Conviction Remedies Act] and,
should such relief be denied on procedural grounds, seek
extraordinary relief and argue for the application of coram nobis
principles or the unusual circumstances or egregious injustice
exceptions.” See id.

¶15 Alternatively, Taufui argues that the district court erred in
refusing to reinstate his right to appeal under Manning and rule
4(f) of the Utah Rules of Appellate Procedure. “*A+ criminal
defendant claiming denial of the right to appeal must file a
motion in the trial court for reinstatement of a denied right to
appeal . . . , rather than under rule 65C and the Post-Conviction
Remedies Act.” Manning, 2005 UT 61, ¶ 1. This requirement is
formalized in rule 4(f), which states, “Upon a showing that a
criminal defendant was deprived of the right to appeal, the trial
court shall reinstate the thirty-day period for filing a direct
appeal.” Utah R. App. P. 4(f). A defendant has been improperly
denied the right to appeal if he or she has been “prevented in
some meaningful way from proceeding with a first appeal of

(…continued)
petitioner can seek relief under a common law
exception to the [Post-Conviction Remedies Act].
See id. ¶ 18.
2014 UT App 128, ¶ 14 n.8, 328 P.3d 864 (fifth alteration in
original).

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right.” Manning, 2005 UT 61, ¶ 26 (citation and internal
quotation marks omitted). Taufui argues that he was prevented
from pursuing his first appeal of right because he was not
properly advised of the timeframe for doing so by either trial
counsel or the district court. But guilty pleas “operate*+ as a
waiver of the right to a direct appeal of the conviction on the
crime charged.” State v. Coleman, 2013 UT App 131, ¶ 3, 302 P.3d
860 (per curiam). Accordingly, “*i+f a defendant wishes to
challenge a guilty plea on direct appeal, he must first move to
withdraw the plea before the sentence is announced.” Id.
Because Taufui did not file a timely motion to withdraw his
guilty plea, “this court would have no jurisdiction over an
appeal of his convictions even if the time to file a direct appeal
had been reinstated.” See id. We therefore conclude that Taufui
waived his right to a direct appeal by pleading guilty and has
presented no grounds for a reinstatement of such a right under
either Manning or rule 4(f).

¶16 We affirm.

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