State v. Richard F. Norris

1 State v. Norris, 2004 UT App 267, 97 P.3d 732.
2007 UT 5
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. 20040880
Plaintiff, Respondent,
and Cross-Petitioner,
v.
F I L E D
Richard F. Norris,
Defendant, Petitioner, January 19, 2007
and Cross-Respondent.
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Fourth District, Provo Dep’t
The Honorable James R. Taylor
No. 981403794
Attorneys: Mark L. Shurtleff, Att’y Gen., E. Neal Gunnarson,
Jeffrey S. Gray, Christine F. Soltis, Asst.
Att’ys Gen., Salt Lake City, for plaintiff
Jennifer K. Gowans, Provo, Salt Lake City, for
defendant
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On Certiorari to the Utah Court of Appeals
WILKINS, Associate Chief Justice:
¶1 The defendant, Richard Norris, challenges the
constitutionality of the Communications Fraud statute, Utah Code
section 76-10-1801, as overbroad. Specifically, he seeks review
of the decision of the court of appeals holding that the statute
is constitutional.
¶2 The State cross-petitions, seeking reversal of the
decision of the court of appeals that an unconditional guilty
plea does not waive a defendant’s appellate challenge to the
facial constitutionality of the statute under which the defendant
was charged.1

2 State v. Harmon, 910 P.2d 1196, 1199 (Utah 1995).
3 Beaver County v. Qwest, Inc., 2001 UT 81, ¶ 8, 31 P.3d
1147.
4 Each of the court of appeals judges who sat on the panel
wrote his own separate opinion. The majority felt that a
challenge to the constitutionality of a statute could not be
waived. The remaining judge felt that this could be waived and
that subject matter jurisdiction was therefore lacking.
No. 20040880 2
¶3 Because we reverse, holding that an unconditional
guilty plea does waive a defendant’s right to challenge the
constitutionality of a statute, we do not reach the other issues
presented.
¶4 Review of the specific facts leading to the charges
against the defendant are not necessary for the resolution of
this matter. The defendant was originally charged with seven
counts of communications fraud. The State amended the
information, and the defendant was ultimately tried on five
counts of communications fraud.
¶5 After three days of trial, the defendant elected to
change his plea and entered an unconditional guilty plea to three
counts of communications fraud. All are third degree felonies.
¶6 The defendant made no attempt to withdraw his
unconditional guilty plea. He did, however, timely file an
appeal. The Utah Court of Appeals upheld the convictions. We
granted certiorari to review the correctness of that action.
STANDARD OF REVIEW
¶7 On certiorari, we review the decision of the court of
appeals and not the decision of the trial court.2 “The
determination of whether a court has subject matter jurisdiction
is a question of law, which we review for correctness.”3
ANALYSIS
¶8 In order to reach the issues of overbreadth and
vagueness, the court of appeals initially addressed the question
of whether it had subject matter jurisdiction to review the
conviction on appeal once the defendant had entered an
unconditional guilty plea. The court of appeals4 found that a
facial challenge to the constitutionality of a statute is
jurisdictional in nature and that, therefore, an unconditional

3 No. 20040880
guilty plea could not act as a waiver or bar to raising this
claim for the first time on appeal. We disagree.
¶9 An unconditional guilty plea waives any right the
defendant may have had to challenge the basis of his conviction
on its merits. The defendant’s effort to describe the
constitutional challenge he raises as a challenge to the subject
matter jurisdiction of the district court is simply without merit
as a tool for appealing the conviction after the plea has been
entered and the sentence imposed. The court of appeals lacked
jurisdiction to entertain the appeal. The opinion of the court
of appeals is vacated, and the judgment of the district court is
affirmed.
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¶10 Chief Justice Durham, Justice Durrant, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Wilkins’
opinion.