State v. Brown

2021 UT 11

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Appellee,

v.

KEITH SCOTT BROWN,

Appellant.

No. 20190254

Heard September 16, 2020

Filed April 29, 2021

On Appeal from the denial of Motion to Reinstate Defendant‘s Right

to Appeal with Commensurate Right to Effective Assistance of

Counsel

Fourth District, Provo

The Honorable Christine Johnson

No. 111400408

Attorneys:

Sean D. Reyes, Att‘y Gen., Christopher D. Ballard, Asst. Solic. Gen.,

Salt Lake City, David S. Sturgill, Provo, for appellee

Ann Marie Taliaferro, Dain Smoland, Salt Lake City, for appellant

JUSTICE HIMONAS authored the opinion of the Court in which CHIEF

JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE PEARCE, and

JUSTICE PETERSEN joined.

JUSTICE HIMONAS, opinion of the Court:

God forbid that Judges upon their oath should make resolutions to

enlarge jurisdiction - William Cowper

¶1 Keith Brown pled guilty to, and was sentenced for, child

sodomy and child sex abuse. Nine years and numerous appellate

proceedings later, Brown challenges the district court‘s denial of his

motion to reinstate his right to appeal. We reject Brown‘s entreaty.

¶2 Strain as we might, we cannot enlarge our appellate

jurisdiction to encompass Brown‘s challenge. The whys and

STATE v. BROWN

Opinion of the Court

wherefores are found in the language of, and interaction between,

Utah‘s Plea Withdrawal Statute, UTAH CODE § 77-13-6, its Post-

Conviction Remedies Act, UTAH CODE § 78B-9-101 et seq. (the PCRA),

and rule 4(f) of the Utah Rules of Appellate Procedure, as interpreted

by our decisions in Gailey v. State, 2016 UT 35, 379 P.3d 1278; State v.

Rettig, 2017 UT 83, 416 P.3d 520; and State v. Flora, 2020 UT 2, 459

P.3d 975, among others.

I

¶3 Brown pled guilty to one count of child sodomy, a first

degree felony, and two counts of sexual abuse of a child, second

degree felonies, on February 17, 2011.1 Six weeks later, the district

court sentenced Brown to ten years to life in prison on the child

sodomy count and to one to fifteen years on each of the child sex

abuse counts, the sentences to run concurrent to one another.

¶4 At no time between entering his plea and being sentenced

did Brown ask that his plea be set aside. It wasn‘t until over a year-

and-a-half later when Brown filed a Motion for Misplea that he first

sought to set aside his guilty plea. See State v. Brown, 2013 UT App

99, ¶ 4, 300 P.3d 1289 (per curiam). For support, Brown argued that

at the time of his plea he had been ―severely injured in a traumatic‖

car accident ―from which he was still recovering,‖ was under the

influence of ―mind-altering, opioid pain relievers,‖ and not thinking

clearly. The district court found against Brown on these points and

denied the motion, the court of appeals dismissed Brown‘s ensuing

appeal for want of jurisdiction, id. ¶ 5, and both this court and the

United States Supreme Court denied his petitions for a writ of

certiorari.

¶5 Undeterred, Brown trod on, filing successive petitions for

postconviction relief—the first in 2013, the second in 2017. In both he

maintained, among other arguments, that he had entered his guilty

plea without the benefit of effective assistance of counsel. Both

petitions came up short.

¶6 With respect to the 2013 petition, the district court

determined that the petition was procedurally improper because

Brown could have sought to withdraw his plea in a timely manner

but failed to do so. Importantly, the district court found that all of

_____________________________________________________________

1 The nature of the charges and the notoriety surrounding this

case counsel that we take care to set forth only those facts that truly

inform the issues before us. While this isn‘t a null set, it is quite

limited.

2

Cite as: 2021 UT 11

Opinion for Voting

the facts material to Brown‘s claims were known to him more than a

year before he filed the petition.2 Brown v. State, 2015 UT App 254,

¶¶ 4–5, 361 P.3d 124. Accordingly, the district court concluded the

petition was time-barred.3 The court of appeals affirmed, rejecting

Brown‘s argument that the ―petition was timely filed and should not

be time-barred because,‖ as Brown put it, he filed within a year of

when he ―recogniz[ed] the significance of his attorney‘s ineffective

assistance.‖ Brown, 2015 UT App 254, ¶ 7 (emphasis added).4

¶7 Brown‘s 2017 petition fared no better. Brown first filed this

petition under the same case number as the 2013 petition. The thrust

of his argument was the egregious injustice exception we have

tossed about for some time. See, e.g., Winward v. State, 2012 UT 85,

293 P.3d 259. The State contended, and the district court agreed, that

Brown was procedurally required to file a new petition under a

separate case number. After he did so, the State argued it was

entitled to summary judgment because all of Brown‘s claims were or

_____________________________________________________________

2 Brown asserted that the district court ―should grant [his]

petition because (1) he received ineffective assistance of counsel at

the time of his plea and (2) his plea was not knowing nor voluntary

because of the pain medication taken prior to his plea.‖

3 The district court correctly noted that, under the PCRA, ―a

petitioner is entitled to relief only if the petition is filed within one

year after the cause of action has accrued.‖ See UTAH CODE

§ 78B-9-107(1). It also correctly noted that ―[a] cause of action accrues

on the latest of several possible dates, including . . . the date on

which the petitioner knew or should have known, in the exercise of

reasonable diligence, of evidentiary facts on which the petition is

based.‖ See id. § 78B-9-107(2)(e).

4 Brown advises that, in ruling on his 2013 petition, the court of

appeals held that all of Brown‘s claims, including his claims for

ineffective assistance of counsel, were ―procedurally barred because

he could have, but did not, move to withdraw his pleas.‖ Brown,

2015 UT App 254, ¶ 22 (internal quotation marks omitted). To the

extent Brown is intimating that the court of appeals determined he

had to raise an ineffective assistance claim he didn‘t know about to

be able to proceed under the PCRA, he misreads the opinion. The

court of appeals, like the district court, was referring to Brown‘s

claim that his plea was not knowingly and voluntarily made, not to

his ineffective assistance claim.

3

STATE v. BROWN

Opinion of the Court

could have been previously brought. Again, the district court agreed

and granted summary judgment in favor of the State.

¶8 This brings us to the present: Brown‘s motion to reinstate

his right to appeal 5 and his appeal from the denial of that motion.

Per Brown, the motion did not detail ―the grounds of ineffective

assistance of counsel or the reasons why his plea was invalid‖;

rather, it invited the district court to strike down the Plea

Withdrawal Statute as unconstitutional and to fashion ―some

procedural mechanism . . . wherein he could raise and detail his

plea-based claims and have them reviewed on the merits.‖ The

district court declined Brown‘s invitation, noting ―that it is not in a

position to overrule prior holdings of higher courts, including the

Utah Supreme Court, who have determined that Utah‘s Plea

Withdrawal Statute is constitutional.‖

II

¶9 Brown makes a two-pronged argument to us for the

unconstitutionality of Utah‘s Plea Withdrawal Statute, UTAH CODE

§ 77-13-6. First, he argues that because the statute fails to afford him

the ―right to appeal (or first review) of his pre-sentencing claims with

the attached right to effective assistance of counsel,‖ it violates multiple

provisions of the Utah and United States Constitutions. Second, he

argues that the statute violates the ―separation of powers provisions‖

of the Utah Constitution. We wish to be clear: These arguments raise

meaty constitutional questions that deserve our attention. But we

cannot turn a blind eye to the defect in our appellate jurisdiction in

this matter.

¶10 Jurisdiction is the blood in our judicial system. Because of its

vitalness, we ―have an independent obligation to ensure that we

have [it] over all matters before us.‖ Trapnell & Assocs., LLC v. Legacy

Resorts, LLC, 2020 UT 44, ¶ 31, 469 P.3d 989; see also State v. Collins,

2014 UT 61, ¶ 21, 342 P.3d 789 (―Appellate courts do not enjoy

unlimited power to review the actions of trial courts and cannot

conjure jurisdiction.‖ (citation omitted) (internal quotation marks

omitted)); Breitenfeld v. Sch. Dist. of Clayton, 399 S.W.3d 816, 820, n.3

_____________________________________________________________

5 Brown filed this motion pursuant to Manning v. State, 2005 UT

61, 122 P.3d 628, and rule 4(f) of the Utah Rules of Appellate

Procedure in May of 2018. The full title of the motion is Motion to

Reinstate Defendant‘s Right to Appeal with Commensurate Right to

Effective Assistance of Counsel.

4

Cite as: 2021 UT 11

Opinion for Voting

(Mo. 2013) (en banc) (determining no proper basis for invoking the

court‘s exclusive jurisdiction and noting that ―[t]his Court may not

obtain jurisdiction of the subject matter of an appeal by consent,

waiver, or in the interest of judicial economy‖).

¶11 A categorical prerequisite to appellate jurisdiction is a valid

procedural basis for accessing the right to appeal. State v. Lara, 2005

UT 70, 124 P.3d 243, is instructive. In Lara, we held that ―[t]o invoke

appellate jurisdiction after an appeal has been dismissed a party

must establish the existence of two components: jurisdictional

authority and a procedure to access it.‖ Id. ¶ 8. Yes, Lara speaks in

terms of ―after an appeal has been dismissed,‖ id., but this is solely

because that is how the jurisdictional issue factually presented itself

in that matter. The requirement of a procedure that allows a party to

access appellate jurisdiction is not limited to the facts of Lara; it

applies across the spectrum. See, e.g., In re Krempp, 77 F.3d 476, *1

(5th Cir. 1995) (per curiam) (unpublished) (―Because the Krempps

have presented no valid basis for invoking our appellate jurisdiction,

we must dismiss this appeal and assess the Krempps with all costs.‖

(citation omitted)).

¶12 The requirement of a valid procedural basis for lodging an

appeal makes total sense. Without it, filing in the appellate courts of

this state would turn into a legal free-for-all. Unfortunately for

Brown, and as the State points out, this fundamental requirement for

the exercise of our appellate jurisdiction is wanting here.

¶13 Before us, as before the district court, Brown relies on

Manning v. State, 2005 UT 61, 122 P.3d 628, and rule 4(f) of the Utah

Rules of Appellate Procedure as the basis for asking that we exercise

jurisdiction and strike down the Plea Withdrawal Statute. His

reliance is misplaced. As we explain in the paragraphs that follow,

Manning has been supplanted by rule 4(f), and rule 4(f) doesn‘t

provide us with appellate jurisdiction to consider Brown‘s

constitutional arguments.

¶14 We take up the Manning point first. In that case, Carolyn

Manning, a pro se criminal defendant, filed an untimely notice of

appeal.6 2005 UT 61, ¶ 5. After the district court dismissed Ms.

_____________________________________________________________

6 A timely notice of appeal, like a valid procedural basis, is a

prerequisite to the exercise of appellate jurisdiction. See, e.g., Reisbeck

v. HCA Health Servs. of Utah, Inc., 2000 UT 48, ¶ 5, 2 P.3d 447

(―Failure to file a timely notice of appeal deprives this court of

jurisdiction over the appeal.‖).

5

STATE v. BROWN

Opinion of the Court

Manning‘s untimely notice, she filed an extraordinary writ in which

she ―claimed that her attorney ‗did not inform her that she could file

a notice of appeal within 30 days of entry of judgment,‘ and that, as a

result, her ‗right to appeal under Article I, section 12 of the Utah

Constitution [had] been violated.‘‖ Id. ¶ 6 (alteration in original). On

certiorari review, we affirmed the court of appeals‘ affirmance of the

district court‘s denial of the defendant‘s petition. In so doing, we

clarified the process by which criminal defendants ―improperly

denied their right to appeal can promptly exercise this right.‖ Collins,

2014 UT 61, ¶ 23 (quoting id. ¶ 26). More directly, we ―held that ‗the

trial or sentencing court may reinstate the time frame for filing a

direct appeal where the defendant can prove . . . that he has been

unconstitutionally deprived, through no fault of his own, of his right

to appeal.‘‖ Id. (alteration in original) (quoting Manning, 2005 UT 61,

¶ 26).

¶15 Following our opinion in Manning, we amended our

appellate rules to ―formalize[]‖ the process. Ralphs v. McClellan, 2014

UT 36, ¶ 16, 337 P.3d 230 (―The threshold question concerns the

applicability of the principles set forth in Manning, as now

formalized in appellate rule 4(f).‖). Accordingly, Manning does not

supply a valid procedural basis for accessing the right to appeal

separate and apart from rule 4(f); rather, 4(f) governs.

¶16 Rule 4(f) provides in full as follows:

(f) Motion to reinstate period for filing a direct appeal in

criminal cases. 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. A defendant seeking such

reinstatement shall file a written motion in the

sentencing court and serve the prosecuting entity. If

the defendant is not represented and is indigent, the

court shall appoint counsel. The prosecutor shall have

30 days after service of the motion to file a written

response. If the prosecutor opposes the motion, the

trial court shall set a hearing at which the parties may

present evidence. If the trial court finds by a

preponderance of the evidence that the defendant has

demonstrated that the defendant was deprived of the

right to appeal, it shall enter an order reinstating the

time for appeal. The defendant‘s notice of appeal

must be filed with the clerk of the trial court within 30

days after the date of entry of the order.

6

Cite as: 2021 UT 11

Opinion for Voting

UTAH R. APP. P. 4(f). The point of 4(f), as the language of the rule so

plainly illustrates, is to provide criminal defendants who have been

deprived of an appeal through no fault of their own with an avenue

for relief. And while Manning no longer supplies a valid procedural

basis for accessing the right to appeal separate and apart from rule

4(f), it does inform the discussion of what rule 4(f) means by

―deprived of the right to appeal.‖ In Manning, we explained that

criminal defendants were entitled to having their appeal rights

reinstated where they demonstrate that they had lost their appeal

rights because (1) counsel failed to file an appeal after agreeing to do

so; (2) despite diligently attempting to file a timely appeal, the

defendant was unable to do so through no fault of their own; or (3)

the court or the defendant‘s counsel ―failed to properly advise

[them] of the right to appeal.‖ Manning, 2005 UT 61, ¶ 31.

¶17 None of these scenarios are present here. Brown doesn‘t

allege that he told his attorney to file a direct appeal but the attorney

failed to do so. He doesn‘t claim that he tried to file a direct appeal

on his own, but failed. And he doesn‘t charge that either the court or

his attorney failed to tell him of his appellate rights. In short, Brown

knew of and could have filed a direct appeal, either through counsel

or on his own. He just didn‘t. As such, rule 4(f) offers him no relief.

As the State succinctly puts it, ―[r]ule 4(f) provides a narrow remedy,

reinstating only whatever appellate rights a defendant possessed

when his right to a direct appeal was improperly forfeited.‖ It

doesn‘t, however, supply a route to appeal unless his right to appeal

was ―improperly forfeited‖ as described above.

¶18 In short, Brown is not really claiming that he was deprived

of a direct appeal; rather, he wants a do-over. He wants the

opportunity to present constitutional arguments now that—to the

extent they can be raised via a direct appeal in this setting—were

equally available to him following the entry of his sentence,

judgment, and commitment. That is a dog that will not hunt, at least

in the fields of this case.

¶19 This doesn‘t mean that criminal defendants are without a

way to get constitutional arguments like those Brown advances

before an appellate court. As we explain below, and at a minimum,

the PCRA presents a viable option. A brief clarification of the

interplay between the Plea Withdrawal Statute and the PCRA, as

informed by our decisions in Gailey v. State, 2016 UT 35, 379 P.3d

1278; State v. Rettig, 2017 UT 83, 416 P.3d 520; and State v. Flora, 2020

UT 2, 459 P.3d 975, is in order, and we review each case in the above-

listed order.

7

STATE v. BROWN

Opinion of the Court

¶20 We surmise that June 17, 2013, wasn‘t a particularly rosy day

for Shantelle Gailey. ―Over the course of a few hours,‖ she ―entered

her initial appearance . . . , was appointed counsel, waived her right

to a preliminary hearing and trial, pled guilty, waived the waiting

period for sentencing, and received judgment and sentence.‖ Gailey,

2016 UT 35, ¶ 1. Presumably not too happy with either her decision

to plead guilty or her sentence, Ms. Gailey timely filed a direct appeal

with the court of appeals, which certified the matter to us. Id. ¶ 7.

¶21 We rejected Gailey‘s appeal along three lines. First, we

reaffirmed ―that the Plea Withdrawal Statute bars direct appeals

once sentencing takes place.‖ Id. ¶ 3. Second, we noted that the

PCRA ―provides an alternative procedural route for challenging‖ a

potentially invalid plea. Id. ¶¶ 3, 31. And third, we held that Gailey‘s

arguments that the PCRA was an inadequate substitute for a direct

appeal because ―she could hypothetically be denied state-paid

counsel or the effective assistance of counsel‖ in a PCRA proceeding

were not ripe because she had ―not chosen to pursue such a

proceeding.‖ Id. ¶ 3. But, as we later explained, Gailey left open the

question of ―whether the Plea Withdrawal Statute could be applied in

a manner infringing the state constitutional right to appeal.‖ Rettig,

2017 UT 83, ¶ 16.

¶22 We provided the answer to the question in our review of

Benjamin Rettig‘s guilty pleas on charges of aggravated murder and

aggravated kidnapping. There, we held that ―the Plea Withdrawal

Statute is not an infringement of the state constitutional right to an

appeal because it does not foreclose an appeal but only narrows the

issues that may be raised on appeal.‖ Id. ¶ 22. We further held that

―[t]he standard set forth in the Plea Withdrawal Statute is both a rule

of preservation and a jurisdictional bar on appellate consideration of

matters not properly preserved.‖ Id. ¶ 27.

¶23 Mr. Rettig had also challenged a portion of the Plea

Withdrawal Statute—subsection (2)(c)—under article VIII, section 4

of the Utah Constitution. We held in response ―that the legislature

acted clearly within its constitutional authority in enacting

subsection 2(c).‖ Id. ¶ 52. But we expressly left open the possibility

that the legislature may have overstepped with respect to subsection

2(b), which Rettig failed to challenge. Id. ¶ 59 n.14 (―The procedural

dimension of the preservation rule in the statute—the time deadline

it sets forth for the filing of motions—may be a potent basis for

questioning the constitutionality of this statute under article VIII,

section 4. The problem is that Rettig has not asserted an article VIII,

section 4 challenge to this procedural bar (in subsection 2(b)).‖).

8

Cite as: 2021 UT 11

Opinion for Voting

¶24 Flora, 2020 UT 2, rounds out the trilogy. There, the

defendant, Paul Flora, unlike Gailey and Rettig, ―timely moved to

withdraw his plea‖ under the Plea Withdrawal Statute. Id. ¶ 1.

―After the district court denied his motion, Mr. Flora appealed,

raising two new arguments under the plain-error and ineffective-

assistance-of-counsel exceptions to the preservation rule.‖ Id. As in

Gailey, the court of appeals certified the matter to us for appellate

review. Id.

¶25 We held that despite Flora‘s timely motion to withdraw his

plea, ―the Plea Withdrawal Statute prohibit[ed] us from

considering. . . Flora‘s unpreserved arguments.‖ Id. In the process,

however, we observed that criminal defendants similarly situated to

Flora can pursue their unpreserved claims through the PCRA. Id.

¶¶ 20–26.7

¶26 Read together Gailey, Rettig, and Flora make two points

abundantly clear. First, the Plea Withdrawal Statute bars the

appellate courts of Utah from reviewing on direct appeal all

untimely or unpreserved challenges to guilty pleas. Second, criminal

defendants can still challenge the Plea Withdrawal Statute and their

pleas through the PCRA.8 But for the reasons set forth in this

_____________________________________________________________

7 Flora argued to us that the PCRA was not an adequate

substitute for unpreserved arguments to withdraw a plea ―because

the PCRA prohibits granting relief ‗upon any ground that . . . could

have been but was not raised at trial or on appeal.‘‖ Flora, 2020 UT 2,

¶ 24 (alteration in original) (quoting UTAH CODE § 78B-9-106(1)(c)).

We rejected this argument for several reasons, not the least of which

is that the provision of the PCRA to which Flora referred does not

apply ―if the failure to raise that ground was due to ineffective

assistance of counsel.‖ Id. ¶ 25 n.30 (quoting UTAH CODE

§ 78B-9-106(3)(a)).

8 Depending on the nature of the contention, they may also be

able to raise challenges by means of a declaratory judgment action,

see, e.g., Spackman ex rel. Spackman v. Bd. Educ. of Box Elder Cnty. Sch.

Dist., 2000 UT 87, ¶ 18, 16 P.3d 533 (noting that ―declaratory

judgments are . . . well-recognized and effective means of protecting

important constitutional rights‖), or a motion brought pursuant to

rule 22(e) of the Utah Rules of Criminal Procedure, see, e.g., Archuleta

v. State, 2020 UT 62, ¶ 36, 472 P.3d 950 (―[W]e note that rule 22(e) has

been amended . . . to address a gap in the coverage of the PCRA.‖);

and an extraordinary writ.

(continued . . .)

9

STATE v. BROWN

Opinion of the Court

opinion, see supra ¶¶ 10–18, they cannot raise untimely or

unpreserved challenges through a rule 4(f), Manning-like motion. For

while our appellate jurisdiction is broad, it is far from infinite. We

are ―bounded by constitutional and statutory grants of jurisdiction

and by court rules that give practical procedural effect to the

jurisdiction conferred by our Constitution and legislative branch.‖

Lara, 2005 UT 70, ¶ 10.9

III

¶27 The importance of the substantive constitutional questions

Brown raises is not lost on us. We, like the parties before us today,

recognize that our guidance on these questions is much needed. But

we are bound by the elemental requirement that we exercise our

appellate function consistent with jurisdictional precepts, precepts

that sometimes limit our ability to hear and decide otherwise

deserving matters.

¶28 We dismiss Brown‘s appeal from the denial of his Motion to

Reinstate Defendant‘s Right to Appeal with Commensurate Right to

Effective Assistance of Counsel for want of appellate jurisdiction.

With respect to this last procedural candidate, we note that

Brown asserted in his Notice of Appeal that ―[t]he Utah Supreme

Court is also being asked to . . . invoke its extraordinary writ

authority to fashion a remedy in the wake of the constitutional

denial that occurred here.‖ We also note, however, that Brown‘s

briefs are devoid of any discussion of any consequence on this topic.

9 Of course, we do acknowledge that in Manning we were able to

appropriately create, by decision, a new remedy for restoring a

denied criminal appeal and a corresponding right of appeal. 2005 UT

61. But there, unlike here, there was neither a remedy in place ―for

reinstating an unconstitutionally denied [direct] criminal appeal,‖

nor a legislative bar jurisdictionally proscribing the arguments that

could be presented in that appeal. Id. ¶ 27.

10