Opinion
Case No. 20060132-CA.
Filed February 1, 2007. (Not For Official Publication).
Appeal from Seventh District, Castle Dale Department, 051700111 The Honorable Bruce K. Halliday.
Samuel S. Bailey, Price, for Appellant.
Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee.
Before Judges BENCH, MCHUGH, and THORNE.
MEMORANDUM DECISION
This matter is before the court on John Pres Serrano's rule 23B motion to remand the case for additional findings and the State's motion for summary disposition.
Serrano entered into a plea agreement with the State. As a result, on November 1, 2005, he pleaded guilty to one count of aggravated assault and one count of driving under the influence. Serrano never filed a motion to withdraw his plea prior to sentencing. On November 8, 2006, the district court sentenced Serrano to an indeterminate term of zero-to-five years in prison. The judgment, sentence, and commitment were entered on February 13, 2006.
In order to challenge the validity of a guilty plea, a defendant must first file a motion to withdraw his plea before the sentence is announced. See Utah Code Ann. § 77-13-6 (Supp. 2006); see also State v. Merrill, 2005 UT 34, ¶¶ 13-20, 114 P.3d 585. Absent a timely filed motion to withdraw a guilty plea, this court does not have jurisdiction on a direct appeal to review the validity of the plea.See Merrill, 2005 UT 34 at ¶¶ 13-20; see also Utah Code Ann. § 77-13-6(2)(c) ("Any challenge to a guilty plea not made within the time period specified in Subsection (2)(b) shall be pursued under Title 78, Chapter 35a, Post-Conviction Remedies Act, and Rule 65C, Utah Rules of Civil Procedure."). This includes the ability to challenge the plea on the basis of ineffective assistance of counsel. See Merrill, 2005 UT 34 at ¶¶ 17-19; see also State v. Briggs, 2006 UT App 448, ¶¶ 6, 149 P.3d 969;State v. Melo, 2001 UT App 392, ¶¶ 9, 40 P.3d 646.
Serrano has cited two issues on appeal. Serrano first claims that his trial counsel was ineffective because counsel implied that if Serrano pleaded guilty, he would spend no more than six months in the local jail. Second, Serrano argues that the district court failed to effectively inform Serrano of his right to withdraw his plea as required by rule 11(e)(7) of the Utah Rules of Criminal Procedure. Because both issues relate to the validity of the plea, this court does not have jurisdiction to review the issues. See Merrill, 2005 UT 34 at ¶ 20. If Serrano seeks to challenge the validity of his plea he must do so pursuant to Utah Code section 77-13-6(2)(c).
Because this court does not have jurisdiction to review the validity of Serrano's claim that his trial counsel was ineffective, Serrano's rule 23B motion to remand the case to the district court for additional findings of fact is necessarily denied.
Accordingly, we dismiss the appeal.
Russell W. Bench, Presiding Judge, Carolyn B. McHugh, Judge, William A. Thorne Jr., Judge