Opinion
Case No. 20030498-CA.
Filed September 25, 2003. (Not For Official Publication)
Appeal from the Fourth District, Provo Department, The Honorable Fred D. Howard.
Guy L. Black, Provo, for Appellant.
Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee.
Before Judges Jackson, Greenwood, and Orme.
MEMORANDUM DECISION
Defendant David Sousa appeals from a district court order denying his motion to withdraw his guilty plea. The case is before the court on its own motion for summary affirmance. See Utah R.App.P. 10(e). We affirm.
Defendant claims that the district court erred by denying his motion to withdraw his guilty plea, which was based on ineffective assistance of counsel. However, Defendant failed to file a motion to withdraw his guilty plea "within 30 days after the entry of the plea." Utah Code Ann. § 77-13-6(2)(b) (1999). That failure "extinguishe[d] [Defendant's] right to challenge the validity of the guilty plea on appeal," State v. Reyes, 2002 UT 13, ¶ 3, 40 P.3d 630, including his right to challenge the validity of the plea on the basis of ineffective assistance of counsel. See State v. Melo, 2001 UT App 392, ¶¶ 7-8, 40 P.3d 646. Therefore, the district court correctly concluded that it did not have jurisdiction to consider Defendant's ineffective assistance claim and correctly denied his motion to withdraw his plea.
For the first time on appeal, Defendant claims that his counsel was ineffective because his counsel did not timely move to withdraw the plea. However, section 77-13-6 does not permit this court, in this direct appeal, to extend the thirty-day period for filing a motion to withdraw a plea or, although that period has run, to set aside Defendant's plea because of post-plea ineffective assistance of counsel. See id.; Melo, 2001 UT App 392 at ¶¶ 7-8. Defendant contends that not considering this ineffective assistance claim violates his right to seek redress from the courts. See Utah Const. art. I, § 11. That argument is unavailing given the availability of redress by petition for post-conviction relief.
In response to this court's motion for summary affirmance, Defendant claims that section 77-13-6 is unconstitutional as applied to him because he did not discover that he might be deported based on his plea until after the thirty-day period for filing a motion to withdraw his plea expired. However, although Defendant acknowledged that his motion to withdraw his plea was not timely, he did not raise the constitutionality of section 77-13-6 before the district court. This court will not consider issues, including constitutional issues, raised for the first time on appeal. See, e.g., State v. Archambeau, 820 P.2d 920, 922 (Utah Ct.App. 1991).
Accordingly, we affirm.
Norman H. Jackson, Presiding Judge, Pamela T. Greenwood, Judge, and Gregory K. Orme, Judge, concur.