State v. Npimnee

               THE UTAH COURT OF APPEALS

                       STATE OF UTAH,
                          Appellee,
                             v.
                     HOPE TUAKA NPIMNEE,
                          Appellant.

                      Per Curiam Opinion
                       No. 20200074-CA
                       Filed May 29, 2020

         Seventh District Court, Monticello Department
                The Honorable Don Torgerson
                          No. 201700007

          K. Andrew Fitzgerald, Attorney for Appellant
          Alex J. Goble and Kendall G. Laws, Attorneys
                          for Appellee

  Before JUDGES GREGORY K. ORME, MICHELE M. CHRISTIANSEN
                FORSTER, and RYAN M. HARRIS.

PER CURIAM:

¶1     Hope Tuaka Npimnee was charged with one count of
possession of a controlled substance, a class A misdemeanor, one
count of possession of a controlled substance, a class B
misdemeanor, and one count of possession of drug
paraphernalia, a class B misdemeanor. Npimnee filed a motion
seeking “discovery” intended to compel the State to enter into
plea negotiations. The district court ordered the State to comply
with Npimnee’s discovery request but clarified that the court
would not become involved in plea negotiations. On January 16,
2020, Npimnee filed a second pro se motion requesting that an
arraignment be held on January 20, 2020, “because I would
possibly like to respectfully enter a plea in abeyance to all
charges (or no contest) if prosecution agrees to stay prison for
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concurrent probation in case no. 191700135 [and] case no.
191700213.” The State responded that negotiations would take
place after the court held an initial appearance but that a plea in
abeyance would not be offered. The court again denied the
motion on the basis that the court does not participate in
settlement negotiations and could not force the State to negotiate
with Npimnee. On January 17, 2020, Npimnee filed a pro se
notice of appeal from the denial of his motion for arraignment.

¶2      At his first appearance in this case, Npimnee wanted to
resolve the case “today” and stated that he wished to represent
himself. Based upon a colloquy and the court’s previous
experience with Npimnee, the court found that the decision to
represent himself was made voluntarily and that he understood
the consequences of representing himself and not having the
assistance of an attorney. The prosecutor made a plea offer in
open court for Npimnee to plead guilty to the two class B
misdemeanor charges, and, in exchange, the State would dismiss
the class A misdemeanor charge. The State further agreed to
recommend that the sentences could run concurrently to
sentences that Npimnee was currently serving. Npimnee
accepted the offer and asked to be sentenced immediately. The
district court found that the guilty pleas were knowing and
voluntary and that Npimnee waived the time for sentencing.

¶3    The district court sentenced Npimnee to six months in jail
on each of the two class B misdemeanors in this case with the
sentences, if served, to run concurrently with each other but
consecutively to the sentences in cases 191700213 and
191700135. 1 The court suspended all jail time, placing Npimnee


1. In case number 191700213, Npimnee pled no contest to
witness tampering, a third-degree felony, and was sentenced to
zero to five years in prison. In case number 191700135, Npimnee
pled guilty to possession of a controlled substance and
                                                   (continued…)


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on court-supervised probation for twenty-four months on the
same terms as in his other cases. Accordingly, the conditions of
probation in all three cases included serving sixty days in jail, as
well as obtaining a drug and alcohol assessment, domestic
violence counseling, and a mental health assessment, and
completing any recommended treatments.

¶4     The only notice of appeal filed in this case complained
that the court denied his “motion for arraignment.” No further
notice of appeal was filed from the final judgment and sentence.
Npimnee entered a guilty plea and did not move to withdraw
the plea. It follows that Npimnee waived any issues regarding
the interlocutory order denying his motion for arraignment
when he entered his guilty plea. “The general rule applicable in
criminal proceedings, and the cases are legion, is that by
pleading guilty, the defendant is deemed to have admitted all of
the essential elements of the crime charged and thereby waives
all non-jurisdictional defects, including alleged pre-plea
constitutional violations.” State v. Parsons, 

(Utah 1989); see also State v. Rhinehart, 

, 

 (“Except in those instances in which errors affect the court’s
jurisdiction or where claims of error are expressly preserved for
appeal, a conviction or guilty plea acts as a waiver of earlier
procedural flaws.”).

¶5    Soon after the appeal was docketed, this court, on its own
motion, sent out a notice indicating that the case was being
considered for summary disposition. In response, Npimnee’s
appellate counsel argues that the sua sponte motion for
summary disposition is premature because he must be allowed


(…continued)
obstructing justice, both class A misdemeanors; to possession of
a controlled substance and possession of drug paraphernalia,
both class B misdemeanors; and to a traffic infraction.




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the opportunity to file a brief pursuant to Anders v. California, 

 (1967). However, counsel’s response appears to be
based upon a misconception of the summary disposition
procedure. Our appellate courts have held that a criminal
defendant is not denied the constitutional right to appeal by a
summary disposition procedure. See State v. Palmer, 

 (Utah Ct. App. 1990); see also Brown v. Glover, 

, 

 (confirming the rationale of the court of appeals
that the right to appeal is not denied when a case is determined
by summary disposition). While Anders, as adopted by State v.
Clayton, 

 (Utah 1981), describes a procedure that
may be utilized by appointed counsel when faced with a
potentially frivolous criminal appeal, those decisions do not
mandate allowing a case–otherwise subject to summary
disposition–to go forward for the purpose of allowing counsel
an opportunity to file an Anders brief.

       Appellant argues that [Utah Rule of Appellate
       Procedure 10] governing summary disposition
       denies him his constitutional right of appeal. There
       is no question that defendant has a right of appeal
       under article 1, section 12 of our Utah Constitution.
       That right is not denied when appellant filed a
       notice of appeal, has an adequate opportunity to
       present his arguments to the appellate court with
       supporting authority, and the issues, arguments,
       and record are all considered and determined by
       an impartial panel of judges in accordance with
       applicable statutes and rules. Appellant is not
       afforded less by summary disposition.

Palmer, 

 (quotation simplified). A defendant “does
not have the immutable constitutional right to unlimited review,
unfiltered by the statutes and rules that regulate the appellate
process.” 

 This court emphasized in Palmer that when a case is
considered for possible summary disposition, “reversal or



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affirmance is rarely, if ever, granted without our complete
review of all pertinent portions of the record.” 

 “Therefore,
when summary disposition is considered in criminal matters, we
await the filing of all designated trial and hearing transcripts and
will review them before determining whether summary
affirmance or reversal is appropriate.” 

¶6     Accordingly, because it is well-settled that a party,
including a criminal defendant, has no “immutable
constitutional right” to file a regular appellate brief, or have oral
argument, when this court has determined that summary
disposition procedures are warranted, this principle applies with
equal force when an appointed attorney seeks an opportunity to
employ the Anders procedures. See 

¶7      This court afforded Npimnee an opportunity to present
his issues and arguments in a summary disposition procedure,
which this court and the Utah Supreme Court have concluded
satisfies the constitutional right to appeal. The court also awaited
the filing of the designated transcript in this case and has
reviewed it. Based upon that review, we conclude that the issues
in this appeal are insubstantial, and that summary affirmance is
appropriate. Npimnee pleaded guilty to two class B
misdemeanors pursuant to a plea bargain. Npimnee did not
move to withdraw his guilty plea and asked to be sentenced
immediately. He received a sentence that was within the
statutory range for his offenses. The jail sentence was stayed,
and he was placed on probation on the same terms as in his
other two cases, which is what he requested. This court is not
required to defer its disposition of the case until after counsel
has filed a brief per the Anders procedure. In this case, we have
determined that the appeal presents an insubstantial question
and therefore that the judgment and sentence may be summarily
affirmed under rule 10 of the Utah Rules of Appellate Procedure.
See Utah R. App P. 10(a)(2) (stating the court “may summarily




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affirm the judgment or order that is the subject of review if it
plainly appears that no substantial question is presented”).

¶8    Affirmed.




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