This opinion is subject to revision before final
publication in the Pacific Reporter
2024 UT 45
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
STEPHEN RIPPEY,
Appellant.
No. 20200917
Heard September 8, 2023
Filed December 27, 2024
On Direct Appeal
Third District Court, West Jordan
The Honorable L. Douglas Hogan
No. 081402174
Attorneys*:
Sean D. Reyes, Att’y Gen., William M. Hains, Asst. Solic. Gen.,
Salt Lake City, for appellee
Ann Marie Taliaferro, Dain Smoland, Salt Lake City, for appellant
CHIEF JUSTICE DURRANT authored the opinion of the Court, in
which JUSTICE PETERSEN, JUSTICE HAGEN, JUSTICE POHLMAN, and
JUDGE LUTHY joined.
Having recused himself, ASSOCIATE CHIEF JUSTICE PEARCE did not
participate herein; COURT OF APPEALS JUDGE JOHN D. LUTHY sat.
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* Additional attorneys: Benjamin Miller, Debra M. Nelson, Salt
Lake City, for amicus curiae Utah Indigent Appellate Defense
Division, in support of appellant; Dallas Young, Staci Visser,
David Ferguson, Salt Lake City, for amicus curiae Utah Association
of Criminal Defense Lawyers, in support of appellant.
STATE v. RIPPEY
Opinion of the Court
CHIEF JUSTICE DURRANT, opinion of the Court:
INTRODUCTION
¶1 Stephen Rippey pled guilty to one count of aggravated
sexual abuse of a child and one count of object rape of a child. He
was sentenced to serve two prison terms of fifteen years to life,
which were ordered to run concurrently. Ten years after his
conviction, a district court reinstated Rippey’s time to file a direct
appeal. On appeal, Rippey challenges several aspects of his plea,
conviction, and sentence. We recalled his appeal to address a
threshold issue: whether the Plea Withdrawal Statute (PWS) 1 is
constitutional.
¶2 In this opinion we reach solely that issue. We hold that
subsection (2)(b)’s preservation rule and the corresponding waiver
housed in subsection (2)(c) of the PWS violate the separation of
powers required by the Utah Constitution. Because those
provisions are unconstitutional, the PWS does not bar Rippey’s
challenge to his guilty plea and his appeal is now governed—as are
similar challenges brought by other defendants—by our standard
rules of preservation. Having resolved Rippey’s constitutional
challenge to the PWS, we instruct the parties to brief the merits of
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1 The Plea Withdrawal Statute reads:
(1) A plea of not guilty may be withdrawn at any time
prior to conviction.
(2)(a) A plea of guilty or no contest may be
withdrawn only upon leave of the court and a
showing that it was not knowingly and voluntarily
made.
(b) A request to withdraw a plea of guilty or no
contest, except for a plea held in abeyance, shall be
made by motion before sentence is announced.
Sentence may not be announced unless the motion is
denied. For a plea held in abeyance, a motion to
withdraw the plea shall be made within 30 days of
pleading guilty or no contest.
(c) Any challenge to a guilty plea not made within the
time period specified in Subsection (2)(b) shall be
pursued under Title 78B, Chapter 9, Postconviction
Remedies Act, and Rule 65C, Utah Rules of Civil
Procedure.
UTAH CODE § 77-13-6.
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Opinion of the Court
Rippey’s challenges to his plea, conviction, or sentence under the
standards articulated in this opinion.
BACKGROUND
¶3 The State charged Rippey with five first-degree felonies—
three counts of aggravated sexual abuse of a child and two counts
of object rape of a child—for acts that allegedly occurred between
January 2005 and July 2008. Rippey pled guilty to one count of
aggravated sexual abuse of a child and one count of object rape of
a child. In exchange for his guilty plea, the State dismissed the other
charges and amended the information to specify that the charged
offenses occurred in December 2007. 2
¶4 Before Rippey entered his plea, the court engaged in a
colloquy with him. Rippey told the court that he had reviewed the
plea statement with his counsel, and that he understood the rights
he was giving up by pleading guilty. He also told the court that he
could read and understand English, had not taken drugs or alcohol
in the previous forty-eight hours, and was not aware of mental or
physical impairments preventing him from understanding the
ramifications of his guilty plea. Finally, Rippey told the court that
he was “still willing to go forward” with the plea despite the
possibility that he could spend the rest of his life in prison.
¶5 After this exchange, Rippey signed a plea form certifying
that he believed he was “of sound and discerning mind”; “mentally
capable of understanding the[] proceedings and the consequences
of [the guilty] plea”; and “free of any mental disease, defect, or
impairment that would prevent [him] from understanding what
[he was] doing or from knowingly, intelligently, and voluntarily
entering [his] plea.” The plea form also described the requirements
and limitations for withdrawing a guilty plea and explained that
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2 The change in timeframe was relevant because the statutory
penalties for the charged offenses changed between July 2005 and
July 2008, when the State initially alleged that the offenses had
occurred. Notably, before May 2008, object rape of a child included
a presumptive sentence of fifteen years to life, which could be
reduced to ten or six years to life in the interests of justice. See id.
§ 76-5-402.3(2), (3) (2007). After May 2008, the legislature
eliminated the sentencing presumption for the offense so that a
defendant convicted of object rape of a child would receive
twenty-five years to life with no chance for an interests-of-justice
reduction. See id. (2008).
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STATE v. RIPPEY
Opinion of the Court
defendants could pursue post-sentence plea challenges only under
the Post-Conviction Remedies Act (PCRA) and rule 65C of the Utah
Rules of Civil Procedure.
¶6 Rippey’s counsel then provided the district court with a
factual basis for the guilty plea. Rippey attested to its accuracy and
affirmed that he was, in fact, guilty of the offenses. The court
accepted Rippey’s plea and told him that if he wanted to withdraw
the plea, he would “need to ask [the court] in writing sometime
prior to [his] sentencing date.” Rippey did not move to withdraw
his plea before sentencing. He was sentenced to two concurrent
prison terms of fifteen years to life.
¶7 Rippey did not appeal his conviction within the permitted
timeframe. About a year after his sentencing, however, he filed a
pro se petition for post-conviction relief under the PCRA and rule
65C. In the petition, Rippey listed seventeen claims for relief.
¶8 At the frivolity review stage, 3 the district court dismissed
eight of Rippey’s seventeen claims for relief. The State then moved
to dismiss the remaining claims for failure to state a claim upon
which relief could be granted, arguing that Rippey could have but
did not challenge the validity of his plea before sentencing, that he
entered his plea knowingly and voluntarily, and that he could not
show that his trial counsel was constitutionally ineffective.
¶9 At a hearing on the State’s motion to dismiss, Rippey,
representing himself, asserted that his mental health records would
demonstrate both that he was incompetent when he entered his
guilty plea and that his trial counsel was ineffective. The State
responded that because Rippey did not move to withdraw his
guilty plea before sentencing, all his claims except ineffective
assistance of counsel had been waived. And, the State added,
Rippey could not show that his trial counsel performed
ineffectively.
¶10 The court granted the State’s motion to dismiss. In its
written dismissal order, the court reasoned that Rippey’s plea
challenges were procedurally barred because they could have been
but were not raised in the district court or on direct appeal. And it
explained that Rippey’s ineffective assistance of counsel claims,
though not procedurally barred, were “without merit.”
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3 See UTAH R. CIV. P. 65C(h)(1).
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Opinion of the Court
¶11 Over the course of the post-conviction proceedings,
Rippey asked the court nearly ten times to appoint counsel for him.
Rippey offered several reasons why he needed counsel’s assistance:
the legal issues were complex; without assistance of counsel, he
would be deprived of meaningful access to the courts; and he
lacked requisite legal resources. The State objected to Rippey’s
requests for counsel, contending that the legal and factual issues
were “fairly straightforward and d[id] not require an evidentiary
hearing,” and that the counsel-appointment process would lead to
needless delays.
¶12 The court denied Rippey’s requests for the appointment of
counsel, though it did “reserve[] the possibility that the need for
counsel m[ight] become more apparent as the case proceed[ed]
further.” In the court’s view, the appointment of counsel was not
yet “necessary” under the PCRA because an evidentiary hearing
would not likely be needed, and because Rippey’s petition did not
present “complicated issues of law or fact.” 4
¶13 Rippey appealed the post-conviction court’s dismissal of
his petition. At this point, the court appointed counsel to represent
him. Regarding the challenges to the validity of his plea, Rippey
argued to the court of appeals that because the PWS mandates that
guilty plea challenges not raised in a motion to withdraw be raised
under the PCRA, he had not waived his claims in post-conviction
proceedings under the PCRA by failing to raise them on appeal. 5
And Rippey maintained that his ineffective assistance of counsel
claims had merit. 6
¶14 The court of appeals determined that Rippey’s claims,
other than ineffective assistance of counsel, were not preserved.7
Accordingly, the court did not address the unpreserved claims on
their merits. 8 And the court upheld the district court’s dismissal of
Rippey’s ineffective assistance of counsel claims. 9 It concluded that
although Rippey had made some allegations that, “if taken as true,
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4 (Quoting UTAH CODE § 78B-9-109(1), (2) (2011))
5 Rippey v. State, 2014 UT App 240, ¶ 7,
337 P.3d 1071.
6 Id. ¶ 10.
7 Id. ¶ 9.
8 Id.
9 Id. ¶ 16.
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Opinion of the Court
arguably state one or more claims that his counsel performed
deficiently in some respects,” he had not made the necessary
showing that it would have been rational for him to reject the plea
deal. 10 Rippey asked this court to review the court of appeals’
decision, but we declined to do so.
¶15 Ten years later, Rippey—again acting pro se—moved to
reinstate the time to file a direct appeal in his criminal case. He
attached to the motion a letter that he purportedly wrote to his trial
counsel a few days after his sentencing. In the letter, Rippey
instructed his counsel, “Appeal if possible.”
¶16 The district court denied Rippey’s motion. Rippey
appealed, and the court of appeals summarily reversed the district
court ruling because Rippey was not represented by counsel in
bringing the motion. On remand, this time with Rippey
represented by counsel, the district court granted Rippey’s motion.
¶17 Upon reinstatement of his time for appeal, Rippey timely
filed a notice of appeal. In this first direct appeal, Rippey claims
that the PWS is unconstitutional, his plea was not knowingly and
voluntarily entered, and the district court abused its discretion at
sentencing.
¶18 We instructed the parties to brief only the threshold issue
of whether the PWS is constitutional. 11 We now address that issue.
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10 Id. ¶¶ 13–15.
11 Initially, we poured over Rippey’s appeal and several similar
cases for our court of appeals’ consideration. As part of the
suggestion leading to our recall of these cases, Rippey proposed
that we “bifurcate the constitutionality of the Plea Withdrawal
Statute from the underlying merits of each case,” and we have done
so. Upon resolution of that threshold issue, those other cases raising
the same threshold issue are to “be poured back over to the court
of appeals for consideration of the merits in each case.” However,
because we have held oral argument in Rippey’s case, we will not
pour his case back to the court of appeals but will resolve the
remaining merits of his appeal after further briefing. See UTAH R.
APP. P. 42(a) (allowing for the transfer of “cases,” not discrete
issues, and providing that “[a]t any time before a case is set for oral
argument before the Supreme Court, the Court may transfer to the
Court of Appeals any case except those cases within the Supreme
Court’s exclusive jurisdiction”).
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Opinion of the Court
ANALYSIS
¶19 Rippey contends that the PWS is unconstitutional on its
face and as applied to him. He argues it is facially unconstitutional
because subsection (2)(b) of the PWS violates the
separation-of-powers principles enshrined in article VIII, section 4
of the Utah Constitution. As applied to him, Rippey argues
subsections (2)(b) and (2)(c), working in tandem, violate his federal
constitutional rights to appeal, to the effective assistance of trial
counsel, to the effective assistance of state-paid counsel and
defense resources on appeal, to due process of law, and to equal
protection. He also argues that the statute violates his Utah
constitutional open courts and uniform operation of laws rights.
¶20 Subsections (2)(b) and (2)(c) of the PWS read:
(b) A request to withdraw a plea of guilty or no contest,
except for a plea held in abeyance, shall be made by
motion before sentence is announced. Sentence may
not be announced unless the motion is denied. For a
plea held in abeyance, a motion to withdraw the plea
shall be made within 30 days of pleading guilty or no
contest.
(c) Any challenge to a guilty plea not made within the
time period specified in Subsection (2)(b) shall be
pursued under Title 78B, Chapter 9, Postconviction
Remedies Act, and Rule 65C, Utah Rules of Civil
Procedure. 12
These subsections require a defendant seeking to withdraw a
guilty plea to do so by motion before sentencing. A defendant who
seeks to withdraw a guilty plea after sentencing can raise the issue
only in a petition filed under the PCRA.
¶21 First, we review the separation-of-powers principles that
apply to the PWS. Next, we apply those principles and conclude
that the preservation and waiver rules contained in subsections
(2)(b) and (2)(c) are procedural. And we clarify that these
subsections inappropriately regulate the judiciary’s issue-specific
jurisdiction. Last, we determine whether the procedural
component of the PWS is inextricably intertwined with its
substance. Concluding that the procedural component is
extractable, we hold that the legislature unconstitutionally created
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12 UTAH CODE § 77-13-6(2)(b) to (2)(c).
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Opinion of the Court
a procedural rule when it enacted subsection (2)(b) and the related
waiver contained in subsection (2)(c) of the statute. In light of that
holding, we decline to address Rippey’s remaining constitutional
challenges to the PWS.
I. THE UTAH CONSTITUTION EMPOWERS THE LEGISLATURE TO ENACT
SUBSTANTIVE LAWS AND THE JUDICIARY TO ADOPT PROCEDURAL
RULES
¶22 We begin by discussing the principles that guide a
separation-of-powers analysis and how those principles apply to
the PWS. The Utah Constitution declares that the “powers of the
government of the State of Utah shall be divided into three distinct
departments, the Legislative, the Executive, and the Judicial.” 13
This division means that each branch of government has powers
reserved to it, but also that each branch’s exercise of its powers is
checked and balanced by the powers of the other two branches.
¶23 Relevant here, the Utah Constitution designates to the
legislature the power to enact substantive laws. 14 Substantive laws
are laws that create, destroy, or alter “the rights and duties
of . . . parties and which may give rise to a cause [of] action.” 15 But
the Utah Constitution designates to the judiciary the power to
adopt rules to govern procedure in Utah courts. 16 Procedural rules
prescribe the “practice and procedure or the legal machinery by
which the substantive law is . . . made effective.” 17 While the
legislature cannot independently create procedural rules, 18 it can
by agreement of a super-majority of legislators amend the rules of
procedure the judiciary has adopted. 19
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13 UTAH CONST. art. V, § 1.
14 See id. art. VI, § 1.
15 Petty v. Clark, 192 P.2d 589, 593 (Utah 1948).
16 UTAH CONST. art. VIII, § 4.
17 Petty,
192 P.2d at 594.
18 Brown v. Cox,
2017 UT 3, ¶¶ 17, 20,
387 P.3d 1040 (“By the
constitution’s plain language, the Legislature does not adopt rules
of procedure and evidence; it amends the rules the supreme court
creates.”).
19 Id.; UTAH CONST. art. VIII, § 4 (“The Legislature may amend
the Rules of Procedure and Evidence adopted by the Supreme
(continued . . .)
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Opinion of the Court
¶24 We address Rippey’s challenge under this framework. The
parties agree that in enacting the PWS, the legislature did not
purport to amend an existing rule of procedure adopted by the
judiciary. This means that, to comply with article VIII of the Utah
Constitution, the PWS must be substantive: it must create, alter, or
destroy rights. 20 If the PWS is instead procedural—that is, it
governs the practice and procedure that make substantive laws
effective—it violates the Utah Constitution. 21
II. SUBSECTION (2)(b) OF THE PLEA WITHDRAWAL STATUTE IS
PROCEDURAL
¶25 With this separation-of-powers framework in mind, we
now address Rippey’s argument that subsection (2)(b) of the PWS
is procedural. Rippey’s position is straightforward: subsection
(2)(b) is procedural because this court said it is. And Rippey is right.
In State v. Rettig, we reasoned that subsection (2)(b) is
“quintessentially procedural” because it “prescribes the manner
and means of raising a particular issue in court proceedings.” 22
¶26 Subsection (2)(b)’s text supports Rettig’s conclusion.
Subsection (2)(b) states that “[a] request to withdraw a plea of
guilty or no contest, except for a plea held in abeyance, shall be
made by motion before sentence is announced.” 23 “For a plea held
in abeyance, a motion to withdraw the plea shall be made within
30 days of pleading guilty or no contest.”24 And, the “[s]entence
may not be announced unless the motion [to withdraw the guilty
plea] is denied.” 25 These statutory requirements amount to little
more than deadlines for a defendant to file a motion to withdraw,
and as Rettig pointed out, “[y]ou can’t get much more procedural
than a filing deadline.” 26
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Court upon a vote of two-thirds of all members of both houses of
the Legislature.”).
20 See Petty, 192 P.2d at 593.
21 See
id. at 594; Brown,
2017 UT 3, ¶¶ 17, 20.
22
2017 UT 83, ¶ 58,
416 P.3d 520.
23 UTAH CODE § 77-13-6(2)(b).
24 Id.
25 Id.
26 Rettig,
2017 UT 83, ¶ 58.
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Opinion of the Court
¶27 The State urges us to reconsider our reasoning in Rettig
and argues that subsection (2)(b) is substantive because it bars a
defendant from raising an unpreserved challenge to the validity of
his plea on direct appeal, thus extinguishing his substantive right
to vacate his sentence based on the allegedly invalid plea. 27 We
disagree.
¶28 Like other rules of preservation, subsection (2)(b) does not
create or extinguish legal rights, but instead controls the legal
machinery by which those rights operate. Subsection (2)(b)
establishes the method for withdrawing a guilty plea and the
deadline for doing so.28 And subsection (2)(c) prevents defendants
who miss (2)(b)’s withdrawal deadline from challenging their plea
on direct appeal—a waiver sanction that naturally flows from
(2)(b)’s preservation rule. 29
III. SUBSECTION (2)(b) OF THE PLEA WITHDRAWAL STATUTE DOES
NOT REGULATE SUBJECT MATTER JURISDICTION
¶29 Having confirmed that subsection (2)(b) of the PWS is
procedural, we now address the State’s alternative argument that
“[r]egardless of whether the time limit in the [PWS] is procedural
or substantive, it is jurisdictional and thus within the legislature’s
purview.” Specifically, the State contends that “when the
legislature enacts a statute that has the effect of cutting off a court’s
authority to reach an issue, that is a valid exercise of the
legislature’s authority to regulate jurisdiction no matter if the
statute may be considered procedural.” This argument lumps
together distinct types of “jurisdiction.” And the distinction
matters, because not all types of jurisdiction fall under the
legislature’s authority to regulate.
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27 The State also suggests that subsection (2)(b) is substantive
because, in the retroactivity context, this court has recognized the
provision as such. But “the fact that a statute is sufficiently
‘substantive’ to bar its retroactive application doesn’t tell us
anything meaningful about whether it is ‘substantive’ under
article VIII, section 4.” Id. ¶ 56 n.11.
28 See id. ¶ 58.
29 Id. ¶ 47. We discuss subsection (2)(c)’s waiver component
below. See infra ¶¶ 34–39.
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Opinion of the Court
¶30 In Rettig, we stated that “[t]he notion of ‘jurisdiction’ is a
slippery one.”30 It is a “word that means different things in
different circumstances.” 31 And we have, at times, used “the hazy
term ‘jurisdiction’ without any classification or definition.”32 Two
distinct types of jurisdiction are relevant to this case.
¶31 The first type is subject matter jurisdiction. We have
referred to this type of jurisdiction in part as the “statutory limits
on the class of cases assigned to the authority of a certain court.”33
Article VIII, section 3 of the Utah Constitution gives the legislature
the authority to set certain limits on this type of jurisdiction, and
the legislature’s exercise of that power does not infringe on the
judiciary’s authority to adopt rules of procedure. 34
¶32 The second relevant type of jurisdiction is the judiciary’s
issue-specific jurisdiction. This is “the more limited notion” of a
court’s “power to reach a certain question presented.” 35 We noted
in Rettig that we have authority to enact “commonplace”
procedural rules, including rules of preservation and waiver.36
These rules “create a jurisdictional bar . . . in the sense that they
foreclose the power of the court to consider issues not properly
preserved and barred by a principle of waiver.” 37 The Utah
Constitution “indicate[s] that this sort of jurisdictional bar is a
matter within our power to regulate by the promulgation of a rule
of procedure.”38 And though distinct from subject matter
jurisdiction, “the effect of this kind of rule is properly viewed as
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30 2017 UT 83, ¶ 36,
416 P.3d 520 (cleaned up).
31
Id. (cleaned up).
32 Id. ¶ 65 (Durham, J., concurring in the result); see, e.g., Granite
Sch. Dist. v. Young,
2023 UT 21, ¶¶ 30–32,
537 P.3d 225.
33 In re Adoption of B.B.,
2017 UT 59, ¶¶ 121, 129,
417 P.3d 1 (Lee,
A.C.J., opinion of the court in part).
34 See also Rettig,
2017 UT 83, ¶ 37.
35 Id. ¶ 39.
36Id. ¶ 17 (“Rules of [preservation and waiver] are
commonplace.” (cleaned up)).
37 Id. ¶ 35 (cleaned up).
38 Id. ¶ 38.
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Opinion of the Court
‘jurisdictional’ in the narrow sense of regulating the scope of a
court’s authority to address a certain issue.” 39
¶33 Many of our cases analyzing the PWS describe subsection
(2)(b) as imposing “a jurisdictional bar on late-filed motions to
withdraw guilty pleas.” 40 The State is correct to note that (2)(b), in
creating a rule of preservation, has jurisdictional effect. But, as we
made clear in Rettig, the jurisdiction it regulates is the limited kind
that we control through rules of procedure, not the subject matter
jurisdiction that the legislature controls through statute.41 And
because (2)(b)—an otherwise procedural rule—does not implicate
subject matter jurisdiction, the legislature lacks authority to impose
it.
IV. SUBSECTION (2)(c) OF THE PLEA WITHDRAWAL STATUTE INCLUDES
BOTH A SUBSTANTIVE RIGHT AND A PROCEDURAL RULE
¶34 Having established that subsection (2)(b) of the PWS is
procedural, we now consider whether subsection (2)(c) also
contains a procedural rule. Rippey directs his separation-of-powers
challenge only at subsection (2)(b) of the PWS. And under normal
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39 Id.
40 Grimmett v. State, 2007 UT 11, ¶ 8,
152 P.3d 306 (“[Subsection
(2)(b)] establishes the filing limitations that govern a criminal
defendant’s right to withdraw a guilty plea. These filing limitations
are jurisdictional.”); see State v. Merrill,
2005 UT 34, ¶ 17,
114 P.3d
585; State v. Allgier,
2017 UT 84, ¶ 21,
416 P.3d 546 (“[O]ur precedent
that the [PWS] imposes a jurisdictional bar is well established.”).
41 The State suggests that Rettig ignored earlier cases that
reached a contrary conclusion, among them State v. Larsen,
850 P.2d
1264 (Utah 1993), and City of Monticello v. Christensen,
788 P.2d 513
(Utah 1990). But these cases speak to different issues than the one
before us. In Larsen, we analyzed the language “as prescribed by
law” to determine whether the legislature intended a statute or
procedural rule to govern a stay of a criminal sentence pending
appeal. 850 P.2d at 1266–67. And in Christensen, we addressed
whether a statute that allowed an appeal of a justice court ruling to
proceed as a de novo trial in a district court comported with the
constitutional appeal guarantee in the Utah Constitution. 788 P.2d
515–19. Neither case compels an answer to the question presented
here, which is whether the legislature can control our issue-specific
jurisdiction.
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circumstances, we would confine our analysis to that subsection
only. But Rippey’s argument and the State’s response also
implicate the waiver contained in subsection (2)(c). And so we turn
now to that waiver.
¶35 Subsection (2)(c) reads, “Any challenge to a guilty plea not
made within the time period specified in Subsection (2)(b) shall be
pursued under” the PCRA. 42 Rettig is clear that subsection (2)(c)
includes a substantive right: (2)(c) allows a defendant to raise
unpreserved challenges to a guilty plea through the PCRA, and that
established “a new legal remedy.” 43 “The establishment of a new
remedy is a core matter of substance—clearly within the power of
the legislature.”44 Because neither party challenges Rettig’s holding
on this point, we treat it as binding.
¶36 Although we held in Rettig that (2)(c) is substantive, our
analysis of (2)(c) was incomplete. There, the appellant challenged
only the constitutionality of subsection (2)(c), so we expressly
declined to consider any challenge to (2)(b)—the preservation
rule—or to consider whether the two provisions were inextricably
intertwined. 45 At the same time, we intimated that, along with a
substantive right, subsection (2)(c) also contains a procedural
component: the companion “waiver” to (2)(b)’s preservation rule.46
And we noted that the “procedural dimension of the preservation
rule in the statute—the time deadline it sets for the filing of
motions—may be a potent basis for questioning the
constitutionality of this statute under article VIII, section 4.”47 We
also held that ordinary rules of preservation and waiver do not
foreclose any substantive right.48 “They simply prescribe a sanction
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42 UTAH CODE § 77-13-6(2)(c).
43 2017 UT 83, ¶ 53,
416 P.3d 520.
44 Id.
45 Id. ¶¶ 59–60.
46 Id. ¶ 47 (citing subsection (2)(c) and stating that the PWS
“prescribes a strict waiver sanction that forecloses review for plain
error on direct appeal”).
47 Id. ¶ 59 n.14.
48 Id. ¶¶ 20–21 (discussing Rettig’s right to appeal claim).
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Opinion of the Court
for the failure to satisfy the timing deadlines set forth in the rule,”
and “that effect is as wide-ranging as it is commonplace.” 49
¶37 Rippey today brings that forecasted challenge to
subsection (2)(b). And we now determine that subsections (2)(b)
and (2)(c) together create a rule of preservation and waiver, with
subsection (2)(c) containing the waiver. It does so by making
explicit reference to the rule of preservation created by subsection
(2)(b): “[a]ny challenge to a guilty plea not made within the time
period specified in Subsection (2)(b) shall be pursued under” the
PCRA. 50
¶38 We have already concluded that subsection (2)(b) is
procedural, and accordingly must be stricken from the text of the
PWS. But because subsection (2)(c) relies on (2)(b)’s procedural
mechanism, removing (2)(b) leaves (2)(c)’s waiver untethered.
Without being able to reference “the time period specified in
Subsection (2)(b),” (2)(c) contains an inactionable command. And
without a defined time period, no defendant could be subject to the
waiver rule or required to pursue their challenge to their plea
through the PCRA. We thus conclude that we cannot fully address
Rippey’s challenge to subsection (2)(b) without addressing (2)(c) as
well.
¶39 To the extent subsection (2)(c) allows defendants to
challenge their plea under the PCRA, that is a clear substantive
right. But to the extent (2)(c) embeds a sanction for not meeting the
requirements of (2)(b), that portion is procedural and beyond the
power of the legislature to enact.
V. THE PROCEDURAL RULES OF SUBSECTIONS (2)(b) AND (2)(c) ARE
NOT INEXTRICABLY INTERTWINED WITH SUBSECTION (2)(c)’S
SUBSTANTIVE RIGHT
¶40 Having established that the PWS contains unconstitutional
procedural rules of preservation and waiver, we now analyze
whether we must still uphold those rules because they are
inextricably intertwined with the substantive law of the PWS. In
Rettig, we did “not need to reach whether subsections (2)(b) and
(2)(c) are ‘inextricably intertwined’ in a manner insulating the
broader statutory scheme from challenge (even if one of these
provisions is procedural)” because the appellant did not challenge
__________________________________________________________
49 Id. ¶ 21.
50 UTAH CODE § 77-13-6(2)(c).
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Opinion of the Court
subsection (2)(b). 51 With subsection (2)(b) on the table, we now
undertake the inextricably intertwined analysis.
¶41 We have previously held that a procedural provision in a
statute does not violate separation-of-powers principles when it is
attached to a substantive right and “cannot be stripped away
without leaving the right or duty created meaningless.” 52 Said
another way, “a procedural rule may be so intertwined with a
substantive right that the court must view it as substantive.” 53 The
State argues that we should view the procedural parts of
subsections (2)(b) and (2)(c) as inextricably intertwined with their
substance because “the exclusive nature of [the PCRA] remedy
comes into play only in conjunction with” and “is superfluous”
without the time limits of subsection (2)(b).
¶42 The State points to our analysis in Drej as supportive of its
position that we cannot untangle the substance and procedure of
the PWS, but our reasoning in Drej is distinguishable. 54 In Drej, we
considered whether the special mitigation statute complied with
the separation-of-powers provisions of article VIII. 55 The statute at
issue allowed criminal defendants to raise the affirmative defense
of special mitigation. 56 The parties in Drej did not argue that the
creation of the special mitigation defense was procedural. 57 Nor
could they have; the “statute plainly creates and defines the right
to present special mitigation to a jury,” and therefore is
substantive. 58
¶43 The issue instead was what burden of proof the special
mitigation statute required a defendant to meet to successfully
invoke that defense. 59 We noted that whether a statute that
assigned a burden of proof was procedural or substantive was a
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51 2017 UT 83, ¶ 60,
416 P.3d 520.
52 State v. Drej,
2010 UT 35, ¶ 31,
233 P.3d 476.
53 Id. ¶ 30.
54 See id.
55 See id. ¶¶ 25–31.
56 See UTAH CODE § 76-5-205.5.
57 Drej,
2010 UT 35, ¶ 11.
58 Id. ¶ 28.
59 See id. ¶ 11.
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STATE v. RIPPEY
Opinion of the Court
question of first impression and that other state courts were split
on the issue. 60 But we found guidance in the approach that the U.S.
Supreme Court took in Northern Pipeline Construction Co. v.
Marathon Pipe Line Co. when addressing the same issue. 61 There, the
Court concluded that assigning a burden of proof was procedural,
in that it “affect[ed] the exercise of judicial power.” 62 But the Court
reasoned that “[p]rovisions that create presumptions, or assign
burdens of proof, or prescribe remedies . . . are also incidental to
Congress’[s] power to define the right that it has created.”63
Applying that reasoning in Drej, we held the burden of proof was
so intertwined with the substantive right to present mitigation that
the court had to view it as substantive. 64
¶44 The State claims that our reasoning from Drej applies here.
Specifically, it argues that subsections (2)(b) and (2)(c) are
inextricably intertwined because “the exclusive nature of
[subsection (2)(c)’s PCRA] remedy comes into play only in
conjunction with the time limits of subsection (2)(b).” And because
stripping away the procedure created by (2)(b) would render the
substantive right created by (2)(c) meaningless, we must treat that
procedural subsection as substantive. 65
¶45 But the scenario we faced in Drej is not what we face today.
In Drej, the legislature created a statute that was overwhelmingly
substantive aside from a small procedural component. Here, the
legislature has enacted a statute that is, at its core, a procedural rule.
Subsections (2)(b) and (2)(c) of the PWS are fundamentally a rule of
__________________________________________________________
60 Id. ¶ 29.
61 Id. ¶¶ 30–31 (discussing N. Pipeline Constr. Co. v. Marathon Pipe
Line Co., 458 U.S. 50 (1982), superseded by statute as recognized in
Things Remembered, Inc. v. Petrarca,
516 U.S. 124, 132 n.2 (1995)
(Ginsburg, J., concurring)).
62 Marathon Pipe Line Co.,
458 U.S. at 83.
63 Drej,
2010 UT 35, ¶ 30 (cleaned up) (citing Marathon Pipe Line
Co.,
458 U.S. at 83).
64 Id. ¶ 31.
65 While we leave Rettig’s holding untouched, we note it is
dubious whether subsection (2)(c) created a substantive right to
challenge a plea that did not already exist under the PCRA.
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Opinion of the Court
preservation and waiver. And as we held in Rettig and affirm with
our analysis above, that rule is fundamentally procedural. 66
¶46 Our primary concern when interpreting article VIII is to
ensure that the branches of government, including the judiciary,
exercise only the powers that the Utah Constitution appoints to
them. In Drej, we held that it was appropriate to allow the
legislature to “incidental[ly]” infringe upon the judiciary’s
authority to adopt procedural rules because that infringement was
necessary for the legislature to define the right that it had created.67
That logic does not apply when the balance between substantive
law and procedural infringement tips in the other direction.
¶47 Accordingly, we reject the State’s argument that our
holding in Drej prevents us from excising the procedural portions
of subsection (2) of the PWS from the substantive ones. Because
subsection (2)(b) is procedural, we strike it down as an
unconstitutional infringement on this court’s authority to adopt
rules of procedure. And while we abide by Rettig’s conclusion that
subsection (2)(c) creates a substantive right to challenge a guilty
plea under the PCRA, for the reasons articulated above, we hold
that its procedural component lacks legal effect once subsection
(2)(b) is removed. Thus, when shorn of its procedural content by
our decision today, subsection (2)(c) simply allows any challenge
to a guilty plea to be pursued under the PCRA.
VI. THE STANDARD RULES OF PRESERVATION APPLY TO PLEA
WITHDRAWAL
¶48 Having stricken subsection (2)(b) and the corresponding
waiver rule embedded in subsection (2)(c) of the PWS, we next
address how plea withdrawal works in the absence of these
procedural rules. 68 We hold that without subsection (2)’s special
rule of preservation and waiver, our normal rules of preservation
and waiver apply. Under those rules, “[a]n issue is preserved for
appeal when it has been presented to the district court in such a
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66 2017 UT 83, ¶ 58.
67
2010 UT 35, ¶¶ 30–31 (cleaned up).
68 Because the withdrawal of a not-guilty plea is governed by
subsection (1), this decision does not affect that subsection. See
UTAH CODE § 77-13-6(1).
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STATE v. RIPPEY
Opinion of the Court
way that the court has an opportunity to rule on it.” 69 If a party
“fails to raise and argue an issue in the [district] court, it has failed
to preserve the issue, and an appellate court will not typically reach
that issue absent a valid exception to preservation.” 70
¶49 In practice, this means that whether a defendant may
challenge a guilty plea on direct appeal will depend on whether he
attempted to withdraw that plea in the district court in a way that
the district court had the opportunity to rule on it. If the defendant
does, then the issue of the plea’s validity is preserved and may be
argued on direct appeal. If the defendant does not preserve the
issue of the plea’s validity, then to challenge that plea on direct
appeal the defendant will need to show that an exception to
preservation applies. 71
¶50 Moving forward, this case is governed by those same
rules. In an order issued alongside this decision, we ask the parties
to brief the merits of Rippey’s challenges to his plea, conviction, or
sentence under the standards articulated in this opinion. 72
CONCLUSION
¶51 Rippey challenges the constitutionality of the PWS. We
hold that subsection (2)(b) and the waiver component of subsection
(2)(c) of the PWS were unconstitutionally enacted in violation of
article VIII, section 4 of the Utah Constitution. We keep this case to
hear further argument on Rippey’s challenges to his guilty plea,
conviction, or sentence.
__________________________________________________________
69 See Patterson v. Patterson, 2011 UT 68, ¶ 12,
266 P.3d 828
(cleaned up).
70 State v. Johnson,
2017 UT 76, ¶ 15,
416 P.3d 443; see also
id.
¶¶ 20–24 (listing three exceptions to preservation: plain error,
ineffective assistance of counsel, and exceptional circumstances).
71 See id. ¶ 15.
72 In another order issued alongside this decision, we lift the stay
on the related cases. See supra ¶ 18 n.11. Pursuant to rule 42 of the
Utah Rules of Appellate Procedure, we pour those cases back over
to the court of appeals for further proceedings under the standards
articulated in this opinion.
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