                    This opinion is subject to revision before final
                           publication in the Pacific Reporter

                                    2017 UT 84


                                       IN THE

          SUPREME COURT OF THE STATE OF UTAH

                                 STATE OF UTAH,
                                    Appellee,
                                          v.
                          CURTIS MICHAEL ALLGIER,
                                 Appellant.

                                No. 20130021
                          Filed November 22, 2017

                               On Direct Appeal

                         Third District, Salt Lake
                     The Honorable Paul G. Maughan
                             No. 071904711

                                    Attorneys:
                       Curtis Michael Allgier, pro se
    Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Solic. Gen.,
                        Salt Lake City, for appellee

    CHIEF JUSTICE DURRANT authored the opinion of the court, in which
             ASSOCIATE CHIEF JUSTICE LEE, JUSTICE PEARCE, and
                       JUDGE CHRISTIANSEN joined.
               JUSTICE DURHAM filed a concurring opinion.
      Having recused himself, JUSTICE HIMONAS does not participate
            herein. COURT OF APPEALS ASSOCIATE PRESIDING
                 JUDGE MICHELE M. CHRISTIANSEN sat.




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
 Justice Durham sat on this case and voted prior to her retirement on
November 15, 2017.
                         STATE v. ALLGIER
                       Opinion of the Court

   CHIEF JUSTICE DURRANT, opinion of the Court:
                           Introduction
    ¶1 Curtis Michael Allgier pleaded guilty to aggravated murder,
disarming a police officer, aggravated escape, aggravated robbery,
and possession of a firearm by a restricted person. He also pleaded
no contest to three counts of attempted aggravated murder. After he
was sentenced, Mr. Allgier filed a pro se motion to withdraw his
pleas. The district court denied his motion because, as provided by
the Plea Withdrawal Statute, Utah Code section 77-13-6, “[a] request
to withdraw a plea of guilty or no contest . . . shall be made by
motion before sentence is announced.” Mr. Allgier appeals the
denial of his motion to withdraw his pleas, challenging the
constitutionality of the Plea Withdrawal Statute and arguing that he
received ineffective assistance of counsel when he entered the plea
agreement. We dismiss this appeal, holding that Mr. Allgier did not
timely move to withdraw his pleas and that this court is without
jurisdiction to consider his claims.
                           Background
    ¶2 While serving a sentence at the Utah State Prison in 2007,
Mr. Allgier was transported to the University of Utah hospital for
treatment. In an attempt to escape, he disarmed his transportation
officer and shot him twice, killing him. Mr. Allgier then fled the
hospital, used the officer’s gun to steal a car, and drove away.
Mr. Allgier’s prior conviction restricted him from possessing or
using a firearm.
    ¶3 Officers located Mr. Allgier and attempted to stop him by
placing a spike strip on a freeway ramp. He avoided the spikes by
swerving off the ramp and toward an officer. He then drove to a
restaurant where he ordered everyone to the ground. There, he held
a gun to an employee’s head and fired, but missed. He instead beat
the employee with the butt of the gun. When a customer came to the
employee’s aid, Mr. Allgier grabbed a knife and sliced the
customer’s neck. Officers later found Mr. Allgier hiding in a back
room of the restaurant and arrested him.
    ¶4 Mr. Allgier was charged with aggravated murder, a capital
offense; disarming a peace officer, aggravated escape, and
aggravated robbery, all first degree felonies; three counts of
attempted aggravated murder, first degree felonies; and possession
of a firearm by a restricted person, a second degree felony.
   ¶5 Over five years after the charges were filed, the parties
reached a plea agreement. In exchange for the State’s agreement not
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                         Opinion of the Court

to seek the death penalty, Mr. Allgier agreed to plead guilty to the
counts of aggravated murder, disarming a peace officer, aggravated
escape, aggravated robbery, and possession of a firearm by a
restricted person, and to be sentenced to life without parole for the
aggravated murder. He also agreed to plead no contest to the three
counts of attempted aggravated murder.
    ¶6 In a plea affidavit, which he “adopt[ed] . . . as [his] own,”
Mr. Allgier affirmed that he understood that he would give up
certain rights, including “the right to appeal [his] conviction.” He
also declared, “I understand that if I want to withdraw my guilty/no
contest pleas, I must file a written motion to withdraw my pleas
before I have been sentenced and final judgment has been entered.”
    ¶7 At the plea hearing, the court explained to Mr. Allgier that
he would be waiving his right to appeal his conviction and his right
to assistance of counsel. The court also explained that if Mr. Allgier
wanted to withdraw his plea, he would have to file a written motion
“prior to the time that sentence is announced.” Mr. Allgier said that
he understood and that he didn’t require further explanation or
clarification.
    ¶8 Mr. Allgier entered guilty and no contest pleas as stated in
the plea agreement and signed the plea affidavit in open court. He
also waived the maximum time for sentencing and was sentenced
two months later.
    ¶9 At his sentencing hearing, held on December 5, 2012,
Mr. Allgier addressed the court at length. He explained his version
of the facts, criticized the pre-sentence report, criticized his prior
attorneys, criticized his treatment at the jail, described his family
situation, apologized to the officer’s family, explained his reasoning
for pleading guilty, detailed his criminal history, and apologized to
the court for his past actions. He did not tell the court that he wished
to withdraw his pleas.
    ¶10 The court sentenced Mr. Allgier to imprisonment for life
without parole for aggravated murder; five years to life for
disarming a peace officer; six years to life for aggravated escape; six
years to life for aggravated robbery; six years to life for each count of
attempted aggravated murder; and one to fifteen years for the
possession of a firearm by a restrict person. The court ordered the
sentences to run consecutively.
    ¶11 On December 22, 2012, Mr. Allgier signed and mailed to the
district court a document entitled “Notice to Withdraw ALL pleas
from case No. 071904711 FS, for, but NOT limited to: exorbi[t]ant

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                          STATE v. ALLGIER
                        Opinion of the Court

and very extraordinary circumstances, illegal and unconstitutional
actions, extreme ineffective assistance, judicial misconduct,
prosecutorial misconduct, fraud, deception, forgery, invalid pleas,
and much more; and request for counsel to assist that’s conflict free,
competent.” This December 22 notice does not mention any previous
motion to withdraw filed by Mr. Allgier. On the same date, he filed a
notice of appeal.
    ¶12 On appeal, Mr. Allgier moved this court to supplement the
record with a motion to withdraw that he alleges he mailed to the
district court and the prosecutors on October 11, 2012—one week
after his plea hearing and well before his sentencing hearing. This
court ordered the district court to review its records to determine
whether this motion and an accompanying affidavit were received
but either not filed or misfiled. We also ordered the parties to
determine if there were any records of outgoing mail or the
notarization of the affidavit, or if the prosecutors had received the
motion and affidavit. The district court reported that it had no record
of receiving the motion or the affidavit. The State reported that the
prison logs only outgoing mail that the sender has marked “legal,”
and there was no record of any outgoing “legal” mail for Mr. Allgier
in October 2012. The State also reported that the prison had no
records regarding the notarizing of the affidavit. The prosecutors
reported that they had no record of receiving the motion or the
affidavit. This court accordingly denied Mr. Allgier’s motion to
supplement the record.
                   Issue and Standard of Review
    ¶13 Mr. Allgier challenges the constitutionality of the Plea
Withdrawal Statute, Utah Code section 77-13-6. Specifically, he
argues that the jurisdictional bar deprives him of his right to direct
appellate review of the entry of his plea.1 “Whether appellate
jurisdiction exists is a question of law which we review for


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   1  Mr. Allgier argues that he received ineffective assistance of
counsel at the plea hearing. We note that he filed a motion with this
court to remand his case for findings necessary to determine his
ineffective assistance of counsel claim under rule 23B of the Utah
Rules of Appellate Procedure. Because we dismiss this appeal for
lack of jurisdiction, we do not address his claim of ineffective
assistance and dismiss his 23B motion.


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                           Opinion of the Court

correctness . . . .”2 A constitutional challenge is also a question of law
reviewed for correctness.3
                                   Analysis
   ¶14 The Utah Constitution provides that “[i]n criminal
prosecutions the accused shall have . . . the right to appeal in all
cases.”4 “This right is not unlimited, however, as ‘the appeal must be
taken within such limitations and restrictions as to time and orderly
procedure as the Legislature may prescribe.’”5 The Plea Withdrawal
Statute “limits a defendant’s right to appeal by requiring the
defendant to either withdraw the plea prior to sentencing, or pursue
postconviction relief after sentencing.”6 It provides that “[a] request
to withdraw a plea of guilty or no contest . . . shall be made by
motion before sentence is announced. . . . Any challenge to a guilty
plea not made within the time period specified . . . shall be pursued
under Title 78B, Chapter 9, Postconviction Remedies Act, and Rule
65C, Utah Rules of Civil Procedure.”7
    ¶15 Mr. Allgier contends that the “Plea Withdrawal Statute
unconstitutionally deprives [him] of his right to a direct appeal of his
criminal case.” He “asks this court to reconsider its case law
establishing a jurisdictional bar to plea challenges after sentence is
announced,” and he applies the analysis we set forth in State v.
Menzies to argue that our precedent in this regard is “‘not the most
weighty,’ was not based on ‘analysis and . . . reference to
authority[,]’ and establishes a rule that ‘does not work very well.’”8
He further argues that the Postconviction Remedies Act (PCRA)
“does not provide protection equivalent to those available on direct
appeal.”



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   2   Gailey v. State, 2016 UT 35, ¶ 8, 379 P.3d 1278 (citation omitted).
   3   See State v. Maestas, 2012 UT 46, ¶ 337, 299 P.3d 892.
   4   UTAH CONST. art. I, § 12.
   5Gailey v. State, 2016 UT 35, ¶ 9, 379 P.3d 1278 (quoting Weaver v.
Kimball, 202 P. 9, 10 (Utah 1921)).
   6   Id. ¶ 10.
   7   UTAH CODE § 77-13-6(2)(b)-(c).
   8   Quoting State v. Menzies, 889 P.2d 393, 399–400 (Utah 1994).


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                             STATE v. ALLGIER
                            Opinion of the Court

   ¶16 We recently rejected similar arguments in our opinion in
Gailey v. State.9 There, we “clarif[ied] and reaffirm[ed] our precedent
holding that the Plea Withdrawal Statute is a procedural bar to a
direct appeal post-sentencing.”10 We reach the same conclusion here
and accordingly affirm the district court’s denial of Mr. Allgier’s
motion to withdraw his pleas.
I. Our Precedent that the Plea Withdrawal Statute is a Jurisdictional
     Bar to Direct Appeal After Sentencing is Well Established
    ¶17 Mr. Allgier argues that we “should reconsider case law
analyzing the Plea Withdrawal Statute in light of amendments to the
statutory law and controlling precedent from the United States
Supreme Court.” He specifically looks to this court’s opinions in
State v. Merrill11 and State v. Rhinehart12 to argue that our precedent
has not addressed the constitutionality of the Plea Withdrawal
Statute under article I, section 12 of the Utah Constitution. But
whatever ambiguities he may have found in Merrill and Rhinehart
were resolved by this court in Gailey v. State. Further, the
“controlling precedent from the United States Supreme Court” he
refers to only highlights the role of plea agreements in our current
justice system—it does not address jurisdictional bars to appeals
from plea agreements. Parties who ask this court “to overturn prior
precedent have a substantial burden of persuasion” 13—one that
Mr. Allgier has not met.
    ¶18 In State v. Merrill,14 and again in Gailey v. State,15 this court
traced its precedent establishing that the Plea Withdrawal Statute’s
deadline imposed a jurisdictional bar. The 1989 version of the Statute
created a thirty-day filing limitation on the defendant’s right to
withdraw a guilty plea.16 In State v. Abeyta, we recognized that after

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   9   2016 UT 35.
   10   Id. ¶ 11.
   11   2005 UT 34, 114 P.3d 585.
   12   2007 UT 61, 167 P.3d 1046.
   13   State v. Menzies, 889 P.2d 393, 398 (Utah 1994).
   14   2005 UT 34, ¶¶ 14–20.
   15   2016 UT 35, ¶ 14.
   16   UTAH CODE § 77-13-6(2)(b) (1989).


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                            Opinion of the Court

the thirty-day deadline, “the right [to withdraw a guilty plea] is
extinguished.”17 “Although we later characterized this statement in
Abeyta as dictum, we reaffirmed the principle in several cases and
expressly held the thirty-day limit to be a procedural bar to plea
withdrawals and appeals from guilty pleas.”18 In Merrill, we held
that “[a]lthough the retroactive promotion of dictum to holding is a
practice we do not endorse, we neither apologize for our
assessments of the jurisdictional nature of the thirty-day filing
period in Abeyta . . . nor retreat from what is clearly our holding in
[later cases], all of which imposes a jurisdictional bar on late-filed
motions to withdraw guilty pleas.”19 In Gailey, we reiterated this
position, noting that the 2003 amendments to the Plea Withdrawal
Statute strengthened our interpretation: “Although the 1989 version
of the statute did not expressly provide that the right to withdraw a
plea is extinguished after the thirty-day deadline, we inferred a
procedural bar from its language and structure. Reliance on this
inference is no longer necessary. The plain language of the current
Plea Withdrawal Statute explicitly provides the procedural roadmap
for post-sentencing motions to withdraw a plea—and that is through
postconviction relief.”20
    ¶19 Rhinehart relied on Merrill’s analysis to answer the
defendant’s challenge in that case that “the ineffectiveness of her
trial counsel caused her to enter her plea and to fail to bring a timely
motion to withdraw it.”21 Mr. Allgier’s claim echoes that of the
defendant’s in Rhinehart, as does our answer—that “claims of
ineffective assistance of counsel raised in the context of challenges to
the lawfulness of guilty pleas are governed by [the Plea Withdrawal
Statute]. We therefore are without jurisdiction to consider [the
defendant’s] claim.”22
  ¶20 Finally, Mr. Allgier points to two United States Supreme
Court cases, Lafler v. Cooper and Missouri v. Frye, to argue that “the

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   17   852 P.2d 993, 995 (Utah 1993) (per curiam).
   18   Gailey, 2016 UT 35, ¶ 14.
   19   2005 UT 34, ¶ 17.
   20   Gailey, 2016 UT 35, ¶ 18.
   21   Rhinehart, 2007 UT 61, ¶ 11.
   22   Id. ¶ 14.


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                              STATE v. ALLGIER
                            Opinion of the Court

Sixth Amendment’s ‘constitutional guarantee’ of effective assistance
‘applies to pretrial critical stages that are part of the whole course of
a criminal proceeding,’” including the plea bargaining stage.23 We
recognize the significance of the plea bargaining stage, echoing the
Supreme Court’s observation that “[i]n today’s criminal justice
system . . . the negotiation of a plea bargain, rather than the
unfolding of a trial, is almost always the critical point for a
defendant.”24 And we recognize the importance of effective
assistance of counsel at the plea bargaining stage. But neither Lafler
nor Frye addressed the constitutionality of a jurisdictional bar to
direct appeals or the need to pursue such claims through
postconviction proceedings. In fact, both Lafler and Frye were
appeals from postconviction proceedings.25 And, like the defendants
in Lafler and Frye, Mr. Allgier has the right to challenge his
conviction under the PCRA, as well as the right to appeal from the
final judgment of the postconviction proceeding in the district
court.26
    ¶21 Mr. Allgier has not carried his substantial burden to
persuade us that our precedent is not sufficiently weighty or
supported, or that it works poorly. As we reaffirmed in Gailey v.
State, our precedent that the Plea Withdrawal Statute imposes a
jurisdictional bar is well established.
   II. The Plea Withdrawal Statute Does Not Violate Mr. Allgier’s
                   Constitutional Right to Appeal
    ¶22 Mr. Allgier next challenges the constitutionality of the Plea
Withdrawal Statute under article I, section 12 of the Utah
Constitution, which provides that “[i]n criminal prosecutions the
accused shall have . . . the right to appeal in all cases.” He argues that
“[a]lthough this state guarantees an appeal ‘in all cases,’ [he] will not
enjoy a right to a direct appeal if this court lacks jurisdiction to hear
it.” He further argues that, although he may still pursue his claims
through the PCRA, “the PCRA does not provide protections
equivalent to those available on direct appeal.”


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   23   Quoting Lafler v. Cooper, 566 U.S. 156, 165 (2012).
   24   Missouri v. Frye, 566 U.S. 134, 144 (2012).
   25   See Lafler, 566 U.S. at 162; Frye, 566 U.S. at 139–40.
   26   See Gailey, 2016 UT 35, ¶ 25.


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                            Opinion of the Court

    ¶23 “The Plea Withdrawal Statute does not foreclose an appeal.
It simply says that a defendant may not seek to ‘withdraw a plea of
guilty’ [or no contest] at any time after a ‘sentence is announced.’”27
In other words, it “says only that a guilty plea may not be challenged
further—either in the district court or on appeal—if it is not
withdrawn prior to sentencing.”28 Therefore, “the Plea Withdrawal
Statute does not, on its face, violate the constitutional right to appeal.
It simply dictates the procedural mechanism for pursuing a claim; it
does not altogether foreclose relief.”29 Accordingly, the Plea
Withdrawal Statute does not abrogate the constitutional right to an
appeal.30 As in Gailey, Mr. Allgier had the right to a direct appeal. By
failing to assert this right within the applicable time period he
forfeited it.
   ¶24 Justice Durham concurs in the result and incorporates the
reasoning in her separate opinion in State v. Rettig,31 in which she
argues that the Plea Withdrawal Statute is a jurisdictional bar and
not a rule of preservation.32 But as the Rettig majority explains, the
two are not mutually exclusive.33 To set them at odds with each
other is to create a false dichotomy. Instead, they work together in
the context of the Plea Withdrawal Statute.
    ¶25 The Plea Withdrawal Statute establishes two requirements
for withdrawing a plea of guilty or no contest. First, a plea “may be
withdrawn only upon . . . a showing that it was not knowingly and
voluntarily made.”34 Second, a “request to withdraw a plea of guilty
or no contest . . . shall be made by motion before sentence is
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   27Gailey v. State, 2016 UT 35, ¶ 34, 379 P.3d 1278 (Lee, A.C.J.,
concurring) (quoting UTAH CODE § 77-13-6(2)(b)).
   28   Id.
   29   Id. ¶ 23 (majority opinion).
   30   See id. ¶ 24.
   31   2017 UT 83, --- P.3d ----.
   32   Id. ¶ 66 (Durham, J., concurring in result).
   33 See id. ¶¶ 26–27 (majority opinion) (“The 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.”).
   34   UTAH CODE § 77-13-6(2)(a).


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                                STATE v. ALLGIER
                               Opinion of the Court

announced.”35 These requirements function as rules of preservation,
which require that an issue be “presented to the trial court in such a
way that the trial court has an opportunity to rule on that issue.”36 In
other words, we look to whether an issue was specifically raised in
the district court in a timely fashion and whether evidence or
relevant legal authority was introduced to address the issue.37 The
Plea Withdrawal Statute requires a defendant to take each of these
steps to withdraw a plea of guilty or no contest. A defendant must
request a plea withdrawal in a timely fashion—before his or her
sentence is announced. And he or she must file a request to
withdraw the plea and must present evidence to support a finding
that he or she did not enter the plea knowingly or voluntarily. If a
defendant fails to take these steps to preserve the issue, he or she has
“waived the right to raise a specific issue (the validity of [his or] her
guilty plea) by not preserving the argument at the time required by
the governing law.”38
    ¶26 That the Plea Withdrawal Statute functions as a rule of
preservation does not remove or replace the jurisdictional bar
mandated by the statute. It does not allow defendants to work
around the jurisdictional bar through the exceptions to
preservation—plain error, exceptional circumstances, or ineffective
assistance of counsel. We have read—and continue to read—the
statute to foreclose these avenues for review.39 As the majority states
in Rettig, “the statute speaks directly and comprehensively to the
result of failure to move to withdraw prior to sentencing.”40 “Any
challenge to a guilty plea not made within the time period specified

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   35   Id. § 77-13-6(2)(b).
   36   Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366 (citation omitted).
   37   See id.
   38   Gailey, 2016 UT 35, ¶ 34 (Lee, A.C.J., concurring).
   39 See State v. Rhinehart, 2007 UT 61, ¶ 14, 167 P.3d 1046 (holding
that “claims of ineffective assistance of counsel raised in the context
of challenges to the lawfulness of guilty pleas are governed by
section 77-13-6 . . . . We are therefore without jurisdiction to consider
[defendant’s] claim.”); State v. Reyes, 2002 UT 13, ¶ 4, 40 P.3d 630
(stating this court “cannot . . . use plain error to reach an issue over
which it has no jurisdiction”).
   40   Rettig, 2017 UT 83, ¶ 42.


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                   Durham, J., concurring in the result

in Subsection (2)(b) shall be pursued under [the] Postconviction
Remedies Act . . . .”41
    ¶27 When Mr. Allgier entered his plea, he was informed that a
request to withdraw his plea must be entered before sentencing. He
failed to do so and accordingly waived his right to a direct appeal.
Any claims Mr. Allgier may have with respect to ineffective
assistance of counsel or whether his plea was knowingly and
voluntarily made can be pursued under the PCRA. He also has the
right to appeal rulings made on those claims. In fact, the PCRA has
long been the remedy for these types of claims.42
                               Conclusion
    ¶28 The jurisdictional bar imposed by the Plea Withdrawal
Statute is well established in our caselaw and does not deprive a
defendant of his constitutional right to an appeal. Mr. Allgier
forfeited his right to direct appeal, and we accordingly dismiss this
appeal.


   JUSTICE DURHAM, concurring in the result:

   ¶29 For the reasons set forth in my concurring opinion in State v.
Rettig, 2017 UT 83, --- P.3d ---, I concur in the result of this opinion,
but disagree with the route the majority takes to reach that result.




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   41   UTAH CODE § 77-13-6(2)(c).
   42 See, e.g., Nicholls v. State, 2009 UT 12, ¶¶ 15–33, 203 P.3d 976
(addressing postconviction claims of an unknowing or involuntary
plea); id. ¶¶ 34–40 (addressing postconviction claims of ineffective
assistance of trial counsel). See also Rippey v. State, 2014 UT App 240,
¶ 14, 337 P.3d 1071 (addressing the requirements to bring a PCRA
claim that “trial counsel’s alleged deficiencies rendered his plea
unknowing or involuntary notwithstanding the waivers embodied
in his plea agreement”).


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