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

                                    2015 UT 52

                                       IN THE

        S UPREME C OURT OF THE S TATE OF U TAH
                                 STATE OF UTAH ,
                                    Appellee,
                                          v.
                            TRACY EUGENE SMITH ,
                                 Appellant.

                                 No. 20150036
                              Filed June 26, 2015

                       Fifth District, Beaver Dep’t
                      The Honorable Paul D. Lyman
                              No. 881500631

                                    Attorneys:
Sean D. Reyes, Att’y Gen., Laura B. Dupaix, Asst. Att’y Gen., Salt
                     Lake City, for appellee
             Dale W. Sessions, Cedar City, for appellant

      Per Curiam:
                               BACKGROUND
    ¶ 1 Tracy Eugene Smith was charged with first-degree murder
in 1988. That charge included capital punishment as a possible
sentence. Mr. Smith pled guilty in exchange for the State’s
agreement not to seek the death penalty. He later filed a motion to
withdraw his plea.1 The district court addressed the merits and
denied the motion. Mr. Smith appealed.2 We affirmed the denial of
his motion to withdraw the plea in State v. Smith, 866 P.2d 532,
532–33 (Utah 1993).3

  1
     The rules governing plea withdrawals have since been substan-
tially amended. Currently, a motion to withdraw a plea must be
filed prior to sentencing to be deemed timely. See UTAH CODE § 77-
13-6(2).
  2
    Mr. Smith also filed a petition for writ of habeas corpus, which
was transferred to the district court. That petition alleged ineffective
assistance of counsel.
  3
      Mr. Smith’s appeal sought to challenge both his plea and his
                                                     (continued...)
                          STATE v. SMITH
                        Opinion of the Court

     ¶ 2 In 2014, Mr. Smith filed a motion to reinstate his right to
appeal under rule 4(f) of the Utah Rules of Appellate Procedure. It
appears that motion was predicated on claims that his counsel had
rendered ineffective assistance in advising Mr. Smith to accept the
plea. The district court addressed the motion under the criteria set
forth by rule 4(f) and determined the allegations did not satisfy those
criteria. Mr. Smith appealed that decision, and it was transferred to
the court of appeals pursuant to rule 42(a) of the Rules of Appellate
Procedure. Mr. Smith subsequently filed a letter claiming the appeal
was not subject to transfer. We issued an order temporarily recalling
the transfer of this appeal for the sole purpose of determining
whether it is within our exclusive jurisdiction.
                             ANALYSIS
   ¶ 3 The framework for allocation of appellate jurisdiction
between this court and the court of appeals is set forth in,
respectively, sections 78A-3-102 and 78A-4-103 of the Utah Code.
Each of those provisions enumerates certain specific categories of
cases as falling within each court’s original appellate jurisdiction.
The provisions appear to be structured in a manner that avoids an
overlap between the allocations of original appellate jurisdiction and
that also avoids any jurisdictional vacuum.4 The latter goal is


  3
    (...continued)
sentence. See State v. Smith, 866 P.2d 532, 532–33 (Utah 1993).
Specifically, Mr. Smith had claimed that “the trial court could not
have reasonably accepted a guilty plea for capital murder,” id. at
532, and that it had lacked a factual basis for its sentencing recom-
mendation that Mr. Smith not be allowed parole or be considered for
parole until he had served at least twenty years in prison, see id. at
533. With respect to the first argument, we held that “[t]he grounds
raised by the defendant [were] clearly frivolous and [could not] be
supported.” Id. As to the second contention, we determined Mr.
Smith had failed to preserve his argument in connection with his
motion to withdraw the plea. Nonetheless, we opined the habeas
court could “address [that] issue . . . in [his then] pending petition
for writ of habeas corpus.” Id.
  4
    Conversely, there is a broad overlap of nonexclusive jurisdiction.
Each court may transfer certain appellate proceedings to the other.
There is no restriction on the transfer of any matter within the court
of appeals’ original appellate jurisdiction. But subsection 78A-3-
                                                        (continued...)

                                  2
                          Cite as: 2015 UT 52
                         Opinion of the Court

accomplished by a residual clause, subsection 78A-3-102(3)(j), which
vests appellate jurisdiction in this court for any matter not otherwise
falling within the court of appeals’ jurisdiction.
    ¶ 4 The provisions describing the enumerated original appellate
jurisdiction for criminal matters are subsections (3)(h) and (3)(i),
which respectively state that this court has original appellate
jurisdiction over “interlocutory appeals from any court of record
involving a charge of a first degree or capital felony,” and “appeals
from the district court involving a conviction or charge of a first degree
felony or capital felony.”5 (Emphases added.) It is not immediately
clear how broadly the Legislature intended the term “involving” in
relation to the term “conviction” or “charge” to be read. One
obvious purpose for the term “involving” would be to accommodate
the common circumstance where an information includes charges
for multiple offenses of various levels. Thus, if a criminal case
includes a single first-degree or capital felony among multiple other
lower degree charges or convictions, that posture would not remove
the appeal from our original appellate jurisdiction. The more serious
charge is “involv[ed],” and the appeal initially would come to this
Court rather than to the court of appeals.6

   4
   (...continued)
102(4) states that the transfer of certain categories from this Court to
the court of appeals is prohibited. Thus, the court of appeals’
original appellate jurisdiction is nonexclusive, whereas a portion of
our original appellate jurisdiction is exclusive.
   5
    Initially, the reference in subsection 78A-3-102(3)(i) to an appeal
of a “charge” seems curious because there generally is no entitle-
ment to appeal prior to sentencing upon a verdict or plea. More-
over, any interpretation of the provision that would allocate
jurisdiction according to the original charges without considering
subsequent modifications would obviate any need to refer to
convictions and would nullify that term. In that light, it appears the
reference to “charge” was intended to accommodate the circum-
stance where the State is entitled to appeal a decision occurring prior
to a conviction and the appeal is not otherwise barred by double
jeopardy. Thus, if the State appeals in that circumstance, the
allocation of original appellate jurisdiction presumably would be
determined according to the status of the charges at the time the
appealed ruling was issued.
   6
       Similarly, we conclude the terms “involving” and “conviction”
                                                       (continued...)

                                    3
                           STATE v. SMITH
                        Opinion of the Court

    ¶ 5 It may be less clear whether the interpretation of the term
“involving” in relation to “conviction,” should extend to appeals
arising from various postjudgment or collateral proceedings, such
as postconviction petitions, motions filed under rule 22(e) of the
Rules of Criminal Procedure, petitions challenging parole decisions,
or (as in this case) rulings on motions to reinstate the time to appeal
under rule 4(f) of the Rules of Appellate Procedure. Those types of
proceedings certainly might be viewed as falling within subsection
78A-3-102 (3)(i) but, given our conclusion below regarding the scope
of our exclusive appellate jurisdiction, we find it unnecessary to
confront the precise scope of that provision to resolve the issue
presented by this case.7
    ¶ 6 With respect to our exclusive appellate jurisdiction over
criminal matters, subsection 78A-3-102(4)(a) states “[t]he Supreme
Court may transfer to the Court of Appeals any of the matters over
which the Supreme Court has original appellate jurisdiction,
except . . . capital felony convictions or an appeal of an interlocutory
order of a court of record involving a charge of a capital felony.”
Beginning with the reference to a “court of record” in the latter
portion of the exclusive jurisdiction clause, subsection 4(a) repeats
verbatim the statement of original appellate jurisdiction in
subsection 3(h) for interlocutory appeals, but the first portion of the
same clause, pertaining to direct appeals, omits the term “involving”
in reference to appellate challenges to a capital conviction. By


  6
    (...continued)
are sufficiently broad to encompass an appeal of a sentence that does
not challenge the underlying conviction. Otherwise, the parallel
provisions in subsections (2)(d) and (2)(e) of section 78A-4-103
(which also describe direct and interlocutory appeals “involving”
lower level offenses) would not encompass an appeal limited to a
sentence, and we would acquire original appellate jurisdiction (via
the residual clause of subsection 78A-3-102(3)(j)) over any such
appeal, regardless of how trivial the severity of the crime.
  7
     Even if the precise reach of subsection 78A-3-102(3)(i) is in
doubt, it seems relatively clear that the court of appeals’ original
appellate jurisdiction does not include appeals from postjudgment
or collateral cases arising from first-degree or capital felony
convictions. See UTAH CODE § 78A-4-103(2)(d)–(g). Thus, to the
extent there is doubt about whether subsection 78A-3-102(3)(i)
includes such cases, we presumably would acquire jurisdiction
under the residual clause, subsection 78A-3-102(3)(j).

                                   4
                         Cite as: 2015 UT 52
                        Opinion of the Court

omitting the term “involving” in relation to direct appeals, the
exclusive jurisdiction clause is narrower than any reading that might
apply to the reference to capital felony convictions within the
separate description of original jurisdiction. Thus, the direct appeals
described in subsection 78A-3-102(4)(a) encompass only direct
challenges to capital convictions.8
    ¶ 7 It follows that the appeal in this case is not within our
exclusive appellate jurisdiction. Mr. Smith previously filed a direct
appeal of his sentence and the denial of his motion to withdraw his
plea. The decision from which his subsequent appeal was brought
did not constitute an adjudication of the validity of his conviction.
It only denied a postjudgment request to reinstate the right to
appeal, and his appeal of that decision does not constitute a direct
challenge to his conviction. Accordingly, we transfer this appeal
back to the court of appeals.




  8
    The terms “involving” and “conviction” in subsection 78A-3-
102(3)(i) include an appeal of any sentence arising from a plea to or
verdict for a first-degree or capital felony. See supra, n.6. Thus, an
appeal that challenges a death sentence but not the underlying
verdict or plea would fall within our exclusive jurisdiction. But
there may be a separate issue as to whether the sentence is determina-
tive of the level of conviction for ascertaining our exclusive appellate
jurisdiction. More specifically, the question is whether that exclusive
jurisdiction encompasses an appeal by a defendant who was eligible
for the death penalty upon entering a plea or being adjudged guilty
but nonetheless avoided capital punishment at the penalty stage. If
the sentence determines the level of conviction in that circumstance,
then our exclusive jurisdiction would not encompass such an appeal.
We find the statute to be ambiguous on this point and, given the
independent rationale that we adopt for concluding this case is not
within our exclusive jurisdiction, it is unnecessary to decide whether
Mr. Smith’s avoidance of the death penalty separately would
remove his appeal from that exclusive jurisdiction.

                                   5
