Direct Appeal Fourth District, American Fork Dep't The
Honorable Thomas Low No. 101101668
D. Reyes, Att'y Gen., Christopher D. Ballard, Asst.
Att'y Gen., Salt Lake City, for appellee
S. Christensen, Clinton Brimhall, Salt Lake City, for
Associate Chief Justice Lee authored the opinion of the
Court, in which Chief Justice Durrant, Justice Himonas, and
Justice Pearce joined.
ASSOCIATE CHIEF JUSTICE
Benjamin Rettig pled guilty to aggravated murder and
aggravated kidnapping. Three days before his sentencing
hearing and while represented by counsel, Rettig attempted to
withdraw his guilty plea by submitting a pro se
letter to the district court. Rettig later acquired new
counsel, who moved to withdraw Rettig's pro se
motion. The court subsequently sentenced Rettig to terms of
twenty- five years to life for aggravated murder and fifteen
years to life for aggravated kidnapping, with the sentences
to run concurrently.
Rettig urges us to set aside his guilty plea on direct
appeal, contending that the district court erred in accepting
his plea because his plea affidavit does not establish the
necessary facts to sustain a conviction for his charges. He
also asserts a claim for ineffective assistance of counsel.
Recognizing that this court has long held that it cannot
review a defendant's guilty plea unless he has complied
with Utah's Plea Withdrawal Statute, Utah Code §
77-13-6, Rettig also challenges this statute as
unconstitutional. He argues that section 77-13-6(2) infringes
his right to an appeal under article I, section 12 of the
Utah Constitution. And he urges us to hold that the
legislature lacks the constitutional power to require that he
pursue his claim through the Post-Conviction Remedies Act, as
set forth in section 77-13-6(2)(c).
We affirm. We do so substantially on grounds set forth in the
concurring opinion in Gailey v State, 2016 UT 35, 379 P.3d
1278 (Lee, ACJ, concurring). The majority in Gailey
held that the Plea Withdrawal Statute "does not on its
face violate the constitutional right to appeal."
Id. ¶ 11. We confirm Gailey's
holding and threshold premise. But we also decide an issue
that the Gailey majority did not reach. We hold that
the Plea Withdrawal Statute is constitutional as applied
because the statute does not foreclose an appeal but simply
sets a rule of preservation and imposes a sanction (waiver of
the issue on appeal) for the failure to follow that rule.
In November 2009, Benjamin Rettig and Martin Bond traveled
from Vernal, Utah, to the home of Kay Mortensen in Spanish
Fork, Utah. Mortensen owned a large supply of firearms
that were located in a "bunker" behind his home.
Bond and Rettig traveled to his home with the intent to steal
some of his firearms. The two entered Mortensen's home
with a handgun while wearing ski masks and latex gloves. They
zip tied Mortensen and demanded that he show them where his
firearms were stored. After Mortensen showed them the bunker,
Rettig and Bond took him to an upstairs bathroom. Bond
ordered Mortensen to kneel down in front of the tub with his
back toward Bond and Rettig. At this point Rettig was holding
the handgun and pointing it at Mortensen. Bond withdrew a
knife from his pocket and then put it back. Bond then went
downstairs while Rettig held Mortensen at gunpoint. Bond
returned with a larger knife. Rettig then watched as Bond
killed Mortensen by slicing his throat multiple times and
stabbing him in the base of the neck.
A short time later Pamela and Roger Mortensen knocked on
Mortensen's door. Rettig ran downstairs and hid behind
the front door with the handgun while Bond opened the door.
When Pamela and Roger entered the home, Rettig ordered them
into the living room where he and Bond placed zip ties on
their hands and feet. Bond went into the kitchen and returned
with another knife. This time Rettig stepped in front of Bond
and told him not to kill Pamela and Roger. Rettig stayed in
the living room with the handgun while Bond removed
approximately twenty-five firearms along with ammunition and
placed them in their vehicle. Bond and Rettig told Roger and
Pamela to inform the "police that three black men had
tied them up and [that] if they told the police a different
story, [Rettig and Bond] knew where they lived and . . .
would come back and kill them."
It was not until December 2010 that police arrested Rettig
and Bond. Rettig was charged with aggravated murder (a
capital offense), two counts of aggravated kidnapping, and
aggravated burglary. Rettig obtained counsel and entered a
plea agreement whereby he pled guilty to one count of
aggravated murder and one count of aggravated kidnapping. As
part of the plea agreement the prosecutor dropped the other
charges, agreed not to seek the death penalty, and agreed to
recommend the possibility of parole.
Approximately six weeks later, while still represented by his
original counsel, Rettig sent a pro se letter to the
district court seeking to withdraw his guilty plea. He was
concerned that his attorney "never asked [him for] an
entire statement regarding the events" surrounding the
murder. He also raised other concerns. At that point
Rettig's counsel withdrew. Rettig then obtained new
During the sentencing hearing Rettig's new counsel
explained to the district court that he had reviewed
Rettig's motion to withdraw and had a "very candid,
very open" discussion with his client about his case
with some of his staff present. Rettig's new counsel
explained to the court that during their discussion he
determined that Rettig's motion was based on a
"misunderstanding of the application of certain legal
terminologies-explained to [Rettig by] . . . jailhouse
lawyers"-which led Rettig to have "a false
impression on what the law was." To address Rettig's
concerns, the new counsel had Rettig explain "at
length" the facts of the case and "gave him
numerous opportunities to adjust his facts." His counsel
then explained the "legal issues" and "why
[Rettig's] arguments weren't wholly accurate."
He explained to his client "what the law was and also
how those facts that he provided . . . fit into the category
of" the charged crimes. Based on these interactions, the
new counsel withdrew Rettig's pro se motion to
withdraw his guilty plea. The district court proceeded with
the sentencing hearing on December 13, 2011.
Rettig later filed this appeal. On appeal he seeks to set
aside his guilty plea.
Utah's Plea Withdrawal Statute controls the timing and
grounds for a motion to withdraw a guilty plea. The statute
requires that the "request to withdraw . . . be made by
motion before sentence is announced, " Utah Code §
77-13-6(2)(b), and that the defendant show that the
"plea of guilty . . . was not knowingly and voluntarily
made, " id. § 77-13-6(2)(a). A defendant
who fails to seek to withdraw a guilty plea before sentencing
is left to raise the issue in a petition filed under the
Post-Conviction Remedies Act (PCRA). Id. §
Rettig advances three grounds for establishing that his
guilty plea was involuntary. He argues first that his
original counsel was ineffective for advising him to plead
guilty, second that his later counsel was ineffective for
withdrawing Rettig's pro se motion to withdraw
his guilty plea, and lastly that the facts in his plea
affidavit cannot establish sufficient intent for accomplice
liability for aggravated murder. We do not reach the merits
of these claims because we conclude that we lack appellate
jurisdiction to address them given that Rettig failed to
preserve his claims by not withdrawing his guilty plea until
Recognizing our long line of precedents holding that we lack
appellate jurisdiction to review untimely withdrawals of
guilty pleas, Rettig contends that the Plea Withdrawal
Statute is unconstitutional. He advances two principal
grounds for challenging the statute. First he argues that the
statute violates his right to appeal under article I, section
12 of the Utah Constitution, which provides defendants
"the right to appeal in all cases." Second he
claims that the legislature lacks the constitutional power to
require that he pursue his claim in a PCRA proceeding.
See Utah Code § 77-13-6(2)(c).
We reject Rettig's constitutional challenges. We conclude
that the Plea Withdrawal Statute does not infringe the
constitutional right to appeal because it does not foreclose
an appeal but simply establishes a rule of preservation. And
we uphold the constitutionality of the subsection (2)(c)
reservation of a right to file a post-conviction petition
under the PCRA.
Rettig first argues that the Plea Withdrawal Statute
infringes his right to appeal under article I, section 12 of
the Utah Constitution. Section 12 gives criminal defendants
"the right to appeal in all cases." Utah Const.
art. I, § 12. Rettig asserts that the statute's
timing requirement forecloses his right to a direct appeal.
This court recently confronted this issue in Gailey v.
State, 2016 UT 35, 379 P.3d 1278. Gailey held
that the Plea Withdrawal Statute "does not on its face
violate the constitutional right to appeal."
Id. ¶ 11. The court characterized the statute
as a "procedural bar" on a defendant's right to
withdraw a guilty plea after sentencing. Id. We
confirm Gailey's holding and threshold premise.
The Gailey majority left open an additional
question- whether the Plea Withdrawal Statute could be
applied in a manner infringing the state
constitutional right to appeal. Id. The majority
opinion deemed that question unripe because the appellant
retained a right to challenge the validity of her plea in a
post-conviction review proceeding, complained only about the
lack of a right to counsel under the PCRA, and could
eventually be entitled to counsel in a future proceeding
under the PCRA. Id. Given the likelihood that Gailey
might ultimately be afforded the core element of an appeal
that she claimed to be lacking under the PCRA, the majority
in Gailey reserved for another day an answer to the
question whether the Plea Withdrawal Statute could be applied
in a manner infringing the constitutional right to an appeal.
We now reach the question left unanswered in Gailey.
And we resolve this case on the grounds set forth in the
concurring opinion in Gailey, id. (Lee,
A.C.J., concurring), and reinforced by State v.
Allgier, 2017 UT ___, ___ P.3d ___. The Gailey
concurrence noted that "[t]he Plea Withdrawal Statute
does not foreclose an appeal" but simply establishes a
rule of preservation or waiver. Gailey, 2016 UT 35,
¶ 34. It also observed that this effect of the Plea
Withdrawal Statute is hardly novel. "Rules of this sort
are commonplace." Id. ¶ 35. "They are
embedded in our caselaw under the law of preservation and
reflected in our rules of procedure." Id.
(footnote omitted). Such rules establish standards of
preservation: They "require parties to raise issues or
arguments at specified times and by certain means."
Id. And they establish a sanction for the failure to
preserve: "[T]hey treat a failure to comply [with the
preservation standard] as a waiver of the right to raise such
issues later in the litigation." Id.
This highlights the core defect in Rettig's argument.
Rules requiring preservation of an issue at specific times
and by required means "have never been thought to
impinge on the constitutional right to an appeal."
Id. ¶ 36. Such rules simply establish the
concept of waiver in litigation. And that is uncontroversial.
"Rules of preservation and waiver or forfeiture
always foreclose the right to raise an issue on
appeal." Id. ¶ 43. "They cannot be
unconstitutional on that basis alone, unless we are prepared
to say that such rules are per se
unconstitutional." Id. And of course we cannot
so conclude. Rules of preservation are a longstanding
component of the law of procedure in the trial courts. We
hold that such rules do not infringe the right to an appeal.
The Plea Withdrawal Statute is like rule 12 of the rules of
criminal procedure. Both set timing requirements for the
filing of certain motions (a preservation rule). And both
prescribe sanctions for the failure to meet the required
deadline (waiver, with a bar on even plain error review).
Such rules do not "foreclose an appeal."
Id. ¶ 34. They simply prescribe a sanction for
the failure to satisfy the timing deadlines set forth in the
rule. And that effect is as wide-ranging as it is
commonplace. We would not think to strike down criminal rule
12 as foreclosing the state constitutional right to an
appeal. We would reject that claim on the ground that rules
of preservation and waiver simply narrow the issues to be
raised on appeal.
We reach that same conclusion here. We hold that the Plea
Withdrawal Statute is not an infringement of the state
constitutional right to an appeal because it does not
foreclose an appeal but only narrows the issues that may be
raised on appeal.
In so concluding we are not suggesting that no timing
requirement could infringe a criminal defendant's right
to appeal. A thirty-minute filing requirement for a notice of
appeal would undoubtedly infringe the state constitutional
right to appeal. And perhaps an "absurdly short"
time window for withdrawal of a guilty plea would be
similarly problematic. Infra ¶ 109. If an
operative rule of preservation eliminates any meaningful
avenue for appellate review then it could certainly be said
to infringe the important right to an appeal.
But Rettig is not challenging the Plea Withdrawal Statute on
this ground. The argument here goes not to the length of the
time window for filing a motion to withdraw a guilty plea but
to the procedural bar imposed for missing that filing
deadline. And that effect of the Plea Withdrawal Statute is
hardly unusual. We cannot strike it down on that basis unless
we are willing to call into question any of a range of
case-based or rules-based principles of preservation and
waiver. We uphold the Plea Withdrawal Statute on that basis.
The statute does not infringe the constitutional right to
appeal but only sets the terms and conditions for
preservation and waiver.
The concurrence resists this approach on the ground that
rules of preservation or waiver are always subject to
exceptions-for plain error or ineffective assistance of
counsel. See infra ¶¶ 88-90. Because our
cases have treated the Plea Withdrawal Statute as
establishing a "jurisdictional" bar not
subject to plain error review, the concurrence claims that my
approach will unsettle our case law in this field.
Infra ¶¶ 91-93.
This is a false dichotomy. Not every rule of preservation or
waiver is subject to a plain error or ineffective assistance
of counsel exception. Some such rules are
"jurisdictional" in the sense of foreclosing these
exceptions. The Plea Withdrawal Statute is unquestionably
that kind of rule. But it is also unquestionably a rule of
preservation or waiver-not a statute barring an appeal.
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.
This is not unique to the Plea Withdrawal Statute. Some of
the preservation standards in our rules of procedure are
along the same lines-they prescribe a rule of preservation
and establish a waiver sanction that stands as a
jurisdictional bar on appellate consideration of matters not
properly preserved. See, e.g., Utah R. Civ. P.
12(h); Utah R. Crim. P. 12(f); infra ¶¶
28-33 (discussing these rules and explaining that a
preservation rule can establish a jurisdictional bar on
The law of preservation or waiver is diverse. Some such rules
are set forth in common law decisions of this court. Our
cases, for example, articulate the general rule that an
appellant may not raise an error on appeal unless he has
given the trial court a meaningful opportunity to avoid that
error below. See, e.g., Hill v. Superior Prop.
Mgmt. Servs., Inc., 2013 UT 60, ¶ 46, 321 P.3d
1054. This is the common law of preservation. And this
general rule is subject to exceptions established by our case
law-principally in the doctrines of plain error and
ineffective assistance of counsel. State v. Holgate,
2000 UT 74, ¶ 13, 10 P.3d 346 (plain error); State
v. Griffin, 2016 UT 33, ¶ 22, 384 P.3d 186
(ineffective assistance of counsel).
Other rules of preservation or waiver are set forth in the
rules of procedure promulgated by this court. The criminal
rules, for example, require that certain motions (like a
motion for a change of venue) be made "not later than 14
days after the party learns" of the "grounds"
for the motion, Utah R. Crim. P. 29(d)(5), and that others
(such as a request for severance of charges) "be raised
at least 7 days prior to the trial, " id.
12(c). Standards of preservation or waiver also appear in
criminal rules 19 and 24. See also id. 19(e)
(requiring that a party raise an objection to a written jury
instruction "before the instructions are given to the
jury"); id. 24(c) (mandating
that a motion for new trial be made "not later than 14
days after entry of the sentence, or within such further time
as the court may fix").
The operative rule on preservation and waiver in the civil
realm is civil rule 12. Rule 12(a) generally requires a
defendant to "serve an answer within 21 days after the
service of the summons and complaint is complete." Utah
R. Civ. P. 12(a). It also says that this general standard is
altered where the defendant files a "motion under this
rule"-the answer is then due "within 14 days after
notice of the court's action." Id.
12(a)(1). Civil rule 12 also says that certain matters must
be raised by motion. It says that a defense of lack of
jurisdiction, venue, insufficiency of process or service,
failure to state a claim, or failure to join an indispensable
party, should be raised by a motion filed "before
pleading if a further pleading is permitted."
Rule 12 also prescribes the consequence-typically
waiver-resulting from the failure to follow these rules of
preservation. It states that the failure to include in a
motion a defense "then available which this rule permits
to be raised by motion" forecloses the party's right
"thereafter" to "make a motion based on any of
the defenses or objections so omitted, except as provided in
subdivision (h)." Id. 12(g). And rule 12(h)
sets forth an express sanction of waiver. See id.
12(h) (waiver of certain defenses if not presented by motion
or answer or reply).
The above rules may or may not be subject to common law
exceptions to the case-based rule of preservation. It all
depends on the language and structure of the applicable rule
of procedure. A motion for severance of criminal charges, for
example, would be deemed to be waived under criminal rule 12
if made for the first time after trial-without regard to the
"plainness" of any error in the failure to
sever. The same goes for the preservation rules
in civil rule 12. We would not allow a waived 12(b)(4) motion
for insufficiency of process to be made at trial no
matter how plain the insufficiency of process. That is
because the preservation standards in both criminal rule 12
and civil rule 12 are clear and comprehensive- they occupy
the field and would be undermined by the invocation of a
plain error exception.
This is a principle of waiver that goes to our appellate
"jurisdiction." The waiver sanction prescribed by
criminal rule 12 and civil rule 12 is
"jurisdictional" in the sense that it forecloses
appellate consideration of the merits of the waived
matter. If a party who has waived a severance or
service of process defense in the district court seeks to
raise it on appeal we would say that the merits of that
defense falls outside the jurisdiction of the appellate
court. Cf. United States v. Murillo, 288 F.3d 1126,
1135 (9th Cir. 2002) (the failure to allege lack of probable
cause in a pre-trial motion to suppress "places the
issue beyond the scope of our ability to review for plain
error" (citation omitted)).
Thus, the dichotomy put forward by the concurrence is
mistaken. It is not correct to say that the Plea Withdrawal
Statute must either establish a jurisdictional bar
or announce a rule of preservation. See
infra ¶¶ 87-90 (advancing the view that the
statute was once viewed as a rule of preservation but has
since been characterized as establishing a rule of
jurisdiction). It is both. It establishes a standard of
preservation-a motion to withdraw a guilty plea must be filed
"before sentence is announced, " Utah Code §
77-13-6(2)(b)-and it imposes a strict sanction of
waiver that is not subject to any common-law exceptions (such
as plain error).
Thus, it is not correct to say that rules of "[w]aiver
and preservation do not create [a] jurisdictional bar."
Infra ¶ 94. Nor can we properly say that
"the jurisdiction of our courts 'is established
[only] by the Utah Constitution and by statute.'"
Infra ¶ 70 (quoting S. Utah Wilderness All.
v. Bd. of State Lands & Forestry of State, 830 P.2d
233, 234 (Utah 1992)). Rules of preservation and waiver may
sometimes create a "jurisdictional bar"; they do so
in the sense that they foreclose the power of the court to
consider issues not properly preserved and barred by a
principle of waiver. And the power to regulate this kind of
"jurisdiction" is not vested exclusively (or even
principally) in the legislature; this kind of
"jurisdictional bar" is a proper subject for our
rules of procedure.
The confusion in the concurrence's opinion on these
points flows from an oversimplification of the term
"jurisdiction." "The notion of
'jurisdiction' is a slippery one." In re
Adoption of B.B., 2017 UT 59, ¶ 125, P.3d (Lee,
A.C.J., opinion of the court in part). "This is a word
that means different things in different circumstances."
Id. "Sometimes it is used to characterize the
scope of a court's power to issue a certain form of
relief." Id. But this is not the only operative
principle of "jurisdiction." When we speak of
subject-matter jurisdiction we are speaking of
"statutory limits on the class of cases assigned to the
authority of a certain court" and "other limits
that go to the concept of justiciability." Id.
The concurrence is right to note that the constitutional
authority to regulate subject-matter jurisdiction is vested
in the legislature. Infra ¶ 70. To the extent
we are talking about subject-matter jurisdiction it
is correct to say that jurisdiction is not regulated by our
rules of preservation. Infra ¶ 70. But it does
not follow that rules of preservation and waiver cannot
establish a "jurisdictional bar." Such rules do
that quite routinely. Criminal and civil rules 12 are prime
examples. These rules establish a "procedural bar"
on the issues that may be raised on appeal. In that sense
they regulate "jurisdiction" by limiting "the
scope of a court's power to issue a certain form of
relief." In re Adoption of B.B., 2017 UT 59,
¶ 125 (Lee, A.C.J., opinion of the court in part).
Preservation rules are well within our constitutional power.
"[T]he Utah Constitution does" indicate
that this sort of jurisdictional bar is a matter within our
power to regulate by the promulgation of a rule of procedure.
Infra ¶ 70 (emphasis added). We have the power
to promulgate this kind of rule because it is procedural.
See infra ¶ 119. And the effect of this kind of
rule is properly viewed as "jurisdictional" in the
narrow sense of regulating the scope of a court's
authority to address a certain issue.
Thus, we cannot properly say that "[p]reservation is
only an issue in cases in which we have jurisdiction."
Infra ¶ 97. That may hold for
subject-matter jurisdiction. But not for the more limited
notion of jurisdiction in the sense of power to reach a
certain question presented. An issue raised on appeal may be
procedurally barred on the ground that it was not preserved
and accordingly waived. And at least sometimes such issues
will be subject to a "jurisdictional bar"-the kind
of bar we treat as unaffected by common-law exceptions such
as "plain error."
Our appellate jurisdiction is limited by both statute and by
rules of civil and appellate procedure. But they do so in
different ways. Our rules generally inform and circumscribe
our jurisdiction in the sense of limiting our authority to
decide certain issues. The statutes cited by the concurrence,
see infra ¶ 99 & n.25, on the other hand,
generally regulate our subject-matter jurisdiction.
Thus, the concurrence's conclusions are overbroad. They
suffer from an oversimplification of the multi-faceted term
"jurisdiction." Once we clarify that the notion of
a "jurisdictional bar" goes to a narrow notion of
jurisdiction-to the idea of a court's authority
to reach a certain issue-it becomes clear that the Plea
Withdrawal Statute is both a rule of preservation
and waiver and a rule of jurisdiction.
We interpret the statute to foreclose review for plain error
or ineffective assistance of counsel because the statute
speaks directly and comprehensively to the result of failure
to move to withdraw prior to sentencing. It does so by
stating that "[a]ny challenge to a guilty plea not made
within the time period specified in Subsection (2)(b) shall
be pursued" under the PCRA. Utah Code §
77-13-6(2)(c). And our cases have characterized this effect
as "jurisdictional." See State v. Merrill,
2005 UT 34, ¶ 20, 114 P.3d 585 (section 77-13-6(2)(b) is
"jurisdictional"); State v. Reyes, 2002 UT
13, ¶ 3, 40 P.3d 630 (same).
But that doesn't mean that the statute is not prescribing
a rule of preservation. The jurisdictional effect of the Plea
Withdrawal Statute is the same as the jurisdictional effect
of criminal rule 29 on a motion to sever, or civil rule 12 on
an insufficiency of process motion. The statute and these
rules all do the same thing: (a) they set a time for filing a
particular kind of motion (a rule of preservation); (b) they
prescribe a consequence for failing to file in time (waiver
of the issue); and (c) they preclude consideration of the
merits of the issue on appeal (in a manner we treat as
That shows that the dichotomy advanced by the concurrence is
a false one. The Plea Withdrawal Statute is not different in
kind from at least some of the standards of preservation and
waiver in our rules of procedure. And for that reason the
statute can easily be viewed as establishing both a
preservation rule and a waiver sanction that stands as a
jurisdictional bar on appellate review even for plain error
or ineffective assistance of counsel.
The approach we take today is consistent with the approach
this court took in State v. Gibbons, 740 P.2d 1309,
1311 (Utah 1987), under the 1980 version of the Plea
Withdrawal Statute. The statute at issue in Gibbons
is quite distinct from the one in place now. The 1980 statute
"set no time limit for filing a motion to withdraw [a
guilty] plea." Gibbons, 740 P.2d at 1311. With
that in mind, the Gibbons court was concerned about
the possibility that a motion to withdraw could be filed
while the case was pending on appeal-either mooting the
current appeal (if the motion were granted) or at least
introducing "the possibility of appeals from two
different judgments in the same criminal case."
Id. On that basis the Gibbons court
"remand[ed] the case to enable the defendant to file a
motion to withdraw his guilty pleas" while
"retain[ing] jurisdiction over the case for any
necessary future action." Id.
Our cases later viewed Gibbons as opening the door
to consideration of the merits of an unpreserved motion to
withdraw a guilty plea "if plain error or exceptional
circumstances exist[ed]." State v. Marvin, 964
P.2d 313, 318 (Utah 1998), superseded by statute as
stated in Reyes, 2002 UT 13, ¶ 4. But that was
premised on the analysis in Gibbons-which turned on
the language and structure of the then-controlling version of
the Plea Withdrawal Statute (which set no time limit on a
motion to withdraw). The Gibbons line of cases, in
other words, viewed the 1980 Plea Withdrawal Statute as
establishing no standard of preservation to begin with (no
time limit on filing a motion). Alternatively, these cases
can be understood to view the 1980 statute as opening the
door to plain error review of the merits of an unpreserved
motion to withdraw because the statute set no time
limit. But that is not because rules of preservation are
always subject to plain error review. It is because the court
viewed the controlling statute to be open to such review.
And that conclusion cannot hold under the current version of
the Plea Withdrawal Statute. That statute sets a strict rule
of preservation-a requirement that a motion to withdraw be
filed before the sentence is imposed. Utah Code §
77-13-6(2)(b). And it prescribes a strict waiver sanction
that forecloses review for plain error on direct appeal.
Id. § 77-13-6(2)(c) ("Any
challenge to a guilty plea not made ...