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State v. Allgier

Supreme Court of Utah

November 22, 2017

State of Utah, Appellee,
v.
Curtis Michael Allgier, Appellant.

         On Direct Appeal

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

          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.

          Having recused himself, Justice Himonas does not participate herein. Court of Appeals Associate Presiding Judge Michele M. Christiansen sat.

          OPINION

          DURRANT, CHIEF JUSTICE.

         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 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 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 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 ...


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