District, Salt Lake The Honorable Paul G. Maughan No.
Michael Allgier, pro se
D. Reyes, Att'y Gen., Christopher D. Ballard, Asst.
Solic. Gen., Salt Lake City, for appellee
JUSTICE DURRANT authored the opinion of the court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE PEARCE, and JUDGE
recused himself, Justice Himonas does not participate herein.
Court of Appeals Associate Presiding Judge Michele M.
DURRANT, CHIEF JUSTICE.
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.
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.
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.
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
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.
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
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
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.
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.
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
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.
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.
and Standard of Review
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. "Whether appellate jurisdiction
exists is a question of law which we review for correctness .
. . ." A constitutional challenge is also a
question of law reviewed for correctness.
The Utah Constitution provides that "[i]n criminal
prosecutions the accused shall have . . . the right to appeal
in all cases." "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.'" 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." 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
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.'"He further argues ...