State v. Epling

2010 UT 53
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, No. 20100375
Plaintiff and Respondent,
v.
F I L E D
David E. Epling
Defendant and Petitioner. October 1, 2010
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Fourth District, Provo Dep’t
The Honorable Samuel D. McVey
No. 061403432
Attorneys: Mark L. Shurtleff, Att’y Gen., Erin Riley, Asst.
Att’y Gen., Salt Lake City, for plaintiff
Elizabeth Hunt, Salt Lake City, for defendant
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On Certiorari to the Utah Court of Appeals
PER CURIAM:
¶1 This matter is before the court on petition for
certiorari review of an intermediate decision of the court of
appeals. We dismiss the petition without prejudice.
BACKGROUND
¶2 David E. Epling pled no contest to three counts of
sexual abuse of a child. He filed a timely motion to withdraw
his plea. Subsequently, he withdrew that motion. The district
court imposed consecutive terms for the three counts. Epling
appealed. His docketing statement described the sole issue as
whether the district court abused its discretion in sentencing
him to consecutive terms. However, Epling then filed a motion
for remand pursuant to rule 23B of the Utah Rules of Appellate
Procedure to determine whether his trial counsel had been
ineffective in relation to his plea and in advising him to

1 The appellate attorney who filed the docketing statement
subsequently withdrew. The rule 23B motion was filed by Epling’s
present appellate counsel.
2 Rule 48 is enumerated, along with rules 4(a), 4(b),
4(e), 5(a), 52, and 59, as a provision that may not be suspended
pursuant to rule 2 of the Utah Rules of Appellate Procedure.
Each non-suspendable provision describes the time limits
governing the exercise of this court’s jurisdiction over a
particular procedural form of a challenge to the ruling of a
lower tribunal. These provisions also consistently have been
treated as describing jurisdictional limitations on this court’s
authority.
No. 201000 2
withdraw his motion to withdraw his plea.1 The court of appeals
requested that the parties submit memoranda addressing the issue
of whether it had “jurisdiction to consider the claims raised in
Epling’s rule 23B motion.” The State responded by moving to
“dismiss, for lack of jurisdiction, the portion of [Epling’s]
appeal which raises issues concerning his plea.” On April 22,
2010, the court of appeals issued a per curiam opinion dismissing
Epling’s claims of ineffective assistance of counsel in relation
to his plea. The court of appeals retained jurisdiction of the
appeal insofar as it challenged Epling’s sentence. Epling filed
a petition for certiorari challenging the April 22 decision. We
requested that the parties file supplemental pleadings regarding
the issue of our jurisdiction over the petition. We now conclude
that we lack jurisdiction.
DISCUSSION
¶3 Rule 45 of the Utah Rules of Appellate Procedure
indicates that Epling may challenge the April 22 decision by
petition for certiorari. Specifically, it states that “[u]nless
otherwise provided by law, the review of a judgment, an order,
and a decree (hereafter referred to as ‘decisions’) of the court
of appeals shall be initiated by a petition for a writ of
certiorari to the Supreme Court of Utah.” Utah R. App. P. 45.
Rule 45 draws no distinctions between intermediate and final
decisions. However, the timing of a petition challenging an
intermediate decision is separately governed by rule 48 of the
Utah Rules of Appellate Procedure, which provides that “[a]
petition for a writ of certiorari must be filed with the Clerk of
the Supreme Court within 30 days after the entry of the final
decision by the Court of Appeals.” Utah R. App. P. 48(a)
(emphasis added).2 Rule 48(e) provides for extensions of time of
the deadline prescribed by rule 48(a), but it does not otherwise
alter the requirement that the petition be brought after the

3 The April 22 intermediate decision may be viewed as
analogous to an interlocutory order of a trial court.
Interlocutory orders are not subject to immediate appellate
review (except in certain circumstances specified by statute or
rule that are not applicable to intermediate orders of the court
of appeals), but they may be challenged on direct appeal
following entry of the final judgment of the trial court. See,
e.g., Utah R. Civ. P. 54(b).
3 No. 201000375
issuance of the final decision. Thus, the April 22 intermediate
decision may be challenged by petition for writ of certiorari
only after the issuance of the court of appeals’ final decision
on Epling’s appeal.3 To construe the term “final decision” as
applicable to any intermediate decision of the court of appeals
would have the effect of rendering the word “final” superfluous.
Accordingly, a final decision has not yet issued for Epling’s
appeal because the sentencing issue described in his docketing
statement is still pending.
¶4 We acknowledge that we have adjudicated a challenge to
an intermediate decision of the court of appeals on certiorari on
at least one occasion. See State v. Tunzi, 2000 UT 38, ¶ 1, 998
P.2d 816. However, the jurisdictional issue was not considered
in that case. Moreover, although a petition for writ of
certiorari does not provide a procedural mechanism to immediately
challenge an intermediate order of the Court of Appeals, we may
retain the option to address such an intermediate order by
petition for extraordinary writ.
¶5 In this case, we decline to construe the petition for
certiorari as a petition for extraordinary writ. Epling may seek
certiorari review of the April 22 decision after the entry of a
final decision on his appeal.