State v. Mardoniz-Rosado

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
2014 UT App 128
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JUAN MARDONIZ-ROSADO,
Defendant and Appellant.
Memorandum Decision
No. 20130313-CA
Filed June 5, 2014
Third District Court, Silver Summit Department
The Honorable Todd M. Shaughnessy
No. 961700236
T. Laura Lui and Alexander J. Helfer, Attorneys
for Appellant
Matthew D. Bates and David R. Brickey, Attorneys
for Appellee
JUDGE JOHN A. PEARCE authored this Memorandum Decision, in
which JUDGE STEPHEN L. ROTH and SENIOR JUDGE PAMELA T.
GREENWOOD concurred.1
PEARCE, Judge:
¶1 Juan Mardoniz-Rosado appeals the district court’s denial of
his motion to withdraw his guilty plea to a misdemeanor charge of
retail theft. We affirm.

State v. Mardoniz-Rosado
2. At oral argument before this court, the parties agreed that a
record of the 1996 plea hearing originally existed but that it was
unavailable at the 2012 withdrawal hearing because of the
intervening decade and a half.
3. When Mardoniz-Rosado filed his motion, it was an open
question whether Padilla v. Kentucky, 559 U.S. 356 (2010), applied
retroactively. The United States Supreme Court has since held that
it does not. See Chaidez v. United States, 133 S. Ct. 1103, 1113 (2013)
(holding that “defendants whose convictions became final prior to
Padilla . . . cannot benefit from its holding”).
20130313-CA 2 2014 UT App 128
¶2 Mardoniz-Rosado pleaded guilty on November 12, 1996.
The docket and minute entry indicate that Mardoniz-Rosado was
“advised of [his] rights,” but the record contains neither a
transcript of the plea colloquy nor a written waiver form.2
Mardoniz-Rosado was sentenced to a suspended ninety-day jail
term, a $1,000 fine, and six months of probation. He successfully
completed the terms of his sentence.
¶3 In 2012, sixteen years after pleading guilty, Mardoniz-
Rosado filed a motion to withdraw his plea in the district court.
The motion alleged that Mardoniz-Rosado had received ineffective
assistance of counsel at the time of his plea because his counsel had
not advised him of the immigration consequences of pleading
guilty. See generally Padilla v. Kentucky, 559 U.S. 356 (2010).3
Mardoniz-Rosado’s motion also sought to reinstate his direct
appeal pursuant to Manning v. State, 2005 UT 61, 122 P.3d 628.
¶4 The district court conducted a hearing on the motion, at
which Mardoniz-Rosado testified. After the hearing, the district
court entered a written order finding that Mardoniz-Rosado had
not been advised of his right to appeal at the 1996 plea hearing and
that “the November 12, 1996 court docket note stating, ‘Deft
advised of rights,’ is not sufficient.” In light of these findings, the
district court reinstated Mardoniz-Rosado’s right to pursue a direct

State v. Mardoniz-Rosado
4. The current version of the statute requires that a motion to
withdraw a guilty plea not held in abeyance be made “before
sentence is announced.” Utah Code Ann. § 77-13-6(2)(b)
(LexisNexis 2012).
20130313-CA 3 2014 UT App 128
appeal. See generally Manning, 2005 UT 61, ¶¶ 26–33 (establishing
a procedure for reinstating the right to appeal in criminal cases);
Utah R. App. P. 4(f) (codifying criminal appeal reinstatement
procedures). In the same order, which Mardoniz-Rosado had
prepared, the district court summarily denied Mardoniz-Rosado’s
motion to withdraw his guilty plea without explaining the
reasoning underpinning that decision.
¶5 On appeal, Mardoniz-Rosado challenges the district court’s
denial of his motion to withdraw his plea. A threshold issue is
whether the district court had jurisdiction to entertain the motion.
Pursuant to the version of Utah Code section 77-13-6 in effect at the
time of his plea, Mardoniz-Rosado was required to move to
withdraw the plea within thirty days of its entry. See Utah Code
Ann. § 77-13-6(2) (Michie 1995) (stating that a motion to withdraw
a guilty plea “shall be made within 30 days after the entry of the
plea”). Compliance with this time limit is jurisdictional. State v.4
Stone, 2013 UT App 148, ¶ 5, 305 P.3d 167 (“‘Section 77-13-6(2)(b)
imposes a jurisdictional bar on late-filed motions to withdraw
guilty pleas, and failure to comply with its requirements
extinguishes a defendant’s right to challenge the validity of the
guilty plea on appeal.’” (quoting Grimmett v. State, 2007 UT 11, ¶ 8,
152 P.3d 306)).
¶6 Mardoniz-Rosado’s 2012 attempt to withdraw his 1996
guilty plea obviously fell outside the thirty-day window for
seeking withdrawal. He nevertheless argues that his efforts were
timely because, under his interpretation of the district court’s
order, the district court found that he was never advised of the
time limits for filing a motion to withdraw his plea. See Utah R.
Crim. P. 11(g) (“Failure to advise the defendant of the time limits

State v. Mardoniz-Rosado
5. Specifically, Mardoniz-Rosado asks us to draw his proposed
inference from the district court’s findings that he was not advised
of his right to appeal and that “the November 12, 1996 court docket
note stating, ‘Deft advised of rights,’ is not sufficient.”
20130313-CA 4 2014 UT App 128
for filing any motion to withdraw a plea of guilty . . . may be the
ground for extending the time to make a motion under Section 77-
13-6.”). Mardoniz-Rosado argues that because he was never
advised of the thirty-day time limit to file his motion, the statutory
time limit “was never triggered.” He did not advance this
argument in the district court but raises it here under the doctrine
of plain error. See generally State v. Holgate, 2000 UT 74, ¶¶ 11, 13, 10
P.3d 346 (“The plain error exception enables the appellate court to
balance the need for procedural regularity with the demands of
fairness.” (citation and internal quotation marks omitted)).
¶7 We lack the record we would need to accept Mardoniz-
Rosado’s interpretation of the district court’s order. Mardoniz-
Rosado prepared an order for the district court that provides no
insight into the court’s basis for denying the motion to withdraw
his plea and contains no express finding that he was not advised of
the time limit to withdraw his plea. Mardoniz-Rosado also did not
designate the transcript of the motion hearing as a part of the
record on appeal. Thus, the record before us is silent as to why the
district court denied Mardoniz-Rosado’s plea withdrawal motion.
Furthermore, the record does not provide us with a basis to
conclude that the district court found, or should have found, that
Mardoniz-Rosado was not advised of the timeline for seeking to
withdraw his plea.
¶8 Mardoniz-Rosado suggests that we can excavate between
the district court’s expressed findings to unearth an implied finding
that he did not receive a proper rule 11(e) plea colloquy and
therefore was never made aware of the timing requirements for a
motion to withdraw his plea. See Utah R. Crim. P. 11(e). Because5
of the sparsely worded order and lack of a hearing transcript, we

State v. Mardoniz-Rosado
6. For the same reasons, we cannot accept Mardoniz-Rosado’s
argument that he is entitled to withdraw his plea regardless of the
timing of his motion due to an implicit district court finding that he
was not advised of any of the constitutional rights that rule 11(e) of
the Utah Rules of Criminal Procedure is designed to protect.
Mardoniz-Rosado argues that his plea colloquy is governed by
(continued...)
20130313-CA 5 2014 UT App 128
have little visibility into what occurred at the evidentiary hearing
below. However, in order for Mardoniz-Rosado to have met his
burden of establishing that his plea colloquy failed to advise him
of the plea withdrawal deadline, the record would need to have
contained some affirmative evidence that Mardoniz-Rosado was
not advised of the withdrawal deadline. This court has stated,
To place the burden on the State to prove compliance
[with rule 11], when no transcript is available due to
defendant’s delay, is unreasonable. Such a rule
would require this court, and the trial court hearing
the motion to withdraw, to presume irregularity in
the prior proceedings. However, we do not presume
error simply because the record is unavailable.
State v. Morello, 927 P.2d 646, 649 (Utah Ct. App. 1996). “[W]here [a]
defendant has made no showing that the colloquy was defective
and simply relies on the absence of any evidence, [the] defendant
bears the risk of the loss of the transcript and the resultant
consequences.” Id.; cf. State v. Verikokides, 925 P.2d 1255, 1257–58
(Utah 1996) (affirming the denial of reinstatement of a defendant’s
right to appeal where the trial court record was lost or destroyed
during his seven-year absence due to escape). We see no
affirmative evidence in the record that would have supported a
district court finding that Mardoniz-Rosado was not advised of the
time limit for seeking to withdraw his plea, and we thus must reject
Mardoniz-Rosado’s proposed implied finding as unsupported by
the record.6

State v. Mardoniz-Rosado
6. (...continued)
State v. Lovell, 2011 UT 36, 262 P.3d 803, which held under then-
applicable law that a plea court’s “failure to strictly comply with
rule 11(e) requires us to presume harm and thus constitutes good
cause to withdraw a guilty plea.” Id. ¶ 45. Although the district
court here expressly found a flaw in the 1996 colloquy—namely,
the plea court’s failure to advise Mardoniz-Rosado of his right to
appeal—our supreme court has held that the remedy for that
deficiency is reinstatement of the right to appeal. See Manning v.
State, 2005 UT 61, ¶¶ 26–33, 122 P.3d 628; see also Utah R. App. P.
4(f).
20130313-CA 6 2014 UT App 128
¶9 On the record before us, Mardoniz-Rosado cannot establish
that he can avoid the thirty-day limit for his motion to withdraw
his plea. We must therefore conclude that the motion was not
timely filed and the district court lacked jurisdiction to entertain it.
See Stone, 2013 UT App 148, ¶ 5. Thus, under the plain language of
Utah Code section 77-13-6(2)(c), Mardoniz-Rosado can now only
challenge his plea under Utah’s Post-Conviction Remedies Act (the
PCRA) and rule 65C of the Utah Rules of Civil Procedure. See Utah
Code Ann. § 77-13-6(2)(c) (LexisNexis 2012).
¶10 Rather than travel the statutorily mandated route,
Mardoniz-Rosado raises two arguments in an attempt to find a
path around the requirement that he proceed under the PCRA.
Mardoniz-Rosado first argues that the district court possessed
jurisdiction to withdraw his guilty plea sua sponte. See State v. Ott,
2010 UT 1, ¶ 20, 247 P.3d 344 (“The Utah Court of Appeals has
recognized that a trial court may sua sponte set aside a guilty plea
even after the time restrictions of section 77-13-6 have expired.”
(citing State v. Lopez, 2005 UT App 496, ¶ 19, 128 P.3d 1)); Lopez,
2005 UT App 496, ¶ 19 (“[W]e conclude that the legislature did not
intend that [section 77-13-6] would apply to sua sponte court
orders setting aside a defendant’s guilty plea.”). He further argues
that the district court committed plain error when it failed to do so.

State v. Mardoniz-Rosado
7. In a related argument, Mardoniz-Rosado relies on State v. Jackson,
2010 UT App 328, 243 P.3d 902, to contend that the district court
retained the discretion to reopen his case. However, in Jackson, the
district court reopened the evidence after the State had rested its
case to allow the State to present additional evidence on a disputed
point. Id. ¶¶ 7–8, 23. This occurred prior to the defendant’s
sentencing, and thus the determination that the district court acted
within its discretion there does not provide authority to support
Mardoniz-Rosado’s position here.
20130313-CA 7 2014 UT App 128
¶11 We agree with Mardoniz-Rosado that section 77-13-6 does
not supplant the district court’s jurisdiction to act sua sponte. See
Lopez, 2005 UT App 496, ¶ 19. However, the district court’s
jurisdiction to set aside a defendant’s guilty plea on its own
initiative generally terminates upon the entry of final judgment in
the case. See id. (“[T]he trial court had jurisdiction to set aside
Defendant’s guilty plea after it announced sentence but before it
signed the judgment of sentence.” (emphasis added)); see also Ott,
2010 UT 1, ¶ 20 (distinguishing Lopez on the ground that the
defendant in Ott had already been sentenced); State v. Rodrigues,
2009 UT 62, ¶ 13, 218 P.3d 610 (“Once a court imposes a valid
sentence and final judgment is entered, the court ordinarily loses
subject matter jurisdiction over the case.”). Here, the plea court
entered final judgment against Mardoniz-Rosado in 1996 and
thereby terminated the jurisdiction to sua sponte set aside
Mardoniz-Rosado’s guilty plea.7
¶12 Mardoniz-Rosado next argues that the district court had
jurisdiction to allow the withdrawal of his guilty plea under three
common law remedies. He first argues that the district court
possesses jurisdiction pursuant to the “ancient writ of coram
nobis.” See Manning v. State, 2005 UT 61, ¶ 13 n.2, 122 P.3d 628 (“‘A
writ of error coram nobis is a common-law writ of ancient origin
devised by the judiciary, which constitutes a remedy for setting
aside a judgment which for a valid reason should never have been
rendered.’” (quoting 24 C.J.S. Crim. L. § 1610 (2004))). Second, he

State v. Mardoniz-Rosado
8. Because Mardoniz-Rosado has raised his common law
arguments prematurely, we need not address whether the 2008
amendments to the PCRA and subsequent modifications to rule
65C have subsumed the powers Mardoniz-Rosado has attempted
to invoke. See State v. Winward, 2012 UT 85, ¶¶ 14, 19, 293 P.3d 259
(continued...)
20130313-CA 8 2014 UT App 128
argues that this case can proceed under the “unusual circumstances
exception to the procedural bar rules.” Lucero v. Kennard, 2005 UT
79, ¶ 28, 125 P.3d 917. Finally, he argues the case meets the
“egregious injustice” exception discussed in State v. Winward, 2012
UT 85, ¶¶ 13–19, 293 P.3d 259.
¶13 Resort to these common law theories is premature because
Mardoniz-Rosado has not yet sought relief under the PCRA and
rule 65C of the Utah Rules of Civil Procedure as required by Utah
Code section 77-13-6. See Utah Code Ann. § 77-13-6(2)(c).
Mardoniz-Rosado cannot invoke the powers traditionally
associated with the writ of coram nobis, or avail himself of any
exception to the PCRA, if the PCRA provides him with “an
adequate remedy at law.” State v. Rees, 2005 UT 69, ¶ 16, 125 P.3d
874; see also Winward, 2012 UT 85, ¶¶ 13–19 (analyzing the
egregious injustice exception as an “exception to the PCRA’s
procedural bars”); Lucero, 2005 UT 79, ¶ 43 (“The unusual
circumstances exception provides a defendant who is otherwise
ineligible to receive post-conviction relief [pursuant to the PCRA]
an opportunity to have a petition for post-conviction relief
reviewed.”).
¶14 Because Mardoniz-Rosado has yet to seek relief under the
PCRA and rule 65C, he is not entitled to pursue relief under any of
the common law theories that he identifies. Instead, he must seek
post-conviction relief via the PCRA and, should such relief be
denied on procedural grounds, seek extraordinary relief and argue
for the application of coram nobis principles or the unusual
circumstances or egregious injustice exceptions.8

State v. Mardoniz-Rosado
8. (...continued)
(leaving open the question of “whether the PCRA and [r]ule 65C
now wholly accommodate the full measure of our constitutional
authority or whether the Utah Constitution requires that we be able
to consider, in some cases, the merits of claims otherwise barred by
the PCRA” (alteration in original) (citation and internal quotation
marks omitted)). State v. Winward also outlines the framework
under which the supreme court might consider a claim that a
petitioner can seek relief under a common law exception to the
PCRA. See id. ¶ 18.
20130313-CA 9 2014 UT App 128
¶15 Mardoniz-Rosado’s 2012 motion to withdraw his plea was
untimely under Utah Code section 77-13-6, and the district court
therefore lacked jurisdiction to entertain his motion. The district
court also lacked jurisdiction to set aside Mardoniz-Rosado’s plea
sua sponte due to the pronouncement of final judgment against
him in 1996. Under the plain language of Utah Code section 77-13-
6, Mardoniz-Rosado must seek relief under the PCRA and rule 65C
of the Utah Rules of Civil Procedure, and until he does, he cannot
test the vitality of the common law remedies that he identifies on
appeal.
¶16 For these reasons, we affirm the district court’s denial of
Mardoniz-Rosado’s motion to withdraw his guilty plea.