State v. Willis

2021 UT App 142
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
WADE LEON WILLIS,
Appellant.
Per Curiam Opinion
No. 20190274-CA
Filed December 23, 2021
Fourth District Court, Provo Department
The Honorable Kraig Powell
No. 181401492
Dallas B. Young and Thomas C. Taylor, Attorneys
for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
Before JUDGES GREGORY K. ORME, MICHELE M. CHRISTIANSEN
FORSTER, and DIANA HAGEN.
PER CURIAM:
¶1 Wade Leon Willis appeals the district court’s order
striking his motion to clarify his sentence or withdraw his guilty
plea. Willis challenges the court’s application of Utah Code
section 77-13-6—the Plea Withdrawal Statute (the PWS)—as
violating his right to effective assistance of counsel under both
article I, section 12 of the Utah Constitution and the Sixth
Amendment to the United States Constitution. In the alternative,
Willis claims that his sentence was ambiguous and asks this
court to reverse the district court’s denial of his motion to correct
his sentence under rule 22(e) of the Utah Rules of Criminal
Procedure. We affirm.

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¶2 Willis entered a plea of no contest to two of the seven
counts in the Information.1 Willis pled no contest to assault
against a police officer, a second degree felony, and to
possession or use of a controlled substance, a third degree
felony. He requested that the court impose sentence
immediately. The written statement in advance of the plea
reflected that Willis had entered into the following agreement
with the State: “Run time concurrent with federal charges time.
Defendant agrees to prison.” This written form included the
acknowledgment that Willis would not be allowed to withdraw
his plea once sentencing was imposed and thereafter any claims
must be pursued through the Post-Conviction Remedies Act (the
PCRA).
¶3 Through counsel, Willis confirmed that he was not
seeking probation and agreed to be sentenced to the
indeterminate prison terms required by statute. Counsel
represented that, because Willis was pleading guilty to offenses
that would violate the conditions of his federal supervised
release, Willis expected to be sentenced to prison in federal court
as well. Counsel and Willis “were anticipating that [Willis]
would, of course, be in prison at that time and his state time
would run concurrent there at federal prison.” The district court
stated that it would order that the state sentences would “run
concurrent to each other and [to] any other sentences that he’s
serving at the same time.”
¶4 The district court announced Willis’s sentence on
September 17, 2018, and entered the signed judgment the next
day. The court sentenced Willis to serve one to fifteen years in
prison on the second degree felony and zero to five years in
1. Because Willis refers to his plea as a guilty plea in briefing, we
do the same.

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prison on the third degree felony, with the sentences to run
concurrently to each other and to any other sentence.
¶5 On October 9, 2018, Willis, through substitute counsel,
filed an untimely motion to withdraw his guilty plea, claiming
that he received ineffective assistance of counsel “prior to the
entry of his guilty pleas” that rendered “his guilty plea and
resulting sentence constitutionally infirm.” He argued that he
agreed to plead guilty based on the understanding that his state
prison term would run concurrent with “time he anticipated
would be ordered by the federal court arising out of the
probation violation that would follow his conviction.” Willis had
anticipated that he would be taken into federal custody due to
the probation violations, allowing him to serve both his state and
federal sentences concurrently in a federal facility. To his
surprise, federal authorities refused to take him into custody
until he was discharged from state custody. Willis claimed this
resulted in de facto consecutive sentences “in direct
contravention to the plea agreement the parties reached.” He
stated his counsel did not advise him of this possibility and
instead told him that he would “be allowed to go to federal
custody, where his state sentence would run concurrent to his
federal sanction.” Willis said if he had been advised of “the risk
that he could serve de facto consecutive terms, he would not
have pled guilty.”
¶6 As an alternative, Willis filed a motion to correct his
sentence under rule 22(e) of the Utah Rules of Criminal
Procedure. See Utah R. Crim. P. 22(e)(1)(D) (“The court must
correct a sentence when the sentence imposed . . . is ambiguous
as to the time and manner in which it is to be served.”). He
claimed that the phrase “concurrently to any other sentence”
was ambiguous as applied to his case because it did not result in
the anticipated result of allowing him to serve his state and
federal sentences concurrently in a federal prison. He again
asked the district court to let him withdraw his guilty plea,

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claiming that his plea was not knowing and voluntary “because
it was the product of ineffective assistance of counsel in violation
of his Sixth Amendment rights.” Willis acknowledged that the
Utah Supreme Court had interpreted the PWS as a jurisdictional
bar to untimely motions to withdraw and that the plain
language of the statute deprives the district court of jurisdiction
to hear his ineffectiveness claim because he did not move to
withdraw his plea until after he was sentenced. However, Willis
argued his claim was distinguishable because it was “grounded
on the Sixth Amendment right to effective assistance of counsel
at the trial court level and not grounded on the right to appeal
guaranteed by article I, section 12 of the Utah Constitution.”
¶7 The State moved to deny or strike both motions. First, the
State argued that the sentence was not ambiguous. The fact that
the sentence was not implemented by federal authorities in the
manner Willis expected did not support allowing the district
court to modify the sentence. The State also argued that the
jurisdictional bar of the PWS includes claims premised on
ineffective assistance of counsel. See State v. Rhinehart, 2007 UT
61, ¶ 14, 67 P.3d 1046 (“Claims of ineffective assistance of
counsel raised in the context of challenges to the lawfulness of
guilty pleas are governed by Section 77-13-6.”).
¶8 The district court granted the State’s motion, ruling that
the sentence imposed on Willis was not ambiguous and noting
that the court had no authority to control the sentence imposed
by the federal court. The district court, citing Rhinehart, 2007 UT
61, ¶ 14, also ruled that it lacked jurisdiction to consider the
motion to withdraw the plea based upon the claim of ineffective
assistance of counsel because the “jurisdictional bar includes
ineffective assistance of counsel claims as to the plea.”
¶9 On appeal, Willis claims that the application of the PWS
to the facts of his case would unconstitutionally deny him an
opportunity to have the district court consider his claim that he

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received ineffective assistance of counsel in connection with the
entry of his guilty plea and to have the ineffective assistance
claim reviewed on appeal. He further asserts that the district
court erred in determining that his sentence was not ambiguous
and therefore not subject to modification or correction under
rule 22(e) of the Utah Rules of Criminal Procedure.
I. The Plea Withdrawal Statute Bars Untimely Motions to
Withdraw a Guilty Plea Based Upon a Claim of Ineffective
Assistance of Counsel.
¶10 Willis acknowledges that the plain language of the PWS—
as well as the line of cases interpreting it—bars his constitutional
challenge because it was not raised in a motion to withdraw the
guilty plea filed in the district court before he was sentenced. But
Willis claims that this case presents an issue of first impression
because he bases his argument on state and federal guarantees of
effective assistance of counsel rather than on the right to appeal.
It does not.
¶11 In Rhinehart, the Utah Supreme Court considered the
claim that the appellant should be allowed to challenge her
guilty plea despite not timely moving to withdraw it because the
alleged ineffectiveness of trial counsel caused her both to enter
the guilty plea and to fail to bring a timely motion to withdraw
it. See State v. Rhinehart, 2007 UT 61, ¶ 11, 167 P.3d 1047. The
appellant argued that, under these circumstances, “the
requirement contained in section 77-13-6 that she move to
withdraw her guilty plea as a condition to challenging her plea
on direct appeal unconstitutionally deprives her of her right to
appeal.” Id. The supreme court rejected this argument. The
supreme court first stated that it had previously “settled the
question of whether section 77-14-6 was jurisdictional and
constitutional” in State v. Merrill, 2005 UT 34, 1145 P.3d 585. See
Rhinehart, 2007 UT 61, ¶ 12. The court then addressed the
argument that the case was distinguishable “because it was her

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lawyer’s fault that she entered her plea and failed to bring a
timely motion to withdraw it” and because “neither Merrill nor
any of our other pronouncements on section 77-13-6 confronted
a claim of ineffective assistance of counsel.” Id. She claimed that
this distinction mattered, but the supreme court concluded that
it did not, see id. ¶ 13, stating,
The classification within which she seeks refuge—
that defendants who seek leave to withdraw pleas
based on claims of ineffective assistance of counsel
are free of the constraints of section 77-13-6—is . . .
a phantom classification. To honor this
classification would be to invite every tardy
application to withdraw a plea to be styled as a
claim of ineffective assistance of counsel, a
consequence that would vitiate section 77-13-6. We
therefore hold that claims of ineffective assistance
of counsel raised in the context of challenges to the
lawfulness of guilty pleas are governed by section
77-13-6.
Id. ¶ 14 (cleaned up).
¶12 In State v. Rettig, 2017 UT 83, 416 P.3d 250, the supreme
court reaffirmed that the PWS is a jurisdictional bar on direct
review of claims that defendant’s plea counsel was ineffective.
See id. ¶ 51; see also State v. Ott, 2010 UT 1, ¶ 18, 247 P.3d 344 (“In
Rhinehart, we further held that a defendant may not overcome a
failure to timely withdraw his guilty plea even if the failure is
styled as a claim of ineffective assistance of counsel.” (cleaned
up)); State v. Nicholls, 2017 UT App 60, ¶ 23, 397 P.3d 709
(holding that, under Rhinehart, ineffective assistance of counsel
claims “raised in the context of challenges to the lawfulness of
guilty pleas are governed by the Plea Withdrawal Statute”
(cleaned up)). In interpreting the PWS, “our supreme court has
explained that, by requiring defendants to seek withdrawal of

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guilty pleas prior to sentencing, the statute establishes a
standard of preservation and imposes a strict sanction of waiver
that is not subject to the common-law exceptions to our
preservation doctrines, including plain error and ineffective
assistance of counsel.” State v. Littlejohn, 2021 UT App 73, ¶ 17,
496 P.3d 726 (cleaned up). “Thus, the Plea Withdrawal Statute,
combined with long-standing preservation doctrines, operates to
prevent a defendant from raising, on direct appeal, new grounds
for withdrawal of a plea—even by means of plain error review
or claims for ineffective assistance of counsel—that were not
brought to the attention of the trial court prior to sentencing.” Id.
(cleaned up).
¶13 Willis attempts to distinguish the above-cited cases from
his own by arguing that those cases addressed only whether the
jurisdictional bar of the PWS violated the right to appeal. Willis
argues that he is making a distinct claim that the jurisdictional
bar is unconstitutional as applied to this case because it violates
his state and federal right to effective assistance of counsel in
connection with his guilty plea. Thus, he asserts that the district
court erred by applying it to his untimely motion to withdraw
his guilty plea.
¶14 Rhinehart, Rettig, and later cases, rejected the same
assertion that a claim of ineffective assistance of counsel excuses
a defendant from making a timely motion to withdraw a guilty
plea and concluded that it is not unconstitutional to require
defendants to pursue untimely challenges under the PCRA. See
2007 UT 61, ¶ 13-14; 2017 UT 83, ¶ 51. Those cases have
addressed whether the PWS infringes a defendant’s
constitutional right to appeal because the failure to timely move
to withdraw a guilty plea forecloses review on direct appeal. See
State v. Brown, 2021 UT 11, ¶ 22, 489 P.3d 152 (citing Rettig as
holding that “[t]he 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”

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(cleaned up)). The statute does not waive the defendant’s right to
raise an ineffective assistance of counsel claim; it merely requires
that untimely claims be raised in a PCRA petition. Therefore, the
PWS does not infringe on Willis’s right to effective assistance of
counsel.
II. The Sentence Was Not Ambiguous
¶15 In the alternative, Willis argues that the district court
should have corrected his sentence under rule 22(e) of the Utah
Rules of Criminal Procedure as “ambiguous” because it will not
be served concurrently to his federal prison term, as his counsel
allegedly assured him it would. See Utah R. Crim. P. 22(e)(1)(D)
(stating that “a court must correct a sentence when the sentence
imposed . . . is ambiguous as to the time and manner in which it
is to be served”). The State characterizes this argument as a
restatement of the ineffectiveness challenge to counsel’s
performance during the plea process that is not related to the
actual terms of Willis’s state sentence. We agree with the State.
¶16 The sentence imposed reflected the statutorily-required
indeterminate terms and was not ambiguous as to the duration
of the prison terms. The sentence stated that the terms would
run concurrently to each other and to any other sentence, but did
not—and could not—proscribe how Willis’s federal sentence
would be executed. Because Willis could not demonstrate that
his sentence was ambiguous, the district court correctly
concluded that no correction of the sentence was warranted.
CONCLUSION
¶17 Because Willis did not timely move to withdraw his
guilty plea, the district court correctly ruled that it lacked
jurisdiction to consider the challenge. Alternatively, Willis did
not demonstrate that his actual sentence was ambiguous. The

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district court sentenced Willis in accordance with the plea
agreement and the fact that the federal system did not act as
Willis expected, or was led to believe, it would does not make
his state sentence ambiguous.
¶18 Accordingly, we affirm