State v. Grimmett

2007 UT 11
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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Adolph Ellington Grimmett, No. 20050143
Plaintiff and Appellant,
v.
F I L E D
State of Utah,
Defendant and Appellee. January 23, 2007
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Third District, Salt Lake
The Honorable Bruce C. Lubeck
No. 040913454
Attorneys: Elizabeth Hunt, Salt Lake City, for plaintiff
Mark L. Shurtleff, Att’y Gen., Jeffrey S. Gray,
Asst. Att’y Gen., Salt Lake City, for defendant
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On Certification from the Utah Court of Appeals
PARRISH, Justice:
¶1 Plaintiff Adolph Grimmett appeals from a denial of his
motion to withdraw several guilty pleas. The question raised by
this appeal stems from the intersection of the nunc pro tunc
resentencing remedy we outlined in State v. Johnson, 635 P.2d 36,
38 (Utah 1981), and Utah Code section 77-13-6(2)(b), which
establishes the time limitations governing motions to withdraw.
More specifically, we must determine whether a resentencing order
under Johnson extends the time during which a defendant may file
a motion to withdraw under section 77-13-6(2)(b). We conclude
that it does not and thus affirm.
BACKGROUND
¶2 In December 2002, Grimmett was charged by information
with aggravated kidnapping, attempted automobile theft, assault,
and public intoxication. The charges arose from an incident at
the University of Utah during which Grimmett attacked a woman as
she was getting into her car. Grimmett’s appointed counsel,

No. 20050143 2
Robin Ljungberg, advised Grimmett that his ethnicity would
negatively affect his chances at trial. Ljungberg also stated
that the high-profile Elizabeth Smart case “would have an impact
on the jury.” Grimmett followed Ljungberg’s advice and pled
guilty to a reduced charge of attempted aggravated robbery,
attempted theft, and assault. The district court entered a final
judgment in March 2003 and sentenced Grimmett to consecutive
prison terms of varying lengths.
¶3 Several months later, Grimmett began writing letters to
the district court complaining that Ljungberg had neither filed
an appeal nor moved to withdraw his guilty pleas, despite his
requests that Ljungberg do so. Ljungberg confirmed the truth of
these allegations, but the district court informed Grimmett that
it lacked jurisdiction to reconsider the sentence and advised him
to appeal. The district court treated Grimmett’s fourth letter
as a notice of appeal. The court of appeals subsequently
dismissed the appeal in July 2004, citing its untimeliness.
State v. Grimmett, 2004 UT App 235U.
¶4 In June 2004, two weeks before the court of appeals
dismissed Grimmett’s appeal, his newly appointed counsel filed a
petition for post-conviction relief under the Post-Conviction
Remedies Act (the “PCRA”), Utah Code Ann. §§ 78-35a-101 to -110
(2002 & Supp. 2006), and rule 65C of the Utah Rules of Civil
Procedure. In his petition, Grimmett sought resentencing and
alternatively moved to withdraw his guilty pleas, arguing that
they had been involuntary.
¶5 The State responded to Grimmett’s post-conviction
petition by agreeing that he should be resentenced nunc pro tunc
pursuant to our decision in State v. Johnson, 635 P.2d 36, 38
(Utah 1981), thereby restoring his right to appeal. In January
2005, the district court ordered that Grimmett be resentenced.
Subsequent to the district court’s resentencing order but prior
to the actual resentencing, Grimmett filed a motion to withdraw
his guilty pleas or, in the alternative, to reduce the degrees of
the offenses prior to being resentenced. The district court
denied the motion and instead resentenced Grimmett nunc pro tunc,
ruling that it lacked jurisdiction to consider Grimmett’s motion
to withdraw his pleas.
¶6 Grimmett filed a timely appeal. He subsequently filed
a motion with the court of appeals asking that it either
summarily reverse his convictions or order a remand hearing on
his claim of ineffective assistance of counsel under rule 23B of
the Utah Rules of Civil Procedure. The court of appeals denied
the motion and certified the appeal for transfer to this court.
We have jurisdiction under Utah Code section 78-2-2(3)(b).

3 No. 20050143
ANALYSIS
¶7 This appeal requires that we determine whether a
defendant timely files a motion to withdraw his guilty plea under
Utah Code section 77-13-6(2)(b) when the motion is filed after
the district court has ordered that the defendant be resentenced
but before the actual resentencing. Stated differently, the
question before us is whether the application of the Johnson nunc
pro tunc resentencing remedy permits a defendant to withdraw his
guilty pleas under Utah Code section 77-13-6(2)(b), which
requires that a motion to withdraw a plea be made before
sentencing. We conclude that Grimmett’s motion to withdraw his
guilty plea was untimely and thus affirm the district court’s
denial of Grimmett’s motion to withdraw.
¶8 Utah Code section 77-13-6(2)(b) establishes the filing
limitations that govern a criminal defendant’s right to withdraw
a guilty plea. These filing limitations are jurisdictional.
State v. Merrill, 2005 UT 34, ¶ 20, 114 P.3d 585. Section
77-13-6(2)(b) “imposes a jurisdictional bar on late-filed motions
to withdraw guilty pleas,” id. ¶ 17, and failure to comply with
its requirements “extinguishes a defendant’s right to challenge
the validity of the guilty plea on appeal,” State v. Reyes, 2002
UT 13, ¶ 3, 40 P.3d 630. Grimmett must therefore comply with the
requirements of section 77-13-6(2)(b) if he seeks to challenge
the validity of his guilty pleas on appeal. See Manning v.
State, 2005 UT 61, ¶ 36, 122 P.3d 628 (“Any challenge to [a
guilty plea] may only be undertaken following a timely motion for
withdrawal of the guilty plea.”).
¶9 Grimmett contends that his January 2005 motion to
withdraw his guilty pleas met the jurisdictional requirements of
section 77-13-6(2)(b), despite the fact that it was filed twenty-
two months after his sentencing. Because section 77-13-6(2)(b)
underwent substantial revision in May 2003 and the parties
disagree about which version of the statute controls, we review
both versions and conclude that Grimmett’s challenge fails under
both.
I. THE 1989 VERSION OF UTAH CODE SECTION 77-13-6(2)(B)
¶10 The prior version of section 77-13-6(2)(b), which was
first adopted by the legislature in 1989 and remained in effect
at the time of Grimmett’s original March 2003 sentencing, reads
as follows: “A request to withdraw a plea of guilty or no
contest is made by motion and shall be made within 30 days after
the entry of the plea” (emphasis added). Grimmett’s motion,
filed almost two years after the entry of his guilty plea,

No. 20050143 4
clearly fails to meet the thirty-day jurisdictional requirement
of the 1989 statute. Grimmett nevertheless argues that we should
excuse his noncompliance, noting our statement that a
“presentence motion to withdraw a guilty plea should, in general,
be liberally granted.” State v. Gallegos, 738 P.2d 1040, 1042
(Utah 1987). Gallegos is unavailing here, however, for two
reasons.
¶11 First, Grimmett’s January 2005 motion to withdraw was
not a “presentence motion,” as it was filed twenty-two months
after the announcement of his sentence. Second, and more
importantly, we made the statement on which Grimmett relies while
reviewing the 1980 version of section 77-13-6, which imposed no
jurisdictional time limitations on motions to withdraw. That
version read: “A plea of guilty or no contest may be withdrawn
only upon good cause shown and with leave of court.” Utah Code
Ann. § 77-13-6 (1982) (amended 1989 & 2003); see also State v.
Abeyta, 852 P.2d 993, 994-96 (Utah 1993) (applying the 1980
version of the statute and holding that it potentially allowed a
criminal defendant to withdraw a guilty plea almost three years
after sentencing).
¶12 Section 77-13-6, however, was amended by the
legislature in 1989 to impose a strict jurisdictional time limit.
Cf. Utah Code Ann. § 77-13-6(2)(b) (1995) (amended 2003) (“A
request to withdraw a plea of guilty or no contest is made by
motion and shall be made within 30 days after the entry of the
plea.”); see also Abeyta, 852 P.2d at 955. While courts may
still “liberally grant” presentence motions to withdraw a guilty
plea, they may now do so only if they have jurisdiction. Under
the 1989 version of section 77-13-6(2)(b), the district court had
none.
II. THE 2003 VERSION OF UTAH CODE SECTION 77-13-6(2)(B)
¶13 We now consider Grimmett’s arguments within the context
of the 2003 version of section 77-13-6(2)(b). In doing so, we
find that the Johnson resentencing remedy is limited in nature
and purpose and does not allow Grimmett “another opportunity to
present postconviction motions.” State v. Gordon, 913 P.2d 350,
356 (Utah 1996).
A. Background
¶14 Two months after Grimmett’s original March 2003
sentencing, the legislature amended section 77-13-6(2)(b) to
remove the thirty-day limit and instead require that criminal
defendants file withdrawal motions before sentencing. As
amended, the statute reads: “A request to withdraw a plea of

5 No. 20050143
guilty or no contest, except for a plea held in abeyance, shall
be made by motion before sentence is announced. Sentence may not
be announced unless the motion is denied.” Utah Code Ann.
§ 77-13-6(2)(b) (2003) (emphasis added).
¶15 The legislature apparently enacted this amendment in
response to our decision in State v. Ostler, 2001 UT 68, 31 P.3d
528. In Ostler, we interpreted the phrase “30 days after the
entry of the plea” to refer to the date of entry of final
judgment, not to the date of the plea colloquy. Id. ¶ 11. We
reasoned that substantial unfairness might result from a plain-
language reading of the 1989 statute: “[T]o start the time for
moving to withdraw a plea from the time the district court
accepted a plea could ‘deprive the district court of the power to
review a plea before it enters a judgment of conviction and
sentence,’ an outcome we found to be unreasonably unfair.”
Merrill, 2005 UT 34, ¶ 16 (quoting Ostler, 2001 UT 68, ¶ 10).
¶16 The 2003 amendment to section 77-13-6(2)(b) both
embraced and repudiated Ostler. It embraced Ostler’s recognition
that it would be unfair to prevent criminal defendants from
moving to withdraw a guilty plea at any time before their
sentencing. Cf. Utah Code Ann. § 77-13-6(2)(b) (2003). It
repudiated Ostler, however, by setting sentencing as the deadline
for filing such motions. Under Ostler, a criminal defendant had
thirty days from “the date of final disposition of the case” to
file a motion to withdraw. 2001 UT 68, ¶ 11. The 2003 amendment
eliminates this possibility and instead mandates that any motion
to withdraw a plea be filed before sentence is announced.
B. The Limited Nature and Purpose of the
Nunc Pro Tunc Resentencing Remedy
¶17 In Grimmett’s view, the district court’s January 2005
order that he be resentenced nunc pro tunc reopened the section
77-13-6(2)(b) time frame and permitted him to file a motion to
withdraw at any time before the actual resentencing. In other
words, Grimmett reads the term “sentence” in the 2003 statute as
including a “resentence.” He thus reads the 2003 statute as
meaning that “[a] request to withdraw a plea of guilty or no
contest, except for a plea held in abeyance, shall be made by
motion before sentence [or resentence] is announced.” We reject
this interpretation.
¶18 In State v. Johnson, 635 P.2d 36, 38 (Utah 1981), we
instructed district courts to resentence criminal defendants nunc
pro tunc when those defendants were prevented from bringing
timely appeals through no fault of their own. Under Johnson,
nunc pro tunc resentencing restarted the appeal clock and

No. 20050143 6
provided defendants with an opportunity to bring direct appeals
of their convictions. Id. The Johnson nunc pro tunc
resentencing regime stood until our decision in Manning v. State,
2005 UT 61, 122 P.3d 628, which was decided about two weeks
before Grimmett filed his initial brief in this case.
¶19 In Manning, we discarded nunc pro tunc resentencing in
light of the 1996 enactment of the PCRA, Utah Code Ann.
§§ 78-35a-101 to -110 (2002 & Supp. 2006), and corresponding
revisions to rules 65B and 65C of the Utah Rules of Civil
Procedure. We concluded that “resentencing [was] no longer a
preferred remedy,” in part because “resentencing tends to create
more problems than it resolves.” Manning, 2005 UT 61, ¶ 28
(internal quotation marks omitted). Indeed, Grimmett’s case
nicely illustrates the problematic nature of the Johnson remedy.
¶20 Our opinion in Manning made clear that “the Johnson
remedy was ultimately designed to restore a denied right to
appeal.” Id. Our decisions in both Manning and Johnson were
fashioned to address a single, key constitutional concern: “[W]e
must provide a readily accessible and procedurally simple method
by which persons improperly denied their right to appeal can
promptly exercise this right.” Id. ¶ 26; accord Johnson, 635
P.2d at 38 (“[If a] defendant was denied a constitutional right
[to a timely appeal, he] must be provided an opportunity to take
a direct appeal from his conviction.”). Johnson and its progeny
thus established the limited scope and purpose of the nunc pro
tunc resentencing remedy.
¶21 Our decision in State v. Gordon, 913 P.2d 350 (Utah
1996), affirms the limited scope of the Johnson remedy. In
Gordon, a criminal defendant who had been resentenced nunc pro
tunc moved for a new trial on the grounds of ineffective
assistance of counsel and newly discovered evidence. Id. at 353.
This court explained that the motion for a new trial was
untimely:
The only effect of the [resentencing] order
was to provide [the defendant] with another
opportunity to pursue the direct appeal that
he was previously denied. In other words,
[the defendant’s] resentencing merely
returned him to the position he was in before
his appeal was dismissed. It did not allow
him another opportunity to present
postconviction motions.
Id. at 356 (emphasis added).

7 No. 20050143
¶22 Gordon relied in part on our decision in State v.
Hallett, 856 P.2d 1060, 1062 (Utah 1993), in which we explained
that “[o]nce a trial court on habeas review determines that a
defendant has been denied the constitutional right to appeal, a
direct appeal should be provided immediately, without
adjudication of any other claims, such as ineffective assistance
of counsel” (emphasis added) (footnote omitted). Thus, Gordon
and Hallett both illustrate that nunc pro tunc resentencing is a
limited remedy designed to reinstate the crucial constitutional
right to appeal. In both cases, we expressly rejected the view
that the reinstatement of the right to appeal opened the door for
the consideration of post-conviction motions.
¶23 The 2003 amendment to section 77-13-6(2)(b) did not
undercut our reasoning in Gordon. Under the 1989 statute, a
defendant was required to move to withdraw his plea “within 30
days after the entry of the [final judgment].” See Utah Code
Ann. § 77-13-6(2)(b) (1995) (amended 2003); see also Ostler, 2001
UT 68, ¶ 11. This time frame was changed by the 2003 statute,
which required that the motion be filed “before sentence is
announced.” Utah Code Ann. § 77-13-6(2)(b) (2003). Though this
change is not insignificant, it does not render Gordon
inapplicable. Our holding in Gordon did not hinge on the thirty-
day deadline imposed by the 1989 statute; it was based instead on
the limited scope and purpose of the nunc pro tunc resentencing
remedy. We fail to see how modification of the statutory
deadline bears on either the nature or the scope of the nunc pro
tunc resentencing remedy.
¶24 We therefore conclude that the district court’s January
2005 resentencing order did not reopen the filing window
established by section 77-13-6(2)(b). We expressly hold that the
Johnson nunc pro tunc resentencing remedy, which is no longer
available to criminal defendants, Manning, 2005 UT 61, ¶ 11, does
not permit a criminal defendant to file a motion to withdraw a
guilty plea after the jurisdictional deadline established by
section 77-13-6(2)(b).
¶25 Because Grimmett’s motion to withdraw was untimely
under both versions of section 77-13-6(2)(b), we have no
jurisdiction to consider his challenge to the validity of his
guilty pleas. See State v. Reyes, 2002 UT 13, ¶ 3, 40 P.3d 630
(“[B]ecause [the defendant] did not move to withdraw his guilty
plea within thirty days after the entry of the plea, we lack
jurisdiction to address [his challenge to his guilty plea] on
appeal.”).
¶26 Our decision today does not leave Grimmett without a
remedy, however. Section 77-13-6(2)(c) (2003) expressly states

1 Grimmett has already petitioned for post-conviction
relief once, in June 2004. The State responded to that petition
by “erroneously indicat[ing] . . . that a challenge to
defendant’s guilty pleas could be made on direct appeal through a
23B remand hearing.” The State has indicated in its brief that
because of its error, it will “not move to dismiss a petition
challenging the validity of [Grimmett’s] pleas as successive.”
No. 20050143 8
that an untimely challenge to a guilty plea “shall be pursued
under” the PCRA and rule 65C of the Utah Rules of Civil
Procedure.1 We further note that should Grimmett avail himself
of this remedy, he may be “appoint[ed] counsel on a pro bono
basis,” Utah Code Ann. § 78-35a-109(1) (2002). But see Hutchings
v. State, 2003 UT 52, ¶ 20, 84 P.3d 1150 (stating that defendants
have “no statutory or constitutional right to counsel in a civil
petition for post-conviction relief”). Given the circumstances
that have led him to this point and the fact that the merits of
his argument have not yet been addressed, Grimmett appears to be
a prime candidate to benefit from the district court’s discretion
to appoint counsel.
CONCLUSION
¶27 We affirm the district court’s denial of Grimmett’s
motion to withdraw his guilty pleas and hold that the Johnson
nunc pro tunc resentencing remedy does not permit him a second
bite at the apple under Utah Code section 77-13-6(2)(b). Because
Grimmett did not file a timely motion to withdraw his guilty
pleas, we have no jurisdiction to consider his attack on their
validity. Affirmed.
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¶28 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.