State v. Gailey

This opinion is subject to revision before final
publication in the Pacific Reporter

2016 UT 35

IN THE
SUPREME COURT OF THE STATE OF UTAH

SHANELLE GAILEY,
Appellant,
v.
STATE OF UTAH,
Appellee.

No. 20130637
Filed August 01, 2016

On Certification from the Court of Appeals

Third District, Salt Lake
The Honorable James T. Blanch
No. 131902636

Attorneys:
Catherine E. Lilly, Nathalie S. Skibine,
Salt Lake City, for appellant
Sean D. Reyes, Att’y Gen., Christopher D. Ballard,
Asst. Att’y Gen., for appellee

JUSTICE DURHAM authored the opinion of the Court,
in which JUSTICE HIMONAS and JUSTICE PEARCE joined.
ASSOCIATE CHIEF JUSTICE LEE filed an opinion concurring in the
judgment, in which CHIEF JUSTICE DURRANT joined.

JUSTICE DURHAM, opinion of the Court:
INTRODUCTION
¶1 Over the course of a few hours on June 17, 2013, defendant
Shanelle Gailey entered her initial appearance in the district court for
burglary-related charges, was appointed counsel, waived her right to
a preliminary hearing and trial, pled guilty, waived the waiting
period for sentencing, and received judgment and sentence.
 GAILEY v. STATE OF UTAH
Opinion of the Court

¶2 Ms. Gailey now wishes to challenge her plea as
unknowing and involuntary, but Utah Code section 77-13-6 (Plea
Withdrawal Statute) cuts off a defendant’s right to a direct appeal
once sentencing is announced, requiring the defendant instead to
pursue plea withdrawal claims collaterally through the Post-
Conviction Remedies Act (PCRA). Ms. Gailey argues—contrary to
our caselaw—that the Plea Withdrawal Statute does not cut off her
right to a direct appeal, but merely allows a defendant to pursue
either a direct appeal or postconviction relief. If the statute does in
fact preclude a direct appeal, then Ms. Gailey argues that the statute
is unconstitutional because article I, section 12 of the Utah
constitution provides that “[i]n criminal prosecutions the accused
shall have . . . the right to appeal in all cases” and she claims that the
PCRA remedy is not an adequate substitute for a direct appeal.
¶3 We reaffirm our caselaw and conclude that the Plea
Withdrawal Statute bars direct appeals once sentencing takes place,
and requires defendants to pursue postconviction relief. We also
determine that Ms. Gailey’s constitutional right to an appeal has not
been violated—the Plea Withdrawal Statute does not altogether
foreclose the right to an appeal; rather, it provides an alternative
procedural route for challenging a plea. Although Ms. Gailey also
argues that she could hypothetically be denied state-paid counsel or
the effective assistance of counsel in the PCRA proceeding, which
she claims would render such a proceeding an inadequate substitute
for an ordinary appeal, she has not chosen to pursue such a
proceeding and therefore these claims are not ripe for our review.
BACKGROUND
¶4 The State charged Ms. Gailey with burglary, theft, and
criminal mischief for allegedly breaking into her mother’s home and
stealing cash and her mother’s car keys. Ms. Gailey’s case was
assigned to Early Case Resolution (ECR) Court. On June 17, 2013,
Ms. Gailey entered her initial appearance, was appointed counsel,
and waived her right to a preliminary hearing. After the State agreed
to drop two of the charges and reduce the burglary charge to
criminal trespass, Ms. Gailey agreed to plead guilty.
¶5 A person may be guilty of criminal trespass under Utah
Code section 76-6-206(2)(a) if she “enters or remains unlawfully on
property and . . . intends to cause [an] annoyance.” Ms. Gailey’s plea
affidavit stated that “On March 13, 2013, in Salt Lake County,
Shanelle Gailey unlawfully entered onto another’s property
intending to cause an annoyance.” Ms. Gailey’s counsel read this

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Opinion of the Court
statement to the court and the judge asked Ms. Gailey if that was
what happened. The following exchange then took place:
DEFENDANT GAILEY: Not exactly but it’s my
mother’s house, I stayed there but I did annoy her. I
will say that, didn’t intend to but I did.
THE COURT: So it sounds like you started by saying
that you didn’t really do it and then you came around
and those facts are basically the facts of the case?
DEFENDANT GAILEY: Yeah, they are.
THE COURT: So do you admit that those facts that
your counsel described are essentially what happened
in the case?
DEFENDANT GAILEY: Yes.
THE COURT: Okay. And are you pleading guilty to
the charge because you’re guilty of it?
DEFENDANT GAILEY: Yes.
¶6 The judge informed Ms. Gailey that by pleading guilty she
would be giving up “important constitutional rights,” including the
right to trial and the right to appeal any conviction at trial to an
appellate court. The judge also advised Ms. Gailey that by waiving
the minimum two-day waiting period for sentencing she would
waive any chance she would otherwise have to withdraw her guilty
plea. Ms. Gailey indicated that she understood and the court then
entered judgment and sentence.
¶7 Ms. Gailey filed a notice of appeal without filing a motion
to withdraw her plea. The court of appeals sua sponte offered a
motion for summary disposition “on the basis that th[e] court lacks
jurisdiction because there was no timely motion to withdraw the
guilty plea.” Ms. Gailey then “assert[ed] that the nature of the court
process under which her case proceeded precludes meeting the
requirements for perfecting an appeal, and . . . there are
constitutional issues implicated by the process.” In response, the
court of appeals issued an order withdrawing the motion for
summary disposition, and ordered that the case would go forward
solely on the jurisdictional and constitutional questions raised. The
court of appeals certified the case to this court. We have jurisdiction
under Utah Code section 78A-3-102(3)(b).
STANDARD OF REVIEW
¶8 “Whether appellate jurisdiction exists is a question of law
which we review for correctness . . . .” Migliore v. Livingston Fin.,

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LLC, 2015 UT 9, ¶ 15, 347 P.3d 394 (citation omitted). The
constitutionality of a statute is also a question of law reviewed for
correctness. Injured Workers Ass’n v. State, 2016 UT 21, ¶ 12, ---P.3d---.
ANALYSIS
¶9 Article I, section 12 of 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.”
Weaver v. Kimball, 202 P. 9, 10 (Utah 1921). One such limitation is
Utah Code section 77-18a-1(1)(a), which permits defendants an
appeal “as a matter of right . . . [from] a final judgment of conviction,
whether by verdict or plea.”
¶10 The Plea Withdrawal Statute further 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. Ms. Gailey argues that the Plea Withdrawal Statute
provides postconviction relief as a permissive alternative to
pursuing a direct appeal, not a mandatory replacement. She
contends that “[t]here is nothing in the language of the [Plea
Withdrawal Statute] that explicitly strips courts of jurisdiction,” and
that our caselaw has mistakenly interpreted the statute as requiring
defendants to pursue postconviction relief exclusively.
¶11 We use this opportunity to clarify and reaffirm our
precedent holding that the Plea Withdrawal Statute is a procedural
bar to a direct appeal post-sentencing. We next consider Ms. Gailey’s
constitutional arguments, and conclude that the Plea Withdrawal
Statute does not on its face violate the constitutional right to appeal,
because it provides a mechanism for review of and relief from an
unknowing or involuntary plea, including appellate review. Finally,
we conclude that this statute is not unconstitutional as applied to
Ms. Gailey as she has not yet encountered any deficiencies—
specifically, the deprivation of state-paid counsel or ineffective
assistance of counsel —associated with pursuing postconviction
relief. While the PCRA does not require an attorney to be appointed,
the judge may nevertheless choose to appoint one for the defendant.
And while effective assistance of counsel is not mandated in
postconviction proceedings, Ms. Gailey has not pursued this remedy
and we therefore do not know whether she would encounter
ineffective assistance of counsel. Thus, these claims are not ripe for
review.

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I. THE PLEA WITHDRAWAL STATUTE PROCEDURALLY
REQUIRES DEFENDANTS TO PURSUE POSTCONVICTION
RELIEF POST-SENTENCING
¶12 The legislature enacted the Plea Withdrawal Statute in
1980, with two significant substantive amendments in 1989 and 2003.
The 1980 version of the statute did not include a time limitation for
withdrawing a guilty plea; instead it provided that a “plea of guilty
or no contest may be withdrawn only upon good cause shown and
with leave of court.” UTAH CODE § 77-13-6 (1982); see Grimmett v.
State, 2007 UT 11, ¶ 11, 152 P.3d 306; State v. Abeyta, 852 P.2d 993,
994–96 (Utah 1993) (per curiam) (allowing the defendant to
withdraw a guilty plea almost three years post-sentencing). Under
the 1980 version of the statute, “even when a judge found that a plea
was knowingly and voluntarily entered, he or she still retained broad
discretion to determine whether other circumstances in the case
constituted good cause for allowing the defendant to withdraw his
plea.” State v. Ruiz, 2012 UT 29, ¶ 31, 282 P.3d 998.
¶13 But in 1989 the legislature amended the statute and
created a thirty-day filing limitation on the defendant’s right to
withdraw a guilty plea. UTAH CODE § 77-13-6(2)(b) (1989). The
statute provided that this thirty-day limitation began to run at the
“entry of the plea,” which we interpreted as referring to thirty days
after the entry of final judgment, and not thirty days from the plea
colloquy. State v. Ostler, 2001 UT 68, ¶ 11, 31 P.3d 528.
¶14 In State v. Abeyta, we remarked that after this thirty-day
period, “the right [to withdraw a guilty plea] is extinguished.” 852
P.2d at 995. Although we later characterized this statement in Abeyta
as dictum, we reaffirmed the principle in several cases and expressly
held the thirty-day limit to be a procedural bar to plea withdrawals
and appeals from guilty pleas. See Ostler, 2001 UT 68, ¶ 10 (noting
that if a defendant misses the thirty-day filing deadline, it would
“deprive the district court of the power to review a plea”); State v.
Reyes, 2002 UT 13, ¶ 3, 40 P.3d 630 (“[B]ecause Reyes did not move to
withdraw his guilty plea within thirty days after the entry of the
plea, we lack jurisdiction to address the issue on appeal.”); State v.
Merrill, 2005 UT 34, ¶ 17, 114 P.3d 585 (“Although the retroactive
promotion of dictum to holding is a practice we do not endorse, we
neither apologize for our assessments of the jurisdictional nature of
the thirty-day filing period in Abeyta and Ostler nor retreat from
what is clearly our holding in Reyes, all of which imposes a
jurisdictional bar on late-filed motions to withdraw guilty pleas.”);
Grimmett, 2007 UT 11, ¶ 12 (“Section 77–13–6, however, was
amended by the legislature in 1989 to impose a strict jurisdictional
time limit.”).
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¶15 In 2003, the legislature made the most recent substantive
amendments to the Plea Withdrawal Statute by incorporating two
major changes. First, the legislature removed the thirty-day filing
deadline, and instead required that a “request to withdraw a plea of
guilty . . . shall be made by motion before sentence is announced.”
UTAH CODE § 77-13-6(2)(b). Second—and for the first time in the
statute’s history 1—the legislature provided a procedural remedy for
relief where the defendant wishes to challenge a guilty plea but has
missed the deadline. This remedy requires that any post-sentencing
plea withdrawal challenges “shall” be pursued through
postconviction relief in accordance with the PCRA and rule 65C of
the Utah Rules of Civil Procedure. Id. § 77-13-6(2)(c).
¶16 Our cases interpreting the 2003 version of the Plea
Withdrawal Statute have reaffirmed the principle that this statute
imposes a procedural bar. See Grimmett, 2007 UT 11, ¶ 25 (“Because
Grimmett’s motion to withdraw was untimely . . . we have no
jurisdiction to consider his challenge to the validity of his guilty
pleas.”); State v. Rhinehart, 2007 UT 61, ¶ 14, 167 P.3d 1046 (“[C]laims
of ineffective assistance of counsel raised in the context of challenges
to the lawfulness of guilty pleas are governed by section 77-13-6
. . . . We therefore are without jurisdiction to consider
Ms. Rhinehart’s claim.”); State v. Ott, 2010 UT 1, ¶ 18, 247 P.3d 344
(“[F]ailure to withdraw a guilty plea within the time frame dictated
by section 77-13-6 deprives the trial court and appellate courts of
jurisdiction to review the validity of the plea.”); see also State v. Smith,
2011 UT App 336, ¶ 4, 263 P.3d 1219 (“[I]f a defendant fails to file a
timely motion to withdraw his guilty plea, the appellate court lacks
jurisdiction to consider any claim except a challenge to the
sentence. . . . If a motion to withdraw a guilty plea is not timely filed,
any challenge to a guilty plea must be pursued under the [PCRA].”).
¶17 Ms. Gailey challenges our caselaw interpreting the Plea
Withdrawal Statute, asserting that “[t]here is nothing in the language
of the former or current statute that explicitly strips courts of
jurisdiction.” Although the current language of the statute
specifically provides that “[a]ny challenge to a guilty plea not made
[pre-sentencing] shall be pursued under [the PCRA],” UTAH CODE

1 State v. Merrill incorrectly conflated the 1989 statute and the 2003
statute by articulating the thirty-day filing limitation and the PCRA
as two alternative options for withdrawing a plea. See 2005 UT 34,
¶¶ 25, 30, 39, 114 P.3d 585. As detailed above, the thirty-day
limitation is found only in the 1989 version of the statute while the
PCRA remedy is found only in the 2003 version of the statute.
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§ 77-13-6(2)(c) (emphasis added), Ms. Gailey argues that this
language could be interpreted as directory and not mandatory, and
therefore does not cut off a defendant’s right to a direct appeal post-
sentencing.
¶18 We reject Ms. Gailey’s reading of the statute. Although the
1989 version of the statute did not expressly provide that the right to
withdraw a plea is extinguished after the thirty-day deadline, we
inferred a procedural bar from its language and structure. Reliance
on this inference is no longer necessary. The plain language of the
current Plea Withdrawal Statute explicitly provides the procedural
roadmap for post-sentencing motions to withdraw a plea—and that
is through postconviction relief.
¶19 There is also no indication that the legislature intended
postconviction relief as a permissible alternative route to a direct
appeal; in fact the inference goes the other way. In Grimmett, for
example, we noted that the “legislature apparently enacted this
amendment in response to our decision in State v. Ostler. . . . The
2003 amendment eliminates [the thirty-day deadline] and instead
mandates that any motion to withdraw a plea be filed before
sentence is announced.” 2007 UT 11, ¶¶ 15–16 (citation omitted).
Because the defendant in Grimmett failed to withdraw his plea before
sentencing, we held that “we have no jurisdiction to consider his
challenge to the validity of his guilty pleas.” Id. ¶ 25.
¶20 We therefore reaffirm our prior caselaw holding that after
sentencing is entered, a defendant may not file a motion to withdraw
a guilty plea or directly appeal the plea, but must pursue
postconviction relief through the PCRA and rule 65C of the Utah
Rules of Civil Procedure.
II. MS. GAILEY’S CONSTITUTIONAL RIGHT TO AN
APPEAL HAS NOT BEEN VIOLATED
¶21 Ms. Gailey asks this court to reconsider our caselaw
regarding the Plea Withdrawal Statute in light of the recent United
States Supreme Court precedent recognizing the critical nature of the
plea-bargaining process. See Missouri v. Frye, 132 S. Ct. 1399, 1407
(2012) (“In today’s criminal justice system . . . the negotiation of a
plea bargain, rather than the unfolding of a trial, is almost always the
critical point for a defendant.”); Lafler v. Cooper, 132 S. Ct. 1376, 1388
(2012) (noting that 94 percent of state convictions are the result of

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guilty pleas and rejecting the notion that a “fair trial wipes clean any
deficient performance by defense counsel during plea bargaining”). 2
¶22 Ms. Gailey claims that her plea was unknowing and
involuntary and that therefore her waiver of the right to a direct
appeal violated due process. Further, Ms. Gailey argues that the
PCRA remedy does not satisfy her constitutional right to an appeal
because—unlike a direct appeal—the PCRA does not guarantee
state-paid counsel or the effective assistance of counsel in a challenge
to a plea.
¶23 We do not reach the question of whether Ms. Gailey’s plea
was unknowing or involuntary, because we have been asked to
determine only whether the Plea Withdrawal Statute’s requirement
that Ms. Gailey pursue postconviction relief has violated her
constitutional right to an appeal. We hold that the Plea Withdrawal
Statute does not, on its face, violate the constitutional right to appeal.
It simply dictates the procedural mechanism for pursuing a claim; it
does not altogether foreclose relief. 3 We also hold that Ms. Gailey’s
Sixth Amendment claims to state-paid counsel and the effective
assistance of counsel are not ripe, as Ms. Gailey has not yet

2 It is also true that “[i]nnocence, while a relevant consideration
for a defendant charged with a criminal offense who is considering
whether or not to enter a guilty plea, is not a dispositive
consideration and does not prevent criminal defendants from
pleading guilty.” Russell D. Covey, Plea-Bargaining Law After Lafler
and Frye, 51 DUQ. L. REV. 595, 615–16 (2013) (citing two police
scandals wherein 81 percent of sixty-four actually innocent
exonerees pled guilty to false charges).
3 The State argues that “the constitution has always granted the
legislature authority to regulate how a Defendant must invoke
appellate jurisdiction,” because the legislature has the power under
article VIII, section 5 of the constitution to create statutes regarding
original and appellate jurisdiction. But this provision of the
constitution does not grant the legislature power to eviscerate other
constitutional rights, including the right to appeal found in article I,
section 12. See State v. Lara, 2005 UT 70, ¶ 21, 124 P.3d 243 (“Article I,
section 12, in concert with article VIII, section 5, provides a unique
connection between the article I guarantee of the right to appeal and
an express grant of jurisdiction to give practical effect to that right.”).
We are upholding the Plea Withdrawal Statute not because the
legislature may enact any legislation it chooses—regardless of
litigants’ constitutional rights—but because the statute does not
facially violate the constitutional right to appeal.
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Opinion of the Court
petitioned the court for counsel and we do not yet know whether
that counsel would be ineffective. We therefore hold that
Ms. Gailey’s constitutional right to an appeal has not been violated.
A. The Fundamental Constitutional Requirement of an Appeal May Be
Served Through Alternative Procedural Routes
¶24 Notwithstanding the unavailability of a direct appeal in
her criminal case, Ms. Gailey is not left without recourse to challenge
her guilty plea post-sentencing; she may challenge her plea in a
postconviction proceeding as provided for in the PCRA, including
eventual plenary review by an appellate court. Grimmett v. State,
2007 UT 11, ¶ 26, 152 P.3d 306 (“Our decision today does not leave
Grimmett without a remedy, however. [The Plea Withdrawal
Statute] expressly states that an untimely challenge to a guilty plea
‘shall be pursued under’ the PCRA and rule 65C of the Utah Rules of
Civil Procedure.”); see also Latorre v. United States, 193 F.3d 1035, 1037
n.1 (8th Cir. 1999) (“Our decisions upholding waivers of direct-appeal
rights have explicitly noted the availability of [postconviction]
collateral attack.”).
¶25 Under the PCRA, Ms. Gailey has the right to appeal from
the final judgment of the postconviction proceeding in the district
court. UTAH CODE § 78B-9-110. In fact, both Lafler and Frye—the cases
Ms. Gailey relies upon to emphasize the importance of plea
bargaining proceedings—are appeals from postconviction
proceedings. Lafler, 132 S. Ct. at 1383–84; Frye, 132 S. Ct. at 1405.
Therefore, we hold that the Plea Withdrawal Statute does not facially
withhold the constitutional right to an appeal.
B. Right to Appointment of Counsel and Effective Assistance of Counsel
¶26 The Sixth Amendment right to counsel extends to a
defendant’s first appeal as of right. This right includes the right to
state-paid counsel for indigent defendants. Pennsylvania v. Finley, 481
U.S. 551, 554 (1987) (“[D]enial of counsel to indigents on first appeal
as of right amount[s] to unconstitutional discrimination against the
poor.”). Indigent defendants also maintain a statutory right to state-
paid counsel on direct appeal. See UTAH CODE § 77-32-304; Gardner v.
Holden, 888 P.2d 608, 622 (Utah 1994) (articulating that the statute
“provides for the assignment of counsel at state expense only during
the trial proceedings and the first appeal of right or other remedies
before or after conviction that the attorney considers to be in the
interest of justice.”).
¶27 Defendants additionally have the right to the effective
assistance of counsel on direct appeal. Bruner v. Carver, 920 P.2d
1153, 1157 (Utah 1996) (“The Due Process Clause of the Fourteenth

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Amendment guarantees the right to effective assistance of appellate
counsel.”); Evitts v. Lucey, 469 U.S. 387, 396 (1985) (“A first appeal as
of right . . . is not adjudicated in accord with due process of law if the
appellant does not have the effective assistance of an attorney.”).
¶28 Neither the right to state-paid counsel nor the right to
effective assistance of counsel is constitutionally or statutorily
guaranteed in postconviction proceedings. See Hutchings v. State,
2003 UT 52, ¶ 20, 84 P.3d 1150 (noting that defendants have “no
statutory or constitutional right to counsel in a civil petition for post-
conviction relief”); Coleman v. Thompson, 501 U.S. 722, 752 (1991)
(“There is no constitutional right to an attorney in state post-
conviction proceedings. Consequently, a petitioner cannot claim
constitutionally ineffective assistance of counsel in such
proceedings.” (citations omitted)). Thus, Ms. Gailey argues that the
Plea Withdrawal Statute unconstitutionally infringes on her right to
an appeal because it mandates review under the PCRA, where there
is no guarantee of counsel. While we recognize that the PCRA does
not guarantee state-paid counsel, it does provide that “the court may,
upon the request of an indigent petitioner, appoint counsel on a pro
bono basis to represent the petitioner.” UTAH CODE § 78B-9-109(1)
(emphasis added); accord State v. Merrill, 2005 UT 34, ¶ 47, 114 P.3d
585 (“The PCRA expressly authorizes district courts to appoint
counsel on a pro bono basis to a defendant pursuing post-conviction
relief.”).
¶29 Ms. Gailey argues that this permissive language is not
enough, because she “is not in a position to prove to this Court that
she will not be appointed PCRA counsel in the future.” This
argument demonstrates why Ms. Gailey’s claims of constitutional
inadequacy are premature. As we observed in State v. Merrill,
“[w]hile not guaranteeing appointed counsel, the PCRA does not
deny defendants access to counsel. [The defendant] has made no
demonstration that PCRA petitioners like himself, who seek to
withdraw guilty pleas, are generally, or ever, required to pursue
their claims unaided by counsel.” 2005 UT 34, ¶ 47; see also Grimmett,
2007 UT 11, ¶ 26 (“Given the circumstances that have led [the
defendant] to this point and the fact that the merits of his argument
have not yet been addressed, [the defendant] appears to be a prime
candidate to benefit from the district court’s discretion to appoint
counsel.”); State v. Stone, 2013 UT App 148, ¶ 11, 305 P.3d 167
(“[Defendant] has not demonstrated that he would be forced to
pursue relief under the PCRA without the aid of counsel.”). We
cannot declare the PCRA remedy to be a constitutional violation of
the right to assistance of counsel on appeal based on a hypothetical
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future denial of counsel. 4 See Fundamentalist Church of Jesus Christ of
Latter-Day Saints v. Lindberg, 2010 UT 51, ¶ 40, 238 P.3d 1054 (“The
ripeness doctrine ‘serves to prevent courts from issuing advisory
opinions’ on issues that are not ripe for adjudication.” (citation
omitted)).
¶30 This same reasoning applies to Ms. Gailey’s argument that
she would be deprived of the guarantee of effective assistance of
counsel in the PCRA proceeding. The PCRA does provide that
“[n]othing in this chapter shall be construed as creating the right to
the effective assistance of postconviction counsel, and relief may not
be granted on any claim that postconviction counsel was
ineffective.” UTAH CODE § 78B-9-202(4). But unless and until
Ms. Gailey is denied the effective assistance of counsel in the PCRA
proceeding, her claim that it unconstitutionally denies her right to an
appeal is not ripe.
CONCLUSION
¶31 Today we reaffirm our caselaw holding that the Plea
Withdrawal Statute procedurally cuts off a defendant’s right to a
direct appeal post-sentencing. However, defendants are not left
without a remedy to challenge invalid pleas and to appellate review
of such challenges; they may pursue their claims collaterally through
postconviction proceedings. As for Ms. Gailey’s arguments that the
PCRA does not guarantee state-paid counsel or the effective
assistance of counsel, we conclude that she is requesting a ruling on
the hypothetical possibility of ineffective assistance or the denial of
state-paid counsel. We determine these issues are not ripe for
review. Because Ms. Gailey is procedurally barred from pursuing
this direct appeal, we dismiss.

4 As in Grimmett, Ms. Gailey would greatly benefit from the
appointment of counsel in her postconviction proceeding. See
Grimmett, 2007 UT 11, ¶ 26 (“Grimmett appears to be a prime
candidate to benefit from the district court’s discretion to appoint
counsel.”).
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ASSOCIATE CHIEF JUSTICE LEE, concurring

ASSOCIATE CHIEF JUSTICE LEE, concurring in the judgment:
¶33 Shanelle Gailey has not been deprived of an appeal. She
filed one, and we are considering it in our opinions in this case.
Thus, the effect of the Plea Withdrawal Statute, Utah Code section
77-13-6, is not to “cut[] off a defendant’s right to a direct appeal.”
Supra ¶ 2. It is only to limit the issues that may be raised therein, by a
rule of preservation or waiver.
¶34 The Plea Withdrawal Statute does not foreclose an appeal.
It simply says that a defendant may not seek to “withdraw a plea of
guilty” at any time after a “sentence is announced.” UTAH CODE § 77-
13-6(2)(b). This is a rule of preservation, or in other words, waiver. It
says only that a guilty plea may not be challenged further—either in
the district court or on appeal—if it is not withdrawn prior to
sentencing. Thus, Gailey has not lost her right to appeal; she simply
waived the right to raise a specific issue (the validity of her guilty
plea) by not preserving the argument at the time required by the
governing law.
¶35 Rules of this sort are commonplace. They are embedded in
our caselaw under the law of preservation1 and reflected in our rules
of procedure.2 Such rules require parties to raise issues or arguments
at specified times and by certain means. And they treat a failure to
comply as a waiver of the right to raise such issues later in the
litigation.
¶36 These sorts of rules—in the law of preservation and in our
rules of procedure—have never been thought to impinge on the
constitutional right to an appeal. Yet the majority proceeds on the

1 See State v. Rhinehart, 2007 UT 61, ¶ 15, 167 P.3d 1046 (“Except in
those instances in which errors affect the court’s jurisdiction or
where claims of error are expressly preserved for appeal, a
conviction or guilty plea acts as a waiver of earlier procedural
flaws.”); State v. Pinder, 2005 UT 15, ¶ 42, 114 P.3d 551 (precluding
defendant from raising evidentiary objections not properly
preserved at trial; explaining that defendant “waived these
evidentiary arguments because he did not properly preserve” them).
2 See UTAH R. CRIM. P. 12(f) (stating the general rule that “[f]ailure

of the defendant to timely raise defenses or objections or to make
requests which must be made prior to trial or at the time set by the
court shall constitute waiver thereof”); State v. Candland, 2013 UT 55,
¶ 15, 309 P.3d 230 (explaining that where a plea is taken in
accordance with criminal rule 11, “many constitutional challenges to
the entry of a guilty plea are foreclosed” from being raised on
appeal).
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ASSOCIATE CHIEF JUSTICE LEE, concurring
premise that they do. It characterizes the Plea Withdrawal Statute as
a law that “cuts off” Ms. Gailey’s “right to a direct appeal once
sentencing is announced,” and proceeds to the question whether
“the PCRA remedy is . . . an adequate substitute for a direct appeal.”
Supra ¶¶ 2–3.
¶37 The court stops short of resolving that issue on its merits.
Because the heart of the issue presented concerns the question
whether the right to an appeal encompasses a right to paid counsel,
and because Ms. Gailey has not yet been deprived of paid counsel,
the majority concludes that her claim to a right to “state-paid
counsel” is “not ripe.” Supra ¶ 23. And it dismisses the appeal
without opining 3 on the existence of such a right.
¶38 Yet the court proceeds on the implicit premise that the
state constitutional right to appeal encompasses a right to paid
counsel. It does so between the lines of its discussion in paragraphs
28 and 29. There the court acknowledges that there is neither a right
to “state-paid counsel” nor a “right to effective assistance of counsel”
“in postconviction proceedings.” Supra ¶ 28. But it proceeds to note
that “although state paid-counsel is not guaranteed, the PCRA
provides that ‘the court may, upon the request of an indigent
petitioner, appoint counsel on a pro bono basis to represent the
petitioner.” Id. (citation omitted). And it deems Gailey’s
constitutional argument unripe on that basis. It says that “[w]e cannot
declare the PCRA remedy to be a constitutional violation of the right
to assistance of counsel on appeal based on a hypothetical future denial
of counsel.” Supra ¶ 29 (emphasis added).

3 More accurately, the court yields no holding; it nonetheless
proceeds to put a thumb on the scale for future reference. In
anticipation of an as-yet unfiled PCRA proceeding, the majority
comments that “Ms. Gailey would greatly benefit from the
appointment of counsel in her postconviction proceeding.” Supra ¶
29, n. 4. That seems inappropriate. If the question presented is
unripe, we have no business putting our thumb on the scale for
future reference. And in any event the question briefed in this court
has little or nothing to do with the issue anticipated by the majority.
We have no briefing on the standard for appointment of pro bono
counsel under Utah Code section 78B-9-109.
For these reasons I would not opine on Gailey’s need for pro
bono counsel even if I agreed with the balance of the court’s analysis.
To announce our views on a statute that was not briefed on a case
that has not yet been filed strikes me as a very troubling advisory
opinion.
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 GAILEY v. STATE OF UTAH
ASSOCIATE CHIEF JUSTICE LEE, concurring

¶39 The implication is that Gailey’s state constitutional right to
an appeal may be implicated if she is not ultimately given counsel in
a future PCRA proceeding. That seems problematic.
¶40 I understand the impulse in favor of constitutional
avoidance. Perhaps the court perceives its decision as a matter of
restraint. But it strikes me as the opposite. By kicking the can down
the road, the court implies that the state constitution may require
appointment of counsel in a PCRA proceeding challenging the
voluntariness of a guilty plea.
¶41 That is a significant proposition. I would not lightly
assume that the right to paid counsel is implied by the state
constitutional “right to appeal,” as those words were originally
understood. 4 And I see no reason for us to resolve that matter here,
even implicitly.
¶42 Instead, I would affirm on the threshold basis identified
above. Before reaching the question whether the PCRA is an
adequate substitute for an appeal, I would first ask whether any such
right was meaningfully impinged by the Plea Withdrawal Statute. I
would hold that it was not. I would hold that the right to appeal is
not implicated by rules dictating the proper means and timing of
preserving an issue in the district court. And I would not deem the
failure to follow such rules a waiver or forfeiture of the right to raise
the issue in subsequent proceedings.

4 I would interpret the constitutional right to appeal to encompass
the core elements of an appeal as traditionally understood at the
time of the framing of the Utah Constitution. See State v. Houston,
2015 UT 40, ¶¶ 150, 155, 353 P.3d 55 (Lee, J., concurring in part and
concurring in the judgment) (presenting various “premise[s] of
originalism in constitutional interpretation,” including that a
“constitution rooted in ‘evolving standards’ . . . is not a ‘written’
constitution capable of ‘form[ing] the fundamental and paramount
law of the nation,’ or of establishing ‘certain limits not to be
transcended’ and ‘designed to be permanent’” (third alteration in
original) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176–177
(1803))). That inquiry deserves full briefing and careful analysis. I
would not assume it away here. And I would not decide it without a
careful examination of the historical record (to assess whether the
traditional understanding of an “appeal” encompassed a right to
paid counsel). We received some briefing on this question in this
case (pursuant to a supplemental briefing order), but we have no
need to resolve it given that Gailey waived any right to challenge her
guilty plea on appeal.
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 Cite as: 2016 UT 35
ASSOCIATE CHIEF JUSTICE LEE, concurring
¶43 Such rules may be subject to constitutional challenge. But
the basis for challenging them would not be that they eliminate the
right of appeal. Rules of preservation and waiver or forfeiture always
foreclose the right to raise an issue on appeal. They cannot be
unconstitutional on that basis alone, unless we are prepared to say
that such rules are per se unconstitutional.
¶44 I see no basis for that kind of blanket conclusion. Certainly
Gailey has not identified one.
¶45 At oral argument the question arose as to the legislature’s
power to dictate rules governing the timing of filings in district court
or the law of preservation in the Plea Withdrawal Statute. That may
be a fair question for consideration in a future case. See UTAH CONST.
art. VIII, § 4 (providing that this court has the power to “adopt rules
of procedure and evidence to be used in courts of the state” and to
“manage the appellate process” “by rule,” while recognizing the
legislature’s power to “amend” such rules “upon a vote of two-
thirds of all members of both houses”). But no one has challenged
the Plea Withdrawal Statute under article 8, section 4. And in the
absence of such a challenge, the filing requirement prescribed in this
statute is no different than any of a range of other rules of
preservation or waiver set forth elsewhere in our law.
¶46 Such rules do not implicate the state constitutional right to
an appeal. I would affirm on that basis.

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