State v. Flora

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

2020 UT 2

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,
Appellee,
v.
PAUL LAMBERT FLORA,
Appellant.

No. 20170241
Heard October 8, 2019
Filed January 30, 2020

On Certification from the Utah Court of Appeals

Fourth District, Nephi
The Honorable Anthony L. Howell
No. 161600073

Attorneys:
Sean D. Reyes, Att’y Gen., William M. Hains, Asst. Solic. Gen.,
Salt Lake City, for appellee
Douglas J. Thompson, Provo, for appellant

CHIEF JUSTICE DURRANT authored the opinion of the Court, in
which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.

CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 Paul Lambert Flora pled guilty to felony DUI. Before
sentencing, he timely moved to withdraw his plea under Utah Code
section 77-13-6, the Plea Withdrawal Statute. After the district court
denied his motion, Mr. Flora appealed, raising two new
arguments under the plain-error and ineffective-assistance-
of-counsel exceptions to the preservation rule. The court of appeals
certified Mr. Flora’s case to us for original appellate review after we
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Opinion of the Court

granted certiorari in the related case of State v. Badikyan.1 As we do in
Badikyan, we hold here that the Plea Withdrawal Statute prohibits us
from considering Mr. Flora’s unpreserved arguments.2 In so doing,
we clarify that defendants may not rely on our preservation
exceptions when appealing the denial of a motion to withdraw a
guilty plea.
Background
¶2 On May 16, 2016, a Nephi City police officer pulled
Mr. Flora over after receiving a call about a disturbance at a nearby
Flying J convenience store. According to the caller, Mr. Flora
knocked over several cigarette ashtrays in front of the Flying J and
then sped away in a red Ford Ranger with no license plates. After
pulling Mr. Flora over, the officer noticed that Mr. Flora smelled of
alcohol, slurred his words, and could not maintain his balance. The
officer placed Mr. Flora under arrest.
¶3 Because Mr. Flora received two prior DUI convictions in the
past ten years, the State charged him with felony DUI. It also
charged him with disorderly conduct, public intoxication, failure to
display license plates, and driving without a license. After
appointing Mr. Flora a public defender, the district court held a
preliminary hearing on June 14, 2016. Then, on November 10, 2016,
Mr. Flora pled guilty to felony DUI and the State dropped the other
charges.
¶4 Mr. Flora’s initial public defender withdrew on
December 29, 2016, after Juab County awarded its indigent-defense
contract to a new law firm. He was appointed new counsel on
January 4, 2017. On February 7, 2017, Mr. Flora moved to withdraw
his guilty plea. He argued that his plea was not knowing and
voluntary, because a mix-up with his court dates forced him to either
plead guilty or go to trial and lose. The district court denied this
motion on February 21, 2017, and sentenced Mr. Flora on
February 28, 2017.

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12020 UT 3, --- P.3d --. We issue Badikyan concurrently with this
opinion.
2 And because we cannot address Mr. Flora’s ineffective-
assistance-of-counsel claim, we deny his motion to remand under
Utah Rule of Appellate Procedure 23B.

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Opinion of the Court

¶5 Mr. Flora now appeals the denial of his plea-withdrawal
motion. On appeal, he asserts two new arguments that he did not
present to the district court. Both arguments rest on the premise that
his behavior throughout the proceedings should have alerted the
district court and trial counsel to the possibility that he was not
competent to plead guilty. For example, he asserts that in both his
preliminary hearing and plea hearing, he made several statements
that raise doubts about his competency. At his plea hearing, for
instance, when the court asked him if he had reviewed his plea
agreement, Mr. Flora responded by saying:
Yeah. You know, I—yeah, I don’t feel like the 0.08 fits
everybody. Some people know how to drink, some
people don’t . . . I actually read a chunk of this book
last night where one of the people that—these guys
that bend all the telescopes to understand astronomy
and physics, the way we look at the universe now.
And the one guy said kind of a whiskey that he’s
always packing around with him. Just those kind of
people.
He also stated that he “woke up with a brain injury on January 21 st
2015, homeless and unemployed due to that event.”
¶6 Additionally, following Mr. Flora’s plea, the district court
ordered a presentence report from Adult Probation and Parole
(AP&P). This report also contained several strange statements. For
example, Mr. Flora began his presentence packet by writing, “None
of your psychological wisdom can Trump mine.” And when asked
to write a brief history of his life for the report, Mr. Flora wrote, “I’ve
never lived in or grown in a permanent location. There are about 500
contacts on my phone, including the White House, FBI, Attorney
General, and businesses that I don’t have to look up ever again.” An
AP&P investigator also noted in the report that Mr. Flora “struggled
to track [their] conversation” and recommended that Mr. Flora
obtain a mental health evaluation.
¶7 Given this behavior, Mr. Flora argues that instead of
denying his plea-withdrawal motion, the district court should have
sua sponte ordered a competency hearing, and that its failure to do so
constitutes plain error. He also argues that his attorneys at the

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Opinion of the Court

district-court level provided ineffective assistance because they, too,
knew about his behavior and did not investigate his competency.3
¶8 The parties briefed and argued this matter before the court
of appeals, which then certified the matter to us under Utah Code
section 78A-4-103(3) and rule 43 of the Utah Rules of Appellate
Procedure. Along with his appeal, Mr. Flora filed a motion under
rule 23B of the Utah Rules of Appellate Procedure to remand his case
to the district court for findings necessary to determine ineffective
assistance of counsel. We have jurisdiction under Utah Code section
78A-3-102(3)(b).
Standard of Review
¶9 Under the doctrine of preservation, “[w]hen a party fails to
raise and argue an issue in the trial court, it has failed to preserve the
issue, and an appellate court will not typically reach that issue
absent a valid exception to preservation.”4 “This court has
recognized three distinct exceptions to preservation: plain error,
ineffective assistance of counsel, and exceptional circumstances.” 5 A
party seeking review of an unpreserved issue “must establish the
applicability of one of these exceptions to persuade an appellate
court to reach that issue.”6
¶10 Because Mr. Flora did not raise his competency-related
arguments in the district court, he asks us to reach them under the
plain-error and ineffective-assistance-of-counsel preservation
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3 But some of Mr. Flora’s behavior appears to confirm his
competency. During his plea hearing, for instance, when the court
asked if he was “currently being treated for any mental or physical
condition that would affect [his] ability to enter a voluntary plea,”
Mr. Flora simply responded, “No.” The court also twice asked
Mr. Flora whether he understood he was waiving his constitutional
rights by pleading guilty. The first time the court asked this question,
Mr. Flora responded, “Yeah. I don’t think it’s right, but I understand
that’s what it is.” The second time the court asked this question,
Mr. Flora simply stated, “Yes.” Finally, when the court asked
Mr. Flora whether he was “entering [his] plea of no contest
voluntarily,” he answered, “Yes.”
4 State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443.
5 Id. ¶ 19.
6 Id.

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exceptions. To establish plain error, a defendant must show (1) “an
error exists,” (2) “the error should have been obvious to the trial
court,” and (3) “the error is harmful.”7 And to establish ineffective
assistance of counsel, a defendant must show (1) “that counsel’s
performance was objectively deficient” and (2) “a reasonable
probability exists that but for the deficient conduct defendant would
have obtained a more favorable outcome at trial.”8
¶11 But as we explain below, Mr. Flora cannot invoke these
exceptions when appealing the denial of a motion to withdraw a
guilty plea. The Plea Withdrawal Statute has its own preservation
rule that is separate from the common-law preservation rule, and to
which our recognized exceptions do not apply.
Analysis
¶12 The Plea Withdrawal Statute allows defendants to withdraw
a guilty plea only if they (1) show that their plea “was not knowingly
and voluntarily made” and (2) make this showing “by motion before
sentence is announced.”9 “Any challenge” to a guilty plea that does
not meet these requirements must be pursued under the
Post-Conviction Remedies Act (PCRA).10 In State v. Rettig and State v.
Allgier, we held that these requirements create a rule of preservation
that is distinct from our traditional preservation doctrine.11 And in
Rettig, we also held that this statute-based rule is not subject to the
recognized preservation exceptions, which are grounded in the
common law.12 Consequently, we concluded that the defendants in
those cases—who both failed to comply with the Plea Withdrawal
Statute because they moved to withdraw their pleas after
sentencing—could not bring unpreserved claims based on the
ineffective-assistance-of-counsel exception.13

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7State v. Munguia, 2011 UT 5, ¶ 12, 253 P.3d 1082 (quoting State v.
Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346).
8 Id. ¶ 13 (quoting State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162).
9 UTAH CODE § 77-13-6(2)(a)–(b).
10 Id. § 77-13-6(2)(c).
11 2017 UT 83, ¶ 44, 416 P.3d 520; 2017 UT 84, ¶ 25, 416 P.3d 546.
12 Rettig, 2017 UT 83, ¶ 34.
13 Allgier, 2017 UT 84, ¶ 27; Rettig, 2017 UT 83, ¶ 11.

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Opinion of the Court

¶13 Mr. Flora argues that Rettig and Allgier are inapplicable to
his case because he complied with the statute and made his
plea-withdrawal request before sentencing. He claims that
“[n]othing in this [c]ourt’s opinions, or in the language of the statute,
even remotely suggests that the [statute’s] preservation requirement
goes beyond the need to preserve a challenge to the validity of the
guilty plea.” To the contrary, our Rettig and Allgier opinions and the
Plea Withdrawal Statute’s plain language both indicate that
defendants may not raise unpreserved claims when appealing the
denial of a motion to withdraw a guilty plea—even if they filed their
motion before sentencing. Rettig and Allgier strongly indicate that
common-law preservation exceptions do not apply to the Plea
Withdrawal Statute’s preservation rule, regardless of whether a
defendant moves to withdraw before or after sentencing. But even
assuming those cases are distinguishable from Mr. Flora’s, the Plea
Withdrawal Statute’s plain language would still bar his unpreserved
claims.
I. Our Common-Law Preservation Exceptions Do Not Apply to the
Plea Withdrawal Statute’s Distinct Preservation Rule
¶14 Mr. Flora argues that defendants who move to withdraw
their pleas before sentencing can raise unpreserved claims on appeal
if those claims fall within a common-law preservation exception.
When Mr. Flora appealed the district court’s denial of his timely
motion to withdraw, he raised two new challenges to his plea under
the plain-error and ineffective-assistance-of-counsel exceptions. He
argues that the Plea Withdrawal Statute’s preservation rule does not
prohibit him from raising these challenges, because he satisfied the
rule by moving to withdraw before sentencing. But according to our
decisions in Rettig and Allgier, the statute’s preservation rule bars
appellate review of all unpreserved claims, even where a defendant
has raised other claims in a timely plea-withdrawal motion.
¶15 For nearly two decades, we have held that the Plea
Withdrawal Statute “imposes a procedural bar” on a defendant’s
ability to appeal the denial of a motion to withdraw a guilty plea
made after sentencing.14 We clarified in Allgier that the statute “does
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14 See Gailey v. State, 2016 UT 35, ¶¶ 14–16, 379 P.3d 1278 (“Our
cases interpreting the 2003 version of the Plea Withdrawal Statute
have reaffirmed the principle that this statute imposes a procedural
bar.”); State v. Ott, 2010 UT 1, ¶ 18, 247 P.3d 344 (“[F]ailure to
withdraw a guilty plea within the time frame dictated by [the Plea
(Continued)
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not allow defendants to work around [this procedural bar] through
the exceptions to preservation.”15 And in Rettig, we further explained
that the statute “establishes a standard of preservation” and
“imposes a strict sanction of waiver that is not subject to any
common-law exceptions.”16 In other words, under Rettig and Allgier,
the Plea Withdrawal Statute’s preservation rule bars appellate courts
from considering any new issues raised on appeal of a motion to
withdraw made after sentencing.
¶16 Mr. Flora argues that he satisfied the statute’s preservation
rule because he moved to withdraw before sentencing. He claims
this “completely distinguishes” his case from Rettig and Allgier, and
allows him to raise new claims on appeal based on our recognized
preservation exceptions. According to Mr. Flora, defendants need
not preserve individual challenges based on plain error, exceptional
circumstances, or ineffective assistance of counsel as long as they
preserve the overall challenge that their plea was not knowing and
voluntary, which they do by moving to withdraw “before sentence is
announced.”17
¶17 This argument is inconsistent with our preservation
doctrine. In order to “properly preserve an issue at the district court,
the following must take place: (1) the issue must be raised in a timely
fashion; (2) the issue must be specifically raised; and (3) a party must

Withdrawal Statute] deprives the trial court and appellate courts of
jurisdiction to review the validity of the plea.”); Grimmett v. State,
2007 UT 11, ¶ 25, 152 P.3d 306 (“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. 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 [as required
by the 1999 Plea Withdrawal Statute], we lack jurisdiction to address
the issue on appeal.”); State v. Ostler, 2001 UT 68, ¶ 13, 31 P.3d 528
(explaining that the district court may not review a plea when a
defendant does not file a motion to withdraw within the thirty-day
deadline imposed by the 1999 Plea Withdrawal Statute) superseded by
statute, 2003 Utah Laws 1321, as recognized in Gailey, 2016 UT 35, ¶¶
14–15.
15 2017 UT 84, ¶ 26; see also Rettig, 2017 UT 83, ¶ 42.
16 2017 UT 83, ¶ 34.
17 UTAH CODE § 77-13-6(2)(b).

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Opinion of the Court

introduce supporting evidence or relevant legal authority.”18 In other
words, preservation occurs on an issue-by-issue or claim-by-claim
basis.19 So contrary to Mr. Flora’s assertions, defendants satisfy the
Plea Withdrawal Statute’s preservation rule only when they present
a specific issue to the district court and give the court “an
opportunity to rule on that issue.”20
¶18 Mr. Flora’s unpreserved claims center on whether the
district court and his attorneys failed to recognize his alleged
incompetency. He did not present these claims to the district court.
The only claim he presented to the district court was that he was
“more or less forced” to plead guilty due to a “mix-up” with his
court dates. So, on appeal, he may raise only new or controlling
legal authority “that directly bears upon” this alleged
mix-up.21 But raising this issue—which has nothing to do
with competency—did not preserve the plain-error and
ineffective-assistance-of-counsel challenges Mr. Flora now brings for
the first time on appeal. And while he could likely raise these
challenges under the common-law preservation rule, the Plea
Withdrawal Statute’s preservation rule bars him from doing so here.
¶19 In sum, the fact that Mr. Flora moved to withdraw his plea
before sentencing does not meaningfully distinguish his case from
Rettig and Allgier. Indeed, much like the defendants in those cases,
Mr. Flora failed to present to the district court any arguments related
to the unpreserved challenges he now raises on appeal. And this

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18 O’Dea v. Olea, 2009 UT 46, ¶ 18, 217 P.3d 704 (emphasis added)
(citation and internal quotation marks omitted).
19 See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (“When a
party fails to raise and argue an issue in the trial court, it has failed to
preserve the issue, and an appellate court will not typically reach that
issue absent a valid exception to preservation.” (emphases added);
see also id. ¶ 14, n.2 (explaining that, while “we view issues
narrowly,” “new arguments, when brought under a properly
preserved issue or theory, do not require an exception to
preservation” so long as they are limited to “new authority or cases
supporting an issue that was properly preserved.”).
20 Allgier, 2017 UT 84, ¶ 25 (quoting Pratt v. Nelson, 2007 UT 41,
¶ 15, 164 P.3d 366).
21 Patterson v. Patterson, 2011 UT 68, ¶ 18, 266 P.3d 828.

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failure means that he—just like the Rettig and Allgier defendants—
cannot now bring these challenges, regardless of their basis in our
recognized preservation exceptions. Our analysis of the Plea
Withdrawal Statute in Rettig and Allgier strongly indicates that the
statute’s unique preservation rule is never subject to the
common-law preservation exceptions, regardless of whether a
defendant files a plea-withdrawal motion before or after
sentencing.22 And the statute’s plain language confirms this
conclusion.
II. The Plea Withdrawal Statute’s Plain Language Requires Mr. Flora
to Pursue His Unpreserved Claims Under the PCRA
¶20 The Plea Withdrawal Statute’s plain language also bars
Mr. Flora’s unpreserved claims. Subsection (2)(b) of the statute states
that defendants “shall” make a “request to withdraw a plea of
guilty . . . by motion before sentence is announced.”23 And
subsection (2)(c) mandates that “[a]ny challenge to a guilty plea not
made” before sentencing “shall be pursued” under the PCRA.24
¶21 When conducting statutory interpretation, we focus on the
statute’s plain language because it is the “best evidence” of the
legislature’s intent.25 We also “presume that the legislature used each
word advisedly and read each term according to its ordinary and
accepted meaning.”26 We likewise presume that “the expression of
one [term] should be interpreted as the exclusion of another.”27 And
we “give effect to every word of a statute, avoiding ‘[a]ny
interpretation which renders parts or words in a statute inoperative
or superfluous.’”28

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22 See also State v. Badikyan, 2020 UT 3, ¶¶ 16–23, -- P.3d --
(arriving at the same conclusion through nearly identical reasoning).
23 UTAH CODE § 77-13-6(2)(b).
24 Id. § 77-13-6(2)(c).
25 State v. Stewart, 2018 UT 24, ¶ 12, 438 P.3d 515 (citation and
internal quotation marks omitted).
26 Id. (citation and internal quotation marks omitted).
27 In re Gestational Agreement, 2019 UT 40, ¶ 19 (alteration in
original) (citation omitted).
28 Stewart, 2018 UT 24, ¶ 12 (citation omitted).

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¶22 The State argues that the phrase “[a]ny challenge” in
subsection (2)(c) “necessarily refers to the specific legal
ground[s] . . . upon which a defendant attacks the legality” of his or
her plea. And they claim that, by modifying “challenge” with the
adjective “any,” “the legislature necessarily recognized that a
defendant might raise any number” of specific plea challenges. So,
according to the State, simply filing a timely plea-withdrawal motion
does not preserve all of a defendant’s potential plea challenges.
Rather, it preserves only those challenges specifically raised in the
motion.
¶23 We agree with the State. We read the statute as using “any
challenge” in subsection (2)(c) to the exclusion of the phrase “request
to withdraw” in subsection (2)(b). Accordingly, we conclude that
“any challenge” refers to the specific legal grounds raised within a
defendant’s plea-withdrawal request. This is the interpretation most
consistent with our principles of statutory construction, as it gives
distinct effect to the phrases “request to withdraw” and “any
challenge.” Had the legislature intended “any challenge” to refer to a
defendant’s motion to withdraw in its entirety, it would have
repeated the term “request to withdraw” in subsection (2)(c) or said
“any such request.” But it did not. Under the current interpretation,
subsection (2)(c) requires defendants who did not present a specific
challenge to the district court to pursue that challenge under the
PCRA.
¶24 Mr. Flora argues that under this interpretation some claims
“cannot be appealed at all”—a result that should give us “pause
about the adequacy of [defendants’] constitutional right to appeal.”
He argues he cannot meaningfully pursue his unpreserved
arguments under the PCRA, because the PCRA prohibits granting
relief “upon any ground that . . . could have been but was not raised
at trial or on appeal.”29 And because his alleged incompetency could
have been but was not raised in his plea-withdrawal motion, he
argues that he cannot invoke it as a basis for relief under the PCRA.
So according to Mr. Flora, if the issue of his competency cannot be
raised under the common-law preservation exceptions, it “cannot be
raised at all.”
¶25 We disagree with Mr. Flora for three reasons. First, it is not
true that requiring strict compliance with subsection (2)(b) of the

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29 UTAH CODE § 78B-9-106(1)(c).

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Plea Withdrawal Statute will prevent the appeal of certain claims.
Nothing in the statute, or in Rettig and Allgier for that matter,
prevents defendants from appealing claims of incompetency or any
other issue as long as they include these claims in their initial
plea-withdrawal motions. Second, if a defendant fails to include a
claim due to ineffective assistance of counsel, as Mr. Flora alleges
happened here, the PCRA will not necessarily prevent him or her
from seeking relief.30
¶26 Finally, the obstacles Mr. Flora describes already exist for
defendants who miss the Plea Withdrawal Statute’s deadline and
move to withdraw their pleas after sentencing. Bearing this in mind,
we see no principled reason why the common-law preservation
exceptions should apply to unpreserved challenges raised on appeal
of plea-withdrawal motions filed before sentencing, but not to
challenges raised on appeal of motions filed after sentencing. The
Plea Withdrawal Statute precludes both types of arguments because
they are made after “sentence is announced.”31 And as we
acknowledged in Rettig, the statute “speaks directly and
comprehensively” to the consequence of a defendant’s failure to
raise a plea challenge before sentencing—he or she must pursue such
a challenge under the PCRA.32 We therefore hold that the Plea
Withdrawal Statute’s plain language prohibits appellate courts from
hearing any claim raised for the first time on appeal of the denial of a
plea-withdrawal request—even if the defendant made the request
before sentencing.33
Conclusion
¶27 Mr. Flora did not raise the issue of his competency with the
district court. As a result, the Plea Withdrawal Statute’s plain
language requires him to pursue this issue under the PCRA. And
while Mr. Flora’s competency-related arguments are based on our
common-law preservation exceptions, Rettig and Allgier strongly

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30 See id. § 78B-9-106(3)(a) (explaining that “a person may be
eligible for relief [under the PCRA] on a basis that the ground could
have been but was not raised at trial or on appeal, if the failure to
raise that ground was due to ineffective assistance of counsel”).
31 Id. § 77-13-6(2)(b).
32 2017 UT 83, ¶ 42.
33 See also State v. Badikyan, 2020 UT 3, ¶¶ 24–33, --- P.3d ---.

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indicates that these exceptions do not apply to the Plea Withdrawal
Statute’s distinct preservation rule. Because the statute prevents us
from considering Mr. Flora’s unpreserved arguments, we dismiss his
appeal and deny his motion to remand under rule 23B.

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