2014 UT App 240
_________________________________________________________
THE UTAH COURT OF APPEALS
STEPHEN RIPPEY,
Petitioner and Appellant,
v.
STATE OF UTAH,
Respondent and Appellee.
Memorandum Decision
No. 20110783-CA
Filed October 17, 2014
Third District Court, West Jordan Department
The Honorable Mark S. Kouris
No. 100403251
Cory A. Talbot, Megan J. DePaulis, and Rebecca H.
Held, Attorneys for Appellant
Sean D. Reyes and Brett J. DelPorto, Attorneys
for Appellee
JUDGE JOHN A. PEARCE authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and JAMES Z. DAVIS concurred.
PEARCE, Judge:
¶1 Stephen Rippey appeals from the district court’s order
dismissing his petition for post-conviction relief. We affirm.
¶2 In July 2008, ten-year-old S.B. reported to her mother that
Rippey had sexually abused her at least ten times—and possibly as
many as thirty times—over the previous three years. When S.B.’s
mother confronted Rippey about the abuse, he immediately
admitted to touching S.B. sexually as well as sexually abusing her
with a spatula. Rippey also admitted the sexual abuse to the doctor
who performed his post-arrest psychosexual evaluation.
Rippey v. State
¶3 The State charged Rippey with three counts of aggravated
sexual abuse of a child and two counts of object rape of a child, all
first degree felonies. On November 12, 2008, Rippey entered a
guilty plea to one count of aggravated sexual abuse of a child and
one count of object rape of a child. The State dismissed the other
three charges in exchange for Rippey’s guilty plea. On February 5,
2009, the district court sentenced him to two concurrent prison
terms of fifteen years to life. Rippey did not seek to withdraw his
guilty plea prior to sentencing.
¶4 On February 11, 2010, Rippey filed a pro se petition for relief
under the Post-Conviction Remedies Act (PCRA). See Utah Code
Ann. §§ 78B-9-101 to -405 (LexisNexis 2012 & Supp. 2013); Utah R.
Civ. P. 65C. Rippey’s petition recited seventeen grounds for relief,
eight of which the district court summarily dismissed as facially
frivolous.1 See Utah R. Civ. P. 65C(h)(1). The district court
permitted the remainder of Rippey’s claims to proceed. These
claims included allegations that Rippey’s plea was not knowing
and voluntary because of his diminished mental capacity and that
Rippey’s counsel had been ineffective in failing to interview key
witnesses, failing to apprise the district court of Rippey’s mental
health issues, and failing to advise Rippey of the actual evidence
against him.
¶5 The State moved to dismiss Rippey’s remaining claims,
arguing that they lacked a legal or factual basis. The district court
held a hearing on the State’s motion, at which Rippey represented
himself. At the hearing, the district court questioned Rippey
extensively to discern the facts upon which Rippey based his
claims. At the conclusion of the hearing, the district court granted
the State’s motion to dismiss. In its subsequent written dismissal
order, the district court ruled that Rippey’s direct challenges to the
validity of his plea were procedurally barred because they could
1. The district court’s dismissal of those claims is not at issue in this
appeal.
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Rippey v. State
have been raised at trial or on direct appeal. See Utah Code Ann.
§ 78B-9-106(1)(c) (LexisNexis 2012). The district court also
determined that Rippey’s ineffective assistance of counsel claims
were not procedurally barred but that they lacked merit.
Specifically, the district court ruled that Rippey “cannot meet his
burden to demonstrate his plea was in fact unknowing and
involuntary.”
¶6 Rippey, now represented by counsel, raises two arguments
on appeal. First, Rippey contends that the district court erred in
concluding that his direct challenges to his guilty plea were
procedurally barred, because Utah Code section 77-13-6(2)(c)
specifically allows him to pursue his direct challenges under the
PCRA. See Utah Code Ann. § 77-13-6(2)(c) (LexisNexis 2012).
Second, Rippey argues that his petition adequately stated multiple
ineffective assistance of counsel claims and that the district court
erred in dismissing them. Both of these arguments present
questions of law, the resolution of which we review for correctness.
See Brown v. State, 2013 UT 42, ¶ 36, 308 P.3d 486 (“We review a
district court‘s interpretation of a statute for correctness.” (citation
and internal quotation marks omitted)); Taylor v. State, 2012 UT 5,
¶ 8, 270 P.3d 471 (“We review an appeal from an order dismissing
or denying a petition for post-conviction relief for correctness . . . .”
(citation and internal quotation marks omitted)).
¶7 Rippey first argues that the district court erred when it ruled
that his direct challenges to the knowing and voluntary nature of
his guilty plea were procedurally barred because those challenges
could have been, but were not, raised at trial or on appeal. Rippey
argues that the PCRA’s procedural bars do not apply to his claims
because he did not seek to withdraw his guilty plea prior to
sentencing and Utah Code section 77-13-6(2)(c) provides, “Any
challenge to a guilty plea not made [by motion before sentence is
announced] shall be pursued under [the PCRA].” See Utah Code
Ann. § 77-13-6(2)(c). According to Rippey’s argument, the words
“shall be pursued” in the statute mandate that direct challenges to
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Rippey v. State
a guilty plea be brought under the PCRA—apparently without
regard to otherwise applicable procedural requirements.
¶8 Section 77-13-6(2)(c) has a well-established limiting effect on
a defendant’s ability to challenge a guilty plea on direct appeal. See,
e.g., State v. Merrill, 2005 UT 34, ¶¶ 13–20, 114 P.3d 585. Rippey asks
us to interpret section 77-13-6(2)(c) as a limitation on the PCRA’s
procedural bars as well. However, we decline to address this
argument because it was not preserved for appeal. “‘[I]n order to
preserve an issue for appeal[,] the issue must be presented to the
trial court in such a way that the trial court has an opportunity to
rule on that issue.’” McNair v. State, 2014 UT App 127, ¶ 7, 328 P.3d
874 (alterations in original) (quoting 438 Main St. v. Easy Heat, Inc.,
2004 UT 72, ¶ 51, 99 P.3d 801).
¶9 Rule 24(a)(5) of the Utah Rules of Appellate Procedure
requires an appellant’s brief to contain either “citation to the record
showing that the issue was preserved in the trial court” or “a
statement of grounds for seeking review of an issue not preserved
in the trial court.” See Utah R. App. P. 24(a)(5). Rippey’s appellate
brief contains neither. We have conducted our own discretionary
review of the record, see Holladay v. Storey, 2013 UT App 158, ¶ 11
n.4, 307 P.3d 584, but even affording the then-unrepresented
Rippey “every consideration that may reasonably be indulged,” see
State v. Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171 (citation and
internal quotation marks omitted), we see nothing in the record to
indicate that Rippey made any version of his argument about Utah
Code section 77-13-6 to the district court. Cf. McNair, 2014 UT App
127, ¶¶ 7–8 (concluding that pro se litigant had preserved a tolling
issue because he “explained his mental limitations and asked the
court to consider the petition in the interests of justice,” the State
responded to that argument, and the trial court specifically ruled
that the tolling provision did not apply). Accordingly, we decline
to address this argument because it is unpreserved.
¶10 Rippey next contends that the district court erred in
dismissing his ineffective assistance of counsel claims. He argues
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Rippey v. State
that he pleaded sufficient facts in his PCRA petition to adequately
state his ineffective assistance of counsel claims. He further argues
that the district court erred by failing to treat those facts as true and
failing to evaluate them against the ineffective assistance of counsel
standards stated in Strickland v. Washington, 466 U.S. 668 (1984).
¶11 The State moved to dismiss Rippey’s PCRA petition
pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure. See
Utah R. Civ. P. 12(b)(6) (governing motions to dismiss for “failure
to state a claim upon which relief can be granted”); McNair, 2014
UT App 127, ¶¶ 11, 15 (applying rule 12(b)(6) to PCRA petitions).
Under rule 12(b)(6), “we must accept the factual allegations [in
Rippey’s petition] as true and draw all reasonable inferences from
those facts in a light most favorable to [Rippey].” McNair, 2014 UT
App 127, ¶ 15 (citation and internal quotation marks omitted).
Additionally, Rippey’s pro se petition “‘is to be liberally
construed,’” and its dismissal was proper only “‘if it appears
beyond doubt that [Rippey] can prove no set of facts in support of
his claim which would entitle him to relief.’” Id. ¶ 12 (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
¶12 However, to avoid dismissal, a PCRA petitioner—even a pro
se petitioner—must still adequately plead facts upon which relief
may be granted. “The pleading standards for a post-conviction
petition . . . are set out in rule 65C of the Utah Rules of Civil
Procedure, which ‘governs proceedings in all petitions for
post-conviction relief filed under’ the PCRA.” Id. ¶ 9 (quoting Utah
R. Civ. P. 65C(a)). Under rule 65C, a PCRA petition “shall state . . .
in plain and concise terms, all of the facts that form the basis of the
petitioner’s claim to relief.” Utah R. Civ. P. 65C(d)(3) (emphasis
added). A PCRA petitioner must additionally attach “affidavits,
copies of records and other evidence in support of the allegations”
to his petition if such documents are available. Id. R. 65C(e)(1).
Thus, PCRA petitions are held to “a somewhat higher standard
than the general pleading standard found in rule 8(a)” of the Utah
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Rules of Civil Procedure.2 McNair, 2014 UT App 127, ¶ 9; see also
Utah R. Civ. P. 8(a)(1) (requiring that pleadings contain “a short
and plain . . . statement of the claim showing that the party is
entitled to relief”).
¶13 Applying these standards to the district court’s treatment of
Rippey’s PCRA petition, we see no error in the district court’s
dismissal of Rippey’s ineffective assistance of counsel claims.
Rippey’s petition and its accompanying memorandum contain
factual allegations that, if taken as true, arguably state one or more
claims that his counsel performed deficiently in some respects.
However, the district court properly focused on the standard that
Rippey was ultimately required to meet—that his trial counsel’s
alleged deficiencies resulted in a guilty plea that “was in fact not
knowing and voluntary.” See Bluemel v. State, 2007 UT 90, ¶ 18, 173
P.3d 842 (citation and internal quotation marks omitted). In other
words, in the context of seeking to withdraw a guilty plea, Rippey’s
trial counsel’s alleged deficient performance may serve as an
avenue to demonstrate that his guilty plea was not voluntary, but
it is not an end unto itself. See State v. Walker, 2013 UT App 198,
¶ 42, 308 P.3d 573 (discussing the prejudice requirement for
challenging a guilty plea based on an ineffective assistance of
counsel claim).
¶14 Rippey argues that trial counsel’s alleged deficiencies
rendered his plea unknowing or involuntary notwithstanding the
waivers embodied in his plea agreement. However, when
challenging a guilty plea on the grounds of ineffective assistance of
counsel, a PCRA petitioner “must show that there is a reasonable
probability that, but for counsel’s errors, he would not have
2. We note that the “somewhat higher” pleading standard under
rule 65C implies that there may well be PCRA petitions that, if
challenged on a motion to dismiss, would state a claim under rule 8
but fall short under rule 65C. See McNair v. State, 2014 UT App 127,
¶ 9, 328 P.3d 874.
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Rippey v. State
pleaded guilty and would have insisted on going to trial and that
such a decision would have been rational under the
circumstances.” Ramirez-Gil v. State, 2014 UT App 122, ¶ 8, 327 P.3d
1228 (emphasis added) (citations and internal quotation marks
omitted). In evaluating the likelihood and rationality of a decision
to reject a plea bargain and go to trial, “‘we look to the factual
circumstances surrounding the plea.’” Id. (quoting United States v.
Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002)); see also Walker, 2013
UT App 198, ¶ 42.
¶15 Rippey has not identified any facts he pleaded in his petition
or proffered at the hearing that, if true, would establish a “rational”
basis for rejecting the State’s plea offer and insisting on a trial. See
Ramirez-Gil, 2014 UT App 122, ¶ 8; see also Clingman, 288 F.3d at
1186 (stating that a “mere allegation that [a defendant] would have
insisted on trial . . . is ultimately insufficient to entitle him to relief”
(citation and internal quotation marks omitted)). By the time
Rippey decided to accept the plea offer, he had admitted to the acts
underlying the charges against him to at least two people.3 Further,
his plea bargain with the State resulted in the dismissal of three
other first degree felony counts against him.
¶16 Under these circumstances, it appears rational for Rippey to
have accepted the State’s plea offer. To overcome that seemingly
rational decision, Rippey’s petition needed to identify factual
allegations that would establish—or at least support an
inference—“‘that a decision to reject the plea bargain would have
been rational under the circumstances.’” Walker, 2013 UT App 198,
¶ 42 (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). In the
absence of factual allegations showing that Rippey’s rejection of the
plea deal would have been rational under the circumstances,
3. Even at the post-conviction stage, Rippey did not deny sexually
abusing S.B. To the contrary, one of the addenda to his petition was
a postsentencing letter to his attorney wherein Rippey stated, “[A]t
least I told the truth.”
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Rippey v. State
Rippey’s petition fails to state a claim for relief based on ineffective
assistance of counsel.
¶17 We affirm the district court’s dismissal of Rippey’s PCRA
petition.
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