State v. Alvarez

2020 UT App 126

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ROMEO ALYSS ALVAREZ,
Appellant.

Opinion
No. 20190289-CA
Filed September 3, 2020

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 171900249

Brett J. DelPorto, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
GREGORY K. ORME and DIANA HAGEN concurred.

HARRIS, Judge:

¶1 Romeo Alyss Alvarez shot and killed a person from
whom he had been attempting to purchase a video game
console. After being charged with various crimes, including
aggravated murder, Alvarez eventually pled guilty to felony
murder, aggravated robbery, and aggravated assault. He now
appeals, taking issue with the district court’s failure to further
inquire into his stated dissatisfaction with his appointed attorney
and with the court’s denial of a motion to continue his
sentencing. He also asserts that his appointed attorney rendered
ineffective assistance. Because we determine that, under Utah’s
plea withdrawal statute, we have no jurisdiction to consider
Alvarez’s claims on direct appeal, we dismiss Alvarez’s appeal.
 State v. Alvarez

BACKGROUND

¶2 Around Christmas, an individual (Seller) advertised a
PlayStation 4 video game console for sale in an online
marketplace. 1 After Alvarez expressed interest in purchasing the
item, the two agreed to meet one morning at a street intersection
to complete the transaction. Alvarez and a friend (Friend)
arrived to make the purchase and found Seller, along with a
passenger (Passenger), waiting in Seller’s car. Alvarez and
Friend then got in the car and asked Seller to drive them to a
different location so that Alvarez could get the money he needed
for the purchase, and Seller obliged.

¶3 Upon arriving at the second location, Alvarez drew a gun
and told Seller and Passenger to “turn over everything they
had.” Seller turned and attempted to grab the gun from Alvarez,
and the two struggled over it. During the course of the struggle,
the gun fired twice, and both shots struck Seller at close range:
one shot hit him in his forearm, and the other in his chest.
Meanwhile, Friend dragged Passenger out of the vehicle and
began hitting her with brass knuckles and kicking her; after
shooting Seller, Alvarez pointed the gun at Passenger and told
her to stay down. A concerned citizen (Witness) drove by and
asked if anyone needed help, but Alvarez pointed the gun at
Witness, who then drove away and called 911.

1. There is some indication in the record that Alvarez was
attempting to buy drugs from Seller, either in addition to or
instead of a video game console. In his brief, Alvarez goes so far
as to assert—without support in the relatively scant record—that
“Playstation” is “a code word for drugs.” Ultimately, however, it
does not matter for purposes of this appeal whether Alvarez
intended to purchase a video game console, drugs, or both.

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¶4 After that, Alvarez and Friend took property from Seller’s
car and fled the scene on foot. The police arrived shortly
thereafter, and attempted to aid Seller, but he ultimately died
from the gunshot wound to his chest. Police then followed
footprints and a trail of blood for some distance where they
located a discarded PlayStation 4 box, splattered with what
appeared to be blood. They also located Alvarez’s wallet in the
back seat of Seller’s car. Police were able to locate Alvarez later
that day and take him into custody.

¶5 After Alvarez was arrested, the State charged him with
one count of aggravated murder, one count of aggravated
robbery, one count of felony discharge of a firearm, two counts
of aggravated assault, and one count of obstruction of justice.
Alvarez was assigned a public defender (Appointed Counsel),
who, after reviewing the discovery provided by the State, began
to explore the possibility of a plea agreement.

¶6 About a week before the plea agreement was formalized,
Alvarez explained to the court at a scheduling hearing that he
was dissatisfied with, and would like to fire, Appointed Counsel
because Alvarez did not “have confidence in him.” Without
asking any follow-up questions, the court told Alvarez that it
would not appoint substitute counsel at that time, explaining
that his right to representation did not guarantee him the
counsel of his choice and that he was free to fire Appointed
Counsel if he wished, but without a demonstrable conflict, he
was not entitled to a new public defender. Alvarez did not
articulate any actual conflict with Appointed Counsel, and the
hearing ended without Alvarez firing Appointed Counsel or the
court appointing substitute counsel.

¶7 After that hearing, Alvarez and his family hired a private
attorney to “look[] through the discovery” and “g[i]ve them an
opinion” about whether the plea arrangement offered by the
State was a fair deal under the circumstances. This second

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attorney told Alvarez and his family that, in the attorney’s
opinion, the plea arrangement was a good one for Alvarez,
because the “best case scenario” for Alvarez at trial, given the
evidence the State planned to present, would be for the jury to
convict him only of the crimes to which he would plead guilty
under the proposed plea arrangement and nothing more.

¶8 One week after the scheduling hearing, and after
receiving the second attorney’s opinion, Alvarez appeared again
in court and this time he entered into a plea agreement with the
State. Under the terms of the deal, Alvarez pled guilty to felony
murder (rather than aggravated murder), aggravated robbery,
and one count of aggravated assault. In exchange, the State
dropped the three remaining charges (felony discharge of a
firearm, obstruction of justice, and an additional count of
aggravated assault). Both in writing—in the written plea
agreement—and orally in open court, Alvarez stated that he was
entering into the arrangement freely and voluntarily, and that he
was “satisfied with the advice and assistance” of Appointed
Counsel. The court also advised Alvarez that he may be able to
withdraw his plea, but only prior to sentencing. The court then
scheduled a sentencing hearing.

¶9 A couple of weeks before the scheduled sentencing
hearing, a third attorney (Retained Counsel) filed a “Notice of
Limited Appearance” on Alvarez’s behalf. In that notice,
Retained Counsel specified that he was “not replacing”
Appointed Counsel as Alvarez’s counsel of record. A few days
later, Retained Counsel—but not Appointed Counsel—filed a
written Motion to Continue Sentencing, noting that Alvarez was
only eighteen years old, and that Retained Counsel had just been
retained and needed time “to review the massive discovery” in
the case and “investigate the case before sentencing,” all with an
eye toward examining “whether there may be grounds to move
to withdraw” Alvarez’s plea. Both the State and Seller’s family
opposed the motion, noting the logistical difficulties that would

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be visited upon members of Seller’s family—who had traveled to
Utah from California for the sentencing hearing—if the hearing
were to be continued. After reviewing the filings, the district
court issued a written order, entered three days prior to the
scheduled sentencing hearing, denying Retained Counsel’s
motion to continue.

¶10 Three days later, Retained Counsel appeared at the
sentencing hearing, in addition to Appointed Counsel, and
orally renewed his motion to continue the hearing. Appointed
Counsel did not join in that motion. In support of the motion,
Retained Counsel again stated that he needed time to review the
discovery and to inform Alvarez and his family about whether
the plea deal was “the absolute best plea that they could get,”
and whether there existed grounds to withdraw the plea. He also
noted that there had been “a conflict between” Alvarez and
Appointed Counsel, an issue that might “go to the issue of the
voluntariness of the plea,” and he specifically made note of an
allegation that Appointed Counsel had raised the specter of the
death penalty with Alvarez during discussions about the plea
deal. Retained Counsel offered his view that “[t]his isn’t a death
penalty case,” and that Alvarez might have been coerced into
accepting the deal because of a concern about the death penalty.

¶11 In response, the district court inquired of Retained
Counsel whether he was making a motion to withdraw the plea,
and Retained Counsel made clear that he was not, and that he
could not do so at that time because he was not sure that he had
grounds to do so; indeed, he acknowledged that his
investigation might well demonstrate that Appointed Counsel
“did a great job” and that the plea arrangement was “the best
plea” that Alvarez could get. After considering argument from
all counsel, the district court orally denied Retained Counsel’s
motion to reconsider the court’s previous denial of the motion to
continue, noting in particular that Alvarez had already obtained
a second opinion about the plea agreement, and that he was not

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entitled to a continuance in order to obtain a third. A few days
later, the district court followed up its oral ruling with a written
order memorializing that ruling.

¶12 After the court made its oral ruling denying the motion to
continue, Retained Counsel asked to withdraw from his limited
representation, which motion the court granted. Appointed
Counsel then sought and obtained a short recess in order to
confer with Alvarez. After the recess, Appointed Counsel asked
the court for the benefit of the record regarding Alvarez’s
intentions for withdrawing his plea. Counsel stated that, during
the recess, he had asked Alvarez “if he wanted to make a verbal
motion to withdraw the plea.” Appointed Counsel told Alvarez
that counsel “did not see or have any grounds to withdraw the
plea,” but told Alvarez that “if [Alvarez] wanted to articulate
those grounds that he has not articulated to [Appointed
Counsel], he could make that motion today before sentencing.”
Counsel then told the court that, while Alvarez would like to
“put . . . off” the sentencing, Alvarez had decided not to make a
motion to withdraw his plea, and had decided to “move forward
with sentencing.” The court then addressed Alvarez directly,
and asked him whether he wished to make a motion to
withdraw his plea, and Alvarez answered that he did not, and
that he was making that decision freely and voluntarily.

¶13 The court then proceeded with the sentencing hearing,
and ultimately sentenced Alvarez to a prison sentence of fifteen
years to life on the felony murder charge; five years to life on the
aggravated robbery charge, and zero to five years on the
aggravated assault charge, with the sentences to run
concurrently to each other. About six weeks after his sentencing,
Alvarez sent the court a motion, in the form of a handwritten
letter, asking to withdraw his plea. The court denied the motion
orally at a subsequent hearing, explaining that, post-sentencing,
Alvarez no longer had a right to withdraw his plea, a
proposition with which Appointed Counsel agreed.

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ISSUES AND STANDARD OF REVIEW

¶14 Alvarez now appeals, and raises three issues for our
review. First, he asserts that the district court erred when it
failed to inquire further into the concerns that led him to request
substitute counsel. Second, he argues that the district court
abused its discretion when it denied Retained Counsel’s motion
to continue. And third, he asserts that Appointed Counsel
rendered ineffective assistance. In response, the State contends
that, under Utah’s plea withdrawal statute, we lack jurisdiction
in this direct appeal to reach the merits of any of the issues
Alvarez raises. Because we agree with the State’s position, we
need list here only one standard of review: “whether appellate
jurisdiction exists is a question of law which we decide in the
first instance.” State v. Arghittu, 2015 UT App 22, ¶ 12, 343 P.3d
709 (quotation simplified).

ANALYSIS

¶15 Under Utah’s constitution, a criminal defendant generally
has “the right to appeal in all cases.” See Utah Const. art. I, § 12.
But this constitutional right to appeal is “not unlimited,” and is
subject to “such limitations and restrictions as to time and
orderly procedure as the Legislature may prescribe.” State v.
Nicholls, 2017 UT App 60, ¶ 18, 397 P.3d 709 (quoting Weaver v.
Kimball, 202 P. 9, 10 (Utah 1921) (quotation simplified)).

¶16 One such restriction manifests itself when a defendant
chooses to plead guilty instead of proceeding to trial. In such
cases, the defendant by pleading guilty “waives the right to a
direct appeal of the conviction on the crime charged.” Id. ¶ 19
(quotation simplified). This occurs because, when a defendant
pleads guilty, he “is deemed to have admitted all of the essential
elements of the crime charged and thereby waives all
nonjurisdictional defects, including alleged pre-plea

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constitutional violations.” See State v. Rhinehart, 2007 UT 61, ¶ 15,
167 P.3d 1046 (quotation simplified).

¶17 A defendant who has entered into an unconditional 2
guilty plea and who wishes to challenge, on direct appeal,
anything other than the sentence imposed must comply with the
strictures of section 77-13-6 of the Utah Code (the Plea
Withdrawal Statute). See Nicholls, 2017 UT App 60, ¶ 20. That
statute provides that a defendant may withdraw a guilty plea
“only upon leave of the court and a showing that [the plea] was
not knowingly and voluntarily made.” Utah Code Ann. § 77-13-
6(2)(a) (LexisNexis 2017). The statute also provides that a
defendant’s request to withdraw his plea must “be made by
motion before sentence is announced,” and that “[a]ny challenge
to a guilty plea not made” prior to sentencing may be pursued
only in a post-conviction proceeding. Id. § 77-13-6(2)(b)–(c).
Thus, “if a defendant wishes to challenge a guilty plea on direct
appeal” rather than in a post-conviction proceeding, “he must
first move to withdraw the plea” prior to imposition of sentence.
See Nicholls, 2017 UT App 60, ¶ 19 (quotation simplified).

¶18 Our supreme court has explained that this provision of
the Plea Withdrawal Statute functions both as a “rule of
preservation” and a “jurisdictional bar” to certain claims a

2. Under rule 11(j) of the Utah Rules of Criminal Procedure, a
defendant may, with “approval of the court and the consent of
the prosecution,” enter a “conditional plea” whereunder he
reserves the right to appeal “the adverse determination of any
specified pre-trial motion,” and may “withdraw the plea” if his
appeal is successful. Utah R. Crim. P. 11(j); see also State v. Sery,
758 P.2d 935, 938–40 (Utah Ct. App. 1988), disagreed with on other
grounds by State v. Pena, 869 P.2d 932 (Utah 1994). When Alvarez
entered his plea, he did not invoke rule 11(j), and he makes no
argument on appeal that his plea was conditional.

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defendant may wish to make on direct appeal. State v. Allgier,
2017 UT 84, ¶ 26, 416 P.3d 546. In this way, the Plea Withdrawal
Statute imposes “a strict sanction” on a defendant who fails to
make a timely motion to withdraw his guilty plea, because in
that situation even the traditionally available exceptions to our
common-law preservation doctrine—plain error and ineffective
assistance of counsel—are unavailable to a defendant on direct
appeal if his claims concern the propriety of his guilty plea. See
State v. Rettig, 2017 UT 83, ¶ 34, 416 P.3d 520.

¶19 The Plea Withdrawal Statute’s jurisdictional bar is broad,
and extends not just to appeals from a defendant’s post-sentence
attempts to withdraw or challenge the plea itself, but also to
appeals relating to claims regarding “any proceeding that led to”
the plea. State v. Scott, 2017 UT App 103, ¶ 7, 400 P.3d 1172.
Indeed, when a defendant fails to timely move “to withdraw his
plea, we lack jurisdiction to consider any challenge not directed
at the sentence he received.” Id. ¶ 8 (quotation simplified).
Accordingly, a defendant’s “failure to seek to withdraw a guilty
plea creates a bar that prohibits this court from reviewing on
direct appeal the plea itself or any proceeding that led to it.” Id.
¶ 7. Thus, “[i]f a defendant does not move to withdraw the plea,
the only direct appeal available is the residual right to appeal the
sentence.” Nicholls, 2017 UT App 60, ¶ 20.

¶20 The State contends that, under the Plea Withdrawal
Statute, we lack jurisdiction to reach the merits of any of
Alvarez’s claims on direct appeal, because those claims concern
the propriety of his plea, and Alvarez declined to make a motion
to withdraw that plea prior to imposition of sentence. “Whether
subject matter jurisdiction exists is a threshold issue that [an
appellate court] must resolve before we may address the
appellant’s substantive issues,” In re K.F., 2009 UT 4, ¶ 21, 201
P.3d 985, because if we lack jurisdiction over an appellant’s
claims, “we are powerless to address” his “arguments on
appeal,” Scott, 2017 UT App 103, ¶ 8. Accordingly, we begin by

20190289-CA 9 2020 UT App 126
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addressing the State’s jurisdictional concern, and because we
ultimately agree with the State on this point, the jurisdictional
inquiry is both the beginning and end of our analysis.

¶21 Each of Alvarez’s three claims on appeal comes within the
ambit of the Plea Withdrawal Statute’s jurisdictional bar. His
first claim is that the district court failed to adequately inquire
into the basis for his asserted dissatisfaction with Appointed
Counsel. See State v. Pursifell, 746 P.2d 270, 273 (Utah Ct. App.
1987) (stating that, when an indigent defendant expresses
dissatisfaction with appointed counsel, “the court must make
some reasonable, non-suggestive efforts to determine the nature
of the defendant’s complaints and to apprise itself of the facts
necessary to determine whether the defendant’s relationship
with his or her appointed attorney has deteriorated to the point
that sound discretion requires substitution”). As Alvarez and
Retained Counsel articulated it to the district court, Alvarez’s
dissatisfaction stemmed from an allegation that Appointed
Counsel, in discussing the potential plea agreement with
Alvarez, raised the specter of the death penalty and indicated
that, if Alvarez went to trial, there was some possibility that he
could be convicted and executed. Thus, the conflict Alvarez hints
at has everything to do with concerns about the propriety of
Alvarez’s guilty plea; indeed, Retained Counsel acknowledged,
at the sentencing hearing, that this issue “go[es] to . . . the
voluntariness of the plea” and that the remedy at this point, if an
impropriety were found, would be the withdrawal of Alvarez’s
plea. Accordingly, because the issues Alvarez identifies concern
the propriety of his plea and have nothing to do with his
sentence, and because Alvarez did not file a timely motion
seeking withdrawal of that plea, the Plea Withdrawal Statute
bars our consideration of Alvarez’s first claim on direct appeal.

¶22 Alvarez’s second claim is that the district court abused its
discretion by not continuing the sentencing hearing to allow
Retained Counsel additional time to investigate the propriety of

20190289-CA 10 2020 UT App 126
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Alvarez’s guilty plea. This is a challenge ultimately aimed at
Alvarez’s plea and conviction, and not a challenge aimed at the
sentence imposed upon Alvarez at the sentencing hearing. The
underlying issue that Retained Counsel wanted extra time to
investigate was the propriety of Alvarez’s plea, with the goal of
eventually filing a motion to withdraw the plea, if supported
after the investigation was complete. Yet Alvarez chose to go
forward with sentencing, without making a motion to withdraw
his plea, even after the district court had denied his motion to
continue, and even after the court asked him directly if he
wanted to make such a motion.

¶23 In this respect, this case is different from State v. Ferretti,
2011 UT App 321, 263 P.3d 553. In Ferretti, the defendant
appeared at his sentencing hearing and made an oral motion to
withdraw his plea, and then sought a postponement of the
sentencing to allow him to file a written version of his motion to
withdraw, supported with additional analysis. Id. ¶ 7. The
district court demanded, as a condition for granting additional
time, that the defendant “articulate a good faith basis for
withdrawing his plea,” and when the defendant could not do so,
the court denied the request for additional time, denied the oral
motion to withdraw the plea, and proceeded with sentencing. Id.
¶ 8. The defendant appealed, and we reversed, holding that “the
district court exceeded its permitted discretion when it failed to
continue [the defendant’s] sentencing to allow for adequate
briefing in support of his plea-withdrawal request.” Id. ¶ 16.

¶24 The clear difference between Ferretti and this case is that,
in Ferretti, the defendant made a motion to withdraw his plea
prior to imposition of sentence, thus satisfying the strictures of
the Plea Withdrawal Statute. In this case, by contrast, Alvarez
expressly declined to do so, both personally and through
counsel, and even after the district court asked him directly if
that is what he wished to do. Where a defendant brings a timely
motion to withdraw the plea, that defendant is entitled to

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challenge, on direct appeal, the court’s resolution of that motion,
including the procedures afforded the defendant in resolving
that motion. See id. ¶¶ 11–16; see also State v. Badikyan, 2018 UT
App 168, ¶¶ 23–28, 436 P.3d 256 (allowing direct appeal
regarding the procedures afforded at the hearing on the timely-
filed plea withdrawal motion), aff’d, 2020 UT 3, 459 P.3d 967. But
where no such motion is timely made, any objections to the
procedures afforded the defendant prior to sentencing may not
be the subject of direct appeal, unless the challenge goes to the
sentence rather than to the conviction. See Nicholls, 2017 UT App
60, ¶ 20 (stating that, “[i]f a defendant does not move to
withdraw the plea, the only direct appeal available is the
residual right to appeal the sentence”); see also Scott, 2017 UT
App 103, ¶ 7 (stating that a defendant’s “failure to seek to
withdraw a guilty plea creates a bar that prohibits this court
from reviewing on direct appeal the plea itself or any proceeding
that led to it”). Here, Alvarez made no timely motion to
withdraw his plea, and his second challenge concerns his
conviction and not his sentence; accordingly, under the Plea
Withdrawal Statute and applicable case law, we have no
jurisdiction to review this challenge on direct appeal.

¶25 Alvarez’s final claim is that Appointed Counsel rendered
ineffective assistance in two respects: first, by “failing to ensure”
that Alvarez’s request for substitute counsel “was properly
addressed” and second, by declining to join Retained Counsel’s
motion to postpone sentencing. As noted above, however, even
claims for ineffective assistance of counsel—which are usually
exempted from preservation requirements—are subject to the
strictures of the Plea Withdrawal Statute. See Rettig, 2017 UT 83,
¶ 34 (stating that the Plea Withdrawal Statute “imposes a strict
sanction of waiver that is not subject to any common-law
exceptions”). And these claims of ineffective assistance concern
themselves directly with whether Alvarez’s plea and conviction
were proper, not his sentence.

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¶26 We have recently held that a claim for ineffective
assistance of counsel that concerned the propriety of a guilty
plea and that was not raised in the first instance with the district
court prior to sentencing could not, under the Plea Withdrawal
Statute, be brought to us on direct appeal. See State v. Harper,
2020 UT App 84, ¶¶ 12–15, 466 P.3d 744. This is exactly the
situation presented here. Alvarez asks us to consider a claim of
ineffective assistance, which claim was never presented to the
district court, and which claim concerns the propriety of his plea.
As we held in Harper, such a claim is barred by the Plea
Withdrawal Statute from our consideration on direct appeal. 3

CONCLUSION

¶27 Alvarez brings no challenge to the propriety of his
sentence. All of Alvarez’s claims, at root, challenge the propriety
of his guilty plea. Yet he made no timely motion to withdraw his
guilty plea, even though he specifically retained two attorneys to
examine the propriety of his plea, and even though the district
court asked him directly if he wanted to make such a motion.
Under these circumstances, the Plea Withdrawal Statute
prevents Alvarez from bringing, on direct appeal, the three
claims he asks us to review. Accordingly, we lack jurisdiction to
review Alvarez’s claims, and therefore dismiss his appeal.

3. Alvarez also filed a motion, pursuant to rule 23B of the Utah
Rules of Appellate Procedure, seeking to supplement the record
to support his claim of ineffective assistance of counsel. Because
we conclude that we are jurisdictionally barred from considering
the merits of that claim in this direct appeal, we deny the rule
23B motion as moot.

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