State v. Badikyan , 2020 UT 3 ( 2020 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 3
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Respondent,
v.
STEPAN BADIKYAN,
Petitioner.
No. 20180883
Heard October 8, 2019
Filed January 30, 2020
On Certiorari to the Utah Court of Appeals
Second District, Farmington
The Honorable David M. Connors
No. 141700828
Attorneys:
Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Solic. Gen.,
Salt Lake City, for respondent
Scott L. Wiggins, Salt Lake City, for petitioner
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 Stepan Badikyan pled guilty to attempted murder. Before
sentencing, he filed a motion to withdraw his plea, which the district
court denied. When Mr. Badikyan appealed this denial to the court
of appeals, he raised a new challenge under the plain-error exception
to the preservation rule. Relying on our recent interpretations of
STATE v. BADIKYAN
Opinion of the Court
Utah’s Plea Withdrawal Statute1 in State v. Rettig2 and
State v. Allgier,3 the court of appeals held that it lacked jurisdiction to
hear Mr. Badikyan’s unpreserved claim. He then petitioned for a
writ of certiorari, which we granted. We affirm the court of appeals.
In so doing, we hold that the Plea Withdrawal Statute bars review of
unpreserved claims raised as part of an appeal from the denial of a
timely plea-withdrawal motion.4
Background
¶2 On May 29, 2014, Mr. Badikyan stabbed his wife in the arm
with a box cutter. He agreed to drive her to the hospital, but on the
way he changed course and told her they were “both going to die
that day.” When Mr. Badikyan stopped at an intersection, his wife
fled the car. He then chased her down, tackled her to the ground,
and stabbed her again with the box cutter, this time in the side and
neck. Several bystanders stopped Mr. Badikyan and held him down
until the police arrived.
¶3 The State charged Mr. Badikyan with three crimes:
attempted murder, evidence tampering, and aggravated assault. He
initially pled not guilty to all three charges. But he later struck a deal
with the State and pled guilty to attempted murder. In exchange, the
State dismissed the other two charges and agreed it would not
oppose Mr. Badikyan when he requested credit for time served.
¶4 At Mr. Badikyan’s change-of-plea hearing, his trial counsel
prepared a plea agreement that listed information about the plea and
the agreed-upon facts. Mr. Badikyan is a native Armenian who
“speaks very little English, and does not read English.” So before he
pled guilty, an interpreter translated the terms of his plea agreement
and assisted him at the change-of-plea hearing.
Mr. Badikyan’s trial counsel stated at the hearing that the interpreter
translated the plea agreement “verbatim word-for-word,” and trial
counsel was confident Mr. Badikyan understood the agreement.
_____________________________________________________________
1 UTAH CODE § 77-13-6.
2 2017 UT 83, 416 P.3d 520.
3 2017 UT 84, 416 P.3d 546.
4 This holding is identical to our holding in State v. Flora, 2020 UT
2, -- P.3d ---, issued concurrently with this opinion.
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Opinion of the Court
Mr. Badikyan also confirmed in a plea colloquy that his plea was
voluntary and that he had been provided an interpreter.
¶5 After the change-of-plea hearing, but prior to sentencing,
Mr. Badikyan timely moved to withdraw his plea by sending a pro se
letter to the district court. He argued in the letter that his plea was
not knowing and voluntary because he “was very stressed and
under much pressure from [his] lawyer.” After receiving this letter,
the district court appointed conflict counsel, who then filed a formal
motion to withdraw Mr. Badikyan’s plea.
¶6 Upon receiving Mr. Badikyan’s formal motion to withdraw,
the district court held an evidentiary hearing, providing a different
interpreter than the one who attended his change-of-plea hearing.
There, Mr. Badikyan testified that his former interpreter
mistranslated his plea agreement. He claimed he “couldn’t
understand everything” that was being read to him at the time of his
plea and, as a result, “pleaded guilty not knowing the entire
situation.” He also testified that trial counsel unduly tried
“convincing” him to enter the plea agreement5 and did not fully
explain the immigration consequences of his plea. Finally,
Mr. Badikyan claimed that mental health issues prevented him from
entering a knowing and voluntary plea.
¶7 The district court denied his motion, ruling that “there were
no specific instances given or particular inaccuracies of translation”
that influenced his plea. It also ruled that trial counsel did not
oversell the plea bargain and clearly communicated its immigration
consequences. Finally, the court ruled that Mr. Badikyan’s mental
health issues did not affect his ability to comprehend the change–of–
plea proceedings.
¶8 Mr. Badikyan appealed this ruling, which was affirmed by
the court of appeals in State v. Badikyan.6 Instead of attacking the
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5 Although Mr. Badikyan’s pro se letter stated he was “under
much pressure from [his] lawyer” when he was asked at the
evidentiary hearing whether he “felt pressured” into taking a guilty
plea, Mr. Badikyan said, “[N]ot really . . . pressure but like
convincing me nicely.” He also testified that at one point he told his
trial counsel and his first interpreter that he did not want to plead
guilty, but that “they started convincing me again saying that if we
were to go for a trial, we have to fight and it will be bad for you.”
6 2018 UT App 168, ¶¶ 1, 29, 436 P.3d 256.
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STATE v. BADIKYAN
Opinion of the Court
district court’s ruling, Mr. Badikyan argued for the first time “that he
did not understand the critical elements of attempted murder.”7
He “concede[d] that he did not present his critical elements theory to
the district court,” but argued he was entitled to present it “under
the plain error exception to the preservation rule.”8
¶9 The court of appeals ruled that, under Utah’s Plea
Withdrawal Statute,9 it lacked jurisdiction to consider
Mr. Badikyan’s unpreserved critical-elements challenge. Invoking
our recent opinions in State v. Rettig10 and State v. Allgier,11 the court
explained that “[t]he standard set forth in the Plea Withdrawal
Statute is both a rule of preservation and a jurisdictional bar on
appellate consideration of matters not properly preserved.”12 Under
this standard, the court concluded that it could not hear Mr.
Badikyan’s critical-elements challenge because he “failed to properly
preserve his legal theory in the district court.”13
¶10 Following this ruling, we granted Mr. Badikyan’s petition
for certiorari. We have jurisdiction pursuant to Utah Code section
78A-3-102(3)(a).
Standard of Review
¶11 Mr. Badikyan raises a single issue: whether the court of
appeals erred in concluding it lacked jurisdiction to consider an
unpreserved claim as part of an appeal from a denial of a timely
motion to withdraw a guilty plea. On certiorari, we “review the
decision of the court of appeals for correctness, without deference to
its conclusions of law.”14
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7 Id. ¶ 17.
8 Id. ¶ 18.
9 UTAH CODE § 77-13-6.
10 2017 UT 83, 416 P.3d 520.
11 2017 UT 84, 416 P.3d 546.
12 Badikyan, 2018 UT App 168, ¶ 22 (quoting Rettig, 2017 UT 83,
¶ 27) (emphasis in original).
13 Id.
14 State v. Lambdin, 2017 UT 46, ¶ 11, 424 P.3d 117 (citation
omitted).
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Opinion of the Court
Analysis
¶12 We granted certiorari to decide whether Utah Code section
77-13-6, the Plea Withdrawal Statute, allows defendants to invoke
our recognized preservation exceptions when appealing a timely
motion to withdraw a guilty plea. We held in State v. Rettig and
State v. Allgier that the statute prohibits appellate review of all
unpreserved plea challenges raised on untimely motions to
withdraw, including those that fall within the traditional exceptions
to the preservation doctrine.15 Now Mr. Badikyan asks us to decide
whether the same is true of new challenges raised on timely motions;
that is, whether he may raise an unpreserved claim on appeal that
falls within one of our preservation exceptions.
¶13 As we explained in Rettig, the Plea Withdrawal Statute
creates a rule of preservation that is separate and distinct
from our common-law preservation doctrine.16 Under our
common-law doctrine, if a party fails to present an issue to the trial
court, an appellate court will address that issue only if it falls within
one of three recognized exceptions: plain error, ineffective assistance
of counsel, or exceptional circumstances.17 We held in Rettig and
Allgier that defendants cannot rely on these common-law
preservation exceptions when appealing the denial of a plea-
withdrawal motion made after sentencing, which violates the Plea
Withdrawal Statute.18 And we clarified that an untimely motion to
withdraw forecloses appellate review of all post-sentencing plea
challenges, including those based on our recognized preservation
exceptions.19
¶14 Mr. Badikyan argues that his case is factually distinct from
Rettig and Allgier because he timely moved to withdraw his plea
before sentencing, as required by the Plea Withdrawal Statute. He
_____________________________________________________________
15 2017 UT 83, ¶ 44, 416 P.3d 520; 2017 UT 84, ¶ 26, 416 P.3d 546;
see also State v. Johnson, 2017 UT 76,
¶ 19, 416 P.3d 443 (explaining that this court recognizes “three
distinct exceptions to preservation: plain error, ineffective assistance
of counsel, and exceptional circumstances”).
16 2017 UT 83, ¶ 44.
17 See Johnson, 2017 UT 76, ¶ 19.
18 2017 UT 83, ¶ 47; 2017 UT 84, ¶ 25.
19 Rettig, 2017 UT 83, ¶ 34; Allgier, 2017 UT 84, ¶ 26; .
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STATE v. BADIKYAN
Opinion of the Court
claims that this factual distinction renders Rettig and Allgier
inapplicable, so his case is controlled by the Plea Withdrawal
Statute’s plain language. And the plain language of the statute, Mr.
Badikyan argues, allows him to raise an unpreserved plea challenge
on appeal if that challenge falls within one of our recognized
preservation exceptions.
¶15 We disagree and affirm the court of appeals’ conclusion that
the Plea Withdrawal Statute bars appellate review of all unpreserved
claims, even those made on appeal of timely motions to withdraw.
Our decisions in Rettig and Allgier, as well as the Plea Withdrawal
Statute’s plain language, mandate this outcome.
I. The Preservation Rule Established in Rettig and Allgier Is Not
Subject to Our Recognized Preservation Exceptions
¶16 We agree with the court of appeals that the Plea Withdrawal
Statute’s preservation rule, as articulated in State v. Rettig and
State v. Allgier, precludes review of Mr. Badikyan’s unpreserved
claim.20 These decisions indicate that the common-law preservation
exceptions do not apply to the statute’s unique preservation rule,
even in cases where a defendant moved to withdraw his or her plea
before sentencing.
¶17 This court has long held that the Plea Withdrawal Statute
“cuts off a defendant’s right to a direct appeal once sentencing is
announced.”21 In Gailey v. State, for example, we declined to hear a
defendant’s post-sentencing attempt to challenge her plea as
unknowing and involuntary because both our case law and the plain
language of the Plea Withdrawal Statute impose “a procedural bar”
on direct appeals once sentencing takes place.22 We have reached
similar conclusions in a line of cases spanning nearly two decades.23
_____________________________________________________________
20 See State v. Badikyan, 2018 UT App 168, ¶ 22, 436 P.3d 256.
21 Gailey v. State, 2016 UT 35, ¶ 2, 379 P.3d 1278.
22 Id. ¶ 16.
23 See id. ¶¶ 14–16 (“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 Withdrawal Statute] deprives the trial court and
appellate courts of jurisdiction to review the validity of the plea.”);
(Continued)
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Opinion of the Court
¶18 We built on this line of precedent in Rettig and Allgier. These
two cases addressed how the Plea Withdrawal Statute affects an
unpreserved issue raised for the first time on a defendant’s untimely
motion to withdraw. Like the defendant in Gailey, the Rettig and
Allgier defendants both tried to withdraw their pleas after
sentencing. But, unlike the defendant in Gailey, both also raised
unpreserved ineffective-assistance-of-counsel claims. Although
ineffective assistance of counsel is an exception to the preservation
doctrine, we clarified that the Plea Withdrawal Statute “does not
allow defendants to work around [its procedural] bar through the
exceptions to preservation.”24 As we explained in Allgier, when
defendants fail to withdraw their pleas before sentencing, they
“waive[] [their] right to a direct appeal” and must pursue
unpreserved challenges under the Post-Conviction Remedies Act
(PCRA).25
¶19 We further clarified in Rettig that, by requiring defendants
to move to withdraw their plea “before sentence is announced,” the
Plea Withdrawal Statute “establishes a standard of preservation”
and “imposes a strict sanction of waiver that is not subject to any
common-law exceptions” like plain error or ineffective assistance of
counsel.26 In other words, the statute “foreclose[s] review for plain
error or ineffective assistance of counsel because [it] speaks directly
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
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 .
24 State v. Allgier, 2017 UT 84, ¶ 26, 416 P.3d 546.
25 Id. ¶ 27.
26 2017 UT 83, ¶ 34, 416 P.3d 520 (citation omitted).
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STATE v. BADIKYAN
Opinion of the Court
and comprehensively to the result of failure to move to withdraw
prior to sentencing.”27
¶20 Mr. Badikyan argues that Rettig and Allgier do not apply to
his case because he complied with the Plea Withdrawal Statute and
moved to withdraw prior to sentencing. It is true that Rettig and
Allgier do not expressly hold that the Plea Withdrawal Statute’s
preservation rule applies to defendants who move to withdraw their
guilty pleas before sentencing.28 But the fact that Mr. Badikyan
_____________________________________________________________
27 Id. ¶ 42.
28 While we have not directly addressed this issue, two of our
past cases—State v. Dean, 2004 UT 63, 95 P.3d 276 and State v. Moa,
2012 UT 28, 282 P.3d 985—implicitly broached the subject. In Dean,
we reviewed an unpreserved plain-error claim raised on appeal of a
timely motion to withdraw a guilty plea. 2004 UT 63, ¶ 6. We did not
address whether the Plea Withdrawal Statute gave us jurisdiction to
do so. Even so, Dean is distinguishable because it dealt with a
previous version of the Plea Withdrawal Statute. Id. ¶ 11. This
version required that defendants move to withdraw “within 30 days
after the entry of the plea” instead of “before sentence is
announced.” UTAH CODE § 77-13-6(2)(a) (1999). It also did not
contain the requirement in subsection (2)(c) that “any challenge” not
made in a timely motion be pursued under the PCRA. Compare UTAH
CODE § 77-13-6 (1999) with UTAH CODE § 77-13-6.
Moa, on the other hand, dealt with the current version of the
Plea Withdrawal Statute. 2012 UT 28, ¶ 29 (citing UTAH CODE
§ 77-13-6). There, the defendant also raised an unpreserved plain-
error argument when appealing the denial of his timely motion to
withdraw. Id. ¶ 12. We granted certiorari to determine not whether
the court of appeals had jurisdiction, but whether it “erred in
holding that Mr. Moa had failed to demonstrate plain error in the
acceptance of his plea.” Id. ¶ 13. And we ultimately held that
Mr. Moa’s plain-error claim was barred under the invited-error
doctrine. Id. ¶¶ 23–25. While this holding presupposes that
plain-error review applied to Mr. Moa’s unpreserved argument—a
presupposition inconsistent with Rettig and Allgier—neither the
parties nor this court identified issues of preservation or jurisdiction.
So to the extent that Moa is inconsistent with Rettig and Allgier, the
preservation and jurisdictional rules established in Rettig and Allgier
govern.
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Opinion of the Court
presented several other timely plea challenges to the district court
before sentencing does not preserve the critical-elements challenge
he now brings for the first time on appeal.29 We do not generally
conceive of preservation in terms of one issue preserving a separate
issue. Rather, preservation typically occurs on an issue-by-issue or
claim-by-claim basis.30 So we take this opportunity to clarify that the
Plea Withdrawal Statute’s preservation rule applies to all plea
challenges made after sentencing, even where a defendant has made
an otherwise timely plea-withdrawal request.
¶21 In Rettig, we explained that the Plea Withdrawal Statute
establishes its own preservation rule that is distinct from the
common-law rule, and to which the common-law preservation
exceptions do not apply.31 And in Allgier, we clarified that the
_____________________________________________________________
29 Mr. Badikyan argued to the district court that his plea was not
knowing and voluntary because his interpreter mistranslated his
plea agreement, his trial counsel pressured him into taking a plea,
and his trial counsel failed to explain the immigration consequences
of pleading guilty. Consequently, on appeal, Mr. Badikyan may raise
only new or controlling legal authority “that directly bears upon”
these “properly preserved issue[s].” Patterson v. Patterson, 2011 UT
68, ¶ 18, 266 P.3d 828.
30 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.”) (emphasis added)
(citation omitted); 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”) (emphases in
original) (citation omitted); O’Dea v. Olea, 2009 UT 46, ¶ 18, 217 P.3d
704 (“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
introduce supporting evidence or relevant legal authority.’”)
(quoting Badger v. Brooklyn Canal Co., 966 P.2d 844, 847 (Utah 1998)).
31 2017 UT 83, ¶ 34 (clarifying that the Plea Withdrawal Statute
“establishes a standard of preservation . . . and it imposes a strict
sanction of waiver that is not subject to any common-law
exceptions . . . .”) (emphasis in original).
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STATE v. BADIKYAN
Opinion of the Court
statute’s preservation rule, much like the common-law rule, requires
a defendant to present an issue to the district court in such a way
that the court “has an opportunity to rule on that issue.” 32 We also
explained that when an appellate court reviews a defendant’s
plea-withdrawal motion, it must “look to whether an issue was
specifically raised in the district court in a timely fashion and
whether evidence or relevant legal authority was introduced to
address the issue.”33
¶22 To comply with the Plea Withdrawal Statute’s preservation
rule, Mr. Badikyan was required to have presented his
critical-elements challenge to the district court in order to give the
court an opportunity to rule on it prior to appeal. His failure to do so
means his critical-elements challenge is unpreserved. Under the
common-law preservation rule, Mr. Badikyan could still raise this
challenge under the plain-error exception. But as we explained in
Rettig and Allgier, this exception does not apply to the Plea
Withdrawal Statute’s separate and distinct preservation rule.
¶23 So even though Mr. Badikyan’s case is somewhat distinct
from Rettig and Allgier, our discussion of the Plea Withdrawal
Statute in those cases strongly suggests that Mr. Badikyan’s failure to
present his critical-elements challenge to the district court forecloses
this challenge on appeal. The statute’s plain language confirms this
conclusion.
II. The Plea Withdrawal Statute’s Plain Language Bars
Mr. Badikyan’s Unpreserved Argument
¶24 The Plea Withdrawal Statute’s plain language reinforces our
conclusion that an appellate court may not consider Mr. Badikyan’s
unpreserved claim. The statute imposes two requirements on
defendants seeking to withdraw a guilty plea. First, subsection (2)(a)
requires a defendant to make a “showing that [his or her guilty plea]
was not knowingly and voluntarily made.”34 Second, subsection
(2)(b) requires that defendants make a “request to withdraw” their
plea “by motion before sentence is announced.”35 Subsection (2)(c) of
_____________________________________________________________
32Allgier, 2017 UT 84, ¶ 25 (citation and internal quotation marks
omitted).
33 Id.
34 UTAH CODE § 77-13-6(2)(a).
35 Id. § 77-13-6(2)(b).
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the statute expressly states that “[a]ny challenge to a guilty plea”
that does not meet these two requirements must be pursued under
the PCRA.36
¶25 Mr. Badikyan argues that the phrase “challenge to a guilty
plea” in subsection (2)(c) refers to a defendant’s plea-withdrawal
motion, and not to the individual claims made therein. In his view,
so long as a defendant moves to withdraw his or her plea before
sentencing, in compliance with subsection (2)(b), appellate courts
may consider unpreserved plea challenges based on the
common-law preservation exceptions. According to
Mr. Badikyan, such unpreserved challenges are just one of the many
different ways a defendant can make a “showing that [his or her
plea] was not knowingly and voluntarily made,” as required by
subsection (2)(a).
¶26 The State, in contrast, argues that the phrase “any
challenge” must refer to the specific legal ground upon which a
defendant attacks his or her plea. Under this reading,
Mr. Badikyan’s plain-error claim is a challenge to a guilty plea made
after sentencing because he raised it for the first time on appeal. And
since he raised it after sentencing, the State argues, this challenge is
barred under subsection (2)(c). We agree with the State.
¶27 When interpreting a statute, our “primary goal” is
ascertaining the legislature’s intent “in light of the purpose that the
statute was meant to achieve.”37 The “best evidence” of legislative
intent is “the plain language of the statute itself.”38 When reading a
statute’s plain language we “assume, absent a contrary indication,
that the legislature used each term advisedly according to its
ordinary and usually accepted meaning.”39 We also “presume[] that
the expression of one [term] should be interpreted as the exclusion of
another.”40 And “[w]herever possible, we give effect to every word
_____________________________________________________________
36 Id. § 77-13-6(2)(c).
37 In re Gestational Agreement, 2019 UT 40, ¶ 19, 449 P.3d 69
(citation and internal quotation marks omitted).
38 Id. (citations and internal quotation marks omitted).
39 Id. (citation and internal quotation marks omitted).
40 Id. (first and second alterations in original) (citation and
internal quotation marks omitted).
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of a statute, avoiding [a]ny interpretation which renders parts or
words . . . inoperative or superfluous.”41
¶28 Here, the legislature’s use of the phrase “request to
withdraw” in subsection (2)(b) and the phrase “[a]ny challenge” in
subsection (2)(c) signals an intent to bar all unpreserved arguments
raised on appeal of plea-withdrawal motions. Assuming the phrase
“any challenge” was used advisedly and to the exclusion of “request
to withdraw,” we conclude that “request to withdraw” refers to a
defendant’s plea-withdrawal motion and that “any challenge” refers
to the specific legal grounds raised within the motion. Under this
interpretation, any specific ground a defendant has for challenging
his or her plea that was not presented to the district court in a pre-
sentence motion to withdraw must be pursued under the PCRA.
¶29 This interpretation allows us to give effect to the Plea
Withdrawal Statute’s every word. If the legislature wanted “any
challenge” to be the equivalent of “request to withdraw,” it would
have repeated the term “request to withdraw” in subsection (2)(c) or
simply said “any such request.” In other words, when subsections
(2)(b) and (2)(c) are read together, it is clear that “any challenge”
must carry a different meaning from the phrase “request to
withdraw.” And we read the phrase “any challenge” as a reference
to specific legal claims, like Mr. Badikyan’s, which are raised for the
first time on appeal.
¶30 Our past interpretations of the term “any” support a broad
reading of “any challenge.” We have previously explained that
“[t]he term any is broadening and inclusive.42 “It is defined as ‘every;
all’ . . . or ‘one or more without specification or identification.’”43
This expansive reading “is the sense of the word given in extensive
judicial constructions of a broad range of statutory provisions, which
consistently recognize the [term’s] broad, encompassing import.”44
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41 State v. Stewart, 2018 UT 24, ¶ 12, 438 P.3d 515 (citation and
internal quotation marks omitted).
42 Graves v. North Eastern Servs., Inc., 2015 UT 28, ¶ 52, 345 P.3d
619 (emphasis in original).
43 Id. (citations omitted).
44 Id. For example, the United States Supreme Court recently
explained that “Congress’ use of the word ‘any’ suggests an intent to
use that term ‘expansive[ly].’” Smith v. Berryhill, 139 S. Ct. 1765, 1774
(Continued)
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¶31 In State v. Outzen, for instance, we relied on this expansive
reading of “any” to hold that a statute criminalizing driving with
“any measurable controlled substance . . . in [a] person’s body”
encompassed more than just “those [substances] that cause
impairment.”45 A more narrow interpretation, we explained, “would
reduce the scope of the statute to less than ‘any’—a result that
[would have been] incompatible with the legislature’s use of the
word any.”46 We read the statute this way even though Mr. Outzen
“was not too impaired to drive.”47
¶32 As in Outzen, if we construed the phrase “any challenge” in
subsection (2)(c) as applying only to challenges made in untimely
motions to withdraw, we would reduce the scope of the Plea
Withdrawal Statute to less than “any.” And while this construction
would let appellate courts consider challenges that, like
Mr. Badikyan’s, arise from timely motions to withdraw, it is
incompatible with the legislature’s use of the word “any.” So we
instead read “any challenge” to include all challenges a defendant
makes after sentencing. And this includes claims of plain error,
exceptional circumstances, and ineffective assistance of counsel
raised on appeal of an otherwise timely plea-withdrawal motion.
¶33 This broad reading of “any challenge” forecloses appellate
review of Mr. Badikyan’s critical-elements challenge. Subsection
(2)(b) of the Plea Withdrawal Statute required Mr. Badikyan to
present this challenge to the district court before he was sentenced.
Because he did not do so, he must, under the plain language of
subsection (2)(c), pursue it under the PCRA. So the court of appeals
correctly held that it could not consider Mr. Badikyan’s unpreserved
claim. The plain language of the Plea Withdrawal Statute 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.48 Mr. Badikyan’s
(2019) (alteration in original) (internal quotation marks omitted); see
also Graves, 2015 UT 28, ¶ 52 n.4 (collecting additional United States
Supreme Court cases with broad readings of the term “any”).
45 2017 UT 30, ¶ 11, 408 P.3d 334 (emphasis in original).
46 Id. (emphases in original).
47 Id. ¶ 1.
48Because we find that the Plea Withdrawal Statute is not
ambiguous, we need not reach Mr. Badikyan’s claim that the rule of
(Continued)
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unpreserved claim is thus barred by the Plea Withdrawal Statute’s
plain language.
Conclusion
¶34 We affirm the court of appeals, and hold that the Plea
Withdrawal Statute bars appellate review of unpreserved claims
raised as part of an appeal of a timely motion to withdraw a guilty
plea. This result is mandated by both the Plea Withdrawal Statute’s
plain language and its rule of preservation. Subsection (2)(c) of the
statute unequivocally requires that “any challenge” not presented to
the district court in a timely plea-withdrawal motion—including an
unpreserved challenge that otherwise qualifies for a common-law
preservation exception—must be pursued under the PCRA. And as
we explained in Rettig and Allgier, the Plea Withdrawal Statute
creates its own preservation rule that is not subject to the
common-law preservation exceptions. This rule, as a creature of
statute, applies regardless of whether a defendant has already raised
other claims in a timely plea-withdrawal motion.
lenity requires us to adopt his preferred reading. “The rule of lenity
requires that we interpret an ambiguous statute in favor of lenity
toward the person charged with criminal wrongdoing.” State v.
Rasabout, 2015 UT 72, ¶ 22, 356 P.3d 1258. But, as the State points out,
even if we found the Plea Withdrawal Statute ambiguous, the rule of
lenity applies only to the construction of ambiguous penal laws. Id.
¶ 22 n.43. The Plea Withdrawal Statute is not a penal law because it
does not “impose[] a disability for the purposes of punishment” or
“reprimand” a wrongdoer, but instead exists to “accomplish some
other legitimate governmental purpose.” Trop v. Dulles, 356 U.S. 86,
96 (1958); see also Sinclair Oil Corp. v. Atl. Richfield Co., 720 F. Supp.
894, 899 (D. Utah 1989) (explaining that penal laws “are those
imposing punishment for an offense committed against the state”
that “the executive of the state has the power to pardon.”) (quoting
Huntington v. Attrill, 146 U.S. 657, 667 (1892)).
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