This opinion is subject to revision before final

publication in the Pacific Reporter

2017 UT 83

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Appellee,

v.

BENJAMIN DAVID RETTIG,

Appellant.

No. 20131024

Filed November 22, 2017

On Direct Appeal

Fourth District, American Fork Dep’t

The Honorable Thomas Low

No. 101101668

Attorneys:

Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Att’y Gen.,

Salt Lake City, for appellee

Steve S. Christensen, Clinton Brimhall, Salt Lake City, for appellant

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in 

which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, and JUSTICE PEARCE

joined.

JUSTICE DURHAM filed an opinion concurring in the result.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 Benjamin Rettig pled guilty to aggravated murder and 

aggravated kidnapping. Three days before his sentencing hearing 

and while represented by counsel, Rettig attempted to withdraw his 

guilty plea by submitting a pro se letter to the district court. Rettig 

later acquired new counsel, who moved to withdraw Rettig’s pro se

motion. The court subsequently sentenced Rettig to terms of twenty-
STATE v. RETTIG

Opinion of the Court

2

five years to life for aggravated murder and fifteen years to life for 

aggravated kidnapping, with the sentences to run concurrently.

¶2 Rettig urges us to set aside his guilty plea on direct appeal, 

contending that the district court erred in accepting his plea because 

his plea affidavit does not establish the necessary facts to sustain a 

conviction for his charges. He also asserts a claim for ineffective 

assistance of counsel. Recognizing that this court has long held that 

it cannot review a defendant’s guilty plea unless he has complied 

with Utah’s Plea Withdrawal Statute, UTAH CODE § 77-13-6, Rettig 

also challenges this statute as unconstitutional. He argues that

section 77-13-6(2) infringes his right to an appeal under article I, 

section 12 of the Utah Constitution. And he urges us to hold that the 

legislature lacks the constitutional power to require that he pursue 

his claim through the Post-Conviction Remedies Act, as set forth in 

section 77-13-6(2)(c).

¶3 We affirm. We do so substantially on grounds set forth in 

the concurring opinion in Gailey v. State, 2016 UT 35, 379 P.3d 1278 

(Lee, A.C.J., concurring). The majority in Gailey held that the Plea 

Withdrawal Statute “does not on its face violate the constitutional 

right to appeal.” Id. ¶ 11. We confirm Gailey’s holding and threshold 

premise. But we also decide an issue that the Gailey majority did not 

reach. We hold that the Plea Withdrawal Statute is constitutional as 

applied because the statute does not foreclose an appeal but simply 

sets a rule of preservation and imposes a sanction (waiver of the 

issue on appeal) for the failure to follow that rule.

I

¶4 In November 2009, Benjamin Rettig and Martin Bond 

traveled from Vernal, Utah, to the home of Kay Mortensen in 

Spanish Fork, Utah.1 Mortensen owned a large supply of firearms 

that were located in a “bunker” behind his home. Bond and Rettig 

traveled to his home with the intent to steal some of his firearms. The 

two entered Mortensen’s home with a handgun while wearing ski 

masks and latex gloves. They zip tied Mortensen and demanded that 

he show them where his firearms were stored. After Mortensen 

showed them the bunker, Rettig and Bond took him to an upstairs 

bathroom. Bond ordered Mortensen to kneel down in front of the tub 

with his back toward Bond and Rettig. At this point Rettig was 

holding the handgun and pointing it at Mortensen. Bond withdrew a 

_____________________________________________________________

1 The facts as to the underlying crime are taken from the 

Statement of Defendant in Support of Guilty Plea or No Contest and 

Certificate of Counsel Rettig filed in the district court.
Cite as: 2017 UT 83

Opinion of the Court

3

knife from his pocket and then put it back. Bond then went 

downstairs while Rettig held Mortensen at gunpoint. Bond returned 

with a larger knife. Rettig then watched as Bond killed Mortensen by 

slicing his throat multiple times and stabbing him in the base of the 

neck.

¶5 A short time later Pamela and Roger Mortensen knocked on 

Mortensen’s door. Rettig ran downstairs and hid behind the front 

door with the handgun while Bond opened the door. When Pamela 

and Roger entered the home, Rettig ordered them into the living 

room where he and Bond placed zip ties on their hands and feet. 

Bond went into the kitchen and returned with another knife. This 

time Rettig stepped in front of Bond and told him not to kill Pamela 

and Roger. Rettig stayed in the living room with the handgun while 

Bond removed approximately twenty-five firearms along with 

ammunition and placed them in their vehicle. Bond and Rettig told 

Roger and Pamela to inform the “police that three black men had 

tied them up and [that] if they told the police a different story, 

[Rettig and Bond] knew where they lived and . . . would come back 

and kill them.”

¶6 It was not until December 2010 that police arrested Rettig 

and Bond. Rettig was charged with aggravated murder (a capital 

offense), two counts of aggravated kidnapping, and aggravated 

burglary. Rettig obtained counsel and entered a plea agreement 

whereby he pled guilty to one count of aggravated murder and one 

count of aggravated kidnapping. As part of the plea agreement the 

prosecutor dropped the other charges, agreed not to seek the death 

penalty, and agreed to recommend the possibility of parole.

¶7 Approximately six weeks later, while still represented by his 

original counsel, Rettig sent a pro se letter to the district court seeking 

to withdraw his guilty plea. He was concerned that his attorney 

“never asked [him for] an entire statement regarding the events” 

surrounding the murder. He also raised other concerns. At that point 

Rettig’s counsel withdrew. Rettig then obtained new counsel.

¶8 During the sentencing hearing Rettig’s new counsel 

explained to the district court that he had reviewed Rettig’s motion 

to withdraw and had a “very candid, very open” discussion with his 

client about his case with some of his staff present. Rettig’s new 

counsel explained to the court that during their discussion he 

determined that Rettig’s motion was based on a “misunderstanding 

of the application of certain legal terminologies—explained to [Rettig 

by] . . . jailhouse lawyers”—which led Rettig to have “a false 

impression on what the law was.” To address Rettig’s concerns, the 

new counsel had Rettig explain “at length” the facts of the case and 
STATE v. RETTIG

Opinion of the Court

4

“gave him numerous opportunities to adjust his facts.” His counsel 

then explained the “legal issues” and “why [Rettig’s] arguments 

weren’t wholly accurate.” He explained to his client “what the law 

was and also how those facts that he provided . . . fit into the 

category of” the charged crimes. Based on these interactions, the new 

counsel withdrew Rettig’s pro se motion to withdraw his guilty plea. 

The district court proceeded with the sentencing hearing on 

December 13, 2011. 

¶9 Rettig later filed this appeal. On appeal he seeks to set aside 

his guilty plea.

II

¶10 Utah’s Plea Withdrawal Statute controls the timing and 

grounds for a motion to withdraw a guilty plea. The statute requires 

that the “request to withdraw . . . be made by motion before sentence 

is announced,” UTAH CODE § 77-13-6(2)(b), and that the defendant 

show that the “plea of guilty . . . was not knowingly and voluntarily 

made,” id. § 77-13-6(2)(a). A defendant who fails to seek to withdraw 

a guilty plea before sentencing is left to raise the issue in a petition 

filed under the Post-Conviction Remedies Act (PCRA). Id. § 77-13-

6(2)(c).

¶11 Rettig advances three grounds for establishing that his 

guilty plea was involuntary. He argues first that his original counsel 

was ineffective for advising him to plead guilty, second that his later 

counsel was ineffective for withdrawing Rettig’s pro se motion to 

withdraw his guilty plea, and lastly that the facts in his plea affidavit 

cannot establish sufficient intent for accomplice liability for 

aggravated murder. We do not reach the merits of these claims 

because we conclude that we lack appellate jurisdiction to address 

them given that Rettig failed to preserve his claims by not 

withdrawing his guilty plea until after sentencing.

¶12 Recognizing our long line of precedents holding that we 

lack appellate jurisdiction to review untimely withdrawals of guilty 

pleas, Rettig contends that the Plea Withdrawal Statute is 

unconstitutional. He advances two principal grounds for challenging 

the statute. First he argues that the statute violates his right to appeal 

under article I, section 12 of the Utah Constitution, which provides 

defendants “the right to appeal in all cases.” Second he claims that 

the legislature lacks the constitutional power to require that he 

pursue his claim in a PCRA proceeding. See UTAH CODE § 77-13-

6(2)(c).

¶13 We reject Rettig’s constitutional challenges. We conclude 

that the Plea Withdrawal Statute does not infringe the constitutional 
Cite as: 2017 UT 83

Opinion of the Court

5

right to appeal because it does not foreclose an appeal but simply 

establishes a rule of preservation. And we uphold the 

constitutionality of the subsection (2)(c) reservation of a right to file a 

post-conviction petition under the PCRA.

A

¶14 Rettig first argues that the Plea Withdrawal Statute infringes 

his right to appeal under article I, section 12 of the Utah 

Constitution. Section 12 gives criminal defendants “the right to 

appeal in all cases.” UTAH CONST. art. I, § 12. Rettig asserts that the 

statute’s timing requirement forecloses his right to a direct appeal.

¶15 This court recently confronted this issue in Gailey v. State, 

2016 UT 35, 379 P.3d 1278. Gailey held that the Plea Withdrawal 

Statute “does not on its face violate the constitutional right to 

appeal.” Id. ¶ 11. The court characterized the statute as a “procedural 

bar” on a defendant’s right to withdraw a guilty plea after 

sentencing. Id. We confirm Gailey’s holding and threshold premise.

¶16 The Gailey majority left open an additional question—

whether the Plea Withdrawal Statute could be applied in a manner 

infringing the state constitutional right to appeal. Id. The majority 

opinion deemed that question unripe because the appellant retained 

a right to challenge the validity of her plea in a post-conviction 

review proceeding, complained only about the lack of a right to 

counsel under the PCRA, and could eventually be entitled to counsel 

in a future proceeding under the PCRA. Id. Given the likelihood that 

Gailey might ultimately be afforded the core element of an appeal 

that she claimed to be lacking under the PCRA, the majority in Gailey

reserved for another day an answer to the question whether the Plea 

Withdrawal Statute could be applied in a manner infringing the 

constitutional right to an appeal.

¶17 We now reach the question left unanswered in Gailey. And 

we resolve this case on the grounds set forth in the concurring 

opinion in Gailey, id. (Lee, A.C.J., concurring), and reinforced by State 

v. Allgier, 2017 UT 84, __ P.3d __. The Gailey concurrence noted that 

“[t]he Plea Withdrawal Statute does not foreclose an appeal” but 

simply establishes a rule of preservation or waiver. Gailey, 2016 UT 

35, ¶ 34. It also observed that this effect of the Plea Withdrawal 

Statute is hardly novel. “Rules of this sort are commonplace.” Id. 

¶ 35. “They are embedded in our caselaw under the law of 

preservation and reflected in our rules of procedure.” Id. (footnote 

omitted). Such rules establish standards of preservation: They 

“require parties to raise issues or arguments at specified times and 

by certain means.” Id. And they establish a sanction for the failure to 

preserve: “[T]hey treat a failure to comply [with the preservation 
STATE v. RETTIG

Opinion of the Court

6

standard] as a waiver of the right to raise such issues later in the 

litigation.” Id.

¶18 This highlights the core defect in Rettig’s argument. Rules 

requiring preservation of an issue at specific times and by required 

means “have never been thought to impinge on the constitutional 

right to an appeal.” Id. ¶ 36. Such rules simply establish the concept 

of waiver in litigation. And that is uncontroversial.

¶19 “Rules of preservation and waiver or forfeiture always 

foreclose the right to raise an issue on appeal.” Id. ¶ 43. “They cannot 

be unconstitutional on that basis alone, unless we are prepared to 

say that such rules are per se unconstitutional.” Id. And of course we 

cannot so conclude. Rules of preservation are a longstanding 

component of the law of procedure in the trial courts. We hold that 

such rules do not infringe the right to an appeal.

¶20 The Plea Withdrawal Statute is like rule 12 of the rules of 

criminal procedure. Both set timing requirements for the filing of 

certain motions (a preservation rule). And both prescribe sanctions 

for the failure to meet the required deadline (waiver, with a bar on 

even plain error review). 

¶21 Such rules do not “foreclose an appeal.” Id. ¶ 34. They 

simply prescribe a sanction for the failure to satisfy the timing 

deadlines set forth in the rule. And that effect is as wide-ranging as it 

is commonplace. We would not think to strike down criminal rule 12 

as foreclosing the state constitutional right to an appeal. We would 

reject that claim on the ground that rules of preservation and waiver 

simply narrow the issues to be raised on appeal.

¶22 We reach that same conclusion here. We hold that the Plea 

Withdrawal Statute is not an infringement of the state constitutional 

right to an appeal because it does not foreclose an appeal but only 

narrows the issues that may be raised on appeal. 

¶23 In so concluding we are not suggesting that no timing 

requirement could infringe a criminal defendant’s right to appeal. A 

thirty-minute filing requirement for a notice of appeal would 

undoubtedly infringe the state constitutional right to appeal. And 

perhaps an “absurdly short” time window for withdrawal of a guilty 

plea would be similarly problematic. Infra ¶ 109. If an operative rule 

of preservation eliminates any meaningful avenue for appellate 
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Opinion of the Court

7

review then it could certainly be said to infringe the important right 

to an appeal.2 

¶24 But Rettig is not challenging the Plea Withdrawal Statute 

on this ground. The argument here goes not to the length of the time 

window for filing a motion to withdraw a guilty plea but to the 

procedural bar imposed for missing that filing deadline. And that 

effect of the Plea Withdrawal Statute is hardly unusual. We cannot 

strike it down on that basis unless we are willing to call into question 

any of a range of case-based or rules-based principles of preservation 

and waiver. We uphold the Plea Withdrawal Statute on that basis. 

The statute does not infringe the constitutional right to appeal but 

only sets the terms and conditions for preservation and waiver.

¶25 The concurrence resists this approach on the ground that 

rules of preservation or waiver are always subject to exceptions—for 

plain error or ineffective assistance of counsel. See infra ¶¶ 88–90. 

Because our cases have treated the Plea Withdrawal Statute as 

establishing a “jurisdictional” bar not subject to plain error review, 

the concurrence claims that my approach will unsettle our case law 

in this field. Infra ¶¶ 91–93.

¶26 This is a false dichotomy. Not every rule of preservation or 

waiver is subject to a plain error or ineffective assistance of counsel 

exception. Some such rules are “jurisdictional” in the sense of 

foreclosing these exceptions. The Plea Withdrawal Statute is 

unquestionably that kind of rule. But it is also unquestionably a rule 

of preservation or waiver—not a statute barring an appeal. 

¶27 The 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. This is not unique 

to the Plea Withdrawal Statute. Some of the preservation standards 

in our rules of procedure are along the same lines—they prescribe a 

rule of preservation and establish a waiver sanction that stands as a 

jurisdictional bar on appellate consideration of matters not properly 

preserved. See, e.g., UTAH R. CIV. P. 12(h); UTAH R. CRIM. P. 12(f); infra 

_____________________________________________________________

2 An unreasonably short deadline foreclosing meaningful access 

to the judicial system could also potentially be challenged under the 

Open Courts Clause or Due Process Clause. But no such claim has 

been asserted here, and we express no opinion on the merits of these 

challenges.
STATE v. RETTIG

Opinion of the Court

8

¶¶ 28–33 (discussing these rules and explaining that a preservation 

rule can establish a jurisdictional bar on appeal).

1

¶28 The law of preservation or waiver is diverse. Some such 

rules are set forth in common law decisions of this court. Our cases, 

for example, articulate the general rule that an appellant may not 

raise an error on appeal unless he has given the trial court a 

meaningful opportunity to avoid that error below. See, e.g., Hill v. 

Superior Prop. Mgmt. Servs., Inc., 2013 UT 60, ¶ 46, 321 P.3d 1054. This 

is the common law of preservation. And this general rule is subject 

to exceptions established by our case law—principally in the 

doctrines of plain error and ineffective assistance of counsel. State v. 

Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (plain error); State v. Griffin, 

2016 UT 33, ¶ 22, 384 P.3d 186 (ineffective assistance of counsel).

¶29 Other rules of preservation or waiver are set forth in the 

rules of procedure promulgated by this court. The criminal rules, for 

example, require that certain motions (like a motion for a change of 

venue) be made “not later than 14 days after the party learns” of the 

“grounds” for the motion, UTAH R. CRIM. P. 29(d)(5), and that others 

(such as a request for severance of charges) “be raised at least 7 days 

prior to the trial,” id. 12(c). Standards of preservation or waiver also 

appear in criminal rules 19 and 24. See also id. 19(e) (requiring that a 

party raise an objection to a written jury instruction “before the 

instructions are given to the jury”); id. 24(c) (mandating that a 

motion for new trial be made “not later than 14 days after entry of 

the sentence, or within such further time as the court may fix”). 

¶30 The operative rule on preservation and waiver in the civil 

realm is civil rule 12. Rule 12(a) generally requires a defendant to 

“serve an answer within 21 days after the service of the summons 

and complaint is complete.” UTAH R. CIV. P. 12(a). It also says that 

this general standard is altered where the defendant files a “motion 

under this rule”—the answer is then due “within 14 days after notice 

of the court’s action.” Id. 12(a)(1). Civil rule 12 also says that certain 

matters must be raised by motion. It says that a defense of lack of 

jurisdiction, venue, insufficiency of process or service, failure to state 

a claim, or failure to join an indispensable party, should be raised by 

a motion filed “before pleading if a further pleading is permitted.” 

Id. (12)(b).

¶31 Rule 12 also prescribes the consequence—typically 

waiver—resulting from the failure to follow these rules of 

preservation. It states that the failure to include in a motion a defense 
Cite as: 2017 UT 83

Opinion of the Court

9

“then available which this rule permits to be raised by motion” 

forecloses the party’s right “thereafter” to “make a motion based on 

any of the defenses or objections so omitted, except as provided in 

subdivision (h).” Id. 12(g). And rule 12(h) sets forth an express 

sanction of waiver. See id. 12(h) (waiver of certain defenses if not 

presented by motion or answer or reply).

¶32 The above rules may or may not be subject to common law 

exceptions to the case-based rule of preservation. It all depends on 

the language and structure of the applicable rule of procedure. A 

motion for severance of criminal charges, for example, would be 

deemed to be waived under criminal rule 12 if made for the first time 

after trial—without regard to the “plainness” of any error in the 

failure to sever.3 The same goes for the preservation rules in civil 

rule 12. We would not allow a waived 12(b)(4) motion for 

insufficiency of process to be made at trial no matter how plain the 

insufficiency of process. That is because the preservation standards in 

both criminal rule 12 and civil rule 12 are clear and comprehensive—

they occupy the field and would be undermined by the invocation of 

a plain error exception.4

¶33 This is a principle of waiver that goes to our appellate 

“jurisdiction.” The waiver sanction prescribed by criminal rule 12 

and civil rule 12 is “jurisdictional” in the sense that it forecloses 

_____________________________________________________________

3 See United States v. Weathers, 186 F.3d 948, 955 (D.C. Cir. 1999)

(holding that waiver of a rule 12 defense leaves an appellate court 

“without authority to reverse a conviction” on plain error grounds; 

noting that a plain error exception to rule 12 would mean that rule 

12(f) “would have no consequence”).

4 Granted, not every “procedural rule with a time restriction” is 

an issue of preservation establishing a “jurisdictional” bar. Infra

¶¶ 77, 132. Some of the preservation standards in our rules of 

procedure surely leave room for plain error analysis. Criminal rule 

19, for example, expressly states that a jury instruction that is not 

challenged as required under the rule “may not be assigned as error 

except to avoid a manifest injustice.” UTAH R. CRIM. P. 19(e). And we 

have interpreted that as an invocation of the plain error exception. 

See State v. Casey, 2003 UT 55, ¶¶ 39–40, 82 P.3d 1106 (noting that 

“‘manifest injustice’ is synonymous with the ‘plain error’ standard”). 

But that supports my point: some preservation rules are subject to an 

exception for review for plain error and others are not; it all depends 

on the language and structure of the rule.
STATE v. RETTIG

Opinion of the Court

10

appellate consideration of the merits of the waived matter.5 If a party 

who has waived a severance or service of process defense in the 

district court seeks to raise it on appeal we would say that the merits 

of that defense falls outside the jurisdiction of the appellate court. Cf. 

United States v. Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002) (the failure 

to allege lack of probable cause in a pre-trial motion to suppress 

“places the issue beyond the scope of our ability to review for plain 

error” (citation omitted)).

¶34 Thus, the dichotomy put forward by the concurrence is 

mistaken. It is not correct to say that the Plea Withdrawal Statute 

must either establish a jurisdictional bar or announce a rule of 

preservation. See infra ¶¶ 87–90 (advancing the view that the statute 

was once viewed as a rule of preservation but has since been 

characterized as establishing a rule of jurisdiction). It is both. It 

establishes a standard of preservation—a motion to withdraw a 

guilty plea must be filed “before sentence is announced,” UTAH 

CODE § 77-13-6(2)(b)—and it imposes a strict sanction of waiver that 

is not subject to any common-law exceptions (such as plain error).

¶35 Thus, it is not correct to say that rules of “[w]aiver and 

preservation do not create [a] jurisdictional bar.” Infra ¶ 94. Nor can 

we properly say that “the jurisdiction of our courts ‘is established 

[only] by the Utah Constitution and by statute.’” Infra ¶ 70 (quoting 

S. Utah Wilderness All. v. Bd. of State Lands & Forestry of State, 830 P.2d 

233, 234 (Utah 1992)). Rules of preservation and waiver may 

sometimes create a “jurisdictional bar”; they do so in the sense that 

they foreclose the power of the court to consider issues not properly 

_____________________________________________________________

5 We have never held that criminal or civil rule 12 is 

“jurisdictional,” see infra ¶ 77, but the language and structure of 

these rules indicate that they impose a jurisdictional bar. And courts 

in other jurisdictions have treated them as so doing. See Weathers, 186 

F.3d at 955 (holding that criminal rule 12 not subject to plain error 

review and noting that the rule thus deprives an appellate court of 

“authority to reverse a conviction” on waived grounds); United States 

v. Green, 691 F.3d 960, 965 (8th Cir. 2012) (“[U]ntimely objections that 

come within the ambit of [civil rule 12] must be considered waivers 

and may not be revived on appeal.” (second alteration in original) 

(citation omitted)). 

Our point is not to treat “every statute and procedural rule with a 

time restriction” as jurisdictional. See infra ¶ 132. It is to note that 

some such timing rules establish a jurisdictional bar; and that the 

Plea Withdrawal Statute fits that mold.
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Opinion of the Court

11

preserved and barred by a principle of waiver. And the power to 

regulate this kind of “jurisdiction” is not vested exclusively (or even 

principally) in the legislature; this kind of “jurisdictional bar” is a 

proper subject for our rules of procedure.

¶36 The confusion in the concurrence’s opinion on these points 

flows from an oversimplification of the term “jurisdiction.” “The 

notion of ‘jurisdiction’ is a slippery one.” In re Adoption of B.B., 2017 

UT 59, ¶ 125, __ P.3d__ (Lee, A.C.J., opinion of the court in part).

“This is a word that means different things in different 

circumstances.” Id. “Sometimes it is used to characterize the scope of 

a court’s power to issue a certain form of relief.” Id. But this is not the 

only operative principle of “jurisdiction.” When we speak of subjectmatter jurisdiction we are speaking of “statutory limits on the class 

of cases assigned to the authority of a certain court” and “other 

limits that go to the concept of justiciability.” Id. ¶ 129.

¶37 The concurrence is right to note that the constitutional 

authority to regulate subject-matter jurisdiction is vested in the 

legislature. Infra ¶ 70. To the extent we are talking about subjectmatter jurisdiction it is correct to say that jurisdiction is not regulated 

by our rules of preservation. Infra ¶ 70. But it does not follow that 

rules of preservation and waiver cannot establish a “jurisdictional 

bar.” Such rules do that quite routinely. Criminal and civil rules 12 

are prime examples. These rules establish a “procedural bar” on the 

issues that may be raised on appeal. In that sense they regulate 

“jurisdiction” by limiting “the scope of a court’s power to issue a 

certain form of relief.” In re Adoption of B.B., 2017 UT 59, ¶ 125 (Lee, 

A.C.J., opinion of the court in part).

¶38 Preservation rules are well within our constitutional power. 

“[T]he Utah Constitution does” indicate that this sort of jurisdictional 

bar is a matter within our power to regulate by the promulgation of 

a rule of procedure. Infra ¶ 70 (emphasis added). We have the power 

to promulgate this kind of rule because it is procedural. See infra

¶ 119. And the effect of this kind of rule is properly viewed as 

“jurisdictional” in the narrow sense of regulating the scope of a 

court’s authority to address a certain issue.6

_____________________________________________________________

6 The concurrence contends that rules of procedure cannot be 

jurisdictional because “we can simply amend those rules tomorrow.” 

Infra ¶ 79. But our authority to promulgate and amend rules of 

procedure does not encompass the right to ignore the rules once 

(continued . . .)
STATE v. RETTIG

Opinion of the Court

12

¶39 Thus, we cannot properly say that “[p]reservation is only 

an issue in cases in which we have jurisdiction.” Infra ¶ 97. That may 

hold for subject-matter jurisdiction.

7 But not for the more limited 

notion of jurisdiction in the sense of power to reach a certain 

question presented. An issue raised on appeal may be procedurally 

barred on the ground that it was not preserved and accordingly 

waived. And at least sometimes such issues will be subject to a 

“jurisdictional bar”—the kind of bar we treat as unaffected by 

common-law exceptions such as “plain error.” 

¶40 Our appellate jurisdiction is limited by both statute and by 

rules of civil and appellate procedure. But they do so in different 

ways. Our rules generally inform and circumscribe our jurisdiction 

in the sense of limiting our authority to decide certain issues. The 

statutes cited by the concurrence, see infra ¶ 99 & n.25, on the other 

hand, generally regulate our subject-matter jurisdiction. 

¶41 Thus, the concurrence’s conclusions are overbroad. They 

suffer from an oversimplification of the multi-faceted term 

“jurisdiction.” Once we clarify that the notion of a “jurisdictional 

bar” goes to a narrow notion of jurisdiction—to the idea of a court’s 

authority to reach a certain issue—it becomes clear that the Plea 

Withdrawal Statute is both a rule of preservation and waiver and a 

rule of jurisdiction. 

¶42 We interpret the statute to foreclose review for plain error 

or ineffective assistance of counsel because the statute speaks 

directly and comprehensively to the result of failure to move to 

_____________________________________________________________

(continued . . .)

adopted—or to decline to impose the sanction for failing to follow 

them. And our power to amend a rule does not mean that it is not 

jurisdictional.

7 This narrow notion of jurisdiction is not a “subset” of subjectmatter jurisdiction. See infra ¶ 74. We have subject-matter jurisdiction 

to review plea withdrawals. And we may exercise that jurisdiction in 

every case except where the appellant has failed to withdraw the 

plea before sentencing, in which case we lose appellate jurisdiction. 

The concurrence acknowledges that we do not lose subject-subject 

matter jurisdiction in an analogous situation—when a party fails to 

file a timely notice of appeal. Infra ¶ 80. And the timing requirement 

is “jurisdictional in nature” because an “appellate court simply has 

no power to hear the case if a notice of appeal is untimely.” State v. 

Collins, 2014 UT 61, ¶ 22, 342 P.3d 789.
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Opinion of the Court

13

withdraw prior to sentencing. It does so by stating that “[a]ny 

challenge to a guilty plea not made within the time period specified 

in Subsection (2)(b) shall be pursued” under the PCRA. UTAH CODE 

§ 77-13-6(2)(c). And our cases have characterized this effect as 

“jurisdictional.” See State v. Merrill, 2005 UT 34, ¶ 20, 114 P.3d 585

(section 77-13-6(2)(b) is “jurisdictional”); State v. Reyes, 2002 UT 13, 

¶ 3, 40 P.3d 630 (same).

¶43 But that doesn’t mean that the statute is not prescribing a 

rule of preservation. The jurisdictional effect of the Plea Withdrawal 

Statute is the same as the jurisdictional effect of criminal rule 29 on a 

motion to sever, or civil rule 12 on an insufficiency of process 

motion. The statute and these rules all do the same thing: (a) they set 

a time for filing a particular kind of motion (a rule of preservation); 

(b) they prescribe a consequence for failing to file in time (waiver of 

the issue); and (c) they preclude consideration of the merits of the 

issue on appeal (in a manner we treat as jurisdictional).

¶44 That shows that the dichotomy advanced by the 

concurrence is a false one. The Plea Withdrawal Statute is not 

different in kind from at least some of the standards of preservation 

and waiver in our rules of procedure. And for that reason the statute 

can easily be viewed as establishing both a preservation rule and a 

waiver sanction that stands as a jurisdictional bar on appellate 

review even for plain error or ineffective assistance of counsel.

2

¶45 The approach we take today is consistent with the approach 

this court took in State v. Gibbons, 740 P.2d 1309, 1311 (Utah 1987), 

under the 1980 version of the Plea Withdrawal Statute. The statute at 

issue in Gibbons is quite distinct from the one in place now. The 1980 

statute “set[] no time limit for filing a motion to withdraw [a guilty]

plea.” Gibbons, 740 P.2d at 1311. With that in mind, the Gibbons court 

was concerned about the possibility that a motion to withdraw could 

be filed while the case was pending on appeal—either mooting the 

current appeal (if the motion were granted) or at least introducing 

“the possibility of appeals from two different judgments in the same 

criminal case.” Id. On that basis the Gibbons court “remand[ed] the 

case to enable the defendant to file a motion to withdraw his guilty 

pleas” while “retain[ing] jurisdiction over the case for any necessary 

future action.” Id. 

¶46 Our cases later viewed Gibbons as opening the door to 

consideration of the merits of an unpreserved motion to withdraw a 

guilty plea “if plain error or exceptional circumstances exist[ed].” 

State v. Marvin, 964 P.2d 313, 318 (Utah 1998), superseded by statute as 
STATE v. RETTIG

Opinion of the Court

14

stated in Reyes, 2002 UT 13, ¶ 4. But that was premised on the 

analysis in Gibbons—which turned on the language and structure of 

the then-controlling version of the Plea Withdrawal Statute (which 

set no time limit on a motion to withdraw). The Gibbons line of cases, 

in other words, viewed the 1980 Plea Withdrawal Statute as 

establishing no standard of preservation to begin with (no time limit 

on filing a motion). Alternatively, these cases can be understood to 

view the 1980 statute as opening the door to plain error review of the 

merits of an unpreserved motion to withdraw because the statute set 

no time limit. But that is not because rules of preservation are always 

subject to plain error review. It is because the court viewed the 

controlling statute to be open to such review.

¶47 And that conclusion cannot hold under the current version 

of the Plea Withdrawal Statute. That statute sets a strict rule of 

preservation—a requirement that a motion to withdraw be filed 

before the sentence is imposed. UTAH CODE § 77-13-6(2)(b). And it 

prescribes a strict waiver sanction that forecloses review for plain 

error on direct appeal. Id. § 77-13-6(2)(c) (“Any challenge to a guilty 

plea not made within the time period specified in Subsection (2)(b) 

shall be pursued under” the PCRA. (emphasis added)).

¶48 This was the basis for our decision to decline to extend 

Marvin to the amended version of the Plea Withdrawal Statute at 

issue in Reyes, 2002 UT 13, ¶ 4. Our point in Reyes was not that 

statutory standards for filing plea withdrawal motions go inherently 

to “jurisdiction” and not “preservation” (as the concurrence here 

suggests). It was that the 1989 amendment to the Plea Withdrawal 

Statute set a strict time deadline8 for filing a motion to withdraw and 

that a failure to meet that deadline “extinguishes a defendant’s right 

to challenge the validity of the guilty plea on appeal.” Reyes, 2002 UT 

13, ¶ 3. And it was that conclusion—rooted in the language and 

structure of the statute—that led to the Reyes court’s determination 

that the Plea Withdrawal Statute foreclosed plain error review of the 

merits of an unpreserved motion to withdraw.

¶49 For these reasons our approach does not overturn the Reyes 

decision. Infra ¶ 91. It is fully consistent with Reyes. The current Plea 

_____________________________________________________________

8 The statute at issue in Reyes was similar to the current version. 

But instead of requiring a motion to withdraw before the sentence is 

imposed, the statute at issue in Reyes required the motion to be filed 

within 30 days after entry of the plea. Reyes, 2002 UT 13, ¶ 4 (citing 

Utah Code section 77-13-6 (1989)).
Cite as: 2017 UT 83

Opinion of the Court

15

Withdrawal Statute establishes a preservation standard that stands 

as a jurisdictional bar to plain error review.

¶50 The Reyes line of cases all say the same thing. They all arise 

under a version of the Plea Withdrawal Statute that establishes a 

strict time standard for preservation of a motion to withdraw a 

guilty plea—and imposes a strict sanction of waiver without the 

possibility of direct review for plain error or ineffective assistance of 

counsel.9 In that setting it is completely correct to refer to the Plea 

Withdrawal Statute, as Reyes did, as establishing a “jurisdictional” 

bar on appellate review for plain error or ineffective assistance. And 

we are making the same point here.

¶51 Thus, it is not accurate to say that the Plea Withdrawal 

Statute (as establishing a standard of preservation) requires us to 

analyze whether Rettig received ineffective assistance of counsel or 

was a victim of plain error. The Plea Withdrawal Statute is a 

jurisdictional bar on direct review of these issues. It also establishes a 

rule of preservation.

B

¶52 Rettig also challenges section 77-13-6(2)(c), arguing that the 

legislature lacks the authority under article VIII, section 4 of the Utah 

Constitution to require that he pursue his claim through the PCRA. 

We hold that the legislature acted clearly within its constitutional 

authority in enacting subsection (2)(c) of the Plea Withdrawal 

Statute. And Rettig has not asserted a challenge to subsection (2)(b). 

¶53 Subsection (2)(c) states that a “challenge to a guilty plea not 

made within the time period specified in Subsection (2)(b) shall be 

pursued” under the PCRA. UTAH CODE § 77-13-6(2)(c). This is the 

establishment of a new legal remedy—a quintessential matter of 

substance.10 That is dispositive. The establishment of a new remedy 

is a core matter of substance—clearly within the power of the 

legislature. See Petty v. Clark, 192 P.2d 589, 593 (Utah 1948) 

_____________________________________________________________

9 Reyes, 2002 UT 13, ¶ 4 (addressing the 1989 version of section 

77-13-6); State v. Wright, 2002 UT App 180 (1989 version); State v. 

Rhinehart, 2007 UT 61, ¶ 2, 167 P.3d 1046 (current—post-2003—

statute); State v. Lee, 2011 UT App 356, ¶ 2, 264 P.3d 239 (current).

10 To some degree the concurrence seems to agree. It notes that 

subsection (2)(c) “arguably gives the defendant the right to bring [an 

ineffective assistance of counsel] claim under the PCRA. Infra ¶ 115.
STATE v. RETTIG

Opinion of the Court

16

(“Substantive law is . . . the positive law which creates, defines[,] and 

regulates the rights and duties of the parties and which may give rise 

to a cause [of] action.”); see also State v. Drej, 2010 UT 35, ¶ 26, 233 

P.3d 476 (quoting Petty, 192 P.2d at 593). And Rettig accordingly 

cannot claim that subsection 2(c) encroaches on the court’s power to 

promulgate rules of “procedure” under article VIII, section 4 of the

constitution.

¶54 This is the approach taken by the concurrence in Gailey. The 

concurrence noted the existence of a “fair question” about the 

legislature’s constitutional authority to adopt a rule of preservation 

in the Plea Withdrawal Statute. Gailey, 2016 UT 35, ¶ 45 (Lee, A.C.J., 

concurring). It cited article VIII, section 4 of the Utah Constitution, 

which recognizes this court’s power to “adopt rules of procedure 

and evidence to be used in the courts of the state” and to “manage 

the appellate process” but acknowledges the legislature’s power to 

“amend” such rules “upon a vote of two-thirds of all members of 

both houses.” Id. (quoting UTAH CONST. art. VIII, § 4).

¶55 The concurrence alludes to this same important issue. It 

asserts that the Plea Withdrawal Statute “contains both procedural 

and substantive components,” infra ¶ 125, and suggests that “purely 

procedural” components of the statute may be beyond the 

legislature’s authority under article VIII, section 4, as illuminated by 

our opinion in Brown v. Cox, 2017 UT 3, 387 P.3d 1040, infra ¶ 120. 

That said, the concurrence ultimately rejects Rettig’s article VIII, 

section 4 challenge to subsection 2(c) of the Plea Withdrawal Statute. 

And in so doing it characterizes various provisions of the statute as 

either “procedural” or “substantive” and holds that the only 

provision challenged by Rettig—subsection 2(c)—is so “inextricably 

intertwined” with substantive elements of the statute that it is 

“substantive” and thus within the legislature’s power under article 

VIII, section 4. Infra ¶ 125.

¶56 The concurrence’s discussion of the “procedural” and 

“substantive” elements of the statute is both troubling and 

unnecessarily confusing. It confounds our law by suggesting that 

subsection (2)(c) may be “procedural in that it manages the judicial 

process by directing defendants to the PCRA.” Infra ¶ 125. And it 

multiplies the confusion by treating subsection (2)(b) as 
Cite as: 2017 UT 83

Opinion of the Court

17

“substantive” (or at least “inextricably intertwined” with substantive 

law). See infra ¶ 125. This gets the matter backwards.11

¶57 Subsection (2)(c) is a classic matter of substance in that it 

establishes a new remedy or cause of action. And it doesn’t become 

quasi-procedural just because we refer to it as a provision that 

“manages the judicial process.” Infra ¶ 125. (In that sense any new 

cause of action would be procedural, and this court would have the 

power to promulgate a rule of “procedure” establishing a new cause 

of action in tort or contract.) 

¶58 Subsection (2)(b), by contrast, is quintessentially 

procedural—in that it prescribes the manner and means of raising a 

particular issue in court proceedings. See Petty, 192 P.2d at 593–94 

(procedural rules or laws “pertain[] to and prescribe[] the practice 

_____________________________________________________________

11 The substance-procedure distinction is a wide-ranging one in 

the law. See Guaranty Tr. Co. of N.Y. v. York, 326 U.S. 99, 108 (1945) 

(noting that the substance-procedure distinction is “relevant to 

questions pertaining to ex post facto legislation, the impairment of 

the obligations of contract, the enforcement of federal rights in the 

State courts[,] and the multitudinous phases of the conflict of laws”). 

And the slippery, varying nature of these terms has been often 

acknowledged. See id.

The line between substance and procedure under one legal 

construct may often differ from the line between those terms in a 

different construct. See id. (noting that “‘substance’ and ‘procedure’ 

are the same key-words to very different problems,” that “[n]either 

‘substance’ nor ‘procedure’ represents the same invariants,” and that 

“[e]ach implies different variables depending upon the particular 

problem for which it is used”). Thus, the fact that a statute is 

sufficiently “substantive” to bar its retroactive application doesn’t 

tell us anything meaningful about whether it is “substantive” under 

article VIII, section 4—a provision reserving the power to “adopt 

rules of procedure” for this court, while (implicitly) leaving for the 

legislature the power to adopt substantive law. See UTAH CONST. art. 

VIII, § 4.

And on that score it is troubling to suggest that a time deadline 

for filing in the trial court could be a matter within the legislature’s 

power if it merely “cut[s] off substantive rights.” Infra ¶ 123. Most 

time deadlines, if missed, can extinguish a substantive right. If that 

characterization is enough to give the legislature the power to 

promulgate a rule then the limitation in article VIII, section 4 may 

easily be erased. 
STATE v. RETTIG

Opinion of the Court

18

and procedure or the legal machinery by which” cases are 

conducted); Drej, 2010 UT 35, ¶ 27 (“Statutes are purely procedural 

only where they provide a different mode or form of procedure for

enforcing substantive rights. . . . Procedural laws are concerned 

solely with the judicial processes.” (internal quotation marks 

omitted)). You can’t get much more procedural than a filing 

deadline.12 Yet the concurrence implies the contrary by suggesting 

that subsection (2)(c) (which it views as at least partly procedural) 

might nonetheless fall within the legislature’s authority over matters 

of substance because it is “inextricably intertwined” with the 

“substantive” time limit in subsection (2)(b).13 See infra ¶ 125.

¶59 Again that is backwards. We don’t need to get into the 

“inextricable” connectedness between these two provisions because 

_____________________________________________________________

12 The establishment of filing deadlines is perhaps the most 

rudimentary form of procedure. So if we treat the power to regulate 

appellate jurisdiction as encompassing the power to set filing 

deadlines in the trial courts, then the legislature will have the power 

to promulgate even basic rules of procedure (establishing time 

deadlines). That cannot follow unless we are prepared to allow the 

article VIII, section 3 power to regulate “appellate jurisdiction” to 

swallow the prohibition in article VIII, section 4 on the legislature 

promulgating rules of “procedure.” The concurrence’s analysis 

suggests just that, in a case in which we have no need to consider 

this question.

13 “[A] statute of limitations is a filing deadline in a district 

court.” Infra ¶ 130. But this kind of filing deadline has long been 

understood to fall within the domain of the legislature. See Fortier v. 

Traynor, 330 N.W.2d 513, 515 (N.D. 1983) (noting that setting statutes 

of limitation “historically has been the function of the Legislature”); 

Aicher ex rel. LaBarge v. Wisc. Patients Comp. Fund, 613 N.W.2d 849, 

865 (Wis. 2000) (“Statutes limiting the time period for filing actions 

historically have been policy decisions within the province of the 

legislature.”). On that basis we can easily respect the legislature’s 

power to enact statutes of limitations without overriding the terms of 

article VIII, section 4. Statutes of limitations are an historical 

exception to the general rule that rules of procedure are the domain 

of the courts.
Cite as: 2017 UT 83

Opinion of the Court

19

subsection (2)(c) is clearly substantive and subsection (2)(b) is not 

challenged by Rettig.14

¶60 We do not need to reach whether subsections (2)(b) and 

(2)(c) are “inextricably intertwined” in a manner insulating the 

broader statutory scheme from challenge (even if one of these 

provisions is procedural). See infra ¶ 125. This question is not 

properly presented, as again the only provision that is challenged by 

Rettig—subsection 2(c)—is plainly within the legislature’s 

constitutional power. And the “inextricably intertwined” analysis in 

the concurrence at least implies that subsection (2)(b) would 

withstand scrutiny under article VIII, section 4 even if it is plainly 

procedural. We have doubts on that point but do not forecast an 

answer to it here.

15

_____________________________________________________________

14 For these reasons we are not at all saying that the Plea 

Withdrawal Statute is constitutional because “the jurisdictional bar is 

created through a rule of preservation.” Infra ¶ 85. Quite the 

contrary. The procedural dimension of the preservation rule in the 

statute—the time deadline it sets for the filing of motions—may be a 

potent basis for questioning the constitutionality of this statute 

under article VIII, section 4. The problem is that Rettig has not 

asserted an article VIII, section 4 challenge to this procedural bar (in 

subsection 2(b)).

15 State v. Drej, 2010 UT 35, 233 P.3d 476, addressed a more 

complex problem than the one presented here. There we considered 

whether a statute that allocating burdens of proof for special 

mitigation at trial was procedural or substantive. On that question, 

we noted that some state courts had “held that assignment of a 

burden of proof is a substantive right as a matter of law” while 

others had “held that the assignment of a burden of proof is always 

procedural.” Id. ¶ 29. We also identified a third set of state courts 

(and the U.S. Supreme Court) that had “declined to create such 

bright line rules,” choosing instead “to treat burdens of proof as 

substantive when the rule ‘is inseparably connected with the 

substantive rights of the parties.’” Id. ¶ 30 (citation omitted). Faced 

with a difficult problem of categorizing the burden of proof, we 

followed this latter path in Drej. But we have no occasion to pursue 

that course here because the only provision challenged—subsection 

2(c)—is quite obviously within the legislature’s authority.
STATE v. RETTIG

DURHAM, J., concurring in the result

20

III

¶61 We conclude that Rettig’s two constitutional challenges to 

the Plea Withdrawal Statute fail. The statute establishes a rule of 

preservation, and such rules do not foreclose an appeal. We also 

hold that the legislature acted clearly within its constitutional 

authority in enacting subsection (2)(c) of the Plea Withdrawal 

Statute. We therefore lack appellate jurisdiction to address Rettig’s

underlying voluntariness claims under section 77-13-6(2)(a).

JUSTICE DURHAM, concurring in the result:

¶62 As the majority acknowledges, we must determine if we 

have jurisdiction before we can address Mr. Rettig’s substantive 

arguments that he should be allowed to withdraw his guilty plea. 

Mr. Rettig has brought two constitutional challenges to the Plea 

Withdrawal Statute’s jurisdictional bar.16 First, he argues that the 

Plea Withdrawal Statute violates his constitutional right to appeal 

and the associated rights to effective assistance of counsel and paid 

counsel on direct appeal. Alternatively, he argues that the legislature 

exceeded its constitutional authority under article VIII, section 4, by 

passing subsection (2)(c) of the Plea Withdrawal Statute. The 

majority holds that he has failed to establish that we have 

jurisdiction over this appeal. While I agree that Mr. Rettig has failed 

to establish that we have jurisdiction, I disagree with the majority’s 

analysis of the constitutional right to appeal and of the 

_____________________________________________________________

16 Mr. Rettig also brought a third constitutional challenge to the 

Plea Withdrawal Statute, but it was not a direct challenge to the 

jurisdictional bar. The Plea Withdrawal Statute only allows a 

defendant to withdraw a guilty plea if he can establish that it was 

unknowingly or involuntarily entered, even if a defendant is 

afforded ineffective assistance of counsel. UTAH CODE § 77-13-6(2)(a); 

State v. Rhinehart, 2007 UT 61, ¶ 13, 167 P.3d 1046 (“The 

ineffectiveness of counsel that contributes to a flawed guilty plea, 

however, can spare a defendant the consequences of her plea only if 

the defendant makes out the same case required of every defendant 

who seeks to withdraw a plea: that the plea was not knowing and 

voluntary.”). Mr. Rettig argues this unconstitutionally limits a 

defendant’s ability to withdraw a guilty plea for ineffective 

assistance of counsel. The majority does not address this 

constitutional challenge, likely because it holds that we do not have 

jurisdiction over this appeal.
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DURHAM, J., concurring in the result

21

constitutionality of Utah Code section 77-13-6(2)(c) under article VIII, 

section 4 of the Utah Constitution. I address my concerns with each.

I. THE CONSTITUTIONAL RIGHT TO APPEAL

¶63 To avoid the jurisdictional bar, Mr. Rettig argues that the 

Plea Withdrawal Statute violates his constitutional “right to appeal 

in all cases.” see UTAH CONST. art. I, § 12. He also argues that this 

violates his associated right to the “effective assistance of an 

attorney” on direct appeal, see Evitts v. Lucey, 469 U.S. 387, 396 (1985); 

cf. Hill v. Lockhart, 474 U.S. 52, 56–57 (1985) (right to effective counsel 

in “the plea process”), and his “right to state-paid counsel” on direct 

appeal, Gailey v. State, 2016 UT 35, ¶ 26, 379 P.3d 1278. The majority 

dismisses these arguments, holding that the Plea Withdrawal Statute 

creates both an issue of preservation and an issue of jurisdiction, 

although we have never so held before. Supra ¶ 26. It justifies this 

bold new approach through two steps. First, it establishes a new 

category of jurisdiction, one that we have never expressly 

recognized. Supra ¶¶ 35–42. Second, it creates a new branch of 

preservation when a statute includes timing requirements that may 

or may not be subject to the common law exceptions to preservation. 

Supra ¶¶ 28–32. I disagree with the majority’s view of our 

jurisdiction, our rules of preservation, and how these two doctrines 

apply. 

¶64 I first discuss the issues I see with the majority’s creation 

of a new category of jurisdiction. Next, I address my concerns with 

the majority’s analysis concerning preservation. Finally, I address 

why I believe the majority’s analysis concerning the Plea Withdrawal 

Statute under the constitutional right to appeal is incorrect. 

A. Jurisdiction

¶65 When a defendant fails to move to withdraw a guilty plea 

prior to sentencing, we have interpreted the Plea Withdrawal Statute 

as cutting off the jurisdiction of our district courts, and as either 

cutting off the jurisdiction of the court of appeals or as requiring us 

to exercise our jurisdiction only through a PCRA proceeding. UTAH 

CODE § 77-13-6(2)(c); see also Gailey, 2016 UT 35, ¶¶ 17–18 (Utah Code 

section 77-13-6(2)(c) “expressly provide[s] that the right to withdraw 

a plea is extinguished” after sentencing). We have previously 

recognized appellate, subject matter, and personal jurisdiction, and 

have often used the hazy term “jurisdiction” without any 

classification or definition. 

¶66 In an attempt to treat the Plea Withdrawal Statute as both 

an issue of jurisdiction and an issue of preservation, the majority 
STATE v. RETTIG

DURHAM, J., concurring in the result

22

establishes a new, amorphous category of jurisdiction that it broadly 

defines as the “power [of a court] to reach a certain question 

presented.” Supra ¶ 39. It then goes on to state that “the power to 

regulate this kind of ‘jurisdiction’ is not vested exclusively (or even 

principally) in the legislature; this kind of ‘jurisdictional bar’ is a 

proper subject for our rules of procedure.” Supra ¶ 35. Because of 

this, the majority holds that “[r]ules of preservation and waiver may 

sometimes create a ‘jurisdictional bar,’” supra ¶ 35, presumably if the 

rule of preservation is created by a statute or rule of procedure that 

does not allow for any exceptions. Supra ¶ 32.

¶67 The majority further attempts to draw a boundary around 

this new category of jurisdiction by stating that many statutes, 

including statutes of limitation, are a legislative exercise of its 

authority to govern subject matter jurisdiction, whereas our rules of 

procedure (be they civil, criminal, appellate, or otherwise) generally 

limit our jurisdiction under this new category of jurisdictional bars. 

Supra ¶ 40. I agree to some extent with this new category of 

jurisdiction, but I disagree with the boundaries that the majority 

attempts to adopt as they ignore the nature of our constitutional 

jurisdiction. 

¶68 Some other states have determined that “[j]urisdiction is 

composed of three elements: (1) personal jurisdiction; (2) subject 

matter jurisdiction; and (3) the court’s power to render the particular 

judgment requested.”17 Limehouse v. Hulsey, 744 S.E.2d 566, 572 (S.C. 

2013) (alteration in original) (citation omitted); see also Indep. Sch. 

Dist. No. 1 of Okla. Cty. v. Scott, 15 P.3d 1244, 1248 (Okla. Civ. App. 

2000); 21 C.J.S. Courts § 11 (2017 update) (“Jurisdiction encompasses: 

jurisdiction of the subject matter, jurisdiction of the person, 

jurisdiction of the res or property, and, by the rule applicable in 

some courts, jurisdiction to render the particular judgment in the 

particular case.” (footnotes omitted)). The majority appears to adopt 

this third prong, which is sometimes called “‘particular-case’ 

jurisdiction.” 21 C.J.S. Courts § 14 (2017 update). This type of 

jurisdictional analysis deprives a court of the “authority to hear a 

particular case if a party fails to follow the statutory procedures for 

invoking the court’s authority in that particular case.” Id. However, 

the majority expands this type of jurisdictional bar from when a 

“party fails to follow the statutory procedures for invoking the 

_____________________________________________________________

17 Our constitution also specifically recognizes appellate 

jurisdiction.
Cite as: 2017 UT 83

DURHAM, J., concurring in the result

23

court’s authority,” id. (emphasis added), to a party’s failure to follow 

a rule of procedure promulgated by this court. 

¶69 While I agree to some extent with recognition of this 

category of jurisdiction, I believe it must be utilized with caution and 

in light of our constitution. I would read the third prong of 

jurisdiction as only applying to constitutional and legislative limits 

on a court’s power to render a particular judgment requested. Our 

constitution does not give this court power to expand or limit the 

jurisdiction of the courts generally.

¶70 Jurisdiction is generally defined as “[a] court’s power to 

decide a case or issue a decree,” and it typically “speak[s] from a 

position outside the court system [that] prescribe[s] the authority of 

the courts within the system.” Jurisdiction, BLACK’S LAW DICTIONARY

(10th ed. 2014); 21 C.J.S. Courts § 1 (2017 update) (“Courts are not 

self-conceived but exist by force of law under the authority of 

constitutional provisions or statutes, and not by the courts’ rulemaking power or by the parties’ stipulation or conduct.”). Thus, we 

have stated that the jurisdiction of our courts is “established by the 

Utah Constitution and by statute.” S. Utah Wilderness All. v. Bd. of 

State Lands & Forestry of Utah, 830 P.2d 233, 234 (Utah 1992). While 

the majority attempts to grant this court the authority to limit our 

own jurisdiction and the jurisdiction of the other courts in this state, 

the language of the Utah Constitution does not support such an 

interpretation. Article VIII, section 3 governs the jurisdiction of this 

court, and article VIII, section 5 governs the jurisdiction of every

other court in this state.

¶71 Article VIII, section 3 provides that this court “shall have 

appellate jurisdiction over all . . . matters to be exercised as provided 

by statute,” and that we “shall have original jurisdiction to issue all 

extraordinary writs and to answer questions of state law certified by 

a court of the United States.” UTAH CONST. art. VIII, § 3 (emphases 

added). There is not much wiggle room in this language. This 

constitutional provision defines the outer limits of our power, and its 

use of “shall” mandates that this court cannot expand or limit our 

own jurisdiction. Indeed, the legislature cannot even limit our 

appellate jurisdiction. It can only require that we exercise our 

appellate jurisdiction “as provided by statute.” Id. It typically does 
STATE v. RETTIG

DURHAM, J., concurring in the result

24

so by requiring certain categories of appeals to pass through the 

court of appeals prior to reaching this court.18

¶72 Similarly, the Utah Constitution defines the jurisdiction of 

our district courts. It provides that “[t]he district court shall have 

original jurisdiction in all matters except as limited by this 

constitution or by statute . . . .” UTAH CONST. art. VIII, § 5 (emphasis 

added). Contrary to the majority’s holding, the “power [of the 

district court] to reach a certain question presented” is not, and 

cannot, be limited by a rule of procedure promulgated by this court. 

Supra ¶ 39. The constitution is clear; the district court “shall have 

original jurisdiction in all matters” unless the constitution itself, or a 

statute that complies with our constitution, limits that jurisdiction. 

UTAH CONST. art. VIII, § 5 (emphasis added).

¶73 The constitution clearly establishes and outlines the power 

of this and the district court and provides the only means whereby 

this or the district court’s jurisdiction may be altered.19 Nevertheless, 

the majority holds that we, through our rules of procedure, may 

“circumscribe our jurisdiction.” Supra ¶ 40. It does so by trying to 

draw an untenable line between the legislature’s “constitutional 

authority to regulate subject-matter jurisdiction” and its belief that 

this court can expand or limit particular case jurisdiction. Supra ¶ 37. 

This does not comport with the plain language of our constitution. It 

clearly states that district courts “shall have” jurisdiction unless the 

constitution or a statute provides otherwise. The constitution does 

not draw an arbitrary line between subject matter jurisdiction and 

particular case jurisdiction. 

_____________________________________________________________

18 As an example, the legislature has given the court of appeals 

appellate jurisdiction over certain categories of cases, such as all 

appeals from “criminal cases, except those involving a conviction or 

charge of a first degree felony or capital felony.” See UTAH CODE

§ 78A-4-103(2)(d), (e). We can exercise our appellate jurisdiction over 

“a judgment of the Court of Appeals,” or “judgments . . . of any 

court of record over which the Court of Appeals does not have 

original appellate jurisdiction.” UTAH CODE § 78A-3-102(3)(a), (j).

19 The constitution also clearly defines the jurisdiction of our 

statutory courts and provides the only means whereby their 

jurisdiction may be altered. “The jurisdiction of all other courts, both 

original and appellate, shall be provided by statute.” UTAH CONST. 

art. VIII, § 5. When the constitution says that our statutory courts’ 

jurisdiction “shall be provided by statute,” it leaves no room for this 

court to expand or limit their jurisdiction by procedural rule.
Cite as: 2017 UT 83

DURHAM, J., concurring in the result

25

¶74 Indeed, there is no real difference between these two 

classifications as “[p]articular case jurisdiction is a subset of subject 

matter jurisdiction . . . .” Hisle v. Lexington-Fayette Urban Cty. Gov’t, 

258 S.W.3d 422, 429 (Ky. Ct. App. 2008). Whether a court can hear 

the subject matter of a particular argument in a particular case 

because the argument is untimely is necessarily a subset of whether 

a court can hear the broader subject matter of the claim in general. In 

any event, the plain language of our constitution does not support a 

distinction between these two classifications of jurisdiction.

¶75 The majority’s analysis concerning how we have the 

power to limit or expand our jurisdiction is not persuasive. First, it 

looks to the mandatory language in rule 12 of both our Rules of Civil 

Procedure and our Rules of Criminal Procedure to show that 

somehow, these rules must be jurisdictional. Supra ¶¶ 29–33. It 

supports this statement by citing two cases. See supra ¶ 33 n.5. But

neither of those cases dealt with the Utah Constitution and there are 

plenty of cases that state the opposite. Steel Co. v. Citizens for a Better 

Env’t, 523 U.S. 83, 89 (1998) (“[J]urisdiction . . . is not defeated . . . by 

the possibility that the averments might fail to state a cause of action 

on which petitioners could actually recover.” (second and third 

alterations in original) (citation omitted)); Davoll v. Webb, 194 F.3d 

1116, 1128 n.3 (10th Cir. 1999) (stating that “the difference between a 

question of subject matter jurisdiction and one of failure to state a 

claim is a lesson that has been taught as often in decision as it has 

been ignored in argument and dicta,” and “courts should carefully 

consider whether a dismissal is truly jurisdictional”) (citations 

omitted) (internal quotation marks omitted)).

¶76 Second, the majority looks to our constitutional power to 

promulgate rules of procedure. Supra ¶¶ 35, 38. Thus, the majority 

reasons, because we have the constitutional power to promulgate 

procedural rules, and some procedural rules are allegedly 

jurisdictional, we must have the constitutional power to expand or 

limit our jurisdiction. We certainly have the power to promulgate 

procedural rules. But, as shown above, we do not have the 

constitutional power to alter the jurisdiction of any court in this 

state. 

¶77 The majority’s analysis misunderstands the role of our 

rules of procedure. Not all procedural or substantive bars, whether 

in a statute or a rule, deal with a court’s authority to hear a case. 

Some statutes and rules speak “only to the rights and obligations of 

the litigants, not to the power of the court.” City of New York v. 

Mickalis Pawn Shop, LLC, 645 F.3d 114, 127 (2d Cir. 2011); Union Pac. 

R.R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm. of 
STATE v. RETTIG

DURHAM, J., concurring in the result

26

Adjustment, Cent. Region, 558 U.S. 67, 81 (2009) (“Not all mandatory 

‘prescriptions, however emphatic, are . . . properly typed 

jurisdictional.’” (alteration in original) (citation omitted)). I see both 

the criminal and civil version of rule 12 differently from the majority. 

I see them, and every other procedural rule we promulgate, as 

imposing “rights and obligations” on the litigants. We are simply 

warning parties that if they do not comply with our procedural 

rules, they may be barred from raising a claim or argument. 

¶78 I believe this interpretation of our procedural rules is 

mandated by the constitution. The constitution and statute are the 

only things that can actually define the limits of a court’s power to 

hear a case or address a particular question. We cannot expand or 

limit our jurisdiction through rulemaking. 

¶79 The rules themselves support this interpretation. Utah 

Rule of Civil Procedure 1 recognizes that our rules “govern the 

procedure in the courts of the state of Utah in all actions of a civil 

nature.” These rules—such as the timing requirements for filing a 

motion under rule 12—are intended to assist us in achieving “the 

just, speedy, and inexpensive determination of every action.” UTAH 

R. CIV. P. 1.20 They are not intended to, nor can they, expand or limit 

our jurisdiction. Our rules of procedure impose rights and 

obligations on the parties and inform litigants what steps they must 

follow in order for us to address a question, i.e. to properly invoke 

our jurisdiction, with consequences for the litigants if they fail to 

comply with those rules. They do not abrogate or limit our power to 

hear a case or an issue. It would be somewhat counterintuitive to say 

that our rules limit our power to hear a particular issue when we can 

simply amend those rules tomorrow.21

_____________________________________________________________

20 Utah Rule of Criminal Procedure 1 similarly provides that 

“[t]hese rules shall govern the procedure in all criminal cases in the 

courts of this state except juvenile court cases.” UTAH R. CRIM. P. 

1(b). They are not intended to expand or limit our jurisdiction, they 

are merely “intended and shall be construed to secure simplicity in 

procedure, fairness in administration, and the elimination of 

unnecessary expense and delay.” Id.

21 While the legislature can amend its statutes governing our 

jurisdiction, this is a different issue. As mentioned above, 

adjudicatory jurisdiction is typically defined by some external force, 

such as the constitution or statute. See supra ¶ 73. Our government is 

one of checks and balances. The constitution and legislature define 

the jurisdiction of the courts in this state. Similarly, the constitution, 

(continued . . .)
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DURHAM, J., concurring in the result

27

¶80 Our Rules of Appellate Procedure explicitly acknowledge 

that we do not have the constitutional power to expand or limit our 

own jurisdiction. Utah Rule of Appellate Procedure 1(d) provides 

that “[t]hese rules shall not be construed to extend or limit the 

jurisdiction of the Supreme Court or Court of Appeals as established 

by law.” I acknowledge that we have classified the timing 

requirement for filing a notice of appeal in Utah Rule of Appellate 

Procedure 4(a) as “jurisdictional.” State v. Collins, 2014 UT 61, ¶ 22, 

342 P.3d 789 (citation omitted). However, I believe this should be 

viewed as a statement that the appellant has failed to invoke our 

jurisdiction and is procedurally barred, rather than that we have no 

jurisdiction. See id. (stating that the requirement to file within 30 days 

is a “procedural prerequisite to invoking appellate court 

jurisdiction”).22

¶81 I reject the assertion that a procedural rule that was 

promulgated by this court can govern our jurisdiction. I also note 

_____________________________________________________________

(continued . . .)

as interpreted by this court, limits the power of the legislature. After 

we have interpreted the constitutional limits of the legislature, they 

cannot simply pass another statute to expand or limit their power. 

Likewise, it would be very odd if we could define what power we 

have to hear a case and then change it the next day by amending our 

rules. Additionally, the majority’s implication that we have power to 

expand or limit our jurisdiction outside of, and contrary to the plain 

language of, the constitution cannot be accurate. Supra ¶¶ 35–39 

(stating that the constitution only regulates subject matter 

jurisdiction, not our authority to restrict other jurisdictional 

boundaries). The better view is that our rules govern the rights and 

obligations of the parties, not our own power.

22 While I would limit such statements, I recognize that we have 

clearly stated that the failure to comply with Utah Rule of Appellate 

Procedure 4(a) deprives this court of jurisdiction. Collins, 2014 UT 61, 

¶ 22 (stating that failure to timely file means “that an appellate court 

simply has no power to hear the case”). However, I believe this is 

“symptomatic of the widespread epidemic of fuzzy, shorthand, 

imprecise and variegated usage of the term ‘jurisdiction’ by courts, 

litigants and commentators . . . .” N-Tron Corp. v. Rockwell 

Automation, Inc., CIV. A. No. 09-0733-WS-C, 2010 WL 653760, at *4 

(S.D. Ala. Feb. 18, 2010). I would reject such statements as our 

constitution and the Rules of Appellate Procedure do not allow us to 

expand or limit the jurisdiction of any court.
STATE v. RETTIG

DURHAM, J., concurring in the result

28

that the majority’s discussion of these procedural rules is dicta, as 

the only question at issue in this case is how the Plea Withdrawal 

Statute governs jurisdiction. I turn now to how, in my view, a statute 

governs a court’s jurisdiction.

¶82 I believe that there are at least two categories of statutes 

that govern jurisdiction.23 One type of statute governs subject matter 

jurisdiction, which is a court’s power to hear a class of cases. See 

Johnson v. Johnson, 2010 UT 28, ¶ 10, 234 P.3d 1100 (stating that “most 

of our cases that have addressed subject matter jurisdiction have

considered the authority of the court to adjudicate a class of cases, 

rather than the specifics of an individual case”). The other type 

governs our jurisdiction to render a particular judgment in a 

particular case. See Limehouse, 744 S.E.2d at 572. Any time a statute 

limits particular case jurisdiction, it does so as a subset of subject 

matter jurisdiction. Thus, there may be instances when we have the 

jurisdictional power to hear a class of cases, but we lack the 

jurisdictional power to render a particular judgment in a case. 

¶83 I believe the Plea Withdrawal Statue is such a statute. We 

have the power to hear arguments that a guilty plea should be 

withdrawn, but the legislature has limited our power to hear such a 

claim if the motion is not made before sentencing. Obviously, not all 

statutes containing “mandatory ‘prescriptions, however emphatic, 

are . . . properly typed jurisdictional.’” Union Pac. R.R. Co., 558 U.S. at 

81 (alteration in original) (citation omitted). However, I believe that 

the Plea Withdrawal statute is clearly jurisdictional. It not only 

speaks of the defendant’s obligation to timely move to withdraw, it 

also speaks to this court’s power by identifying the only route 

through which we may hear an untimely claim: a civil action under 

the PCRA. See UTAH CODE § 77-13-6(2)(c) (“Any challenge to a guilty 

plea not made” before sentencing “shall be pursued under” the 

PCRA. (emphases added)). 

¶84 Having clarified how I understand our jurisdiction is 

defined and controlled, and why the Plea Withdrawal Statute is 

jurisdictional, I move to the majority’s treatment of preservation.

B. Preservation

¶85 The majority holds that the Plea Withdrawal Statute’s 

jurisdictional bar is created through a rule of preservation, thereby 

_____________________________________________________________

23 There are obviously other types of statutes that deal with 

jurisdiction. For instance, the Nonresident Jurisdiction Act addresses 

a court’s jurisdiction over a person. See, e.g., UTAH CODE §§ 78B-3-201 

through -209.
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DURHAM, J., concurring in the result

29

insulating it from the protections of the constitutional right to appeal 

and the associated rights to paid counsel and effective assistance of 

counsel on direct appeal. In doing so, the majority creates a new 

category of preservation that is not subject to the common law 

exceptions to preservation. I do not agree that preservation creates a 

jurisdictional bar. Preservation and jurisdiction are two distinct 

doctrines, as recognized by our precedent. I will first address that 

precedent, then discuss why I believe it is correct in holding that 

preservation and jurisdiction are doctrinally distinct under the 

constitution. Finally, I discuss the damage the majority’s holding will 

have on our common law of preservation and waiver and the way 

we interpret and apply statutes.

1. The Majority Overturns Precedent Without Conducting the 

Proper Analysis

¶86 Under a previous version of the Plea Withdrawal Statute, 

this court held that preservation created the procedural bar to postsentencing motions to withdraw a guilty plea, but we later rejected 

that analysis when the statute was amended in 1989. “The legislature 

enacted the Plea Withdrawal Statute in 1980, with two 

significant substantive amendments in 1989 and 2003. The 1980 

version of the statute did not include a time limitation for 

withdrawing a guilty plea . . . .” Gailey v. State, 2016 UT 35, ¶ 12, 379 

P.3d 1278. It was not until 1989 that the legislature included a time 

limit for filing a motion to withdraw a guilty plea. Id. ¶ 13.

¶87 Under the 1980 version of the statute, we recognized that 

the law of preservation created a procedural bar to a defendant 

withdrawing a guilty plea. State v. Reyes, 2002 UT 13, ¶ 4, 40 P.3d 630 

(stating that under the 1980 Plea Withdrawal Statute, “the filing of a 

motion to withdraw a guilty plea was an issue of preservation.”).

During the time that we relied on the law of preservation to create a 

procedural bar, we recognized that a defendant was still entitled to 

review on direct appeal if an exception to preservation applied. See 

State v. Marvin, 964 P.2d 313, 318 (Utah 1998) (recognizing that under 

the 1980 Plea Withdrawal Statute, the court “will, however, entertain 

[a motion to withdraw a guilty plea] for the first time on appeal if 

plain error or exceptional circumstances exist”).

¶88 We later rejected preservation as the grounds for the 

procedural bar when the Plea Withdrawal Statue was amended in 

1989 and a time limit for filing a motion to withdraw was added. In 

Reyes the defendant argued that, even though the Plea Withdrawal 

Statute’s procedural bar is jurisdictional, the bar was a matter of 

preservation and thus was subject to the preservation exceptions 

such as plain error or exceptional circumstances. 2002 UT 13, ¶ 4. We 
STATE v. RETTIG

DURHAM, J., concurring in the result

30

rejected this argument, stating that the procedural bar under the 

1980 version of the statute was “an issue of preservation,” but that 

once the legislature included a time limit to withdraw a guilty plea 

in 1989, the procedural bar was no longer an issue of preservation, 

but became “an issue of jurisdiction.” Id. We went on to state that 

“[t]his court may choose to review an issue not properly preserved 

[under an exception to preservation]. It cannot, however, use [an 

exception to preservation] to reach an issue over which it has no 

jurisdiction.” Id. (citation omitted).

¶89 This language clearly distinguished between jurisdiction 

and preservation. It treated preservation as an issue that is always 

subject to the common law exceptions to preservation. However, 

when a court lacks jurisdiction, preservation is not an issue.

¶90 Our courts have affirmed the holding in Reyes on many 

occasions. State v. Rhinehart, 2007 UT 61, ¶ 14, 167 P.3d 1046 (“We . . . 

are without jurisdiction to consider” the defendant’s “claims of 

ineffective assistance of counsel raised in the context of challenges to 

[her] . . . guilty plea[] . . . .”); State v. Lee, 2011 UT App 356, ¶ 2, 264 

P.3d 239 (“[T]he jurisdictional bar prohibits review of a guilty plea 

even when . . . ‘styled as a claim of ineffective assistance of counsel.’” 

(citation omitted)); State v. Wright, 2002 UT App 180, *1 (“We 

lack jurisdiction to consider a . . . claim that counsel was ineffective 

. . . because [defendant] did not file a timely motion to withdraw the 

guilty plea.”). The Plea Withdrawal Statute cuts off the jurisdiction 

of the district court to hear challenges to guilty pleas that are made 

for the first time post-sentencing, and we are barred from hearing 

such a challenge for the first time on direct appeal. This jurisdictional 

bar is not created by the law of preservation, as Reyes clearly 

recognized that preservation is always subject to the common law 

preservation exceptions. We most recently affirmed this precedent in 

Gailey, 2016 UT 35, ¶¶ 12–20.

¶91 The majority overrules State v. Reyes without conducting 

any analysis under stare decisis. “Stare decisis ‘is a cornerstone of 

Anglo–American jurisprudence’ because it ‘is crucial to the 

predictability of the law and the fairness of adjudication.’” Eldridge v. 

Johndrow, 2015 UT 21, ¶ 21, 345 P.3d 553 (citation omitted). Under 

this doctrine, we presume that our precedent controls the case before 

us, and “[t]hose asking us to overturn prior precedent have a 

substantial burden of persuasion.” State v. Menzies, 889 P.2d 393, 398 

(Utah 1994) superseded on other grounds as recognized by State v. Goins, 

2017 UT 61, --- P.3d ---. We only overrule precedent when we 

determine that it is not the weightiest of precedent. We have 

recognized two “broad factors that distinguish between weighty 
Cite as: 2017 UT 83

DURHAM, J., concurring in the result

31

precedents and less weighty ones: (1) the persuasiveness of the 

authority and reasoning on which the precedent was originally 

based, and (2) how firmly the precedent has become established in 

the law since it was handed down.” Eldridge, 2015 UT 21, ¶ 22. 

¶92 Despite this great burden on overruling precedent, the 

majority opinion treats our precedent as expendable. It asserts that 

its analysis “is fully consistent with” Reyes, apparently in an attempt 

to avoid having to overrule Reyes’s holding. Supra ¶ 49. However, as 

noted above, Reyes clearly rejects the majority opinion’s approach by 

treating preservation and jurisdiction as two separate and distinct 

doctrines with different implications. If the bar is due to 

preservation, it must be subject to the exceptions to preservation. 

Reyes, 2002 UT 13, ¶ 4. If the bar is jurisdictional, then it is not an 

“issue of preservation.” Id. In Reyes, we rejected preservation as the 

grounds for the procedural bar and drew a line between jurisdiction 

and preservation.

¶93 The majority’s strained reading of Reyes is untenable. If the 

majority wishes to make the Plea Withdrawal Statute’s procedural 

bar both and issue of preservation and an issue of jurisdiction, it 

must deal with the fact that Reyes treated them as separate and 

distinct.

2. Jurisdiction is Governed by Statute, not Preservation

¶94 The majority argues that my distinction between 

preservation and jurisdiction is “a false dichotomy,” because some 

rules and statutes “prescribe a rule of preservation [that] establish a 

waiver sanction that stands as a jurisdictional bar.” Supra ¶¶ 26–27. 

Obviously, when a party fails to raise an issue, it is waived and is not 

preserved. But the majority puts the cart before the horse. Waiver 

and preservation do not create the jurisdictional bar. The statute 

creates the jurisdictional bar. 

¶95 As described above, the jurisdiction of our courts “is 

established by the Utah Constitution and by statute.” S. Utah 

Wilderness All. v. Bd. of State Lands & Forestry of Utah, 830 P.2d 233, 

234 (Utah 1992). District courts have “original jurisdiction in all 

matters except as limited . . . by statute.” UTAH CONST. art. VIII, § 5. 

This court has “appellate jurisdiction over all . . . matters to be 

exercised as provided by statute.” Id. art. VIII, § 3. The jurisdiction of 

Utah courts is not established by whether a party preserves or 

waives an issue, it is established and managed by the constitution 

and statute.

¶96 The Plea Withdrawal Statute cuts off the jurisdiction of our 

district and appellate courts, preventing them from reaching the 
STATE v. RETTIG

DURHAM, J., concurring in the result

32

substance of a challenge to a guilty plea if the challenge is not made 

prior to sentencing. Supra ¶ 83. Preservation is not what creates the 

jurisdictional bar. The statute creates the jurisdictional bar as 

recognized by the constitution. The Utah Constitution does not say 

that the district courts’ and our jurisdiction is governed by 

preservation—it says it is governed by statute.24

¶97 If we lack jurisdiction to hear an appeal, then preservation 

never becomes an issue. Lack of jurisdiction automatically divests 

_____________________________________________________________

24 The majority is concerned with this statement. It argues that if 

the legislature has “the power to set filing deadlines . . . then [it] will 

have the power to promulgate even basic rules of procedure.” Supra 

¶ 58 n.12. That would be a concerning proposition, but it 

misrepresents the nature of my analysis. 

Our constitution delineates the responsibilities of this court and 

the legislature. This court has the power to manage the procedure 

and process in all state courts exercising original and appellate 

jurisdiction. UTAH CONST. art. VIII, § 4 (stating that this court has the 

power to “adopt rules of procedure and evidence to be used in the 

courts of this state and shall by rule manage the appellate process”). 

On the other hand, the legislature has the power to “amend the 

Rules of Procedure and Evidence adopted by the Supreme Court,” 

id., limit the jurisdiction of our district courts by statute, id. art. VIII, 

§ 5, create and define the jurisdiction of our statutory courts by 

statute, id., and manage the exercise of our “appellate jurisdiction” 

“by statute,” id. art. VIII, § 3.

This court’s power to manage the process and procedure of our 

courts is different than the legislature’s power to manage or define 

the jurisdiction of our courts. The majority misses this key 

distinction. When a statute defines the jurisdiction of the district or 

statutory courts, or when it manages the exercise of our appellate 

jurisdiction, the legislature is not promulgating “basic rules of 

procedure.” Supra ¶ 58 n.12. It is managing the jurisdiction of our 

courts, which it has the clear constitutional authority to do. If, on the 

other hand, the legislature attempts to alter a rule of procedure that 

truly is “routine” and does not address the jurisdiction of the courts 

of this state, then it certainly would need to comply with the 

requirements for amending our rules in article VIII, section 4.

The majority asserts that there is “no need to consider this 

question” in this case. Supra ¶ 58 n.12. I disagree. I merely apply our 

precedent and the language of the constitution to the case at bar in 

explaining why the Plea Withdrawal Statute is a matter of 

jurisdiction, not a matter of preservation. 
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DURHAM, J., concurring in the result

33

the court of the ability to reach a holding on the merits, including 

holding whether an issue has been properly preserved. This is 

because we always address jurisdictional issues first. Rivers v. Exec. 

Dir. of the Utah Dep’t of Envtl. Quality, 2017 UT 64, ¶ 26, --- P.3d ---

(stating that, “[b]efore we consider the arguments before us on 

appeal, we must evaluate whether” we have jurisdiction); State v. 

Abeyta, 852 P.2d 993, 995 (Utah 1993) (“We begin with the threshold 

issue of the trial court’s jurisdiction.”). Preservation is only an issue 

in cases in which we have jurisdiction. 

¶98 While a defendant’s failure to comply with the statute 

certainly means that he has not preserved his motion to withdraw in 

the district court, the correlation between preservation and 

jurisdiction does not mean that the lack of preservation causes the 

jurisdictional bar. The jurisdictional bar is created by a defendant’s 

failure to comply with the statute, not the failure to preserve an issue 

in the district court. See, e.g., Patterson v. Am. Fork City, 2003 UT 7, 

¶ 10, 67 P.3d 466 (“A plaintiff’s failure to comply with the [Utah 

Governmental Immunity Act’s] notice of claim provisions,” and in 

particular, the timing in which a notice of claim is supposed to be 

submitted to a political subdivision, “deprives the trial court of 

subject matter jurisdiction.”); Winward v. State, 2012 UT 85, ¶ 13, 293 

P.3d 259 (noting that a party “acknowledge[d] that his petition is 

procedurally barred by the PCRA’s one-year statute of limitations”). 

If we treat statutes with timing requirements the same as any other 

statute, this becomes clear. We do not incorporate unnecessary 

common law into every statute that includes a procedural or 

substantive requirement, we merely say that the failure of a party to

comply with a statute results in a procedural or substantive bar. Infra 

¶ 104.

¶99 For instance, there are many different types of statutes that 

govern the jurisdiction of our courts. Not all of them deal with 

timing. The Utah Constitution provides that the jurisdiction of the 

district court can be limited by statute. The legislature has limited, in 

certain circumstances, our district courts’ jurisdiction to hear cases 

that deal with minors. See UTAH CODE § 78A-6-103 (providing that 

“the juvenile court has exclusive original jurisdiction” over certain 

types of cases involving minors (emphasis added)); State v. Hodges, 

2002 UT 117, ¶¶ 8–10, 63 P.3d 66 (discussing the different 

jurisdictions that can be exercised by the juvenile court and the 

district court under a previous version of Utah Code section 78A-6-

103). These statutes limit district courts’ jurisdiction to hear the 
STATE v. RETTIG

DURHAM, J., concurring in the result

34

subject matter of these issues in any case.25 Conversely, under the 

Plea Withdrawal Statute, the district court typically has jurisdiction 

to hear the subject matter of a motion to withdraw a guilty plea. But 

if the defendant fails to move to withdraw prior to sentencing, the 

defendant fails to properly invoke that jurisdiction and the district or 

appellate court cannot hear the claim. Supra ¶ 80.

¶100 These two types of statutes create jurisdictional bars, but 

do so in different ways. One says a court can never hear a particular 

class of case (or subject matter jurisdiction), and another says a court 

can hear a particular case or issue only if a party meets certain 

prerequisites (or particular case jurisdiction, which is a subset of 

subject matter jurisdiction). Supra ¶ 82. When a statute deprives a 

court of subject matter jurisdiction, we would never say that the 

rules of preservation create the jurisdictional bar. The statute creates 

the jurisdictional bar. Arguing that the rules of preservation create 

the jurisdictional bar in the Plea Withdrawal Statute (which governs 

particular case jurisdiction) imposes a disconnected dichotomy 

between these two types of statutes that is not supported by our 

constitution. Regardless of how a statute governs our jurisdiction, it 

is the statute itself that does so, not the rules of preservation. 

3. Statutes Prescribe Actions and Announce Penalties, Not 

Preservation

¶101 The majority’s approach inserts uncertainty and confusion 

into our rules of preservation. It incorporates preservation 

terminology into every statute and rule that includes a timing 

requirement. Supra ¶¶ 28–29. It then attempts to distinguish between 

_____________________________________________________________

25 The legislature also limits the substantive issues that our 

juvenile and justice courts can hear. See UTAH CONST. art. VIII, § 5 

(stating that “[t]he jurisdiction of all other courts, both original and 

appellate, shall be provided by statute”); see also UTAH CODE § 78A-6-

103 (defining the substantive issues that a juvenile court has 

jurisdiction to hear); id. § 78A-7-106 (granting jurisdiction to the 

justice courts to hear only “class B and C misdemeanors” and other 

limited, substantive matters). Preservation has nothing to do with 

the legislature’s definition of the jurisdiction of these courts. Their 

jurisdiction is defined by the statutes. 

Additionally, while the constitution grants this court appellate 

jurisdiction over all cases that we do not have original jurisdiction 

over, the legislature has exercised its constitutional power to 

regulate the manner in which we exercise our appellate jurisdiction. 

UTAH CONST. art. VIII, § 3; see supra ¶ 71 n.3.
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35

our common law of preservation and preservation mandated by a 

statute or rule by holding that the exceptions to preservation apply 

only to statutory preservation requirements in limited 

circumstances. Supra ¶ 32. I believe there is a more straightforward 

approach. Rather than trying to draw a statute’s or a rule’s 

requirements into our common law of preservation, these should be 

seen as separate and distinct doctrines to avoid confusing the 

common law of preservation.

¶102 Our common law of preservation imposes procedural 

requirements on litigants to raise issues at the necessary time to 

avoid waiving them and to “preserve” those issues for review on 

appeal. State v. Johnson, 2017 UT 70, ¶¶ 14–15, --- P.3d ---. The 

common law of preservation is self-imposed and is one of prudence 

that is intended to serve the interests of justice and procedural 

regularity. Id. ¶ 12. To further serve those interests of justice, the 

common law of preservation is subject to exceptions. While some 

preservation exceptions are well defined, this area of law is still in 

development. Id. ¶ 39 (stating that our exceptions to preservation 

may “continue to evolve as we confront future challenges”). That is 

how the common law operates. As each case comes before us, we 

have the opportunity to refine the common law as justice so requires.

¶103 Unlike the common law, we are bound by the language 

and intent of statutes and rules (even if the rules are self-imposed). 

Our sole task is to interpret and apply the statute or rule to the facts 

before us. Most statutes and rules govern the actions of individuals 

or entities. Some statutes deal with substantive obligations and 

rights, such as the prohibition on committing a crime or the 

requirement to pay taxes. Other statutes govern the process an 

individual or entity must follow to protect or enforce those rights 

and obligations, such as a requirement to file something within a 

particular time or the allocation of the burden of proof between 

parties in a lawsuit. 

¶104 When an individual brings suit to enforce an alleged right 

or obligation, the individual or entity can be substantively barred 

from that suit if no actual right or obligation exists. See UTAH R. CIV.

P. 12(b)(6) (stating that a party must actually state a legally 

enforceable claim that entitles them to some form of remedy or the 

case will be dismissed); see also Harvey v. Ute Indian Tribe of the Uintah 

& Ouray Reservation, 2017 UT 75, ¶ 73, --- P.3d --- (holding that there 

is no currently enforceable civil cause of action for extortion). Also, 

an individual or entity can be procedurally barred if they fail to take 

the steps necessary to enforce those rights or obligations. See, e.g., 

UTAH R. CIV. P. 12(b)(5) (allowing a court to dismiss a case if there 
STATE v. RETTIG

DURHAM, J., concurring in the result

36

was “insufficien[t] . . . service of process”); Adamson v. City of Provo, 

819 F. Supp. 934, 939 (D. Utah 1993) (discussing “procedural and 

substantive bars” raised by a party). The statute or rule provides the 

necessary procedural steps to enforce substantive rights; whether it 

is a timing requirement, a requirement to bring the suit in the correct 

court or administrative agency, or a requirement to serve a 

complaint on the opposing party. When a party fails to comply with 

the statute or rule, they are procedurally barred. This bar exists 

because of a failure to comply with the statute or rule.26

¶105 Inserting our common law of preservation and waiver into 

the Utah Code and into our procedural rules is unnecessary and only 

brings confusion into this area of the law. I would keep our common 

law of preservation separate from our analysis under a statute or 

rule, with one obvious exception. When a statute or rule refers to 

and incorporates our common law, it must be read in light of the 

common law. Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 

(“When the legislature ‘borrows terms of art in which are 

accumulated the legal tradition and meaning of centuries of practice, 

it presumably knows and adopts the cluster of ideas that were 

attached to each borrowed word in the body of learning from which 

it was taken.’” (citation omitted)). But when a statute simply says 

that a party must file a motion to withdraw a guilty plea before 

sentencing, I would not invoke our common law of preservation. If a 

party fails to comply with the statutory timing requirement, I would 

simply hold that they are barred because the statute says they are 

barred. 

¶106 Only a small minority of statutes and rules deal with 

timing requirements. The majority would have us insert preservation 

analysis into these statutes and rules, thereby treating them 

differently from every other statute or rule. I would keep our 

statutory and rule analysis separate from our common law of 

preservation in order to prevent any confusion as to whether a 

statute is dealing with preservation, and whether the exceptions to

preservation should apply to that statute. However, when a statute 

or rule clearly intends for our common law preservation exceptions 

to apply to a timing requirement, then it incorporates our common 

law and must be read in that context. See, e.g., UTAH R. CRIM. P. 19(e) 

(“Unless a party objects to an instruction or the failure to give an 

instruction, the instruction may not be assigned as error except to 

_____________________________________________________________

26 Some of these statutory bars affect the jurisdiction of a court, 

and some statutory or rule based bars simply bar individuals from 

enforcing their rights because the statute or rule says they are barred.
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DURHAM, J., concurring in the result

37

avoid a manifest injustice.”); Johnson, 2017 UT 70, ¶ 57 n.16 (holding 

that the “manifest injustice” exception in Utah Rule of Criminal 

Procedure 19 “incorporates the exceptions to the preservation 

requirement”). When it does not, we should simply apply the statute 

or rule as written without muddying the waters by using 

preservation terminology.

C. The Plea Withdrawal Statute and the Right to Appeal

¶107 Having laid out my framework for understanding our 

jurisdiction and the proper role of preservation, I now turn to 

whether the Plea Withdrawal Statute violates the constitutional right 

to appeal. The Utah Code of Criminal Procedure grants defendants 

the right to plead guilty with the associated right to engage in plea 

bargaining. See UTAH CODE § 77-13-1. Once a guilty plea has been 

entered, the guilty plea is binding on the guilt phase of litigation. If 

the defendant wishes to challenge his guilty plea, he must do so “by 

motion before sentence is announced.” Id. § 77-13-6(2)(b). 

¶108 After the defendant enters the guilty plea, the defendant 

must be sentenced “not less than two nor more than 45 days after the 

. . . plea, unless the court, with the concurrence of the defendant, 

otherwise orders.” UTAH R. CRIM. P. 22(a). Thus, the defendant has 

time to consider his guilty plea before he is barred from moving to 

withdraw that plea. If the defendant fails to move to withdraw his 

guilty plea before sentencing, “[a]ny challenge” to his plea must be 

made under the PCRA. UTAH CODE § 77-13-6(2)(c). 

¶109 The majority looks at how long the defendant has to file a 

motion to withdraw a guilty plea in determining whether his right to 

appeal has been unconstitutionally denied. It determines that so long 

as a statute does not create “an ‘absurdly short’ time” for raising an 

issue or the preservation requirement does not otherwise 

“eliminate[] any meaningful avenue for appellate review,” it is 

constitutional and the defendant must comply with the requirement. 

Supra ¶ 23. Certainly, appellants must comply with procedural 

requirements to invoke the jurisdiction of the appellate court, such as 

filing a timely notice of appeal. Just as certainly, a timing 

requirement could violate the right to appeal if it is absurdly short. 

¶110 However, this is not the only way a criminal defendant’s 

right to appeal could be infringed. The right to appeal also 

guarantees defendants the right to have a claim heard, assuming 

they meet the procedural requirements to invoke our jurisdiction. 

The majority rejects this assertion, holding that the Plea Withdrawal 

Statute only narrows the issues that an appellate court can hear. 

However, just because it narrows the issues an appellate court can 
STATE v. RETTIG

DURHAM, J., concurring in the result

38

hear does not make it “uncontroversial.” Supra ¶ 18. For example, 

imagine that the legislature passed a statute saying the following: 

Any private party may sue a university for its 

negligence. If, however, the district court holds that the 

university is not negligent, the private party may not 

appeal such a holding. On the other hand, if the 

university is held to be negligent by the district court, 

the university may appeal the district court’s ruling.

This would certainly violate the private party’s right to appeal, along 

with a few other constitutional rights, even though it is only 

narrowing the issues that an appellate court can review.

¶111 The majority’s holding insulates such a statute from the 

constitutional right to appeal in this case. Mr. Rettig has argued that 

his plea counsel was ineffective in advising him to plead guilty. A 

claim for ineffective assistance is sometimes considered an exception 

to preservation. Unfortunately for Mr. Rettig, the majority holds that 

the Plea Withdrawal Statute is insulated from preservation 

exceptions because it creates both a bar based on preservation and 

on jurisdiction. Apparently, the majority believes that this claim 

must be preserved in the district court by bringing such a claim 

before sentence is announced, otherwise it is unpreserved and we 

cannot hear it under any circumstances. This misunderstands a claim 

for ineffective assistance of counsel.

¶112 While ineffective assistance of counsel is “sometimes 

characterized as an exception to preservation,” it is actually “a standalone constitutional claim attacking the performance of a criminal 

defendant’s counsel.” Johnson, 2017 UT 70, ¶ 22. Such a claim does 

not accrue until after the defendant’s counsel provides ineffective 

assistance. Id. ¶ 23. Typically, when a defendant receives ineffective 

assistance of counsel, the defendant may either raise the new 

constitutional claim in a post-trial motion or on direct appeal 

because that is the first opportunity the defendant has to raise the 

claim. Id.; State v. Templin, 805 P.2d 182, 185 (Utah 1990) (stating that 

“the same principles [that] apply in addressing ineffective assistance 

claims in motions for new trials apply on direct appeal and in habeas 

corpus actions” (citation omitted)). Even though this new 

constitutional claim can typically be brought after the time has 

passed to preserve an issue (because it could not be brought earlier), 

the majority holds that it is barred by the statute and the statute does 

not unconstitutionally limit what issues can be brought on direct 

appeal. I disagree. We must recognize the nature of a claim for 

ineffective assistance of counsel and the fact that the plea withdrawal 

statute could infringe the constitutional right to appeal. 
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DURHAM, J., concurring in the result

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¶113 Say, for instance, that a defendant is charged with arson. 

Arson requires that a “person by means of fire or explosives 

unlawfully and intentionally damages” property. UTAH CODE § 76-6-

102(1). Also assume that the defendant pleads guilty to arson upon 

the advice of his attorney. However, the facts entered in the guilty 

plea admit only that he intentionally started a garbage fire at his 

place of employment under the direction of his employer, but that 

the fire got out of control and burned the building down. His 

statement in support of the guilty plea asserts that he did not intend 

to damage the building.27

¶114 Under these facts, the defendant is not actually guilty of 

arson as the defendant did not intentionally damage his employer’s 

building. However, his attorney advised him that he was guilty of 

arson and should enter a plea of guilty. Immediately after being 

sentenced, the defendant obtains new counsel who advises him that 

he is not actually guilty of arson. If the Plea Withdrawal Statute did 

not cut off the district court’s jurisdiction to hear a post-sentencing 

motion, and our appellate jurisdiction to hear a challenge to the 

guilty plea, the defendant would be able to bring this new 

constitutional claim on direct appeal. However, the Plea Withdrawal 

Statute cuts off our jurisdiction, so we cannot review it on direct 

appeal. This is despite the fact that he could not have preserved this 

claim in the district court and we typically could review such a claim 

on direct appeal regardless of preservation. 

¶115 The Plea Withdrawal Statute arguably gives the defendant 

the right to bring such a claim under the PCRA. However, a criminal 

defendant’s constitutional right to direct appeal includes the 

associated constitutional rights to paid counsel and effective 

assistance of counsel on direct appeal. If the defendant was allowed 

to bring his ineffective assistance of counsel claim on direct appeal, 

he could get his appellate counsel’s fees paid for by the State. Also, if 

his appellate counsel made a case-altering mistake, such as by failing 

to file a notice of appeal within the required time, he would have a 

new claim that his appellate counsel was ineffective.

¶116 The majority’s approach eviscerates these rights. Under 

this approach, if the criminal defendant wants to bring his ineffective 

assistance of counsel claim—one that he could not have preserved in 

the district court—he must bring such a claim in a PCRA proceeding 

_____________________________________________________________

27 These facts are taken from State v. Breckenridge, 688 P.2d 440 

(Utah 1983), with some alterations to show their applicability to the 

Plea Withdrawal Statute.
STATE v. RETTIG

DURHAM, J., concurring in the result

40

where he is not guaranteed the right to State paid counsel or the 

right to effective assistance of counsel. This is the only route for the 

defendant to bring this claim.

¶117 The majority insulates the Plea Withdrawal Statute from 

the constitutional right to appeal. However, “[i]t is a proposition too 

plain to be contested, that the constitution controls any legislative act 

repugnant to it . . . .” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 

(1803) (emphasis added). In this case, Mr. Rettig argued that he was 

unconstitutionally denied the right to appeal because he could be 

denied the constitutional right to effective assistance of paid counsel 

in a PCRA proceeding. Mr. Rettig’s right to appeal may very well be 

abrogated. Despite this possibility, I would follow Gailey and hold 

that this issue is not ripe for determination because he has not yet 

been denied paid counsel nor has he suffered from ineffective 

assistance of counsel in a PCRA proceeding. 2016 UT 35, ¶ 30. 

II. THE CONSTITUTIONALITY OF SUBSECTION (2)(C) 

UNDER ARTICLE VIII, SECTION 4 

¶118 As mentioned above, Mr. Rettig brought two 

constitutional challenges to the Plea Withdrawal Statute’s 

jurisdictional bar. His second argument is that subsection (2)(c) of 

the Plea Withdrawal Statute is purely procedural and is therefore 

unconstitutional under article VIII, section 4 of the Utah 

Constitution.

¶119 Under article VIII, section 4, this court has the authority to 

“adopt rules of procedure and evidence to be used in the courts of 

the state.” UTAH CONST. art. VIII, § 4. On the other hand, the 

legislature has the authority to amend those rules “upon a vote of 

two-thirds of all members of both houses of the Legislature.” Id.; see 

also Injured Workers Ass’n v. State, 2016 UT 21, ¶¶ 23–26, 374 P.3d 14 

(In order to “maintain[] an independent judiciary,” this court has the 

power to promulgate rules of procedure, but “the constitution 

permits legislative oversight of” those rules. (citation omitted)). The 

core question under this article is whether subsection (2)(c) “is a rule 

of procedure or creates a substantive right.” State v. Drej, 2010 UT 35, 

¶ 26, 233 P.3d 476.

¶120 In State v. Drej, we classified three categories of statutes 

under article VIII, section 4: (1) “purely procedural,” (2) substantive, 

and (3) procedural provisions that are “so intertwined with a 

substantive right that the court must view it as substantive.” Id. 

¶¶ 25–31. When the legislature codifies statutes that fall under the 

latter two, they do not violate article VIII, section 4. But the 

legislature does not have the constitutional power to “adopt rules of 

procedure.” Brown v. Cox, 2017 UT 3, ¶ 17, 387 P.3d 1040. Its power is 
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DURHAM, J., concurring in the result

41

limited to “amend[ing] the . . . Supreme Court [rules] upon a vote of 

two-thirds of all members of both houses of the Legislature.” UTAH 

CONST. art. VIII, § 4. As we clarified in Brown v. Cox, when the 

legislature intends to exercise its power of oversight under article 

VIII, section 4, the legislative action must “contain a reference to the 

rule to be amended and a clear expression of the Legislature’s intent 

to modify our rules.” 2017 UT 3, ¶ 20. Thus, when a statute is purely 

procedural and does not comply with the requirements to amend 

one of this court’s rules, the statute violates Utah’s constitutional 

separation of powers. See UTAH CONST. art. V, § 1 (“[N]o person 

charged with the exercise of powers properly belonging to one of 

these departments, shall exercise any functions appertaining to 

either of the others, except in the cases herein expressly directed or 

permitted.”).

¶121 The tricky issue is determining whether a statute is purely 

procedural. See Ohlhoff v. Ohlhoff, 586 A.2d 839, 844 (N.J. Super. Ct. 

App. Div. 1991) (“[T]he line between procedural and substantive law 

is blurry.”); State v. Coats, 797 P.2d 693, 696 (Ariz. Ct. App. 1990) 

(noting that “a rule may be procedural in one context and 

substantive in another”); Kent R. Hart, Note, Court Rulemaking in 

Utah Following the 1985 Revision of the Utah Constitution, 1992 UTAH L.

REV. 153, 154 (1992) (stating that “both legislative enactments and 

court rules contain elements of substance and procedure”). Many 

courts in states with a constitutional provision that mirrors ours are 

“extremely hesitant to characterize a subject as purely procedural 

and consequently within the exclusive authority of the Supreme 

Court.” Ohlhoff, 586 A.2d at 844 (citing Busik v. Levine, 307 A.2d 571, 

583 (N.J. 1973)).28 These courts avoid over-stepping their 

_____________________________________________________________

28 See also Borer v. Lewis, 91 P.3d 375, 380 (Colo. 2004) (despite sole 

authority of court to promulgate rules of procedure, “we strive to 

avoid any unnecessary ‘[c]onfrontation[s] of constitutional 

authority,’ and instead seek to reconcile the language . . . of the 

legislative enactment with our own . . . rules of procedure” (first and 

second alterations in original) (citation omitted)); Daou v. Harris, 678 

P.2d 934, 939 (Ariz. 1984) (holding that “all legislative enactments 

relating to procedure shall be deemed rules of court” when they do 

not conflict with the rules promulgated by the supreme court); City 

of Fargo v. Ruether, 490 N.W.2d 481, 483 (N.D. 1992) (holding that, 

despite the court’s “final authority over procedural rules,” the court 

“will recognize ‘statutory arrangements which seem reasonable and 

workable’ and which supplement the rules we have promulgated” 

(citations omitted)); State v. Radford, No. 2005-CA-58, 2006 WL 

(continued . . .)
STATE v. RETTIG

DURHAM, J., concurring in the result

42

constitutional power by crossing into the legislature’s lane. We are 

treading on thin constitutional ice when we declare a statute purely 

procedural and strike it down as unconstitutional, because most 

statutes contain substantive and procedural elements. 

¶122 These same concerns are what led us in Drej to defer to the 

legislature when a statute’s substance is intertwined with its 

procedural components. When those procedural components do not 

directly conflict with our rules and they are inextricably connected to 

the substantive provisions in the statute, we will not strike down the 

procedural components of the statute under article VIII, section 4. 

See Drej, 2010 UT 35, ¶ 31.

¶123 Substantive statutes “create[], define[] and regulate[] the 

rights and duties of the parties . . . which may give rise to a cause for 

action,” Id. ¶ 26 (fourth alteration in original) (citation omitted), and 

they cut off substantive rights as well, Brown & Root Indus. Serv. v. 

Indus. Comm’n, 947 P.2d 671, 676 (Utah 1997) (holding that statutory 

amendment that cut off a party’s rights “defines and regulates 

substantive rights”). Conversely, a statute is procedural when it 

“prescribes the practice and procedure or the legal machinery by 

which the substantive law is determined or made effective” and 

provides the “procedure for enforcing substantive rights.” Drej, 2010 

UT 35, ¶¶ 26–27 (citations omitted). “Procedural laws are ‘concerned 

solely with the judicial processes.’” Id. ¶ 27 (citation omitted).

¶124 The majority holds that “[s]ubsection (2)(c) is a classic 

matter of substance in that it establishes a new remedy or cause of 

action.” Supra ¶ 57. I do not see how subsection (2)(c) does anything 

but point defendants to a pre-existing remedy or cause of action and 

cut off our jurisdiction to hear an untimely challenge. Subsection 

(2)(c) provides that “[a]ny challenge to a guilty plea not made” 

before sentencing “shall be pursued under [the PCRA].” UTAH CODE

§ 77-13-6(2)(c). Nothing in subsection (2)(c) creates or expands a 

defendant’s rights under the PCRA. The PCRA itself creates the 

defendant’s cause of action to challenge a guilty plea in a separate 

proceeding. If a defendant who fails to move to withdraw a guilty 

plea before sentencing seeks to challenge that plea under the PCRA, 

he must comply with all of the substantive and procedural 

_____________________________________________________________

(continued . . .)

827380, at *4 (Ohio Ct. App. Mar. 31, 2006) (holding that when rules 

of evidence are “silent concerning” a particular issue, the legislature 

does not violate separation of powers in enacting evidentiary rules in 

a statute (citation omitted))
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DURHAM, J., concurring in the result

43

requirements under that statute. Subsection (2)(c) does not grant 

defendants any rights that do not already exists. It merely points 

defendants to a statute that does create rights, and then cuts off their 

ability to challenge their guilty plea in the criminal case by creating a 

jurisdictional bar.

¶125 Subsection (2)(c) contains both procedural and substantive 

components. While it is procedural in that it manages the judicial 

process by directing defendants to the PCRA, it is also substantive in 

cutting off the ability of a defendant to challenge a guilty plea and in 

cutting off the jurisdiction of the criminal court. See supra ¶ 83; State 

v. Gailey, 2016 UT 35, ¶ 19, 379 P.3d 1278 (Plea Withdrawal Statute 

cuts off jurisdiction of criminal court and appellate review). 

Regardless of whether subsection (2)(c) is more procedural or more 

substantive, I would hold that it is inextricably intertwined with the 

substantive right to withdraw a guilty plea. 

¶126 Title 77, chapter 13 of the Utah Code grants criminal 

defendants several substantive rights. It grants them the right to 

enter a plea of guilty. UTAH CODE § 77-13-1. It also grants them the 

right to withdraw the guilty plea. Id. § 77-13-6(1). However, the 

legislature appears to have been concerned with granting an 

unqualified right to withdraw a plea of guilty. So, it included certain 

restrictions on that right. First, a defendant can only withdraw a 

guilty plea “upon leave of the court and a showing that it was not 

knowingly and voluntarily made.” Id. § 77-13-6(2)(a). Second, a 

defendant must “request to withdraw a plea of guilty . . . before 

sentence is announced.” Id. § 77-13-6(2)(b). Finally, if the motion to 

withdraw the guilty plea is not made before sentencing, “[a]ny

challenge to [the] guilty plea” must be made in a separate PCRA 

proceeding. Id. § 77-13-6(2)(c). 

¶127 These restrictions are presumably intended to prevent a 

defendant from gaming the system, or experiencing buyer’s remorse, 

by previewing his sentence and then deciding to withdraw his plea if 

he does not like the sentence imposed. Entering a guilty plea is a 

serious matter that should be thoughtfully considered by a 

defendant. Once the plea is entered, the defendant cannot simply 

decide to withdraw it the next day. The defendant must have 

unknowingly or involuntarily entered the plea before he can 

withdraw it. These provisions imply that the legislature had one 

major concern when it granted defendants the rights to enter and 

withdraw a guilty plea: finality. While the legislature built in a 

release by allowing defendants to withdraw their guilty plea when 

they were legitimately uninformed or coerced, the right to withdraw 

is intended to be a narrow right.
STATE v. RETTIG

DURHAM, J., concurring in the result

44

¶128 Pulling subsection (2)(c) out of the web of rights and 

restrictions would cause the rest of the Plea Withdrawal Statute’s 

structure to crumble. See Drej, 2010 UT 35, ¶ 31 (holding that a 

statutory assignment of the burden of proof was inextricably 

intertwined with a substantive right because “the procedures 

attached to the substantive right cannot be stripped away without 

leaving the right or duty created meaningless”). It would strip the 

right to withdraw a guilty plea of some of its restrictions and would 

greatly damage the statutory scheme. Removing this restriction on 

the right to withdraw a guilty plea could even pressure the 

legislature to remove that statutory right if they feel they are unable 

to place limitations on it. Because subsection (2)(c) is so intertwined 

with the substantive rights to enter and withdraw a guilty plea, I 

would deem it as substantive and hold that it is constitutional under 

article VIII, section 4.

¶129 The majority is concerned that my analysis weighs in favor 

of the constitutionality of subsection (2)(b). I do not address the 

constitutionality of that subsection, nor do I apologize for my 

analysis concerning subsection (2)(c). Our role as judges is to apply 

the facts and arguments presented to the law. That is all I have done 

here.

¶130 I am equally concerned with the majority’s statement that 

“[s]ubsection (2)(b) . . . is quintessentially procedural,” essentially 

ruling on subsection (2)(b)’s constitutionality even though it says it is 

not reaching that issue. Supra ¶¶ 58, 60. It then goes on to say that 

“[y]ou can’t get much more procedural than a filing deadline.” Supra 

¶ 58. This weighs heavily in favor of all filing deadlines being 

unconstitutional under article VIII, section 4. Certainly, a statute of 

limitations is a filing deadline in a district court. We do not typically 

take issue with a run-of-the-mill statute of limitations. 

¶131 The majority tries to shore up its analysis by stating that a 

statute of limitations is a “kind of filing deadline [that] has long been 

understood to fall within the domain of the legislature.” Supra ¶ 58 

n.13. This is a distinction without a difference. Prior to 1985, when 

our constitution was amended to give this court its rule making 

authority, the legislature had ultimate authority over procedural 

rulemaking, including timing requirements. Hart, supra ¶ 121, at 

155–56 (“[A]lthough the supreme court possessed some power over 

procedural rulemaking . . . during this period, the legislature 

retained ultimate control over establishing procedural rules for Utah 

courts.”). Historically, every kind of filing deadline was “understood 

to fall within the domain of the legislature.” Supra ¶ 58 n.13.
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III. CONCLUSION

¶132 The majority holds that Mr. Rettig has failed in his 

constitutional challenges to the Plea Withdrawal Statute’s 

jurisdictional bar. I concur in the outcome in this opinion, but I have 

grave concerns about the route the majority takes to get there. It has 

altered our jurisdictional analysis, the way we view our common law 

of preservation, and the way we interpret every statute and 

procedural rule with a time restriction. It also classifies subsection 

(2)(c) of the Plea Withdrawal Statute as creating a substantive cause 

of action when it merely points defendants to the PCRA (that 

actually creates the cause of action). The majority’s opinion could 

have many unforeseen consequences in future cases.