This opinion is subject to revision before final

publication in the Pacific Reporter

2016 UT 35

IN THE

SUPREME COURT OF THE STATE OF UTAH

SHANELLE GAILEY,

Appellant,

v.

STATE OF UTAH,

Appellee.

No. 20130637

Filed August 01, 2016

On Certification from the Court of Appeals

Third District, Salt Lake

The Honorable James T. Blanch

No. 131902636

Attorneys:

Catherine E. Lilly, Nathalie S. Skibine,

Salt Lake City, for appellant

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

Asst. Att’y Gen., for appellee

JUSTICE DURHAM authored the opinion of the Court,

in which JUSTICE HIMONAS and JUSTICE PEARCE joined.

ASSOCIATE CHIEF JUSTICE LEE filed an opinion concurring in the 

judgment, in which CHIEF JUSTICE DURRANT joined.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 Over the course of a few hours on June 17, 2013, defendant 

Shanelle Gailey entered her initial appearance in the district court for 

burglary-related charges, was appointed counsel, waived her right to 

a preliminary hearing and trial, pled guilty, waived the waiting 

period for sentencing, and received judgment and sentence. 
GAILEY v. STATE OF UTAH

Opinion of the Court

2

¶2 Ms. Gailey now wishes to challenge her plea as 

unknowing and involuntary, but Utah Code section 77-13-6 (Plea 

Withdrawal Statute) cuts off a defendant’s right to a direct appeal 

once sentencing is announced, requiring the defendant instead to 

pursue plea withdrawal claims collaterally through the PostConviction Remedies Act (PCRA). Ms. Gailey argues—contrary to 

our caselaw—that the Plea Withdrawal Statute does not cut off her 

right to a direct appeal, but merely allows a defendant to pursue 

either a direct appeal or postconviction relief. If the statute does in 

fact preclude a direct appeal, then Ms. Gailey argues that the statute 

is unconstitutional because article I, section 12 of the Utah 

constitution provides that “[i]n criminal prosecutions the accused 

shall have . . . the right to appeal in all cases” and she claims that the 

PCRA remedy is not an adequate substitute for a direct appeal.

¶3 We reaffirm our caselaw and conclude that the Plea 

Withdrawal Statute bars direct appeals once sentencing takes place, 

and requires defendants to pursue postconviction relief. We also 

determine that Ms. Gailey’s constitutional right to an appeal has not 

been violated—the Plea Withdrawal Statute does not altogether 

foreclose the right to an appeal; rather, it provides an alternative 

procedural route for challenging a plea. Although Ms. Gailey also 

argues that she could hypothetically be denied state-paid counsel or 

the effective assistance of counsel in the PCRA proceeding, which 

she claims would render such a proceeding an inadequate substitute 

for an ordinary appeal, she has not chosen to pursue such a 

proceeding and therefore these claims are not ripe for our review.

BACKGROUND

¶4 The State charged Ms. Gailey with burglary, theft, and 

criminal mischief for allegedly breaking into her mother’s home and 

stealing cash and her mother’s car keys. Ms. Gailey’s case was 

assigned to Early Case Resolution (ECR) Court. On June 17, 2013, 

Ms. Gailey entered her initial appearance, was appointed counsel, 

and waived her right to a preliminary hearing. After the State agreed 

to drop two of the charges and reduce the burglary charge to 

criminal trespass, Ms. Gailey agreed to plead guilty.

¶5 A person may be guilty of criminal trespass under Utah 

Code section 76-6-206(2)(a) if she “enters or remains unlawfully on 

property and . . . intends to cause [an] annoyance.” Ms. Gailey’s plea 

affidavit stated that “On March 13, 2013, in Salt Lake County, 

Shanelle Gailey unlawfully entered onto another’s property 

intending to cause an annoyance.” Ms. Gailey’s counsel read this 
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Opinion of the Court

3

statement to the court and the judge asked Ms. Gailey if that was 

what happened. The following exchange then took place:

DEFENDANT GAILEY: Not exactly but it’s my 

mother’s house, I stayed there but I did annoy her. I 

will say that, didn’t intend to but I did.

THE COURT: So it sounds like you started by saying 

that you didn’t really do it and then you came around 

and those facts are basically the facts of the case?

DEFENDANT GAILEY: Yeah, they are.

THE COURT: So do you admit that those facts that 

your counsel described are essentially what happened 

in the case?

DEFENDANT GAILEY: Yes.

THE COURT: Okay. And are you pleading guilty to 

the charge because you’re guilty of it?

DEFENDANT GAILEY: Yes.

¶6 The judge informed Ms. Gailey that by pleading guilty she 

would be giving up “important constitutional rights,” including the 

right to trial and the right to appeal any conviction at trial to an 

appellate court. The judge also advised Ms. Gailey that by waiving 

the minimum two-day waiting period for sentencing she would 

waive any chance she would otherwise have to withdraw her guilty 

plea. Ms. Gailey indicated that she understood and the court then 

entered judgment and sentence. 

¶7 Ms. Gailey filed a notice of appeal without filing a motion 

to withdraw her plea. The court of appeals sua sponte offered a 

motion for summary disposition “on the basis that th[e] court lacks 

jurisdiction because there was no timely motion to withdraw the 

guilty plea.” Ms. Gailey then “assert[ed] that the nature of the court 

process under which her case proceeded precludes meeting the 

requirements for perfecting an appeal, and . . . there are 

constitutional issues implicated by the process.” In response, the 

court of appeals issued an order withdrawing the motion for 

summary disposition, and ordered that the case would go forward 

solely on the jurisdictional and constitutional questions raised. The 

court of appeals certified the case to this court. We have jurisdiction 

under Utah Code section 78A-3-102(3)(b).

STANDARD OF REVIEW

¶8 “Whether appellate jurisdiction exists is a question of law 

which we review for correctness . . . .” Migliore v. Livingston Fin., 
GAILEY v. STATE OF UTAH

Opinion of the Court

4

LLC, 2015 UT 9, ¶ 15, 347 P.3d 394 (citation omitted). The 

constitutionality of a statute is also a question of law reviewed for 

correctness. Injured Workers Ass’n v. State, 2016 UT 21, ¶ 12, ---P.3d---.

ANALYSIS

¶9 Article I, section 12 of the Utah constitution provides that 

“[i]n criminal prosecutions the accused shall have . . . the right to 

appeal in all cases.” This right is not unlimited, however, as “the 

appeal must be taken within such limitations and restrictions as to 

time and orderly procedure as the Legislature may prescribe.” 

Weaver v. Kimball, 202 P. 9, 10 (Utah 1921). One such limitation is 

Utah Code section 77-18a-1(1)(a), which permits defendants an 

appeal “as a matter of right . . . [from] a final judgment of conviction, 

whether by verdict or plea.”

¶10 The Plea Withdrawal Statute further limits a defendant’s 

right to appeal by requiring the defendant to either withdraw the 

plea prior to sentencing, or pursue postconviction relief after 

sentencing. Ms. Gailey argues that the Plea Withdrawal Statute 

provides postconviction relief as a permissive alternative to 

pursuing a direct appeal, not a mandatory replacement. She 

contends that “[t]here is nothing in the language of the [Plea 

Withdrawal Statute] that explicitly strips courts of jurisdiction,” and 

that our caselaw has mistakenly interpreted the statute as requiring 

defendants to pursue postconviction relief exclusively.

¶11 We use this opportunity to clarify and reaffirm our 

precedent holding that the Plea Withdrawal Statute is a procedural 

bar to a direct appeal post-sentencing. We next consider Ms. Gailey’s 

constitutional arguments, and conclude that the Plea Withdrawal 

Statute does not on its face violate the constitutional right to appeal, 

because it provides a mechanism for review of and relief from an 

unknowing or involuntary plea, including appellate review. Finally, 

we conclude that this statute is not unconstitutional as applied to 

Ms. Gailey as she has not yet encountered any deficiencies—

specifically, the deprivation of state-paid counsel or ineffective 

assistance of counsel —associated with pursuing postconviction 

relief. While the PCRA does not require an attorney to be appointed, 

the judge may nevertheless choose to appoint one for the defendant. 

And while effective assistance of counsel is not mandated in 

postconviction proceedings, Ms. Gailey has not pursued this remedy 

and we therefore do not know whether she would encounter 

ineffective assistance of counsel. Thus, these claims are not ripe for 

review.
Cite as: 2016 UT 35

Opinion of the Court

5

I. THE PLEA WITHDRAWAL STATUTE PROCEDURALLY 

REQUIRES DEFENDANTS TO PURSUE POSTCONVICTION 

RELIEF POST-SENTENCING

¶12 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; instead it provided that a “plea of guilty 

or no contest may be withdrawn only upon good cause shown and 

with leave of court.” UTAH CODE § 77-13-6 (1982); see Grimmett v. 

State, 2007 UT 11, ¶ 11, 152 P.3d 306; State v. Abeyta, 852 P.2d 993, 

994–96 (Utah 1993) (per curiam) (allowing the defendant to 

withdraw a guilty plea almost three years post-sentencing). Under 

the 1980 version of the statute, “even when a judge found that a plea 

was knowingly and voluntarily entered, he or she still retained broad 

discretion to determine whether other circumstances in the case 

constituted good cause for allowing the defendant to withdraw his 

plea.” State v. Ruiz, 2012 UT 29, ¶ 31, 282 P.3d 998.

¶13 But in 1989 the legislature amended the statute and 

created a thirty-day filing limitation on the defendant’s right to 

withdraw a guilty plea. UTAH CODE § 77-13-6(2)(b) (1989). The 

statute provided that this thirty-day limitation began to run at the 

“entry of the plea,” which we interpreted as referring to thirty days 

after the entry of final judgment, and not thirty days from the plea 

colloquy. State v. Ostler, 2001 UT 68, ¶ 11, 31 P.3d 528. 

¶14 In State v. Abeyta, we remarked that after this thirty-day 

period, “the right [to withdraw a guilty plea] is extinguished.” 852 

P.2d at 995. Although we later characterized this statement in Abeyta

as dictum, we reaffirmed the principle in several cases and expressly 

held the thirty-day limit to be a procedural bar to plea withdrawals 

and appeals from guilty pleas. See Ostler, 2001 UT 68, ¶ 10 (noting 

that if a defendant misses the thirty-day filing deadline, it would 

“deprive the district court of the power to review a plea”); State v. 

Reyes, 2002 UT 13, ¶ 3, 40 P.3d 630 (“[B]ecause Reyes did not move to 

withdraw his guilty plea within thirty days after the entry of the 

plea, we lack jurisdiction to address the issue on appeal.”); State v. 

Merrill, 2005 UT 34, ¶ 17, 114 P.3d 585 (“Although the retroactive 

promotion of dictum to holding is a practice we do not endorse, we 

neither apologize for our assessments of the jurisdictional nature of 

the thirty-day filing period in Abeyta and Ostler nor retreat from 

what is clearly our holding in Reyes, all of which imposes a 

jurisdictional bar on late-filed motions to withdraw guilty pleas.”); 

Grimmett, 2007 UT 11, ¶ 12 (“Section 77–13–6, however, was 

amended by the legislature in 1989 to impose a strict jurisdictional 

time limit.”).
GAILEY v. STATE OF UTAH

Opinion of the Court

6

¶15 In 2003, the legislature made the most recent substantive 

amendments to the Plea Withdrawal Statute by incorporating two 

major changes. First, the legislature removed the thirty-day filing 

deadline, and instead required that a “request to withdraw a plea of 

guilty . . . shall be made by motion before sentence is announced.” 

UTAH CODE § 77-13-6(2)(b). Second—and for the first time in the 

statute’s history1—the legislature provided a procedural remedy for 

relief where the defendant wishes to challenge a guilty plea but has 

missed the deadline. This remedy requires that any post-sentencing 

plea withdrawal challenges “shall” be pursued through 

postconviction relief in accordance with the PCRA and rule 65C of 

the Utah Rules of Civil Procedure. Id. § 77-13-6(2)(c).

¶16 Our cases interpreting the 2003 version of the Plea 

Withdrawal Statute have reaffirmed the principle that this statute 

imposes a procedural bar. See Grimmett, 2007 UT 11, ¶ 25 (“Because 

Grimmett’s motion to withdraw was untimely . . . we have no 

jurisdiction to consider his challenge to the validity of his guilty 

pleas.”); State v. Rhinehart, 2007 UT 61, ¶ 14, 167 P.3d 1046 (“[C]laims 

of ineffective assistance of counsel raised in the context of challenges 

to the lawfulness of guilty pleas are governed by section 77-13-6 

. . . . We therefore are without jurisdiction to consider 

Ms. Rhinehart’s claim.”); State v. Ott, 2010 UT 1, ¶ 18, 247 P.3d 344 

(“[F]ailure to withdraw a guilty plea within the time frame dictated 

by section 77-13-6 deprives the trial court and appellate courts of 

jurisdiction to review the validity of the plea.”); see also State v. Smith, 

2011 UT App 336, ¶ 4, 263 P.3d 1219 (“[I]f a defendant fails to file a 

timely motion to withdraw his guilty plea, the appellate court lacks 

jurisdiction to consider any claim except a challenge to the 

sentence. . . . If a motion to withdraw a guilty plea is not timely filed, 

any challenge to a guilty plea must be pursued under the [PCRA].”).

¶17 Ms. Gailey challenges our caselaw interpreting the Plea 

Withdrawal Statute, asserting that “[t]here is nothing in the language 

of the former or current statute that explicitly strips courts of 

jurisdiction.” Although the current language of the statute 

specifically provides that “[a]ny challenge to a guilty plea not made 

[pre-sentencing] shall be pursued under [the PCRA],” UTAH CODE

1 State v. Merrill incorrectly conflated the 1989 statute and the 2003 

statute by articulating the thirty-day filing limitation and the PCRA 

as two alternative options for withdrawing a plea. See 2005 UT 34, 

¶¶ 25, 30, 39, 114 P.3d 585. As detailed above, the thirty-day 

limitation is found only in the 1989 version of the statute while the 

PCRA remedy is found only in the 2003 version of the statute.
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Opinion of the Court

7

§ 77-13-6(2)(c) (emphasis added), Ms. Gailey argues that this 

language could be interpreted as directory and not mandatory, and 

therefore does not cut off a defendant’s right to a direct appeal postsentencing.

¶18 We reject Ms. Gailey’s reading of the statute. Although the 

1989 version of the statute did not expressly provide that the right to 

withdraw a plea is extinguished after the thirty-day deadline, we

inferred a procedural bar from its language and structure. Reliance 

on this inference is no longer necessary. The plain language of the 

current Plea Withdrawal Statute explicitly provides the procedural 

roadmap for post-sentencing motions to withdraw a plea—and that 

is through postconviction relief. 

¶19 There is also no indication that the legislature intended 

postconviction relief as a permissible alternative route to a direct 

appeal; in fact the inference goes the other way. In Grimmett, for 

example, we noted that the “legislature apparently enacted this 

amendment in response to our decision in State v. Ostler. . . . The 

2003 amendment eliminates [the thirty-day deadline] and instead 

mandates that any motion to withdraw a plea be filed before 

sentence is announced.” 2007 UT 11, ¶¶ 15–16 (citation omitted). 

Because the defendant in Grimmett failed to withdraw his plea before 

sentencing, we held that “we have no jurisdiction to consider his 

challenge to the validity of his guilty pleas.” Id. ¶ 25.

¶20 We therefore reaffirm our prior caselaw holding that after 

sentencing is entered, a defendant may not file a motion to withdraw 

a guilty plea or directly appeal the plea, but must pursue 

postconviction relief through the PCRA and rule 65C of the Utah 

Rules of Civil Procedure.

II. MS. GAILEY’S CONSTITUTIONAL RIGHT TO AN 

APPEAL HAS NOT BEEN VIOLATED

¶21 Ms. Gailey asks this court to reconsider our caselaw 

regarding the Plea Withdrawal Statute in light of the recent United 

States Supreme Court precedent recognizing the critical nature of the 

plea-bargaining process. See Missouri v. Frye, 132 S. Ct. 1399, 1407 

(2012) (“In today’s criminal justice system . . . the negotiation of a 

plea bargain, rather than the unfolding of a trial, is almost always the 

critical point for a defendant.”); Lafler v. Cooper, 132 S. Ct. 1376, 1388 

(2012) (noting that 94 percent of state convictions are the result of 
GAILEY v. STATE OF UTAH

Opinion of the Court

8

guilty pleas and rejecting the notion that a “fair trial wipes clean any 

deficient performance by defense counsel during plea bargaining”).2

¶22 Ms. Gailey claims that her plea was unknowing and 

involuntary and that therefore her waiver of the right to a direct 

appeal violated due process. Further, Ms. Gailey argues that the 

PCRA remedy does not satisfy her constitutional right to an appeal 

because—unlike a direct appeal—the PCRA does not guarantee 

state-paid counsel or the effective assistance of counsel in a challenge 

to a plea. 

¶23 We do not reach the question of whether Ms. Gailey’s plea 

was unknowing or involuntary, because we have been asked to 

determine only whether the Plea Withdrawal Statute’s requirement 

that Ms. Gailey pursue postconviction relief has violated her 

constitutional right to an appeal. We hold that the Plea Withdrawal 

Statute does not, on its face, violate the constitutional right to appeal. 

It simply dictates the procedural mechanism for pursuing a claim; it 

does not altogether foreclose relief.3 We also hold that Ms. Gailey’s 

Sixth Amendment claims to state-paid counsel and the effective 

assistance of counsel are not ripe, as Ms. Gailey has not yet 

2 It is also true that “[i]nnocence, while a relevant consideration 

for a defendant charged with a criminal offense who is considering 

whether or not to enter a guilty plea, is not a dispositive 

consideration and does not prevent criminal defendants from 

pleading guilty.” Russell D. Covey, Plea-Bargaining Law After Lafler 

and Frye, 51 DUQ. L. REV. 595, 615–16 (2013) (citing two police 

scandals wherein 81 percent of sixty-four actually innocent 

exonerees pled guilty to false charges).

3 The State argues that “the constitution has always granted the 

legislature authority to regulate how a Defendant must invoke 

appellate jurisdiction,” because the legislature has the power under 

article VIII, section 5 of the constitution to create statutes regarding 

original and appellate jurisdiction. But this provision of the 

constitution does not grant the legislature power to eviscerate other 

constitutional rights, including the right to appeal found in article I, 

section 12. See State v. Lara, 2005 UT 70, ¶ 21, 124 P.3d 243 (“Article I, 

section 12, in concert with article VIII, section 5, provides a unique 

connection between the article I guarantee of the right to appeal and 

an express grant of jurisdiction to give practical effect to that right.”). 

We are upholding the Plea Withdrawal Statute not because the 

legislature may enact any legislation it chooses—regardless of 

litigants’ constitutional rights—but because the statute does not 

facially violate the constitutional right to appeal.
Cite as: 2016 UT 35

Opinion of the Court

9

petitioned the court for counsel and we do not yet know whether 

that counsel would be ineffective. We therefore hold that 

Ms. Gailey’s constitutional right to an appeal has not been violated.

A. The Fundamental Constitutional Requirement of an Appeal May Be 

Served Through Alternative Procedural Routes

¶24 Notwithstanding the unavailability of a direct appeal in 

her criminal case, Ms. Gailey is not left without recourse to challenge 

her guilty plea post-sentencing; she may challenge her plea in a 

postconviction proceeding as provided for in the PCRA, including 

eventual plenary review by an appellate court. Grimmett v. State, 

2007 UT 11, ¶ 26, 152 P.3d 306 (“Our decision today does not leave 

Grimmett without a remedy, however. [The Plea Withdrawal 

Statute] expressly states that an untimely challenge to a guilty plea 

‘shall be pursued under’ the PCRA and rule 65C of the Utah Rules of 

Civil Procedure.”); see also Latorre v. United States, 193 F.3d 1035, 1037 

n.1 (8th Cir. 1999) (“Our decisions upholding waivers of direct-appeal

rights have explicitly noted the availability of [postconviction] 

collateral attack.”).

¶25 Under the PCRA, Ms. Gailey has the right to appeal from 

the final judgment of the postconviction proceeding in the district 

court. UTAH CODE § 78B-9-110. In fact, both Lafler and Frye—the cases 

Ms. Gailey relies upon to emphasize the importance of plea 

bargaining proceedings—are appeals from postconviction 

proceedings. Lafler, 132 S. Ct. at 1383–84; Frye, 132 S. Ct. at 1405. 

Therefore, we hold that the Plea Withdrawal Statute does not facially 

withhold the constitutional right to an appeal.

B. Right to Appointment of Counsel and Effective Assistance of Counsel

¶26 The Sixth Amendment right to counsel extends to a 

defendant’s first appeal as of right. This right includes the right to 

state-paid counsel for indigent defendants. Pennsylvania v. Finley, 481 

U.S. 551, 554 (1987) (“[D]enial of counsel to indigents on first appeal 

as of right amount[s] to unconstitutional discrimination against the 

poor.”). Indigent defendants also maintain a statutory right to statepaid counsel on direct appeal. See UTAH CODE § 77-32-304; Gardner v. 

Holden, 888 P.2d 608, 622 (Utah 1994) (articulating that the statute 

“provides for the assignment of counsel at state expense only during 

the trial proceedings and the first appeal of right or other remedies 

before or after conviction that the attorney considers to be in the 

interest of justice.”).

¶27 Defendants additionally have the right to the effective 

assistance of counsel on direct appeal. Bruner v. Carver, 920 P.2d 

1153, 1157 (Utah 1996) (“The Due Process Clause of the Fourteenth 
GAILEY v. STATE OF UTAH

Opinion of the Court

10

Amendment guarantees the right to effective assistance of appellate 

counsel.”); Evitts v. Lucey, 469 U.S. 387, 396 (1985) (“A first appeal as 

of right . . . is not adjudicated in accord with due process of law if the 

appellant does not have the effective assistance of an attorney.”).

¶28 Neither the right to state-paid counsel nor the right to 

effective assistance of counsel is constitutionally or statutorily 

guaranteed in postconviction proceedings. See Hutchings v. State,

2003 UT 52, ¶ 20, 84 P.3d 1150 (noting that defendants have “no 

statutory or constitutional right to counsel in a civil petition for postconviction relief”); Coleman v. Thompson, 501 U.S. 722, 752 (1991) 

(“There is no constitutional right to an attorney in state postconviction proceedings. Consequently, a petitioner cannot claim 

constitutionally ineffective assistance of counsel in such 

proceedings.” (citations omitted)). Thus, Ms. Gailey argues that the 

Plea Withdrawal Statute unconstitutionally infringes on her right to 

an appeal because it mandates review under the PCRA, where there 

is no guarantee of counsel. While we recognize that the PCRA does 

not guarantee state-paid counsel, it does provide that “the court may, 

upon the request of an indigent petitioner, appoint counsel on a pro 

bono basis to represent the petitioner.” UTAH CODE § 78B-9-109(1)

(emphasis added); accord State v. Merrill, 2005 UT 34, ¶ 47, 114 P.3d 

585 (“The PCRA expressly authorizes district courts to appoint 

counsel on a pro bono basis to a defendant pursuing post-conviction 

relief.”). 

¶29 Ms. Gailey argues that this permissive language is not 

enough, because she “is not in a position to prove to this Court that 

she will not be appointed PCRA counsel in the future.” This 

argument demonstrates why Ms. Gailey’s claims of constitutional 

inadequacy are premature. As we observed in State v. Merrill, 

“[w]hile not guaranteeing appointed counsel, the PCRA does not 

deny defendants access to counsel. [The defendant] has made no 

demonstration that PCRA petitioners like himself, who seek to 

withdraw guilty pleas, are generally, or ever, required to pursue 

their claims unaided by counsel.” 2005 UT 34, ¶ 47; see also Grimmett, 

2007 UT 11, ¶ 26 (“Given the circumstances that have led [the 

defendant] to this point and the fact that the merits of his argument 

have not yet been addressed, [the defendant] appears to be a prime 

candidate to benefit from the district court’s discretion to appoint 

counsel.”); State v. Stone, 2013 UT App 148, ¶ 11, 305 P.3d 167 

(“[Defendant] has not demonstrated that he would be forced to 

pursue relief under the PCRA without the aid of counsel.”). We 

cannot declare the PCRA remedy to be a constitutional violation of 

the right to assistance of counsel on appeal based on a hypothetical 
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Opinion of the Court

11

future denial of counsel.4 See Fundamentalist Church of Jesus Christ of 

Latter-Day Saints v. Lindberg, 2010 UT 51, ¶ 40, 238 P.3d 1054 (“The 

ripeness doctrine ‘serves to prevent courts from issuing advisory 

opinions’ on issues that are not ripe for adjudication.” (citation 

omitted)).

¶30 This same reasoning applies to Ms. Gailey’s argument that 

she would be deprived of the guarantee of effective assistance of 

counsel in the PCRA proceeding. The PCRA does provide that 

“[n]othing in this chapter shall be construed as creating the right to 

the effective assistance of postconviction counsel, and relief may not 

be granted on any claim that postconviction counsel was 

ineffective.” UTAH CODE § 78B-9-202(4). But unless and until 

Ms. Gailey is denied the effective assistance of counsel in the PCRA 

proceeding, her claim that it unconstitutionally denies her right to an 

appeal is not ripe.

CONCLUSION

¶31 Today we reaffirm our caselaw holding that the Plea 

Withdrawal Statute procedurally cuts off a defendant’s right to a 

direct appeal post-sentencing. However, defendants are not left 

without a remedy to challenge invalid pleas and to appellate review 

of such challenges; they may pursue their claims collaterally through 

postconviction proceedings. As for Ms. Gailey’s arguments that the 

PCRA does not guarantee state-paid counsel or the effective 

assistance of counsel, we conclude that she is requesting a ruling on 

the hypothetical possibility of ineffective assistance or the denial of 

state-paid counsel. We determine these issues are not ripe for 

review. Because Ms. Gailey is procedurally barred from pursuing 

this direct appeal, we dismiss.

4 As in Grimmett, Ms. Gailey would greatly benefit from the 

appointment of counsel in her postconviction proceeding. See 

Grimmett, 2007 UT 11, ¶ 26 (“Grimmett appears to be a prime 

candidate to benefit from the district court’s discretion to appoint 

counsel.”).
GAILEY v. STATE OF UTAH

ASSOCIATE CHIEF JUSTICE LEE, concurring

12

ASSOCIATE CHIEF JUSTICE LEE, concurring in the judgment:

¶33 Shanelle Gailey has not been deprived of an appeal. She 

filed one, and we are considering it in our opinions in this case. 

Thus, the effect of the Plea Withdrawal Statute, Utah Code section 

77-13-6, is not to “cut[] off a defendant’s right to a direct appeal.” 

Supra ¶ 2. It is only to limit the issues that may be raised therein, by a 

rule of preservation or waiver.

¶34 The Plea Withdrawal Statute does not foreclose an appeal. 

It simply says that a defendant may not seek to “withdraw a plea of 

guilty” at any time after a “sentence is announced.” UTAH CODE § 77-

13-6(2)(b). This is a rule of preservation, or in other words, waiver. It 

says only that a guilty plea may not be challenged further—either in 

the district court or on appeal—if it is not withdrawn prior to 

sentencing. Thus, Gailey has not lost her right to appeal; she simply 

waived the right to raise a specific issue (the validity of her guilty 

plea) by not preserving the argument at the time required by the 

governing law.

¶35 Rules of this sort are commonplace. They are embedded in 

our caselaw under the law of preservation1 and reflected in our rules 

of procedure.2 Such rules require parties to raise issues or arguments 

at specified times and by certain means. And they treat a failure to 

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

litigation.

¶36 These sorts of rules—in the law of preservation and in our 

rules of procedure—have never been thought to impinge on the 

constitutional right to an appeal. Yet the majority proceeds on the 

1 See State v. Rhinehart, 2007 UT 61, ¶ 15, 167 P.3d 1046 (“Except in 

those instances in which errors affect the court’s jurisdiction or 

where claims of error are expressly preserved for appeal, a 

conviction or guilty plea acts as a waiver of earlier procedural 

flaws.”); State v. Pinder, 2005 UT 15, ¶ 42, 114 P.3d 551 (precluding 

defendant from raising evidentiary objections not properly 

preserved at trial; explaining that defendant “waived these 

evidentiary arguments because he did not properly preserve” them).

2 See UTAH R. CRIM. P. 12(f) (stating the general rule that “[f]ailure 

of the defendant to timely raise defenses or objections or to make 

requests which must be made prior to trial or at the time set by the 

court shall constitute waiver thereof”); State v. Candland, 2013 UT 55, 

¶ 15, 309 P.3d 230 (explaining that where a plea is taken in 

accordance with criminal rule 11, “many constitutional challenges to 

the entry of a guilty plea are foreclosed” from being raised on 

appeal).
Cite as: 2016 UT 35

ASSOCIATE CHIEF JUSTICE LEE, concurring

13

premise that they do. It characterizes the Plea Withdrawal Statute as 

a law that “cuts off” Ms. Gailey’s “right to a direct appeal once 

sentencing is announced,” and proceeds to the question whether 

“the PCRA remedy is . . . an adequate substitute for a direct appeal.” 

Supra ¶¶ 2–3.

¶37 The court stops short of resolving that issue on its merits. 

Because the heart of the issue presented concerns the question 

whether the right to an appeal encompasses a right to paid counsel, 

and because Ms. Gailey has not yet been deprived of paid counsel, 

the majority concludes that her claim to a right to “state-paid 

counsel” is “not ripe.” Supra ¶ 23. And it dismisses the appeal 

without opining3 on the existence of such a right.

¶38 Yet the court proceeds on the implicit premise that the 

state constitutional right to appeal encompasses a right to paid 

counsel. It does so between the lines of its discussion in paragraphs 

28 and 29. There the court acknowledges that there is neither a right 

to “state-paid counsel” nor a “right to effective assistance of counsel” 

“in postconviction proceedings.” Supra ¶ 28. But it proceeds to note 

that “although state paid-counsel is not guaranteed, the PCRA 

provides that ‘the court may, upon the request of an indigent 

petitioner, appoint counsel on a pro bono basis to represent the 

petitioner.” Id. (citation omitted). And it deems Gailey’s 

constitutional argument unripe on that basis. It says that “[w]e cannot 

declare the PCRA remedy to be a constitutional violation of the right 

to assistance of counsel on appeal based on a hypothetical future denial 

of counsel.” Supra ¶ 29 (emphasis added). 

3 More accurately, the court yields no holding; it nonetheless 

proceeds to put a thumb on the scale for future reference. In 

anticipation of an as-yet unfiled PCRA proceeding, the majority 

comments that “Ms. Gailey would greatly benefit from the 

appointment of counsel in her postconviction proceeding.” Supra ¶ 

29, n. 4. That seems inappropriate. If the question presented is 

unripe, we have no business putting our thumb on the scale for 

future reference. And in any event the question briefed in this court 

has little or nothing to do with the issue anticipated by the majority. 

We have no briefing on the standard for appointment of pro bono 

counsel under Utah Code section 78B-9-109. 

For these reasons I would not opine on Gailey’s need for pro 

bono counsel even if I agreed with the balance of the court’s analysis. 

To announce our views on a statute that was not briefed on a case 

that has not yet been filed strikes me as a very troubling advisory 

opinion.
GAILEY v. STATE OF UTAH

ASSOCIATE CHIEF JUSTICE LEE, concurring

14

¶39 The implication is that Gailey’s state constitutional right to 

an appeal may be implicated if she is not ultimately given counsel in 

a future PCRA proceeding. That seems problematic. 

¶40 I understand the impulse in favor of constitutional 

avoidance. Perhaps the court perceives its decision as a matter of 

restraint. But it strikes me as the opposite. By kicking the can down 

the road, the court implies that the state constitution may require 

appointment of counsel in a PCRA proceeding challenging the 

voluntariness of a guilty plea.

¶41 That is a significant proposition. I would not lightly 

assume that the right to paid counsel is implied by the state 

constitutional “right to appeal,” as those words were originally 

understood.4 And I see no reason for us to resolve that matter here, 

even implicitly.

¶42 Instead, I would affirm on the threshold basis identified 

above. Before reaching the question whether the PCRA is an 

adequate substitute for an appeal, I would first ask whether any such 

right was meaningfully impinged by the Plea Withdrawal Statute. I 

would hold that it was not. I would hold that the right to appeal is 

not implicated by rules dictating the proper means and timing of 

preserving an issue in the district court. And I would not deem the 

failure to follow such rules a waiver or forfeiture of the right to raise 

the issue in subsequent proceedings.

4 I would interpret the constitutional right to appeal to encompass 

the core elements of an appeal as traditionally understood at the 

time of the framing of the Utah Constitution. See State v. Houston, 

2015 UT 40, ¶¶ 150, 155, 353 P.3d 55 (Lee, J., concurring in part and 

concurring in the judgment) (presenting various “premise[s] of 

originalism in constitutional interpretation,” including that a 

“constitution rooted in ‘evolving standards’ . . . is not a ‘written’ 

constitution capable of ‘form[ing] the fundamental and paramount 

law of the nation,’ or of establishing ‘certain limits not to be 

transcended’ and ‘designed to be permanent’” (third alteration in 

original) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176–177 

(1803))). That inquiry deserves full briefing and careful analysis. I 

would not assume it away here. And I would not decide it without a 

careful examination of the historical record (to assess whether the 

traditional understanding of an “appeal” encompassed a right to 

paid counsel). We received some briefing on this question in this 

case (pursuant to a supplemental briefing order), but we have no 

need to resolve it given that Gailey waived any right to challenge her 

guilty plea on appeal.
Cite as: 2016 UT 35

ASSOCIATE CHIEF JUSTICE LEE, concurring

15

¶43 Such rules may be subject to constitutional challenge. But 

the basis for challenging them would not be that they eliminate the 

right of appeal. Rules of preservation and waiver or forfeiture always

foreclose the right to raise an issue on appeal. They cannot be 

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

that such rules are per se unconstitutional. 

¶44 I see no basis for that kind of blanket conclusion. Certainly 

Gailey has not identified one. 

¶45 At oral argument the question arose as to the legislature’s

power to dictate rules governing the timing of filings in district court 

or the law of preservation in the Plea Withdrawal Statute. That may 

be a fair question for consideration in a future case. See UTAH CONST.

art. VIII, § 4 (providing that this court has the power to “adopt rules 

of procedure and evidence to be used in courts of the state” and to 

“manage the appellate process” “by rule,” while recognizing the 

legislature’s power to “amend” such rules “upon a vote of twothirds of all members of both houses”). But no one has challenged 

the Plea Withdrawal Statute under article 8, section 4. And in the 

absence of such a challenge, the filing requirement prescribed in this 

statute is no different than any of a range of other rules of 

preservation or waiver set forth elsewhere in our law.

¶46 Such rules do not implicate the state constitutional right to 

an appeal. I would affirm on that basis.