2014 UT App 240

_________________________________________________________

THE UTAH COURT OF APPEALS

STEPHEN RIPPEY,

Petitioner and Appellant,

v.

STATE OF UTAH,

Respondent and Appellee.

Memorandum Decision

No. 20110783-CA

Filed October 17, 2014

Third District Court, West Jordan Department

The Honorable Mark S. Kouris

No. 100403251

Cory A. Talbot, Megan J. DePaulis, and Rebecca H.

Held, Attorneys for Appellant

Sean D. Reyes and Brett J. DelPorto, Attorneys

for Appellee

JUDGE JOHN A. PEARCE authored this Memorandum Decision, in

which JUDGES GREGORY K. ORME and JAMES Z. DAVIS concurred.

PEARCE, Judge:

¶1 Stephen Rippey appeals from the district court’s order

dismissing his petition for post-conviction relief. We affirm.

¶2 In July 2008, ten-year-old S.B. reported to her mother that

Rippey had sexually abused her at least ten times—and possibly as

many as thirty times—over the previous three years. When S.B.’s

mother confronted Rippey about the abuse, he immediately

admitted to touching S.B. sexually as well as sexually abusing her

with a spatula. Rippey also admitted the sexual abuse to the doctor

who performed his post-arrest psychosexual evaluation.
Rippey v. State

¶3 The State charged Rippey with three counts of aggravated

sexual abuse of a child and two counts of object rape of a child, all

first degree felonies. On November 12, 2008, Rippey entered a

guilty plea to one count of aggravated sexual abuse of a child and

one count of object rape of a child. The State dismissed the other

three charges in exchange for Rippey’s guilty plea. On February 5,

2009, the district court sentenced him to two concurrent prison

terms of fifteen years to life. Rippey did not seek to withdraw his

guilty plea prior to sentencing.

¶4 On February 11, 2010, Rippey filed a pro se petition for relief

under the Post-Conviction Remedies Act (PCRA). See Utah Code

Ann. §§ 78B-9-101 to -405 (LexisNexis 2012 & Supp. 2013); Utah R.

Civ. P. 65C. Rippey’s petition recited seventeen grounds for relief,

eight of which the district court summarily dismissed as facially

frivolous. See Utah R. Civ. P. 65C(h)(1). The district court 1

permitted the remainder of Rippey’s claims to proceed. These

claims included allegations that Rippey’s plea was not knowing

and voluntary because of his diminished mental capacity and that

Rippey’s counsel had been ineffective in failing to interview key

witnesses, failing to apprise the district court of Rippey’s mental

health issues, and failing to advise Rippey of the actual evidence

against him.

¶5 The State moved to dismiss Rippey’s remaining claims,

arguing that they lacked a legal or factual basis. The district court

held a hearing on the State’s motion, at which Rippey represented

himself. At the hearing, the district court questioned Rippey

extensively to discern the facts upon which Rippey based his

claims. At the conclusion of the hearing, the district court granted

the State’s motion to dismiss. In its subsequent written dismissal

order, the district court ruled that Rippey’s direct challenges to the

validity of his plea were procedurally barred because they could

1. The district court’s dismissal of those claims is not at issue in this

appeal.

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Rippey v. State

have been raised at trial or on direct appeal. See Utah Code Ann.

§ 78B-9-106(1)(c) (LexisNexis 2012). The district court also

determined that Rippey’s ineffective assistance of counsel claims

were not procedurally barred but that they lacked merit.

Specifically, the district court ruled that Rippey “cannot meet his

burden to demonstrate his plea was in fact unknowing and

involuntary.”

¶6 Rippey, now represented by counsel, raises two arguments

on appeal. First, Rippey contends that the district court erred in

concluding that his direct challenges to his guilty plea were

procedurally barred, because Utah Code section 77-13-6(2)(c)

specifically allows him to pursue his direct challenges under the

PCRA. See Utah Code Ann. § 77-13-6(2)(c) (LexisNexis 2012).

Second, Rippey argues that his petition adequately stated multiple

ineffective assistance of counsel claims and that the district court

erred in dismissing them. Both of these arguments present

questions of law, the resolution of which we review for correctness.

See Brown v. State, 2013 UT 42, ¶ 36, 308 P.3d 486 (“We review a

district court‘s interpretation of a statute for correctness.” (citation

and internal quotation marks omitted)); Taylor v. State, 2012 UT 5,

¶ 8, 270 P.3d 471 (“We review an appeal from an order dismissing

or denying a petition for post-conviction relief for correctness . . . .”

(citation and internal quotation marks omitted)).

¶7 Rippey first argues that the district court erred when it ruled

that his direct challenges to the knowing and voluntary nature of

his guilty plea were procedurally barred because those challenges

could have been, but were not, raised at trial or on appeal. Rippey

argues that the PCRA’s procedural bars do not apply to his claims

because he did not seek to withdraw his guilty plea prior to

sentencing and Utah Code section 77-13-6(2)(c) provides, “Any

challenge to a guilty plea not made [by motion before sentence is

announced] shall be pursued under [the PCRA].” See Utah Code

Ann. § 77-13-6(2)(c). According to Rippey’s argument, the words

“shall be pursued” in the statute mandate that direct challenges to

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Rippey v. State

a guilty plea be brought under the PCRA—apparently without

regard to otherwise applicable procedural requirements.

¶8 Section 77-13-6(2)(c) has a well-establishedlimiting effect on

a defendant’s ability to challenge a guilty plea on direct appeal. See,

e.g., State v. Merrill, 2005 UT 34, ¶¶ 13–20, 114 P.3d 585. Rippey asks

us to interpret section 77-13-6(2)(c) as a limitation on the PCRA’s

procedural bars as well. However, we decline to address this

argument because it was not preserved for appeal. “‘[I]n order to

preserve an issue for appeal[,] the issue must be presented to the

trial court in such a way that the trial court has an opportunity to

rule on that issue.’” McNair v. State, 2014 UT App 127, ¶ 7, 328 P.3d

874 (alterations in original) (quoting 438 Main St. v. Easy Heat, Inc.,

2004 UT 72, ¶ 51, 99 P.3d 801).

¶9 Rule 24(a)(5) of the Utah Rules of Appellate Procedure

requires an appellant’s brief to contain either “citation to the record

showing that the issue was preserved in the trial court” or “a

statement of grounds for seeking review of an issue not preserved

in the trial court.” See Utah R. App. P. 24(a)(5). Rippey’s appellate

brief contains neither. We have conducted our own discretionary

review of the record, see Holladay v. Storey, 2013 UT App 158, ¶ 11

n.4, 307 P.3d 584, but even affording the then-unrepresented

Rippey “every consideration that may reasonably be indulged,” see

State v. Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171 (citation and

internal quotation marks omitted), we see nothing in the record to

indicate that Rippey made any version of his argument about Utah

Code section 77-13-6 to the district court. Cf. McNair, 2014 UT App

127, ¶¶ 7–8 (concluding that pro se litigant had preserved a tolling

issue because he “explained his mental limitations and asked the

court to consider the petition in the interests of justice,” the State

responded to that argument, and the trial court specifically ruled

that the tolling provision did not apply). Accordingly, we decline

to address this argument because it is unpreserved.

¶10 Rippey next contends that the district court erred in

dismissing his ineffective assistance of counsel claims. He argues

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Rippey v. State

that he pleaded sufficient facts in his PCRA petition to adequately

state his ineffective assistance of counsel claims. He further argues

that the district court erred by failing to treat those facts as true and

failing to evaluate them against the ineffective assistanceof counsel

standards stated in Strickland v. Washington, 466 U.S. 668 (1984).

¶11 The State moved to dismiss Rippey’s PCRA petition

pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure. See

Utah R. Civ. P. 12(b)(6) (governing motions to dismiss for “failure

to state a claim upon which relief can be granted”); McNair, 2014

UT App 127, ¶¶ 11, 15 (applying rule 12(b)(6) to PCRA petitions).

Under rule 12(b)(6), “we must accept the factual allegations [in

Rippey’s petition] as true and draw all reasonable inferences from

those facts in a light most favorable to [Rippey].” McNair, 2014 UT

App 127, ¶ 15 (citation and internal quotation marks omitted).

Additionally, Rippey’s pro se petition “‘is to be liberally

construed,’” and its dismissal was proper only “‘if it appears

beyond doubt that [Rippey] can prove no set of facts in support of

his claim which would entitle him to relief.’” Id. ¶ 12 (quoting

Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

¶12 However, to avoiddismissal, aPCRApetitioner—even a pro

se petitioner—must still adequately plead facts upon which relief

may be granted. “The pleading standards for a post-conviction

petition . . . are set out in rule 65C of the Utah Rules of Civil

Procedure, which ‘governs proceedings in all petitions for

post-conviction relief filed under’ the PCRA.” Id. ¶ 9 (quoting Utah

R. Civ. P. 65C(a)). Under rule 65C, a PCRA petition “shall state . . .

in plain and concise terms, all of the facts that form the basis of the

petitioner’s claim to relief.” Utah R. Civ. P. 65C(d)(3) (emphasis

added). A PCRA petitioner must additionally attach “affidavits,

copies of records and other evidence in support of the allegations”

to his petition if such documents are available. Id. R. 65C(e)(1).

Thus, PCRA petitions are held to “a somewhat higher standard

than the general pleading standard found in rule 8(a)” of the Utah

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Rippey v. State

Rules of Civil Procedure. McNair, 2014 UT App 127, ¶ 9; see also 2

Utah R. Civ. P. 8(a)(1) (requiring that pleadings contain “a short

and plain . . . statement of the claim showing that the party is

entitled to relief”).

¶13 Applying these standards to the district court’s treatment of

Rippey’s PCRA petition, we see no error in the district court’s

dismissal of Rippey’s ineffective assistance of counsel claims.

Rippey’s petition and its accompanying memorandum contain

factual allegations that, if taken as true, arguably state one or more

claims that his counsel performed deficiently in some respects.

However, the district court properly focused on the standard that

Rippey was ultimately required to meet—that his trial counsel’s

alleged deficiencies resulted in a guilty plea that “was in fact not

knowing and voluntary.” See Bluemel v. State, 2007 UT 90, ¶ 18, 173

P.3d 842 (citation and internal quotation marks omitted). In other

words, in the context of seeking to withdraw a guilty plea, Rippey’s

trial counsel’s alleged deficient performance may serve as an

avenue to demonstrate that his guilty plea was not voluntary, but

it is not an end unto itself. See State v. Walker, 2013 UT App 198,

¶ 42, 308 P.3d 573 (discussing the prejudice requirement for

challenging a guilty plea based on an ineffective assistance of

counsel claim).

¶14 Rippey argues that trial counsel’s alleged deficiencies

rendered his plea unknowing or involuntary notwithstanding the

waivers embodied in his plea agreement. However, when

challenging a guilty plea on the grounds of ineffective assistance of

counsel, a PCRA petitioner “must show that there is a reasonable

probability that, but for counsel’s errors, he would not have

2. We note that the “somewhat higher” pleading standard under

rule 65C implies that there may well be PCRA petitions that, if

challenged on a motion to dismiss, would state a claim under rule 8

but fall short under rule 65C. See McNair v. State, 2014 UT App 127,

¶ 9, 328 P.3d 874.

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Rippey v. State

pleaded guilty and would have insisted on going to trial and that

such a decision would have been rational under the

circumstances.” Ramirez-Gil v. State, 2014 UT App 122, ¶ 8, 327 P.3d

1228 (emphasis added) (citations and internal quotation marks

omitted). In evaluating the likelihood and rationality of a decision

to reject a plea bargain and go to trial, “‘we look to the factual

circumstances surrounding the plea.’” Id. (quoting United States v.

Clingman, 288 F.3d 1183, 1186 (10th Cir. 2002)); see also Walker, 2013

UT App 198, ¶ 42.

¶15 Rippey has not identified any facts he pleaded in his petition

or proffered at the hearing that, if true, would establish a “rational”

basis for rejecting the State’s plea offer and insisting on a trial. See

Ramirez-Gil, 2014 UT App 122, ¶ 8; see also Clingman, 288 F.3d at

1186 (stating that a “mere allegation that [a defendant] would have

insisted on trial . . . is ultimately insufficient to entitle him to relief”

(citation and internal quotation marks omitted)). By the time

Rippey decided to accept the plea offer, he had admitted to the acts

underlying the charges against him to at least two people. Further, 3

his plea bargain with the State resulted in the dismissal of three

other first degree felony counts against him.

¶16 Under these circumstances, it appears rational for Rippey to

have accepted the State’s plea offer. To overcome that seemingly

rational decision, Rippey’s petition needed to identify factual

allegations that would establish—or at least support an

inference—“‘that a decision to reject the plea bargain would have

been rational under the circumstances.’” Walker, 2013 UT App 198,

¶ 42 (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). In the

absence offactual allegations showing that Rippey’s rejection of the

plea deal would have been rational under the circumstances,

3. Even at the post-conviction stage, Rippey did not deny sexually

abusing S.B. To the contrary, one of the addenda to his petition was

a postsentencing letter to his attorney wherein Rippey stated, “[A]t

least I told the truth.”

20110783-CA 7 2014 UT App 240
Rippey v. State

Rippey’s petition fails to state a claim for relief based on ineffective

assistance of counsel.

¶17 We affirm the district court’s dismissal of Rippey’s PCRA

petition.

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