State v. Norris

97 P.3d 732

2004 UT App 267

STATE of Utah, Plaintiff and Appellee, v. Richard NORRIS, Defendant and Appellant.

No. 20020966-CA.

Court of Appeals of Utah.

August 12, 2004.

Jennifer K. Gowans, Fillmore Spencer LLC, Provo, for Appellant.

Mark L. Shurtleff, Attorney General, and Jeffrey S. Gray, Assistant Attorney General, Salt Lake City, for Appellee.

Before BENCH, Associate P.J., and DAVIS and ORME, JJ.

OPINION

DAVIS, Judge:

¶ 1 After entering an unconditional, voluntary guilty plea to three counts of communications fraud, Richard Norris (Defendant) challenges the constitutionality of the underlying statute (the communications fraud statute) on appeal. See Utah Code Ann. § 76-10-1801 (2003).¹ We affirm.

BACKGROUND

¶ 2 Defendant was charged with seven counts of communications fraud and was bound over on all counts. See Utah Code Ann. § 76-10-1801 (2003). After several days of trial, Defendant entered an unconditional, voluntary guilty plea to three counts of third-degree-felony communications fraud. See id. § 76-10-1801(1)(c). After sentencing, and without moving to withdraw his guilty pleas, Defendant filed a timely notice of appeal, mounting a facial challenge to the constitutionality of the communications fraud statute on overbreadth and vagueness grounds.

ISSUES AND STANDARDS OF REVIEW

¶ 3 We consider two issues on appeal. First, we must determine whether this court has subject matter jurisdiction to consider Defendant's constitutional challenge after Defendant entered an unconditional, voluntary guilty plea. "The determination of whether a court has subject matter jurisdiction is a question of law, which we review for correctness...." Beaver County v. Qwest, Inc., 2001 UT 81, ¶ 8, 31 P.3d 1147. Second, if this court has jurisdiction, then we must consider whether the communications fraud statute is unconstitutionally overbroad or vague on its face. "Constitutional challenges to statutes present questions of law, which we review for correctness." Provo City Corp. v. Thompson, 2004 UT 14, ¶ 5, 86 P.3d 735. "When addressing such a challenge, this court presumes that the statute is valid, and we resolve any reasonable doubts in favor of constitutionality." State v. Lopes, 1999 UT 24, ¶ 6, 980 P.2d 191.

ANALYSIS

I. Subject Matter Jurisdiction

¶ 4 "The general rule applicable in criminal proceedings ... is that by pleading guilty, the defendant is deemed to have admitted all of the essential elements of the crime charged and thereby waives all nonjurisdictional defects, including alleged pre-plea constitutional violations." State v. Parsons, 781 P.2d 1275, 1278 (Utah 1989); see also State v. Hardy, 2002 UT App 244, ¶ 13, 54 P.3d 645. The State asserts that Defendant's facial challenge to the constitutionality of the communications fraud statute falls within the ambit of the "pre-plea constitutional violations" mentioned in Parsons.781 P.2d at 1278. Therefore, the State argues that because Defendant's challenge is nonjurisdictional in nature, it was waived by his guilty plea. Defendant asserts that "pre-plea constitutional violations," id., encompass violations involving such things as Miranda admonitions and search warrants, and that a facial constitutional challenge to a statute is, at its heart, a jurisdictional issue. Therefore, Defendant argues that his challenge was not waived by his guilty plea.

¶ 5 "Subject matter jurisdiction is the power and authority of the court to determine a controversy and without which it cannot proceed." Thompson v. Jackson, 743 P.2d 1230, 1232 (Utah Ct.App.1987) (per curiam). Subject matter jurisdiction "can neither be waived nor conferred by consent of the accused. Objection to the jurisdiction of the court over the subject matter may be urged at any stage of the proceedings, and the right to make such an objection is never waived." James v. Galetka, 965 P.2d 567, 570 (Utah Ct.App.1998) (quotations and citations omitted). When subject matter jurisdiction is an issue, "[i]t is the duty of this court to `satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review.'" EEOC v. Chicago Club, 86 F.3d 1423, 1428 (7th Cir.1996) (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934)).²

¶ 6 "In general, a plea of guilty waives all nonjurisdictional defects, but does not bar appeal of claims that the applicable statute is unconstitutional or that the indictment fails to state an offense." United States v. Broncheau, 597 F.2d 1260, 1262 n. 1 (9th Cir.1979). "Although a guilty plea waives all non[ ]jurisdictional defects and fact issues, a vagueness challenge is a jurisdictional defect. Thus, following a guilty plea, a defendant could raise on appeal that he was prosecuted under an unconstitutional statute." United States v. Skinner, 25 F.3d 1314, 1317 (6th Cir.1994) (quotations and citation omitted); see Menna v. New York, 423 U.S. 61, 62 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam) ("We simply hold that a plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the State may not constitutionally prosecute."); Blackledge v. Perry, 417 U.S. 21, 30-31, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) (holding that guilty plea did not preclude the defendant from raising his constitutional claims because they "went to the very power of the State to bring the defendant into court to answer the charge brought against him"); United States v. Whited, 311 F.3d 259, 262 (3d Cir.2002) (addressing defendant's claim that the underlying statute was unconstitutional because it "properly f[e]ll within the narrow scope of review not barred by a guilty plea"), cert. denied, 538 U.S. 1065, 123 S.Ct. 2234, 155 L.Ed.2d 1121 (2003); United States v. Morgan, 230 F.3d 1067, 1071 (8th Cir.2000) (recognizing that a claim that a statute is facially unconstitutional is a jurisdictional claim not waived by a guilty plea); United States v. McKenzie, 99 F.3d 813, 816 (7th Cir.1996) (addressing defendant's argument on appeal after his guilty plea because he made "the only argument available to him by asserting a jurisdictional challenge based on the constitutionality of the underlying statute"); United States v. Kenney, 91 F.3d 884, 885 n. 1 (7th Cir.1996) ("[The defendant] entered his guilty plea without preserving his constitutional challenge[ to the underlying statute] for appeal. However, the government has expressly declined to raise a waiver argument, citing United States v. Bell, 70 F.3d 495, 496-97 (7th Cir.1995) (challenge to constitutionality of statute of conviction is, in certain circumstances, jurisdictional claim not waived by guilty plea)."); Bell, 70 F.3d at 496-97 (addressing defendant's challenge to the constitutionality of the underlying statute after recognizing the principle that such a challenge "is a jurisdictional claim which is not waived by the guilty plea"); United States v. Palacios-Casquete, 55 F.3d 557, 561 (11th Cir.1995) ("A guilty plea ... does not waive the right of an accused to challenge the constitutionality of the statute under which he is convicted."); Marzano v. Kincheloe, 915 F.2d 549, 552 (9th Cir.1990) (holding that the defendant "did not waive his constitutional attack on the [underlying] statute by pleading guilty"); United States v. Montilla, 870 F.2d 549, 552 (9th Cir.1989) (stating that although the dividing line between constitutional claims that are waived by a guilty plea and those that survive the plea is not "crystal-clear," "[c]laims that `the applicable statute is unconstitutional or that the indictment fails to state an offense' are jurisdictional claims not waived by the guilty plea" (quoting Broncheau, 597 F.2d at 1262 n. 1)), amended by 907 F.2d 115 (9th Cir.1990); United States v. Barboa, 777 F.2d 1420, 1423 n. 3 (10th Cir.1985) ("A plea of guilty ... does not bar a claim that the defendant may not constitutionally be convicted in the first instance.... If [the defendant] ple[aded] guilty to something which was not a crime, he is not now precluded from raising this jurisdictional defect, which goes `to the very power of the State to bring the defendant into court to answer the charge brought against him.'" (quoting Blackledge, 417 U.S. at 30,94 S.Ct. 2098)); United States v. Hill, 564 F.2d 1179, 1180 (5th Cir.1977) (per curiam) (recognizing that "a guilty plea does not bar an appeal that asserts that... the charge is unconstitutional"); United States v. Tallant, 547 F.2d 1291, 1295 n. 5 (5th Cir.1977) (recognizing that a claim based upon "the unconstitutionality of the statute underlying the indictment" was an "appealable issue[ ] following a ... guilty plea"); United States v. Winter, 509 F.2d 975, 978 n. 8 (5th Cir.1975) (recognizing "that after entering ... a plea of guilty, a defendant may only appeal jurisdictional defects in the proceeding below, such as ... the unconstitutionality of the statute underlying the indictment"); Mercado v. Rockefeller, 502 F.2d 666, 672 (2d Cir.1974) ("[I]t is clear that [a] guilty plea waives only nonjurisdictional defects and does not waive the right to contest the constitutionality of the statute that is the basis for a conviction." (second alteration in original) (quotations and citation omitted)); United States v. Cox, 464 F.2d 937, 941 (6th Cir.1972) (recognizing that "[a] defendant who has pleaded guilty is not barred from claiming ... that the statute under which he was charged is unconstitutional" (quotations and citation omitted)); 1A Charles Alan Wright, Federal Practice and Procedure: Criminal § 175 (3d ed. 1999) ("[T]he preclusive effects of guilty pleas do not apply to constitutional claims that go `to the very power of the State to bring the defendant into court to answer the charge brought against him.' A defendant who has pleaded guilty may still contend ... that the statute under which he was charged is unconstitutional." (quoting Blackledge, 417 U.S. at 30,94 S.Ct. 2098) (...