Appeals From a Guilty Plea, Then and Now

Nearly 100 years ago the Utah Supreme Court decided Weaver v. Kimball, which answered the “question whether or not in a criminal case an appeal may be lawfully taken … after the accused has entered a plea of guilty.” 202 P. 9, 9 (Utah 1921). The court answered in the affirmative, determining that the Utah Constitution gave defendants "an unqualified right of appeal regardless of the plea entered." Id. at 10. What's interesting about that statement is not the holding itself, but the fact that modern Utah Supreme Court caselaw holds the opposite even though the court continues to rely on Weaver as good law.

So what's going on? Weaver dealt with a situation where two criminal defendants pleaded guilty to a crime in city court (the rough equivalent of justice court). They appealed to the district court for a new trial and entered pleas of not guilty there. The prosecutor moved to dismiss the appeal for lack of jurisdiction, claiming that a state statute limited the right of appeal to those cases that were "tried" in justice court. According to the argument, defendants had not been "tried" because they had pleaded guilty, and there was thus no right to appeal. The district court agreed and dismissed the appeal.

The supreme court reversed. It cited article I, section 12 of the Utah Constitution for the proposition that the accused has the right to appeal in all criminal cases. It also quoted article VIII, section 9: "Appeals shall ... lie from the final judgment of justices of the peace ... in criminal cases to the district courts on both questions of law and fact, with such limitations and restrictions as shall be provided by law." Id. at 9 (emphasis added). (Interestingly, article VIII, section 9 no longer says any such thing, but we'll get back to that.) Finally the court noted that, under article I of the constitution, its provisions are "mandatory and prohibitory, unless by express words they are declared to be otherwise." Weaver, 202 P. at 9.

The court then held that, in spite of the statute purporting to limit the right of appeal, the defendants could appeal their guilty pleas.

The Constitution makes no reservation, but in plain and express terms says that the accused has the right of appeal in all cases. No exception is made.

Weaver, 202 P. at 10. The court further noted that the legislature could place timing and procedural limitations on the right of appeal, but not abrogate it entirely. Id.

For purposes of this post, Weaver raises two major questions. First, what amendment to the constitution removed the with such limitations and restrictions as shall be provided by law language, and why was that change made? Indeed, not only is that language gone, but the entirety of article VIII, section 9 now has to do with judicial retention elections, not appeals. That is, this wasn't a minor syntactical change. Also, it's not like the rule of law announced in section 9 was then or now particularly contentious in the first place, which again invites the main question, what happened?

Second, is Weaver still good law? The supreme court recently cited it as such in Gailey v. State, 2016 UT 35, which held basically the opposite of Weaver: that, pursuant to a statute, a guilty plea followed by immediate sentencing extinguishes the constitutional right to appeal. Indeed, Gailey expressly relied on Weaver for the proposition that appeals must be taken within such limitations and restrictions as to time and orderly procedure as the legislature may prescribe, the precise constitutional provision that no longer exists. That is, Gailey was not using Weaver to support an innocuous proposition, it was using it for the major premise on which the entire analysis was based, namely that it is within the legislature's power to cut off the constitutional right of appeal.

If Weaver is still good enough law to be used in place of the now-deleted constitutional provision on which it was partly based, then isn't its holding—that the constitution provides for appeal in call cases, even ones where guilty pleas were entered—also still good law? And if that's so, how are the holdings of Gailey and its antecedents correct? They might not be, at least not without further analysis and explanation. It would be good to know when the constitution was changed, and why. If you have any insight or thoughts, drop me a line.

[Edited to add: It appears that article VIII, section 9 was removed as part of the major constitutional revision in 1984. Given the changes, Gailey’s reasoning raises separation of powers issues.]