Lucero v. Kennard

2004 UT App 94, 89 P.3d 175, 496 Utah Adv. Rep. 38, 2004 Utah App. LEXIS 35, 2004 WL 635270

• Court: Court of Appeals of Utah
• Decided: April 1, 2004
• Docket: 20020984-CA
• Status: Published

Opinions

OPINION

GREENWOOD, Judge:

¶ 1 Benjamin Frank Lucero (Petitioner) appeals the district court’s dismissal of his petition for post-conviction relief. He argues that while he was before the Murray City Justice Court (Justice Court), he was not properly advised of his constitutional right to counsel, and consequently did not knowingly and voluntarily waive his right to counsel before pleading guilty to driving under the influence of alcohol (DUI) in violation of Utah Code Annotated section 41-6-44 (Supp. 2003). Petitioner argues that the record in the Justice Court is insufficient to allow a determination of whether the required eolio-quy between the Justice Court and Petitioner occurred and that the trial court should not have considered evidence outside the record.

¶2 The Justice Court responds by first arguing that neither the district court nor this court has jurisdiction to hear this ease because Petitioner failed to file a timely appeal to the district court for a trial de novo. The Justice Court further argues that if there is jurisdiction there was sufficient evidence on the record and through proffered and sworn testimony, for the district court to conclude that Petitioner was advised of his rights, and properly waived his right to counsel. We affirm the district court’s decision, but on other grounds.

BACKGROUND

¶ 3 Petitioner was charged in the Justice Court¹ with DUI, a class B misdemeanor, in violation of Utah Code Annotated section 41-6-44 (Supp.2003), and improper usage of lanes, a class C misdemeanor, in violation of Utah Code Annotated section 41-6-61 (1998). At a bench trial, Petitioner appeared pro se. After pleading guilty to DUI, the charge of improper usage of lanes was dismissed. On June 4, 2002, Petitioner was sentenced to a jail term of 180 days, ordered to pay a fine, and placed on probation for eighteen months. Petitioner did not file an appeal of his conviction to the district court within the thirty days required by law. See Utah Code Ann. § 78-5-120(1) (2002). However, on August 1, 2002, Petitioner filed, in the Third District Court, a Petition for Posb-Conviction Relief or, in the alternative, Motion to Correct Illegally Imposed Sentence under Rules 65B and 65C of the Utah Rules of Civil Procedure. This petition sought an extraordinary writ granting his immediate release on the grounds that Petitioner was not represented by counsel, had not waived his right to counsel, and was sentenced in violation of the Sixth Amendment.

¶ 4 The Justice Court held a review hearing on September 10, 2002, where it suspended Petitioner’s remaining jail sentence and released him from custody. Six days later, in the Third District Court, a hearing took place on Petitioner’s petition for post-conviction relief. At this hearing, rather than challenging his plea or conviction, Petitioner requested that his suspended sentence be vacated.

¶ 5 After testimony from Petitioner, proffered testimony of the Justice Court judge, and submission of affidavit testimony of two Justice Court clerks, the district court entered Findings of Fact and Conclusions of Law stating that Petitioner knowingly and voluntarily waived his right to be represented by counsel when he entered his plea. Petitioner filed a timely appeal to this court for review of the district court’s order.

ISSUES AND STANDARD OF REVIEW

¶ 6 Petitioner challenges the district court’s dismissal of his petition for post-conviction relief, claiming the record was insufficient. The Justice Court asserts the district court lacked jurisdiction to consider the petition. In addition, the Justice Court argues the district court properly found no violation of Petitioner’s Sixth Amendment rights. “We review an appeal from an order dismissing or denying a petition for post-conviction relief for correctness without deference to the lower court’s conclusions of law.” Rudolph v. Galetka, 2002 UT 7, ¶ 4, 43 P.3d 467.

ANALYSIS

I. Appellate Review of Justice Courts

¶7 We first discuss the Justice Court’s argument that the district court lacked jurisdiction to hear the petition because Petitioner did not first appeal to the district court for a trial de novo. Rule 65C(g)(l) of the Utah Rules of Civil Procedure directs the district court, upon receiving a petition for post-conviction relief, to first review the petition to ensure that the claims have not been previously adjudicated, or that the claims are not frivolous. If the court finds that the petition is not properly raised, the court is required to summarily dismiss the claims. See Utah R. Civ. P. 65C(g)(l). Additionally, Utah Code Annotated section 78-35a-106(l)(c) (2002) precludes post-conviction relief when a claim “could have been but was not raised at trial or on appeal.” Id. In Hutchings v. State, 2003 UT 52, ¶ 14, 84 P.3d 1150, the Utah Supreme Court noted that rule 65C complements section 78-35a-106 and is “designed to balance the ‘requirements of fairness and due process against the public’s interest in the efficient adjudication ... of post-conviction relief cases.’ ” Id. (quoting Utah R. Civ. P. 650(g)(1)). Therefore, a district court has jurisdiction over a petition for post-conviction relief in order to determine its procedural correctness.

¶ 8 In this case, it is unclear from the record whether the district court conducted this preliminary review required by rule 65C. It is clear, however, that the district court did not summarily dismiss the petition under rule 65C, but held a hearing on the merits, received evidence, and entered its Findings of Fact and Conclusions of Law dismissing the petition.² As a result, the district court correctly assumed jurisdiction over Petitioner’s petition. The remaining question is whether the district court should have summarily dismissed the petition for failure to comply with rule 65C and section 78-35a-106.

¶ 9 The Justice Court argues that Petitioner was required to pursue a direct appeal before seeking post-conviction relief.³ The Utah Constitution provides: “In criminal prosecutions the accused shall have ... the right to appeal in all cases.” Utah Const, art. I, § 12. For criminal cases originating in justice courts, a defendant is provided an appeal through “a trial de novo in the district court.” Utah Code Ann. § 78-5-120(1) (2002). In a trial de novo, the district court is “not acting in a typical appellate capacity.” State v. Hinson, 966 P.2d 273, 276 (Utah Ct.App.1998). Because justice courts are not courts of record, “the ‘appeal’ does not involve a review of the justice court proceedings.” Id. at 275. Through a trial de novo in the district court, “the parties essentially get a fresh start,” and the case is tried again as if it originated there. Dean v. Henriod, 1999 UT App 50,¶ 9, 975 P.2d 946 (quotations and citation omitted). The district court’s judgment after trial de novo is final and may not be appealed either to this court or the Utah Supreme Court absent an issue regarding the constitutionality of a statute or ordinance. See Utah Code Ann. § 78-5-120(7); Hinson, 966 P.2d at 276. “[I]n Utah, ... it is settled that the right to an ‘appeal’ from a court not of record is satisfied by provision for a trial de novo in a court of record.” City of Monticello v. Christensen, 788 P.2d 513, 516 (Utah 1990).

¶ 10 In this case, after being sentenced, Petitioner chose not to appeal his plea or conviction to the district court for a trial de novo. It is clear, however, that a trial de novo would have remedied any constitutional defects suffered by Petitioner in the Justice Court. Instead, nearly two months after sentencing in the Justice Court, Petitioner filed his Petition for PosMDonviction Relief with the district court.

¶ 11 “A petition for post-conviction relief is a collateral attack on a conviction and sentence and is not a substitute for direct appellate review.” Rudolph v. Galetka, 2002 UT 7,¶ 5, 43 P.3d 467. The Post Conviction Remedies Act, Utah Code Annotated sections 78-35a-101 to -110 (2002), precludes post-conviction relief when a claim “could have been but was not raised at trial or on appeal.” Utah Code Ann. § 78-35a-106(l)(c). The Utah Supreme Court has reiterated this prohibition, but with one exception. “[I]ssues that were not addressed on direct appeal but could have been raised may not be raised for the first time in a post-conviction relief proceeding absent unusual circumstances.” Rudolph, 2002 UT 7, at ¶ 5, 43 P.3d 467 (emphasis added). The supreme court further defined unusual circumstances as those that “show that there was an obvious injustice or a substantial and prejudicial denial of a constitutional right.” Carter v. Galetka, 2001 UT 96,¶ 15, 44 P.3d 626 (quotations and citation omitted); see also Webster v. Jones, 587 P.2d 528, 530 (Utah 1978) (stating that exigent circumstances exist where there “has been such unfairness or failure to accord due process of law that it would be wholly unconscionable not to re-examine the conviction” (footnote omitted)).

¶ 12 Petitioner argues that his inability to have the Justice Court’s denial of counsel reviewed by the district court on a direct appeal is unique and presents “unusual circumstances” with an “obvious injustice or a substantial and prejudicial denial of a constitutional right” warranting review. Carter, 2001 UT 96 at ¶ 15, 44 P.3d 626 (quotations and citations omitted). However, we are not persuaded that Petitioner, in fact, suffered from an obvious injustice. To the contrary, the structure of Utah’s justice court system ensures that when a defendant believes he or she has been deprived of a constitutional right by a justice court, that individual is entitled to a new trial in the district court. See Utah Code Ann. § 78-5-120(1) (2002); Henriod, 1999 UT App 50 at ¶ 9, 975 P.2d 946. Voluntarily eschewing the opportunity to remedy a constitutional violation through a trial de novo does not create unusual circumstances permitting a petition for post-conviction relief. By rejecting a trial de novo, Petitioner acceded to any undesired result of the Justice Court’s sentence.⁴ Therefore, we hold that Petitioner did not suffer a “substantial and prejudicial denial of a constitutional right,” Carter, 2001 UT 96 at ¶ 15, 44 P.3d 626 (quotations and citations omitted), because he had the opportunity to remedy his alleged denial of counsel, and chose not to pursue that opportunity.⁵ Because we conclude that the unusual circumstances exception does not apply in this case, Petitioner was precluded under Utah Code Annotated section 78-35a~106 from obtaining relief through a petition for post-conviction relief. Given our holding that the district court should have dismissed Petitioner’s petition for post-conviction relief and our disposition of this case on that ground, we do not address the correctness of the trial court’s findings and conclusions.

CONCLUSION

¶ 13 Petitioner failed to file a timely appeal to the district court for a trial de novo. A trial de novo would have remedied any constitutional violations Petitioner may have suffered in the Justice Court. After obtaining counsel, or properly waiving his right to counsel, Petitioner could have either pleaded guilty again, or challenged the charges in a trial. Defendant has not demonstrated unusual circumstances consisting of “an obvious injustice or substantial prejudicial denial of a constitutional right.” Carter, 2001 UT 96 at ¶ 15, 44 P.3d 626. Thus, he has not established an exception to the rule prohibiting post-conviction relief when the petitioner has not first sought relief by direct appeal. We accordingly affirm the result of the district court, but for the reasons explained above.

¶ 14 I CONCUR IN THE RESULT: GREGORY K. ORME, Judge.

1 . Under Utah Code Annotated section 78-5-101 (2002), justice courts are courts "not of record.”

2 . The Justice Court likewise argues that this court does not have jurisdiction over this case. However, the court of appeals has jurisdiction to review a district court’s denial of a petition for post-conviction relief pursuant to Utah Code Annotated section 78-2a-3(2)(f) (2002). See also Utah R. Civ. P. 65C(o).

3 . Petitioner argues that because the Justice Court did not raise this issue before the district court, it is now barred because it would constitute an alternative ground for affirmance not apparent on the record nor sustainable by the factual findings. See State v. Topanotes, 2003 UT 30,¶ 9, 76 P.3d 1159. However, "|j']urisdictional issues may be raised for the first time on appeal.” State In Interest of R.N.J., 908 P.2d 345, 347 (Utah Ct.App.1995). Moreover, Petitioner's argument is moot because we have determined the district court had jurisdiction.

4 . Through his post-conviction relief petition, Petitioner does not challenge the Justice Court plea or conviction. Instead, for reasons not apparent to this court, he seeks only a dismissal of the remaining suspended sentence.

5 . The Justice Court also argues that Petitioner should be precluded from bringing a petition for post-conviction relief because he did not explain why he failed to take a direct appeal. In support of this argument, it cites Summers v. Cook, 759 P.2d 341, 343 (Utah Ct.App.1988), and Wells v. Shulsen, 747 P.2d 1043, 1044 (Utah 1987), where the courts held that in addition to showing an obvious injustice, the defendants were required to explain why they did not take a direct appeal. However, Summers and Wells were both decided prior to the enactment of the Post Conviction Remedies Act, Utah Code Annotated sections 78-35a-101 to -110 (2002), which does not require such an initial showing of why a direct appeal was not taken. We note that even though a defendant is not required to explain why he did not bring a direct appeal, such an explanation may be helpful in showing extraordinary circumstances.