Winward v. State

2012 UT 85, 293 P.3d 259, 723 Utah Adv. Rep. 98, 2012 WL 6062654, 2012 Utah LEXIS 178

• Court: Utah Supreme Court
• Decided: December 7, 2012
• Docket: No. 20101005
• Status: Published

Opinions

Justice PARRISH,

opinion of the Court:

INTRODUCTION

11 Petitioner Shannon Glenn Winward appeals the dismissal of his first petition for post-conviction relief. The district court dismissed Mr. Winward's petition as procedurally barred under the Post-Conviction Remedies Act's (PCRA's) one-year statute of limitations because he filed his petition more than ten years after the required date. Mr. Winward argues that applying the one-year statute of limitations to his petition violates the Utah Constitution under the "egregious injustice" exception that this court announced in Gardner v. State, 2010 UT 46, 234 P.3d 1115. We disagree and affirm the district court's dismissal of all but one of the claims alleged in Mr. Winward's petition. Mr. Winward may have a newly-recognized claim for ineffective assistance of counsel during the plea bargaining process under the recent U.S. Supreme Court decision, Lafler v. Cooper, - U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), which may extend the statute of limitations on his claim under section 78B-9-107(2) of the Utah Code. We therefore vacate the district court's dismissal of Mr. Winward's claim for ineffective assistance of counsel during the plea bargaining process and affirm the dismissal of the remainder of Mr. Winward's claims.

BACKGROUND

T2 Mr. Winward appeals the dismissal of his petition for relief under the PCRA. In 1993, the State charged Mr. Winward with four counts of sodomy on a child, a first-degree felony, and one count of sexual abuse of a child, a second-degree felony. These charges arose out of allegations that Mr. Winward had repeatedly molested his girlfriend's eight- and ten-year-old sons, R.W. and T.W., over a four-year period, as well as a neighbor's six-year-old son, AF., on one occasion.

T3 Mr. Winward was tried twice. The first trial resulted in a hung jury. The State retried him, and his second jury trial resulted in a conviction on all charges. Mr. Win-ward appealed his conviction to the Utah Court of Appeals, which affirmed his convietion in June 1997. See State v. Winward, 941 P.2d 627 (Utah Ct.App.1997). We denied certiorari in October 1997. The same counsel represented Mr. Winward in the first and second trials and in his direct appeal.

4 In April 2009, Mr. Winward, represented by new counsel, filed a petition for post-conviction relief The district court summarily dismissed the petition as untimely under the PCRA's one-year statute of limitations without accepting any briefing from the parties. Mr. Winward appealed the dismissal and the Utah Court of Appeals reversed. Winward v. State, 2009 UT App 245U, 2009 WL 2837135 (per curiam). The court of appeals held that under section 78B-9-106(2) of the Utah Code, the district court judge must "give[ ] the parties notice and an opportunity to be heard" before summarily dismissing a petition sua sponte based on the time bar. Id. para. 4 (internal quotation marks omitted).

T5 On remand, the State filed a motion for summary judgment based on the PCRA's one-year statute of limitations. Mr. Win-ward opposed the motion, alleging that the "egregious injustice" language in Gardner v. State, 2010 UT 46, ¶¶ 93-97, 234 P.3d 1115, created an exception to the PCRA's procedural bars and that this exception excused his untimely filing. The district court disagreed and granted summary judgment in favor of the State. The district court reasoned that even if this court had recognized an "egregious injustice" exception to the PCRA, Mr. Winward had failed to prove that it should apply in his case. Mr. Winward now appeals the district court's dismissal of his petition under the PCRA's one-year time bar. We have jurisdiction under section 78A-83-102(8)(j) of the Utah Code.

STANDARD OF REVIEW

16 "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." Taylor v. State, 2012 UT 5, ¶ 8, 270 P.3d 471 (internal quotation marks omitted).

ANALYSIS

17 The district court dismissed Mr. Win-ward's petition as untimely under the PCRA's one-year statute of limitations. Mr. Winward admits that his petition was untimely, but he argues that the time bar should not apply to his petition for three reasons. First, Mr. Winward argues the PCRA's statute of limitations unconstitutionally strips this court of its habeas corpus authority. Second, he argues the previously recognized common law "good cause" and "interest of justice" exceptions apply to the PCRA's time bar. And third, Mr. Winward asks this court to apply an "egregious injustice" exception to the time bar based on our language in Gardner v. State, 2010 UT 46, 234 P.3d 1115. The State responds that Mr. Winward failed to raise the first two arguments in the district court and that those arguments are therefore unpreserved. The State also argues that the "egregious injustice" exception to the PCRA's statute of limitations is not applicable in this case. We agree with the State.

I. MR. WINWARD FAILED TO PRESERVE HIS HABEAS CORPUS AND COMMON LAW EXCEPTION ARGUMENTS

18 Mr. Winward argues that the PCRA's time bar unconstitutionally strips this court of its habeas corpus authority. He also argues that we should apply our previously recognized common law exceptions to his untimely PCRA petition. Specifically, he argues that the "interest of justice" and "good cause" exceptions apply and that the PCRA's time bar is therefore inapplicable in this case. We need not address these arguments because they were not properly preserved below.

19 "As a general rule, claims not raised before the [district] court may not be raised on appeal." State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. This preservation rule serves two policy aims: fairness and judicial economy. Patterson v. Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828. "An issue is preserved for appeal when it has been presented to the district court in such a way that the court has an opportunity to rule on [it]." Id. ¶ 12 (alteration in original) (internal quotation marks omitted). In determining whether the district court had an opportunity to rule on an issue, a court considers three factors: "(1) whether the issue was raised in a timely fashion, (2) whether the issue was specifically raised, and (8) whether supporting evidence or relevant authority was introduced." Warne v. Warne, 2012 UT 18, ¶ 16, 275 P.3d 238 (internal quotation marks omitted). If an argument is unpreserved, we will not address it for the first time on appeal unless the party can prove either plain error or exceptional cireumstances. See Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346.

10 Mr. Winward failed to present to the district court his arguments regarding the writ of habeas corpus and the common law exceptions to the PCRA's procedural bars. In fact, in his brief to the district court opposing the State's motion for summary judgment and at the motion hearing, Mr. Winward never mentioned the court's habeas corpus authority. And Mr. Winward similarly failed to argue that any of the previously recognized common law exceptions to the PCRA's procedural bars applied to his case. Instead, Mr. Winward's arguments before the district court focused solely on the "egregious injustice" language in Gardner.

111 Mr. Winward does not argue the applicability of either of the exceptions to our preservation rule. Instead, he contends that the "egregious injustice" exception, which he did raise in the district court, is broad enough to encompass his habeas corpus and common law exceptions claims. We disagree. In order to preserve a claim, a party must specifically raise the issue and introduce "supporting evidence or relevant authority." Warne, 2012 UT 13, ¶ 16, 275 P.3d 238 (internal quotation marks omitted). In his appellate brief to this court, Mr. Winward clearly articulates supporting authority for his unpreserved arguments, citing to our constitutional habeas corpus provision, as well as several cases articulating the common law exceptions that he seeks to apply for the first time on appeal. Yet he failed to specifically raise these issues and provide any supporting authority in the district court. Because Mr. Winward failed to preserve these arguments, we will not address them for the first time on appeal.

II. WE AFFIRM THE DISMISSAL OF MR. WINWARD'S SIX CLAIMS FOR POST-CONVICTION RELIEF BECAUSE HE HAS NOT ESTABLISHED THAT HE WOULD QUALIFY FOR AN EXCEPTION TO THE PCRA'S TIME BAR

112 The PCRA "establishes the sole remedy for any person who challenges a conviction or sentence for a criminal offense and who has exhausted all other legal remedies, including a direct appeal." Utah Codepz § 78B-9-102(1).¹ Under the PCRA, "[a] petitioner is entitled to relief only if the petition is filed within one year after the cause of action has acerued." Id. § 78B-9-107(1)² In this case, Mr. Winward's cause of action accrued on the date of "the entry of the denial of the petition for writ of certiorari.³ Id. § 78B-9-107(2)(d). We denied Mr. Win-ward's petition for certiorari on October 21, 1997. Thus, the statute of limitations on Mr. Winward's post-conviction claims expired in October 1998. But Mr. Winward did not file his petition for post-conviction relief until April 2009, more than ten years after the limitations period had expired.

113 Mr. Winward acknowledges that his petition is procedurally barred by the PCRA's one-year statute of limitations, but he argues that our opinion Gardner v. State, 2010 UT 46, 234 P.3d 1115, recognized an "egregious injustice" exception to the PCRA's procedural bars and that this exception applies here. The State does not challenge the existence of such an exception but argues that any such exception would not apply to Mr. Winward. We agree and hold that Mr. Winward has failed to demonstrate that he would qualify for any such exception.

114 In Gardner v. State, we explicitly declined to decide whether any exception to the PCRA's procedural bars survived the 2008 amendments to the PCRA. 2010 UT 46, ¶¶ 93-94, 97, 234 P.3d 1115. In Gardner, the defendant argued that "the Utah Constitution confers on this court authority, which cannot be displaced by statute, to examine the merits of a claim that is otherwise procedurally barred." Id. ¶ 90. We detailed the history of the PCRA, rule 65C of the Utah Rules of Civil Procedure, and the common law exceptions to the PCRA's procedural bars both before and after the 2008 PCRA amendments. Id. ¶¶ 91-93. We then noted that

[iIn the time since these amendments, we have not examined whether the PCRA and Rule 65C now wholly accommodate the full measure of our constitutional authority or whether the Utah Constitution requires that we be able to consider, in some cases, the merits of claims otherwise barred by the PCRA.

Id. ¶ 93.

¶15 In Gardner, "[the State acknowledge[d] that this court retains constitutional authority, even when a petition is procedurally barred, to determine whether denying relief would result in an egregious injustice." Id. Nonetheless, the State urged that "we need not address this question, which has clear constitutional implications, because regardless of the boundaries of this court's authority to apply an exception to the procedural rules of the PCRA, Mr. Gardner ha[ld] failed to prove that any such exception would apply to him." Id. We agreed with the State, reasoning that this argument was "in accord with our obligation to avoid addressing constitutional issues unless required to do so." Id. (internal quotation marks omitted). Under this logic, we declined to "define the full extent of our authority to remedy an egregious injustice, because whatever the extent of that authority might be, Mr. Gardner had] failed to persuade us that we ought to invoke it in [his] case." Id. ¶ 94. Ultimately, we "d[id] not answer the constitutional question the parties raise[d]," noting that "regardless of the scope of this court's authority to apply an exception to the procedural and limitations bars of the PCRA, we ... decline[d] to exercise that authority in [Mr. Gardner's] case." Id. ¶ 97.

T16 Mr. Winward argues that our language in Gardner acknowledged a constitutionally based exception to the PCRA's procedural bars where there is an "egregious injustice," and that this exception applies to his case. As was the case in Gardner, the State has not contested the existence of an "egregious injustice" exception to the PCRA's procedural limitations and neither party has briefed the issue. See id. ¶ 93.

{17 It would be improvident for us to address our constitutional authority to consider the merits of claims that are barred by the PCRA's procedural limitations in a case that does not raise a meritorious claim. See id. ¶¶ 93-97. Therefore, as a preliminary matter, we articulate a framework for considering a petitioner's claim that he qualifies for an exception to the PCRA's procedural bars.

(18 First, as a threshold matter, a petitioner must prove that his case presents the type of issue that would rise to the level that would warrant consideration of whether there is an exception to the PCRA's procedural bars. See id. ¶¶ 93-94. To satisfy this threshold question, he must demonstrate that he has a reasonable justification for missing the deadline combined with a meritorious defense. See id. ¶ 94. Only after meeting this threshold requirement will we even consider the existence of an exception to the PCRA. See id. ¶¶ 93-94. Indeed, if a petitioner's case is so weak that it fails to meet this threshold consideration, it would be unwise for us to consider our constitutional authority to recognize an exception to the PCRA. In a case where a petitioner can demonstrate that his case meets this threshold consideration, the petitioner must then fully brief the particulars of this exception. Such briefing must include an articulation of the exception itself, its parameters, and the basis for this court's constitutional authority for recognizing such an exception. Finally, a petitioner must demonstrate why the particular facts of his case qualify under the parameters of the proposed exception. Under this framework, the petitioner bears the heavy burden of demonstrating that his case presents such significant issues that we should address our constitutional authority to consider exceptions to the PCRA's procedural bars. This framework and its threshold consideration will ensure that we follow "our obligation to avoid addressing constitutional issues unless required to do so." Id. ¶ 93 (internal quotation marks omitted).⁴

119 As was the case in Gardner, Mr. Winward has failed to meet this threshold test. See id. ¶¶ 93-94. Therefore, as in Gardner, we need not address our constitutional authority to recognize an exception to the PCRA's procedural bars. See id.

20 To prove that his case meets the threshold test, "a petitioner must persuade the court that, given the combined weight of the meritoriousness of the petitioner's claim and the justifications for raising it late," the court should consider recognizing an exception to the PCRA's procedural rules. Id. § 94 (citing Adams v. State, 2005 UT 62, ¶ 16, 123 P.3d 400).⁵ This is a flexible test, and courts must "give appropriate weight to each of those factors according to the cireum-stances of a particular case." Adams, 2005 UT 62, ¶ 16, 123 P.3d 400. Ultimately, "(tlhe petitioner bears the burden of pointing to sufficient factual evidence or legal authority to support a conclusion of meritoriousness." Id. ¶ 20. This means that the petition must have "an arguable basis in fact," which would "support a claim for relief as a matter of law." Id. ¶ 19 (internal quotation marks omitted); Urax R. Civ. P. 65C(b)(2)(A)-(B).

121 At the outset, Mr. Winward fails to present a reasonable justification for raising his claims more than ten years after the statute of limitations had expired. Mr. Win-ward argues that he was reasonably justified in failing to meet the PCRA's one-year statute of limitations because he received ineffective assistance of counsel and because the legal resources available to him as an incarcerated defendant were insufficient. But the mere allegation that counsel was ineffective is not a reasonable justification for missing the PCRA's time limitations.⁶ Indeed, a ree-ognition that the mere allegation of ineffective assistance of counsel would justify an exception to the statute of limitations would create an exception that would swallow the rule. And Mr. Winward has not provided any facts to support his claim regarding the ineffectiveness of his counsel or the insufficiency of the legal resources available to incarcerated defendants. Mr. Winward does not allege that he attempted to utilize the legal resources at his disposal during the decade since his incarceration. And he admits that he never even attempted to utilize the contract attorneys available at the prison to review the claims of incarcerated defendants. Significantly, he provides no justification as to why it took over a decade to prepare his petition or why he could not have filed his claims sooner. In sum, Mr. Win-ward has failed to proffer any reasonable justification for missing the PCRA's statute of limitations. This failure convinces us that no matter what the seope of any "egregious injustice" exception to the PCRA, Mr. Win-ward does not qualify for it.

122 Additionally, although Mr. Win-ward alleges six claims for relief,⁷ he fails to "point[ ] to sufficient factual evidence or legal authority to support a conclusion of meritoriousness" on any one of his claims. Adams, 2005 UT 62, ¶ 20, 123 P.3d 400. He argues that he received ineffective assistance of counsel because his trial counsel: (1) failed to present evidence that one of the victims, T.W., denied allegations of sexual abuse for three months; (2) allowed an allegedly biased juror to sit on the jury; (8) did not call important witnesses from the first trial at the second trial; (4) failed to meet with Mr. Winward prior to trial; (5) failed to call important rebuttal witnesses; and (6) represented him on appeal and failed to raise his own ineffectiveness.⁸ To establish a merito rious defense based on the ineffective assistance of counsel, Mr. Winward would have to prove both that he received deficient performance from his trial counsel, and that this deficient performance prejudiced the outcome of his trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). But Mr. Winward cannot demonstrate that his case meets this threshold requirement because his petition does not provide any "arguable basis in fact" that would "support a claim for relief as a matter of law." R. Civ. P. 65C(b)(@)(A)-(B).

23 Specifically, the facts do not support Mr. Winward's claim that his trial counsel failed to present evidence that one of the victims, T.W., denied allegations of sexual abuse for three months. In fact, the record reveals that Mr. Winward's trial counsel cross-examined T.W. extensively on this issue and elicited testimony from T.W. in which TW. conceded that he had denied the accusations for an extended period of time. And these facts do not support a legal claim for relief because Mr. Winward cannot demonstrate he was prejudiced by this alleged failure. Even had the jury entirely discredited T.W.'s testimony, there was sufficient evidence from the other two victims' testimony to support Mr. Winward's conviction.

{ 24 Similarly, the facts do not support Mr. Winward's second claim that his attorney was ineffective in allowing an allegedly biased juror to sit on the jury. Mr. Winward has not shown sufficient facts to rebut the presumption that "trial counsel's lack of objection to, or failure to remove, a particular juror is ... the product of a conscious choice or preference." State v. Litherland, 2000 UT 76, ¶ 20, 12 P.3d 92. And Mr. Winward fails to cite to any facts to rebut this presumption. See id. ¶ 25 (listing three ways a defendant may rebut the presumption).

1 25 Mr. Winward also fails to allege facts that would support a legal basis for relief with respect to his claim that he received ineffective assistance of counsel when his trial counsel failed to call important witnesses from the first trial at the second trial. In fact, the testimony that Mr. Winward claims resulted in a hung jury in his first trial was read into evidence during the second trial. Therefore, Mr. Winward cannot show that he was prejudiced by this allegedly deficient performance.

126 Mr. Winward's fourth claim, that his trial counsel performed deficiently by failing to meet with Mr. Winward prior to the see-ond trial, also fails because Mr. Winward has failed to establish any facts supporting this claim. Actually, the record establishes that Mr. Winward's trial attorney met with him extensively prior to and during his first trial. And, in any event, we have consistently "refused to hold that counsel is ineffective based on the amount of time counsel spent working on the case or consulting with a client." Nicholls v. State, 2009 UT 12, ¶ 38, 203 P.3d 976.

T 27 Mr. Winward's fifth claim alleges that he received ineffective assistance of counsel when his trial counsel failed to call important rebuttal witnesses, including a forensic child psychologist, a medical expert, and T.W.'s caseworker. But this claim does not allege a viable claim for relief because an "invitation to speculate" about unspecified testimony "cannot substitute for proof of prejudice." State v. Arguelles, 921 P.2d 439, 441 (Utah 1996).⁹

128 "[Gliven the combined weight of the meritoriousness of [his] claim{[s] and the justifications for raising [them] late," Mr. Win-ward has failed to persuade us that this case presents any issue that would justify our consideration of whether to recognize an exception to the PCRA's procedural bars. See Gardner, 2010 UT 46, ¶ 94, 234 P.3d 1115. And he has utterly failed to brief the parameters of his proposed "egregious injustice" exception. Instead, he relies on a misreading of our decision in Gardner, arguing that Gardner recognized an "egregious injustice" exception. But Gardner clearly declined to address whether there is an "egregious injustice" exception to the PCRA. See id. ¶¶ 94. And Mr. Winward fails to cite to any constitutional authority supporting any such exception. After reviewing Mr. Winward's claims and supporting legal authority, we are convinced that no injustice, let alone an "egregious injustice," will result from applying the procedural bar. See id. ¶ 94. Because Mr. Winward has not met this threshold requirement, we affirm the district court's dismissal of these claims under the statute of limitations.

III. MR. WINWARD MAY HAVE A NEWLY ACQUIRED CLAIM FOR RELIEF

129 As noted above, the PCRA creates a one-year statute of limitations. See Urax Cope § 78B-9-107. With one possible exception, Mr. Winward's claims accrued on "the entry of the denial of the petition for writ of certiorari," which occurred more than ten years ago. See id. § T8B-9-107(2)(d). The possible exception is Mr. Winward's claim that his counsel provided ineffective assistance during the plea bargaining process.

130 When the U.S. Supreme Court announces a new rule that provides a petitioner with a newly recognized cause of action, he may file a motion to vacate his sentence within one year from the date of the decision. Utax Cop® §§ -107(1), - 107(2)(f). Specifically, section 78B-9-104(1) states:

[A] person who has been convicted and sentenced for a criminal offense may file an action in the district court of original jurisdiction for post-conviction relief to vacate or modify the conviction or sentence [if]:

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(£) the petitioner can prove entitlement to relief under a rule announced by the United States Supreme Court ... after conviction and sentence became final on direct appeal, and that:

(i) the rule was dictated by precedent existing at the time the petitioner's convietion or sentence became final....

Id. § T78B-9-104(1). Where a petitioner can meet the requirements of subsection 104, then his cause of action under the PCRA expires one year from "the date on which the new rule described in Subsection 78B-9-104(1)(f) is established." Id. § 78B-9-107(1),

[ 31 One of Mr. Winward's claims for relief is that he received ineffective assistance of counsel during the plea bargaining process. Specifically, Mr. Winward argues that he received ineffective assistance when his trial counsel failed to adequately explain the State's plea offer. In their initial briefing to this court, both parties relied on our opinion in State v. Greuber, 2007 UT 50, 165 P.3d 1185, to define the scope of a defendant's right to effective assistance of counsel during the plea bargaining process.¹⁰ However, after their briefing was complete, the U.S. Supreme Court issued two companion cases that overrule our principal holding in Greuber. See Missouri v. Frye, - U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, - U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). This is significant because, in his brief to this court, Mr. Win-ward requested that we "change the rule" this court adopted in Grewber and instead "recognize that ineffectiveness at the plea stage is independent of the trial stage."

{ 32 In Grewber, we addressed the scope of the right to effective assistance of counsel during the plea bargaining process when a criminal defendant rejects a favorable plea offer and is later convicted of a more serious charge after a fair trial. 2007 UT 50, ¶¶ 4, 13, 18, 165 P.3d 1185. In Grewber, the defendant argued that he had received ineffective assistance of counsel during the plea bargaining process because his attorneys failed to review certain evidence that would have undermined their theory of the case and would have incentivized Mr. Greuber to accept a plea deal. Id. ¶ 5. We dismissed Mr. Greu-ber's claim for ineffective assistance of counsel, concluding that "while [he] did possess the right to effective assistance of counsel during the plea process, he could not ultimately have been prejudiced ... because he received a trial that was fair-the fundamental right that the Sixth Amendment is designed to protect." ¹¹ Id. ¶ 11. We reasoned that "[ilf a defendant has been convicted at a fair trial after rejecting, with the assistance of counsel, the plea opportunity, there is nothing 'unreliable' or fundamentally unfair about imposing a sentence based on the conviction." Id. ¶ 13 (quoting Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993)).

133 The U.S. Supreme Court's recent opinion in Lafler v. Cooper, - U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), rejected this reasoning. The Court announced that the Sixth Amendment right to counsel extends to pretrial plea negotiations and that any deficiency cannot be redressed by a subsequent fair trial. Id. at 1385-88. In Lofler, the criminal defendant, Mr. Cooper, rejected a plea bargain based on counsel's deficient advice and was subsequently convicted and received a more severe sentence than that offered in the plea. Id. at 1383-84. The Court held that this amounted to ineffective assistance of counsel at the plea bargaining stage. Id. at 1385-88. The Court determined that "(elven if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence." Id. at 1386. The Court therefore held that

[if a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.

Id. at 1387.

34 In reaching this conclusion, the Court rejected the notion that "there can be no finding of Strickland prejudice arising from plea bargaining if the defendant is later con-vieted at a fair trial." Id. at 1385. Compare Greuber, 2007 UT 50, ¶ 11, 165 P.3d 1185 (noting that Mr. Greuber "could not ultimately have been prejudiced ... because he received a trial that was fair-the fundamental right that the Sixth Amendment is designed to protect"). The Court also rejected the view "that the sole purpose of the Sixth Amendment is to protect the right to a fair trial." 132 S.Ct. at 1385. Rather, it observed that "[the constitutional guarantee applies to pretrial critical stages that are part of the whole course of a criminal proceeding, a proceeding in which defendants cannot be presumed to make critical decisions without counsel's advice." Id. And the Court reiterated that it "has not followed a rigid rule that an otherwise fair trial remedies errors not occurring at the trial itself." Id. at 1386.

135 Because the U.S. Supreme Court's decision in Lofler overrules our holding in Greuber,¹² Mr. Winward may be entitled to file a new post-conviction claim under the PCRA's statute of limitations. To qualify under the statute, Mr. Winward must prove two things: (1) "entitlement to relief under a rule announced by the United States Supreme Court ... after conviction and sentence became final on direct appeal," and (2) that "the rule was dictated by precedent existing at the time the petitioner's conviction or sentence became final." Utah Cope § 78B-9-104(1)(f). The question of whether Mr. Winward satisfies these conditions has not been briefed to this court and we therefore decline to address it.

1 36 We vacate the district court's dismissal of Mr. Winward's claim of ineffective assistance of counsel during the plea bargaining process and remand the matter to the district court where Mr. Winward may file a motion to vacate or amend his sentence under section 78B-9-104(1)(f) of the Utah Code. Under the statute, Mr. Winward must file an action to vacate or modify his sentence "in the district court of original jurisdiction for post-conviction relief" within one year from the date of the U.S. Supreme Court's decision in Lafler.¹³ Id. § 78B-9-104(1).

CONCLUSION

137 Our preservation rules preclude consideration of Mr. Winward's habeas corpus and common law exception arguments, and Mr. Winward has failed to demonstrate that he qualifies for any "egregious injustice" exception to the PCRA. We therefore affirm the dismissal of Mr. Winward's claims with the exception of his claim for ineffective assistance of counsel during the plea bargaining process. Under the U.S. Supreme Court's recent opinion in Lafler v. Cooper, - U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398, Mr. Winward may have a newly recognized claim, which may be redressed under section 78B-9-104(1)(f)(i). We therefore remand for consideration of such a claim.

Justice PARRISH authored the opinion of the Court, in which Chief Justice DURRANT, Associate Chief Justice NEHRING, and Justice DURHAM joined. Justice LEE authored a concurring opinion.

1 . The PCRA was amended in 2008 to renumber the Act and replace the phrase "a substantive legal remedy" with "the sole remedy." Compare Urau Cope § 78-35a-102(1) (2007) with Uran Cope § 78B-9-102(1) (2009). Because Mr. Win-ward filed his petition for post-conviction relief in 2009, we apply the statute as it read in 2009.

2 . The PCRA does provide a tolling exception to the one-year time bar. Under this exception, "[tlhe limitations period is tolled for any period during which the petitioner was prevented from filing a petition due to state action in violation of the United States Constitution, or due to physical or mental incapacity." Id. § 78B-9-107(3). Mr. Winward does not argue that this tolling provision applies to his case.

3 . This is true with the exception of one of Mr. Winward's claims. See infra section III.

4 . The concurrence criticizes the majority for not ordering supplemental briefing on this issue. Infra ¶¶ 45, 59 n. 11. However, this court is not in the practice of ordering supplemental briefing on an argument not raised by either party. In Gardner v. State, we flagged the issue but declined to decide it. 2010 UT 46, ¶¶ 93-94, 97, 234 P.3d 1115. The State was therefore well aware of the issue but made a strategic decision not to raise it in this case. It would be unprecedented for us to give the parties a second bite at the apple by ordering supplemental briefing on an issue that they both declined to raise. And even assuming that it might have been proper to order supplemental briefing on the "egregious injustice" issue, the fact remains that we declined to do so. It would therefore be imprudent to now resolve this extremely important issue without the benefit of adversarial briefing.

5 .Our decision in Adams does not define the parameters of a new "egregious injustice" exception. Rather, we cite to Adams as a contextual tool for determining whether a petitioner qualifies under the threshold consideration. Indeed, if a petitioner cannot prove that he would prevail under Adams's former interest of justice exception, which we expressly abandoned after the 2008 amendments to the PCRA, then a petitioner certainly cannot qualify under a more rigorous standard such as "egregious injustice." See Gardner v. State, 2010 UT 46, ¶ 91, 234 P.3d 1115 (noting that the 2008 PCRA amendments appear to have extinguished the "interest of justice" exception.) The concurrence criticizes our use of the "now-defunct" interest of justice exception. Infra ¶¶ 48-49, 53. However, in a case like this where the petitioner has demonstrated no injustice, clearly no "egregious injustice" could exist. Because there is no injustice in the case before us, we are not called upon to define the parameters of any possible "egregious injustice" exception.

6 . Mr. Winward cites to our decision in Adams v. State, 2005 UT 62, 123 P.3d 400, to support his argument that ineffective assistance of counsel justifies his missing the PCRA's one-year time bar, How ever, unlike the defendant in Adams, Mr. Winward does not have a meritorious ineffective assistance of counsel claim based on an allegation of legal innocence. See id. ¶¶ 25-26. And as we noted in Adams, the weight we give to a justification for a petitioner's untimely filing will vary "according to the circumstances of a particular case." Id. ¶ 16.

7 . In total, Mr. Winward's original petition included eight claims for relief. In addition to the six claims addressed above, Mr. Winward also contended that he received ineffective assistance of counsel during the plea bargaining process when his counsel failed to adequately explain the State's plea offer, and he argued that all of his trial counsel's errors amounted to cumulative error. Mr. Winward's argument regarding inef-{ective assistance of trial counsel during the plea bargaining process is addressed below. See infra section III. And because Mr. Winward has failed to allege a meritorious basis for his other claims, infra ¶¶ 22-27, we need not address his cumulative error argument.

8 . Because we conclude that Mr. Winward did not receive ineffective assistance from his trial counsel, we need not address Mr. Winward's argument regarding his trial counsel's ineffective assistance on appeal.

9 . Because Mr. Winward has not been able to prove his claims for ineffective assistance of trial counsel, we need not address his remaining claims of cumulative error and ineffective assistance of counsel on appeal.

10 . The day before we heard oral argument in this case, the State supplemented its briefing with the U.S. Supreme Court opinion in Lafler v. Cooper, - U.S. -, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), pursuant to rule 24(j) of the Utah Rules of Appellate Procedure.

11 . In reaching this conclusion, we cited two pri- or cases rejecting the notion that criminal defendants have a constitutional right to effective counsel at the plea bargaining stage when the case resulted in a fair trial. See Greuber, 2007 UT 50, ¶ 10, 165 P.3d 1185 (quoting State v. Geary, 707 P.2d 645, 646 (Utah 1985)) (citing State v. Knight, 734 P.2d 913, 919 n. 7 (Utah 1987)).

12 . We pause to note that at least a portion of our decision in Greuber may remain good law. In Lafler, the Court noted that "[pirinciples elaborated over time in decisions of state and federal courts, and in statutes and rules, will serve to give more complete guidance as to the factors that should bear upon the exercise of the judge's discretion" in fashioning the appropriate remedy when it is found that a defendant received ineffective assistance of counsel during the plea bargaining process. 132 S.Ct. at 1389. Thus, this court's decision in Greuber may remain good law to the extent that it guides lower courts in fashioning a remedy.

13 . Because Mr. Winward's claim for ineffective assistance during the plea bargaining process may no longer be barred under the statute of limitations, we need not address whether this claim qualifies for any other potential exception to the PCRA's procedural bar.