District Court, Ogden Department The Honorable Ernest W.
Jones No. 140905670
B. Richards, Attorney for Appellant.
Gregory Burdett, Attorney for Appellee.
Michele M. Christiansen authored this Opinion, in which
Judges J. Frederic Voros Jr. and Jill M. Pohlman concurred.
On the advice of his defense attorney, Cesar Daniel Lopez
pled guilty to one count of retail theft, a class B
misdemeanor, in the Ogden City Justice Court. Long after the
time to withdraw his guilty plea had expired, Lopez filed a
petition in the Second District Court seeking to vacate his
conviction pursuant to the Post-Conviction Remedies Act (the
PCRA). Ogden City moved to dismiss the petition. The court
determined that Lopez should have had knowledge of one of his
PCRA claims when he was originally sentenced, that the
PCRA's statute of limitations therefore began to run at
the time of sentencing, and that Lopez's PCRA petition
was consequently time-barred. Lopez appeals, contending that
the court improperly considered an exhibit submitted with the
City's motion to dismiss and that the court failed to
treat the factual allegations of his petition as true.
Although we conclude that the exhibit was properly before the
court, we vacate the dismissal on the ground that the
court's interpretation of that exhibit improperly
discounted Lopez's factual allegations.
"On appeal from a motion to dismiss, we review the facts
only as they are alleged in the complaint." Peck v.
State, 2008 UT 39, ¶ 2, 191 P.3d 4 (citation and
internal quotation marks omitted); see also McNair v.
State, 2014 UT App 127, ¶ 2 n.1, 328 P.3d 874
(same, in the context of the dismissal of a PCRA claim).
"We accept the factual allegations as true and draw all
reasonable inferences from those facts in a light most
favorable to the [petitioner]." Peck, 2008 UT
39, ¶ 2.
In his September 4, 2014 PCRA petition, Lopez claimed that
his defense attorney had failed to inform him of the
potential immigration consequences of the guilty plea he
entered on January 28, 2011. Lopez also claimed that neither his public
defender nor the justice court informed him of "his
right to counsel, his right to a public trial, and his right
to withdraw his guilty plea, " as required by rule 11(e)
of the Utah Rules of Criminal Procedure. Lopez asserted that
he "first became aware of the evidentiary facts on which
the petition [was] based within the [last one year, ] after
reviewing his criminal proceedings with his new
The City moved to dismiss the petition on two procedural
bases. First, the City asserted that Lopez had failed to
appeal his sentence via a trial de novo in the district court
despite being "informed by the court that he had 30 days
to appeal any sentence given." Consequently, in the City's view,
Lopez's petition was barred because a provision of the
PCRA "precludes a petitioner from receiving relief if
the ground for relief could have been but was not raised at
trial or on appeal." (Citing Utah Code section
78B-9-106.) Second, the City argued that, because Lopez did
not file an appeal, the one-year time limit on his petition
(challenging the effectiveness of his trial counsel and other
aspects of the criminal proceedings) began running on
February 28, 2011, and expired on February 28, 2012, thus
rendering his September 4, 2014 petition "over two years
too late." See Utah Code Ann. §
78B-9-107(1) (LexisNexis 2012) ("A petitioner is
entitled to relief only if the petition is filed within one
year after the cause of action has accrued.");
id. § 78B-9-107(2)(a) (setting forth methods
for calculating the date of accrual, including, as relevant
here, that a PCRA cause of action may accrue on "the
last day for filing an appeal from the entry of the final
judgment of conviction, if no appeal is taken").
The City attached an exhibit-the justice court docket for
Lopez's case-to its motion to dismiss (the Docket
Exhibit). With respect to the trial date, guilty plea, and
sentencing, the Docket Exhibit recounted:
This is the time set for bench trial. Defendant is present,
in custody of Weber County Jail, with . . . as counsel. Trial
is not held as negotiations have been reached.
Defendant enters plea of guilty to MB-retail theft.
City moves to dismiss remaining charges.
Court accepts and proceeds with ...