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Lopez v. Ogden City

Court of Appeals of Utah

July 20, 2017

Cesar Daniel Lopez, Appellant,
v.
Ogden City, Appellee.

         Second District Court, Ogden Department The Honorable Ernest W. Jones No. 140905670

          Jason B. Richards, Attorney for Appellant.

          Wm. Gregory Burdett, Attorney for Appellee.

          Judge Michele M. Christiansen authored this Opinion, in which Judges J. Frederic Voros Jr. and Jill M. Pohlman concurred.

          OPINION

          CHRISTIANSEN, Judge.

         ¶1 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.

         ¶2 "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.

         ¶3 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.[1] 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 counsel."

         ¶4 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."[2] 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").

         ¶5 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 ...

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