Lucero v. Kennard

2005 UT 79
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Benjamin Frank Lucero,
Petitioner, 	No. 20040339
v.
Sheriff Aaron Kennard,
Chief Paul Cunningham,
Salt Lake County Jail, 	F I L E D
Murray City Justice Court,
Respondents. 	November 15, 2005
---
Third District, Salt Lake
The Honorable Glenn Iwasaki
No. 020907208
Attorneys: 	Joan C. Watt, Heather Brereton, Salt Lake City, for
petitioner
Scott Daniels, Salt Lake City, for Murray City
Justice Court
Karl L. Hendrickson, Deputy Dist. Att’y, Salt Lake
City, for Sheriff Aaron Kennard, Chief Paul
Cunningham, and the Salt Lake County Jail
---
On Certiorari to the Utah Court of Appeals
DURRANT, Justice:
INTRODUCTION
¶1 	In this case, we are asked to consider whether the
Post-Conviction Remedies Act (“PCRA”) allows collateral attacks
on a justice court conviction when the defendant has failed to
seek a trial de novo. 	The court of appeals concluded that the
failure to seek a trial de novo bars a justice court defendant
from obtaining post-conviction relief. 	We granted certiorari to
review the court of appeals’ opinion. 	We now affirm.

1 Although the docket is sparse, it appears that this
finding was made when determining whether Lucero was capable of
paying for an outpatient treatment program or the installation of
an interlock ignition.
2 The justice court, in its docket, lists four different
filing dates for petitions for post-conviction relief. 	The first
petition for post-conviction relief was filed with the Murray
Justice Court on July 3, 2002, within thirty days of the date the
justice court judgment was rendered. 	The record does not
indicate that a petition was filed with the Third District Court
until nearly a month later, on August 1, 2002.
No. 20040339 	2
BACKGROUND
¶2 	Petitioner Benjamin Frank Lucero was charged in the
Murray City Municipal Justice Court with driving under the
influence of alcohol, Utah Code Ann. § 41-6-44 (Supp. 2004), and
improper usage of lanes, id. § 41-6-61 (1998). 	Although the pre-
trial conference was continued twice so that Lucero could retain
private counsel, Lucero ultimately represented himself throughout
the proceedings at the justice court. 	At the justice court
hearing, Lucero pleaded guilty to driving under the influence,
and the court dismissed the charge of improper lane usage. 	The
justice court subsequently fined Lucero $1,850 and sentenced him
to 180 days in jail and eighteen months’ probation. 	After
sentencing, the court found Lucero to be impecunious. 1
¶3 	Lucero subsequently filed a “Petition for Post-
Conviction Relief or, in the alternative, a Motion to Correct
Illegally Imposed Sentence” in both the Murray Justice Court and
the Third District Court. 2 	In his petition, Lucero argued that
his sentence was imposed in violation of his Sixth Amendment
right to counsel. 	The district court, acting in an appellate
capacity, held a hearing to address Lucero’s claims and, after
considering proffered testimony from the justice court judge,
affidavits from the justice court clerks, and testimony from
Lucero, concluded that no Sixth Amendment violation had occurred.
Accordingly, the district court dismissed Lucero’s petition.
Lucero filed a timely appeal with the court of appeals to review
the district court’s order.
¶4 	In reviewing the district court’s decision, the court
of appeals did not examine whether Lucero had effectively waived
his right to counsel at the justice court proceeding, but instead
affirmed the district court on the ground that Lucero was
ineligible for post-conviction relief because he failed to seek a
trial de novo in the district court before seeking post-

3 The PCRA does not apply to
(a) habeas corpus petitions that do not
challenge a conviction or sentence for a
criminal offense;
(b) motions to correct a sentence pursuant to
Rule 22(e), Utah Rules of Criminal Procedure;
or
(c) actions taken by the Board of Pardons and
Parole.
Utah Code Ann. § 78-35a-102(2) (2002).
3 	No. 20040339
conviction relief. 	Lucero v. Kennard, 2004 UT App 94, ¶ 13, 89
P.3d 175. 	The court of appeals reasoned that any violation of
Lucero’s constitutional right to counsel could have been remedied
by a trial de novo and, by failing to pursue that remedy, Lucero
was both procedurally barred from receiving post-conviction
relief and ineligible for the “unusual circumstances” exception
to the procedural bar rules. 	Id. ¶ 12. 	We have jurisdiction
pursuant to Utah Code section 78-2-2(3)(a) (2002).
STANDARD OF REVIEW
¶5 	On certiorari, we review the court of appeals’ decision
for correctness, giving its conclusions of law no deference.
State v. Geukgeuzian, 2004 UT 16, ¶ 7, 86 P.3d 742.
ANALYSIS
¶6 	The issue in this case is whether Lucero is eligible
for post-conviction relief. 	To address this issue we must
determine (1) whether the PCRA applies to justice court
defendants and, if so, (2) whether Lucero is entitled to post-
conviction relief despite his failure to seek a trial de novo to
appeal his justice court sentence. 	We conclude that the PCRA
applies to justice court defendants, but that Lucero is not
entitled to post-conviction relief because he failed to seek a
trial de novo.
¶7 	By filing a post-conviction petition, a defendant seeks
to collaterally attack a conviction or sentence. 	Rudolph v.
Galetka, 2002 UT 7, ¶ 5, 43 P.3d 467. 	In 1996, the legislature
enacted the PCRA to “establish[] a substantive legal remedy for
any person who challenges a conviction or sentence for a criminal
offense,” 3 Utah Code Ann. § 78-35a-102 (1) (2002), has a valid

4 The PCRA establishes five grounds for post-conviction
relief:
(a) the conviction was obtained or the
sentence was imposed in violation of the
United States Constitution or Utah
Constitution;
(b) the conviction was obtained under a
statute that is in violation of the United
States Constitution or Utah Constitution, or
the conduct for which the petitioner was
prosecuted is constitutionally protected;
(c) the sentence was imposed in an unlawful
manner, or probation was revoked in an
unlawful manner;
(d) the petitioner had ineffective assistance
of counsel in violation of the United States
Constitution or Utah Constitution; or
(e) newly discovered material evidence exists
that requires the court to vacate the
conviction or sentence . . . .
Utah Code Ann. § 78-35a-104(1).
Lucero attacks his sentence under section 78-35a-
104(1)(a), arguing that his sentence was imposed in violation of
his Sixth Amendment right to counsel. 	The court of appeals did
not assess whether the trial court correctly found that Lucero
had effectively waived his right to counsel and was therefore not
entitled to post-conviction relief. 	The court of appeals instead
held that Lucero was procedurally barred from receiving post-
conviction relief because he had failed to file for a trial de
novo in the district court. 	Lucero v. Kennard, 2004 UT App 94,
¶ 13, 89 P.3d 175. 	Thus, for the purposes of this proceeding, we
will assume that if the deprivation of counsel claim contained in
Lucero’s petition is true, he would have grounds for post-
conviction relief. 	See Webster v. Jones, 587 P.2d 528, 530 (Utah
1978) (proceeding “upon the assumption that if [the defendant’s]
claims as to the violation of his basic constitutional rights
were true they might bring him within purview of habeas corpus”).
No. 20040339 	4
ground for relief, 4 id. § 78-35a-104, and is not procedurally
barred from bringing a claim for relief, id. § 78-35a-106.
¶8 	Respondent, Murray City Justice Court (the “Justice
Court”) argues that Lucero is precluded from receiving post-
conviction relief for two reasons: (1) the PCRA does not apply to
justice court defendants and, even if it does, (2) Lucero is
procedurally barred from receiving post-conviction relief due to
his failure to seek de novo review in the district court. 	Lucero
responds that the PCRA does not limit post-conviction relief to

5 	No. 20040339
district court defendants and, because he could not argue at a
trial de novo that the justice court had violated his right to
counsel, his failure to pursue a trial de novo does not
procedurally bar him from seeking post-conviction relief. 	We
will address each of the arguments in the order presented.
I. THE PCRA APPLIES TO JUSTICE COURT DECISIONS
¶9 	We first address the Justice Court’s contention that
justice court defendants are not eligible to receive post-
conviction relief under the PCRA. 	We conclude that the PCRA does
not preclude justice court defendants from receiving post-
conviction relief.
¶10 	Justice courts are distinct from traditional district
courts in a number of respects. 	For example, justice courts are
created by municipalities or counties, Utah Code Ann. § 78-5-
101.5 (2002); have jurisdiction over only certain small claims
cases, class B and C misdemeanors, and other minor offenses, id.
§ 78-5-104; and do not maintain a record of the proceedings
before them, id. § 78-5-101.
¶11 	Because justice courts do not maintain a record of
their proceedings, “the appeals process from a justice court
decision is unique.” 	Bernat v. Allphin, 2005 UT 1, ¶ 8, 106 P.3d
707. 	To appeal a sentence or conviction, a justice court
defendant must undergo a trial de novo in the district court,
instead of having an appellate court examine the record of the
proceedings below to review the lower courts’ decision. 	See id.;
Utah Code Ann. § 78-5-120(1); cf. Dean v. Henriod, 1999 UT App
50, ¶ 9 n.1, 975 P.2d 946 (“In the traditional appeal, a
court . . . reviews the trial court’s record and either affirms
or reverses the judgment entered therein.”). 	This trial de novo
to appeal from a justice court decision is similar to other
trials de novo in the sense that the defendant has the
opportunity to “relitigate the facts as to his guilt or
innocence” as if the case had originated there. 	Bernat, 2005 UT
1, ¶ 31. 	But such a trial de novo is not a trial de novo “in the
strictest sense” because the district court cannot impose a
greater sentence than that imposed at the justice court
proceeding. 	Id. ¶ 31 n.12.
¶12 	In this case, rather than seek a trial de novo to
appeal his justice court sentence, Lucero filed a petition for
post-conviction relief. 	The PCRA entitles “any person who
challenges a conviction or sentence for a criminal offense” to
post-conviction relief, provided that person meets certain
requirements. 	Utah Code Ann. § 78-35a-102 (emphasis added).

5 Utah Rule of Civil Procedure 65C “govern[s] proceedings in
all petitions for post-conviction relief filed under [the PCRA].”
Utah R. Civ. P. 65C(a).
No. 20040339 	6
Despite this broad language, which does not appear to limit post-
conviction relief to criminal cases filed in district courts, the
Justice Court claims that the relief provided by the PCRA does
not apply to justice court defendants for two reasons. 	First, it
argues that the language of the PCRA and the procedural
provisions governing the act’s operation contain requirements
that cannot be fulfilled by justice court defendants. 	Second,
the Justice Court argues that, without a record to review, it is
so difficult for a district court to determine what occurred at
the justice court proceeding below that review of a post-
conviction petition in such situations is impracticable. 	We will
analyze each argument in turn.
¶13 	Before addressing the Justice Court’s arguments,
however, it should first be noted that the PCRA cannot limit this
court’s authority to review justice court defendants’ petitions
for post-conviction relief. 	See Gardner v. Galetka, 2004 UT 42,
¶ 17, 94 P.3d 263. 	Under the Utah Constitution, “the power to
review post-conviction petitions ‘quintessentially . . . belongs
to the judicial branch of government.’” 	Id. (quoting Hurst v.
Cook, 777 P.2d 1029, 1033 (Utah 1989)); see also Utah Const. art.
VIII, § 3 (“The Supreme Court shall have original jurisdiction to
issue all extraordinary writs . . . .”). 	Thus, “the legislature
may not impose restrictions which limit [post-conviction relief]
as a judicial rule of procedure, except as provided in the
constitution.” 	Gardner, 2004 UT 42, ¶ 17 (internal quotation
omitted). 	To the extent the PCRA “purports to erect an absolute
bar to this court’s consideration of . . . post-conviction
petitions, it suffers from constitutional infirmities.” 	Id.
Accordingly, the enactment of the PCRA did not, and could not,
limit this court’s right to grant post-conviction relief to
justice court defendants. 	Having clarified this point, we now
turn to the Justice Court’s arguments concerning the PCRA’s
applicability to justice court proceedings.
A. The Requirements of the PCRA May Be Fulfilled by Justice Court
Defendants.
¶14 	The Justice Court claims that justice court defendants
cannot fulfill the requirements contained within the PCRA and its
procedural provision, Utah Rule of Civil Procedure 65C, 5 and that
the defendants are therefore ineligible for post-conviction
relief. 	Specifically, the Justice Court argues that a justice
court defendant cannot fulfill the PCRA’s requirements that (1) a

6 	Notwithstanding [the scope of a district
court’s original jurisdiction], the district
court has subject matter jurisdiction in
class B misdemeanors, class C misdemeanors,
infractions, and violations of ordinances
only if:
(a) there is no justice court with
territorial jurisdiction;
(b) the matter was properly filed in the
circuit court prior to July 1, 1996;
(c) the offense occurred within the
boundaries of the municipality in which the
district courthouse is located and that
municipality has not formed a justice court;
or
(d) they are included in an indictment or
information covering a single criminal
episode alleging the commission of a felony
or a class A misdemeanor.
Utah Code Ann. § 78-3-4(8)(2002).
7 	No. 20040339
petition for post-conviction relief be filed “in the district
court of original jurisdiction,” Utah Code Ann. § 78-35a-104(1);
(2) a defendant directly appeal or otherwise have an on-the-
record review of their conviction or sentence before seeking
post-conviction relief, id. § 78-35a-102; and (3) a clerk assign
and deliver a petition for post-conviction relief to the judge
who sentenced the petitioner, Utah R. Civ. P. 65C(f). 	We are not
persuaded.
¶15 	First, the Justice Court argues that a justice court
defendant cannot file a petition in the district court with
original jurisdiction because district courts do not have
original jurisdiction over justice court cases. 	This assertion
is incorrect because the scope of a district court’s original
jurisdiction is defined more broadly than the scope of its
subject matter jurisdiction. 	See Utah Code Ann. § 78-3-4(1),
(8). 	Utah Code section 78-3-4, which delineates the scope of a
district court’s jurisdiction, differentiates between a district
court’s original and subject matter jurisdiction. 	Id. 	The
statute states that the district court has original jurisdiction
over “all matters civil and criminal,” not prohibited by the
constitution or law, id. § 78-3-4(1), but notes that, that
“[n]otwithstanding,” the district court generally does not have
subject matter jurisdiction over justice court cases, 6 	id. § 78-
3-4(8). 	Therefore, a justice court defendant may file a petition
for post-conviction relief in the district court of original
jurisdiction by filing it with the district court located in the

No. 20040339 	8
same district as the justice court.
¶16 	Second, the Justice Court argues that justice court
defendants cannot fulfill the PCRA requirements because they
cannot directly appeal a conviction or receive an on-the-record
review of the proceedings below. 	The Justice Court cites three
instances in which the PCRA and rule 65C require a defendant to
directly appeal a conviction or sentence in order to be eligible
for post-conviction relief. 	First, to be entitled to post-
conviction relief, the PCRA states that a defendant must have
“exhausted all other legal remedies, including a direct appeal.”
Id. § 78-35a-102. 	Second, rule 65C requires that the petition
for post-conviction relief state “whether the judgment . . . has
been reviewed on appeal.” 	Utah R. Civ. P. 65C(C)(4). 	Third,
rule 65C requires that the petition for post-conviction relief
include a copy of “any opinion issued by an appellate court
regarding the direct appeal of the petitioner’s case.” 	Id.
65C(d)(2).
¶17 	Nowhere in the PCRA or rule 65C, however, are on-the-
record reviews and direct appeals mandated. 	Instead, the
provisions cited by the Justice Court merely require that
defendants pursue a direct appeal if that remedy is available and
that the petition for post-conviction relief include a statement
about whether an appeal has occurred and, if it has, a copy of
that appeal. 	Thus, justice court defendants can meet the PCRA
requirements by exhausting the available legal remedies and
including in their petitions for post-conviction relief a
statement that the justice court judgment has not been reviewed
on appeal.
¶18 	Third, the Justice Court argues that a clerk cannot
assign a petition for post-conviction relief to the judge who
sentenced the petitioner because justice court judges do not have
jurisdiction over petitions for post-conviction relief. 	This
argument fails because rule 65C allows a clerk to assign the
petition “in the normal course” if the judge who sentenced the
defendant is unavailable. 	Id. 65C(f).
¶19 	In short, justice court defendants can fulfill all of
the requirements that the PCRA and rule 65C place on defendants
seeking post-conviction relief.
B. A Court May Review Petitions for Post-Conviction Relief
Without a Record.
¶20 	We next address the Justice Court’s argument that a
district court cannot determine whether to grant post-conviction

9 	No. 20040339
relief to justice court defendants because the absence of a
record of the proceedings below renders a review of the petition
impracticable. 	Although a review without the aid of a record may
be more difficult than a review in which a record is available,
we conclude that a court is capable of determining whether a
justice court defendant is entitled to post-conviction relief
even without a record of the proceedings below.
¶21 	The Justice Court supports its argument that a record
is essential for an appellate court to conduct a meaningful
review of the justice court’s proceedings by citing to Jones v.
State, 789 N.E.2d 478 (Ind. 2003). 	In Jones, the Indiana Supreme
Court noted that Indiana’s post-conviction relief statute seemed
generally applicable, but held that it was written with courts of
record in mind because a transcript of the trial was necessary to
assess the types of claims asserted in post-conviction
proceedings. 	Id. at 480. 	The court reasoned that the claims
generally raised in petitions for post-conviction relief are
dependent on what happened in the proceedings below. 	Id. 	As an
example, the court noted that for an ineffective assistance of
counsel claim, a review of the record was necessary to examine
the adequacy of counsel’s performance. 	Id. at 481. 	Without a
transcript, the court would be forced to rely on “the memories of
the participants in a misdemeanor trial that occurred years in
the past.” 	Id.
¶22 	Jones, however, is inharmonious with our case law.
While we have previously recognized the difficulty that an
appellate court may have in deciding whether to grant post-
conviction relief without a record of the proceedings below, we
have also reviewed petitions for post-conviction relief without
the aid of a record. 	See Webster v. Jones, 587 P.2d 528, 529
(Utah 1978). 	In Webster, this court reviewed a city court
defendant’s petition for post-conviction relief based on a denial
of the defendant’s right to counsel. 	Id. 	Although there was no
record and the court acknowledged that the plaintiff’s testimony
was “self-serving,” the court was able to adequately discern what
happened at the proceedings below by looking at the court docket
and considering the plaintiff’s own testimony. 	Id.
¶23 	Furthermore, in instances where there is even less
evidence of what occurred at the proceeding below than that
presented in Webster, a court may determine whether a party is
entitled to post-conviction relief by deciding who has the burden
of proof and whether that burden has been met. 	The absence of a
record does not foreclose post-conviction challenges, but merely
makes it more difficult for a party to meet the applicable
burden.

No. 20040339 	10
¶24 	In a proceeding where a defendant seeks to collaterally
attack a court’s judgment, we presume the regularity of the
proceedings below. 	Price v. Turner, 502 P.2d 121, 122 (Utah
1972) (“After one has been convicted of crime [sic] the
presumption of innocence and other protections afforded an
accused no longer obtain. 	The presumptions then are in favor of
the propriety of the proceedings . . . .”); see also Johnson v.
Zerbst, 304 U.S. 458, 468 (1938) (“When collaterally attacked,
the judgment of a court carries with it a presumption of
regularity.”), overruled on other grounds by Edwards v. Arizona,
451 U.S. 477 (1981). 	The petitioner bears the burden of
overcoming this presumption by a preponderance of the evidence.
See Moore v. Michigan, 355 U.S. 155, 161 (1957); Johnson, 304
U.S. at 469; see also Price, 502 P.2d at 122 (placing burden of
rebutting presumption of regularity upon the petitioner).
¶25 	That presumption notwithstanding, the analysis of
whether a defendant is entitled to post-conviction relief is more
complicated in cases where a defendant raises a deprivation of
counsel claim because of the “special status” conferred upon the
constitutional right to counsel. 	Lackawanna County Dist.
Attorney v. Coss, 532 U.S. 394, 404 (2001) (concluding that
failure to appoint counsel claim “warrants special treatment
among alleged constitutional violations”); see Custis v. United
States, 511 U.S. 485, 494-96 (1994) (discussing the “historical
basis” for treating collateral attacks based on a denial of the
right to counsel differently than other constitutional rights).
A court may not presume waiver of the right to counsel unless
there is some evidence that the defendant affirmatively
acquiesced to the waiver of counsel. 	See Carnley v. Cochran, 369
U.S. 506, 516-17 (1962) (“[N]o . . . burden [to overcome a
presumption of regularity] can be imposed upon an accused unless
the record–-or a hearing, where required–-reveals his affirmative
acquiescence.”); State v. Hamilton, 1987 Utah LEXIS 638 at *5
(“Waiver [of the right to counsel] may not be presumed by a
silent record.”); see also Arbuckle v. Turner, 440 F.2d 586, 589
(10th Cir. 1971) (holding that waiver of the right to counsel
cannot be presumed); Clark v. Turner, 283 F. Supp. 909, 913 (D.
Utah 1968) (same). 	If such evidence is presented, the defendant
has the burden of proving that the right to counsel was not
knowingly, intelligently, and voluntarily waived. 	See Iowa v.
Tovar, 541 U.S. 77, 92 (2004) (“[I]n a collateral attack on an
uncounseled conviction, it is the defendant’s burden to prove
that he did not competently and intelligently waive his right to
the assistance of counsel.”); Carnley, 369 U.S. at 515
(“Presuming waiver [of the right to counsel] from a silent record
is impermissible. 	The record must show, or there must be an

11 	No. 20040339
allegation and evidence which show, that an accused was offered
counsel but intelligently and understandingly rejected the
offer.”); see also Dyett v. Turner, 287 F. Supp. 113, 115-16 (D.
Utah 1968) (imposing burden on defendant to show invalidity of
waiver of counsel when the record did not indicate that the
waiver was involuntary); McGhee v. Sigler, 328 F. Supp. 538, 542
(D. Neb. 1971) (“[I]f there was acquiescence by the defendant in
the trial court’s not appointing counsel, the burden then becomes
the defendant’s . . . .”).
¶26 	In this case Lucero seeks post-conviction relief based
on an alleged violation of his right to counsel. 	Like the court
in Webster, the district court attempted to discern what occurred
in the proceedings below by looking at the court docket and
accepting testimony and other evidence. 	After considering the
evidence, the district court determined that Lucero effectively
waived his right to counsel and that he was not entitled to post-
conviction relief.
¶27 	As demonstrated by the proceedings in Webster and in
the district court below, the task of determining whether to
grant post-conviction relief without a record, although
difficult, is not impossible. 	Even though the task of discerning
what occurred at the proceedings below is sometimes onerous, it
is still a judicial duty, and difficulty is not an argument for
shirking that duty.
II. LUCERO IS NOT ELIGIBLE FOR POST-CONVICTION RELIEF
¶28 	Having determined that the PCRA applies to justice
court defendants, we now turn to the central issue in this case:
whether Lucero is eligible for post-conviction relief even though
he failed to seek a trial de novo to appeal from the justice
court decision. 	Because Lucero did not exhaust his legal
remedies when he failed to seek a trial de novo and does not
qualify for the unusual circumstances exception to the procedural
bar rules, we conclude that he is not eligible for such relief.
¶29 	Our common law post-conviction jurisprudence is
markedly different than the PCRA. 	Most notably, under our common
law jurisprudence, a defendant is procedurally barred from
receiving post-conviction relief in instances where “a contention
of error [was] known or should have been known to the petitioner
at the time of judgment,” and the defendant failed to raise the
error and appeal it “through the regular and prescribed
procedure.” 	Carter v. Galetka, 2001 UT 96, ¶ 14, 44 P.3d 626.
In contrast, the PCRA contains two provisions that significantly
limit a defendant’s right to seek post-conviction relief. 	First,

No. 20040339 	12
section 78-35a-106 precludes a petitioner from receiving post-
conviction relief if the ground for relief
(a) may still be raised on direct appeal or
by a post-trial motion;
(b) was raised or addressed at trial or on
appeal;
(c) could have been but was not raised at
trial or on appeal [unless due to ineffective
assistance of counsel];
(d) was raised or addressed in any previous
request for post-conviction relief or could
have been, but was not, raised in a previous
request for post-conviction relief; or
(e) is barred by the [one-year] limitation
period established in Section 78-35a-107.
Utah Code Ann. § 78-35a-106 (2002). 	Second, to be eligible for
post-conviction relief, the defendant must have “exhausted all
other legal remedies, including a direct appeal.” 	Id. § 78-35a-
102.
¶30 	Also, under our common law post-conviction
jurisprudence, in instances where a defendant was procedurally
barred from receiving post-conviction relief, a court could
nevertheless grant such relief if the court determined that
unusual circumstances existed. 	Carter, 2001 UT 96, ¶ 15; see
also Hurst v. Cook, 777 P.2d 1029, 1035-36 (Utah 1989). 	An
equivalent exception is noticeably absent from the PCRA.
¶31 	Despite these apparent differences, the PCRA does not
place any additional restrictions on this court’s ability to
review petitions for post-conviction relief, nor does it limit
our ability to apply common law exceptions to the procedural bar
rules codified therein. 	See supra ¶ 12; see also Gardner v.
Galetka, 2004 UT 42, ¶¶ 9, 17-18, 94 P.3d 263 (holding that our
common law post-conviction procedural bar jurisprudence survived
the enactment of the PCRA).
¶32 	In this case, the Justice Court contends that Lucero is
ineligible for post-conviction relief because he failed to pursue
a trial de novo. 	Even though the Justice Court concedes that a
claim that a constitutional right has been violated in the
proceeding below cannot be raised at the trial de novo, it argues
that such a proceeding is an available legal remedy for such
claims. 	In this case, we rely on the PCRA’s exhaustion of
remedies requirement to determine whether Lucero is eligible for
post-conviction relief because that requirement is consistent

13 	No. 20040339
with our common law procedural bar jurisprudence, which requires
a defendant to raise a known error and appeal it through regular
and prescribed procedures. 	Carter, 2001 UT 96, ¶ 14. 	Therefore,
to determine whether the court of appeals erred in dismissing
Lucero’s Petition for Post-Conviction Relief, we must first
ascertain whether Lucero exhausted his legal remedies. 	Then, if
he did not, we must determine whether unusual circumstances exist
that excuse his failure to exhaust his legal remedies.
A. Lucero Failed to Exhaust His Legal Remedies
¶33 	To determine whether Lucero was eligible for post-
conviction relief, we must first ascertain whether he exhausted
his legal remedies. 	Because Lucero failed to pursue a trial de
novo, which would have provided a plain, speedy, and adequate
remedy to the violation of his Sixth Amendment right to counsel,
we conclude that he did not.
¶34 	Lucero argues that he was not required to seek a de
novo trial to be eligible for post-conviction relief because his
claim that he was deprived of counsel at the justice court
proceeding could not be raised in a de novo trial. 	The Justice
Court does not refute this contention, but instead asserts that
Lucero is not eligible for post-conviction relief because the
deprivation of his right to counsel could have been remedied at
such a trial. 	We agree with the Justice Court.
¶35 	Other jurisdictions that have addressed this issue have
adopted two different approaches: 	(1) allowing justice court
defendants to elect between filing for a trial de novo, thereby
waiving their constitutional claims, or filing for post-
conviction relief, see Commonwealth v. Speights, 509 A.2d 1263,
1264 n.2 (Pa. Super. Ct. 1986); and (2) allowing a district court
to review constitutional due process claims at the trial de novo,
see Hardin v. People, 216 P.2d 429, 430 (Colo. 1950) (“All
[complaints, including denial of counsel,] could have been urged
on appeal to the county court . . . .”). 	The Justice Court
advocates yet another approach--requiring all justice court
defendants to undergo a trial de novo before seeking post-
conviction relief.
¶36 	We decline to adopt any of these approaches as each is
inharmonious with the nature of and policy behind post-conviction
relief. 	To be eligible for post-conviction relief, defendants
have consistently been required to appeal errors through regular
and prescribed procedures in order to prevent extraordinary
relief from being used as a substitute for normal appellate
procedures. 	See Carter, 2001 UT 96, ¶ 14; Codianna v. Morris,

7 A trial de novo may not be an adequate remedy for certain
constitutional violations such as failure to grant a speedy trial
or when exculpatory evidence has been lost or destroyed. 	Also, a
court must dismiss a case with prejudice in instances where
prosecutorial misconduct is so severe that lesser sanctions could
not result in a fair trial. 	U.S. v. Lin Lyn Trading, Ltd., 149
F.3d 1112, 1118 (10th Cir. 1998); see New Mexico v. Eder, 704
(continued...)
No. 20040339 	14
660 P.2d 1101, 1104 (Utah 1983). 	As an extraordinary remedy,
post-conviction relief can only be granted “[w]here no other
plain, speedy and adequate remedy is available.” 	Utah R. Civ. P.
65B.
¶37 	Therefore, we must reject the election-of-remedy
approach because it would establish post-conviction relief as an
available substitute to normal appellate procedure in direct
contravention of the purpose behind extraordinary relief.
Furthermore, such an approach may lead to inconsistent remedies
for identical constitutional violations depending upon what
remedy the justice court defendant elected. 	We also reject the
approach that allows a district court to examine constitutional
due process claims at a trial de novo and the approach that
requires a defendant to undergo a trial de novo, because these
approaches would either expand the scope of a trial de novo or
lead to a waste of judicial resources in situations where a trial
de novo could not remedy the alleged constitutional violation.
¶38 	Instead, we adopt a more flexible test. 	As mentioned
above, to be entitled to post-conviction relief, a petitioner
must pursue any regular and prescribed method for attacking a
conviction or sentence that would provide a plain, speedy, and
adequate remedy in the ordinary course of law. 	The regular and
prescribed method for appealing a justice court conviction is to
seek a trial de novo in the district court. 	Utah Code Ann. § 78-
5-120 (2002). 	Thus, the critical inquiry to determine whether a
justice court defendant must seek a de novo trial in order to
meet the exhaustion requirement and be eligible for post-
conviction relief is this: 	could a trial de novo provide the
justice court defendant with a plain, speedy, and adequate remedy
for the alleged constitutional violation? 	In other words, where
an appropriate remedy for a constitutional violation would be a
new trial, a justice court defendant must undergo a trial de novo
to meet the exhaustion requirement. 	To obtain post-conviction
relief if a justice court defendant has not sought a trial de
novo, the defendant must establish that the constitutional
violation was the kind that would demand relief beyond a new
trial. 7

7 (...continued)
P.2d 465, 467-69 (N.M. Ct. App. 1985) (discussing cases where
dismissal with prejudice is required to remedy prosecutorial
misconduct). 	For example, prosecutorial misconduct that is
severe enough to prevent a trial de novo from providing an
adequate remedy for an alleged constitutional violation includes
the following: 	when the prosecutor has prevented a defendant
from collecting evanescent, exculpatory evidence, McNutt v.
Arizona, 648 P.2d 122, 125 (Ariz. 1982) (“Dismissal of the case
with prejudice is the appropriate remedy because the State’s
action foreclosed a fair trial by preventing petitioner from
collecting exculpatory evidence no longer available.”); when
there is a failure to prosecute, Utah Rules of Crim. P. 25(b)(1);
when the state refuses to identify an informant, Harris v.
Superior Court, 35 Cal. App. 3d 24, 26-27 (Cal. Ct. App. 1973)
(“If the original trial without [the identity of a material
witness] was unfair, a retrial sans same would be nothing but a
replay of a constitutionally defective record.”); when an
informant or other inappropriate party was present during
privileged conversations, U.S. v. Levy, 577 F.2d 200, 210 (3d
Cir. 1978); or when the prosecutor has breached a bargain not to
prosecute, see U.S. v. Pascal, 496 F. Supp 313, 319 (N.D. Ill
1979).
15 	No. 20040339
¶39 	In this case, Lucero has alleged that he was deprived
of his right to counsel. 	Both the federal and Utah constitutions
guarantee a defendant’s right to counsel. 	U.S. Const. amend. VI;
Utah Const. art. I, § 12. 	“Concomitant with this right is the
criminal defendant’s guaranteed right to elect to present his own
defense.” 	State v. Hassan, 2004 UT 99, ¶ 21, 108 P.3d 695.
¶40 	When a defendant elects to proceed pro se, is
convicted, and subsequently attacks the conviction or sentence
based on a deprivation of the right to counsel, the court must
determine whether the defendant exercised the “right to self-
representation voluntarily, knowingly, and intelligently.” 	Id.
If the court concludes that the waiver was ineffective, the court
may remedy the violation of that right in a number of ways. 	See
generally Karen L. Ellmore, Annotation, Relief Available for
Violation of Right to Counsel at Sentencing in State Criminal
Trial, 65 A.L.R. 4th 183 (2004) (listing forms of relief
available when counsel is absent from a sentencing hearing). 	For
example, a court may vacate the sentence and order a new trial,
Billings v. Smith, 932 P.2d 1058, 1063 (Mont. 1997) (vacating
sentence and granting new trial to remedy denial of effective
assistance of counsel); modify the defendant’s sentence with or
without a new penalty hearing, see Gardner v. Holden, 888 P.2d

No. 20040339 	16
608, 611 (Utah 1994) (discussing correctness of trial court’s
decision to grant defendant a new penalty hearing and appeal to
remedy the alleged denial of effective assistance of counsel);
Kuehnert v. Turner, 499 P.2d 839, 840-41 (Utah 1972) (remanding
for resentencing hearing to remedy absence of counsel at
sentencing); preserve the original sentence if the court finds
that the defendant was not prejudiced by the absence of counsel,
see State v. Neal, 262 P.2d 756, 758-59 (Utah 1953) (preserving
original sentence because sentencing was merely a ministerial act
and counsel could not have assisted defendant at sentencing); or,
in “comparatively few” cases, set aside the sentence and release
the defendant from confinement, Ellmore, supra ¶ 39, at 192;
Shayesteh v. S. Salt Lake, 217 F.3d 1281, 1284 (10th Cir. 2000)
(“By denying the defendant counsel, the court effectively waives
its right to sentence him to prison.” (internal quotation
omitted)).
¶41 	Although a trial de novo may not be the justice court
defendant’s preferred alternative, it provides an adequate remedy
for a deprivation of counsel claim because the district court can
appoint counsel at the “critical guilt adjudication stage.” 	See
Alabama v. Shelton, 535 U.S. 654, 668 n.5 (2002). 	In fact, the
de novo trial is a more favorable form of appeal than that
offered to redress constitutional violations committed at the
district court level. 	Bernat v. Allphin, 2005 UT 1, ¶ 41, 106
P.3d 707 (“[A] justice court defendant is . . . treated more
favorably than a similarly situated district court defendant.”);
see also Jones v. State, 789 N.E.2d 478, 480 (Ind. 2003) (noting
that a trial de novo is “the most congenial form of appeal”).
Before an appellate court may order a new trial in an appeal from
a district court, the court must conduct an evidentiary hearing
to determine whether there was prejudicial error in the
proceedings below. 	See Bernat, 2005 UT 1, ¶ 18; Utah v.
Arguelles, 921 P.2d 439, 441 (Utah 1996) (requiring defendant to
show that counsel’s deficient performance prejudiced the
defendant); Jones, 789 N.E.2d at 480. 	In the justice court
context, however, a justice court defendant has a “second
opportunity to relitigate the facts relating to his or her guilt
or innocence” as a matter of right. 	Bernat, 2005 UT 1, ¶ 41.
Accordingly, we conclude that Lucero did not exhaust his legal
remedies because any violation of Lucero’s right to counsel could
have been adequately remedied by a trial de novo.
B. Unusual Circumstances Exception
¶42 	Having determined that Lucero failed to exhaust his
legal remedies, we now turn to the issue of whether unusual
circumstances exist that excuse this omission. 	We conclude that

17 	No. 20040339
Lucero is not eligible for post-conviction relief under the
unusual circumstances exception.
¶43 	The unusual circumstances exception provides a
defendant who is otherwise ineligible to receive post-conviction
relief an opportunity to have a petition for post-conviction
relief reviewed. 	Carter, 2001 UT 96, ¶ 15; Hurst, 777 P.2d at
1035. 	Therefore, once a court determines that a defendant is
procedurally barred from seeking post-conviction relief, the
court must then ascertain whether the defendant is nevertheless
entitled to have an appellate court review the petition because
unusual circumstances exist.
¶44 	Lucero argues that the court of appeals misapplied the
unusual circumstances exception by improperly combining the
exhaustion of remedies and unusual circumstances analyses.
Although we recognize that the unusual circumstances exception
requires an analysis independent of the exhaustion of remedies
analysis, we conclude that the court of appeals properly
determined that unusual circumstances do not exist in this case.
¶45 	To qualify for the unusual circumstances exception to
the procedural bar rules, a petitioner must demonstrate that “an
obvious injustice or a substantial and prejudicial denial of a
constitutional right” has occurred. 	Carter, 2001 UT 96, ¶ 15;
see also Hurst, 777 P.2d at 1035. 	“The unusual circumstances
test was intended to assure fundamental fairness and to require
reexamination of a conviction on habeas corpus when the nature of
the alleged error was such that it would be unconscionable not to
reexamine . . . and thereby to assure that substantial justice
was done.” 	Holden, 888 P.2d at 613 (internal quotation omitted).
¶46 	In this case, Lucero has not demonstrated that unusual
circumstances exist that excuse his failure to seek a trial de
novo. 	He filed his petition for post-conviction relief within
thirty days of the date that the justice court entered its
sentence. 	At that time, Lucero was still statutorily eligible to
file for a trial de novo. 	Utah Code Ann. § 78-5-120 (2002). 	The
record indicates that Lucero was represented by counsel at the
time he decided to pursue post-conviction relief instead of a
trial de novo. 	Given these facts, the circumstances surrounding
this case do not rise to the level of an obvious injustice or a
substantial and prejudicial denial of a constitutional right.
CONCLUSION
¶47 	We conclude that the PCRA does not limit this court’s
authority to grant post-conviction relief to justice court

No. 20040339 	18
defendants. 	We further conclude that Lucero failed to exhaust
his legal remedies and that he is not otherwise entitled to a
review of his petition for post-conviction relief under the
unusual circumstances exception. 	We therefore affirm.
---
¶48 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.