Modes v. State

               THE UTAH COURT OF APPEALS

                       FRANK VAL MODES,
                          Appellant,
                              v.
                        STATE OF UTAH,
                           Appellee.

                            Opinion
                        No. 20220225-CA
                    Filed September 21, 2023

           Third District Court, Salt Lake Department
                 The Honorable Keith A. Kelly
                          No. 200907524

           Stephen D. Spencer, Attorney for Appellant
                 Sean D. Reyes and Mark C. Field,
                      Attorneys for Appellee

    JUDGE RYAN M. HARRIS authored this Opinion, in which
 JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
                        concurred.

HARRIS, Judge:

¶1      Several years ago, Frank Val Modes was convicted, after a
trial, of aggravated sexual abuse of a child, and we affirmed that
conviction on direct appeal. See State v. Modes, 

,

. More recently, Modes filed a petition for post-conviction relief, asserting that his trial attorneys rendered
constitutionally ineffective assistance. But Modes did not allege,
in his petition, that his appellate attorneys rendered ineffective
assistance during the direct appeal. The district court dismissed
Modes’s petition, concluding that all of Modes’s post-conviction
claims either were or could have been raised during the direct
appeal, and were therefore procedurally barred under Utah’s
                            Modes v. State


Post-Conviction Remedies Act (PCRA). Modes appeals the order
of dismissal, and we affirm.


                          BACKGROUND

                    The Underlying Criminal Case

¶2     In 2016, Modes was charged with aggravated sexual abuse
of a child. This charge arose from allegations made by Modes’s
niece (Niece) that when she was younger than five years old,
Modes sexually abused her while she attended daycare at his
house. As part of its initial investigation, law enforcement
interviewed Niece twice at the Children’s Justice Center (CJC).

¶3      During a pretrial conference in the criminal case, Modes
waived his right to a jury trial and elected to proceed with a bench
trial. At trial, the State called several witnesses to support its case-in-chief, including Niece and Modes’s ex-wife (Wife). 1 During her
testimony, Niece repeated her allegations that Modes had abused
her while she was in daycare. These allegations, however, were
not the first of this nature to be made against Modes. In 2003,
Modes pled “no contest” to sexual battery. That criminal charge
stemmed from allegations made by another individual (Prior
Victim) that Modes had sexually abused her when she was a
young child attending daycare at his house. Because this previous
charge involved an act of child molestation, the trial court allowed
the State—in accordance with rule 404(c) of the Utah Rules of
Evidence—to introduce evidence of Modes’s earlier conviction; in
particular, the State called Prior Victim to testify at trial, and she
described for the court some of the underlying facts that


1. Before the criminal trial occurred, Wife and Modes divorced. In
Modes’s direct appeal, we chose to refer to her as “Wife” rather
than “Ex-Wife.” See State v. Modes, 

, 

. To avoid confusion, we do the same here.


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                            Modes v. State


supported Modes’s earlier sexual battery conviction. After the
State rested its case, Modes testified in his own defense and
denied any sexual contact with Niece.

¶4      At the conclusion of the bench trial, the court found Modes
guilty. In its findings, the court specifically noted that it found the
testimonies of Niece, Wife, and Prior Victim to be credible and
that it found Modes’s testimony—that he was never
inappropriate with Niece and that he was never alone with the
children at the daycare—not credible. The court later ordered
Modes to serve a prison sentence of fifteen years to life.

¶5      Thereafter, Modes appealed his conviction, asserting that
the trial court “erred in admitting the details of Modes’s prior acts
of child molestation, including testimony of Prior Victim,
pursuant to rule 404(c) of the Utah Rules of Evidence.” State v.
Modes, 

, 

. In addition, Modes
claimed that his trial counsel “performed deficiently by (1) failing
to object to the admission of Prior Victim’s testimony, (2) failing
to cross-examine Prior Victim, and (3) not calling an expert
witness on the issue of early childhood memory recovery.” Id.
¶ 12. We rejected Modes’s arguments, concluding that the court
did not err in admitting the testimony of Prior Victim and that
Modes had not shown ineffective assistance. Id. ¶ 30. We found
Modes’s ineffective assistance arguments unpersuasive in part
because the appellate record did not support the claims and
because Modes’s appellate counsel had not filed any motion,
pursuant to rule 23B of the Utah Rules of Appellate Procedure, to
supplement the record. Id. ¶¶ 12 n.4, 28 n.9.

                The Petition for Post-Conviction Relief

¶6     A few weeks after we issued our opinion in Modes’s direct
appeal, Modes filed a petition for post-conviction relief. In that
petition, Modes asserts that his trial counsel rendered
constitutionally ineffective assistance, in fifteen particulars, by:



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                           Modes v. State


       (1) not requesting a jury trial;

       (2) not properly advising Modes about his constitutional
           right to be tried by a jury;

       (3) not informing Modes of the strategic reasons for
           having a jury trial;

       (4) not objecting to evidence of “prior bad acts”;

       (5) not “cross-examining a witness”; 2

       (6) not enlisting “the assistance of an expert witness on the
           subject of witness memory” despite having discussed
           with Modes a plan to retain such an expert;

       (7) not moving “for a bill of particulars with which to
           establish a timeline for the relevant events to
           effectively establish an alibi”;

       (8) not presenting “any character evidence of [Modes] in
           [his] defense or call[ing] any character witnesses”;

       (9) not calling “any witness in [Modes’s] behalf other
           than” Modes himself;




2. Modes’s fourth and fifth claims were not included in his
original petition for post-conviction relief, but they were included
in a memorandum he filed in support of his petition. The State
raises no objection to the manner in which Modes pleaded these
two claims; indeed, the State describes Modes’s claims in exactly
the same way we have set them out here. Accordingly, we follow
the parties’ lead in assuming, for the purposes of our opinion, that
all fifteen of Modes’s claims were appropriately pleaded.


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                           Modes v. State


       (10) not presenting evidence of certain threats Wife was
            alleged to have made against Modes and attempting to
            impeach Wife “on the basis of such threats”;

       (11) not presenting evidence that Niece did not initially
            identify Modes as the perpetrator in her CJC interview;

       (12) not subpoenaing a record of Niece’s interview at the
            CJC;

       (13) not subpoenaing recordings of Wife’s 2015 interviews
            with police;

       (14) not cross-examining Wife on the substance of her
            police interviews; and

       (15) not investigating or cross-examining any witness on
            the alleged fact that Niece’s stepsister once accused
            Niece’s father of sexually assaulting her.

But while Modes asserted fifteen claims of ineffective assistance
of trial counsel, he did not assert any claims of ineffective
assistance of appellate counsel.

¶7     The State moved to dismiss Modes’s petition on the
grounds that Modes’s specific claims are procedurally barred
under the terms of the PCRA, which forbids litigants from
bringing claims, in a petition for post-conviction relief, that either
actually were “raised or addressed” at trial or on direct appeal, or
“could have been but [were] not raised” at trial or on direct
appeal. See Utah Code § 78B-9-106(1)(b), (c). In the State’s view,
all of Modes’s claims either were, or could have been, raised on
direct appeal. The district court agreed with the State and
accordingly dismissed Modes’s petition.




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                            Modes v. State


              ISSUE AND STANDARD OF REVIEW

¶8      Modes appeals the district court’s dismissal of his petition.
“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.” Archuleta v.
State, 

, 

 (quotation simplified).


                             ANALYSIS

¶9     Petitions for post-conviction relief are—for the most
part —governed by the PCRA and by rule 65C of the Utah Rules
     3

of Civil Procedure. See Utah Code § 78B-9-102(1)(a) (noting that
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”); Utah R. Civ. P. 65C(a)
(stating that the PCRA “sets forth the manner and extent to which
a person may challenge the legality of a criminal conviction and
sentence after the conviction and sentence have been affirmed in
a direct appeal”). The PCRA contains certain procedural bars that
dictate whether, when, and how post-conviction claims may be
brought, and our rules mandate that, before entertaining the
merits of any PCRA claims, courts “shall first clearly and
expressly determine whether” any of the statutory procedural
bars preclude the claims. See Utah R. Civ. P. 65(C)(b). In particular,


3. Our supreme court recently held that it is at least conceptually
possible for certain post-conviction claims to be viable even
though they might be barred by the terms of the PCRA. See
Patterson v. State, 

, 

 (stating that courts
may have the authority to hear cases that are “time-barred” by the
PCRA, but only where the petitioner demonstrates that the time
bar violates the petitioner’s “constitutional rights”). In this case,
Modes makes no assertion that the PCRA’s procedural bars
violate his constitutional rights.


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                           Modes v. State


and as applicable here, the PCRA bars claims that either were
“raised or addressed” at trial or on direct appeal, or “could have
been . . . raised” but were not raised at trial or on direct appeal.
See Utah Code § 78B-9-106(1)(b), (c). In this case, the district court
concluded that all the claims Modes brought in his PCRA petition
either were raised, or could have been raised, on direct appeal,
and were therefore precluded by the terms of the PCRA. Modes
challenges that determination here on appeal, but we reject that
challenge because the court’s determination was correct.

¶10 First, the district court correctly concluded that five of the
fifteen claims Modes raises in his PCRA petition—claims 4, 5, 6, 8,
and 9—actually were raised during his direct appeal. Two of those
claims concern the manner in which trial counsel objected (or
failed to object) to evidence of prior bad acts, and trial counsel’s
failure to cross-examine a witness, presumably Prior Victim. 4 One
of those claims addresses trial counsel’s decision not to call an
expert witness to testify about early childhood memory. And the
remaining two claims are related to trial counsel’s decisions not
to present any character evidence in Modes’s defense or to call



4. We assume, for purposes of our discussion, that the witness
Modes complains that his trial counsel did not cross-examine was
Prior Victim. In the relevant claim for relief, Modes states simply
that trial counsel performed deficiently “by not cross examining a
witness.” There were only two witnesses that trial counsel did not
cross-examine: Prior Victim and an investigating officer. From
context, it appears that the witness to whom Modes is referring in
this claim is Prior Victim and not the officer; the district court
apparently drew the same conclusion. But ultimately, Modes’s
claim runs headlong into the PCRA’s procedural bar either way,
because any claim that trial counsel failed to cross-examine Prior
Victim actually was raised during the direct appeal, and any claim
that trial counsel failed to cross-examine the officer could have been
raised during the appeal.


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                           Modes v. State


any witnesses on Modes’s behalf other than Modes himself. These
issues were all raised and addressed—at least in some fashion—
on appeal. See State v. Modes, 

, 25 & n.4,

 (addressing, and rejecting, claims that trial counsel
was ineffective for “(1) failing to object to the admission of Prior
Victim’s testimony, (2) failing to cross-examine Prior Victim, and
(3) not calling an expert witness in the issue of early childhood
memory recovery,” and rejecting in a footnote—as insufficiently
developed—the claim that trial counsel failed to “call any
witnesses or provide any evidence” during the defense’s case-in-chief). It is immaterial that we disposed of some of these claims in
a footnote on grounds that they were insufficiently supported;
claims dismissed in this manner have been raised to and
considered by the court and are therefore subject to the PCRA’s
procedural bar. See Bevan v. State, 

, 

 (stating that the PCRA’s procedural bar applies to claims that
are “merely brought to the court for consideration,” and
explaining that “testing the merits of post-conviction claims is not
required for the procedural bar to apply” (quotation simplified)).

¶11 To the extent that Modes attempts to distinguish these
claims from those previously raised in the direct appeal, it is an
established principle that even claims framed “somewhat
differently” in a petition for post-conviction relief are
procedurally barred if they are “nearly identical” to those
previously raised. See Myers v. State, 

, 

.
In our view, these five claims are at least nearly identical—if not
entirely identical—to claims raised in the direct appeal. The
district court was therefore correct to dismiss these five claims
pursuant to the PCRA’s procedural bar.

¶12 Second, the district court dismissed Modes’s remaining ten
claims—claims 1–3, 7, and 10–15—on the basis that these claims
could have been raised in the direct appeal, even though they
were not. A claim could have been raised—and therefore is
subject to the procedural bar—when a defendant or the


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                          Modes v. State


defendant’s counsel “is aware of the essential factual basis for
asserting it.” Pinder v. State, 

, 

. We
agree with the district court that the remaining ten claims could
have been brought in the context of the direct appeal, and are
therefore barred by the PCRA’s procedural bar.

¶13 The first three of these claims all relate to the propriety of
Modes’s waiver of his right to a jury trial. In particular, Modes
asserts that trial counsel should have requested a jury trial and
should have better advised Modes in advance of his waiver.
Modes and appellate counsel knew, during the direct appeal, that
Modes had waived his right to a jury trial, and presumably knew
the particulars of the advice trial counsel gave Modes about that
waiver. Thus, Modes and appellate counsel were “aware of the
essential factual basis for” these claims during the appeal, and
therefore these claims could have been raised at that point. See 

¶14 Another of these claims—claim 7—also could have been
raised during the direct appeal. In that claim, Modes asserts that
trial counsel was ineffective for failing to request a bill of
particulars. Modes and his appellate counsel were undoubtedly
aware of the factual basis for this claim; we know this because
Modes claimed, during the appeal, that “his due process rights
were violated because the criminal information did not provide
adequate notice of when the claimed sexual abuse of a minor
occurred.” See Modes, 

, ¶ 12 n.5. But we rejected
this claim because trial counsel failed to preserve it as a claim of
error, and because Modes did not assert, in the appeal, that any of
the exceptions to preservation—including, notably, ineffective
assistance of trial counsel—applied. 

 Modes and his appellate
counsel were aware of the factual basis for this claim during the
direct appeal, and therefore could have brought this claim then.

¶15 Another group of four of Modes’s claims—claims 10, 11,
14, and 15—also could have been brought during the direct
appeal. All of these claims address omissions Modes now believes



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                           Modes v. State


counsel made during trial: not introducing into evidence certain
threats Wife allegedly made against him; not presenting evidence
that Niece did not initially identify Modes in her CJC interview;
not cross-examining Wife about her police interviews; and not
cross-examining any witness about the alleged fact that Niece’s
stepsister once accused Niece’s father of sexually assaulting her.
The district court determined that Modes and his appellate
counsel were well aware of the factual bases for these claims by
the time of the appeal, and therefore dismissed the claims as ones
that could have been brought at that point. And on appeal, Modes
does not actually assert that he, his trial counsel, or his appellate
counsel were unaware of the factual bases to support these
claims. 5 Accordingly, we discern no error in the court’s conclusion
that these issues could have been raised on direct appeal.

¶16 And we reach a similar conclusion with regard to the final
two claims, the ones numbered 12 and 13. In those claims, Modes
asserts that trial counsel rendered ineffective assistance by failing
to subpoena recordings of Niece’s CJC interviews and of Wife’s
police interviews. The district court concluded that Modes or his
appellate attorney “would have known based on a review of the
record that trial counsel did not subpoena” any of those
recordings, and that therefore Modes and his appellate attorney
knew the factual bases for these claims during the appeal. We
agree; indeed, with regard to Niece’s CJC interviews, this
conclusion is clear from our earlier opinion. See Modes, 

, ¶ 12 n.4. In the direct appeal, Modes asserted that trial
counsel “provided ineffective assistance by not seeking to admit
[Niece’s] CJC interviews into evidence” at trial. 

 We rejected



5. Indeed, several times in his petition, Modes makes it clear that
he and trial counsel were aware of the relevant facts that would
give rise to these claims. For example, Modes states that he “told
his trial counsel of the threats by [Wife]” but that trial counsel
“took no action” regarding this information.


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                          Modes v. State


this claim, however, because the interviews were not “part of the
record on appeal, and Modes ha[d] not sought to supplement the
record or sought a remand to further develop the record pursuant
to rule 23B.” Id.; see also Utah R. App. P. 23B(a) (“A party to an
appeal in a criminal case may move the court to remand the case
to the trial court for entry of findings of fact, necessary for the
appellate court’s determination of a claim of ineffective assistance
of counsel.”). A claim could have been brought during direct
appeal, for purposes of the PCRA’s procedural bar, if a reasonable
appellate lawyer would have raised that claim via a rule 23B
motion during that appeal. See McCloud v. State, 

, ¶ 76,

 (stating that an appellate attorney has “an obligation
to make [a rule 23B] motion, supplement the record with those
facts, and raise the claim on appeal” in situations where “it would
be objectively unreasonable” for an attorney “to not do so”). It
was certainly possible for Modes’s appellate counsel to bring this
claim during the direct appeal, and (as discussed below) Modes
does not assert, here in this appeal, that his appellate counsel
performed deficiently by failing to do so.

¶17 With regard to Wife’s police interviews, it is clear from
Modes’s petition that trial counsel was aware of the content of
those interviews but was unsuccessful at attempting to introduce
that evidence through Modes’s testimony on the grounds of
hearsay. Modes and his appellate counsel, by the time of the direct
appeal, were therefore fully aware of the factual bases for
asserting that claim. Moreover, it would have been apparent to
appellate counsel, from a review of the record, that trial counsel
unsuccessfully attempted, during the bench trial, to admit into
evidence the content of Wife’s police interviews. Accordingly, the
district court correctly determined that these claims could have
been raised at trial or on appeal.

¶18 Thus, the district court correctly determined that all fifteen
of the claims Modes raises in his PCRA petition were either
actually brought, or could have been brought, during the direct


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                           Modes v. State


appeal. The court therefore correctly concluded that all fifteen of
Modes’s claims are barred by the PCRA’s procedural bar.

¶19 We conclude by noting that Modes makes no effort, in his
petition, to take advantage of an exception to the PCRA’s
procedural bar: claims that could have been raised on direct
appeal may still be raised in a PCRA petition “if the failure to raise
that ground was due to ineffective assistance of counsel.” See Utah
Code § 78B-9-106(3)(a). If any of the ten claims that the district
court dismissed because they could have been raised on direct
appeal were not raised there due to the ineffectiveness of
appellate counsel, then the PCRA does not procedurally bar those
claims. See McCloud, 

, ¶ 38 (noting that, in many cases
in which “the PCRA bars [a petitioner’s] direct claims against
[t]rial [c]ounsel,” the petitioner can “still assert those claims
through the lens of an appellate ineffectiveness claim”). But, as
already noted, Modes makes no allegations, in his petition, that
his appellate counsel rendered ineffective assistance. Modes and
his current counsel made clear, during the proceedings before the
district court, that Modes was not intending to raise any such
claims, stating in the memorandum opposing the State’s motion
to dismiss that Modes “has not alleged thus far that his appellate
counsel was ineffective,” and reiterating during oral argument on
the motion that Modes was “not arguing that appellate counsel
was ineffective.” Even on appeal, Modes acknowledges that he
“has not expressly alleged in his Petition or other pleadings filed
[in the district court] that his appellate counsel on direct appeal
from the criminal conviction was ineffective.”

¶20 But Modes does, for the first time on appeal, make some
effort to assert that appellate counsel rendered ineffective
assistance. Such claims are not, however, preserved for our
review. See State v. Johnson, 

, 

 (“When
a party fails to raise and argue an issue in the trial court, it has
failed to preserve the issue, and an appellate court will not
typically reach that issue absent a valid exception to


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                           Modes v. State


preservation.”). Modes nevertheless asserts that these claims
“should be reviewed anyway,” and asks us to do so under two of
the three exceptions to the preservation requirement. See State v.
Flora, 

, 

 (stating that Utah courts have
“recognized three distinct exceptions to preservation: plain error,
ineffective assistance of counsel, and exceptional circumstances”
(quotation simplified)). Specifically, Modes invokes the
exceptions for ineffective assistance of counsel and for exceptional
circumstances. 6

¶21 Application of the ineffective assistance of counsel
exception would require that Modes establish that his current
counsel—the same attorney who assisted him during the district
court PCRA proceedings—was ineffective for not preserving this
issue. But “[n]either the right to state-paid counsel nor the right to
effective assistance of counsel is constitutionally or statutorily
guaranteed in postconviction proceedings.” Gailey v. State, 

, 

; see also Coleman v. Thompson, 

 (1991) (explaining that “a petitioner cannot claim
constitutionally ineffective assistance of counsel in [state post-




6. Modes does not invoke the plain error exception. PCRA cases
are civil cases, see Utah Code § 78B-9-102(1)(a) (stating that PCRA
proceedings “are civil and are governed by the rules of civil
procedure”), and we have held “that plain error review is not
available in ordinary civil cases unless expressly authorized by
rule,” Kelly v. Timber Lakes Prop. Owners Ass’n, 

,
¶ 44, 

. Because he does not invoke the plain error
exception, he makes no argument that PCRA cases, despite being
civil in nature, are nevertheless cases that “involve significant
interests on par with those at issue in criminal cases” and thus are
cases in which plain error review ought to still be available. See 

¶ 42 n.10. We therefore do not address any such argument.


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                           Modes v. State


conviction] proceedings”). 7 Because Modes does not have a
constitutional right to effective assistance of post-conviction
counsel, he cannot rely on the ineffective assistance exception to
assert a claim that post-conviction counsel failed to preserve. See
State v. Johnson, 

, ¶ 16 & n.7, 

 (determining
that “the issue of direct-appeal counsel’s effectiveness was not
preserved below” where the PCRA petition did “not contain any
challenge to the effectiveness of direct-appeal counsel”).

¶22 Finally, this case constitutes a poor fit for application of the
exceptional circumstances exception. This exception is reserved
“for the most unusual circumstances where our failure to consider
an issue that was not properly preserved for appeal would have
resulted in manifest injustice.” State v. Brown, 

, 

 (quotation simplified), cert. denied, 

(Utah 2019). Specifically, this exception applies only when “a rare
procedural anomaly has either prevented an appellant from
preserving an issue or excuses a failure to do so.” Id. ¶ 24
(quotation simplified). 8 But on this record, no procedural anomaly



7. In Patterson, our supreme court acknowledged that, in
jurisdictions where “claims of ineffective assistance of trial
counsel could only be brought by a petition for post-conviction
relief,” a procedural default could be excused if it was caused by
ineffective assistance of post-conviction counsel. 

.
However, the court noted that this reasoning does not apply in
Utah, where claims for ineffective assistance of trial counsel are
allowed on direct appeal. Id. ¶ 63; see also Utah Code § 78B-9-
109(3) (“An allegation that counsel appointed under this section
was ineffective cannot be the basis for relief in any subsequent
postconviction petition.”).

8. Originally, Modes argued that the “unusual circumstances”
exception should apply. However, the State correctly pointed out
                                                  (continued…)


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                          Modes v. State


prevented Modes from raising claims of ineffective assistance of
appellate counsel in his PCRA petition. Thus, the exceptional
circumstances exception does not apply to Modes’s claim.

¶23 Since Modes has not demonstrated that any of the
exceptions to the preservation doctrine apply to his ineffective
assistance of appellate counsel claims, we decline to consider the
merits of any such claims.


                         CONCLUSION

¶24 The district court correctly determined that all fifteen of the
claims Modes raises in his petition are procedurally barred under
the PCRA. Modes did not assert, in his petition, that his appellate
counsel rendered ineffective assistance, and any such claim is
unpreserved for our review. For these reasons, we affirm the
district court’s dismissal of Modes’s petition.




that “unusual circumstances” is not an exception to preservation;
instead, it was a judicially created exception (that is no longer
efficacious) that petitioners once could rely on to bring certain
PCRA claims out from under the procedural bars. See Patterson,

; Lucero v. Kennard, 

, 

. In response, Modes abandoned the “unusual circumstances”
argument in his reply brief and, instead, chose to focus on the
applicability of the exceptional circumstances exception.


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