Sanchez v. State

                THE UTAH COURT OF APPEALS

                     LUIS FERNANDO SANCHEZ,
                            Appellant,
                                v.
                          STATE OF UTAH,
                             Appellee.

                             Opinion
                        No. 20230163-CA
                        Filed May 22, 2025

          Third District Court, West Jordan Department
                The Honorable L. Douglas Hogan
                          No. 220900566

       Ian L. Quiel, Debra M. Nelson, and Benjamin Miller,
         Attorneys for Appellant, assisted by law student
                     Mackenzie Skye McBride 1
                Simarjit S. Gill and Ethan Rampton,
                      Attorneys for Appellee

  JUDGE DAVID N. MORTENSEN authored this Opinion, in which
    JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1      Luis Fernando Sanchez appeals the dismissal of his
petition brought under Utah’s Post-Conviction Remedies Act (the
PCRA). He claims that the district court exceeded its discretion in
denying his motion to appoint counsel because the court
expressly relied on a statute that had been superseded. Sanchez
also claims the district court erred in dismissing claims that a prior
decision of this court had expressly indicated needed to be
brought in a post-conviction proceeding, but which the district

1. See Utah R. Jud. Admin. 14-807 (governing law student practice
in the courts of Utah).
                          Sanchez v. State


court concluded were nevertheless legally barred. We agree with
Sanchez on both issues and reverse.


                         BACKGROUND

¶2     Sanchez pled guilty to several offenses, including failure to
stop at the command of a police officer and DUI, while preserving
his right to challenge the denial of two suppression motions on
appeal. See State v. Sanchez (Sanchez I), 

,

; see also State v. Tirado, 

, ¶ 11 n.2, 

 (“With the consent of the prosecution and the approval of
the judge, a defendant may enter a conditional guilty plea, while
preserving a suppression issue for appeal.” (cleaned up)); Utah R.
Crim. P. 11(j) (“A defendant who prevails on appeal [after
entering a conditional plea of guilty] will be allowed to withdraw
the plea.”). In his direct appeal, Sanchez argued that the district
court erred in denying his motion to suppress for lack of probable
cause and his motion for a Franks evidentiary hearing. Sanchez I,

. 2 This court affirmed on both issues, id.
¶ 25, and our supreme court thereafter denied certiorari, see State
v. Sanchez (Sanchez II), 

 (Utah 2021).

¶3     In his direct appeal, Sanchez also filed a motion under rule
23B of the Utah Rules of Appellate Procedure, alleging, as relevant


2. Under Franks v. Delaware, 

 (1978), ”a warrant
affidavit must set forth particular facts and circumstances
underlying the existence of probable cause, so as to allow the
magistrate to make an independent evaluation of the matter.” 

. Also “in Franks, the Supreme Court held that a search
warrant based on deliberate falsehoods or a reckless disregard for
the truth must be evaluated to determine whether the affidavit
supporting the warrant would still support probable cause once
the false information is removed.” State v. Garcia, 

, 

 (cleaned up).


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                          Sanchez v. State


here, that his trial counsel was ineffective for advising him to
plead guilty when the State did not preserve exculpatory video
evidence. This court “decline[d] to consider” this argument for
lack of jurisdiction, reasoning that it was “essentially a request to
withdraw his plea,” which had to be “pursued in a post-conviction proceeding.” Sanchez I, 

, ¶ 14 n.1.

¶4     In January 2022, Sanchez filed a timely pro se petition
under the PCRA, see Utah Code §§ 78B-9-101 to -503, alleging four
grounds for relief: ineffective assistance of counsel,
unconstitutional failure of the prosecution to disclose exculpatory
evidence, misconduct by the prosecution and district court judge,
and cumulative error. The district court reviewed Sanchez’s
original petition and allowed all but the cumulative error ground
to proceed. After the State filed a motion to dismiss under rule
12(b)(6) and rule 65C of the Utah Rules of Civil Procedure,
Sanchez, still acting pro se, filed an amended petition.

¶5      In the amended petition, Sanchez identified seven grounds
for relief. For each claim he asserted that the “ground was not
raised at trial nor on appeal due to ineffective assistance of
counsel [on the] part of trial and appellate attorney.” The seven
grounds were articulated as follows:

1. “Conviction and sentence obtained by plea of guilty was
   unlawfully induced or not made voluntarily with
   understanding of the nature of the charge and the
   consequences of the plea—Sleep Deprived.”
2. “Conviction and sentence obtained by plea of guilty was
   unlawfully induced or not made voluntarily with
   understanding of the nature of the charge and the
   consequences of the plea—Exculpatory Video Evidence, Due
   Process Violation.”
3. “Trial counsel was ineffective when they advised me to plead
   guilty.”




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                          Sanchez v. State


4. “Misconduct by the prosecution and judge.”
5. “Conviction or sentence obtained by the unconstitutional
   failure of the prosecution to disclose to the defendant evidence
   favorable to the defendant.—Exculpatory Video Evidence.”
6. “Attorneys failed to obtain field notes and DUI handwritten
   report from [the investigating officer] and field notes from
   other officers involved in the arrest.”
7. “Conviction or sentence obtained by the unconstitutional
   failure of the prosecution to disclose to the defendant evidence
   favorable to the defendant.—Radio Communications of
   Police.”

¶6     The State renewed its rule 12(b)(6) motion to dismiss in
response to the amended petition. Sanchez then filed a motion for
appointment of counsel, accompanied by an affidavit of
indigency. At the hearing for appointment of counsel, which took
place on July 21, 2022, the district court determined that Sanchez’s
case did “not meet the guidelines for appointment of counsel”
because the issues were “fairly straightforward” and Sanchez had
“done an adequate job of raising” the issues in his petition. In its
written order denying Sanchez’s request for counsel (issued on
the same day as the hearing), the court noted that while there was
no statutory or constitutional right to appointed counsel in
proceedings instituted via a petition for postconviction relief, it
may appoint pro bono counsel. In determining whether to
appoint counsel, the court acknowledged that it “must consider
‘whether the petition . . . contains factual allegations that will
require an evidentiary hearing; and . . . whether the petition
involves complicated issues of law or fact that require the
assistance of counsel for proper adjudication.’” (Quoting Utah
Code section 78B-9-109(2) (2020).) 3 In September 2022, Sanchez


3. The court relied on an outdated version of the statute. As of
May 5, 2021, the statute articulates five factors the court may
                                                   (continued…)


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                           Sanchez v. State


filed a pro se motion in opposition to the State’s motion to dismiss.
In January 2023, the district court ruled in the State’s favor and
dismissed Sanchez’s amended petition. In its ruling, the district
court concluded that Sanchez’s ineffective assistance claims were
procedurally barred because they were “repeatedly raised” in his
direct appeal. See Utah Code § 78B-9-106(1)(b) (stating that a
“petitioner is not eligible for relief under [the PCRA] upon any
ground that . . . was raised or addressed in the trial court, at trial,
or on appeal”).


            ISSUES AND STANDARDS OF REVIEW

¶7      Sanchez appeals, contending that the district court abused
its discretion by denying his motion for appointment of counsel.
“We review the district court’s denial of a motion to appoint
counsel under the [PCRA] for an abuse of discretion.” Zaragoza v.
State, 

, 

.

¶8     Sanchez next asserts that the district court erred in
concluding that some of his ineffective assistance of counsel
claims were procedurally barred. “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.” Bevan v. State, 

, 

 (cleaned
up). 4




consider in making the decision to appoint pro bono counsel
rather than the two factors mentioned in the outdated statute. See
Utah Code § 78B-9-109(2) (2021); see also Postconviction Remedies
Act Amendments, ch. 46, § 4, 

, 479.

4. Sanchez raises two other issues on appeal. First, he argues that
in granting the State’s rule 12(b)(6) motion the district court failed
                                                       (continued…)


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                          Sanchez v. State


                            ANALYSIS

I. The District Court Abused Its Discretion in Denying Sanchez’s
                       Request for Counsel

¶9     Sanchez contends that the district court abused its
discretion in denying his request for counsel because the court
failed to apply the factors listed in the current PCRA statute in
considering his request. We agree with Sanchez.

¶10 A “district court enjoys wide discretion over the ultimate
decision about whether to appoint pro bono counsel in post-conviction cases, as long as the district court, in arriving at its
decision, considers the factors that the statute requires it to
consider.” Zaragoza v. State, 

, 

.
“Our supreme court has instructed that a district court abuses its
discretion only if its decision was beyond the limits of
reasonability, an event which occurs when the district court has
taken actions that are inherently unfair or that no reasonable
person would take.” 

 (cleaned up). However, Utah’s appellate
courts have consistently held that applying the wrong rule or
misinterpreting the law constitutes an abuse of discretion in and
of itself. See State v. Gallegos, 

, 

(noting that applying the wrong legal standard constitutes an
abuse of discretion); Northgate Village Dev. LC v. Orem City, 

, 

 (“A district court abuses its
discretion . . . where it applies the wrong legal standard or its
decision is beyond the limits of reasonability.” (cleaned up)), aff’d,


to address all the grounds raised in the PCRA petition and to
accept his material allegations as true. He next claims that the
district court wrongly concluded that he had not sufficiently
alleged ineffective assistance for his counsel’s failure to file a
motion to dismiss under State v. Tiedemann, 

, 

. Because we reverse the district court’s decision on other
grounds, it is unnecessary for us to address these issues.


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                         Sanchez v. State

, 

; State v. Martin, 

, 

 (“As long as the court has not applied the wrong rule or
misinterpreted the law, the trial court has wide discretion in
determining the admissibility of expert testimony, and such
decisions are reviewed under an abuse of discretion standard.”
(cleaned up)).

¶11 Here, the district court relied on the following statute to
reach its decision:

      In determining whether to appoint counsel, the
      court shall consider the following factors:
      (a) whether the petition or the appeal contains
      factual allegations that will require an evidentiary
      hearing; and
      (b) whether the petition involves complicated issues
      of law or fact that require the assistance of counsel
      for proper adjudication.

Utah Code § 78B-9-109(2) (2020). But this statute—with its two
factors—was no longer in effect at the time of the court’s ruling
on July 21, 2022. Instead, as of May 5, 2021, the following statute
was operative:

      In determining whether to appoint counsel, the
      court may consider:
      (a) whether the petitioner is incarcerated;
      (b) the likelihood that an evidentiary hearing will be
      necessary;
      (c) the likelihood that an investigation will be
      necessary;
      (d) the complexity of the factual and legal issues;
      and
      (e) any other factor relevant to the particular case.



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                          Sanchez v. State

 § 78B-9-109(2) (2023); see also Postconviction Remedies Act
Amendments, ch. 46, § 4, 

, 479. 5

¶12 The district court thus applied the wrong legal standard.
We recognize that the new statute employs the word “may,”
which likely indicates the legislature’s intent to grant district
courts some measure of discretion in determining which factors
are in play depending on the specific facts of an individual case.
See State v. Diviney, 

, 

 (“The
plain, ordinary, and accepted meaning of the word may is
permissive or discretionary, generally indicating that an
individual is either permitted or has a possibility to do
something.” (cleaned up)); State v. Gallegos, 

(Utah Ct. App. 1998) (“The term ‘may’ is generally construed to
be permissive and not mandatory and is generally not interpreted
to limit options, but, rather, to clearly define some of those
options.” (cleaned up)). But a district court cannot possibly
exercise that discretion when it operates under a mistake of law
as to the version of the statute that applies. The record is plain
that, because the district court was applying the wrong statute, it
never contemplated the newly established factors at all. 6 It was
thus an abuse of discretion to apply a misunderstanding of the
applicable law in ruling on Sanchez’s request for counsel. Put
another way, for a court to ignore a new statute establishing
additional factors that may be considered by expressly limiting


5. We cite the current version of the statute. While the statute was
amended in 2022, the five factors remain the same as they were
when Sanchez’s motion for appointment of counsel was denied.
See Postconviction Representation Amendments, ch. 295, § 1, 

, 2135. Compare Utah Code § 78B-9-109(2) (2021),
with id. § 78B-9-109(2) (2023).

6. The two factors the district court considered were—in a slightly
different form—among the five factors a court may consider in the
new statute.


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                           Sanchez v. State


itself to an outdated statutory scheme is a quintessential example
of an abuse of discretion.

¶13 But there must be more than just an abuse of discretion for
Sanchez to obtain relief. The error of the court must have also
prejudiced Sanchez. See State v. Zimpfer, 

,

 (“While we agree [the court’s action] was an abuse of
discretion, we ultimately determine that this error was harmless.
An error is harmless and does not require reversal if it is
sufficiently inconsequential that we conclude there is no
reasonable likelihood that the error affected the outcome of the
proceedings.” (cleaned up)). “An error is harmful if there is a
reasonable likelihood that the error affected the outcome in the
trial court.” State v. McNeil, 

, 

(cleaned up), aff’d, 

, 

.

¶14 In this case, the district court’s failure to apply the current
factors was not harmless. Even though the pre-2021 version of the
statute states that a court “shall” consider the two factors in
contrast to the five factors in the current statute that the court now
“may” consider, the modal verb change doesn’t exempt a court
from allowing the current statutory scheme to guide its
analysis. Here, the court stated that it was relying on “the
relevant statute.” But it didn’t rely on the relevant statute. Instead,
it relied on the superseded statute, thus depriving itself of the
opportunity to consider the five factors our legislature has
deemed relevant to a court’s determination on whether to appoint
pro bono counsel.

¶15 There is a reasonable likelihood that the district court
would have appointed counsel had it been aware of the current
factors. Sanchez represented that he was “not trained in the law”
and lacked the “resources to hire a private attorney.” He alleged
that his case involved the existence of “extensive evidence . . . of
wrongdoing by . . . the State, Court, and defense counsel.” He
admitted that the “rules of civil procedure [were] too complex for



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                         Sanchez v. State


[him] to learn and to reply adequately to all the legal actions
that will be required in this matter.” These representations
made by Sanchez would have fallen squarely under two of the
factors identified in the new statute—and not present in the
older statute—that the court could consider: “the likelihood that
an investigation will be necessary” and “any other factor relevant
to the particular case.” Utah Code § 78B-9-109(2). Given the
district court’s reliance on the superseded statute, we can
conclude only that the court was unaware that these two
additional relevant factors were in play. We cannot conclude that
the court would have reached the same decision about whether to
appoint pro bono counsel had it been aware of the appropriate
factors.

¶16 And the lack of counsel certainly harmed Sanchez. Without
counsel, Sanchez had to amend his petition and reply to the State’s
motions. Indeed, in reading Sanchez’s amended petition, we
discern the kernel of his arguments, but they are presented in an
imprecise and confusing way in the context of ineffective
assistance of counsel claims. This is especially true where one of
the issues presented was the potential procedural bar of issues in
the direct appeal over which this court lacked jurisdiction, as
explained below. There is a reasonable likelihood that an
appointed attorney would have advanced Sanchez’s arguments
in a fashion that would have prevented the dismissal of the PCRA
petition.

¶17 The district court abused its discretion by relying on an
outdated version of the statute and depriving itself of the
opportunity to consider the relevant factors expressly articulated
in the statute. This error harmed Sanchez. Accordingly, we
remand this matter to allow the district court an opportunity to
consider Sanchez’s request for appointed counsel under the
applicable statute.




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                          Sanchez v. State


   II. The District Court Erred in Finding Sanchez’s Ineffective
           Assistance Claims Were Procedurally Barred

¶18 We are remanding this case to permit the district court to
apply the correct statute with respect to the appointment of
counsel. But “[b]ecause the issue will likely arise again on
remand, we also take the opportunity to address” Sanchez’s
argument that the district court erred in disposing of some of his
ineffective assistance claims. See State v. Ogden, 

, 

.

¶19 Regarding Sanchez’s claim of ineffective assistance related
to counsel’s advice that he plead guilty when there was allegedly
undisclosed exculpatory video evidence, the district court
determined that it was procedurally barred because the issue had
already been raised before this court and the supreme court. See
Utah Code § 78B-9-106(1)(b) (“A petitioner is not eligible for relief
under [the PCRA] upon any ground that . . . was raised or
addressed in the trial court, at trial, or on appeal . . . .”). This
conclusion is incorrect.

¶20 To be clear, this court did not address any of Sanchez’s
ineffective assistance claims on direct appeal. Rather, we
acknowledged Sanchez’s allegation in his rule 23B motion that he
received ineffective assistance when counsel advised him “to
plead guilty when the State did not preserve exculpatory
evidence.” Sanchez I, 

, ¶ 14 n.1, 

(cleaned up). But we concluded that we lacked jurisdiction to hear
this issue because Sanchez’s rule 23B motion was “essentially a
request to withdraw his plea” made after sentencing. 

 We
concluded that we did not have jurisdiction over any such claims,
even if they potentially could be raised, and we instructed that any
such challenge “must be pursued in a post-conviction
proceeding.” 

 As Sanchez correctly observes, this court told him
that his ineffective assistance “claim was not ripe for direct
appeal” because we “lacked jurisdiction” and that it “must be



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                            Sanchez v. State


brought under the PCRA.” An issue is not raised for PCRA
purposes if a party attempts to raise the issue in a court that lacks
jurisdiction to address the issue. After all, “[i]t is axiomatic that if
the court lacks subject matter jurisdiction, it is without power to
hear the matter before it.” Pinchbeck v. Department of Public Health,

 (Conn. App. Ct. 2001); see also Johnson v. State,

, 

 (“A few exceptions apply to the
application of the PCRA’s procedural bars. For instance, . . . if a
claim in a post-conviction petition could have been but was not
raised at trial or on appeal, such a failure is not barred if the failure
to raise the claim was due to ineffective assistance of counsel.”
(cleaned up)). We did not allow Sanchez to actually raise the
issue—and we did not hear the issue—because we determined
that we lacked jurisdiction. And this was the stated reason that we
denied the rule 23B remand. We fail to see how moving for a rule
23B remand before a court that lacks jurisdiction to address the
substance of such a motion amounts to raising an issue.

¶21 In simple terms, because we could not hear the issue due
to a lack of jurisdiction, it was not actually raised or addressed in
the direct appeal. It almost goes without saying that an issue that
cannot be heard was not properly raised for PCRA purposes. At
most, Sanchez attempted to raise ineffective assistance claims in his
direct appeal, but that does not mean the claims were actually
raised before this court such that they could be addressed. See Salt
Lake City v. Bryner, 2009 UT App 62U, para. 5 (per curiam)
(“Although [the defendant] has attempted to raise constitutional
issues, the . . . court did not rule on those issues because it found
it lacked jurisdiction.”). Given this circumstance, Sanchez’s claim
cannot be deemed to have been raised, and the district court erred
in concluding that it was.

¶22 Moreover, Sanchez alleged that each of his grounds were
not raised at trial or on direct appeal due to ineffective assistance
from both his trial and appellate attorneys. Accordingly, Sanchez
pled his grounds under section 78B-9-106(3)(a) of the Utah Code,



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                          Sanchez v. State


which states, “[A] petitioner may be eligible for relief on a basis
that the ground could have been but was not raised in the trial
court, at trial, or on appeal, if the failure to raise that ground was
due to ineffective assistance of counsel.” See also Modes v. State,

, 

 (“If any of the . . . 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.”). “We assume the truth of the factual allegations in
the complaint and draw all reasonable inferences therefrom in the
light most favorable to the plaintiff.” Miller v. Miller, 

, 

 (cleaned up). Applying this permissive
standard, the district court was required to take Sanchez’s
allegations of ineffective assistance as a procedural exception at
face value for purposes of the State’s rule 12(b)(6) motion. See
Blanch v. Farrell, 

, 

 (“A rule
12(b)(6) motion to dismiss admits the facts alleged in the
complaint but challenges the plaintiff’s right to relief based on
those facts.” (cleaned up)). Because the district court failed to do
so, its conclusion that Sanchez’s ineffective assistance claims were
procedurally barred was in error.


                          CONCLUSION

¶23 The district court abused its discretion when it evaluated
Sanchez’s motion for appointed counsel under the factors
articulated by a superseded statute. And its conclusion that
Sanchez’s ineffective assistance claims were procedurally barred
was in error.

¶24    Reversed and remanded.




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