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Lucero v. Kennard11/15/2005
r 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 re-examine . . . and thereby to assure that substantial justice was done." Holden, 888 P.2d at 613 (internal quotation omitted).
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
We conclude that the PCRA does not limit this court's authority to grant post-conviction relief to justice court 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.
Chief Justice Durham, Associate Chief Justice Wilkins, Justice Parrish, and Justice Nehring concur in Justice Durrant's opinion.
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