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Lucero v. Kennard11/15/2005
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)).
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 (" 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
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 Lucero is not eligible for post-conviction relief under the unusual circumstances exception.
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.
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.
To qualify for the unusual circumstances exception to the procedural bar rules, a petitione
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