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Lucero v. Kennard4/1/2004
ppeal' from a court not of record is satisfied by provision for a trial de novo in a court of record." City of Monticello v. Christensen, 788 P.2d 513, 516 (Utah 1990).
FN3. Petitioner argues that because the Justice Court did not raise this issue before the district court, it is now barred because it would constitute an alternative ground for affirmance not apparent on the record nor sustainable by the factual findings. See State v. Topanotes, 2003 UT 30, 9, 76 P.3d 1159. However, "[j]urisdictional issues may be raised for the first time on appeal." State In Interest of R.N.J., 908 P.2d 345, 347 (Utah Ct.App.1995). Moreover, Petitioner's argument is moot because we have determined the district court had jurisdiction.
**10 In this case, after being sentenced, Petitioner chose not to appeal his plea or conviction to the district court for a trial de novo. It is clear, however, that a trial de novo would have remedied any constitutional defects suffered by Petitioner in the Justice Court. Instead, nearly two months after sentencing in the Justice Court, Petitioner filed his Petition for Post-Conviction Relief with the district court.
**11 "A petition for post-conviction relief is a collateral attack on a conviction and sentence and is not a substitute for direct appellate review." Rudolph v. Galetka, 2002 UT 7, 5, 43 P.3d 467. The Post-Conviction Remedies Act, Utah Code Annotated sections 78-35a-101 to - 110 (2002), precludes post-conviction relief when a claim "could have been but was not raised at trial or on appeal." Utah Code Ann. § 78-35a- 106(1)(c). The Utah Supreme Court has reiterated this prohibition, but with one exception. "[I]ssues that were not addressed on direct appeal but could have been raised may not be raised for the first time in a post-*179 conviction relief proceeding absent unusual circumstances." Rudolph, 2002 UT 7, at 5, 43 P.3d 467 (emphasis added). The supreme court further defined unusual circumstances as those that "show that there was an obvious injustice or a substantial and prejudicial denial of a constitutional right." Carter v. Galetka, 2001 UT 96, 15, 44 P.3d 626 (quotations and citation omitted); see also Webster v. Jones, 587 P.2d 528, 530 (Utah 1978) (stating that exigent circumstances exist where there "has been such unfairness or failure to accord due process of law that it would be wholly unconscionable not to re-examine the conviction" (footnote omitted)).
**12 Petitioner argues that his inability to have the Justice Court's denial of counsel reviewed by the district court on a direct appeal is unique and presents "unusual circumstances" with an "obvious injustice or a substantial and prejudicial denial of a constitutional right" warranting review. Carter, 2001 UT 96 at 15, 44 P.3d 626 (quotations and citations omitted). However, we are not persuaded that Petitioner, in fact, suffered from an obvious injustice. To the contrary, the structure of Utah's justice court system ensures that when a defendant believes he or she has been deprived of a constitutional right by a justice court, that individual is entitled to a new trial in the district court. See Utah Code Ann. § 78-5-120(1) (2002); Henriod, 1999 UT App 50 at 9, 975 P.2d 946. Voluntarily eschewing the opportunity to remedy a constitutional violation through a trial de novo does not create unusual circumstances permitting a petition for post-conviction relief. By rejecting a trial de novo, Petitioner acceded to any undesired result of the Justice Court's sentence. [FN4] Therefore, we hold that Petitioner did not suffer a "substantial and prejudicial denial of a constitutional right," Carter, 2001 UT 96 at 15, 44 P.3d 626 (quotations and citations omitted), because he had the opportunity to remedy his allege
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