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Lucero v. Kennard4/1/2004
d denial of counsel, and chose not to pursue that opportunity. [FN5] Because we conclude that the unusual circumstances exception does not apply in this case, Petitioner was precluded under Utah Code Annotated section 78-35a-106 from obtaining relief through a petition for post-conviction relief. Given our holding that the district court should have dismissed Petitioner's petition for post-conviction relief and our disposition of this case on that ground, we do not address the correctness of the trial court's findings and conclusions.
FN4. Through his post-conviction relief petition, Petitioner does not challenge the Justice Court plea or conviction. Instead, for reasons not apparent to this court, he seeks only a dismissal of the remaining suspended sentence.
FN5. The Justice Court also argues that Petitioner should be precluded from bringing a petition for post-conviction relief because he did not explain why he failed to take a direct appeal. In support of this argument, it cites Summers v. Cook, 759 P.2d 341, 343 (Utah Ct.App.1988), and Wells v. Shulsen, 747 P.2d 1043, 1044 (Utah 1987), where the courts held that in addition to showing an obvious injustice, the defendants were required to explain why they did not take a direct appeal. However, Summers and Wells were both decided prior to the enactment of the Post Conviction Remedies Act, Utah Code Annotated sections 78- 35a-101 to -110 (2002), which does not require such an initial showing of why a direct appeal was not taken. We note that even though a defendant is not required to explain why he did not bring a direct appeal, such an explanation may be helpful in showing extraordinary circumstances.
CONCLUSION
**13 Petitioner failed to file a timely appeal to the district court for a trial de novo. A trial de novo would have remedied any constitutional violations Petitioner may have suffered in the Justice Court. After obtaining counsel, or properly waiving his right to counsel, Petitioner could have either pleaded guilty again, or challenged the charges in a trial. Defendant has not demonstrated unusual circumstances consisting of "an obvious injustice or substantial prejudicial denial of a constitutional right." Carter, 2001 UT 96 at 15, 44 P.3d 626. Thus, he has not established an exception to the rule prohibiting post-conviction relief when the petitioner has not first sought relief by direct appeal. We accordingly affirm the result of the district court, but for the reasons explained above.
**14 I CONCUR IN THE RESULT: GREGORY K. ORME, Judge.
*180 JACKSON, Judge (dissenting):
**15 I respectfully dissent from the majority's opinion.
I. The District Court's Jurisdiction to Hear a Petition for Extraordinary
Relief
**16 It is unquestionably true that a defendant's right to appeal a justice court conviction to a district court for a trial de novo satisfies the various state and federal constitutional guarantees relating to due process and the right to appeal. See, e.g., North v. Russell, 427 U.S. 328, 337, 96 S.Ct. 2709, 2713, 49 L.Ed.2d 534 (1976); City of Monticello v. Christensen, 788 P.2d 513, 516 (Utah 1990). The question before us, however, is not one of constitutional propriety, but is instead a question of statutory interpretation. Specifically, the question of whether the district court had jurisdiction to hear Lucero's petition for post-conviction relief hinges upon our reconciliation of two different statutory provisions. The first is Utah Code Annotated section 78-5-120 (Supp.2002), which dictates the manner by which defendants can appeal justice court convictions. That section is entitled "Appeals from justice court," and provides that, "[i]n a criminal case, a defendant is entitled to a trial de novo in the district court." Id
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