Oseguera v. State

This opinion is subject to revision before
publication in the Pacific Reporter

2014 UT 31

IN THE
SUPREME COURT OF THE STATE OF UTAH
RAMIRO OSEGUERA JR.,
Petitioner and Appellant,
v.
STATE OF UTAH,
Respondent and Appellee.

No. 20120018
Filed July 29, 2014

Second District, Ogden Dep‘t
The Honorable Noel S. Hyde
No. 110902070

Attorneys:
Hakeem Ishola, Jonathan Benson, Aaron Tarin, Carlos Navarro,
West Valley City, for appellant
Sean D. Reyes, Att‘y Gen., Ryan D. Tenney, Asst. Att‘y Gen.,
Salt Lake City, for appellee

ASSOCIATE CHIEF JUSTICE NEHRING authored the opinion of
the Court, in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM,
JUSTICE PARRISH, and JUSTICE LEE joined.

ASSOCIATE CHIEF JUSTICE NEHRING, opinion of the Court:
INTRODUCTION
¶ 1 Mr. Ramiro Oseguera-Garcia Jr. (Mr. Oseguera)1 was a
lawful permanent resident of the United States when he pleaded
guilty to felony theft in January 2002. In 2010, Mr. Oseguera was
arrested by Immigration and Customs Enforcement and

1 The spelling of Mr. Oseguera‘s name appears in the record as
both Ramiro Osegura-Garcia Jr. and Ramiro Oseguera-Garcia Jr.
We use Ramiro Oseguera-Garcia Jr., as that name appears on his
permanent resident card, his social security card, and the parties‘
briefs.
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Opinion of the Court

deportation proceedings were initiated, in part due to
Mr. Oseguera‘s 2002 felony theft conviction. Mr. Oseguera filed
for relief under the Utah Post-Conviction Remedies Act (PCRA)
seeking to withdraw his guilty plea to theft. Mr. Oseguera
claimed his counsel was ineffective during the plea process
because counsel failed to disclose the possible immigration
consequences of Mr. Oseguera‘s plea. In the alternative,
Mr. Oseguera sought relief through a writ of coram nobis. After a
hearing and argument, the district court dismissed
Mr. Oseguera‘s petition and writ of coram nobis upon
determining that (1) Mr. Oseguera‘s petition was time barred by
the PCRA and (2) he was not deprived of effective assistance of
counsel. Mr. Oseguera appealed, and the Utah Court of Appeals
certified the appeal to this court. We affirm the district court‘s
dismissal of Mr. Oseguera‘s PCRA petition and writ of coram
nobis.
BACKGROUND
¶ 2 Mr. Oseguera was born in Mexico in November 1972.
He entered the United States in June 1978 and became a lawful
permanent resident of the United States on January 9, 1989. In
November 2001, Mr. Oseguera was employed as a clerk at a gas
station. On November 18, 2001, the station manager phoned local
police and reported that a regular customer had left her purse on
the counter and the purse was not in the station‘s lost and found.
The South Ogden Police Department was dispatched to the
station to investigate the possible theft of the purse. The manager
phoned Mr. Oseguera, who was the clerk working at the time the
customer left her purse, to ask about the missing purse.
Mr. Oseguera responded that he had not seen the purse. The
station manager and the South Ogden police officer reviewed the
surveillance camera footage for the interval between when the
purse was left and when the purse disappeared. The video
showed the customer leave her purse on the counter, another
customer hand the purse to Mr. Oseguera, and Mr. Oseguera
place the purse behind the counter. The video also revealed that
some time later, Mr. Oseguera put on his coat, walked to the
location of the purse, then walked away, and thereafter, the purse
was gone. After viewing the video tape, the station manager
phoned Mr. Oseguera again and asked him to return to the gas
station. When Mr. Oseguera returned, he was asked again about
the purse. Mr. Oseguera claimed he did not know what

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Opinion of the Court

happened to the purse and denied taking it, but then stated that
he could not ―afford to be in any more trouble‖ because he was on
probation and had a scholarship at Weber State University.
Mr. Oseguera offered to reimburse the victim any money that
may have been lost in order to ―solve the problem.‖ The officer
arrested Mr. Oseguera and booked him into Weber County jail on
a charge of theft.
¶ 3 Due to prior theft convictions, Mr. Oseguera was
charged with one count of third-degree felony theft under Utah
Code sections 76–6–404 and –412(1)(b)(ii). Mr. Oseguera had
previously been convicted of retail theft on May 3, 2000, theft on
July 12, 2000, and retail theft on September 1, 2000—all
three crimes were class B misdemeanors. Mr. Oseguera was
ordered to serve eighteen months probation for these theft
charges and was still on probation when he committed the theft of
the purse on November 18, 2001.
¶ 4 Mr. Oseguera hired Mr. Daniel Drage to represent him
in the November 2001 theft charge. On January 22, 2002,
Mr. Oseguera pleaded guilty as charged. In exchange for his plea,
the State agreed not to oppose a ―402(b) reduction‖ upon the
completion of probation and to ―defer to [Adult Probation and
Parole‘s] recommendation‖ at the time of Mr. Oseguera‘s
sentencing. On March 7, 2002, Mr. Oseguera was sentenced to
sixty days in jail, to be followed by probation.
¶5 Over eight years later, in September 2010, federal
immigration officials began deportation proceedings against
Mr. Oseguera based in part on his January 2002 plea.2 On
March 22, 2011, Mr. Oseguera filed a petition asking the district
court to vacate his January 2002 plea under the PCRA or,
alternatively, through a writ of coram nobis. In his petition and
accompanying affidavit, Mr. Oseguera asserted he was denied
effective assistance of counsel during the plea process because he
was never informed of potential immigration consequences
related to his plea.
¶ 6 The State moved for summary judgment on the grounds
that (1) Mr. Oseguera‘s claims were time barred and

2 See Oseguera-Garcia v. Holder, 485 F. App‘x 948, 949–50 (10th
Cir. 2012).

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(2) Mr. Oseguera‘s claims failed as a matter of law. The district
court denied the State‘s motion, concluding that issues of fact
existed regarding the timeliness of Mr. Oseguera‘s claims. The
district court held a hearing, during which it received exhibits and
heard testimony from Mr. Oseguera and Mr. Drage to resolve the
time bar issue. At the hearing, Mr. Oseguera testified that he and
Mr. Drage spoke regarding the possible consequences of a plea
deal and he learned that the plea may lead to his deportation.
Following the hearing, the district court entered findings of fact
and conclusions of law. The district court found that
Mr. Oseguera‘s testimony did not match his affidavit, in which he
stated he was never informed of potential immigration
consequences. Rather, the district court found that Mr. Oseguera
and his attorney ―did discuss deportation, [and] that [Mr.]
Oseguera was advised the plea could lead to deportation.‖
¶ 7 The district court concluded Mr. Oseguera knew or
should have known in the exercise of reasonable diligence that
there were potential immigration consequences related to his plea.
The district court further concluded that because Mr. Oseguera
was aware of the evidentiary facts underlying his PCRA petition
during the 2002 plea discussions, the time for filing his post-
conviction action began running at his March 2002 sentencing and
thus expired before he filed his post-conviction petition.
Although unnecessary, the district court also concluded that
Mr. Oseguera did not receive ineffective assistance of counsel,
particularly in light of the complexities of immigration law. The
district court denied Mr. Oseguera‘s PCRA petition and his
request for a writ of coram nobis.
¶ 8 Mr. Oseguera appealed the district court‘s denial of
relief to the Utah Court of Appeals. The court of appeals heard
oral argument on the matter and later certified the appeal to this
court. We have jurisdiction over this appeal under Utah Code
section 78A–3–102(3)(b).
STANDARD OF REVIEW
¶ 9 ―On appeal from a ruling on a petition for post-
conviction relief, we review the post-conviction court‘s legal
conclusions for correctness,‖ granting no deference to the district

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court.3 We review the district court‘s factual findings for clear
error.4 Additionally, ―an appellant must properly preserve an
issue in the district court before it will be reviewed on appeal.‖5
ANALYSIS
I. MR. OSEGUERA FAILED TO PRESERVE HIS
ARGUMENT THAT HIS ATTORNEY AFFIRMATIVELY
MISREPRESENTED THE IMMIGRATION
CONSEQUENCES OF HIS PLEA
¶ 10 ―As a general rule, claims not raised before the [district]
court may not be raised on appeal.‖6 This preservation rule serves
two policy aims: (1) it enhances efficiency and fairness and (2) it
―generally assure[s] that most claims are raised and resolved in
the first instance by the original trial court.‖7 To serve these
policies, we have held that the preservation rule applies to every
claim, including constitutional questions.8 ―An issue is preserved
for appeal when it has been presented to the district court in such
a way that the court has an opportunity to rule on [it].‖9 ―In
determining whether the district court had an opportunity to rule
on an issue, a court considers three factors: (1) whether the issue
was raised in a timely fashion, (2) whether the issue was
specifically raised, and (3) whether supporting evidence or
relevant authority was introduced.‖10 A party cannot circumvent

3 Tillman v. State, 2005 UT 56, ¶ 14, 128 P.3d 1123.
4 Id.
5 O’Dea v. Olea, 2009 UT 46, ¶ 15, 217 P.3d 704.
6 Winward v. State, 2012 UT 85, ¶ 9, 293 P.3d 259 (alteration in
original) (internal quotation marks omitted).
7State v. Prion, 2012 UT 15, ¶ 19, 274 P.3d 919; see also Winward,
2012 UT 85, ¶ 9; State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346.
8 Prion, 2012 UT 15, ¶ 19; Holgate, 2000 UT 74, ¶ 11.
9 Gressman v. State, 2013 UT 63, ¶ 45, 323 P.3d 998 (alteration in
original) (internal quotation marks omitted).
10 Winward, 2012 UT 85, ¶ 9 (internal quotation marks omitted);
see also State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867; State v. Hansen,
2002 UT 114, ¶ 13, 61 P.3d 1062.

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our preservation rules by merely mentioning an issue without
analyzing supporting evidence or relevant legal authority.11
Additionally, a party that makes an objection based on one
ground does not preserve any alternative grounds for objection
for appeal.12
¶ 11 Mr. Oseguera filed a petition for post-conviction relief
based on the claim that he was denied the assistance of effective
counsel during his 2002 plea for felony theft because his attorney
told him there would be ―no immigration consequences‖ as a
result of his plea. Mr. Oseguera submitted an affidavit in support
of his post-conviction relief petition, in which he stated he was
concerned that the felony theft charge would affect his
immigration status and that his attorney did not tell him of the
immigration consequences of the plea agreement.
¶ 12 On appeal, however, Mr. Oseguera argues that he
was denied effective assistance of counsel because his attorney
made affirmative misstatements regarding the immigration
consequences of his plea agreement. This argument is necessarily
premised on our caselaw as it existed before the United States
Supreme Court‘s opinion in Padilla v. Kentucky,13 because Padilla
does not apply retroactively to defendants whose convictions
became final prior to the decision.14 Mr. Oseguera‘s conviction
became final years before Padilla was decided, and thus, Padilla
does not apply to Mr. Oseguera‘s claim. Before Padilla, we
adopted the view that deportation was a collateral consequence of
a conviction, and as such, defense counsel was not required to
advise a client of the immigration consequences of a guilty plea.15

11 State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 (―[A] mere
mention [of an issue] does not preserve that issue for appeal.‖
(internal quotation marks omitted)).
12 Low, 2008 UT 58, ¶ 17.
13 559 U.S. 356 (2010). In Padilla, the Supreme Court held that
counsel‘s failure to advise a defendant of the immigration
consequences of a plea agreement was deficient performance. Id.
at 368–69.
14 Chaidez v. United States, __ U.S. __, 133 S. Ct. 1103, 1113
(2013).

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We also adopted an exception to the collateral consequences rule
―when counsel affirmatively, but erroneously, represents that the
accused will not be subject to deportation.‖16
¶ 13 After careful review of the record, we conclude that
Mr. Oseguera did not argue that his counsel made an affirmative
misrepresentation in his post-conviction action. In his post-
conviction relief petition and supporting affidavit, Mr. Oseguera
argued that his counsel never informed him of the immigration
consequences of his plea agreement.17 The same argument was
presented in Mr. Oseguera‘s post-conviction pleadings. In his
memorandum opposing the State‘s motion for summary
judgment, Mr. Oseguera continued to assert that Mr. Drage
assured him that ―the plea would not affect his immigration
status,‖ and that there would be ―no immigration consequences‖
of his guilty plea. In closing arguments at the post-conviction
hearing, Mr. Oseguera‘s counsel did refer to Mr. Drage‘s advice as
―affirmative misstatements‖ and ―affirmative misadvice.‖
Despite this, Mr. Oseguera‘s counsel—on rebuttal—phrased his
reference to ―affirmative misstatements‖ or ―misadvice‖ as merely
hypothetical. Mr. Oseguera‘s counsel argued that a hypothetical
statement informing Mr. Oseguera that his plea ―may not get
[him] deported‖ would have been affirmative misadvice;
however, Mr. Oseguera‘s counsel conceded ―that [such a
statement] never happened, though.‖ The district court also
noted ―that evidence with respect to the advice of counsel was
heard by the Court, but neither party specifically addressed‖
whether counsel‘s advice ―constituted . . . ineffective assistance of
counsel.‖ The district court ultimately found that Mr. Drage did
discuss the possibility of deportation with Mr. Oseguera before he
entered his plea.
¶ 14 The only issue presented specifically to the district court
was whether Mr. Drage discussed deportation with Mr. Oseguera

15 State v. Rojas-Martinez, 2005 UT 86, ¶ 20, 125 P.3d 930,
abrogated by Padilla, 559 U.S. 356.
16 Id. ¶ 15 (internal quotation marks omitted).
17In his affidavit, Mr. Oseguera specifically stated, ―Mr. Drage
did not tell me about the immigration consequences of the plea
even though he knew I was an immigrant from Mexico.‖

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as a possible consequence of his guilty plea. Mr. Oseguera did not
present the issue of whether Mr. Drage affirmatively misstated the
law. Mr. Oseguera did not present any legal authority on the
affirmative misstatement or misadvice to the district court. Thus,
the issue of whether Mr. Drage‘s advice was an affirmative
misrepresentation was not presented to the district court in such a
way that the court had an opportunity to rule on it.18 We
therefore conclude that Mr. Oseguera‘s argument on appeal
regarding affirmative misrepresentation is not preserved.
¶ 15 Under ordinary circumstances, we will not consider an
issue raised for the first time on appeal unless ―(1) the appellant
establishes that the district court committed ‗plain error,‘
(2) ‗exceptional circumstances‘ exist, or (3) in some situations, if
the appellant raises a claim of ineffective assistance of counsel in
failing to preserve the issue.‖19 However, when a party seeks
review of an unpreserved objection, ―we require that the party
articulate an appropriate justification for appellate review.‖20 The
party seeking review must present the justification in the party‘s
opening brief.21 Mr. Oseguera failed to do this. Mr. Oseguera
does not argue plain error or any other exception to our
preservation rule. As such, we decline to address Mr. Oseguera‘s
claims under our exceptions.22
¶ 16 Because Mr. Oseguera presents a new argument on
appeal, one not presented to the district court, we conclude
Mr. Oseguera‘s argument is unpreserved, and thus, we do not
address the merits of his claim on appeal. Therefore, the district
court‘s decision to deny Mr. Oseguera‘s post-conviction petition is
affirmed.

18 See Gressman, 2013 UT 63, ¶ 45; Winward, 2012 UT 85, ¶ 9;
Johnson v. State, 2011 UT 59, ¶ 9 n.6, 267 P.3d 880.
19Low, 2008 UT 58, ¶ 19; Pinder, 2005 UT 15, ¶ 45, 114 P.3d 551;
Holgate, 2000 UT 74, ¶ 11.
20 Pinder, 2005 UT 15, ¶ 45.
21 Id.
22 See Cruz, 2005 UT 45, ¶ 36 n.6; Schefski ex rel. Coleman v.
Stevens, 2000 UT 98, ¶ 9, 17 P.3d 1122; State v. Pledger, 896 P.2d
1226, 1229 n.5 (Utah 1995).

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II. THE DISTRICT COURT DID NOT ERR WHEN
IT DENIED MR. OSEGUERA‘S PETITION
FOR A WRIT OF CORAM NOBIS
¶ 17 The district court denied Mr. Oseguera‘s petition for a
writ of coram nobis. Mr. Oseguera argues that the district court
erred when it denied this petition because this case presents
―special circumstances.‖ Particularly, Mr. Oseguera argues the
district court should have recognized that an exception to the
PCRA is warranted given the gravity of immigration
consequences as recognized in Padilla.23 We disagree that the
claimed exception is warranted here.
¶ 18 The Utah Supreme Court has ―original jurisdiction to
issue all extraordinary writs,‖ and ―appellate jurisdiction over all
other matters to be exercised as provided by statute, and power to
issue all writs and orders necessary for the exercise‖ of
jurisdiction ―or the complete determination of any cause.‖24 A
writ of coram nobis ―is an ancient common law writ that exists to
correct fundamental errors which render a criminal proceeding
irregular and invalid,‖25 or to ―set[ ] aside a judgment which for a
valid reason should never have been rendered.‖26 The writ of
coram nobis, however, ―is not merely another avenue of
appeal.‖27 Rather, it ―is an extraordinary writ; and an
extraordinary remedy . . . should not be granted in the ordinary
case.‖28
¶ 19 In State v. Rees, we addressed whether the writ of coram
nobis was available as a remedy to a defendant who claimed his

23 Padilla v. Kentucky, 559 U.S. 356, 365–66 (2010).
24 UTAH CONST. art. VIII, § 3.
25State v. Rees, 2005 UT 69, ¶ 6 n.1, 125 P.3d 874 (internal
quotation marks omitted).
26Manning v. State, 2005 UT 61, ¶ 13 n.2, 122 P.3d 628 (internal
quotation marks omitted).
27 Garcia v. State, 843 N.W.2d 345, 348 (S.D. 2014) (alteration in
original) (internal quotation marks omitted).
28 United States v. Denedo, 556 U.S. 904, 917 (2009) (alteration in
original) (internal quotation marks omitted).

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appeal was ―defectively prosecuted because his appellate counsel
was ineffective.‖29 We noted that ―[i]f the PCRA provides . . . an
adequate remedy at law,‖ then a defendant ―is not entitled to
secure extraordinary relief but must instead pursue his PCRA
remedy.‖30 Utah Code section 78B–9–102(1) provides that the
PCRA ―establishes the sole remedy for any person who challenges
a conviction or sentence for a criminal offense and who has
exhausted all other legal remedies,‖ and ―replaces all prior
remedies for review, including extraordinary or common
law writs.‖ The PCRA provided an adequate remedy to
Mr. Oseguera. Mr. Oseguera was granted an evidentiary hearing
under the PCRA to determine whether his claim was time barred,
and the district court denied his claim. He now attempts to bring
a new claim, which we decline to review on the merits because it
was unpreserved.31 Because Mr. Oseguera had a remedy
available to him through the PCRA, a remedy he sought, we
affirm the district court‘s denial of his writ of coram nobis.
CONCLUSION
¶ 20 Mr. Oseguera failed to preserve the argument he now
makes on appeal. Mr. Oseguera had a statutory remedy available
to him and thus is not entitled to secure extraordinary relief.
Therefore, we affirm the district court‘s dismissal of both
Mr. Oseguera‘s PCRA petition and his petition for a writ of coram
nobis.

29 2005 UT 69, ¶ 9.
30 Id. ¶ 16.
31 See supra Part I.

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