Meza v. State

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

2015 UT 70

IN THE

SUPREME COURT OF THE STATE OF UTAH
SERGIO ALEJANDRO MEZA,
Petitioner-Appellant,
v.
STATE OF UTAH,
Respondent-Appellee.

No. 20130962
Filed August 14, 2015

Attorneys:
Aaron Tarin, Hakeem Ishola, Skyler K. Anderson, West Valley,
for petitioner-appellant
Tim L. Taylor, Lance E. Bastian, Provo, for respondent-appellee

JUSTICE PARRISH announced the judgment of the Court and
authored the opinion of the Court with respect to Part I,
in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM, and JUDGE ROTH joined.
JUSTICE PARRISH authored an opinion with respect to Part II, in
which JUSTICE DURHAM joined.
JUDGE ROTH authored an opinion concurring in part and
concurring in the result, in which CHIEF JUSTICE DURRANT joined.
ASSOCIATE CHIEF JUSTICE LEE authored an opinion concurring in
part and concurring in the result.
Due to his retirement, JUSTICE RONALD E. NEHRING did not
participate herein; COURT OF APPEALS JUDGE STEPHEN L. ROTH sat.
JUSTICE DENO G. HIMONAS became a member of the Court on
February 13, 2015, after oral argument in this matter, and
accordingly did not participate.

JUSTICE PARRISH, opinion of the Court in part:
INTRODUCTION
¶1 Sergio Meza appeals the district court’s dismissal of his
petition under the Post-Conviction Remedies Act (PCRA) seeking to
 MEZA v. STATE
Opinion of the Court in part

withdraw his plea held in abeyance. In the alternative, Mr. Meza
invites us to invoke our extraordinary writ authority to fashion a
remedy allowing him to withdraw his plea.
¶2 We hold that the PCRA does not apply to a successfully
completed plea in abeyance and therefore affirm the district court’s
dismissal of his PCRA petition. We decline Mr. Meza’s request that
we exercise our constitutional power to fashion an alternate remedy
because he has another adequate remedy. Specifically, rule 60(b)(6)
of our rules of civil procedure provides a vehicle for Mr. Meza to
challenge his plea. He may accordingly seek to withdraw his plea
under that rule by filing a motion in the justice court where the plea
was entered.
BACKGROUND
¶3 While represented by counsel, and pursuant to a plea-in-
abeyance agreement, Mr. Meza pled no contest to charges of
possession and use of a controlled substance and possession of drug
paraphernalia. After Mr. Meza successfully complied with the terms
of the agreement, the justice court withdrew his plea of no contest
and dismissed the two drug charges.
¶4 Mr. Meza subsequently filed an action under the PCRA
seeking to withdraw his plea in abeyance. Mr. Meza argues that his
attorney provided ineffective assistance by advising him that the
“abeyance plea carried no immigration consequences,” when that is
not the case.1 The State filed a motion to dismiss, arguing that the
district court could not consider Mr. Meza’s PCRA claim because the
only relief available under the PCRA is to set aside a conviction and
the justice court had not entered a conviction against Mr. Meza. Mr.
Meza responded that a plea in abeyance is a conviction under the
PCRA. In the alternative, he asserted that the district court’s
constitutional authority allowed it to fashion a mechanism to allow
him to challenge his plea.
¶5 The district court granted the State’s motion to dismiss,
concluding that the Legislature “did not intend a plea in abeyance
to function as either a judgment or a conviction.” The district court

1
This case is before us on the limited question of whether the
PCRA or another mechanism provides a forum for Mr. Meza. We
therefore do not opine on the merits of Mr. Meza’s claim that the
plea in abeyance prejudices him under federal immigration law.

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did not address Mr. Meza’s argument that it had constitutional
authority to fashion a mechanism to allow him to challenge his plea.
Mr. Meza appealed the dismissal of his action to the court of
appeals, which certified his appeal to us. We have jurisdiction
pursuant to section 78A-3-102(3)(b) of the Utah Code.
STANDARD OF REVIEW
¶6 “We review an appeal from an order dismissing or denying
a petition for post-conviction relief for correctness without deference
to the lower court’s conclusions of law.” Winward v. State, 2012 UT
85, ¶ 6, 293 P.3d 259 (internal quotation marks omitted). “The
question of whether to grant a petition for extraordinary relief lies
within the sound discretion of this court.” Snow, Christensen &
Martineau v. Lindberg, 2013 UT 15, ¶ 22, 299 P.3d 1058.
ANALYSIS
I. THE DISTRICT COURT PROPERLY DENIED
MR. MEZA’S PCRA CLAIM
¶7 Mr. Meza argues that the district court erred in dismissing
his PCRA claim because it was properly brought under the PCRA.2
Specifically, Mr. Meza asserts that the PCRA provides a remedy for
any person who challenges either a conviction or a sentence and that
his plea in abeyance constitutes a conviction falling within the scope
of the PCRA. The State challenges both of these points, arguing that
entitlement to relief under the PCRA requires both a conviction and
a sentence and that Mr. Meza was neither convicted nor sentenced
because the charges against him were dismissed once he successfully
complied with the terms of his plea-in-abeyance agreement.

2
In his opening brief, Mr. Meza also argues that the PCRA
violates the equal protection provisions of the United States and
Utah constitutions. Because this issue was not raised in the district
court, we decline to address it on preservation grounds. In his reply
brief, Mr. Meza suggests for the first time that the PCRA does not
provide him due process. However, “issues raised by an appellant
in the reply brief that were not presented in the opening brief are
considered waived.” Spencer v. Utah State Bar (In re Application of
Spencer), 2012 UT 92, ¶ 25 n.36, 293 P.3d 360 (internal quotation
marks omitted). Because Mr. Meza first challenged the
constitutionality of the PCRA on due process grounds in his reply
brief, we also decline to address that issue.

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Opinion of the Court in part

¶8 We agree with the State. The PCRA provides a post-
conviction remedy to persons who have been both convicted and
sentenced for a crime. But under the plea-in-abeyance statute, no
judgment of conviction is entered pending completion of a plea-in-
abeyance agreement. Accordingly, Mr. Meza is not entitled to relief
under the PCRA.
A. Both a Conviction and a Sentence Are Prerequisites to Relief Under
the PCRA
¶9 Mr. Meza argues that a petitioner may be entitled to relief
under the PCRA if he has either a conviction or a sentence. In so
arguing, Mr. Meza relies on several provisions in the PCRA that
reference a conviction or sentence and points to federal court
decisions treating a plea in abeyance as a sentence or a conviction.
See, e.g., United States v. Gorman, 312 F.3d 1159, 1165–67 (10th Cir.
2002) (“Mr. Gorman’s plea in abeyance was both an adjudication of
guilt and a conviction.”). In response, the State acknowledges that
the PCRA allows a petitioner to obtain relief from either a conviction
or a sentence, but argues that the petitioner must be both convicted
and sentenced before he is entitled to relief. We agree with the State
and hold that the PCRA requires a petitioner to be both convicted
and sentenced before he is entitled to relief under the act.
¶10 When faced with a question of statutory interpretation, “our
primary goal is to effectuate the intent of the Legislature.” LeBeau v.
State, 2014 UT 39, ¶ 20, 337 P.3d 254. “The best evidence of the
Legislature’s intent is the statute’s plain language.” Id. “[W]e read
the plain language of the statute as a whole, and interpret its
provisions in harmony with other statutes in the same chapter and
related chapters.” Id. (internal quotation marks omitted).
¶11 The PCRA provides that “a person who has been convicted
and sentenced for a criminal offense may file an action . . . for post-
conviction relief.” UTAH CODE § 78B-9-104(1) (emphasis added).
The meaning of “and” in this context is clear—both a conviction and
a sentence are required before a petitioner may obtain PCRA relief.
In arguing to the contrary, Mr. Meza relies on sections 78B-9-102(1)
and 78B-9-104(1), which reference conviction and sentence in the
disjunctive. But these sections speak not to the prerequisites for
PCRA relief, but to the types of relief available. For example, section
102(1) explains that the PCRA is “the sole remedy for any person
who challenges a conviction or sentence.” And section 104(1)
enumerates the grounds “to vacate or modify the conviction or

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sentence.” While these provisions specify a petitioner’s remedy for
a challenged conviction or sentence, they do not dictate the
conditions that a petitioner must satisfy before he is entitled to relief.
¶12 We are bound by the statute’s plain meaning and must give
effect to its requirements. Accordingly, we hold that the PCRA
requires that a petitioner be both convicted and sentenced before he
is entitled to relief, even though the petitioner may choose to
challenge only the conviction or the sentence.
¶13 Having concluded that both a conviction and a sentence are
required before a petitioner is entitled to any relief under the PCRA,
we next address whether Mr. Meza was convicted under the PCRA.
B. Mr. Meza’s Plea in Abeyance Was Not a Conviction
¶14 The State argues that pleas in abeyance do not qualify as
convictions for purposes of the PCRA. Mr. Meza relies on federal
cases construing pleas in abeyance as convictions in arguing that a
plea of guilty or no contest is considered a conviction. He also
points to other Utah statutes that construe a plea of guilty or no
contest as a conviction. Considering the plain language of the plea-
in-abeyance statute, we do not find these sources persuasive. Except
in those cases where a statute specifically provides otherwise, a
successfully completed plea in abeyance is not a conviction and
cannot be treated as such.
¶15 The plea-in-abeyance statute defines a plea in abeyance as
“an order by a court, . . . accepting a plea of guilty or of no contest
from the defendant.” Id. § 77-2a-1(1). A court may hold a plea in
abeyance “[a]t any time after acceptance of a plea of guilty or no
contest but prior to entry of judgment of conviction and imposition
of sentence.” Id. § 77-2a-2(1). While the plea is held in abeyance, the
court will “not enter judgment of conviction against the defendant
nor impose sentence upon the defendant.” Id. And if a defendant
successfully completes the conditions of the plea-in-abeyance
agreement, the court may either “reduce the degree of the offense
and enter judgment of conviction and impose sentence for a lower
degree of offense[] or . . . allow withdrawal of a defendant’s plea and
order the dismissal of the case.” Id. § 77-2a-3(2).
¶16 In Mr. Meza’s case, the justice court withdrew his plea and
dismissed the case against him. Mr. Meza’s plea in abeyance was
held “prior to entry of judgment of conviction and imposition of
sentence.” Id. § 77-2a-2(1). And upon completion of Mr. Meza’s
plea-in-abeyance agreement, the court “allow[ed] withdrawal of

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Opinion of the Court in part

[his] plea and order[ed] the dismissal of the case.” Id. § 77-2a-3(2)(b).
Thus, no judgment of conviction was ever entered against Mr. Meza.
¶17 In light of the plain language of the plea-in-abeyance
statute, we are not persuaded by Mr. Meza’s references to other Utah
statutes in which a plea in abeyance is considered a conviction. The
plea-in-abeyance statute states the general rule that a successfully
completed plea in abeyance is not a conviction. The statutes on
which Mr. Meza relies are explicit exceptions to the general rule that
simply have no application to the circumstances presented here. For
example, the Cohabitant Abuse Procedures Act provides that “a plea
of guilty or no contest to any domestic violence offense in Utah,
which plea is held in abeyance[,] . . . is the equivalent of a conviction,
even if the charge has been subsequently reduced or dismissed.” Id.
§ 77-36-1.2(2). And in the Crime Victims Restitution Act, a
conviction includes “(a) judgment of guilt; (b) a plea of guilty; or (c)
a plea of no contest.” Id. § 77-38a-102(1). And a plea in abeyance is
either a “plea of guilty or of no contest.” Id. § 77-38a-102(9). But
neither of these exceptions is applicable here.3
¶18 We presume the Legislature uses each word advisedly.
Had the Legislature intended a plea in abeyance to constitute a
conviction in all circumstances, it would have so provided in the
statute authorizing such pleas. But it did not. Rather, the statute
provides to the contrary. And those statutes that do treat a plea in
abeyance as a conviction do so only in explicitly defined contexts.
For us to consider a plea in abeyance as a conviction in all cases
would render the varying definitions created by the Legislature
superfluous, which we will not do. We therefore hold that a
successfully completed plea in abeyance resulting in dismissal of the
original charges is not a conviction. Because Mr. Meza was never
convicted, he does not qualify for relief under the PCRA.4 We

3
Other statutes also construe a plea in abeyance as a conviction.
E.g., UTAH CODE § 17-16-10.5(2)(c) (malfeasance in office); id.
§ 76-9-301.7(1) (cruelty to animals).
4
The PCRA does provide a mechanism for a petitioner seeking
to withdraw a guilty plea under certain circumstances. See id. § 77-
13-6(2). The PCRA provides a forum for relief from a plea in
abeyance when the plea in abeyance is revoked and a judgment of
conviction is entered, or when the court, in accordance with a
(continued...)

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therefore affirm the district court’s dismissal of his PCRA action.
II. A RULE 60(b)(6) MOTION IS AN ADEQUATE REMEDY TO
CHALLENGE A SUCCESSFULLY COMPLETED PLEA IN
ABEYANCE FOR INEFFECTIVE ASSISTANCE OF COUNSEL
¶19 While a Utah plea in abeyance is not considered a
conviction for certain purposes under the PCRA, it is considered a
conviction under certain federal laws.5 Accordingly, Mr. Meza’s plea
in abeyance may have consequences for his immigration status.
“Before deciding whether to plead guilty, a defendant is entitled to
the effective assistance of competent counsel.” Padilla v. Kentucky,
559 U.S. 356, 364 (2010) (internal quotation marks omitted). And
effective assistance requires “that counsel must inform her client
whether his plea carries a risk of deportation.” Id. at 374. But, as
previously discussed, the PCRA does not provide a mechanism for
challenging alleged ineffective assistance of counsel that leads to the
entry of a plea in abeyance.6 Mr. Meza argues that we retain

4
(...continued)
successfully completed plea-in-abeyance agreement, “reduce[s] the
degree of the offense and enter[s] judgment of conviction and
impose[s] sentence.” See id. § 77-2a-3(2)(a). But it is not available to
a defendant, such as Mr. Meza, who has the charges against him
dismissed entirely.
5
E.g., Perez-Hernandez v. Holder, 332 F. App’x 458, 461 (10th Cir.
2009) (“[A] panel of this court has already held that a guilty plea
held in abeyance entered in Utah state court satisfies the 8 U.S.C.
§ 1101(a)(48)(A) definition of a ‘conviction’ . . . .”); United States v.
Dell, 359 F.3d 1347, 1349 (10th Cir. 2004) (concluding “that the [Utah
federal] district court properly counted Dell’s plea in abeyance as a
conviction under [the United States Sentencing Guidelines]”); United
States v. Gorman, 312 F.3d 1159, 1165 (10th Cir. 2002) (“Mr. Gorman’s
plea in abeyance was both an adjudication of guilt and a
conviction.”).
6
The PCRA provides that it “establishes the sole remedy for any
person who challenges a conviction or sentence for a criminal
offense[,] . . . . replac[ing] all prior remedies for review, including
extraordinary or common law writs.” UTAH CODE § 78B-9-102(1).
But because Mr. Meza does not challenge a conviction or a sentence,
the PCRA’s “sole remedy” provision is inapplicable to him and does
(continued...)

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Opinion of the Court in part

common-law authority to create an exception to the PCRA in order
to grant him a mechanism to challenge his plea. Effectively, Mr.
Meza is asking us to interpret the PCRA in such a way that it
provides him a remedy. We need not consider Mr. Meza’s request
because he has another adequate remedy. There is therefore no need
for the “common-law exception” he suggests.
¶20 In arguing that we should create an exception to the PCRA
to provide him a remedy for his counsel’s ineffective assistance, Mr.
Meza relies on our constitutional authority to issue extraordinary
writs. We agree with Mr. Meza that our constitutional authority to
issue extraordinary writs gives us the authority to remedy
ineffective assistance of counsel.7 However, we need not exercise
that constitutional authority because Mr. Meza has an adequate
remedy under existing law.8

6
(...continued)
not foreclose us from addressing other remedies beyond those
provided in the PCRA.
7
“[A]n indication that no remedy exists in statute or rule to make
real the promise afforded by a constitutional right gives rise to
questions of what tool should be deployed to protect that right. . . .
[E]xtraordinary writs embody the procedure traditionally used to
protect such a right.” State v. Rees, 2005 UT 69, ¶ 14, 125 P.3d 874.
For example, we have used the petition for an extraordinary writ to
review criminal convictions when a defendant’s right to appeal has
been improperly denied. E.g., Boggess v. Morris, 635 P.2d 39, 42
(using the common-law writ of certiorari to review 1061 (Utah
1993) (affirming the issuance of a common-law writ of certiorari to
review “the regularity of the proceedings to determine whether the
[they] were in accordance with law[] and to correct errors in law
affecting the substantial rights of the parties.” (internal quotation
marks omitted)).
8
At oral argument the State asserted that Mr. Meza is not entitled
to extraordinary relief unless he can identify the ancient writ that
provided the specific relief he seeks. But this is a misapprehension
of our power to issue extraordinary writs. “Our cases demonstrate
the practical utility of the flexibility of extraordinary writs in various
circumstances.” Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 684
(Utah 1995). Although the Utah Constitution “at one time listed
(continued...)

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Opinion of the Court in part

¶21 Associate Chief Justice Lee’s concurrence contends that Mr.
Meza never asked us to invoke our extraordinary writ power,
arguing that, at most, we have been asked to use our constitutional
power to entertain his PCRA petition. This is not how we
understand Mr. Meza’s argument. Mr. Meza repeatedly argued that
“where there is no remedy under the PCRA,” we “retain inherent
constitutional authority to create common-law exceptions to the
PCRA.” It is true that Mr. Meza did not file a separate formal rule
65B petition for an extraordinary writ. But the entire crux of his
argument to this court was based on our authority to issue
extraordinary writs and both parties dedicated extensive discussion
to this issue in their briefs and at oral argument. Because the PCRA
does not apply at all to Mr. Meza’s situation, it does not provide Mr.
Meza a mechanism to challenge his alleged constitutional violation.
Yet we have previously recognized that a remedy must exist “in
statute or rule to make real the promise afforded by a constitutional
right.” State v. Rees, 2005 UT 69, ¶ 14, 125 P.3d 874; see also Manning
v. State, 2005 UT 61, ¶¶ 26–27, 31, 122 P.3d 628 (creating an
extraordinary remedy when no remedy existed under PCRA). Thus,
a remedy must exist for a violation of a criminal defendant’s right to
effective assistance of counsel.
¶22 Accordingly, we interpret Mr. Meza’s argument as inviting
us to invoke our extraordinary writ authority to fashion a remedy in
the wake of an unremedied constitutional deficiency. We “have
original jurisdiction to issue all extraordinary writs.” UTAH CONST.
art. VIII, § 3. But we will issue an extraordinary writ only when “no
other plain, speedy[,] and adequate remedy is available.” UTAH R.
CIV. P. 65B(a). In this case, extraordinary relief is not available

8
(...continued)
each type of writ that was within this court’s jurisdiction to grant[,]
. . . . the practice of specifically listing each available common law
writ has been abandoned,” State v. Barrett, 2005 UT 88, ¶¶ 10–11, 127
P.3d 682. Instead, the authority to issue extraordinary writs allows
us to provide remedies “not available to a party unless necessary to
preserve a right that cannot be protected by a standard legal or
equitable remedy.” BLACK’S LAW DICTIONARY 1408 (9th ed. 2009)
(defining extraordinary remedy). See Rex v. Bank of England (1780)
99 Eng. Rep. 334 (K.B.) 335; 2 Dougl. 525 (“When there is no specific
remedy, the Court will grant [the writ of] mandamus that justice
may be done.”).

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Opinion of the Court in part

because Mr. Meza has another remedy available for challenging his
plea in abeyance. That remedy is a motion under rule 60(b)(6) of our
rules of civil procedure.9
¶23 Rule 60(b) allows a court to “set aside a final judgment for
reasons such as mistake, newly discovered evidence, or fraud.”10
Honie v. State, 2014 UT 19, ¶ 87, 342 P.3d 182. Rule 60(b) also
contains a catch-all provision, subsection (6), which allows a party
to seek relief for “any other reason justifying relief from the
operation of the judgment.” UTAH R. CIV. P. 60(b)(6). Rule 60(b)(6)
motions are unavailable if the grounds for relief fall within
subsections (1) through (5). See Laub v. S. Cent. Utah Tel. Ass’n, 657
P.2d 1304, 1306–07 (Utah 1982). And a rule 60(b)(6) motion may not
be brought “in an attempt to evade the PCRA.” Kell v. State, 2012 UT
25, ¶ 24, 285 P.3d 1133. But this case involves neither of these
circumstances. Mr. Meza’s claim does not qualify for relief under
subsections (1)–(5), and since the PCRA does not apply to Mr. Meza,
a motion under subsection (6) does not constitute an attempt to
evade the substantive provisions of the PCRA.
¶24 To begin, Mr. Meza does not qualify for relief under
subsections (1)–(5) of rule 60(b). These subsections allow a party to
seek relief from a judgment in the event of (1) mistake or similar
excuse; (2) newly discovered evidence; (3) fraud; (4) voidness; or
(5) satisfaction, release, or discharge. None of these provisions even
arguably apply here.

9
Our rules of civil procedure “also govern in any aspect of
criminal proceedings where there is no other applicable statute or
rule.” UTAH R. CIV. P. 81(e).
10
Rule 60(b) “reflects and confirms the courts’ own inherent and
discretionary power, firmly established in English practice long
before the foundation of our Republic, to set aside a judgment whose
enforcement would work inequity.” Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211, 233–34 (1995) (internal quotation marks omitted). Some
jurisdictions have recognized that rule 60(b) was intended “to retain
all [the] substantive rights protected by the old writ of coram nobis.”
State v. Lucero, 563 P.2d 605, 606 (N.M. Ct. App. 1977); see also
Commonwealth v. Spaulding, 991 S.W.2d 651, 655 (Ky. 1999) (“[Rule
60(b)(6)] is a catch-all provision that encompasses those grounds,
which would justify relief pursuant to [the] writ of coram nobis, that
are not otherwise set forth in the rule.”).

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¶25 Mr. Meza is also not seeking relief “in an attempt to evade
the PCRA.” Kell, 2012 UT 25, ¶ 24. The PCRA provides that it
“establishes the sole remedy for any person who challenges a
conviction or sentence for a criminal offense[,] . . . . replac[ing] all
prior remedies for review, including extraordinary or common law
writs.” UTAH CODE § 78B-9-102(1). For this reason, we have
generally not allowed rule 60(b)(6) motions in contexts where they
would allow a movant to thwart the substantive or procedural
requirements of the PCRA. See Archuleta v. Galetka, 2011 UT 73,
¶ 168, 267 P.3d 232. However, as explained above, the PCRA has no
application to Mr. Meza inasmuch as he does not satisfy the
substantive qualifications for PCRA relief. Because the PCRA’s “sole
remedy” provision is inapplicable here, a rule 60(b)(6) motion would
not constitute an attempt to bypass the PCRA.
¶26 Having concluded that a rule 60(b)(6) motion would not
constitute an attempt to thwart the requirements of rule 60(b)(1)–(5)
or the PCRA, we examine whether Mr. Meza’s unusual and
exceptional circumstances warrant rule 60(b)(6) relief. Mr. Meza has
“a Sixth Amendment right to counsel, a right that extends to the
plea-bargaining process.” Lafler v. Cooper, 132 S. Ct. 1376, 1384
(2012). The Constitution “ensure[s] that no criminal
defendant—whether a citizen or not—is left to the mercies of
incompetent counsel.” Padilla, 559 U.S. at 374 (internal quotation
marks omitted). Moreover, “the seriousness of deportation as a
consequence of a criminal plea, and the concomitant impact of
deportation on families,” requires counsel to “inform her client
whether his plea carries a risk of deportation.” Id.
¶27 In this case, Mr. Meza contends that his counsel was
required to inform him of the possible immigration consequences of
his plea in abeyance. And if Mr. Meza’s counsel did not provide
effective assistance, Mr. Meza must be allowed to challenge his plea.
“[A]n absolute prohibition against providing a forum to a defendant
in which he may assert defects in his guilty plea would certainly
violate constitutional due process guarantees.” State v. Merrill, 2005
UT 34, ¶ 29, 114 P.3d 585. Mr. Meza’s need for a mechanism to
assert a defect in his guilty plea and the PCRA’s failure to provide
such a mechanism leads us to conclude that his circumstances are
sufficiently unusual and exceptional to qualify for relief under rule
60(b)(6).
¶28 Because rule 60(b)(6) provides Mr. Meza with a vehicle for
challenging his guilty plea on the basis of ineffective assistance of

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 MEZA v. STATE
J. Roth, concurring in part/concurring in the result

counsel, there is no reason to consider his request that we exercise
our constitutional power to fashion a remedy for his alleged
ineffective assistance of counsel. Mr. Meza may seek relief from the
consequences of his plea by filing a rule 60(b)(6) motion in the justice
court where he originally entered his plea in abeyance.
CONCLUSION
¶29 The district court correctly concluded that Mr. Meza did not
qualify for relief under the PCRA. The PCRA requires that a
petitioner have been both convicted and sentenced before he is
entitled to seek relief. But Mr. Meza was never convicted. We
therefore affirm the dismissal of Mr. Meza’s suit under the PCRA.
We decline to rely on our constitutional authority to fashion a
mechanism for Mr. Meza to withdraw his plea because he may
obtain relief for the alleged ineffective assistance of counsel by filing
a rule 60(b)(6) motion in the justice court.

JUDGE ROTH, concurring in part and concurring in the result:
¶30 I concur in Part I of the majority opinion and in the court’s
judgment “affirm[ing] the dismissal of Mr. Meza’s suit under the
PCRA.” See supra ¶ 29. I cannot join in Part II, however. First, Mr.
Meza did not request a writ of any kind in the lower court. See 438
Main St. v. EasyHeat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801. And whether
or not preserved below, I cannot read Mr. Meza’s argument on
appeal—that this court has common-law authority to modify the
PCRA or provide a remedy beyond its bounds—so broadly as to
invoke this court’s common-law writ jurisdiction. Second, I share
Justice Lee’s concern that the majority opinion’s proposed rule
60(b)(6) solution to Mr. Meza’s dilemma has not yet passed the test
of the adversarial process, as it was neither raised nor briefed by the
parties. Cf. State v. Robison, 2006 UT 65, ¶ 22, 147 P.3d 448. That said,
a rule 60(b)(6) approach to resolution of the catch-22 created at the
intersection of the plea-in-abeyance statute and the PCRA seems
promising and is certainly worth further consideration in an
appropriate setting.

ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring
in the judgment:
¶31 I concur in the judgment and in Part I of the opinion of
Justice Parrish. But I disagree with the balance of that opinion. The
issues it addresses in Part II are not properly before us, and that
portion of the opinion is thus improperly advisory. Accordingly, I

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A.C.J. LEE, concurring in part/concurring in the judgment

would affirm on the ground that the Post-Conviction Remedies Act
(PCRA) affords no right to relief to Meza because he is not
challenging a “conviction and sentence” in this case, supra ¶ 11,
without addressing Meza’s entitlement to relief on a petition for an
extraordinary writ, supra ¶ 19 & n.6, or a motion under Utah Rule of
Civil Procedure 60(b)(6), supra ¶ 23.
¶32 In reaching out to address the merits of a petition and
motion that were not filed by Meza or addressed in the briefing on
appeal, Justice Parrish proposes to resolve other issues of substantial
significance. She would hold, specifically, that (a) “the PCRA’s ‘sole
remedy’ provision,” Utah Code section 78B-9-102(1), is somehow
“inapplicable to him and does not foreclose us from addressing
other remedies beyond those provided in the PCRA,” supra ¶ 19 n.7;
(b) the constitution requires that a “remedy must exist” to give Meza
“a mechanism to challenge his alleged constitutional violation” of
his right to counsel, supra ¶ 21; and (c) our cases free a petitioner
seeking an extraordinary writ of a burden of proof of any of the
elements set forth in traditional common-law writs, substituting
instead an undefined principle of “flexibility,” supra ¶ 20 n.8.
¶33 The lead opinion’s analysis of these significant issues
strikes me as questionable. Because none of the issues was properly
preserved or briefed in this case, moreover, they should not be
resolved in this case.
¶34 The petition dismissed by the district court and presented
to us on appeal was a PCRA petition, plain and simple. Meza never
filed a petition for an extraordinary writ—not in the district court,
and not in our court. The district court, moreover, issued a decision
dismissing a PCRA claim. It never ruled on a petition for an
extraordinary writ because it was never asked to do so. The issue
was accordingly not preserved in the district court.1

1
None of the district court filings in the record make any
reference to Utah Rule of Civil Procedure 65B—our rule governing
extraordinary relief. And none of Meza’s filings includes a document
that asks—in form or substance—for the issuance of an
extraordinary writ. Justice Parrish does not contend otherwise.
Although she purports to see in Meza’s appellate briefing an implicit
invocation of this court’s power to issue an extraordinary writ, supra
¶ 21, Justice Parrish nowhere claims that Meza preserved the issue
(continued...)

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 MEZA v. STATE
A.C.J. LEE, concurring in part/concurring in the judgment

¶35 The same goes for the arguments on appeal. In their briefs
the parties have argued over the extent of the courts’ jurisdiction to
entertain Meza’s petition under the PCRA. That question has
encompassed two subsidiary issues—the proper construction of
Utah Code section 78B-9-104(1) (which authorizes the filing of a
petition by a “person who has been convicted and sentenced for a
criminal offense”), and whether the courts “retain inherent
constitutional authority to create common law exceptions” to the
limiting terms of the PCRA.
¶36 Meza’s briefs nowhere seek to invoke the power of this
court to issue an extraordinary writ. At most, he has asked us to
“exercise [our] constitutional authority to entertain [his] PCRA
petition.” (Emphasis added).2 That became even clearer at oral
argument. In response to questions from the bench, Meza’s counsel
conceded that he had not filed a petition for an extraordinary writ
and had nowhere set forth the legal or factual basis for issuance of
such a writ. As if to underscore the point, counsel explained his

1
(...continued)
by asking the district court to rule on a petition for extraordinary
writ.
2
Justice Parrish claims to “understand Mr. Meza’s argument”
differently. Supra ¶ 21. She says that the “entire crux” of Meza’s
argument was his invocation of our “‘inherent constitutional
authority to create common law exceptions to the PCRA.’” Supra
¶ 21. But the quoted sentence is an outlier in the briefing. And, more
importantly, even the quoted language is not an assertion of a right
to an extraordinary writ; it is simply a request that we exercise our
supposed “‘constitutional authority to create common law exceptions
to the PCRA.’” We have no such power, see infra ¶ 19–20, and even
the lead opinion declines to assert it.
The problem is evident in the lack of briefing on the issues the
lead opinion addresses. Nowhere in the parties’ briefs on appeal do
we see any argument at all on the elements of any extraordinary writ
that might be available to Meza, on the existence of an alternative
remedy (like a 60(b) motion), or on the supposed constitutional right
to a remedy (rendering the PCRA’s sole remedy provision
unconstitutional). These are all issues that Justice Parrish reaches out
to decide. This is not a matter of “interpret[ing] Mr. Meza’s
argument[s]” on appeal. Supra ¶ 22. It is a matter of providing a
roadmap for his success on remand. That is not our role.

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reasons for stopping short of filing such a petition—“We didn’t do
it in this case because the State has consistently said, ‘sorry, it doesn’t
work, you have to do PCRA.’” And the State, in response, noted that
it was not “prepared to respond to the extraordinary writ argument,
because Mr. Meza did not brief a petition for an extraordinary writ,
and he did not ask for that form of relief.”3
¶37 The availability of an extraordinary writ is thus a matter
not properly presented for our decision. Instead, we are asked to
decide only whether Meza’s claim is proper under the terms of the
PCRA, and whether we retain the power to establish an exception to
the terms of that statute.4 On the first issue, I would follow Justice
Parrish’s analysis. I would conclude that the PCRA means what it
says, and that Meza’s PCRA claim failed as a matter of law because
he is not a “person who has been convicted and sentenced for a
criminal offense.” See supra ¶¶ 14–18. On the second issue, I would
reject Meza’s argument as foreclosed by the plain language of the
PCRA and by our precedents.
¶38 By statute, a PCRA claim is “the sole remedy for any person
who challenges a conviction or sentence for a criminal offense.”
UTAH CODE § 78B-9-102(1) (emphasis added). And such remedy
“replaces all prior remedies for review, including extraordinary or
common law writs.” Id. In light of these clear, straightforward
limitations, our cases have repudiated the notion of a judicial
prerogative to create “common law exceptions” to the PCRA. We
embraced that prerogative for a time.5 But we have subsequently

3
During oral argument, members of the court appeared to
appreciate the problem—by noting that an opinion on the
availability of a writ that Meza had not sought would constitute an
“advisory opinion.”
4
Justice Parrish’s attempts to justify her approach to resolving
this case fall short. It cannot be said that we are simply “invok[ing]
our extraordinary writ authority to fashion a remedy in the wake of
an unremedied constitutional deficiency.” Supra ¶ 22. Meza has
neither briefed nor established any “constitutional deficiency,” and
the State has had no chance to respond to any such argument.
5
See, e.g., Tillman v. State, 2005 UT 56, ¶¶ 21–23, 128 P.3d 1123
(applying Hurst exceptions to the PCRA); Gardner v. Galetka, 2004 UT
42, ¶ 17, 94 P.3d 263 (same); Hurst v. Cook, 777 P.2d 1029, 1037 (Utah
(continued...)

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 MEZA v. STATE
A.C.J. LEE, concurring in part/concurring in the judgment

held that any such authority was overridden by the above-quoted
provisions, which were added to the PCRA by amendment in 2008.
See Taylor v. State, 2012 UT 5, ¶ 11 n.3, 270 P.3d 471; Carter v. State,
2012 UT 69, ¶ 23, 289 P.3d 542; Peterson v. Kennard, 2008 UT 90, ¶ 16
n.8, 201 P.3d 956. At least since our decision in Taylor, there can be
no question that we lack the authority to make “common law
exceptions” to the PCRA.
¶39 That is all that we need to say to affirm the decision of the
district court in this case. Because Meza has not filed a petition for
extraordinary relief, and the parties have not briefed the propriety
of such a petition on appeal, we should not opine on the merits of
such a petition. For that reason I cannot join Part II of the lead
opinion, which goes to some lengths to opine on the merits of a
petition that Meza did not file, see supra ¶ 21, to conclude that such
a petition should fail due to the availability of a motion under Utah
Rule of Civil Procedure 60(b)(6), see supra ¶¶ 23–26, and, in the
process, to opine on significant questions of constitutional law (as to
a supposed requirement that a “remedy must exist” for any “alleged
constitutional violation,” supra ¶ 21).
¶40 The lack of adversarial briefing on the issues explored in
part II of the lead opinion is troubling. We have no briefing, for
example, on the question of whether a “plain, speedy[,] and
adequate remedy is available” to Meza through a mechanism other
than a petition for extraordinary relief. UTAH R. CIV. P. 65B. Nor do
we have any briefing on the question of which if any of the common
law writs might best fit Meza’s case, or whether we may have the
authority to extend an established writ to fit the facts and
circumstances of this case. See supra ¶ 20 n.9 (rejecting the argument
that “Meza is not entitled to extraordinary relief unless he can
identify the ancient writ that provided the specific relief he seeks”).
And because no one has briefed these questions, we likewise lack
any briefing on the availability of the alternative remedy proposed
by Justice Parrish—of a motion to set aside a judgment under Utah
Rule of Civil Procedure 60(b)(6).
¶41 The notion of a constitutional requirement that a “remedy
must exist” for any “alleged constitutional violation,” supra ¶ 21, is

5
(...continued)
1989) (establishing common law exceptions to post-conviction
procedural bar).

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another matter that was not briefed by the parties. And this is a
substantial leap. Justice Parrish’s only authority for it is State v. Rees,
2005 UT 69, ¶ 14, 125 P.3d 874, but the quoted language from Rees is
by no means a holding that the constitution guarantees a judicial
remedy for any violation of its terms. Rees simply speaks of
“questions of what tool should be deployed to protect” a right for
which “no remedy exists in statute or rule.” Id. (emphasis added).
And the answer that the Rees opinion provides is not that a “remedy
must exist” as a constitutional requirement, but simply that
“extraordinary writs embody the procedure traditionally used to
protect such a right.” Id. That is uncontroversial. But it does not at all
support the notion that for every constitutional right there must be
a judicial remedy. American law, in fact, has long repudiated that
principle.6 I cannot concur in an opinion that sets aside longstanding

6
While Marbury v. Madison famously opined that for every right
there is a remedy, 5 U.S. (1 Cranch) 137, 163 (1803), that has not been
reality. Exceptions to this ideal are legion. See Richard H. Fallon, Jr.
& Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional
Remedies, 104 HARV. L. REV. 1731, 1784 (1991) (“Modern doctrines,
beyond any peradventure, depart decisively from the notion that the
Constitution requires effective remedies for all victims of
constitutional violations”). In fact, in Marbury itself the court
declined to fashion a remedy despite its conclusion that Marbury
had a statutory right that had been violated. See 5 U.S. at 154, 180.
And the doctrines limiting or altogether withholding a remedy when
there has been a constitutional violation are extensive: sovereign
immunity, see United States v. Testan, 424 U.S. 392, 400 (1976);
absolute immunity, see, e.g., Tenney v. Brandhove, 341 U.S. 367, 376,
379 (1951); qualified immunity, see Harlow v. Fitzgerald, 457 U.S. 800
(1982); exceptions to the Fourth Amendment’s exclusionary rule, see,
e.g., Davis v. United States, 131 S. Ct. 2419 (2011); the collateral review
exception to the Fourth Amendment, see Stone v. Powell, 428 U.S. 465
(1976); the harmless error doctrine, see, e.g., Chapman v. California, 386
U.S. 18 (1967); and the non-retroactivity principle of new law, see
Teague v. Lane, 489 U.S. 288 (1989). See also; John M. Greabe,
Constitutional Remedies and Public Interest Balancing, 21 WM. & MARY
BILL RTS. J. 857, 881–88 (2013); John C. Jeffries, Jr., The Right-Remedy
Gap in Constitutional Law, 109 YALE L.J. 87, 87–95 (1999). Other
limitations on the availability of a remedy for a constitutional
violation include the redressabilitly prong of injury-in-fact analysis
(continued...)

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 MEZA v. STATE
A.C.J. LEE, concurring in part/concurring in the judgment

precedent on an important question of constitutional law—least of
all in a case in which the question is not properly presented.
¶42 Our law has long recognized the authority of the
legislature to regulate the availability of and limitations on private
claims asserting violations of the constitution. Doctrines of
justiciability, political question, procedural bar, and statutes of
limitations have long limited the availability of judicial review of
constitutional claims. See supra ¶ 11 n.6. Without careful briefing on
the matter, we cannot lightly assume that the legislature exceeded its
authority in limiting review under the PCRA to challenges to a
“conviction or sentence for a criminal offense.” UTAH CODE § 78B-9-
102(1).
¶43 Nor can we avoid the question by asserting that this
provision is somehow “inapplicable and does not foreclose us from
addressing other remedies outside the PCRA.” Supra ¶ 19 n.7. The
whole point of the sole remedy provision is to prescribe a sole
remedy—to “replace[] all prior remedies for review, including
extraordinary or common law writs.” UTAH CODE § 78B-9-102(1).
Thus, the fact that “Mr. Meza does not challenge a conviction or a
sentence,” supra ¶ 19 n.6, does not make the provision
“inapplicable.” It forecloses his right to assert a claim. That was the
holding of the district court—and of part I of the lead opinion. We
should leave it at that. We should hold that Meza lacks a right to sue
under the PCRA, and leave for any future case the questions
whether he may seek an extraordinary writ or file a 60(b) motion
(and if he so claims, whether he has a constitutional right to any such
remedy).
¶44 Our rules of preservation are longstanding and well-
settled.7 And there are significant barriers to our resolution of issues

6
(...continued)
for standing, see, e.g., Linda R.S. v. Richard D., 410 U.S. 614 (1973); the
political question doctrine, see Luther v. Borden, 48 U.S. 1 (7 How.)
(1849); and statutes of limitations.
7
Hill v. Superior Prop. Mgmt. Servs., Inc., 2013 UT 60, ¶ 46, 321
P.3d 1054 (explaining how “[o]ur adversary system demands”
adherence to preservation doctrine); Patterson v. Patterson, 2011 UT
68, ¶ 15, 266 P.3d 828 (explaining how preservation doctrine furthers
“judicial economy” and “fairness” by ensuring that both the lower
(continued...)

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that are neither presented by a live controversy nor briefed by the
parties on appeal—barriers ranging from the constitutional (of
issuing advisory opinions)8 to the pragmatic (of deciding questions
without the benefit of adversary briefing).9
¶45 I can appreciate a sense of sympathy for the plight of Mr.
Meza. And I understand the impulse to preserve an avenue for relief
on his claim of ineffective assistance of counsel. But our role in this
matter is limited. As judges our job is to decide the issues before us
under the law as it stands. I would do so without reaching out to
resolve questions not properly presented.10

7
(...continued)
court and the opposing party have an opportunity to address all the
issues); 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801
(“[Preservation] puts the trial judge on notice of the asserted error
and allows for correction at that time in the course of the
proceeding.”).
8
Utah Transit Auth. v. Local 382 of the Amalgamated Transit Union,
2012 UT 75, ¶ 23, 289 P.3d 582 (“[W]hatever else the judicial power
clause may imply, it incorporates a prohibition on the issuance of
advisory opinions by our courts.”); see alsoGregory v. Shurtleff, 2013
UT 18, ¶ 73, 299 P.3d 1098 (Lee, J., concurring in part and dissenting
in part) (“[B]ecause the power we wield must be ‘judicial,’ we are
foreclosed from making law or announcing our views in an advisory
or other non-judicial posture.”).
9
City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1773–74
(2015) (declining to address an “important question” of whether
particular statutory language was applicable because resolution
would “benefit from briefing and an adversary presentation”);
United States v. Fruehauf, 365 U.S. 146, 157 (1961) (recognizing that
advisory opinions are prohibited, in part, because the issues “are not
pressed before the Court with that clear concreteness provided when
a question emerges precisely framed and necessary for decision from
a clash of adversary argument exploring every aspect of a
multifaceted situation embracing conflicting and demanding
interests”).
10
In light of my criticism of the lead opinion’s decision to reach
out to resolve issues not properly presented, I am in no position to
offer my own conclusive views. But I am dubious of at least one
(continued...)

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 MEZA v. STATE
A.C.J. LEE, concurring in part/concurring in the judgment

10
(...continued)
additional aspect of Justice Parrish’s opinion—its rejection of the
State’s argument that “Meza is not entitled to extraordinary relief
unless he can identify the ancient writ that provided the specific
relief he seeks.” Supra ¶ 20 n.8. I would be reluctant to read our cases
to have replaced the elements of common law writs with a general
principle of practical “flexibility.” Supra ¶ 20 n.8. Indeed, our
decision in State v. Barrett, which is cited by Justice Parrish, at least
arguably reinforces the viability of the elements of historical writs.
2005 UT 88, ¶ 11, 127 P.3d 682 (explaining that “the practice of
specifically listing each available common law writ has been
abandoned,” but emphasizing that our rule 65B “can be thought of
as a repository of all the extraordinary writs that, in the past, were
envisioned as separate and distinct proceedings,” and holding that
“[t]he fact that rule 65B has subsumed the common law writs does
not . . . change the reality that ‘a court must look to the nature of the
relief sought, the circumstances alleged in the petition, and the
purpose of the type of writ sought in deciding whether to grant
extraordinary relief’” (quoting Renn v. Utah State Bd. of Pardons, 904
P.2d 677, 683 (Utah 1995))). In any event, we should not decide this
important issue in the absence of a “clash of adversary argument” to
assist us in “exploring every aspect of a multifaceted situation.”
Fruehauf, 365 U.S. at 157.

20