2013 UT App 189
_________________________________________________________
THE UTAH COURT OF APPEALS
EVERADO COLLINS,
Plaintiff and Appellee,
v.
STATE OF UTAH,
Defendant and Appellant.
Per Curiam Decision
No. 20120664‐CA
Filed July 26, 2013
Third District, Salt Lake Department
The Honorable Randall N. Skanchy
No. 100922789
Hakeem Ishola and Aaron Tarin, Attorneys for
Appellee
John E. Swallow and Erin Riley, Attorneys for
Appellant
Before JUDGES ORME, DAVIS, AND MCHUGH.
PER CURIAM:
¶1 The State of Utah appeals the denial of its motion to dismiss
a petition for post‐conviction relief as untimely and the subsequent
grant of that petition, which vacated two 1996 convictions. This
case is before the court on the State’s motion to summarily reverse
both the denial of its motion to dismiss the petition as untimely and
the grant of post‐conviction relief.
¶2 Everado Collins pleaded guilty to felony drug charges and
was sentenced in 1996. After serving a jail term, he was deported.
Collins filed the underlying petition for post‐conviction relief in
2010, asserting that he received ineffective assistance from his trial
counsel based upon Padilla v. Kentucky, 559 U.S. 356 (2010). In
Collins v. State
Padilla, the United States Supreme Court held that the Sixth
Amendment requires an attorney for a criminal defendant to
provide advice about the risk of deportation arising from a guilty
plea. The State moved to dismiss the petition, arguing both that the
petition was untimely and that the rule announced in Padilla
should not be retroactively applied to Collins’s 1996 convictions.
The post‐conviction court concluded that the Padilla decision was
dictated by precedent existing when the 1996 convictions became
final and therefore the petition was timely filed under Utah’s
Post‐Conviction Remedies Act (PCRA) within one year of the
Padilla decision. See Utah Code Ann. § 78B‐9‐104(1)(f)(i) (LexisNexis
2012) (allowing post‐conviction relief to vacate a conviction if the
petitioner can prove entitlement to relief under a rule announced
by the United States Supreme Court after a conviction and sentence
became final on direct appeal and show that “the rule was dictated
by precedent existing at the time the petitioner’s conviction or
sentence became final”); see also id. § 78B‐9‐107(2)(f) (requiring a
petition to be filed within one year after “the date on which the
new rule described in Subsection 78B‐9‐104(1)(f) is established”).
After denying the motion to dismiss the petition as untimely and
holding an evidentiary hearing, the post‐conviction court granted
relief under Padilla and vacated Collins’s convictions. The State
moves for reversal of both the denial of its motion to dismiss the
post‐conviction petition as untimely and the subsequent grant of
post‐conviction relief.
¶3 When Collins filed his post‐conviction petition, it was an
open question whether Padilla applied retroactively to persons
whose convictions became final before Padilla was decided. Chaidez
v. United States, 133 S. Ct. 1103 (2013), resolved that issue. The
Chaidez decision states that “a case announces a new rule if the
result was not dictated by precedent existing at the time the
defendant’s conviction became final.” 133 S. Ct. at 1107. The United
States Supreme Court determined in Chaidez that “Padilla’s holding
that the failure to advise about a non‐criminal consequence could
violate the Sixth Amendment” announced a new rule that was not
dictated by existing precedent. See id. at 1111. Therefore, Collins
was not entitled to bring a post‐conviction petition under the
PCRA after Padilla because that decision was not based upon
20120664‐CA 2 2013 UT App 189
Collins v. State
precedent existing at the time his convictions became final. See
Collins v. State, 2013 UT App 182, ¶ 3; see also Utah Code Ann. §
78B‐9‐104(1)(f)(i). Furthermore, Collins was not entitled to post‐
conviction relief under Padilla because Chaidez held that Padilla
does not have retroactive application to convictions that became
final before Padilla was decided. See Chaidez, 113 S.Ct. at 1113.
¶4 Collins argues that there is a basis in Utah law for
retroactive application of the Padilla decision. This argument was
not raised before the post‐conviction court and is not appropriately
before this court. See id.; Winward v. State, 2012 UT 85, ¶ 9, 293 P.3d
259.
¶5 Collins also seeks a remand pursuant to rule 23B of the Utah
Rules of Appellate Procedure for a determination whether his
post‐conviction counsel was ineffective in failing to make an
alternative argument that Padilla could be applied retroactively as
a matter of Utah law. Under rule 23B, a party in a criminal case may
seek a remand for the purpose of creating a record regarding an
ineffective assistance of counsel claim under certain circumstances.
Utah R. App. P. 23B. The rule applies only to criminal cases. Id.
Post‐conviction proceedings are civil matters. Utah Code Ann.
§ 78B‐9‐102(1) (2012). There is no right to counsel in civil post‐
conviction proceedings. See Hutchings v. State, 2003 UT 52, ¶ 20, 84
P.3d 1150. Accordingly, there is no remand available in this case.
See Collins v. State, 2013 UT App 182, ¶ 5.
¶6 We reverse both the denial of the State’s motion to dismiss
the petition for post‐conviction relief as untimely and the
subsequent grant of post‐conviction relief vacating the 1996
convictions.
20120664‐CA 3 2013 UT App 189