Calder v. State

2022 UT App 67

THE UTAH COURT OF APPEALS

JASON SCOTT CALDER,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20200456-CA
Filed May 26, 2022

Fourth District Court, Provo Department
The Honorable Christine S. Johnson
No. 190400195

Nathan E. Burdsal and Hutch U. Fale,
Attorneys for Appellant
Sean D. Reyes and Erin Riley,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
JILL M. POHLMAN and RYAN D. TENNEY concurred.

HARRIS, Judge:

¶1 Jason Scott Calder, a therapist in his forties, pled guilty to
various offenses resulting from sexual conduct that he engaged in
with a sixteen-year-old client. Later, Calder filed a petition for
post-conviction relief, claiming that his convictions were the
result of ineffective assistance of counsel and that they violated
various other constitutional rights. The district court dismissed
Calder’s petition on summary judgment, concluding that Calder’s
attorney had not rendered ineffective assistance and that his other
constitutional challenges were procedurally barred. Calder now
appeals, and we affirm.
 Calder v. State

BACKGROUND 1

¶2 Calder was employed as a therapist at a facility that
described itself as a “residential treatment center and boarding
school for teenage girls.” In March 2017, when Calder was forty-
one years old, he began counseling sixteen-year-old Evelyn,2
whose parents specifically asked him to focus on “her low self-
esteem and her sexually addictive behaviors.” In one counseling
session, Evelyn told Calder that she was sexually attracted to him;
Calder told Evelyn that the attraction was mutual, but he stated
that he “could look but not touch.”

¶3 In later sessions, after Evelyn—apparently with Calder’s
encouragement—showed Calder her breasts, Calder crossed his
“boundary” and began to touch Evelyn both over and under her
clothing. Evelyn later recounted that, over time, the sessions “got
more and more physical” and involved “less and less therapy.”
Soon, Calder and Evelyn were performing oral sex on each other,
an event that Calder estimated happened “9 to 10 times, maybe
more.” Calder also brought a “vibrator” to the sessions, and on
several occasions inserted it or his fingers into Evelyn’s vagina.
During one of their last “counseling” sessions, while on a walk in
a secluded area, Calder and Evelyn had sexual intercourse. At
some point during this time, Calder learned that Evelyn had
written about their activity in her journal, and Calder instructed
her to blot out that information with a marker.

¶4 After details about his conduct came to light, Calder was
terminated from his position, and the State charged Calder with
seventeen crimes: one count of rape, five counts of object rape, five

1. “When reviewing a grant of summary judgment, we recite the
disputed facts in a light most favorable to the nonmoving party.”
Bryant v. State, 2021 UT App 30, n.2, 484 P.3d 440 (quotation
simplified).

2. A pseudonym.

20200456-CA 2 2022 UT App 67
 Calder v. State

counts of forcible sodomy, five counts of forcible sexual abuse,
and one count of obstructing justice.

¶5 Early in the proceedings, only about five weeks after
charges were filed, and on the advice of his attorney (Plea
Counsel), Calder pled guilty to five crimes: one count of rape, one
count of object rape, one count of forcible sodomy, one count of
forcible sexual abuse, and one count of obstructing justice. As part
of the plea agreement, Calder admitted that he had committed the
five crimes to which he pled guilty, including admitting that he
had “sexual intercourse with another person and did not have
[her] legal consent” because he occupied a “position of special
trust.” Also as part of the plea agreement, the State dismissed the
other twelve counts. Calder was later sentenced to prison.

¶6 Calder did not file a motion to withdraw his guilty plea,
nor did he file a direct appeal. 3 Instead, he later filed a petition for
post-conviction relief pursuant to the Post-Conviction Remedies
Act (PCRA), see Utah Code Ann. §§ 78B-9-101 to -110 (LexisNexis
2018 & Supp. 2021), and rule 65C of the Utah Rules of Civil
Procedure. In the memorandum supporting his petition, Calder
requested that his convictions be vacated, alleging that Plea
Counsel had rendered ineffective assistance and that he had been
denied various other constitutional protections.

¶7 In the section of his petition addressing his ineffective
assistance claims, Calder argued that—at least regarding his sex
offenses—he had been charged under the wrong statute. In

3. By mentioning the fact that Calder did not file a direct appeal
of his convictions, we do not mean to imply that the decision to
forgo a direct appeal was an unreasonable one. See Utah Code
Ann. § 77-13-6(2)(c) (LexisNexis 2017) (stating that “[a]ny
challenge to a guilty plea not made” before sentencing “shall be
pursued under” the PCRA); see also State v. Badikyan, 2020 UT 3,
¶ 17, 459 P.3d 967 (stating that “the Plea Withdrawal Statute cuts
off a defendant’s right to a direct appeal once sentencing is
announced” (quotation simplified)).

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 Calder v. State

particular, he asserted that, instead of facing charges for rape,
forcible sodomy, and forcible sexual abuse—first- and second-
degree felonies—he should have been charged with third-degree
felonies for engaging in “unlawful sexual conduct with a 16- or
17-year-old,” see Utah Code Ann. § 76-5-401.2 (LexisNexis 2017)
(hereinafter referred to as “the USC Statute”), 4 and that Plea
Counsel rendered ineffective assistance by failing to advise him
of the potential applicability of the USC Statute. Calder asserted
that, had Plea Counsel done so, he “would not have [pled] guilty
and would have insisted on going to trial.”

¶8 In a separate section of his petition, Calder asserted that his
sentence “denied him equal protection of the law,” and that the
statutes under which he was sentenced were “unconstitutionally
vague.” Regarding equal protection, Calder argued that his
constitutional rights were violated because he “was charged with
significantly greater crimes than similarly situated individuals
over the last five years.” Regarding vagueness, Calder asserted
that the statutory scheme was vague because his conduct
qualified as criminal under more than one statute, and he argued
that, in such a situation, he should have been convicted and
sentenced under the more lenient statute. In support of these
constitutional claims, Calder submitted an affidavit in which he
stated that, “[b]efore [he] pled guilty, [he] asked [Plea Counsel] to
investigate” similar cases in which individuals had been charged
under the USC Statute rather than under the more serious sex
offense statutes. But Calder alleged his constitutional claims as
direct claims—that is, nowhere in his petition did Calder assert
that Plea Counsel was ineffective for not bringing these
constitutional claims prior to entry of his guilty plea.

¶9 The State filed a motion for summary judgment, asking the
district court to deny Calder’s petition in its entirety. In its motion,

4. This section of the Utah Code has been materially amended in
the time since Calder entered his guilty pleas. We therefore cite
the version of the statute in effect at the time of the actions giving
rise to this appeal.

20200456-CA 4 2022 UT App 67
 Calder v. State

the State argued that Plea Counsel had not rendered ineffective
assistance by failing to inform and advise Calder regarding the
USC Statute because it was by its own terms inapplicable, and
because Calder’s actions “amounted to rape, object rape, forcible
sodomy, and forcible sexual abuse.” The State further argued that
Calder’s other constitutional claims—stated as direct claims—
were procedurally barred under the PCRA because they could
have been raised in the previous case, but were not.

¶10 After oral argument, the district court granted the State’s
motion. In its ruling, the court concluded, among other things,
that Plea Counsel was not constitutionally ineffective for advising
Calder to plead guilty. Specifically, the court determined that
Calder’s plea agreement—pleading guilty to five counts in
exchange for the dismissal of twelve—was favorable and that
Calder’s argument that he should have instead been charged
under the USC Statute was “without merit.” The court also ruled
that Calder’s other constitutional claims were procedurally
barred. In so ruling, the court determined that, because Calder
acknowledged that he had been aware, during the underlying
criminal case, of similarly situated individuals who had been
charged under the USC Statute rather than the more serious
statutes, he “had the information at hand—before he [pled]
guilty—to levy a constitutional challenge based upon vagueness,
Equal Protection, or Due Process.” In light of its summary
judgment ruling, the court dismissed Calder’s PCRA petition.

ISSUE AND STANDARD OF REVIEW

¶11 Calder now appeals the district court’s order dismissing
his petition on summary judgment. “A [post-conviction] court
should grant summary judgment only when, viewing all facts and
reasonable inferences therefrom in the light most favorable to the
nonmoving party, there is no genuine issue as to any material fact
and the moving party is entitled to a judgment as a matter of law.”
Patterson v. State, 2021 UT 52, ¶ 27, 504 P.3d 92 (quotation
simplified). “We review a post-conviction court’s grant of

20200456-CA 5 2022 UT App 67
 Calder v. State

summary judgment for correctness, granting no deference to the
lower court.” Bryant v. State, 2021 UT App 30, ¶ 9, 484 P.3d 440
(quotation simplified).

ANALYSIS

¶12 The PCRA offers a “remedy for any person who challenges
a conviction or sentence for a criminal offense and who has
exhausted all other legal remedies, including a direct appeal.”
Utah Code Ann. § 78B-9-102(1)(a) (LexisNexis 2018). A PCRA
petitioner may raise claims asserting that “the conviction or
sentence” was obtained or imposed in an unconstitutional
manner; these claims may include claims for ineffective assistance
of counsel. Id. § 78B-9-104(1)(a), (b), (d). A petitioner may not,
however, bring claims under the PCRA that “could have been but
[were] not raised at trial or on appeal,” unless “the failure to raise
that ground was due to ineffective assistance of counsel.” Id.
§ 78B-9-106(1)(c), (3)(a). As noted, Calder brought a petition
challenging his conviction and sentence under the PCRA, and the
district court dismissed that petition on summary judgment.

¶13 Calder challenges the court’s summary judgment order
and, in connection with that challenge, he asks us to consider two
issues. First, he asserts that the court erred when it concluded, as
a matter of law and undisputed fact, that Plea Counsel did not
render constitutionally ineffective assistance. Second, he argues
that the court erred when it concluded that his other
constitutional claims were procedurally barred under the PCRA.
We address Calder’s arguments in turn.

I. Ineffective Assistance of Counsel

¶14 In his PCRA petition, Calder asserted that Plea Counsel
rendered ineffective assistance. Specifically, he alleged that Plea
Counsel “failed to provide significant legal advice to him”
regarding the potential applicability of the USC Statute, which—
if applicable—would have resulted in convictions for third-

20200456-CA 6 2022 UT App 67
 Calder v. State

degree felonies rather than more serious offenses. In addition,
Calder claimed that, if Plea Counsel had better informed him
about the USC Statute, he “would not have [pled] guilty and
would have insisted on going to trial.” And he continues to
advance that same argument on appeal, asserting in his brief that
he “would have never accepted a guilty plea if [Plea Counsel] had
simply explained the applicability of” the USC Statute.

¶15 We begin our analysis with a general discussion of the USC
Statute, followed by a more specific discussion of a statutory
conundrum Calder identifies. Thereafter, we turn to the merits of
Calder’s claim that the court erred by denying his ineffective
assistance claim on summary judgment.

A. The USC Statute

¶16 The USC Statute’s basic aim—to criminalize, as no higher
than third-degree felonies, “unlawful sexual conduct with”
sixteen- and seventeen-year-olds, see Utah Code Ann. § 76-5-
401.2(2)(a), (4), (5) (LexisNexis 2017)—is straightforward, but the
statute itself is quite complex, especially in the way it interacts
with other sex offense statutes. It was amended in 2018, but at the
time of Calder’s 2017 sexual activity with Evelyn, the USC Statute
defined “sexual conduct” as one of four things:

(1) “sexual intercourse”;

(2) “any sexual act . . . involving the genitals of one
person and the mouth or anus of another person”;

(3) causing “the penetration, however slight, of the
genital or anal opening . . . by any foreign object,
substance, instrument, or device . . . with the intent
to cause substantial emotional or bodily pain to any
person or with the intent to arouse or gratify the
sexual desire of any person”; and

(4) touching “the anus, buttocks or any part of the
genitals . . . or touch[ing] the breast of a female . . . ,

20200456-CA 7 2022 UT App 67
 Calder v. State

or otherwise tak[ing] indecent liberties . . . , or
caus[ing] a minor to take indecent liberties with the
actor or another person, with the intent to cause
substantial emotional or bodily pain to any person
or with the intent to arouse or gratify the sexual
desire of any person.”

Id. § 76-5-401.2(b). Notably, these are the same definitions, at least
regarding the particulars of the sexual conduct, that are used in
the statutes criminalizing rape, forcible sodomy, object rape, and
forcible sexual abuse. See id. § 76-5-402(1) (rape); id. § 76-5-403(1)
(forcible sodomy); id. § 76-5-402.2(1) (object rape); id. § 76-5-404(1)
(forcible sexual abuse). The USC Statute therefore criminalizes the
same physical acts as Utah’s statutes regarding rape, forcible
sodomy, object rape, and forcible sexual abuse. The main
difference between the USC Statute and the more serious sex
offense statutes is that the USC Statute does not require the State
to prove nonconsent, while the more serious statutes all require
the State to prove that the conduct in question occurred “without
the victim’s consent.” See, e.g., id. § 76-5-402(1) (defining “rape” as
“sexual intercourse with another person without the victim’s
consent”). Thus, the USC Statute criminalizes—but as no higher
than a third-degree felony—even apparently consensual sexual
conduct in certain circumstances.

¶17 For the USC Statute to apply, however, certain conditions
must be present, three of which are notable here. First, the sexual
conduct must involve a particular type of “minor,” a term the USC
Statute defines as “a person who is 16 years of age or older, but
younger than 18 years of age, at the time [of] the sexual conduct”
in question. Id. § 76-5-401.2(1). Evelyn was sixteen years old at the
time of the relevant sexual conduct, and therefore this
requirement is met.

¶18 Second, the other party involved in the sexual conduct
must meet at least one of three criteria. That person must be either
(a) ten or more years older than the minor; (b) between seven and
nine years older than the minor and must know or reasonably

20200456-CA 8 2022 UT App 67
 Calder v. State

should know the minor’s age; or (c) a person who, regardless of
age difference, “holds a relationship of special trust as an adult
teacher, employee, or volunteer, as described in” Utah’s sexual
abuse of a child statute. See id. § 76-5-401.2(2)(a) (referring to Utah
Code Ann. § 76-5-404.1(1)(c)(xix)). The parties both agree—as
discussed later, infra ¶¶ 22–23 and notes 5–6—that Calder fits
within the third criterion (an employee holding a position of
special trust), although they take different positions with regard
to the basis for and implications of that. Additionally, there is no
question that Calder fits within the first criterion, because he is
more than ten years older than Evelyn. Therefore, this
requirement is also met.

¶19 Third, the USC Statute applies only “under circumstances
not amounting to” rape, forcible sodomy, object rape, or forcible
sexual abuse. See id. § 76-5-401.2(2)(a), (3). Thus, if the State can
prove nonconsent, then the conduct meets the requirements of the
more serious sex offense statutes, and by definition does not fall
within the ambit of the USC Statute. Prosecutors who believe they
can prove nonconsent may charge a defendant—whose conduct
otherwise fits within the USC Statute—under the more serious
statutes, and may view the USC Statute as providing an avenue
for conviction of a lesser-included offense in the event the
factfinder concludes that the State has failed to prove nonconsent.

¶20 The State asserts that, under the circumstances of this case,
nonconsent is present as a matter of law, regardless of whether
Evelyn consented to the sexual activity as a matter of fact, and that
therefore the USC Statute cannot—by its terms—apply here. The
State’s assertion is correct.

¶21 Utah’s consent statute “provides that a sexual act ‘is
without consent of the victim under any of the following
circumstances,’ and then lists twelve specific situations” that
constitute nonconsent as a matter of law. See State v. Mottaghian,
2022 UT App 8, ¶ 36, 504 P.3d 773 (quoting Utah Code Ann. § 76-
5-406), petition for cert. filed, April 13, 2022 (No. 20220349). The
existence of many of the listed situations depends on the specific

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facts of the sexual activity in question, including situations where
“the victim expresses lack of consent through words or conduct,”
where “the actor overcomes the victim through actual force or
violence,” or where “the actor knows the victim is unconscious.”
See Utah Code Ann. § 76-5-406(1), (2), (5) (LexisNexis 2017). But
the existence of two of the listed situations does not at all depend
on the specific facts of the sexual activity in question. Under the
statute, consent can never be present, regardless of the actual facts
of the encounter, if “the victim is younger than 14 years of age,”
id. § 76-5-406(9), or if “the victim is younger than 18 years of age”
and the defendant “occupied a position of special trust in relation
to the victim as defined in” Utah’s sexual abuse of a child statute,
id. § 76-5-406(10) (referring to Utah Code Ann. § 76-5-404.1).

¶22 Utah’s sexual abuse of a child statute, in turn, defines
“position of special trust.” See id. § 76-5-404.1(1)(c). That statute
lists over twenty different categories of people who, as a matter of
law, are considered to hold positions of special trust in relation to
another individual with whom that person has sexual contact. Id.
For instance, the statute declares that parents, grandparents,
aunts, uncles, guardians, babysitters, coaches, and religious
leaders all occupy positions of special trust. Id. As relevant here,
the statute also declares that “a counselor” occupies a position of
special trust, id. § 76-5-404.1(c)(vii), as does “a teacher or any other
person employed by or volunteering at a public or private
elementary school or secondary school, and who is 18 years of age
or older,” id. § 76-5-404.1(c)(xix).

¶23 Regardless of whether Calder qualifies as a “person
employed by . . . [a] secondary school,” 5 see id., Calder was

5. Whether the facility where Calder worked and where Evelyn
was in attendance qualifies as a “school” (as the term is used in
Utah Code section 76-5-404.1(1)(c)(xix)) occupied much of the
district court’s attention in its ruling, and occupies much of
Calder’s attention in his opening brief. We acknowledge the
strength of Calder’s argument that the facility was in fact a
(continued…)

20200456-CA 10 2022 UT App 67
 Calder v. State

unquestionably Evelyn’s “counselor,” and therefore occupied a
position of special trust in relation to her.6 For this reason alone,
the State is correct when it asserts that the circumstances
presented here fit within the more serious sex offense statutes,
and therefore by definition do not fit within the USC Statute. For
instance, the rape statute requires the State to prove that Calder

“school,” but the issue is ultimately irrelevant to our analysis. As
noted here, Calder—as Evelyn’s counselor—occupied a position
of special trust in relation to Evelyn even if the facility was not a
school. And as we explain below, in Part I.C, even assuming that
any linguistic issues with the statutory scheme may have
somehow been of potential benefit to Calder, his ineffective
assistance claim nevertheless fails due to his failure to articulate
what specific meaningful steps Plea Counsel should have taken
beyond merely explaining to him the potential applicability of the
USC Statute.

6. In the charging document filed in the underlying criminal case,
the State asserted that Calder occupied a position of special trust
because he “was [Evelyn’s] counselor/therapist.” In his written
plea statement, Calder did not contest that assertion, admitting
that he held a “position of special trust” regarding Evelyn,
although he did not specify the grounds upon which that
admission was based. The presentence report additionally
referred to Calder as “a counselor and therapist,” and Calder has
not (to our knowledge) taken issue with that characterization. In
the PCRA case, the State asserted as an undisputed fact that
Calder was Evelyn’s “therapist,” an assertion Calder did not
contest. In its summary judgment ruling, the district court stated
that Calder “admits that he was [Evelyn’s] counselor and
therapist.” On appeal, Calder does not take issue with this portion
of the district court’s summary judgment ruling, nor does he
attempt to draw any material distinction between a “counselor”
and a “therapist.” We therefore consider it undisputed that Calder
was Evelyn’s “counselor” as that term is used in the sexual abuse
of a child statute. See Utah Code Ann. § 76-5-404.1(1)(c)(vii)
(LexisNexis 2017).

20200456-CA 11 2022 UT App 67
 Calder v. State

had sexual intercourse with Evelyn without her consent. See id.
§ 76-5-402(1). Calder admits that he had sexual intercourse with
Evelyn, and he does not contest the fact that he did so while
occupying a position of special trust in relation to her by virtue of
his status as her counselor, a fact that—by statutory definition—
means that Evelyn could not have legally consented to the sexual
activity. Accordingly, the elements of rape are met. And a similar
analysis obtains with respect to forcible sodomy, object rape, and
forcible sexual abuse, because Calder committed all the acts in
question while acting as Evelyn’s counselor. For these reasons, we
agree with the State’s assertion that, because nonconsent is
present here as a matter of law, the circumstances of this case fit
within the more serious sex offense statutes, and therefore—by
definition—do not fit within the USC Statute.

B. The Potential Statutory Inconsistency

¶24 Without taking direct issue with any of the foregoing, 7
Calder identifies a potential flaw in the statutory scheme, and
asserts that this flaw should inure to his benefit under rules of
statutory interpretation and lenity. Calder asserts that the third
category of persons to whom the USC Statute purportedly
applies—persons holding “a relationship of special trust as an
adult teacher, employee, or volunteer, as described in” the sexual
abuse of a child statute, see id. § 76-5-401.2(2)(a)(iii)—is a null set,
because anyone who qualifies under that category will also, at the
same time, meet the criteria of the more serious sex offense
statutes, an eventuality which, by statutory definition, removes
that person’s case from the ambit of the USC Statute.

¶25 Calder’s assertion is correct: the third category of persons
to whom the 2017 version of the USC Statute purportedly applies

7. Indeed, Calder conceded, during oral argument before this
court, that his conduct “clearly” fits the statutory elements of the
more serious sex offense statutes.

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 Calder v. State

does indeed appear to represent a null set. 8 Because the statutory
definition of “relationship of special trust” used in the USC
Statute is the same one used in the nonconsent statute, compare id.
§ 76-5-401.2(2)(a)(iii), with id. § 76-5-406(10), and id. § 76-5-
404.1(1)(c)(xix), any person who falls into the third category of the
USC Statute will be unable to resist any assertion that the minor
could not have legally consented to the sexual activity. Such
persons will always be subject to prosecution under the more
serious sex offense statutes, and therefore—because the USC
Statute, by its terms, does not apply under circumstances
amounting to one of the more serious crimes—will not fall within
the purview of the USC Statute. 9

8. The State has been unable to present any hypothetical set of
facts in which a person would fall into the third category of people
set forth in the USC Statute yet would not also simultaneously
meet the criteria of the more serious sex offense statutes.

9. In 2018, perhaps in recognition of this problem, our legislature
deleted the provision in the USC Statute that previously
purported to apply that statute to individuals who held a
“relationship of special trust” in relation to the minor. See
Coordinated Penalties for Sexual Abuse, ch. 394, § 4, 2018 Utah
Laws 2681, 2682 (deleting subsection (2)(a)(iii) from Utah Code
Ann. § 76-5-401.2). After the 2018 amendment, the USC Statute
applies only to persons who are (a) ten or more years older than
the minor, or (b) between seven and nine years older than the
minor and who know or reasonably should know the minor’s age.
See Utah Code Ann. § 76-5-401.2(2)(a) (LexisNexis Supp. 2021). At
the same time, however, our legislature created a new sentencing
enhancement statute providing that any person convicted under
the USC Statute, and who “held a position of special trust” in
relation to the minor, “may be subject to an enhanced penalty.”
See id. § 76-3-203.13 (LexisNexis Supp. 2021). While the 2018
amendments do appear to have fixed the problem identified by
Calder as applied directly to the USC Statute, it appears to us as
(continued…)

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 Calder v. State

though the sentencing enhancement statute—at least from a pure
statutory interpretation standpoint (leaving aside, for present
purposes, situations involving creative plea bargains in which
parties are willing to indulge a legal fiction)—applies to no one:
anyone holding a “position of special trust” will have committed
rape (or one of the other more serious sexual offenses) rather than
unlawful sexual conduct, because the sexual activity in question
will, as a matter of law, have been nonconsensual. As noted,
where the offense constitutes rape (or one of the other more
serious sex offenses), the offense by definition does not constitute
unlawful sexual conduct. See id. § 76-5-401.2(2)(a) (stating that the
USC Statute applies only in “circumstances not amounting to”
any of the more serious sexual offense crimes).
And, for what it’s worth, we note that a similar problem
may be present in the statute criminalizing eight different
categories of sexual activity occurring between adolescents. See id.
§ 76-5-401.3 (LexisNexis Supp. 2021) (the Adolescent Statute).
Like the USC Statute, the Adolescent Statute does not require the
State to prove nonconsent. See id. And the Adolescent Statute, like
the USC Statute, makes clear that it does not apply under
circumstances amounting to rape (or other serious sex offenses).
See id. § 76-5-401.3(1)(b). The categories set forth in the Adolescent
Statute are based on the relative ages of the respective
participants, with higher penalties (third-degree felonies) for
situations in which a seventeen-year-old engages in sexual
activity with a twelve- or a thirteen-year-old, see id. § 76-5-
401.3(2)(a), and lower penalties (misdemeanors) as the age
difference between the minors narrows, see id. § 76-5-401.3(2)(h)
(making it a class C misdemeanor for a fourteen-year-old to
engage in sexual activity with a thirteen-year-old). Seven of the
eight categories set forth in the Adolescent Statute describe
conduct in which the younger participant is less than fourteen
years of age. See id. § 76-5-401.3(2)(a)–(d), (f)–(h). But under Utah’s
nonconsent statute, a person “younger than 14 years of age”
cannot legally consent to sexual activity, see id. § 76-5-406(2)(i)
(LexisNexis Supp. 2021), and therefore any person—even another
(continued…)

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 Calder v. State

¶26 After identifying this statutory conundrum, Calder urges
us to interpret the USC Statute in a different way, one that he
argues would give meaning to the third category of persons listed
in that statute. Specifically, Calder asserts that the exclusionary
language in the USC Statute—stating that it does not apply under
circumstances “amounting to” any of the more serious sex
offenses—should be “narrowly construed” to foreclose
application of the USC Statute only in cases where the minor
“does not factually consent.” Under this proposed interpretation,
the USC Statute would apply—notwithstanding the State’s ability
to prove a more serious sexual offense—whenever the State’s
method of proving nonconsent was one of the two “legal”
methods set out in the consent statute. See id. § 76-5-406(9), (10).
Calder asserts that this interpretation is required by rules of
construction requiring us to “give every word meaning and effect,
and [to] avoid any interpretation that renders parts or words in a
statute inoperative or superfluous.” (Citing In re West Side Prop.
Assocs., 2000 UT 85, ¶ 31, 13 P.3d 168 (Howe, C.J., dissenting).)
And Calder asserts that the rule of lenity requires us to interpret
the statute in the manner most favorable to him. See State v.
Rasabout, 2015 UT 72, ¶ 22, 356 P.3d 1258 (“The rule of lenity
requires that we interpret an ambiguous statute in favor of lenity
toward the person charged with criminal wrongdoing.”).

¶27 But given Calder’s acknowledgement that his actions fit
within the more serious sex offense statutes, even if we were—for
the sake of argument—to interpret the USC Statute in the manner
Calder urges, that would at most create a situation in which
Calder’s conduct fits within two statutes rather than just one. Such
situations do, of course, raise concerns. Indeed, our supreme court

adolescent—engaging in sexual activity with a twelve- or
thirteen-year-old would seem, under statutory definition, to have
committed a more serious sex offense, in which event the
Adolescent Statute, by its own terms, has no application.
The issues described in this footnote may warrant
legislative attention, to the extent that the provisions of these
statutes do not reflect legislative intent.

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 Calder v. State

has held that “where there is doubt or uncertainty as to which of
two punishments is applicable to an offense an accused is entitled
to the benefit of the lesser.” See State v. Shondel, 453 P.2d 146, 148
(Utah 1969); see also State v. Jeffries, 2009 UT 57, ¶ 15, 217 P.3d 265
(stating that, under the Shondel doctrine, “where two statutes
define exactly the same penal offense, a defendant can be
sentenced only under the statute requiring the lesser penalty”
(quotation simplified)); State v. Fedorowicz, 2002 UT 67, ¶ 48, 52
P.3d 1194 (explaining “the purpose of the Shondel doctrine,” and
stating that “[e]qual protection of the law guarantees like
treatment of all those who are similarly situated” and that,
therefore, “the criminal laws must be written so that there are
significant differences between offenses and so that the exact
same conduct is not subject to different penalties depending upon
which of two statutory sections a prosecutor chooses to charge”
(quotation simplified)); State v. Bryan, 709 P.2d 257, 263 (Utah
1985) (concluding that, for the Shondel doctrine to apply, the two
statutes in question must be “wholly duplicative as to the
elements of the crime”).

¶28 But Calder brings these issues to us in the context of a
PCRA claim in which he alleges ineffective assistance of counsel,
a reality that requires us to examine these issues through the lens
of the specific ineffective assistance claims he raises. And after
assessing those claims, we conclude that Calder has not carried
his burden of demonstrating that Plea Counsel rendered
constitutionally ineffective assistance.

C. Calder’s Specific Ineffective Assistance Claim

¶29 To establish that Plea Counsel rendered constitutionally
ineffective assistance, Calder must show both (1) that Plea
Counsel’s performance was deficient, in that it “fell below an
objective standard of reasonableness,” and (2) that this deficient
performance “prejudiced the defense” such that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); accord

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 Calder v. State

State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350; State v. Ray, 2020 UT
12, ¶ 24, 469 P.3d 871. “A defendant must satisfy both parts of this
test in order to successfully establish ineffective assistance.” State
v. Whytock, 2020 UT App 107, ¶ 26, 469 P.3d 1150. Thus, “it is
unnecessary for a court to address both components of the inquiry
if we determine that a defendant has made an insufficient
showing on one.” Id. (quotation simplified).

¶30 To demonstrate prejudice in the context of an ineffective
assistance claim related to a guilty plea, “the defendant must
show that there is a reasonable probability that, but for counsel’s
errors, he would not have [pled] guilty and would have insisted
on going to trial,” Hill v. Lockhart, 474 U.S. 52, 59 (1985) (quotation
simplified), and “that a decision to reject the plea bargain would
have been rational under the circumstances,” Padilla v. Kentucky,
559 U.S. 356, 372 (2010); accord Ramirez-Gil v. State, 2014 UT App
122, ¶ 8, 327 P.3d 1228.

¶31 The ineffective assistance claim Calder articulated in his
PCRA petition is relatively narrow. In the petition itself, Calder
stated only that Plea Counsel “failed to provide significant legal
advice to him” and “failed to undertake any basic legal analysis
of the charges” against him. In the memorandum supporting his
petition, Calder asserted that he should have been charged under
the USC Statute, and that Plea Counsel should have further
“investigate[d]” the applicability of the USC Statute and
“discussed this nuance of the law” with him prior to his plea. He
further asserted that Plea Counsel should have done more to find
additional information about similarly situated individuals who,
Calder claims, were charged under the USC Statute, and that Plea
Counsel should have “raised this defense.”

¶32 But Calder is remarkably nonspecific about exactly what
he would have done differently had Plea Counsel better explained
the statutory conundrum to him, or exactly how Plea Counsel
should have “raised this defense.” In his petition and
accompanying memorandum, Calder offered no specifics in this
regard. In his memorandum opposing the State’s summary

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 Calder v. State

judgment motion, Calder identified, by name, another individual
who Calder asserted was similarly situated—a teacher accused of
sexual activity with students—and explained that, in the teacher’s
case, her attorney had filed a “motion to amend” her charges to
third-degree felonies in light of the USC Statute; Calder attached
a copy of the teacher’s motion as an exhibit to his memorandum.
Examination of that exhibit reveals that the teacher’s attorney
cited the Shondel line of cases and attempted to mount a legal
argument that, in her case, a prosecution for rape (rather than for
unlawful sexual conduct) would be improper. But Calder
mentioned the teacher’s motion only in passing, and made no
effort to meaningfully brief Shondel issues in connection with the
State’s summary judgment motion. Even on appeal, Calder does
not brief any Shondel issues, failing to cite Shondel at all in his
opening brief and only in passing in his reply brief.

¶33 This level of attention was inadequate to allow the district
court a meaningful opportunity to evaluate any Shondel issues.
Analysis of whether a prosecution violates the principles
identified in Shondel is nuanced and complicated. See generally
State v. Ainsworth, 2017 UT 60, ¶¶ 22–31, 423 P.3d 1229. In order
for Shondel to apply, the two statutes in question must be “wholly
duplicative as to the elements of the crime,” State v. Bryan, 709
P.2d 257, 263 (Utah 1985), and must “proscribe the exact same
conduct,” State v. Jeffries, 2009 UT 57, ¶ 15, 217 P.3d 265. While we
appreciate the issues Calder has raised, and recognize that
problems may arise if prosecutors are given unfettered discretion
to charge identical conduct under different statutes, in the absence
of more fulsome briefing on the question—before both the district
court and this court—we remain less than fully convinced that the
specific facts of this case present us with a Shondel problem. In
particular, and given Shondel’s requirement that the two statutes
be “wholly duplicative,” see Bryan, 709 P.2d at 263, Calder makes
no effort to discuss the fact that he occupied a position of special
trust in relation to Evelyn by virtue of his status as her counselor,
and that he was thus eligible for prosecution under the more
serious sex offense statutes regardless of whether he also fit within
the third category of persons listed in the USC Statute. At a

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 Calder v. State

minimum, Calder has not borne his burden of persuasion on that
point. And this shortcoming is ultimately fatal to Calder’s
ineffective assistance claim.

¶34 In order to demonstrate that he was prejudiced by Plea
Counsel’s advice regarding (and actions prior to) the decision to
enter into the plea agreement, Calder must convince us that there
exists “a reasonable probability that, but for counsel’s errors, he
would not have [pled] guilty and would have insisted on going to
trial.” See Hill, 474 U.S. at 59 (quotation simplified). But Calder
cannot show any such reasonable probability, unless he can first
demonstrate that it was reasonably probable that competent
counsel would have somehow succeeded in getting Calder’s
charges reduced from first- and second-degree felonies (under the
more serious sex offense statutes) to third-degree felonies (under
the USC Statute). In the absence of such a reduction, Calder’s plea
deal was, in our view, quite favorable: he had admitted to the
sexual activity in question and the State could prove nonconsent
as a matter of law due to his status as Evelyn’s counselor, and the
State nevertheless agreed to dismiss twelve of the seventeen
counts. Calder simply has not shown that a reasonable attorney
would have advised him not to take that deal under those
circumstances, nor has he shown that there is a reasonable
probability that he would not have taken that deal.

¶35 Certainly, if Calder were able to show that a reasonable
attorney, acting competently, would have likely succeeded in
persuading either the State or the court to reduce the seventeen
counts to third-degree felonies, thus lowering the starting point
for plea negotiations, the situation may well be different. In an
alternate universe in which Calder was facing seventeen third-
degree felonies, it may not have been reasonably likely or rational
for him to have pled guilty to five first- and second-degree
felonies. But Calder did not inhabit that universe, because he has
not carried his burden of demonstrating that the State was
required—by Shondel or any other legal principle or doctrine—to
charge him under the USC Statute rather than the more serious
sex offense statutes. Given the realities of Calder’s situation, it

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 Calder v. State

would have been irrational for him to have rejected the terms of
the plea deal and to have insisted on going to trial.

¶36 For these reasons, Calder’s ineffective assistance claim fails
for lack of prejudice. On this basis, we conclude that the district
court did not err when it rejected Calder’s ineffective assistance
claims on summary judgment.

II. Other Constitutional Claims

¶37 Calder next argues that the district court erred when it
concluded that his other constitutional claims (raising equal
protection and vagueness issues) in relation to the USC Statute
were procedurally barred under the PCRA. As noted above, the
PCRA “specifies that a person is not eligible for relief if the
petition is based upon any ground that . . . could have been but
was not raised at trial or on appeal.” Gordon v. State, 2016 UT App
190, ¶ 29, 382 P.3d 1063 (quotation simplified). “This rule applies
to all claims, including constitutional questions.” Id. (quotation
simplified). And our case law demonstrates “that a defendant
‘could have’ raised a claim when he or his counsel is aware of the
essential factual basis for asserting it.” Pinder v. State, 2015 UT 56,
¶ 44, 367 P.3d 968. The district court dismissed Calder’s
constitutional claims on the basis that Calder could have raised
them in the previous case.

¶38 Calder challenges the district court’s ruling on two
grounds. First, he argues that he did not have a sufficient factual
basis to assert these claims in the previous case. With regard to his
vagueness claim, his challenge fails for the simple reason that
Calder himself asserts, in his brief, that the applicable statutes are
“obviously vague.” Calder does not set forth any facts that he did
not know at the time, but knows now, that would allow him to
proceed with a vagueness claim.

¶39 Calder’s equal protection claim is grounded in the notion,
discussed to some extent above, that there existed other similarly
situated individuals—teachers or employees at secondary

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 Calder v. State

schools—who engaged in sexual activity with sixteen- or
seventeen-year-olds and were prosecuted under the USC Statute
instead of the more serious sex offense statutes. But Calder
acknowledges that he was aware of at least some of these other
cases prior to entry of his guilty plea; indeed, in an affidavit
attached to his petition, Calder stated that, before he pled guilty,
he informed Plea Counsel of at least one such similar case. And
Calder acknowledges that, after entering his plea but before
sentencing—when he could have filed a motion to withdraw his
plea, see Utah Code Ann. § 77-13-6 (LexisNexis 2017)—he learned
about another similarly situated individual who was charged
under the USC Statute instead of under the more serious sex
offense statutes. Thus, we conclude that Calder had a sufficient
factual basis, prior to his sentencing, to bring claims sounding in
equal protection and vagueness.

¶40 Second, in his reply brief Calder notes—correctly—that the
PCRA exempts ineffective assistance claims from its rule that
claims are barred if they could have been raised earlier, and he
attempts to cast his equal protection and vagueness claims as
ineffective assistance claims. See Jones v. State, 2020 UT App 125,
¶ 32, 473 P.3d 1190 (stating that “a claim in a post-conviction
petition that could have been but was not raised at trial or on
appeal is not barred if the failure to raise it was due to ineffective
assistance of counsel” (quotation simplified)). But Calder did not
state these claims as ineffective assistance claims in his PCRA
petition, and he did not appear to argue them that way in his
opening brief. 10 Certainly, the district court did not interpret his

10. Calder’s opening brief is, at a minimum, less than clear about
whether he intends to argue his equal protection and vagueness
claims through the lens of ineffective assistance of counsel. It is
not until his reply brief that Calder explicitly states that his
constitutional claims “are all made through the lens of ineffective
assistance of counsel.” That argument is therefore waived. See
State v. Johnson, 2017 UT 76, ¶ 16, 416 P.3d 443 (“When a party fails
to raise and argue an issue on appeal, or raises it for the first time
(continued…)

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 Calder v. State

constitutional claims as ineffective assistance claims. Had Calder
cast his constitutional claims that way from the outset—and
alleged in his petition that Plea Counsel was ineffective for not
bringing constitutional claims—we might be presented with a
different situation. But our review of the record reveals that
Calder did not plead his claims that way. To be sure (as discussed
above), Calder did claim that Plea Counsel was ineffective. But he
never asserted, as a claimed item of ineffectiveness, that Plea
Counsel failed to bring these constitutional claims. On this record,
the district court did not err in interpreting Calder’s equal
protection and vagueness claims as direct claims, and it did not
err by dismissing those claims as violative of the PCRA’s bar on
claims that could have been previously brought.

CONCLUSION

¶41 Calder has succeeded in identifying a potential
conundrum in the way the USC Statute, as it existed in 2017,
interacted with other sex offense statutes. But on the record before
us, the district court did not err in summarily dismissing Calder’s
claims for ineffective assistance of counsel, because Calder has not
borne his burden of demonstrating what, if anything, Plea
Counsel could or should have done to leverage the statutory
conundrum into a different plea agreement. And the district court
did not err in summarily dismissing Calder’s other constitutional
claims as procedurally barred under the PCRA.

¶42 Affirmed.

in a reply brief, that issue is waived and will typically not be
addressed by the appellate court.”). But even if it wasn’t waived,
Calder still faces a preservation problem, because he did not plead
his equal protection and vagueness claims as ineffective
assistance claims before the district court.

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