Collins v. State

2013 UT App 182_________________________________________________________
THE UTAH COURT OF APPEALS
EVERADO COLLINS,
Petitioner and Appellant,
v.
STATE OF UTAH,
Respondent and Appellee.
Per Curiam Decision
No. 20110967‐CA
Filed July 18, 2013
Fourth District, Nephi Department
The Honorable Lynn W. Davis
No. 110600048
Hakeem Ishola and Aaron Tarin, Attorneys for
Appellant
John E. Swallow and Erin Riley, Attorneys for
Appellee
Before JUDGES ORME, DAVIS, and MCHUGH.
PER CURIAM:
¶1 Everado Collins appeals the trial court’s order dismissing
his petition for postconviction relief as untimely. This is before the
court on the State’s motion for summary disposition based on the
lack of a substantial question for review.
¶2 Collins pleaded guilty to drug charges and was sentenced
in 1996. After serving his term, he was turned over to the
Immigration and Naturalization Service and was deported. He
filed the current petition for postconviction relief in 2011, asserting
that he received ineffective assistance of counsel based on the
United States Supreme Court’s decision in Padilla v. Kentucky, 559
Collins v. State
U.S. 356 (2010).1 Although Collins filed his petition for relief
roughly fifteen years after his conviction, he asserts that Padilla
should apply retroactively to make relief available to him.
¶3 At the time that Collins filed his petition, the issue of
whether Padilla would apply retroactively was an open question.
However, the Supreme Court resolved that issue recently in
Chaidez v. United States, 133 S.Ct. 1103 (2013). The Court in Chaidez
held that Padilla does not apply retroactively because Padilla
announced a new legal rule that brought what was predominantly
considered to be a collateral consequence—deportation—within
the scope of ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984). The holding in Chaidez resolves the
issue on appeal and conclusively establishes that Collins’s petition
for relief is untimely.
¶4 Collins argues that the standards for retroactive application
of newly announced legal rules may be broader under the Utah
Constitution than the federal decisions. This argument fails. First,
the argument was not raised in the district court and is, therefore,
not appropriately before this court on review. See Winward v. State,
2012 UT 85, ¶ 9, 293 P.3d 259. Second, the Post‐Conviction
Remedies Act specifically establishes when relief may be available
after the announcement of a legal rule. Utah Code section 78B‐9‐104
lists possible grounds for postconviction relief, including when
“petitioner can prove entitlement to relief under a rule announced
by the United States Supreme Court . . . after conviction and
sentence became final on direct appeal and that . . . the rule was
dictated by precedent existing at the time the petitioner’s
conviction or sentence became final.” Utah Code Ann. § 78B‐9‐
104(1)(f)(i) (LexisNexis 2012). Based on the plain language of the
statute, it was Collins’s burden to show that the rule announced in
1. In Padilla, the Court held that the failure to inform a client of
deportation consequences of a guilty plea constitutes ineffective
assistance of counsel. Padilla v. Kentucky, 559 U.S. 356 (2010).
20110967‐CA 2 2013 UT App 182Collins v. State
Padilla was dictated by precedent. However, the explicit holding in
Chaidez forecloses Collins from meeting his burden.
¶5 Collins also seeks a remand pursuant to rule 23B of the Utah
Rules of Appellate Procedure for a determination of whether
postconviction counsel was ineffective. Under rule 23B, a party in
a criminal case may seek a remand for the purpose of creating a
record regarding an ineffective assistance claim in some
circumstances. Utah R. App. P. 23B. The rule applies only to
criminal cases. See id. Postconviction proceedings are civil in
nature. Utah Code Ann. § 78B‐9‐102(1). There is no right to
competent counsel in civil postconviction proceedings. Hutchings
v. State, 2003 UT 52, ¶ 20, 84 P.3d 1150. Accordingly, there is no
remand available in this case.
¶6 Affirmed.
20110967‐CA 3 2013 UT App 182