State v. Colwell

2025 UT App 59

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MICHAEL K. COLWELL,
Appellant.

Opinion
No. 20220879-CA
Filed May 1, 2025

Fourth District Court, Heber Department
The Honorable Jennifer A. Mabey
No. 201500229

Gregory W. Stevens and Benjamin Miller,
Attorneys for Appellant
Derek E. Brown and Tanner R. Hafen,
Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M.
CHRISTIANSEN FORSTER concurred.

LUTHY, Judge:

¶1 Michael K. Colwell was convicted of one count of
possession of drug paraphernalia and two counts of possession of
a firearm by a restricted person. He challenges the firearm
convictions on the ground that the statute under which he was
convicted was unconstitutional as applied to him. Colwell did not
raise this constitutional challenge in the district court, leaving it
presumptively unpreserved for appellate review. Acknowledging
as much, Colwell contends that the exceptional circumstances
exception to the preservation rule applies in this case and allows
us to address his constitutional challenge in the first instance. We
conclude that the exceptional circumstances exception does not
State v. Colwell

apply here, and we thus affirm Colwell’s convictions without
reaching the merits of his constitutional claim.

BACKGROUND

¶2 In 2009, Colwell was convicted of felony DUI. That
conviction rendered him a “restricted person” under the version
of Utah Code section 76-10-503 then in effect and made it unlawful
for him to thereafter possess a firearm. See Utah Code § 76-10-
503(1)(b)(i), (3)(a) (2020). 1

¶3 Eleven years later, in July 2020, officers executed a search
warrant at Colwell’s house and found two firearms—a shotgun
and a pistol—in Colwell’s bedroom closet. The officers also found
several glass pipes with residue on them, multiple baggies
containing a crystal-like substance that they recognized as
methamphetamine, and a bottle with pills identified as
carisoprodol. Colwell was charged with two counts of possession
of a firearm by a restricted person, two counts of possession of a
controlled substance, and one count of possession of drug
paraphernalia. The case proceeded to trial.

¶4 Trial was initially set for two days in April and May 2022
but was later continued to August 2022. On June 23, the United

1. The relevant terms of Utah Code section 76-10-503 remained
substantively unchanged from 2009 to 2023. Compare Utah Code
§ 76-10-503(1)(b)(i), (3)(a) (2009), with id. § 76-10-503(1)(b)(i), (3)(a)
(2022). Those terms were substantively amended effective May
2023. Compare id. § 76-10-503(1)(b), (3)(a) (2020), with id. § 76-10-
503(1)(b), (3)(a) (2023); see also Firearm Possession Revisions, ch.
425, § 2, 2023 Utah Laws 4352, 4354–55; Restricted Persons
Amendments, ch. 2, § 1, 2023 Utah Laws 1st Spec. Sess. 5523, 5524.
We cite the version of the section in effect at the time of Colwell’s
conduct leading to the charges of possession of a firearm by a
restricted person, namely, Utah Code section 76-10-503 (2020).

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State v. Colwell

States Supreme Court issued its opinion in New York State Rifle
& Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), which modified the
contours of Second Amendment jurisprudence. A final pretrial
conference was held in Colwell’s case on July 20, and trial was
held on August 12 and 15. At trial, following the presentation of
evidence, the State dismissed one of the charges of possession of
a controlled substance, and the remaining charges were submitted
to the jury. The jury acquitted Colwell on the other charge of
possession of a controlled substance but found him guilty of
possession of drug paraphernalia and two counts of possession of
a firearm by a restricted person. The district court sentenced
Colwell in September 2022, and Colwell then appealed.

ISSUE AND STANDARD OF REVIEW

¶5 On appeal, Colwell challenges his convictions of
possession of a firearm by a restricted person, asserting that—
under the approach to the Second Amendment announced in New
York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022)—the
statute under which he was convicted was unconstitutional as
applied to him. “A constitutional challenge to a statute presents a
question of law, which we review for correctness.” State v. Garner,
2008 UT App 32, ¶ 10, 177 P.3d 637 (cleaned up).

ANALYSIS

¶6 Colwell acknowledges that he did not raise and thereby
preserve in the district court the constitutional challenge he raises
on appeal. See generally State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d
346 (“As a general rule, claims not raised before the trial court may
not be raised on appeal.”). “The preservation rule applies to every
claim, including constitutional questions . . . .” Id. (cleaned up).
Our supreme court, however, “has recognized three distinct
exceptions to preservation: plain error, ineffective assistance of
counsel, and exceptional circumstances.” State v. Johnson, 2017 UT

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State v. Colwell

76, ¶ 19, 416 P.3d 443. “When an issue is not preserved in the trial
court, but a party seeks to raise it on appeal, the party must
establish the applicability of one of these exceptions to persuade
an appellate court to reach that issue.” Id. Here, Colwell contends
that the exceptional circumstances exception applies and allows
us to reach his constitutional claim.

¶7 “The exceptional circumstances doctrine is applied
sparingly.” Id. ¶ 29 (cleaned up). It is reserved “for the most
unusual circumstances where our failure to consider an issue that
was not properly preserved for appeal would . . . result[] in
manifest injustice.” Id. (cleaned up). This exception “is not a catch-
all category that may be used to do the work of other exceptions,
like plain error, nor should it be viewed as a free-floating
justification for ignoring the legitimate concerns embodied in the
preservation and waiver rules.” Id. ¶ 38. Instead, “we apply this
exception to reach an unpreserved issue [only] where a rare
procedural anomaly has either prevented an appellant from
preserving an issue or excuses a failure to do so.” Id. ¶ 29 (cleaned
up). Indeed, it is to be “anchored in the idea of rare procedural
anomalies.” Id. ¶ 38; see id. ¶ 31 (“[T]he showing of a rare
procedural anomaly [is] requisite to invoking exceptional
circumstances.”). Only after “a party has shown that a rare
procedural anomaly has occurred[] [will we] then consider the
effects of the anomaly, and whether those effects warrant an
exception to our preservation requirement.” Id. ¶ 37. Under this
latter step of the inquiry, we will consider such factors as whether
“a significant constitutional right or liberty interest is at stake,” 2

2. For a time, “if the liberty of an appellant [was] in jeopardy,” that
“jeopardized liberty” was viewed as a separate, independent
exception to the preservation requirement. State v. Lopez, 886 P.2d
1105, 1113 (Utah 1994) (cleaned up). That is no longer the case. See
id. Under our current law, whether “a liberty interest is at stake is
merely one factor . . . to be considered when determining whether
exceptional circumstances exist.” Id. (cleaned up).

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State v. Colwell

“whether our failure to consider [the unpreserved issue] would
result in manifest injustice,” and “judicial economy.” Id. (cleaned
up).

¶8 In State v. Johnson, 2017 UT 76, 416 P.3d 443, our supreme
court explained that the question of when to apply the exceptional
circumstances exception “require[s] case-by-case assessment.” Id.
¶ 38. In aid of such an assessment, the court cataloged a number
of examples of rare procedural anomalies that had previously
triggered the court’s application of the exception. See id. ¶¶ 32‒36.
As one such example, the court cited State v. Haston, 846 P.2d 1276
(Utah 1993), wherein it had “recognized a rare procedural
anomaly when controlling precedent is issued that abolishes the
offense for which [a] defendant was convicted while the
defendant’s appeal is pending.” Johnson, 2017 UT 76, ¶ 33.
Summarizing, the court then concluded that “a rare procedural
anomaly exists ‘where a change in law or the settled interpretation
of law color[s] the failure to have raised an issue at trial.’” Id.
(quoting State v. Irwin, 924 P.2d 5, 10 (Utah Ct. App. 1996)).

¶9 Relying on that conclusion from Johnson, Colwell argues
that the United States Supreme Court’s decision in New York State
Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), which was issued
“about six weeks” (indeed, seven weeks and a day) before
Colwell’s trial, “fundamentally altered our [nation’s]
jurisprudence concerning restrictions on the right to keep and
bear arms protected by the Second Amendment to the United
States Constitution,” and that the timing of that decision colored
his failure to have raised his constitutional challenge below.
Colwell candidly concedes that where the Bruen decision was
issued more than six weeks before his trial, a constitutional
challenge based on Bruen probably “should have been and
reasonably could have been” asserted in the district court. But he
maintains that, as articulated by our supreme court, the particular
rare procedural anomaly test he relies on is not whether trial
counsel acted reasonably in failing to raise the issue but is, rather,

20220879-CA 5 2025 UT App 59
State v. Colwell

simply whether the timing of the change in law colored the failure
to raise the issue in the trial court. He explains that had our
supreme court wanted a bright-line rule that classifies as a rare
procedural anomaly only those changes of law that occur, for
example, after trial begins, “it could have written that,” but
“[t]hat’s not what [it] wrote.” And he further explains that, while
Bruen’s approach to Second Amendment jurisprudence was
clearly “a game-changer,” by the time of Colwell’s trial, the
question of how Bruen might apply to the type of statute under
which Colwell was charged “was still being . . . discussed.” Thus,
Colwell contends, the timing of Bruen, the uncertainty of its
application, and the focus of Colwell’s trial counsel on preparing
for trial should together qualify Bruen’s issuance as a rare
procedural anomaly.

¶10 We agree with Colwell that our supreme court’s
articulation of this variety of rare procedural anomaly permits the
possibility of something other than a bright-line rule requiring
that a change in settled law occur after trial in order for it to
constitute a rare procedural anomaly. But the issuance of Bruen
seven weeks before trial in this case does not qualify as a rare
procedural anomaly. Bruen was not a decision touching on some
obscure point of law that might initially go unnoticed by
reasonable counsel. 3 To the contrary, its issuance was
immediately and broadly publicized. See, e.g., Ariane de
Vogue & Tierney Sneed, Supreme Court Says Constitution
Protects Right to Carry a Gun Outside the Home, CNN (Jun. 23,
2022), https://www.cnn.com/2022/06/23/politics/supreme-court-
guns-second-amendment-new-york-bruen/index.html

3. In the ineffective assistance of counsel context, “[a] lawyer’s
lack of knowledge [of a recent development in the law] is not
alone enough to amount to deficient performance,” State v.
Sessions, 2014 UT 44, ¶ 22, 342 P.3d 738, suggesting that in some
circumstances, even reasonable counsel might not immediately
become aware of relevant changes in the law.

20220879-CA 6 2025 UT App 59
State v. Colwell

[https://perma.cc/F9A7-ZC2A]; Alison Durkee, Supreme Court
Strikes Down N.Y. Concealed Carry Law—Could Lead to
Rollbacks Nationwide, Forbes (Jun. 23, 2022),
https://www.forbes.com/sites/alisondurkee/2022/06/23/supreme-
court-strikes-down-ny-concealed-carry-law/ [https://perma.cc/
7K78-UZGX]; Adam Liptak, Supreme Court Strikes Down New York
Law Limiting Guns in Public, N.Y. Times (Jun. 23, 2022), https://
www.nytimes.com/2022/06/23/us/supreme-court-ny-open-carry-
gun-law.html [https://perma.cc/344L-SW3U]. It was presumably
a matter of particular note among members of the criminal
defense bar. And seven weeks provided a workable window
within which Colwell could have formulated and submitted a
Bruen-based argument minimally sufficient to preserve his
constitutional claim for appellate review. See generally John v. John,
2023 UT App 103, ¶ 38, 536 P.3d 1138 (“For a trial court to be
afforded an opportunity to correct an asserted error (1) the issue
must be raised in a timely fashion, (2) the issue must be
specifically raised, and (3) the challenging party must introduce
supporting evidence or relevant legal authority.” (cleaned up)).
The parties had a pretrial conference with the court about a month
following Bruen’s issuance, at which Colwell might have raised
his potential constitutional argument with the court. And he had
more than three weeks after that as well to bring it to the court’s
attention before trial.

¶11 Given the high-profile nature of Bruen, the seven-week
window within which Colwell could have raised his
constitutional challenge in the district court, and the mandate that
the exceptional circumstances doctrine be “applied sparingly”
and reserved “for the most unusual circumstances,” Johnson, 2017
UT 76, ¶ 29 (cleaned up), we conclude that Bruen’s issuance in the
weeks leading up to trial in this case did not constitute a rare
procedural anomaly. Accordingly, the exceptional circumstances
exception to the preservation rule does not apply, and we are
precluded from considering Colwell’s unpreserved constitutional

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State v. Colwell

challenge to the version of Utah Code section 76-10-503 under
which he was convicted.

CONCLUSION

¶12 Colwell failed to preserve for appellate review the single,
constitutional claim he raises on appeal, and the exceptional
circumstances exception to the preservation rule does not apply
in this case. We therefore affirm Colwell’s convictions without
reaching, and thus without expressing an opinion regarding, the
merits of his constitutional claim.

20220879-CA 8 2025 UT App 59