S.H. v. State

This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME 	COURT OF THE 	STATE OF UTAH
----oo0oo----
S.H., 	No. 20061106 Plaintiff 	and Appellant,
v.
State of Utah,
F 	I L E D
Defendant and Appellee. 	November 7, 2008
---
Fourth District, Provo 	Dep’t
The Honorable Donald J. Eyre
No. 030405232
Attorneys: 	Michael J. Petro, 	Provo, for plaintiff
Mark 	L. Shurtleff, Att’y Gen., Erin Riley, 	Asst.
Att’y Gen., Salt Lake City, 	for defendant
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	Plaintiff 	S.H. 	seeks to have his 	conviction for
attempted rape vacated. 	Plaintiff 	claims he is 	entitled to
relief under the Post-Conviction 	Remedies Act (the 	“PCRA”)
because he received ineffective assistance 	of counsel at a
juvenile court retention hearing. 	As a 	result of 	that hearing,
Plaintiff 	was bound over to 	the district court, 	tried,
convicted, and 	sentenced as an adult. 	After unsuccessfully
appealing 	his conviction, he petitioned the district court for
post-conviction relief. 	The district court held a hearing and
denied the petition. 	Plaintiff 	now appeals that denial, and we
must 	resolve four issues:
1. 	Whether the district court correctly concluded that the
PCRA 	applies to Plaintiff’s 	claim that he received
ineffective assistance 	of counsel at a juvenile 	court
retention 	hearing.
2008 	UT 78

No. 20061106 	2
2. 	Whether the district court erred 	in interpreting State
v. F.L.R. 	(State ex rel. F.L.R.) 1 and 	in denying
Plaintiff’s petition based on that interpretation.
3. 	Whether the district court correctly concluded that
Plaintiff 	satisfied the two-prong Strickland test for
proving he received ineffective assistance 	of counsel
at his juvenile court retention hearing.
4. 	Whether this court may 	fashion an appropriate remedy
under the PCRA.
¶2 	For the reasons detailed below, we grant Plaintiff’s
petition and order that his 	record be 	made 	expungeable consistent
with 	a juvenile court disposition. 	After reviewing the
applicable background and facts, 	we will address each of the
issues in 	the order established above.
BACKGROUND
¶3 	Seventeen-year-old Plaintiff and 	fifteen-year-old
Victim J.S., attended high school together. 	On Saturday
evening, November 	8, 1997, Plaintiff and Victim 	met at a mutual
friend’s house 	with several other teens.The group 	of teens began
taking pain medication 	for recreational purposes, and Plaintiff
and Victim participated. 	Plaintiff 	and Victim then began
talking and ended 	up kissing in the bathroom. 	Victim later
agreed that she did not object to this.Following 	their encounter
in the bathroom, the two left the party in 	Plaintiff’s car, and
Plaintiff 	drove to a church 	parking lot and parked.
¶4 	The parties disagree about what happened next.
Plaintiff 	claims that the sexual 	acts 	that 	occurred in the car
were 	consensual, while 	Victim claims that they were not.
Specifically, Victim claims 	that 	she rejected Plaintiff’s
attempt to perform oral sex 	on her and that Plaintiff then tried
to force her to perform oral sex on him. 	Victim also claims that
when 	Plaintiff 	next penetrated her vagina with his 	fingers and
then 	with 	his penis, she told him “no” and 	that 	the acts were
causing her great pain.
¶5 	The parties agree 	that 	after the 	sexual encounter, 	and
while still in 	the car, Plaintiff saw 	something 	red on his pants
and asked 	Victim if it was lipstick. 	Victim believed that it
was her blood--based on the 	amount of 	pain 	she felt during the
1 2006 	UT 	App 294, 141 	P.3d 	601.

3 	No. 20061106
sexual act--but did not tell Plaintiff.Instead, she said 	she
didn’t know what the red stains were. 	Plaintiff 	then 	drove
Victim back to 	the party, and along the way, the two agreed not
to tell anyone 	about the sexual encounter.
¶6 	Later that evening, Victim left the party with her
friends, to whom she recounted her version 	of the night’s events,
including 	the fact that she 	had been injured enough during the
sexual encounter to cause bleeding. 	A 	friend convinced Victim to
seek 	medical help 	and drove 	her to Orem Community Hospital,
where a police 	officer interviewed Victim. 	She was then sent 	to
Utah 	Valley Medical Center in Provo where Dr. Stephen L. Barry
conducted 	a full rape examination.
¶7 	During his examination, Dr. 	Barry found “several
distinct injuries” consistent with a nonconsensual 	sexual
encounter.As a 	result of 	Dr. Barry’s examination and 	Victim’s
statement 	to police, Plaintiff was charged 	by information with
one count 	of aggravated sexual assault and 	one count of 	forcible
sodomy, both first degree felonies. 	Aggravated sexual 	assault is
one of the crimes 	enumerated in the Serious Youth Offender Act
(the “SYOA”). 2 	The purpose of 	the SYOA is to create a “strong
presumption that cases 	involving 	inherently violent and
aggressive offenses by 	juveniles 	sixteen years of age and older
will 	be transferred to 	the district court.” 3
¶8 	Pursuant to the SYOA procedures, 	the juvenile court
held 	a preliminary retention hearing to determine whether
Plaintiff 	should be bound over to district 	court to answer the
charges as an adult. 	At the hearing, Plaintiff was represented
by his attorney, Michael Esplin. 	According 	to the SYOA, 	the
State first had the burden of establishing 	“probable cause to
believe that” Plaintiff committed aggravated sexual assault. 4
2 Utah 	Code Ann. §§ 78A-6-702 to 	-703 	(Supp. 2008)-
renumbered. 	This 	section was renumbered 	but not substantially
changed. 	We therefore cite 	to the current 	version of the code.
3 In 	re A.B., 936 	P.2d 	1091, 1099 (Utah Ct. App. 1997).
4 	Utah Code Ann. § 78A-6-702(3)(a). 	Of the two crimes
charged, only aggravated sexual assault is 	an enumerated SYOA
offense. 	However, the SYOA 	grants jurisdiction 	to district
courts to 	consider all 	charges against a juvenile who is bound
over 	on any single SYOA charge. 	The SYOA provides 	that 	“[w]hen a
defendant 	is charged with multiple criminal offenses in 	the same
information or 	indictment and is 	bound over to answer in the
(continued...)

No. 20061106 	4
¶9 	To meet this probable cause 	burden, the State first
called Victim to recount her version of events. 	The State 	then
called Dr. Barry, 	who read from his “Code-R” rape exam report,
showed photographs of Victim’s genital injuries, and testified
that 	her injuries 	were 	“extremely consistent with a nonconsensual
penetrating force.” 	The State 	also 	called Dr. Delvin 	Scott
Ensley, who had examined Victim. 	He too testified that her
“injuries 	. . . were consistent with an injury related to an
assault.”
¶10 	Because the State 	met its burden, the 	burden then
shifted to Plaintiff to establish the 	three retention factors
that 	would allow the juvenile court to retain jurisdiction over
him. 	During the retention hearing, the parties stipulated that
the first 	two retention factors were not at issue; 	therefore,
Plaintiff 	had the 	burden of 	establishing only the third factor--
that 	he did not commit 	the offense of 	aggravated sexual 	assault
in a 	“violent, 	aggressive, or premeditated manner.” 5
¶11 	To meet this burden, Plaintiff’s 	attorney, 	Esplin,
presented 	only 	his seventeen-year-old 	client, who testified that
he never made oral threats or used any kind of force on 	Victim
during the sexual encounter. 	Importantly, Esplin called no
medical experts of his 	own, 	though he 	did cross-examine 	the
State’s medical experts and 	questioned them about Victim’s
injuries. 	And he did elicit 	from 	the experts an 	admission 	that
the injuries Victim suffered could have come from consensual
sex, 	though neither expert would 	rule 	out nonconsensual 	sex as
the more likely cause of the injuries.
¶12 	During closing 	arguments, which focused on 	the third
retention 	factor, 	Esplin briefly 	reviewed the testimonies of
Victim and Plaintiff. 	He then correctly 	cited the 	only 	case at
the time to have interpreted the 	third retention factor, In re
A.B., 6 for the 	proposition that even an aggravated 	crime can 	be
committed 	with 	a “low level 	of violence and aggression,”
providing 	an opportunity for defendants to 	establish the third
retention factor. 	Esplin then noted 	that 	during the sexual
4 (...continued)
district court 	for one 	or more charges under this section, other
offenses arising from the same criminal episode 	. . . shall be
considered together with those charges.” 	Id. § 78A-6-702(7).
5 Id. 	§ 78A-6-702(3)(b)(iii).
6 936 	P.2d at 1101-02.

5 	No. 20061106
encounter, Plaintiff used no weapons, 	created no physical
restrictions, and 	made 	no threats against Victim. 	In attempting
to establish the third 	retention 	factor, Esplin 	argued that the
incident was “as non-violent a rape as you 	can have.”
¶13 	The juvenile court disagreed and 	found that the 	State
met its burden 	of 	establishing probable cause that 	Plaintiff
committed 	aggravated sexual 	assault and that Plaintiff failed to
establish 	the third retention factor to avoid bindover to
district court. 	The juvenile court then ordered Plaintiff bound
over 	to district court 	to answer 	the charges as 	an adult.
¶14 	Plaintiff 	attempted to 	avoid the 	bindover through a
variety of legal actions. 	First, he 	timely appealed the bindover
order to the Utah 	Court of Appeals, but he 	voluntarily withdrew
the appeal. 7 	Then, in September 1998, he 	filed a motion 	to quash
the bindover order, which was denied. 	Finally, he petitioned
this 	court for 	interlocutary review, which we denied. 8 	Having
failed to 	avoid trial in the district 	court, Plaintiff was tried
to a 	jury 	in August 1999, which found 	him guilty of attempted
rape, a first degree felony, but 	acquitted 	him of forcible
sodomy. 9 	The district court sentenced Plaintiff to the statutory
prison term of 	three-years-to-life, suspended the sentence, and
imposed 365 days in jail and 36 months probation.
The court 	also 	fined Plaintiff $1,850. 	As a 	result of 	his
conviction, Plaintiff was required to 	register as a sex
offender.
¶15 	Following 	Plaintiff’s conviction, he made a motion 	to
arrest judgment, which was denied. 	Plaintiff 	then 	appealed to
this 	court claiming several 	errors, including an error in the
juvenile court’s bindover order. 10 	In December 2002, 	we affirmed
7 State v. 	S.H. (“S.H.I”), 	2002 	UT 118, ¶ 	3, 62 P.3d 444.
8 Id. 	¶ 4.
9 Prior to deliberations, the trial court instructed the
jury 	that 	rape 	and attempted rape were lesser included offenses
of aggravated sexual assault.
10 On 	his 	first appeal 	to this court, 	Plaintiff 	raised four
issues. 	He claimed that (1) the district 	court gave an incorrect
jury 	instruction that attempted rape was a 	lesser included
offense of aggravated sexual assault; 	(2) the district court
lacked jurisdiction to 	sentence him; (3) the juvenile court erred
(continued...)

No. 20061106 	6
Plaintiff’s conviction 	on all issues except the 	propriety of the
bindover order, which we refused 	to address because Plaintiff
voluntarily withdrew his original appeal on that issue and
“[c]onsequently, waived his 	right to appeal the 	bind over
order.” 11
¶16 	In December 2003, 	Plaintiff 	filed a petition in 	the
district court 	for post-conviction relief under the PCRA. 	In his
petition, 	Plaintiff asserted ten 	claims, including 	that 	he
received ineffective assistance of counsel 	at the retention
hearing. 	Plaintiff, now 	represented by new counsel, 	argued that
Esplin was ineffective 	for failing to 	mount a meaningful defense
regarding 	the third retention factor. 	The district court
dismissed 	all of Plaintiff’s claims except 	the ineffective
assistance of counsel claim.
¶17In June 2006, after extensive briefing on the
ineffective assistance 	of counsel claim, the district court held
an evidentiary 	hearing 	on that issue. 	The court 	denied
Plaintiff’s petition, and Plaintiff timely 	appealed to this
court. 	We have jurisdiction pursuant to 	Utah 	Code section
78A-3-102(3)(j) (Supp. 	2008).
STANDARDS 	OF REVIEW
¶18 	In denying Plaintiff’s 	petition, 	the district court
made 	certain findings of fact and conclusions of law. 	We review
the district court’s factual findings 	for clear 	error and review
its legal 	conclusions for correctness. 12
ANALYSIS
¶19 	Our analysis begins with a determination of whether the
PCRA 	applies to Plaintiff’s claim. 	Next, we will address
whether the district court erred 	in interpreting State v. F.L.R.
(State ex 	rel. 	F.L.R.), and 	whether it erred in 	denying
Plaintiff’s post-conviction 	petition based 	on that
interpretation. 	Finally, we will determine whether the district
court properly 	concluded that Plaintiff established that he
received ineffective assistance of counsel 	at his retention
10 (...continued)
in binding him 	over to 	district court; and 	(4) the 	district court
improperly admitted prior bad acts evidence. 	2002 	UT 118, ¶ 1.
11 Id. 	¶ 23.
12 State v. Pena, 	869 P.2d 932, 935-36 (Utah 1994).

7 	No. 20061106
hearing, and if so, what remedy this court 	may appropriately
fashion under the 	PCRA.
I. 	THE PCRA APPLIES TO PLAINTIFF’S CLAIM 	THAT 	HE RECEIVED
INEFFECTIVE ASSISTANCE 	OF COUNSEL AT THE JUVENILE COURT RETENTION
HEARING
¶20 	The State 	argues that the PCRA does not apply to
Plaintiff’s claim 	for three reasons: 	first, because 	of 	the
venue in which 	Plaintiff claims to have received ineffective
assistance of counsel--a juvenile court retention hearing;
second, and closely related, because of Plaintiff’s age--he is
now an adult and thus cannot be returned to juvenile court for a
new retention hearing; 	and third, because of the content of
Plaintiff’s petition--he does not specifically challenge his
conviction or sentence.
¶21 	In interpreting the PCRA, we seek “‘to give effect 	to
the intent of the 	legislature in 	light of the purpose the statute
was meant to achieve.’” 13 	The best evidence 	of the legislature’s
intent is 	“the 	plain language of 	the statute itself.” 14
Additionally, “[w]hen examining the statutory language, 	we assume
the legislature used each term advisedly and in 	accordance with
its ordinary meaning.” 15 	If, in reading 	the statute, 	the meaning
of the language is clear, we need look no further to discern 	the
legislature’s intent. 	In this case, the 	meaning of the 	PCRA 	is
clear, and we find that it does apply 	to Plaintiff’s claim.
¶22 	The PCRA provides 	a “legal remedy for 	any person” who,
after exhausting all other legal 	remedies, 	“challenges a
conviction or sentence” based on 	the grounds enumerated 	in the
PCRA. 16 	Those grounds include “the petitioner 	had ineffective
13 State v. Bluff, 2002 UT 66, ¶ 	34, 52 P.3d 1210 (quoting
Harmon City, Inc. 	v. Nielsen & Senior, 907 	P.2d 	1162, 1167 (Utah
1995)).
14 In 	re Z.C., 	2007 UT 	54, ¶ 6, 165 P.3d 1206 (citations and
internal quotation marks omitted).
15 Id.
16 	Utah 	Code Ann. § 78-35a-102(1) (2002). 	This 	section was
renumbered in 2008 with substantive changes. 	Because section 78-
35a-102 was in 	effect when Plaintiff filed 	his petition, we cite
to that section.

No. 20061106 	8
assistance of counsel in violation of 	the United States
Constitution or Utah Constitution.” 17
¶23 	Plaintiff 	satisfies these criteria. 	He was convicted
of and sentenced for attempted rape. 	He exhausted his appellate
remedies. 	He then filed a petition for post-conviction relief in
the district court claiming 	he received ineffective assistance of
counsel.
¶24 	The State 	does 	not dispute these facts. 	The State
does, however, 	read additional criteria into the PCRA that would
preclude Plaintiff’s claim. 	First, the State reads 	in a 	venue
exclusion.Second, and closely related, it reads 	in an age
exclusion.The State 	thus 	argues that the PCRA “provides no
remedy for the 	claim that counsel was 	ineffective in a juvenile
retention 	hearing, once the 	juvenile court 	has lost jurisdiction
and the defendant 	is an adult.”
¶25 	In making 	this 	argument, the State reasons 	that 	the
PCRA 	cannot apply 	to Plaintiff’s 	claim because he cannot return
to juvenile court 	for a new retention hearing. 	But the PCRA does
not limit 	relief to a replication of the proceeding where the
error occurred. 	If this were the case, 	an entire 	class of
convicted 	juvenile criminals would be 	excluded from relief simply
because legal proceedings take time, and the petitioners have
aged 	out of the juvenile court system 	in the interim. 	While the
PCRA 	does 	not provide any explicit remedy for the problem of
aging out, it does implicitly account 	for it by 	providing two
possible remedies: 	a 	reviewing court 	may “vacate or 	modify the
conviction.” 18 	Further, if “the court 	vacates the original
conviction or sentence, it shall 	enter findings 	of 	fact 	and
conclusions of 	law and 	an appropriate order.” 19 	Thus, the 	PCRA
grants broad discretion to reviewing courts to fashion
appropriate remedies.
¶26 	The State’s final 	argument as to 	why the PCRA does not
apply to Plaintiff’s claim is based on the 	content 	of his
petition. 	Specifically, the 	State claims “[Plaintiff] is not
challenging his conviction or sentence” as 	required by the
17 Id. 	§ 78-35a-104(1)(d).
18 Id. 	§ 78-35a-104(1) 	(emphasis 	added).
19 Utah R. Civ. P. 65C(m)(1) (emphasis added).

9 	No. 20061106
PCRA. 20 	Rather, the State 	argues, he challenges only the
effectiveness of his counsel at the retention hearing. 	But the
ineffectiveness of Plaintiff’s counsel at the retention hearing
resulted in a harsher sentence. 	Thus, by the very 	nature of his
claim, Plaintiff challenges 	his sentence.
¶27 	Plaintiff 	claims that if he 	had received effective
assistance of counsel at the retention hearing, 	he 	would have
been 	retained in juvenile court. 	Regardless of the 	disposition
of his case there, his 	sentence would 	have 	been 	less severe. 21
Additionally, Plaintiff would have had the 	option of petitioning
to expunge his 	record had he been retained 	in juvenile court. 22
Because he was 	convicted in 	district court 	of a 	first degree
felony that is 	also a registerable sex offense, 	that option is
unavailable to 	him. 23
¶28 	In conclusion, 	because 	Plaintiff 	satisfies 	each 	of the
PCRA’s criteria, we hold that the PCRA applies to his claim that
he received ineffective assistance of 	counsel at the juvenile
court retention hearing.
20 See 	Utah Code Ann. § 78-35a-102(1).
21 Under Utah’s sentencing guidelines, Plaintiff’s 	penalty in
district court 	was more severe than it would have been in
juvenile court. 	Specifically, because he was convicted of
attempted 	rape 	in 	district court, Plaintiff was 	subject 	to prison
time 	and served a 	year in jail. 	In the juvenile system,
he would not have 	been 	subject to prison or jail time. 	See Utah
Adult Sentencing and Release Guidelines Manual (2007); and Utah
Juvenile Sentencing Guidelines Manual (2007). 	Additionally,
juveniles 	are not 	“convicted” of 	crimes in 	juvenile court.
Rather, they are “adjudicated delinquent.” 	We use the term
“convicted” in 	this opinion 	only 	for convenience in comparing
Plaintiff’s treatment in district court to 	that 	of 	his treatment
in juvenile court, had 	he been retained there.
22 Utah Code section 78A-6-1105(a)-(b) (Supp. 2008) provides
for expungement of a juvenile’s record for 	any offense except
aggravated murder 	or murder.
23 Utah Code section 77-18-11(11)(b), 	(d)-(e) prohibits
expungement of 	a conviction 	for a first degree felony, any sexual
act against a minor, or any 	registerable sex offense.

No. 20061106 	10
II. 	THE DISTRICT COURT’S INTERPRETATION OF STATE v. 	F.L.R. WAS
ERRONEOUS
¶29 	Following 	the June 2006 post-conviction evidentiary
hearing, the district court 	denied Plaintiff’s petition, not
because it concluded that Plaintiff had failed to establish that
he received ineffective assistance of 	counsel, but 	because its
erroneous 	interpretation of 	State v. F.L.R. (State 	ex rel.
F.L.R.) 24 made 	Plaintiff’s claim 	moot.
¶30 	In interpreting F.L.R., the 	district court 	found that
the Appeals Court 	has established a high
standard that leaves no wiggle room for
defendants to argue that the act 	they 	are
charged with was not committed in a violent
or aggressive manner. 	In essence, a finding
that 	probable cause exists as to 	an
aggravated offense results in automatic
transfer to the district court and any
argument as to 	retention factors 	are [sic]
merely ornamental. 	(Emphasis added.)
Applying this reasoning to Plaintiff, 	the district 	court
concluded 	that 	once the State showed “probable cause” that
Plaintiff 	committed an 	aggravated offense, 	his transfer 	to the
district court was “automatic.” 	Thus, Plaintiff’s 	claim that he
received ineffective assistance of counsel 	in establishing the
retention 	factors was moot. 	In arriving at 	this interpretation,
the district court erred. 25
¶31 	The SYOA establishes a 	clear two-step 	bindover
procedure 	that 	imposes 	a burden on both the State and the
juvenile defendant. 	The first 	step 	requires the 	State to
establish 	probable cause that the juvenile 	defendant committed a
SYOA offense. 	If the State satisfies 	that 	burden, “the
[juvenile] court shall 	order that the 	defendant 	be 	bound over and
24 2006 UT App 	294, 141 P.3d 601.
25 The 	State and Plaintiff agree 	that 	the district 	court
misinterpreted F.L.R. 	Plaintiff 	notes that the trial court
“erroneously concluded 	that 	[under F.L.R.] 	. . . the finding 	of
ineffective assistance 	of counsel was 	a futile gesture” (emphasis
added). 	The State 	also 	concedes that the 	trial court
“erroneously concluded 	that 	‘a finding that probable cause exists
as to an aggravated offense 	results in automatic transfer to
district court’” (emphasis added).

11 	No. 20061106
held 	to answer 	in 	the district court in the same manner 	as an
adult.” 26 	The second step allows 	the juvenile to avoid this
bindover and remain in juvenile court. 	To do so, 	the juvenile
must 	establish 	by 	“clear and convincing evidence” all three of
the following retention factors:
(i) 	the minor 	has not 	been 	previously
adjudicated delinquent 	for an offense
involving 	the use 	of a 	dangerous 	weapon which
would be a felony 	if committed by an adult;
(ii) 	that 	if the offense was committed with
one or more other 	persons, the minor appears
to have a 	lesser degree of culpability than
the codefendants; and
(iii) 	that 	the minor’s role in the offense
was not committed 	in a 	violent, aggressive,
or premeditated manner. 27
¶32 	By its plain language, 	the SYOA clearly provides for
two distinct steps in the bindover procedure. 	In interpreting
F.L.R., however, the district court collapsed these two steps,
concluding, contrary to the 	plain language 	of the SYOA, 	that
Plaintiff’s bindover was automatic.
¶33 	In arriving at 	its interpretation, the district 	court
relied on 	a single sentence 	in F.L.R. 	in which the 	court of
appeals noted that “‘[t]here is nothing in 	the plain language of
the [SYOA] requiring the juvenile court to 	find 	a level 	of
violence [or] aggression . . . greater than that inherent in 	the
underlying offense.’” 28 	This 	statement 	does not, however, imply
that 	a juvenile can never satisfy the 	third retention factor. 	In
fact, F.L.R. clarifies 	that 	“there may be instances where a
juvenile could 	prove that his offense 	was not committed 	in a
violent or aggressive manner.” 29 	Additionally, the 	court of
appeals noted that “[i]t is 	foreseeable that a juvenile 	could
commit an 	enumerated offense with a low level of violence and
aggression, so 	as 	to defeat 	the presumption of district court
26 Utah Code Ann. 	§ 78A-6-702(3)(b) (Supp. 	2008).
27 Id.
28 2006 UT App 	294, ¶ 4 (alteration in original) (quoting In
re M.E.P., 2005 UT App 	227, 	¶ 11, 114 	P.3d 	596).
29 Id. 	at 	¶ 3 (emphasis added).

No. 20061106 	12
jurisdiction over 	a serious youth offender.” 30 	The court 	of
appeals has reiterated 	this 	position in a number of other
cases. 31
¶34 	By the plain language of the SYOA and 	F.L.R., there is
a 	clearly 	delineated two-step procedure for determining 	when 	to
bind 	over 	a juvenile to district court. 	Therefore, the 	district
court erred in 	interpreting 	F.L.R. to 	mean 	that 	Plaintiff’s
bindover to district court was automatic once the State
established probable cause that he committed a SYOA offense. 	It
follows, then, 	that the district 	court also erred in denying
Plaintiff’s petition based on that interpretation. 	Whether
Plaintiff’s petition should 	be granted, however, depends on
whether he established 	that 	he received ineffective assistance of
counsel at the retention hearing. 	We next address that question.
III. 	PLAINTIFF 	ESTABLISHED THAT HE RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL BY SATISFYING BOTH PRONGS 	OF STRICKLAND
¶35 	At Plaintiff’s 	June 2006 post-conviction hearing, the
district court 	heard from witnesses who testified about Esplin’s
performance as 	counsel 	at the retention hearing 	and heard from
Esplin himself. 	It reviewed the retention hearing transcript,
the parties’ written closing arguments, and the 	applicable case
law. 	The district court then issued a 	memorandum decision,
reciting the Strickland 32 standard for deciding 	ineffective
assistance of counsel claims.
¶36 	Under Strickland, 	a petitioner must prove that (1)
“counsel’s performance 	was deficient,” and 	(2) “there is a
reasonable probability 	that, but 	for counsel’s unprofessional
errors, the result of the proceeding would 	have 	been
different.” 33 	The district court applied both prongs of
Strickland to Esplin’s 	performance at 	the retention hearing and
concluded 	that 	it 	“was 	prepared to find that the Strickland
factors for ineffective assistance of 	counsel had been met.”
30 Id. 	(emphasis added) (quoting 	In re A.B., 936 P.2d 1091,
1101-02 (Utah Ct. 	App. 1997)).
31 See 	M.E.P., 	2005 UT 	App 227; State 	v. Lara, 2003 UT App
318, 	79 P.3d 951; 	In re Z.R.S., 951 P.2d 1116 (Utah Ct. 	App.
1998); A.B., 936 P.2d at 1091.
32 Strickland v. Washington, 466 	U.S. 	668 (1984).
33 Id. 	at 	693-94.

13 	No. 20061106
¶37 	When 	“reviewing ineffective 	assistance of counsel
claims, we review 	a lower court’s purely factual findings for
clear error, but review the 	application of 	the law 	to the facts
for correctness.” 34 	Additionally, when reviewing a Strickland
decision, 	this 	court has noted its “strong 	presumption that
counsel’s 	conduct 	falls within the wide range of reasonable
professional assistance.” 35 	Therefore, to prevail on a claim, a
petitioner has 	“the burden of meeting 	both 	parts of th[e]
test.” 36 	Our review of the 	facts presented at Plaintiff’s post-
conviction hearing leads us 	to conclude that he 	met his 	burden
and established that he received 	ineffective assistance 	of
counsel at his 	retention hearing.
A. 	The Performance of Plaintiff’s Counsel Fell Below an
Objective 	Standard of Reasonableness
¶38 	To satisfy the 	first prong of Strickland, a petitioner
must 	“identify 	the acts or omissions of counsel” which, 	under the
circumstances, 	show that counsel’s representation fell below 	an
objective 	standard of reasonableness. 37 	This 	court has 	found
that 	counsel’s 	performance falls 	below an objective standard 	of
reasonableness 	when counsel 	does 	“not 	make 	a reasonable
investigation into the 	availability of prospective 	witnesses.” 38
In such cases, 	“counsel’s performance 	cannot fall within the wide
range of reasonable professional 	defense assistance.” 39
¶39 	Plaintiff 	asserts 	that 	Esplin failed to investigate his
case 	and provide any defense witnesses at the retention 	hearing-
-medical or character--to testify that his 	actions 	were 	not
violent or aggressive in nature. 	In its findings of fact
following 	Plaintiff’s post-conviction 	petition hearing, 	the
district court 	focused 	on the lack of 	defense witnesses presented
by Esplin 	at the retention hearing. 	The court 	found that “Mr.
Esplin did not 	provide 	any expert or character witness testimony
on the issue of whether the 	act was completed in an aggressive
34 Benvenuto v. State, 	2007 	UT 53, ¶ 9, 165 P.3d 1195
(citations and 	internal quotation marks omitted).
35 State v. Templin, 805 P.2d 182, 186 (Utah 1990).
36 Id.
37 466 	U.S. at 	690.
38 Templin, 805 P.2d at 187.
39 Id. 	at 	188 (internal quotation marks omitted).

No. 20061106 	14
and violent manner, to 	help 	the juvenile court make a decision
whether the case should be retained in juvenile court.” 	The
district court 	contrasted that with the State’s 	presentation 	of
“at least 	four 	medical 	experts who testified as 	to 	the aggravated
nature of the act.” 	This 	contrast in quality and quantity 	of
witnesses 	led the 	district court 	to conclude that Esplin “failed
to fully understand the critical 	nature of 	the retention hearing
and did not present an 	adequate defense at 	the bindover stage.”
¶40 	In support of its 	conclusion, the district 	court relied
on witnesses who testified at the post-conviction hearing.
Plaintiff 	called Ed Brass, an attorney who 	specializes in
criminal law and has represented 	juveniles 	at retention hearings,
to testify. 	Brass testified that at Plaintiff’s retention
hearing, “Mr. Esplin could have presented the medical experts
that 	were 	presented in 	the [jury] trial . . . with 	respect to the
issue of whether or not the 	crime . . 	. was committed in an
aggressive or violent or premeditated manner.” 	Brass further
pointed out that Plaintiff was convicted only of attempted rape,
a 	crime devoid 	of 	any explicit element of aggression or
violence. 40 	Thus, Brass concluded, 	if the medical 	experts who
testified 	on Plaintiff’s behalf at the jury trial had also
testified 	at his retention hearing, “certainly that would have
bolstered 	the claim that this wasn’t done in an 	aggressive,
violent, [or] premeditated manner.” 	Based on the evidence
regarding 	Esplin’s performance at the 	retention 	hearing,
specifically his failure to 	present adequate defense witnesses,
we find that the district court was correct in concluding that
Plaintiff 	satisfied the first prong of Strickland.
B. 	Plaintiff 	Suffered Prejudice as a Result of His Counsel’s
Deficient 	Performance
¶41 	To satisfy the 	second prong 	of Strickland, petitioners
must 	show 	“that there is a reasonable 	probability that, 	but for
counsel’s 	unprofessional errors, 	the result of the 	proceeding
would have been different.” 41 	That 	is, petitioners must show
they 	suffered some form of prejudice because of 	counsel’s
deficient 	performance.
40 Utah Code Ann. 	76-5-402 (Supp. 2007) defines 	rape as 	the
following: 	“[T]he actor has sexual intercourse with another
person without 	the victim’s consent.” 	Similarly, section 76-4-
101 defines “attempt” without any explicit 	element 	of violence or
aggression.
41 466 	U.S. at 	694.

15 	No. 20061106
¶42 	In Templin, this court 	found that Templin suffered
prejudice 	as a 	result of his counsel’s failure to offer 	certain
witness testimony 	on his behalf. 42 	We found that this missing
testimony 	likely “affect[ed] the 	‘entire evidentiary picture.’” 43
And while 	this 	court conceded that it 	could not 	“discern the
exact effect such 	testimony 	would have had,” we 	concluded that it
was “of sufficient import that . 	. . there 	is a 	reasonable
probability that if these [additional] witnesses had been called
at trial, 	the outcome . . . 	would have been different.” 44
¶43 	We recognize, as we did in Templin, that there is no
way to discern 	the exact effect that any missing testimony would
have 	had on the outcome of Plaintiff’s retention hearing. 	In
Plaintiff’s case, 	however, we have the benefit of reviewing two
proceedings--one with defense witnesses and one without. 	Without
defense witnesses, Plaintiff was 	bound over to answer the charge
of aggravated sexual assault, a crime 	that 	requires proof of
aggression and/or violence. 45 	With 	defense witnesses, Plaintiff
was convicted of attempted rape, 	a crime that does 	not require
proof of any explicit element of 	aggression and/or violence. 46
¶44 	The defense witnesses called at Plaintiff’s criminal
trial included 	medical 	experts who testified on his behalf. 	One
of these experts was Susan Bryner Brown, a 	leading 	sexual assault
examiner in Utah who is involved 	in “collecting 	data and doing
research on pattern[s] 	of injury 	after consenting intercourse.” 47
42 805 	P.2d at 	188-90.
43 	Id. 	at 188 	(quoting Strickland, 466 U.S. at 	696).
Templin was charged with rape and convicted based chiefly on the
testimony 	of the victim. 	At his criminal trial, 	his counsel
failed to 	present 	a witness 	who had seen the defendant and victim
kissing passionately for fifteen 	minutes consensually within 	an
hour 	of the alleged rape. 	It was this missing testimony that
this 	court found to be important.
44 Id.
45 Utah Code section 76-5-405(1) 	defines aggravated sexual
assault to include “caus[ing] bodily injury to the 	victim,” or
“threatening the victim” during the course 	of a 	sexual assault.
46 See 	supra note 	43.
47 In 	her 	voir 	dire examination, 	it was established that
Susan Bryner Brown is a registered nurse who is 	credentialed to
(continued...)

No. 20061106 	16
After reviewing the photographs of Victim’s genital injuries,
Ms. Brown 	testified that she could not “say with any absolute
certainty” whether the 	injuries Victim suffered 	resulted from
consensual or nonconsensual contact. 	But she did testify that
the type of trauma Victim suffered was “consistent 	with”
injuries incurred 	from 	first-time consensual sex, also known 	as
“honeymoon laceration[s].” 	Ms. Brown 	further 	testified 	that 	it
“wouldn’t 	require 	a great amount 	of force” 	to inflict the type of
injuries Victim suffered. 	Dr. Michael Chandler, an
anesthesiologist, 	also 	testified 	that 	the pain medication Victim
took 	on the night 	of the sexual encounter could 	create
“intoxicat[ing] effects” and would “reduce 	the level of 	pain
sensation” she 	felt.
¶45 	Together, 	these experts’ testimony specifically
addressed 	the third retention factor regarding the 	level of
violence and/or aggression that occurred during 	the sexual
encounter 	between 	Plaintiff and Victim. 	Because they based
their testimony at the 	criminal trial 	on the same photographs and
reports that were 	available 	at the retention hearing, they easily
could have testified in that hearing as well.
¶46 	Based on our review of 	the testimony that was offered
on Plaintiff’s 	behalf at the criminal 	trial, we 	find that the
absence of that testimony at the 	retention 	hearing 	affected the
entire evidentiary picture. 	We further conclude that there is a
reasonable probability 	that 	if these witnesses had 	testified 	at
the retention hearing, 	the outcome would have been different.
That 	is, we find that Plaintiff suffered prejudice.
¶47 	The district court similarly found that “counsel’s
failure to present a full defense may 	have 	caused significant
prejudice 	to [Plaintiff] . . . [based 	on] the severity of the
consequences” that resulted 	from 	being tried as an adult. 48 	The
district court 	recognized that prejudice is not 	limited 	to the
47 (...continued)
conduct sexual assault examinations. 	She has conducted 	and
assisted in conducting 	over 	one thousand three hundred rape
examinations. 	She is qualified to testify 	as a 	sexual assault
expert in 	three Utah counties, helped 	develop the current Code-R
rape 	examination kit for Utah, and assists 	in credentialing Utah
nurses to 	perform Code-R examinations.She also has been 	trained
by Dr. Laura Slaughter, who 	has published four studies on
patterns of injuries related to consensual 	and nonconsensual
sexual contact.
48 (Emphasis added.)

17 	No. 20061106
validity of the conviction at issue. 	Rather, prejudice 	can take
the form of a more severe punishment. 	And that is the precise
prejudice 	Plaintiff claims he suffered.
¶48 	Plaintiff 	does 	not argue that the prejudice he suffered
as a 	result of 	being tried as an 	adult is that he was convicted
when 	he should 	have been acquitted. 	He acknowledges that he
received a full, fair trial 	during which he was 	allowed 	to
present every available defense. 	But the result 	of 	his
attempted 	rape 	conviction was a harsher penalty 	than he 	would
have 	received for 	the same or even greater 	conviction in juvenile
court. 49 	While the 	State asserts that Plaintiff suffered 	no
prejudice 	because 	he received a “full 	and fair trial in 	district
court,” we find that the jury trial did not remedy 	the prejudice
he suffered.
¶49 	Plaintiff 	points to at 	least two 	forms of prejudice 	he
suffered as a result of being tried as an adult. 	First,
having been convicted of a felony that is also a registerable sex
offense, he is 	unable to have his record expunged. 50 	Had he been
convicted 	in juvenile court 	of attempted rape or even the greater
crimes of 	aggravated sexual 	assault and/or 	forcible sodomy, his
conviction would have been subject to 	potential 	expungement. 51
Second, Plaintiff 	received far harsher penalties as a result 	of
his conviction 	in 	district court 	than 	he would have been subject
to in juvenile court. 	This 	is true whether he had 	been convicted
in the juvenile court of attempted rape, aggravated sexual
assault, forcible 	sodomy, or the 	combined crimes of aggravated
sexual assault 	and forcible sodomy. 52
¶50 	Further, we find that he suffered the 	additional
prejudice 	of being denied the rehabilitative services the
juvenile court 	was established to provide. 	The legislature has
stated that the purpose of the juvenile system is
49 See 	supra note 	21.
50 	Utah 	Code section 77-18-11(11)(b) 	prohibits 	expungement
of a 	conviction for a first 	degree felony, 	any sexual act against
a 	minor, or any registerable sex offense. 	Plaintiff 	also 	argues
that 	he suffered prejudice by being required to 	register as a sex
offender. 	However, he would 	have 	been 	required to register had
he been convicted 	of these crimes in juvenile court as well.
Utah 	Code 	Ann. 	§ 77-27-21.5(1)(b).
51 Id. 	§ 77-18-11(1)(a).
52 See 	supra note 	21.

No. 20061106 	18
“rehabilitation, reeducation, and treatment.” 53 	Thus, the
juvenile court 	should “strive to 	act in the best interests of the
minor[].” 54 	The juvenile sentencing guidelines reflect 	these
goals with their “effort to 	rehabilitate . 	. . young offenders”
and “hopefully 	change juvenile behavior.” 55 	Plaintiff 	was denied
these rehabilitative services.
¶51 	In conclusion, 	we 	find 	that 	Plaintiff 	satisfied the
Strickland test for establishing 	that 	he received ineffective
assistance of counsel. 	Esplin’s performance fell below an
objective 	standard of reasonableness when he failed to present
any defense witnesses at the retention hearing, 	and Plaintiff
suffered prejudice through harsher penalties that resulted from
being tried and convicted as an adult. 	Because he established
that 	he received ineffective assistance of 	counsel, and 	he
satisfies 	all other PCRA criteria, we 	order Plaintiff’s 	post-
conviction petition granted.
IV. 	THIS 	COURT MAY 	FASHION 	AN APPROPRIATE 	REMEDY UNDER 	THE PCRA;
THUS, WE REFORM PLAINTIFF’S 	CONVICTION TO REFLECT A JUVENILE
COURT DISPOSITION
¶52 	Under the 	PCRA, when a 	court grants a 	post-conviction
petition, 	it has broad 	discretion in fashioning remedies. 	The
reviewing 	court may “vacate 	or modify 	the conviction or
sentence.” 56 	And, 	if “the court vacates the original conviction
or sentence, it shall enter 	. . . an appropriate order.” 57
¶53 	In this case, Plaintiff is not challenging 	the
propriety 	of his conviction 	in district court. 	Because Plaintiff
received a full, fair trial 	at that level, 	we do not vacate his
conviction. 	Instead, we hereby order a remedy
appropriate to Plaintiff’s claim. 	Plaintiff 	seeks a 	juvenile
court disposition 	of his conviction for attempted rape. 	Because
Plaintiff 	has served his jail sentence and 	paid 	his fine, the
only 	relief a juvenile 	court disposition offers 	Plaintiff is the
ability to petition to 	expunge his record. 	We therefore order
53 Utah Code Ann. 	§ 78A-6-102(5)(c).
54 Id. 	§ 78A-6-102(5)(g).
55 Utah Juvenile Sentencing 	Guidelines Manual (2007).
56 Utah Code Ann. 	§ 78-35a-104(1) (2002).
57 Utah R. Civ. P. 65C(m)(1) (emphasis added).

19 	No. 20061106
Plaintiff’s record expungeable in accordance with the
requirements of Utah Code section 78A-6-1105.
CONCLUSION
¶54 	First, we 	hold 	that the PCRA applies to Plaintiff’s
claim that he received 	ineffective assistance of counsel at his
juvenile court retention hearing. 	Second, we hold that the
district court 	erred in interpreting State 	v. F.L.R. to 	stand for
the proposition that Plaintiff’s 	bindover to district court was
automatic.The district court also erred in 	basing its denial 	of
Plaintiff’s petition on that interpretation. 	Third, we 	hold
that 	Plaintiff 	established that he received ineffective
assistance of counsel at his juvenile 	court retention hearing:
Esplin’s performance fell below an objective standard of
reasonableness, and Plaintiff suffered prejudice by being tried
and convicted as an adult rather 	than 	as a juvenile. 	Finally, we
grant Plaintiff’s 	petition and order that his record be 	made
expungeable consistent 	with 	a juvenile disposition 	and in
accordance with Utah Code section 78A-6-1105.
---
¶55 	Chief Justice Durham, Justice Parrish, and Justice
Nehring concur 	in 	Associate 	Chief Justice Durrant’s opinion.
---
WILKINS, Justice, 	dissenting:
¶56 	I 	respectfully dissent.
¶57 	In an effort to soften 	what 	they 	perceive as an 	unduly
harsh consequence, my colleagues 	fail 	to acknowledge the unique
and distinct role 	of the juvenile courts in our 	state court
scheme. 	As they did in 	State ex rel. K.M., they extend into the
juvenile court 	presumptions 	and analytic tools used in the adult
system that are not well suited for the different purposes and
processes 	of the juvenile court. 	2007 	UT 93, 173 P.3d 1279. 	In
doing so, 	they 	jeopardize the value of the 	juvenile court system
as a 	whole and 	present 	obstacles 	to its function that will, in my
view, eventually lead to its elimination or absorption by the
adult process.
¶58Plaintiff 	S.H. 	attempted to 	rape 	his fifteen-year- 	old
female victim. 	In the process, she was injured by him enough
to bleed, 	despite 	her resistance 	and her efforts to avoid being
raped. 	This 	occurred in his automobile, 	at night, 	in an isolated

No. 20061106 	20
location. 	He was convicted by a jury, 	and his conviction was
affirmed on appeal. 	As a 	consequence, 	he is required 	under our
law to register as a sex offender. 	None 	of these facts are at
issue.
¶59 	Having lost at 	trial and on 	appeal, he now 	asks 	us 	to
relieve him of 	the obligation of 	registering as 	a sex offender
for the same extended period imposed by law on all 	others found
guilty of 	the same offense. 	My colleagues have found a way to do
so.
¶60 	Plaintiff 	was charged with aggravated 	sexual assault
and forcible sodomy. 	The role of the juvenile court was to 	act
first as a magistrate to determine if 	there was 	probable cause to
believe that Plaintiff 	had committed aggravated 	sexual assault. 1
As my colleagues acknowledge, the State met this burden. 	The
medical testimony, and 	that 	of the victim, 	was clearly enough to
meet 	the probable 	cause standard 	required by law. 	At that point,
the juvenile court was 	obligated 	to apply the “strong
presumption” underlying the 	Serious Youth Offender 	Act 2 that 	the
case 	be transferred to 	the district court. 3 	Once 	transferred,
the matter stays in the district 	court unless the defendant is
acquitted 	on all charges, in which event any new matter involving
the minor 	may be brought in 	the juvenile court. 4 	Once
transferred to 	the adult system, 	however, anything 	related to the
charges for which 	the transfer is made stays in 	district court. 5
¶61 	Once 	probable cause has been established, the defendant
may seek to overcome the “strong 	presumption” of transfer by
proving all three 	of the retention factors. 6 	Even 	if all three
retention 	factors 	are clearly established, 	however, the 	policy
embodied in the Serious Youth Offender Act 	that 	the matter is
best 	dealt with in the 	adult system does not evaporate. 	The
juvenile court 	is 	still faced with consideration of where the
1 See 	Utah Code Ann. § 	78A-6-702(3)(a) (Supp. 2008).
2 Id. 	§§ 78A-6-701 to -704.
3 State v. F.L.R., 2006 UT App 294, ¶ 	3, 141 P.3d 601
(quoting In re 	A.B., 936 P.2d 1091, 1095, 1099 (Utah Ct. App.
1997)).
4 See 	Utah Code Ann. § 	78A-6-702(10)-(11).
5 See 	id. 	§ 78A-6-702(7).
6 See 	id. 	§ 78A-6-702(3)(b)-(d).

21 	No. 20061106
interests 	of justice, including the interests of the victim, of
the defendant, 	and of society, will best be served, and retains
jurisdiction only 	if convinced the quasi-criminal process of
juvenile court, with its broad array of services, but limited
array of criminal 	sanctions, is the best venue.
¶62 	In the case of 	Plaintiff, the juvenile court had just
been 	convinced 	that there was probable cause to 	believe 	that 	he
had raped 	his fifteen-year-old victim 	in a 	violent 	or aggressive
manner. 	No other conclusion would have supported bindover on the
charge of 	aggravated sexual assault. 	And although Esplin,
Plaintiff’s attorney at the 	retention 	hearing, might well have
presented 	expert medical testimony of 	possible other explanations
for the injuries suffered by the 	victim, as was 	done at 	trial, to
do so would have alerted the prosecution to those elements of
defense well in advance of trial 	and, 	in my view, stood 	little
chance of 	keeping 	the trial 	of an aggravated sexual assault in
the juvenile court.
¶63 	Only 	speculation supports the proposition that calling
medical experts would have created any meaningful likelihood 	of a
different 	result in the juvenile court. 	Moreover, 	I find it
completely rational to 	see the “failure” to call defense
witnesses 	at that 	stage as part of a reasonable 	defense strategy,
one that ultimately got Plaintiff acquitted of the 	aggravated
sexual assault charge. 	I 	also find no 	support 	for the conclusion
that 	the consequences to Plaintiff in 	juvenile court would
automatically have been more favorable.
¶64 	Had he been tried 	on the charges 	of aggravated sexual
assault and of 	forcible sodomy in the 	juvenile court, he would
have 	been 	tried without a jury. 7 	Upon 	conviction of attempted
rape, had 	that 	been the result, he could have been 	sentenced 	to
secure confinement until his twenty-first birthday, in addition
to all of 	the probationary and monetary consequences available to
the court. 8 	The only certainty of a better result, had 	he stayed
in the juvenile system, would have been a reduction in the
requirement that he register as a sex 	offender from life to ten
years. 9
7 See 	Utah Code Ann. § 	78A-6-114(1).
8 See 	id. 	§ 78A-6-117(2).
9 See 	id. 	§ 77-27-21.5(10)(a), (c)(ii)(B)(III).

No. 20061106 	22
¶65 	I 	would not extend the 	reach of the Post-Conviction
Remedies Act 10 (“PCRA”) to include review of juvenile court
proceedings when challenging action in the district court. 	I 	do
not see the extension as either mandated or wise. 	Many
activities in the 	juvenile court 	system have an 	impact on
charging and sentencing in the adult system. 	Arguably, 	any of
those steps would 	be subject to PCRA review under the analysis
used 	by my colleagues here.
¶66 	I 	also find no 	justification for 	the presumption that
the juvenile court would have retained jurisdiction of
Plaintiff’s case had additional witnesses been called at the
retention hearing. 	None 	were 	fact 	witnesses to 	the assault.
None 	could testify directly 	of the degree of aggression, or lack
thereof, in the sexual assault. 	Testimony 	of Plaintiff’s
character 	would not have changed that either. 	Faced with the
facts before it, even assuming presentation of the 	experts
suggested 	by my colleagues, 	the juvenile court may 	well 	have
still transferred 	the case to the adult system. No showing 	to
the contrary has been made, 	or even offered by Plaintiff.
¶67 	Moreover, 	even 	ignoring the 	Strickland presumption that
defense counsel had a reason for 	his “failure” to call witnesses,
only 	the sex offender registry requirement 	is likely to 	have been
“more favorable” in outcome. 	Strickland v. Washington, 466 U.S.
668, 689 (1984). 	All other 	consequences 	could have been more
severe than those 	actually meted 	out by the district court, and
the defendant has 	given us no reason to believe 	that they would
have 	been more favorable. 	In fact, given 	the less severe maximum
available 	to the juvenile court, 	the likelihood 	of 	Plaintiff
having been convicted as charged remains unchallenged. 	As a
result, even under the 	nonbinding sentencing guidelines
applicable to juvenile 	proceedings at 	the time, 	he 	may well have
faced more time incarcerated and 	harsher penalties, other than
the length of his 	obligation to register as a sex offender.
¶68 	Given the 	independent nature of the juvenile process
and the different 	objectives of juvenile court action, I would
hold 	that 	a post-conviction 	relief petition filed following a
trial in the district court 	can reach 	back 	no further than the
time 	of acquisition of 	district court jurisdiction. 	As we have
previously held in this matter, the proper 	time 	to 	object to the
juvenile court’s application of the provisions of the Serious
Youth Offender 	Act is at the time of the transfer order, and not
at any other time. 	State v. S.H., 	2002 UT 	118, 	¶ 23, 62
P.3d 	444.
10 Id. 	§§ 	78B-9-101 to 	-405.

23 	No. 20061106
¶69 	I 	would also hold 	that 	applying the Strickland
standards 	to representation 	in juvenile court must 	include not
only 	a review of counsel’s actions considered in a 	juvenile court
context, as opposed to 	the adult 	system, but also that the
consequences of any action or failure 	by counsel in the 	juvenile
proceeding must be measured 	against the likelihood 	of a 	more
favorable 	outcome 	in the juvenile proceeding, not a more
favorable 	overall 	outcome contrasted to the adult result.
¶70 	Finally, I see 	no 	need 	to craft a remedy to further
intermingle the adult and juvenile processes. 	Consequently, I
dissent and would 	affirm the result reached by the 	trial court.
---