Valenzuela-Lozoya v. West Valley City

2015 UT App 122

THE UTAH COURT OF APPEALS

JESUS ALFONZO VALENZUELA-LOZOYA,
Petitioner and Appellee,
v.
WEST VALLEY CITY,
Respondent and Appellant.

Memorandum Decision
No. 20140054-CA
Filed May 14, 2015

Third District Court, Salt Lake Department
The Honorable John Paul Kennedy
No. 130902649

Ryan D. Robinson and Daniel R. Strong, Attorneys
for Appellant
T. Laura Lui and Gage C. Herbst, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES JOHN A. PEARCE and KATE A. TOOMEY concurred.

ROTH, Judge:

¶1 West Valley City (the City) appeals the district court’s
grant of postconviction relief to Jesus Alfonzo Valenzuela-
Lozoya, which overturned his conviction for driving under the
influence of alcohol (DUI). We reverse and remand for further
proceedings.

¶2 On May 19, 2012, the City charged Valenzuela-Lozoya
with DUI, driving on the sidewalk, driving without a valid
license, and minor in possession of alcohol. On May 23, 2012,
Valenzuela-Lozoya pleaded guilty in the justice court to the DUI
offense in exchange for dismissal of the other charges. He signed
a plea agreement that stated the factual basis for his plea,
Valenzuela-Lozoya v. West Valley City

informed him of the burden of proof and the presumption of
innocence, and advised him of the other constitutional rights he
was waiving, including the rights to a speedy public trial before
an impartial jury, to compel and examine witnesses, and to
either testify or remain silent. Valenzuela-Lozoya initialed next
to the description of each right he was waiving. 1 The plea
agreement also included a ‚certification of voluntariness.‛ Of
significance here, Valenzuela-Lozoya initialed the following two
statements:

I am entering this plea of my own free will
and choice. No force, threats, o[r] unlawful
influence of any kind have been made to get me to
plead guilty (or no contest). No promises except
those contained in this statement have been made
to me.

I have read this statement, or I have had it
read to me by my attorney, and I understand its
contents and adopt each statement in it as my own.
I know that I am free to change or delete anything
contained in this statement, but I do not wish to
make any changes because all of the statements are
correct.

Both Valenzuela-Lozoya and his attorney signed the plea
agreement.

¶3 That same day, Valenzuela-Lozoya entered his guilty plea
in justice court. As part of that process, the justice court judge
made the following inquiry:

1. Valenzuela-Lozoya points out, however, that he did not initial
the factual basis for his plea, even though there was a space for
him to do so.

20140054-CA 2 2015 UT App 122
Valenzuela-Lozoya v. West Valley City

You’ve read through this *plea agreement+ form
that tells me you understand what rights you have.
You’d be admitting that on this day you drove a
motor vehicle with sufficient alcohol in your
system such—breath test of .217, which is greater
than a .08. By pleading guilty, you’re waiving the
rights you have. And you’ve initialed throughout
this form; that tells me you’ve read through it, you
know what rights you have, you’ve talked it over
with your attorney to your satisfaction.

If you wanted more time or your trial rights,
we’d happily afford them to you, but you are
waiving them by going forward today and
pleading guilty. Do you understand that?[2]

Valenzuela-Lozoya responded, ‚Yes, sir.‛ The judge then
advised Valenzuela-Lozoya of his right to appeal, accepted his
guilty plea, and announced sentence. Valenzuela-Lozoya did not
appeal.

¶4 Nearly eleven months later, on April 12, 2013, Valenzuela-
Lozoya filed a petition for postconviction relief in the district
court. The premise of his petition was that the DUI conviction
resulted from a plea that ‚was unlawfully induced or not made
voluntarily with understanding of the nature of the charge and
the consequences of the plea.‛ Valenzuela-Lozoya argued that
the justice court had not complied with rule 11(e) of the Utah
Rules of Criminal Procedure and that defense counsel had not
provided effective assistance of counsel. Valenzuela-Lozoya

2. Although the justice court is not a court of record, Valenzuela-
Lozoya attached a certified transcript of the plea hearing to his
petition for postconviction relief. The City does not dispute the
accuracy of the transcript.

20140054-CA 3 2015 UT App 122
Valenzuela-Lozoya v. West Valley City

based both the rule 11 claim and the ineffective assistance claim
on a contention that neither the court nor counsel had advised
him of the potential immigration consequences of pleading
guilty to DUI. Specifically, he asserted that he was not made
aware that the DUI conviction would lead to ‚his current
deportation proceedings, and would not allow him to qualify for
DACA,‛ the Deferred Action for Childhood Arrival program.
Valenzuela-Lozoya claims DACA would have allowed him to
legally remain in the United States but for the DUI conviction.

¶5 In response to Valenzuela-Lozoya’s petition, the City
argued that the totality of the circumstances, including
Valenzuela-Lozoya’s signed and initialed plea agreement and
the justice court’s colloquy at the plea hearing, demonstrated
that the court had adequately met the requirements of rule 11 for
notifying Valenzuela-Lozoya of the consequences of the plea and
that the plea was knowing and voluntary. The City also asserted
that defense counsel did not render ineffective assistance. It
argued that the plea had no bearing on the deportation pro-
ceedings because authorities from Immigration and Customs
Enforcement (ICE) placed him on ‚an immigration hold‛ at the
time of his arrest due to his ‚undocumented‛ status in the
United States, not because of the DUI. The City further argued
that defense counsel could not have notified Valenzuela-Lozoya
of any DACA consequences because DACA did not exist at the
time of Valenzuela-Lozoya’s plea and was not even announced
until June 2012, which was weeks after Valenzuela-Lozoya had
pleaded guilty.

¶6 After four months elapsed without either a response to
the City’s objection or another filing requiring court action, the
City asked the district court to order Valenzuela-Lozoya to
‚show cause why the case should not be dismissed‛ for failure
to prosecute. The district court held an order to show cause
hearing on December 3, 2013. At the hearing, Valenzuela-Lozoya
requested a three-day extension to file a reply to the City’s

20140054-CA 4 2015 UT App 122
Valenzuela-Lozoya v. West Valley City

objection to his petition. The City opposed an extension, arguing
that Valenzuela-Lozoya had had ample time to respond and that
he was only seeking an extension to delay the proceedings
because ICE would not make a decision about whether to
actually proceed with deportation until it learned ‚the outcome
of this case.‛ When ask about his motivation for the extension,
Valenzuela-Lozoya replied,

*T+he City’s objection *regarding the timing of
DACA+ was excellent, and it’s been taking us some
time to try to figure out a way to reply in a manner
that had some teeth to it. We believe that we . . .
have finally found some case law that at least
would give us some teeth into the matter . . . .

Valenzuela-Lozoya then raised a claim not set out in his original
petition. He argued that the justice court had committed a rule
11 violation when it failed to specifically ask him during the plea
colloquy ‚if he has read the waiver, if he acknowledges the
waiver and if he understands the waiver, and if he has any
questions regarding the waiver.‛3 The court’s failure to strictly
comply with rule 11, Valenzuela-Lozoya contended, meant that
the plea agreement—and consequently his waiver of rights—had
not been properly incorporated into the record and made his
plea invalid. See Utah R. Crim. P. 11(e).

¶7 Although the hearing had been scheduled only as an
order to show cause hearing, the district court then stated that it
was ready to hear the merits of the postconviction petition and
invited the City to respond to Valenzuela-Lozoya’s argument.
The City responded to both the DACA claims in the petition and
Valenzuela-Lozoya’s new claim that the justice court had

3. In this context, Valenzuela-Lozoya used the word ‚waiver‛ to
refer to the plea agreement.

20140054-CA 5 2015 UT App 122
Valenzuela-Lozoya v. West Valley City

violated rule 11 by not specifically inquiring into his
understanding of his rights. It first contended that because
Valenzuela-Lozoya’s plea ‚pre-dated the announcement‛ of
DACA, neither defense counsel nor the justice court could have
informed him of the risk that a guilty plea would make him
ineligible for DACA relief. The City then addressed Valenzuela-
Lozoya’s argument that the justice court had failed to comply
with rule 11 in its inquiry into Valenzuela-Lozoya’s
understanding of the waiver of his rights. The City explained
that not only did the plea agreement that Valenzuela-Lozoya
had initialed and signed thoroughly inform him of his rights, as
well as the consequences of the plea, but the judge had also
discussed those rights with Valenzuela-Lozoya and then
confirmed that he had conferred with his attorney about his
rights and the decision to plead guilty and understood that by
pleading guilty he was giving up those rights. At this point, the
court asked the City, ‚*Valenzuela-Lozoya] is saying that
Counsel should have filed an appeal within 30 days after the
plea saying, ‘I wasn’t given my Rule 11 colloquy in an
appropriate way, and therefore I shouldn’t be held to stick by
my plea agreement.’ . . . Why isn’t that ineffective assistance?‛
The City responded that ‚it wasn’t ineffective‛ because
Valenzuela-Lozoya had received the benefit of a very favorable
deal that he had been happy with until the announcement of
DACA, which occurred well after he entered his plea. 4

4. It is undisputed that DACA had not been announced when
Valenzuela-Lozoya entered his guilty plea. On appeal,
Valenzuela-Lozoya contends that ‚DACA was officially
authorized a mere two and a half weeks after [his] plea‛ and
therefore could have been a basis for immediately seeking a trial
de novo in the district court. Valenzuela-Lozoya also argues that
at the time of his plea, ‚there was considerable discussion
regarding the availability of this form of immigration relief to
individuals in *his+ situation.‛

20140054-CA 6 2015 UT App 122
Valenzuela-Lozoya v. West Valley City

Valenzuela-Lozoya did not specifically address the DACA issue
at the hearing.

¶8 After hearing argument, the district court ruled from the
bench, granting Valenzuela-Lozoya’s petition with the
explanation that it had not ‚seen a request by a defendant to
withdraw a plea that hasn’t been approved by the Court of
Appeals.‛ The City protested that it could provide cases to rebut
that statement but did not have any with it because it had not
been prepared for argument on the merits of the petition at what
had been scheduled as an order to show cause hearing. The
district court refused the request, explaining that it had given the
City an opportunity to respond and that although the City had
‚made a good argument,‛ the court agreed, on balance, with
Valenzuela-Lozoya. It then directed Valenzuela-Lozoya to
prepare an order vacating the conviction. Later that day,
Valenzuela-Lozoya filed a notice to submit and an Order
Overturning Conviction, which the court signed. The order
explained that the basis for overturning Valenzuela-Lozoya’s
conviction was that the justice court ‚failed to adequately
question [Valenzuela-Lozoya] in relation to [the plea
agreement+‛ as required by rule 11(e), causing his waiver of
rights to ‚not *be+ incorporated into the record‛ and to be
‚invalid for any and all purposes, including, but not limited to,
obtaining a knowing and voluntary plea.‛

¶9 The City appeals, arguing that the district court erred in
granting postconviction relief because (1) it applied the wrong
standard for assessing the claimed rule 11 violation, (2)
Valenzuela-Lozoya’s claims are procedurally barred by the Post-
Conviction Remedies Act (the PCRA),5 and (3) to the extent

5. The City raises this issue for the first time on appeal but is
explicitly authorized to do so by the PCRA. See Utah Code Ann.
§ 78B-9-106(2) (LexisNexis 2012) (explaining that, in most cases,
(continued<)

20140054-CA 7 2015 UT App 122
Valenzuela-Lozoya v. West Valley City

Valenzuela-Lozoya might have overcome the PCRA’s
procedural bar through an ineffective assistance of counsel
claim, he has failed to demonstrate that defense counsel was
ineffective. Thus, the City asks us to ‚reverse the district court’s
Order Overturning Conviction.‛

¶10 We agree with the City that the district court used the
wrong standard to assess the rule 11 claim and also that
Valenzuela-Lozoya’s claims were procedurally barred, except to
the extent that he raised a claim of ineffective assistance of
counsel. Regarding the ineffective assistance claim, we conclude
that it presents factual questions that must be resolved by the
district court before a decision can be made on the merits of the
petition for postconviction relief.

I. The District Court Applied the Wrong Standard in Assessing
Valenzuela-Lozoya’s Rule 11 Claim.

¶11 ‚A guilty plea involves the waiver of several
constitutional rights and is therefore valid . . . only if it is made
voluntarily, knowingly, and intelligently, with sufficient
awareness of the relevant circumstances and likely
consequences.‛ State v. Alexander, 2012 UT 27, ¶ 16, 279 P.3d 371
(citation and internal quotation marks omitted). ‚In order to
ensure that defendants have a complete understanding of the
charge and of the constitutional rights they are waiving by
entering a plea, [the Utah Supreme Court] created rule 11 of the
Utah Rules of Criminal Procedure.‛ Id. ¶ 17. ‚Rule 11 highlights
important rights‛ that the court must ensure defendants

(<continued)
the government ‚may raise any of the procedural bars . . . at any
time, including during [its] appeal from an order granting
postconviction relief‛). Valenzuela-Lozoya does not dispute this.

20140054-CA 8 2015 UT App 122
Valenzuela-Lozoya v. West Valley City

‚understand in order for their pleas to be valid.‛ Id. ¶ 24; see also
Utah R. Crim. P. 11(e).

¶12 However, ‚a failure to comply with Utah’s rule 11 does
not in itself amount to a violation of a defendant’s rights under
either the Utah or the United States Constitution.‛ Moench v.
State, 2004 UT App 57, ¶ 17, 88 P.3d 353 (citation and internal
quotation marks omitted); see also Utah R. Crim. P. 11(l) (‚Failure
to comply with this rule is not, by itself, sufficient grounds for a
collateral attack on a guilty plea.‛). Rather, a defendant ‚must
show that the guilty plea was in fact not knowing and
voluntary.‛ Moench, 2004 UT App 57, ¶ 17 (citation and internal
quotation marks omitted). This inquiry should ‚not [be] limited
to the record of the plea hearing but may look at the
surrounding facts and circumstances including the information
[the defendant] received from his . . . attorney[] before entering
the plea.‛ Id. (omission and third alteration in original) (citation
and internal quotation marks omitted).

¶13 In the district court, Valenzuela-Lozoya argued that his
guilty plea ought to be set aside and his conviction overturned
because the justice court failed to strictly comply with rule 11 by
‚affirmatively ask*ing+‛ specific questions regarding his
knowledge and understanding of the rights he was giving up by
pleading guilty. The district court agreed, finding that prior to
accepting Valenzuela-Lozoya’s guilty plea, the justice court
‚failed to adequately question *him+‛ in relation to the plea
agreement that addressed his rights and therefore failed to
adequately incorporate it into the record as required by
rule 11(e). But by confining its analysis to whether the justice
court had strictly complied with rule 11, the district court
unnecessarily curtailed its inquiry into whether Valenzuela-
Lozoya’s plea was knowing and voluntary, a determination that
must take into account not only rule 11 compliance but all the
‚surrounding facts and circumstances‛ of the plea. See id.
(citation and internal quotation marks omitted). Because the

20140054-CA 9 2015 UT App 122
Valenzuela-Lozoya v. West Valley City

district court applied the wrong legal standard, its grant of
postconviction relief was inappropriate.

¶14 While the City has argued on appeal that the district court
applied the wrong legal standard in determining that
Valenzuela-Lozoya’s plea was not knowing and voluntary, it
also contends that the standard applied is immaterial because, in
any event, Valenzuela-Lozoya was not eligible for
postconviction relief at all due to his failure to bring a direct
appeal. As we will discuss in the following section, we disagree.

II. Valenzuela-Lozoya’s Ineffective Assistance of Counsel Claim
Falls Within an Exception to the PCRA’s Procedural Bar.

¶15 The City makes two related arguments in support of its
contention that Valenzuela-Lozoya is ineligible for
postconviction relief. First, it claims that Valenzuela-Lozoya
failed to exhaust all legal remedies. Second, it asserts that
Valenzuela-Lozoya’s claims are barred because he could have
and should have sought an appeal in the form of a trial de novo
in the district court.

¶16 The PCRA provides a remedy ‚for any person who
challenges a conviction . . . for a criminal offense and who has
exhausted all other legal remedies, including a direct appeal.‛
Utah Code Ann. § 78B-9-102(1) (LexisNexis 2012). The City
contends that the reference to exhaustion of all legal remedies
makes filing a direct appeal a prerequisite to obtaining
postconviction relief. The Utah Supreme Court, however, has
recognized that ‚a defendant who simply fails to file an appeal
within the time limits required by rule 4(a) of the Utah Rules of
Appellate Procedure would reasonably be considered to have
exhausted any remedies he might have obtained thereby for
purposes of the PCRA.‛ Manning v. State, 2005 UT 61, ¶ 24, 122
P.3d 628; see also Oseguera v. State, 2014 UT 31, ¶¶ 4–5, 19, 332
P.3d 963 (explaining, in a case where the facts suggested that the
defendant had not filed a direct appeal, that the defendant had

20140054-CA 10 2015 UT App 122
Valenzuela-Lozoya v. West Valley City

to seek relief pursuant to the PCRA). Valenzuela-Lozoya’s PCRA
claim therefore is not barred for failure to exhaust legal remedies
simply because he failed to file a direct appeal.

¶17 The City argues that Valenzuela-Lozoya’s failure to
appeal nevertheless bars his PCRA claim because he could have
raised the claims he now makes in his postconviction petition in
a direct appeal to the district court.6 The City points out that
under the PCRA, a defendant ‚is not eligible for relief . . . upon
any ground that . . . could have been but was not raised at trial
or on appeal.‛ See Utah Code Ann. § 78B-9-106(1)(c). And the
Utah Supreme Court has concluded that this requirement
applies to cases originating in justice court: ‚*A PCRA] challenge
to *a defendant’s+ justice court convictions is barred by his
failure to seek a trial de novo in the district court.‛ Peterson v.

6. Generally, a defendant who is sentenced on the same date that
he enters his guilty plea cannot challenge a purported defect in
the plea process in a direct appeal because such a challenge has
to be made before sentencing. Utah R. Crim. P. 11(e)(8) (noting
that a defendant who has entered a guilty plea has only a limited
right to appeal); see also Utah Code Ann. § 77-13-1(2)(c)
(LexisNexis 2012) (‚Any challenge to a guilty plea not made *by
requesting to withdraw the plea before sentencing] shall be
pursued under . . . *the+ Postconviction Remedies Act.‛). ‚*T+he
appeals process from a justice court decision is unique,‛
however, and even a defendant dissatisfied with just his
sentence has the opportunity to ‚undergo a trial de novo in the
district court.‛ Lucero v. Kennard, 2005 UT 79, ¶ 11, 125 P.3d 917
(citation and internal quotation marks omitted). Thus, had
defense counsel sought a trial de novo, the only appeal
mechanism available to Valenzuela-Lozoya, counsel would have
assured Valenzuela-Lozoya the right to a trial, thus affording
him the relief he sought—the effective nullification of his guilty
plea.

20140054-CA 11 2015 UT App 122
Valenzuela-Lozoya v. West Valley City

Kennard, 2008 UT 90, ¶ 7, 201 P.3d 956 (citation and internal
quotation marks omitted). But the PCRA provides an exception
to this procedural bar where ‚the failure to raise that ground *on
appeal+ was due to ineffective assistance of counsel.‛ Utah Code
Ann. § 78B-9-106(3).

¶18 In requesting postconviction relief, Valenzuela-Lozoya
asserted that his counsel was ineffective for failing to seek a trial
de novo given the constitutional defects in his plea and the
plea’s immigration consequences. Because a claim of
ineffectiveness surmounts the procedural bar for claims that
should have been brought on direct appeal, we now turn to that
claim.

III. We Remand for Further Consideration of Valenzuela-
Lozoya’s Ineffective Assistance of Counsel Claim.

¶19 There are two aspects to Valenzuela-Lozoya’s ineffective
assistance of counsel claim. First, the district court treated
Valenzuela-Lozoya arguments about the rule 11 violation as a
claim that counsel was ineffective for failing to seek a trial de
novo. Accordingly, as we discussed above, the court then went
on to assess whether counsel was ineffective in protecting
Valenzuela-Lozoya from a constitutionally defective plea under
the wrong legal standard or in failing to seek a trial de novo in
the face of such an error. See Ross v. State, 2012 UT 93, ¶ 24, 293
P.3d 345 (explaining that in ‚determin[ing] whether counsel was
ineffective for failing to raise an issue on appeal, [the reviewing
court] examine[s] the merits of the omitted issue‛ (citation and
internal quotation marks omitted)).

¶20 The second aspect is that defense counsel was ineffective
for failing to inform Valenzuela-Lozoya of the immigration con-
sequences of his guilty plea, namely the risk of deportation and
the negative effect of a conviction on his eligibility for DACA.
The City contends that Valenzuela-Lozoya’s counsel did not
have to inform Valenzuela-Lozoya that he was at risk of

20140054-CA 12 2015 UT App 122
Valenzuela-Lozoya v. West Valley City

deportation by entering a guilty plea because he was already at
risk for deportation by virtue of his undocumented status in the
United States. The City also argues that because Valenzuela-
Lozoya entered his plea before DACA was even announced,
much less implemented, counsel could not have notified him of
DACA or known to advise him to seek immigration advice.
Apparently because the district court ruled in Valenzuela-
Lozoya’s favor on the rule 11 issue, the court did not address this
issue in overturning Valenzuela-Lozoya’s conviction.

¶21 The City asks this court to resolve on appeal both aspects
of Valenzuela-Lozoya’s ineffectiveness claim. We decline the
invitation because both issues seem to involve questions of fact
that have not yet been addressed by the district court.7 For
instance, although Valenzuela-Lozoya concedes that DACA had
not yet been announced when he entered his guilty plea, he
contends that there were rumors about its probable
implementation at the time he was considering a plea and that
those rumors, coupled with the fact that DACA was announced
prior to the expiration of his appeal period, were enough to
require defense counsel, at the very least, to advise him to speak
to an immigration specialist. Whether counsel was ineffective in
not seeking a trial de novo in the face of the purported defects in
the plea process is similarly fact-dependent, as it requires
consideration of the totality of the circumstances surrounding
Valenzuela-Lozoya’s guilty plea. This sort of fact-based inquiry

7. Because the development of a pertinent factual record seemed
to have been curtailed by the district court’s decision to resolve
the case at an order to show cause hearing, we also believe it
imprudent for us to undertake to resolve the issue simply on the
facts before us.

20140054-CA 13 2015 UT App 122
Valenzuela-Lozoya v. West Valley City

is the province of trial courts, not courts of appeal.8 Accordingly,
we reverse the grant of postconviction relief and remand to the
district court for resolution of Valenzuela-Lozoya’s
postconviction claim of ineffective assistance of counsel.

8. By noting these potential fact questions, we do not intend to
express any opinion as to whether such facts are legally relevant
to the resolution of the ineffectiveness of counsel claim that the
district court must resolve on remand. Furthermore, we do not
mean to limit the scope of the fact questions that might be
pertinent to resolution of that issue.

20140054-CA 14 2015 UT App 122