Johnson v. State

1 Utah Code Ann. §§ 78-35a-101 to -110 (2002).
2006 UT 21
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Donald R. Johnson, No. 20040494
Plaintiff and Petitioner,
v.
F I L E D
State of Utah,
Defendant and Respondent. April 4, 2006
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Sixth District, Kanab Dep’t
The Honorable David L. Mower
No. 010600042
Attorneys: Margaret P. Lindsay, Orem, and Patrick V. Lindsay,
Provo, for plaintiff
Mark L. Shurtleff, Att’y Gen., Thomas Brunker, Asst.
Att’y Gen., Salt Lake City, for defendant
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On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
¶1 We granted certiorari in this case to determine whether
a district court may order nunc pro tunc resentencing of a
defendant without first determining that the defendant satisfies
the jurisdictional prerequisites of the Post-Conviction Remedies
Act (“PCRA”).1 Plaintiff Donald R. Johnson filed a petition for
post-conviction relief in the district court more than a year
after his conviction. The district court ordered that Johnson be
resentenced, thereby reviving his right to appeal his conviction.
Although the PCRA requires that petitions for post-conviction
relief be filed within a year after a cause of action has
accrued, it grants a district court discretion to excuse untimely
filings in the interests of justice. Because the district court
failed to find that Johnson’s untimely filing met the interests
of justice exception to the PCRA’s limitations period, the court

2 2005 UT 61, 122 P.3d 628.
3 See Utah Code Ann. § 77-15-5(1) (1997).
4 See id. § 62A-15-631(9)(b) (2000) (requiring that a
(continued...)
No. 20040494 2
of appeals vacated his resentencing. Johnson argues that the
interests of justice exception to the PCRA applies to his case,
that the district court was not required to make any specific
findings in this regard, and that resentencing was a proper
remedy.
¶2 Our recently issued opinion in Manning v. State2
eliminated nunc pro tunc resentencing as a remedy in those cases
where a defendant has been denied his right to appeal, replacing
it with a simple reinstatement of the right to appeal upon a
showing that a defendant has been unconstitutionally denied that
right. Under our opinion in Manning, Johnson was not required to
proceed under the PCRA in order to seek reinstatement of his
right to appeal. Because Johnson claims that his right to appeal
has been denied, we remand this case for the purpose of
determining his eligibility for relief under the procedure
outlined in Manning.
BACKGROUND AND PROCEDURAL HISTORY
¶3 In 1993, the Kane County attorney initiated proceedings
charging Johnson with forty counts of various crimes (the “first
case”). After entering and then withdrawing a guilty plea,
Johnson filed a petition seeking a competency evaluation. The
district court granted the petition and ordered that Johnson “be
examined for competency” to stand trial.
¶4 While the first case was still pending, Johnson was
charged with assault in a separate criminal proceeding (the
“second case”). The district court also ordered a competency
examination in that case.3 Two court-appointed evaluators
subsequently submitted reports to the court stating their
conclusions that Johnson was competent to stand trial.
¶5 On March 21, 1997, the district court held a status
conference on the first and second cases. While the court
acknowledged receipt of the competency evaluations during this
hearing, it spent the majority of the hearing considering a
motion to withdraw that had been filed by Johnson’s attorney. It
failed to allow Johnson to testify or to present or cross-examine
witnesses regarding his competency, as required by Utah law.4

4 (...continued)
defendant whose competency is in question be provided “an
opportunity to appear at [a competency] hearing, to testify, and
to present and cross-examine witnesses”).
5 See Utah R. App. P. 4(a).
6 State v. Johnson, 2000 UT App 127U, at *2-3.
7 Id. at *5.
3 No. 20040494
¶6 At the conclusion of the hearing, the district court
granted counsel’s motion to withdraw, but required that counsel
serve in a standby capacity during the trial in the first case,
which was scheduled for some three months later. The court made
no formal findings regarding Johnson’s competency and held no
further hearings on the competency issue.
¶7 Johnson did not appear at his trial in the first case,
claiming that he was mentally incapacitated. In his absence, he
was convicted of one count each of possession and production of a
narcotic and possession of a firearm by a restricted person.
Johnson was similarly absent from his sentencing. Although the
sentencing order indicates that Johnson had thirty days within
which to appeal, it is unclear whether this information was
conveyed to Johnson. Johnson failed to file a timely appeal of
his conviction in the first case.5
¶8 Johnson was similarly convicted in the second case. He
did, however, timely appeal that conviction. On appeal, Johnson
asserted that the district court failed to follow the competency
hearing procedures set forth in Utah Code section
62A-15-631(9)(b) through (9)(f).6 The court of appeals agreed,
reversing his conviction in the second case and remanding it for
a new trial, contingent upon the district court determining
Johnson’s competency.7
¶9 In May 2001, Johnson filed a petition under the PCRA
seeking relief from his conviction in the first case. Johnson
asserted that he was entitled to relief because of the flawed
competency hearing, ineffective assistance of counsel, and a
denial of his right to appeal. In support of this last
assertion, Johnson claimed that the Kane County jail staff
poisoned him and that his resulting mental incapacitation
prevented him from filing a timely appeal. Johnson acknowledged
that he failed to file his PCRA petition within the one-year

8 See Utah Code Ann. § 78-35a-107(3) (providing that a
district court has discretion to “excuse a petitioner’s failure
to file within the time limitations” if “the interests of justice
require”).
9 Johnson v. State, 2004 UT App 108U, at *1.
10 Id. at *3-4.
No. 20040494 4
limitations period but urged the district court to find that the
“interests of justice” excused that failure.8
¶10 Noting that Johnson had failed to file his PCRA
petition within the one-year statute of limitations, the district
court recognized the possibility of “extend[ing] the deadline in
the interest of justice.” But rather than pursuing that course,
the district court opted to resentence Johnson nunc pro tunc,
thereby reviving his right to file a direct appeal:
Petitioner has asked that I exercise
that discretion [to extend the limitations
period] because, he says agents of the
respondent prevented him from meeting the
deadline. Assuming respondent denies this,
the only way to resolve the dispute is to
listen to witnesses testify about events.
While this is a potential resolution,
the cleaner and more effective method would
be to resentence the defendant in the
criminal case so that his right to appeal is
renewed. The main issues that he raises in
this case are issues that should have been
raised in an appeal. I would like to provide
him that opportunity, should he desire to
avail himself of it.
¶11 The State filed an interlocutory appeal, and the court
of appeals vacated the district court’s resentencing order.9 The
court of appeals reasoned that the express language of the PCRA
required that the district court make explicit findings regarding
the applicability of the interests of justice exception before it
could excuse a failure to file within the one-year limitations
period.10 Because the district court “failed to make the
findings required by the statute,” the court of appeals concluded

11 Id. at *3-5.
12 Manning v. State, 2005 UT 61, ¶ 10, 122 P.3d 628.
13 Adams v. State, 2005 UT 62, ¶ 8, 123 P.3d 400.
14 Manning, 2005 UT 61, ¶ 11.
5 No. 20040494
that the district court’s resentencing order could not be
affirmed.11
¶12 We granted certiorari to decide whether a district
court may resentence a defendant nunc pro tunc without first
determining whether that defendant complied with the limitations
period of the PCRA or satisfied the interests of justice
exception to that limitation.
STANDARD OF REVIEW
¶13 “On certiorari, we review the decision of the court of
appeals for correctness.”12 The court of appeals concluded that
the district court was required to make explicit factual findings
regarding the applicability of the interests of justice exception
to the PCRA limitations period before it could resentence
Johnson. This is a legal determination that we likewise review
for correctness under a de novo standard.13
ANALYSIS
¶14 We begin by addressing the question on which we granted
certiorari--whether written factual findings are a prerequisite
to application of the interests of justice exception under the
PCRA. But our resolution of that question does not entirely
resolve Johnson’s claim because the district court ordered that
Johnson be resentenced nunc pro tunc, thereby allowing him to
proceed with a direct appeal and obviating the need for him to
proceed under the PCRA. Prior to our recent decision in Manning,
resentencing nunc pro tunc was an appropriate remedy for a
defendant who had been unconstitutionally denied his right to
appeal. Our opinion in Manning replaced nunc pro tunc
resentencing with a new procedure for reinstating a defendant’s
right to appeal.14 We therefore remand this case for
consideration of whether Johnson qualifies for relief under that
procedure.

15 Utah Code Ann. § 78-35a-107(1) (2002).
16 Id. § 78-35a-107(3).
17 See Adams, 2005 UT 62, ¶ 15; Frausto v. State, 966 P.2d
849, 851 (Utah 1998); Julian v. State, 966 P.2d 249, 254 (Utah
1998).
18 Utah Code Ann. § 78-35a-107(3).
No. 20040494 6
I. DISTRICT COURTS ARE REQUIRED TO MAKE FACTUAL FINDINGS
JUSTIFYING APPLICATION OF THE INTERESTS OF JUSTICE EXCEPTION
¶15 To obtain relief under the PCRA, a petitioner must seek
relief “within one year after the cause of action has accrued.”15
But if it “finds that the interests of justice require, a court
may excuse a petitioner’s failure to file within the time
limitations.”16 Johnson contends that the PCRA does not require
a district court to make specific findings regarding the
limitations period or the interests of justice exception. We
disagree.
¶16 The PCRA contains an explicit bar to any petition that
is not brought within one year of the cause of action accruing.
But the limitations period is not absolute. It contains a safety
valve providing the district court with discretion to excuse any
untimely filing when the interests of justice so require. We
have recognized that a district court presented with an untimely
post-conviction petition must consider the interests of justice
exception before disposing of the petition.17 Conversely, a
district court has no discretion to grant relief on an untimely
PCRA petition if the “interests of justice” do not so require.
In other words, where a defendant brings a petition for relief
under the PCRA outside of the one-year limitations period, the
district court may proceed on that petition only if it first
determines that the interests of justice excuse the defendant’s
untimely filing.18
¶17 We hold that factual findings supporting the
application of the interests of justice exception are required.
In other words, a district court may not grant relief on an
untimely petition without identifying the interests of justice
that excuse the untimely filing. This conclusion is dictated by
the statutory language and supported by practical considerations.
¶18 We begin with the plain language of the PCRA. The
relevant subsection states that “[i]f the court finds that the
interests of justice require, a court may excuse a petitioner’s”

19 Id. (emphasis added).
20 2005 UT 62.
21 Id. ¶ 16.
22 Id.
23 Utah R. Civ. P. 65C(j).
24 2005 UT 61, 122 P.3d 628.
7 No. 20040494
untimely filing.19 It is clear that the first phrase acts as a
modifier to the second. Thus, a court must make a specific
finding before it may excuse an untimely filing.
¶19 Practical considerations are consistent with the
statutory language. Requiring an explicit finding with respect
to the applicability of the exception ensures the proper focus on
the relevant legal standard and provides the parties with a
concrete ruling upon which to base any subsequent appeals.
¶20 Our recent opinion in Adams v. State20 thoroughly
explains the factors a district court should consider when
deciding whether to apply the interests of justice exception to a
petitioner’s late claim. In Adams, we clarified that a district
court should analyze both the merits of the claim for relief and
the reasons for the untimely filing.21 The weight the district
court should give to each of these factors will vary “according
to the circumstances of [each] particular case.”22
¶21 In this case, the district court explicitly declined to
make any findings regarding the applicability of the interests of
justice exception because doing so would have required an
evidentiary hearing. But holding an evidentiary hearing is
precisely what a district court must do before it may allow a
petitioner to proceed with an untimely filing under the PCRA.
Indeed, once pleadings are closed, the court is required to
“promptly set the proceeding for a hearing or otherwise dispose
of the case.”23 Johnson argues that resentencing nunc pro tunc
was a proper way to “otherwise dispose of the case.” Since our
decision in Manning, however, that assertion is invalid because
resentencing nunc pro tunc is no longer an available option.24
¶22 While resentencing a defendant nunc pro tunc is no
longer an available option, the district court’s instincts in
this case were sound. The district court resentenced Johnson
nunc pro tunc as a “cleaner and more effective” alternative to a

25 Utah Code Ann. § 78-35a-102(1) (2002).
26 2005 UT 61.
27 Id. ¶ 25.
28 Id. ¶ 31.
29 Id.
No. 20040494 8
PCRA hearing. The district court reasoned that Johnson’s claims
should be raised in a direct appeal rather than in a post-
conviction petition for relief. We agree. Relief under the PCRA
is available only to a “person who challenges a conviction or
sentence for a criminal offense and who has exhausted all other
legal remedies.”25 Thus, a defendant who has been denied his
constitutional right to appeal should be afforded that right
before being required to proceed under the PCRA.
¶23 Because Johnson asserts that he was denied his right to
appeal, his proper course is to seek to have his right to appeal
reinstated pursuant to the procedure we outlined in Manning.26
As the proceedings on remand will be governed by our Manning
decision, we briefly explain the Manning remedy.
II. JOHNSON MAY ATTEMPT TO ESTABLISH THAT HE WAS
DENIED HIS RIGHT TO APPEAL AS EXPLAINED IN MANNING
¶24 In Manning, we recognized that the nunc pro tunc
resentencing remedy had been obviated by the advent of the PCRA
and subsequent changes in the rules of procedure.27 Accordingly,
when a defendant has been unconstitutionally denied his right to
an appeal he need not proceed under the PCRA, which is available
after all other remedies have been exhausted. Rather, he should
seek to have his right to appeal reinstated.28 We stated:
[U]pon a defendant’s motion, the trial or
sentencing court may reinstate the time frame
for filing a direct appeal where the
defendant can prove, based on facts in the
record or determined through additional
evidentiary hearings, that he has been
unconstitutionally deprived, through no fault
of his own, of his right to appeal.29
We then identified a nonexclusive list of circumstances, drawn
from our prior case law, under which we had found an

30 Id.
31 Id. (citations omitted).
32 Id. (citing State v. Hallett, 856 P.2d 1060, 1061 (Utah
1993)).
33 958 P.2d 911 (Utah 1998).
9 No. 20040494
unconstitutional denial of a defendant’s right to appeal.30
Those circumstances were that
(1) the defendant asked his or her attorney
to file an appeal but the attorney, after
agreeing to file, failed to do so; (2) the
defendant diligently but futilely attempted
to appeal within the statutory time frame
without fault on [the] defendant’s part; or
(3) the court or the defendant’s attorney
failed to properly advise [the] defendant of
the right to appeal.31
¶25 Johnson alleges that he was denied his right to appeal
in the first case. On remand, the trial court should therefore
conduct an evidentiary hearing where Johnson may present evidence
to support that assertion.
¶26 Johnson has alleged a number of facts suggesting that
he was denied that right. We noted in Manning that a defendant
is denied his constitutional right to appeal if “the court or the
defendant’s attorney failed to properly advise [the] defendant of
the right to appeal.”32 The limited record before us in this
case indicates that Johnson was present for neither his trial nor
his sentencing. And nothing in the record before us indicates
whether Johnson was otherwise notified of his right to appeal.
If neither the sentencing court nor Johnson’s attorney informed
Johnson of his right to appeal, then he will have a valid claim
for reinstatement of that right.
¶27 Alternatively, Johnson asserts that he was denied his
right to counsel because the district court failed to ensure that
his waiver of counsel was knowing and intelligent as required by
State v. Heaton.33 Prior to trial, Johnson’s attorney
successfully moved to withdraw, and Johnson proceeded to trial
with only standby counsel. This fact, in combination with
Johnson’s own absence at trial, may give rise to a claim for
denial of the right to counsel or to a claim for ineffective
assistance of counsel. Unfortunately, the record in these post-

34 Adams v. State, 2005 UT 62, ¶¶ 16-17, 123 P.3d 400.
No. 20040494 10
conviction proceedings reveals almost nothing regarding the
district court’s justification for proceeding to trial in
Johnson’s absence and precious little regarding the circumstances
surrounding counsel’s withdrawal.
¶28 Finally, Johnson asserts that he was mentally
incapacitated during the time following his conviction and
sentencing in the first case. He alleges that his incapacitation
was a direct result of jail staff administering some form of
poison to him and that he was thereby rendered unable to file his
appeal. Resolving this claim will require an evidentiary
hearing.
¶29 Because the record before us is incomplete, a remand is
necessary. On remand, Johnson should be given an opportunity to
prove that he was denied his constitutional right to appeal. If
he is successful, Johnson will be entitled to reinstatement of
his right to appeal as described in our Manning opinion.
¶30 Should the district court find that Johnson was not
denied his right to appeal, his remedy would be to proceed with a
petition for relief under the PCRA as he initially attempted to
do. Because his petition was filed outside of the one-year
limitations period, the district court will be required to make
specific findings if it excuses Johnson’s untimely petition under
the interests of justice exception to the limitations period. As
we explained in Adams, if the district court finds that Johnson
has meritorious claims and that he had a sufficient reason for
his untimely filing, it may allow Johnson to proceed.34
CONCLUSION
¶31 We affirm the judgment of the court of appeals vacating
the district court’s resentencing order and remanding the matter
to the district court for further proceedings. On remand, the
district court should first provide Johnson an opportunity to
prove that he has been denied his right to appeal. If he does
so, the court should reinstate his right to appeal his conviction
in the first case pursuant to our Manning decision. If Johnson
fails to establish that he was denied his right to appeal, the
district court should consider his petition under the PCRA by
first determining whether he has satisfied the interests of
justice exception to the PCRA limitations period.
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11 No. 20040494
¶32 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.