Esparza-Recendez v. State

IN THE UTAH COURT OF APPEALS

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Inocencio Esparza‐Recendez, ) PER CURIAM DECISION
)
Petitioner and Appellant, ) Case No. 20120653‐CA
)
v. ) FILED
) (December 6, 2012)
State of Utah, )
) 2012 UT App 344
Respondent and Appellee. )

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Third District, Salt Lake Department, 120904079
The Honorable Denise P. Lindberg

Attorneys: Edward L. Carter, Orem, for Appellant

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Before Judges Thorne, McHugh, and Roth.

¶1 Inocencio Esparza‐Recendez appeals the district court’s June 21, 2012 minute
entry ruling denying his petition for post‐conviction relief. This matter is before the
court on a sua sponte motion for summary disposition on the basis of manifest error.
We reverse and remand.

¶2 We begin by clarifying the requirements of rule 7(f)(2) of the Utah Rules of Civil
Procedure and Giusti v. Sterling Wentworth Corp., 2009 UT 2, 201 P.3d 966, as they
pertain to appeals from cases originating under the Post‐Conviction Remedies Act. In
the past we have issued decisions stating that any order of a district court purporting to
dismiss a petition for post‐conviction relief had to comply with rule 7(f)(2) by either
being prepared by one of the parties or, if the court prepared the order, stating that such
order was the final order of the court and that no further order was required. This
remains true for all orders dismissing a case after the proper responding party has been
served with the petition pursuant to rule 65C(i) of the Utah Rules of Civil Procedure.
Thus, if a party appears and opposes a petitioner’s request for post‐conviction relief,
any order dismissing the case must expressly comply with rule 7(f)(2) and prior case
law.

¶3 However, we now conclude that under the unique circumstance presented when
a petition is dismissed pursuant to rule 65C(h) of the Utah Rules of Civil Procedure, as
frivolous on its face and prior to service on the proper party for the State, the order need
not be prepared by counsel or expressly state that the order is the final order of the
court and that no further order is required. Rule 65C(h) requires a district court to
“review the petition, and, if it is apparent to the court that any clam has been
adjudicated in a prior proceeding, or if any claim in the petition appears frivolous on its
face, the court shall forthwith issue an order dismissing the claim.” Utah R. Civ. P. 65C(h)(1)
(emphasis added). Thus, the rule requires the district court, itself, to issue an order
dismissing the petition if the court makes certain conclusions. Because the rule requires
the district court to issue the order without any assistance from a party, the order
dismissing the petition inherently complies with the dictates of rule 7(f)(2) and Giusti.
Accordingly, a district court’s order dismissing a petition for post‐conviction relief as
frivolous under subsection (h) is final for purposes of appeal.

¶4 Esparza‐Recendez was sentenced after pleading guilty to two misdemeanors in
2009. Esparza‐Recendez filed a petition for post‐conviction relief asserting that he
received ineffective assistance of counsel because his trial attorney failed to inform him
of the immigration consequences of his plea. See Padilla v. Kentucky, 130 S. Ct. 1473, 1486
(2010) (concluding that criminal defense attorneys have a responsibility to properly
advise defendants of the immigration consequences of any plea). The district court
dismissed the petition prior to service upon the State because it concluded that the
petition was untimely. See Utah Code Ann. § 78B‐9‐107(1) (LexisNexis 2008)(stating that
a “petitioner is entitled to relief only if the petition is filed within one year after the
cause of action has accrued”). However, prior to dismissing the case, the district court
never provided notice to Esparza‐Recendez that it was considering dismissing the case
based upon the procedural bar.

¶5 Utah Code section 78B‐9‐106(2)(b) states that “[a]ny court may raise a procedural
or time bar on its own motion, provided that it gives the parties notice and an
opportunity to be heard.” Id. § 78B‐9‐106(2)(b). This includes dismissals based upon the

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theory that the claim is barred by the statute of limitations. See id. § 78B‐9‐106(1)(e).
Because the record indicates that the district court dismissed the case based on a
procedural bar, i.e., the statute of limitations barred the petition, Esparza‐Recendez was
entitled to notice and an opportunity to be heard as to whether his petition should have
been dismissed on this ground.1

¶6 The district court’s order of dismissal is reversed. We remand this matter so the
district court can afford Esparza‐Recendez his notice and opportunity to be heard in
accordance with Utah Code section 78B‐9‐106(2)(b).

____________________________________
William A. Thorne Jr., Judge

____________________________________
Carolyn B. McHugh, Judge

____________________________________
Stephen L. Roth, Judge

1
The court notes that much of the confusion concerning the requirement to give
such notice may arise from the fact that the notice requirements of Utah Code section
78B‐9‐106(2)(b) are not replicated in rule 65C(h).

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