Leger v. State

2017 UT App 217
THE UTAH COURT OF APPEALS
NICHOLAS J. LEGER ,
Appellant,
v.
S TATE OF U TAH ,
Appellee.
Opinion
No. 20150723-CA
Filed November 24, 2017
Fourth District Court, Heber Department
The Honorable Derek P. Pullan
No. 130500137
Nicholas J. Leger, Appellant Pro Se
Sean D. Reyes and Mark C. Field, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and M ICHELE M. C HRISTIANSEN
concurred.
MORTENSEN, Judge:
¶1 	After 	Victim 	accused 	Nicholas 	J. 	Leger 	of 	beating,
strangling, 	and 	raping 	her, 	Leger 	pled 	guilty 	to 	attempted
aggravated sexual assault. Five years later, Leger petitioned for
post-conviction relief, which the district court denied. Because
we agree with the district court that the claims made in the
petition were either time-barred or meritless, we affirm the
court’s denial of the petition.
BACKGROUND
¶2 	In November of 2007, Victim and Leger walked into a
grocery store to buy cigarettes. Victim’s face was red, bruised,

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20150723-CA 	2 	2017 UT App 217
and swollen; her lip was cut and swollen; and she had red marks
on her throat. When Leger left Victim alone at the customer
service counter, Victim passed a note, asking an employee to call
the police. The employee complied and led Victim to a secure
room, but not before Leger saw them and gave chase. Leger
failed to reach Victim before she made it into the room, and he
fled the store.
¶3 	When the police arrived, Victim was crying, upset, and
“nearly hyperventilating.” She reported that before coming to
the store, Leger had “beat, strangled, bit, spit on, screamed
obscenities 	at, 	threatened 	to 	kill, 	sexually 	assaulted, 	and
ultimately raped” her. Police found Leger hiding at a friend’s
house. He maintained that he had not raped Victim but had
instead had “mad sex” with her. According to Leger, the marks
on Victim’s neck were the result of consensual strangulation
during sex. Victim disputed this, and at a preliminary hearing
she testified that her relationship with Leger never involved
consensual violent sexual behavior.
¶4 	As 	a 	result 	of 	a 	plea 	bargain, 	Leger 	pled 	guilty 	to
attempted aggravated sexual abuse in August of 2008. Shortly
thereafter, he filed a pro se motion to withdraw his plea, which
motion he abandoned at the sentencing hearing in October of
that same year. Leger was sentenced to a prison term of three
years to life. Leger did not appeal.
¶5 	In November of 2013, Leger filed a petition for post-
conviction relief; he claimed that there was newly discovered
evidence in his case, his plea was not voluntary, and his trial
counsel’s performance had been deficient. The State filed a
motion for summary judgment on the grounds that Leger’s
claims were time-barred or, alternatively, failed as a matter of
law. The district court agreed that all but one of Leger’s claims
were untimely—because Leger was aware or should have been
aware of the facts underlying the claims within one year after his
criminal case became final—and granted the State’s motion in
part. 	For 	the 	one 	remaining 	claim, 	a 	claim 	of 	ineffective

Leger v. State
20150723-CA 	3 	2017 UT App 217
assistance of counsel, the district court denied the summary
judgment motion and set an evidentiary hearing for the issue.
¶6 	At 	the 	evidentiary 	hearing, 	the 	district 	court 	heard
testimony from trial counsel and Leger. The focus of the hearing
was Leger’s claim that his trial counsel performed deficiently
when he failed to retain a forensic nurse to review Victim’s
injuries. In Leger’s view, a forensic nurse would have been able
to show that Victim’s injuries were caused “3 to 5 days earlier”
than the events in question. Trial counsel testified that Leger
never mentioned to him nor gave him reason to believe that
Victim’s injuries were old. And because Victim’s injuries “were
entirely consistent with the consensual sex that the defense
intended to float at trial”—that is, a consensual strangulation
defense—trial counsel determined that “hiring a forensic nurse
to examine the injuries was not necessary.” This defense was
consistent with Leger’s statements to police and trial counsel.
The district court found that trial counsel performed effectively
and that hiring a forensic nurse to testify that Victim’s injuries
were old “would have been inconsistent with and detrimental to
Leger’s defense.”1 Accordingly, the district court denied Leger’s
petition for post-conviction relief. Leger now appeals.
ISSUES AND STANDARDS OF REVIEW
¶7 	Leger argues that the district court erroneously granted
summary judgment in favor of the State on his petition for post-
conviction relief. The district court’s errors, he contends, are
four-fold: 	(1) 	the 	district 	court 	erroneously 	concluded 	that
1. 	The 	district 	court 	also 	found 	that 	even 	if 	trial 	counsel
performed 	deficiently, 	Leger 	had 	not 	proven 	that 	he 	was
prejudiced. In the district court’s view, the State’s case was
supported by strong evidence and the court “was not persuaded
that but for counsel’s [alleged] error in failing to retain a forensic
nurse, Leger would have insisted on going to trial.”

Leger v. State
20150723-CA 	4 	2017 UT App 217
Leger’s challenge to the validity of his guilty plea was time-
barred 	because 	he 	was 	aware 	of 	the 	facts 	supporting 	the
challenge at the time he entered his plea; (2) the district court
erroneously concluded that Leger’s claim that the State withheld
exculpatory evidence was time-barred for the same reason;2
(3) the 	district 	court 	erroneously 	concluded 	that 	Leger’s
ineffective-assistance claims were time-barred to the extent they
relied on facts related to his challenge to the validity of his plea;
and (4) the district court erroneously concluded that trial counsel
provided 	effective 	assistance 	despite 	his 	failure 	to 	retain 	a
forensic nurse.
¶8 	For Leger’s challenges to the district court’s grant of
summary judgment, we review the court’s ruling for correctness;
we will affirm if “the record shows that there is no genuine issue
as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Menzies v. State, 2014 UT 40, ¶ 30,
344 P.3d 581 (citation and internal quotation marks omitted).
And for Leger’s challenge to the district court’s denial of his
petition, 	“we 	review 	the 	post-conviction 	court’s 	legal
conclusions for correctness and its factual findings for clear
error.” Tillman v. State, 2005 UT 56, ¶ 14, 128 P.3d 1123.
ANALYSIS
I. Summary Judgment
¶9 	The district court granted summary judgment in favor of
the State on all but one of Leger’s claims. In doing so, the court
determined that at the time he entered his guilty plea, Leger
“was aware, or through the exercise of reasonable diligence
2. Leger actually raises two separate issues with the court’s
conclusions 	about 	the 	potentially 	exculpatory 	evidence. 	But
because the issues are so closely related, we consider them
together.

Leger v. State
20150723-CA 	5 	2017 UT App 217
should have been aware” of the evidentiary facts supporting the
claims on which the court entered summary judgment. See Utah
Code Ann. § 78B-9-107(2)(e) (LexisNexis Supp. 2017) (providing
that a cause of action for post-conviction relief accrues when a
petitioner “knew or should have known, in the exercise of
reasonable diligence, of evidentiary facts on which the petition is
based”). Accordingly, the court determined that those claims
were time-barred because they were not brought “within one
year after the cause of action” accrued—in this case within one
year from “the last day for filing an appeal from the entry of the
final judgment of conviction.” See id. § 78B-9-107(1), (2)(a).3
¶10 	On appeal, Leger’s challenges to the grant of summary
judgment fall into three categories: the voluntariness of his
guilty plea, the withholding of potentially exculpatory evidence,
and ineffective assistance of trial counsel.
A. 	Voluntariness
¶11 	In his petition for post-conviction relief, Leger alleged that
his plea was not voluntary. Specifically, he argued that he was
“coerced into pleading guilty and then coerced into withdrawing
his September 15, 2008 motion to withdraw guilty plea.” The
3. While the district court mirrored the language from subsection
(2)(e) in its recitation of undisputed facts, in its conclusions of
law, it calculated the time for bringing Leger’s post-conviction
petition under both that subsection and subsection (2)(a). See
Utah Code Ann. § 78B-9-107(2)(a), (e) (LexisNexis Supp. 2017).
Because the court determined that Leger “was aware at the time
he pleaded guilty of the evidentiary facts in support of his
challenge,” the “latest of” the possible dates for accrual would be
the date under subsection (2)(a). See id. § 78B-9-107(2). The crux
of Leger’s arguments on appeal is that he did not know the
evidentiary facts supporting his challenges until much later, and
the time for bringing his petition should be calculated from that
later date under subsection (2)(e).

Leger v. State
20150723-CA 	6 	2017 UT App 217
petition did not explain exactly how Leger was so coerced, but,
as the State points out, “Leger necessarily knew at the time he
pleaded 	guilty 	whether 	he 	personally 	felt 	pressured 	into
accepting the plea offer.” Additionally, “Leger was present at the
change-of-plea hearing, he responded to questioning from the
trial court, and he acknowledged that he read and understood
the contents of the plea affidavit.” And the district court, in
granting 	summary 	judgment 	on 	this 	point, 	seemed 	to
acknowledge this. The district court listed as an undisputed fact
that “Leger was aware, or through the exercise of reasonable
diligence should have been aware, within a year from the time
his criminal case became final of the evidentiary facts in support
of his challenge to the validity of his guilty plea.”
¶12 	Leger claims that the “evidentiary facts” referenced by the
district 	court 	involved 	“defense 	counsel’s 	consideration 	of
retaining a forensic nurse to examine the evidence of the victim’s
injuries for possible exculpatory or impeachment evidence.” This
is inaccurate. Those facts addressed one of Leger’s claims of
ineffective assistance of counsel, and as to those facts, the district
court denied the State’s motion for summary judgment and
deemed it necessary to hold an evidentiary hearing because
“Leger was not aware . . . that his trial counsel did not hire a
forensic expert to examine the victim’s injuries” until May of
2013. Discussion of trial counsel’s failure to retain a forensic
nurse is therefore misplaced in considering whether the district
court properly granted summary judgment on Leger’s claim that
he was coerced into pleading guilty.
¶13 	In 	addressing 	the 	question 	of 	voluntariness, 	Leger
identifies 	only 	facts 	related 	to 	the 	district 	court’s 	grant 	of
summary 	judgment. 	Those 	facts 	are 	entirely 	unrelated 	to
whether Leger’s plea was voluntarily entered, and thus he has
failed to carry his burden of persuasion on appeal. He has not
demonstrated that there existed a dispute as to the material facts
surrounding his claim that his plea was involuntary, nor has he
shown that the State was not entitled to judgment as a matter of

Leger v. State
20150723-CA 	7 	2017 UT App 217
law. We therefore affirm the district court’s grant of summary
judgment on this claim.
B. 	Withheld Evidence
¶14 	Leger also sought post-conviction relief on the ground
that the State had failed to disclose exculpatory evidence. He
argued, “In April of 2007, approximately 7 months before this
alleged crime[,] defendant told police, who documented the
exchange, that [Victim] liked to be choked to achieve sexual
satisfaction. This information was not disclosed to the defense.
This information corroborated [the] claim by defendant that
[Victim] enjoyed being choked.” The police report in question
stemmed from a separate domestic violence call, during which
Victim accused Leger of putting his hands around her throat.
Leger denied the accusation, but later, as the police were driving
him to a friend’s house, Leger volunteered that he might have
held Victim by the throat because she “liked to be strangled
during sex.” The district court concluded that “Leger was aware,
or through the exercise of reasonable diligence should have been
aware, within a year from the time his criminal case became final
that a police report may have existed documenting his prior
claim 	that 	the 	victim 	liked 	to 	be 	[choked] 	during 	sexual
intercourse.”
¶15 	Leger argues that the district court’s conclusion was in
error because:
First, 	the 	police 	report 	was 	from 	an
encounter Leger had with the police in April 2007,
which was nine months before the January 2008
preliminary hearing. Even if Leger did remember
he had a discussion with the police in April 2007, it
is 	entirely 	unlikely 	that 	Leger 	would 	have
remembered any of the details of the content in the
conversation 	Leger 	had 	with 	the 	police 	nine

Leger v. State
20150723-CA 	8 	2017 UT App 217
months after the fact as it related to the victim’s
[preliminary hearing testimony].[4] . . .
Certainly, 	if 	Leger 	had 	remembered 	this
April 2007 conversation with the police, then he
would have informed his defense counsel, who
would in turn have requested in discovery from
the Prosecution a copy of all the police reports
where 	the 	police 	had 	had 	any 	encounter 	with
Leger.
Thus, Leger claims, this fact was “clearly disputable.”
¶16 	The State counters that because “the police report was
based 	on 	Leger’s 	own 	statement, 	the 	post-conviction 	court
reasonably concluded that Leger was, or should have been,
aware 	when 	he 	pleaded 	guilty 	that 	in 	April 	2007 	he 	had
attempted 	to 	explain 	away 	[Victim’s] 	prior 	strangulation
allegations to police by saying that she liked to be strangled.”
We agree.
4. The preliminary hearing testimony Leger references is the
following exchange: Defense counsel asked Victim, “Do you
remember 	telling 	the 	police 	during 	that 	interview 	that
sometimes during sexual intercourse prior to that day, there
would be choking involved between you and Mr. Leger?” Victim
answered, “No. I stated to the officer that there may have been a
time where he had—he had maybe had his hands on my throat,
but never to where I was coughing . . . or passing out, or to that
extreme, no.” Leger does not explain how this testimony affected
his ability to remember that he had recently spoken to police
about Victim’s alleged penchant for sexual strangulation. If
anything, 	it 	seems 	that 	hearing 	Victim’s 	denial 	of 	this
conversation with police would have reminded Leger of his
prior conversation.

Leger v. State
20150723-CA 	9 	2017 UT App 217
¶17 	“[T]he ‘trigger’ under section 78B-9-107(2)(e) is actual or
imputed 	discovery 	of 	the 	evidentiary 	facts 	supporting 	the
petition.” Brown v. State, 2015 UT App 254, ¶ 10, 361 P.3d 124
(citation omitted). There is perhaps no easier way for a petitioner
to discover a certain fact than by experiencing it firsthand. For
instance, in Sanchez v. State, 2010 UT App 247U (per curiam), the
post-conviction petitioner argued that his trial counsel had been
ineffective for incorrectly advising him that a guilty plea would
carry no immigration consequences. Id. para. 5. He further
argued that he did not know this advice was incorrect until he
applied for legal status fifteen years later. Id. But we pointed out
that immediately following his plea, the petitioner had been
deported. 	Id. 	Because 	the 	petitioner 	personally 	experienced
deportation, he necessarily had to know that his plea carried
immigration 	consequences—and, 	by 	extension, 	that 	his trial
counsel 	had 	advised 	him 	incorrectly—at 	the 	time 	he 	was
deported. See id. para. 7; see also Mikkelson v. Quail Valley Realty,
641 P.2d 124, 125–26 (Utah 1982) (explaining that a plaintiff who
personally inspected property knew or should have known the
correct square footage of the property); Benson v. Peace Officer
Standards & Training Council, 2011 UT App 220, ¶ 15, 261 P.3d
643 (noting that a police officer of twenty years who was
employed as an investigator during a certain two-year period
necessarily knew that he did not work as a reserve officer during
that same time period).
¶18 	Given the common-sense understanding that a petitioner
knows or should know a fact when he personally experiences it,
we fail to see how Leger could not have known that he once
spoke with police about the very topic he intended to use as a
defense to the charges against him. We agree with the State’s
reasoning that, because “Leger does not explain why it was
unreasonable for the court to infer from the fact that the police
report was based on Leger’s own statements that he would
remember what he told police,” he fails to show that the district
court erred.

Leger v. State
20150723-CA 	10 	2017 UT App 217
¶19 	To the extent Leger’s argument is that he did not know a
report had been created based on his statements, he has similarly
failed to demonstrate error by the district court. While he does
hypothesize a rather convoluted path he would have needed to
travel to try and procure the report, engaging in what he claims
“would 	amount 	to 	a 	‘fishing 	expedition,’” 	he 	summarily
concludes that the hypothetical path would satisfy the statute’s
call for the exercise of reasonable diligence, see Utah Code Ann.
§ 78B-9-107(2)(e) (LexisNexis Supp. 2017), and would nevertheless
leave him unable to “have obtained a copy of the April 2007
police 	report 	to 	learn 	it 	documented 	the 	exculpatory 	and
impeachment 	evidence 	that 	the 	victim 	liked 	being 	choked
during 	sexual 	intercourse 	prior 	to 	the 	November 	7, 	2007
incident.” This is quite a leap. Leger essentially argues that
although the police were responding to claims of domestic
violence, including choking, he cannot be expected to remember
the interaction. But even if he did remember the interaction, he
cannot be expected to know that the police would document it.
And even if he knew the police would document the interaction,
he cannot be expected to know that the report would include an
accurate account of the statements he made to police. This is
illogical. Leger knew or should have known that he spoke with
police in April 2007. Accordingly, he knew or should have
known that an April 2007 police report likely existed. The district
court concluded precisely that, and in that conclusion we see no
error.5
5. For the first time on appeal, Leger frames this challenge about
the police report as a violation of Brady v. Maryland, 373 U.S. 83
(1963), and asks that we engage in a Brady analysis. Aside from a
brief suggestion that the prosecutor should have provided Leger
with this report, he never argued below that the failure to do so
amounted to a Brady violation. In fact, the only mention of the
State’s role came in arguing that his trial counsel had been
ineffective for not requesting exculpatory evidence from the
prosecutor. “An issue is preserved for appeal only if it was
(continued…)

Leger v. State
20150723-CA 	11 	2017 UT App 217
C. 	Ineffective Assistance
¶20 	The petition for post-conviction relief included several
claims of ineffective assistance of counsel. The district court
granted summary judgment on some of those claims, “to the
extent they rely on the evidentiary facts related to” the claims
discussed above. Leger argues that the district court erred in
granting 	summary 	judgment 	on 	that 	basis. 	He 	rests 	his
argument on his belief that he demonstrated error regarding the
voluntariness 	of 	his 	guilty 	plea 	and 	the 	State 	purportedly
withholding 	exculpatory 	evidence.6 But 	because 	we 	already
concluded that Leger did not demonstrate error, we cannot agree
that the district court was wrong in granting summary judgment
on claims which relied on facts that were known or should have
been known by Leger at the time he entered his guilty plea.
Those claims were time-barred.
II. Denial of Remaining Claim
¶21 	Finally, Leger claims that the district court erred when it
denied his petition for post-conviction relief after holding an
evidentiary 	hearing 	on 	the 	one 	remaining 	claim—that 	trial
(…continued)
presented to the trial court in such a way that the trial court had
an opportunity to rule on it.” State v. Martinez, 2015 UT App 193,
¶ 27, 357 P.3d 27. Because Leger did not give the district court an
opportunity to rule on a claim of a Brady violation, we will not
consider that claim made now for the first time on appeal.
6. Again Leger misreads the district court’s order and argues
that there were disputed facts regarding trial counsel’s decision
not to retain a forensic nurse. As we previously discussed, the
district court did not grant summary judgment on this issue and
instead held an evidentiary hearing. See supra ¶ 12. We therefore
do not consider the forensic-nurse question in this section.

Leger v. State
20150723-CA 	12 	2017 UT App 217
counsel had provided ineffective assistance when he failed to
retain a forensic nurse to review Victim’s injuries.
¶22 	To succeed on a claim for ineffective assistance of counsel,
Leger 	was 	required 	to 	meet 	the 	two-part 	test 	set 	forth 	in
Strickland v. Washington, 466 U.S. 668 (1984). “First, the defendant
must show that counsel’s performance was deficient.” Id. at 687.
Leger 	claims 	that 	trial 	counsel 	was 	deficient 	for 	failing 	to
conduct a thorough investigation into his case. “Second, the
defendant must show that the deficient performance prejudiced
the defense.” Id. Leger claims that he was prejudiced by pleading
guilty when he otherwise would not have. The district court
found that Leger had failed to sufficiently prove either prong.
¶23 	Leger 	contends 	that 	his 	trial 	counsel 	performed
deficiently by not retaining a forensic nurse. “[C]ounsel had
contacted a forensic nurse to determine if her credentials met the
criteria as an expert witness to examine the evidence of the
victim’s injuries for possible exculpatory evidence for Leger’s
case, and determined they did.” Furthermore, defense counsel
“had funding approved for the forensic nurse.” But counsel
nevertheless “did not retain the forensic nurse to examine the
evidence of the victim’s injuries.” If trial counsel had retained a
forensic nurse, Leger argues, the nurse would have been able to
testify that Victim’s injuries “were too old to have been inflicted
by him on the night [Victim] said she was raped.”
¶24 	Assuming a forensic nurse would have so testified and
that the testimony were believed by a jury or judge at trial, this
testimony would have undermined Leger’s defense that the
marks on Victim’s neck were the result of “mad sex” they had
had earlier that day, before the police were called. It would have
undermined Leger’s defense that Victim consented to being
choked during that sexual encounter. And even if we were to
assume that Leger would have changed course, knowing that
such testimony would be presented, and that he would not have
pursued a defense of consensual sex, such a changed course also
would have undermined Leger’s case. He had already made

Leger v. State
20150723-CA 	13 	2017 UT App 217
statements to the police explaining away Victim’s marks. If, at
trial, Leger suddenly pursued a defense resting on the age of
Victim’s injuries and, presumably, a lack of sex—consensual or
otherwise—between Victim and Leger on the day in question,
the 	State 	would 	have 	undoubtedly 	used 	Leger’s 	prior
inconsistent statements against him.
¶25 	At the evidentiary hearing before the district court, trial
counsel testified that he believed the best defense to the charges
Leger 	faced 	was 	“that 	the 	injuries 	were 	the 	result 	of
consensual—albeit rough—sexual activity.” We cannot disagree.
This defense was consistent with the statements Leger had made
from the start. It was consistent with Victim’s injuries. And we
are thus unable to conclude that the decision to pursue this
defense, rather than other potential defenses involving the hiring
of a forensic nurse, lacked a “conceivable tactical basis.” See State
v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (citation and internal
quotation marks omitted). We therefore agree with the district
court that trial counsel did not perform deficiently.7
CONCLUSION
¶26 	We hold that the district court did not err either by
partially granting the State’s motion for summary judgment or
by denying Leger’s remaining claim for post-conviction relief.
We accordingly affirm.
7. “Because 	we 	determine 	trial 	counsel 	acted 	objectively
reasonably, 	we 	need 	not 	reach 	Strickland’s 	requirement 	of
prejudice.” See State v. Alfatlawi, 2006 UT App 511, ¶ 19, 153 P.3d
804.