Lopez v. Ogden City

2017 UT App 122
THE UTAH COURT OF APPEALS
C ESAR D ANIEL LOPEZ ,
Appellant,
v.
O GDEN C ITY ,
Appellee.
Opinion
No. 20150271-CA
Filed July 20, 2017
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 140905670
Jason B. Richards, Attorney for Appellant
Wm. Gregory Burdett, Attorney for Appellee
JUDGE M ICHELE M. C HRISTIANSEN authored this Opinion, in
which JUDGES J. F REDERIC VOROS JR . and JILL M. POHLMAN
concurred.
CHRISTIANSEN, Judge:
¶1 	On the advice of his defense attorney, Cesar Daniel Lopez
pled guilty to one count of retail theft, a class B misdemeanor, in
the Ogden City Justice Court. Long after the time to withdraw
his guilty plea had expired, Lopez filed a petition in the Second
District Court seeking to vacate his conviction pursuant to the
Post-Conviction Remedies Act (the PCRA). Ogden City moved
to dismiss the petition. The court determined that Lopez should
have had knowledge of one of his PCRA claims when he was
originally 	sentenced, 	that 	the 	PCRA’s 	statute 	of 	limitations
therefore began to run at the time of sentencing, and that
Lopez’s PCRA petition was consequently time-barred. Lopez
appeals, contending that the court improperly considered an
exhibit submitted with the City’s motion to dismiss and that the

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court failed to treat the factual allegations of his petition as true.
Although we conclude that the exhibit was properly before the
court, we vacate the dismissal on the ground that the court’s
interpretation of that exhibit improperly discounted Lopez’s
factual allegations.
¶2 	“On appeal from a motion to dismiss, we review the facts
only as they are alleged in the complaint.” Peck v. State, 2008 UT
39, 	¶ 2, 	191 	P.3d 	4 	(citation 	and 	internal 	quotation 	marks
omitted); see also McNair v. State, 2014 UT App 127, ¶ 2 n.1, 328
P.3d 874 (same, in the context of the dismissal of a PCRA claim).
“We 	accept 	the 	factual 	allegations 	as 	true 	and 	draw 	all
reasonable inferences from those facts in a light most favorable
to the [petitioner].” Peck, 2008 UT 39, ¶ 2.
¶3 	In his September 4, 2014 PCRA petition, Lopez claimed
that 	his 	defense 	attorney 	had 	failed 	to 	inform 	him 	of 	the
potential immigration consequences of the guilty plea he entered
on January 28, 2011.1 Lopez also claimed that neither his public
defender nor the justice court informed him of “his right to
counsel, his right to a public trial, and his right to withdraw his
guilty plea,” as required by rule 11(e) of the Utah Rules of
Criminal Procedure. Lopez asserted that he “first became aware
1. Neither party, nor the record itself, states with certainty what
Lopez’s immigration status was or what impact a guilty plea had
on that status. For the purposes of this appeal, we assume that
Lopez was an undocumented immigrant and that the guilty plea
increased the likelihood of his being deported. However, we
note that guilty pleas can also have immigration consequences,
including deportation, for lawful permanent residents, i.e., green
card 	holders. 	See, 	e.g., 	NYSDA 	Immigrant 	Defense 	Project,
Immigration Consequences of Convictions Summary Checklist,
http://nm.fd.org/index_files/ImmigrationConsequencesChecklist
.pdf [https://perma.cc/ND4Y-H4GH].

Lopez v. Ogden City
20150271-CA 	3 	2017 UT App 122
of the evidentiary facts on which the petition [was] based within
the [last one year,] after reviewing his criminal proceedings with
his new counsel.”
¶4 	The City moved to dismiss the petition on two procedural
bases. First, the City asserted that Lopez had failed to appeal his
sentence via a trial de novo in the district court despite being
“informed by the court that he had 30 days to appeal any
sentence given.”2 Consequently, in the City’s view, Lopez’s
petition was barred because a provision of the PCRA “precludes
a petitioner from receiving relief if the ground for relief could
have been but was not raised at trial or on appeal.” (Citing Utah
Code section 78B-9-106.) Second, the City argued that, because
Lopez did not file an appeal, the one-year time limit on his
petition (challenging the effectiveness of his trial counsel and
other aspects of the criminal proceedings) began running on
February 28, 2011, and expired on February 28, 2012, thus
rendering his September 4, 2014 petition “over two years too
late.” See Utah Code Ann. § 78B-9-107(1) (LexisNexis 2012) (“A
petitioner is entitled to relief only if the petition is filed within
one year after the cause of action has accrued.”); id. § 78B-9-
107(2)(a) 	(setting 	forth 	methods 	for 	calculating 	the 	date 	of
accrual, including, as relevant here, that a PCRA cause of action
may accrue on “the last day for filing an appeal from the entry of
the final judgment of conviction, if no appeal is taken”).
¶5 	The City attached an exhibit—the justice court docket for
Lopez’s case—to its motion to dismiss (the Docket Exhibit). With
respect to the trial date, guilty plea, and sentencing, the Docket
Exhibit recounted:
This is the time set for bench trial. Defendant is
present, 	in 	custody 	of 	Weber 	County 	Jail,
2. The City cited no evidence to support its assertion that the
justice court had so informed Lopez.

Lopez v. Ogden City
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with . . . as counsel. Trial is not held as negotiations
have been reached.
Defendant enters plea of guilty to MB-retail theft.
City moves to dismiss remaining charges.
Court accepts and proceeds with sentencing.
SENTENCE JAIL
Based on the defendant’s conviction of RETAIL
THEFT (SHOPLIFTING) a Class B Misdemeanor,
the defendant is sentenced to a term of 60 day(s)[.]
The total time suspended for this charge is 60
day(s).
SENTENCE JAIL SERVICE NOTE
Court imposes a pay/stay sentence of $500 cash or
60 days jail.
Sentence may run concurrent with any other time
the 	defendant 	is 	serving. 	Defendant 	may 	be
released to Immigrations.
¶6 	Lopez opposed the City’s motion to dismiss, arguing that
his claims were not precluded, because he had been unaware of
the factual bases for a motion to withdraw his plea—his trial
counsel’s failure to inform him of the immigration risks of a
guilty plea and his right to withdraw that plea—“until well after
the time period to file a motion to withdraw his plea or to file a
notice of appeal had expired.” He also argued that the one-year
statute of limitations for a PCRA claim did not bar his claim,
because 	he 	did 	not 	learn 	of 	the 	potential 	immigration
consequences more than a year before he filed the petition.
Lopez did not object to the Docket Exhibit submitted by the City
in support of its motion to dismiss.
¶7 	The PCRA court first concluded that Lopez’s claims were
“not subject to preclusion pursuant to Utah Code § 78B-9-106”;
i.e., they were not claims Lopez could have raised at trial or on
appeal. However, the court then determined that the Docket

Lopez v. Ogden City
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Exhibit showed “instances where [Lopez]—through the exercise
of 	diligent 	efforts—should 	have 	known 	of 	the 	potential 	of
impending 	immigration 	concerns 	that 	could 	accompany 	his
guilty plea.” The court concluded, “As he stood to know of these
potential consequences, it follows that the exercise of reasonable
diligence would have alerted him at that time of the procedural
mechanisms to appeal his sentence to the District Court through
a trial de novo.” Thus, the PCRA court dismissed the petition
based on the second ground argued by the City—that Lopez’s
petition was untimely.
¶8 	“A petitioner is entitled to relief only if the petition is filed
within one year after the cause of action has accrued.” Utah
Code Ann. § 78B-9-107(1). As relevant here, a PCRA cause of
action accrues “on the latest of the following dates: (a) the last
day for filing an appeal from the entry of the final judgment of
conviction, if no appeal is taken [or] . . . (e) the date on which
[the] petitioner knew or should have known, in the exercise of
reasonable diligence, of evidentiary facts on which the petition is
based.” Id. § 78B-9-107(2).
¶9 	The PCRA court determined that Lopez knew or should
have known of the facts underlying his PCRA claim because it
determined, based on the notations contained in the Docket
Exhibit, that Lopez had been informed or should otherwise have
been aware of the potential immigration consequences of his
guilty plea. Accordingly, the court ruled that “the limitations
period outlined in Utah Code § 78B-9-107(2)(e) began to run
during [Lopez’s] misdemeanor proceedings before the Ogden
City Justice Court or, at the latest, immediately following his
sentencing,” and that the one-year period had therefore “long
since passed.” The PCRA court concluded that Lopez’s 2014
PCRA petition was 	consequently untimely and granted the
City’s motion to dismiss.
¶10 	“We 	review 	an 	appeal 	from 	an 	order 	dismissing 	or
denying 	a 	petition 	for 	post-conviction 	relief 	for 	correctness

Lopez v. Ogden City
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without deference to the lower court’s conclusions of law.”
Gardner v. State, 2010 UT 46, ¶ 55, 234 P.3d 1115 (citation and
internal quotation marks omitted).
¶11 	Lopez contends that the PCRA court erred by relying on
the Docket Exhibit in reaching its conclusion that his petition
was untimely. Specifically, he argues that the Docket Exhibit was
a document “outside the pleadings” and that the court should
therefore have converted the motion to dismiss to a motion for
summary judgment before considering it. See, e.g., Tuttle v. Olds,
2007 	UT 	App 	10, 	¶¶ 8, 	10, 	155 	P.3d 	893 	(addressing 	the
circumstances under which such conversion is necessary). Lopez
asserts that the court’s failure to properly convert the motion
denied him “an adequate opportunity to present information
outside of the pleadings to respond to [the Docket Exhibit.]” But
even if the court had properly converted the motion, according
to Lopez, the Docket Exhibit would still have been insufficient
and inadmissible because it was “not verified by any person nor
was it certified by a court clerk, or any other court employee.”
¶12 	The City responds that, “[i]n considering a motion to
dismiss, the court may consider items that are deemed to be part
of the complaint, such as items appearing in the record of the
case.” (Citing 5B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1357.) The City asserts, “Even if [the
PCRA court] cited facts from the criminal record or from items
attached to the . . . motion to dismiss, in a post-conviction case,
those items are part of the pleading.”
¶13 	In the time since this case was briefed, the relevant rule
has 	been 	amended. 	Rule 	65C 	of 	the 	Utah 	Rules 	of 	Civil
Procedure, which governs PCRA cases, now provides that “[a]ll
records in the criminal case under review . . . are deemed part of
the trial court record in the petition for post-conviction relief.”
Utah R. Civ. P. 65C(n)(3) (effective May 1, 2017). Regardless of

Lopez v. Ogden City
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whether this rule amendment should be applied retroactively,3
we note that the City could now simply refile the motion to
dismiss and the current rule would apply, thus allowing the
PCRA 	court 	to 	properly 	consider 	the 	docket 	directly.
Accordingly, in the interest of judicial efficiency, we treat the
Docket Exhibit as properly before the PCRA court as “part of the
trial court record” in the PCRA proceedings. See id.
¶14 	Lopez 	also 	contends 	that 	the 	PCRA 	court 	erred 	in
determining that the one-year statute of limitations began to run
upon entry of the sentence because Lopez “should have known”
of the immigration consequences that could flow from his guilty
plea 	at 	that 	point. 	See 	Utah 	Code 	Ann. 	§ 78B-9-107(2)(e)
(LexisNexis 	2012) 	(providing 	that 	the 	one-year 	statute 	of
limitations begins running on “the date on which the petitioner
knew or should have known, in the exercise of reasonable
diligence, of [the] evidentiary facts on which the petition is
based”). Specifically, Lopez argues that the court improperly
discounted a factual allegation made in his petition.
¶15 	When considering a motion to dismiss, a court must
assume that the factual allegations contained in the complaint
are true, and must draw all reasonable inferences in the light
most favorable to the petitioner or plaintiff. See Commonwealth
3. See State v. Clark, 2011 UT 23, ¶ 12, 251 P.3d 829 (“With respect
to procedural statutes enacted subsequent to the initiation of a
suit . . . , we have held that the new law applies not only to
future actions, but also to accrued and pending actions, and that
further proceedings in a pending case are governed by the new
procedural 	law.” 	(brackets, 	citation, 	and 	internal 	quotation
marks omitted)); id. ¶ 14 (“The law governing this procedural
occurrence is thus the law in effect at the time of the procedural
act, not the law in place at the time of the occurrence giving rise
to the parties’ substantive claims.”).

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Prop. Advocates, LLC v. Mortgage Electronic Registration System,
Inc., 2011 UT App 232, ¶ 16, 263 P.3d 397; see also Rippey v. State,
2014 UT App 240, ¶ 11, 337 P.3d 1071 (applying the same rule in
the context of a PCRA petition). A motion to dismiss is properly
granted “only if it clearly appears that [the petitioner] can prove
no set of facts in support of his claim” which would entitle him
to relief. America West Bank Members, L.C. v. State, 2014 UT 49,
¶ 7, 342 P.3d 224 (citation and internal quotation marks omitted);
accord Rippey, 2014 UT App 240, ¶ 11.
¶16 	Lopez’s petition alleged that, due to the deficiencies of his
counsel, he did not know of the immigration consequences
associated with a guilty plea until well after the plea was
accepted and the statute of limitations had expired. The PCRA
court’s consideration of the Docket Exhibit therefore focused on
two entries related to his immigration status. The first entry
memorializes a continuance and gives as the reason for the
continuance the fact that “Defendant’s parents have retained an
immigration attorney.” And the second entry states, “Sentence
may 	run 	concurrent 	with 	any 	other 	time 	the 	defendant 	is
serving. 	Defendant 	may 	be 	released 	to 	Immigrations.” 	The
PCRA 	court 	determined 	that 	“these 	official 	docket 	entries
represent 	instances 	where 	[Lopez]—through 	the 	exercise 	of
diligent 	efforts—should 	have 	known 	of 	the 	potential 	of
impending 	immigration 	concerns 	that 	could 	accompany 	his
guilty plea.” The court ruled that the statute of limitations began
to 	run, 	“at 	the 	latest, 	immediately 	following 	[Lopez’s]
sentencing,” 	and 	had 	therefore 	long 	since 	expired.
Consequently, the court dismissed the PCRA petition.4
4. The court did not address Lopez’s other allegations that he
“was not informed of his right to counsel, his right to a public
trial, and his right to withdraw his guilty plea” in violation of
Utah 	Rule 	of 	Criminal 	Procedure 	11, 	the 	United 	States
Constitution, and the Utah Constitution. See generally State v.
(continued…)

Lopez v. Ogden City
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¶17 	We conclude that such dismissal was improper because
the court incorrectly weighed the Docket Exhibit against Lopez’s
factual allegations. For the purposes of a motion to dismiss, the
court was required to accept as true the factual allegation that
Lopez did not know of the immigration consequences due to the
shortcomings of both his counsel and the justice court. See, e.g.,
Rippey, 2014 UT App 240, ¶ 11. However, the court interpreted
the Docket Exhibit entry in a way that discounted this factual
allegation. The PCRA court relied on an entry in the Docket
Exhibit 	showing 	that 	Lopez’s 	parents 	had 	retained 	an
immigration attorney and concluded that, as a result, Lopez
should have known that negative immigration consequences
could result from a criminal conviction. This reliance assumed
too much. The fact that Lopez’s parents retained an immigration
attorney does not prove that Lopez ever consulted with an
immigration attorney or that the attorney informed him of the
immigration consequences of entering a guilty plea. Even if
Lopez 	did 	consult 	an 	immigration 	attorney, 	incomplete 	or
incorrect advice from that attorney could still have left Lopez
unaware 	that 	a 	guilty 	plea 	would 	trigger 	immigration
(…continued)
Lovell, 2011 UT 36, ¶ 39, 262 P.3d 803 (“The record before the trial
court, 	consisting 	of 	the 	plea 	colloquy 	and 	the 	contents 	of
documents where they have been properly incorporated, must
contain statements that clearly and unequivocally instruct the
defendant of the rights listed in rule 11(e).” (citation and internal
quotation marks omitted)), abrogated on other grounds by State v.
Guard, 2015 UT 96, 371 P.3d 1. Neither of the docket entries
discussed by the PCRA court touched upon those claims. It is
therefore unclear how the court might have determined that
Lopez knew or should have known of them as of the time of
sentencing (or even if the court did). On this record, the court
appears 	to 	have 	dismissed 	the 	entire 	PCRA 	petition 	after
determining only that one of several claims was time-barred.

Lopez v. Ogden City
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consequences. Thus, interpreting the retention of an immigration
attorney as proof that Lopez ultimately knew or should have
known 	of 	the 	consequences 	of 	a 	guilty 	plea 	improperly
discounts Lopez’s factual allegation that he “was not informed
about the consequences [his] guilty plea would have on his
immigration status.” For the purposes of a motion to dismiss, the
mere notation that an immigration attorney had been retained
by Lopez’s parents was insufficient to support the PCRA court’s
determination that Lopez should have known of the potential
immigration consequences of his plea. See America West, 2014 UT
49, ¶ 7 (explaining that a motion to dismiss is properly granted
only when the plaintiff can prove no set of facts in support of his
claim).
¶18 	The 	PCRA 	court 	also 	relied 	on 	the 	Docket 	Exhibit’s
statement that Lopez “may be released” to the immigration
authorities. 	But 	if 	the 	court 	had 	correctly 	accepted 	as true
Lopez’s factual assertion that he had not been informed of the
immigration consequences of a guilty plea, this statement would
not have informed Lopez that his plea could have an additional
adverse 	impact 	beyond 	that 	of 	being 	an 	undocumented
immigrant in custody.
¶19 	We conclude that the PCRA court improperly discounted
the factual allegations made in the petition when it determined
that Lopez should have known of the immigration consequences
of his guilty plea no later than the time of sentencing and thus
that the statute of limitations began to run at that time. Cf. Arnold
v. Grigsby, 2010 UT App 226, ¶ 13, 239 P.3d 294 (“The question of
when a plaintiff knew or should have known sufficient facts to
trigger a statute of limitations presents a ‘classic factual dispute
that should be resolved by the finder of fact.’” (quoting Sevy v.
Security Title Co., 902 P.2d 629, 634 (Utah 1995))). The court thus
did not assume that the factual allegations contained in the
petition were true and did not draw all reasonable inferences in
Lopez’s favor as it was required to do when ruling on a motion

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to dismiss. See Rippey v. State, 2014 UT App 240, ¶ 11, 337 P.3d
1071.
¶20 	Accordingly, 	we 	vacate 	the 	PCRA 	court’s 	order 	of
dismissal and remand the case for further proceedings consistent
with this opinion.