Carrell v. State

2023 UT App 93

THE UTAH COURT OF APPEALS

JOHN MARTIN CARRELL,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20210145-CA
Filed August 24, 2023

Third District Court, West Jordan Department
The Honorable L. Douglas Hogan
No. 190905374

Ann M. Taliaferro, Attorney for Appellant
Sean D. Reyes, Aaron G. Murphy, and Erin Riley,
Attorneys for Appellee
Staci A. Visser, Attorney for Amicus Curiae Utah
Association of Criminal Defense Lawyers
Jennifer Springer, Attorney for Amicus Curiae
Rocky Mountain Innocence Center
Debra M. Nelson and Benjamin Miller, Attorneys
for Amicus Curiae Utah Indigent
Appellate Defense Division

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

TENNEY, Judge:

¶1 For a period of about five years, John Carrell drove a school
bus for children with disabilities. In 2014, Carrell was charged
with sexually abusing one of the children who rode his bus, and
charges were later added relating to a second child. A jury
Carrell v. State

convicted Carrell on a large number of counts, and those
convictions were affirmed on direct appeal.

¶2 Acting pro se, Carrell filed a petition for postconviction
relief. This was followed by an amended petition and then a
second amended petition. During the pendency of the
postconviction case, Carrell twice requested the appointment of
counsel. The postconviction court denied both requests.

¶3 After briefing from both sides, the postconviction court
granted the State’s motion for summary judgment. With the
assistance of new counsel, Carrell now appeals that decision. For
the reasons set forth below, we affirm.

BACKGROUND

Underlying Criminal Case

¶4 The facts regarding Carrell’s criminal convictions are set
forth in State v. Carrell, 2018 UT App 21, 414 P.3d 1030, and we
need provide only a brief summary here.

¶5 From 2009 through early 2014, Carrell drove a school bus
for children with disabilities. Through an information filed in
2014 and an amended information filed in 2015, the State charged
Carrell with 33 counts of aggravated sexual abuse of a child. The
State alleged that Carrell sexually abused two children who rode
his bus (both of whom were five years old at the time), and the
State’s allegations were at least partially corroborated by video
footage taken from safety cameras that were operating inside the
school bus.

¶6 Carrell retained private counsel to represent him. At the
close of trial, the jury convicted Carrell on 19 counts—13 relating
to the first victim and 6 relating to the second victim. Carrell
appealed, and he was represented on appeal by the same attorney

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that Carrell had retained to represent him at trial. In February
2018, this court affirmed Carrell’s convictions, and the Utah
Supreme Court later denied Carrell’s request for a writ of
certiorari.

Postconviction Proceedings

¶7 In July 2019, Carrell filed a timely pro se petition for relief
under the Post-Conviction Remedies Act (the PCRA), and he filed
an amended petition in September 2019 (the First Amended
Petition). In the First Amended Petition, Carrell raised a number
of ineffective assistance claims that fell into five broad groups—
namely, that trial counsel (1) failed to adequately investigate the
case, (2) failed to provide him with discovery, communicate with
him, or prepare him for trial, (3) failed to call an expert witness,
(4) failed to make certain objections, impeach certain witnesses,
and make various arguments at trial, and (5) operated under an
actual conflict of interest based on the deterioration of the
attorney-client relationship.

¶8 The State entered its appearance in November 2019, and in
January 2020, it filed a motion for summary judgment. The
postconviction court then granted Carrell’s request for an
extension of time to respond to the State’s motion, giving him
until April 2020 to respond.

¶9 On April 9, 2020, Carrell filed a motion asking the court to
appoint counsel. Carrell claimed that he could no longer afford to
retain private counsel, and he then argued that he “was illegally
convicted due to Ineffective Assistance of Counsel” and that he
“should have the right to effective assistance of counsel due to the
legal complexity of this issue.” In a written response to this
request, the State said that while it took “no position on whether
the [c]ourt should appoint counsel,” it noted that “although the
PCRA permits the appointment of pro bono counsel for
petitioners,” “there is no Sixth Amendment right to effective
assistance of counsel in a PCRA proceeding.” Still purporting to

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take no position on Carrell’s request for counsel, the State also
noted that Carrell had already drafted multiple petitions for
postconviction relief “and numerous other motions, all of them
exhibiting an understanding of the law.”

¶10 The court denied Carrell’s request for the appointment of
counsel. It noted that under the PCRA provision governing the
appointment of counsel, it was required to consider whether the
petition “contains factual allegations that will require an
evidentiary hearing” and “whether the petition involves
complicated issues of law or fact that require the assistance of
counsel for proper adjudication.” See Utah Code § 78B-9-109(2)
(2020). The court held that it was “satisfied, based upon the factual
allegations in the petition, that an evidentiary hearing [was] not .
. . required,” explaining that the “events of the trial itself are a
matter of record requiring no evidentiary hearing” and that as “to
events that allegedly took place outside” of court, “no evidentiary
hearing [was] necessary” for it “to apply the requisite, straight-
forward Strickland analysis to trial counsel’s performance.” The
court also concluded that “the issues presented in the petition are
not complex and [Carrell] appears to be fully capable of
presenting his claims in a clear and articulate manner.”

¶11 On the same day that he filed his motion for the
appointment of counsel, Carrell also filed a motion for leave to file
a second amended petition, and this motion was accompanied by
the proposed petition (the Second Amended Petition). The Second
Amended Petition included all the claims that Carrell had raised
in the First Amended Petition, and it now added five new claims.
One of the new claims was that counsel was ineffective for failing
to investigate the relationship between the first victim’s family
and Bikers Against Child Abuse (BACA), suggesting that such
investigation might have provided some grounds to impeach the
first victim at trial. The remaining four new claims alleged that
Carrell’s prior counsel was ineffective for not asking for various

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jury instructions at trial, or, instead, for not raising these jury
instruction issues on direct appeal (the Jury Instruction Claims).

¶12 Over the State’s opposition, the court partially granted
Carrell’s request to file the Second Amended Petition. The court
held that one of Carrell’s Jury Instruction Claims—namely, a
claim that was based on counsel’s failure to request a unanimity
instruction—was “futile” because the jury had been “polled when
it entered its verdict” and “[e]ach jury member affirmed that he
or she concurred in the verdict.” Because of this, the court would
not allow Carrell to add this particular claim. But the court did
allow Carrell to file the Second Amended Petition with respect to
the remaining added claims. 1

¶13 In October 2020, the State filed a motion for summary
judgment on the Second Amended Petition. There, the State
argued that the Jury Instruction Claims (at least those that had
survived the court’s futility review) were “untimely and must be
denied.” The State laid out its view that Carrell was required to
file his postconviction petition by October 5, 2019. The State
argued that because the Second Amended Petition was filed on
April 9, 2020, the Jury Instruction Claims were untimely, and it
then argued that they did not qualify under the relation-back
doctrine either. With respect to the remaining claims (the Non-
Instruction Claims), the State asked the court to conclude that

1. At this point, the court had not ruled on the State’s pending
motion for summary judgment. In the same ruling in which it
allowed Carrell to file the Second Amended Petition, however, the
court suggested that the earlier motion for summary judgment
remained “intact” and that if the State “opt[ed] to request
summary judgment against the latest iteration of the petition in
this case,” it could “add new arguments as necessary to respond
to [Carrell’s] new claims.”

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Carrell v. State

Carrell had not shown that his counsel had performed deficiently
or that he was prejudiced by the alleged deficient performance.

¶14 After the State filed this second motion for summary
judgment, Carrell filed another motion asking the court to appoint
counsel. Carrell argued that the “issues which were allowed to be
added” to his Second Amended Petition “and the one issue which
was denied are extremely, legally complex to [him].” He argued
that he had “exhausted every resource available to him” and that
“[d]ue to the lack, non-existence or denial of legal training, access
to case law, legal research materials, a law library or legal
counsel,” it was “virtually impossible for [him] to properly
adjudicate his petition.” He further argued that he was prejudiced
because the State had “nearly unlimited resources in legal
training, law trained associates to collaborate with, case law
resources, law libraries, access to the internet and support staff”
and that it was “certainly not a level playing field.”

¶15 In a response to this request, the State again claimed that it
was taking “no official position on whether the [c]ourt should
appoint counsel.” But the State noted that “Carrell has already
drafted most of his responses to the summary judgment motion
because nearly all of his claims remain identical from the prior
petition.” The State also pointed out that the “only difference is
the four new claims, which Mr. Carrell himself successfully
argued for in his motion to amend his petition, which the State
opposed,” and it then asserted that “[a]bsent this matter
proceeding to an evidentiary hearing[,] there is little counsel can
do for Mr. Carrell at this point.” Finally, the State informed the
court that it would provide Carrell with printed copies of the legal
authorities it had cited in its motion for summary judgment in an
attempt to address Carrell’s concern “about the volume of cases
and statutes cited in the State’s motion for summary judgment.”

¶16 The court denied Carrell’s second request for the
appointment of counsel, expressing its view that it was “not

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apparent that pro bono counsel should be appointed in this case,
as the relevant facts and law are not unduly complicated” and that
this was “particularly” so where the State had “voluntarily
provided to [Carrell] copies of the case law and statute[s] cited”
in its second motion for summary judgment.

¶17 Carrell subsequently filed a memorandum opposing the
State’s second motion for summary judgment, after which the
court issued a written ruling granting the State’s second motion.

¶18 In its ruling, the court first addressed the timeliness of the
Jury Instruction Claims. After conducting an initial analysis of the
filing dates and relevant limitations period, the court concluded
that the original petition and the First Amended Petition were
filed within the PCRA’s one-year statute of limitations but that the
Second Amended Petition was not.

¶19 The court then addressed the question of whether any of
the claims raised in the Second Amended Petition related back to
the claims that had been raised earlier. The court held that the new
failure-to-investigate claim did relate back to the First Amended
Petition and that it was therefore not barred by the statute of
limitations. But in the court’s view, the Jury Instruction Claims
did not relate back. The court saw “no factual connection
whatsoever” between the Jury Instruction Claims and the claims
in the First Amended Petition, “all of which focused on discovery
strategy, courtroom decorum, cross-examination technique, and
admission of evidence.” And the court also concluded that the
Jury Instruction Claims did “not amplify or expand on any of
[Carrell’s] timely claims” and were “entirely disconnected from
them.” The court accordingly concluded that “the relation back
doctrine [did] not protect them from the PCRA’s one-year statute
of limitations.”

¶20 The court next addressed the State’s request for summary
judgment on the Non-Instruction Claims. Addressing the
governing legal standard, the court held that Carrell was required

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Carrell v. State

to (1) “bring forth admissible evidence proving that ‘no
competent attorney’ would have so acted” and (2) “demonstrate
an ability to prove that there was a reasonable likelihood of a more
favorable outcome absent his trial counsel’s deficient
performance.” (Citation omitted.) The court then expressed its
view that Carrell had made “virtually no attempt to overcome
summary judgment on anything but his untimely Jury Instruction
Claims” and that his lack of meaningful response was
“tantamount to a default on each of the counsel ineffectiveness
claims.”

¶21 But even so, the court proceeded to address Carrell’s
claims on their merits. In a portion of the ruling that spanned 20
pages, the court conducted a Strickland analysis for each claim. In
each instance, the court concluded that Carrell had failed to
establish either deficient performance or prejudice. With respect
to prejudice, the court stressed that the “videos are what mattered
in this case,” and it then recounted in graphic detail the ways in
which the videos corroborated the State’s allegations against
Carrell. Given the incriminatory strength of this video evidence,
the court held that Carrell could not “establish prejudice” for
“any” of his claims. For those reasons, the court granted the
State’s motion for summary judgment and denied Carrell’s
petition for postconviction relief.

¶22 New counsel then appeared on Carrell’s behalf and filed a
timely notice of appeal.

ISSUES AND STANDARDS OF REVIEW

¶23 Carrell argues that the postconviction court “both
committed constitutional error and abused its discretion in
declining to appoint counsel to aid Carrell in raising and litigating
his post-conviction claims.” To the extent that Carrell’s argument
is constitutional in nature, it’s unpreserved. As a result, we review
it for plain error. See Salt Lake City v. Kidd, 2019 UT 4, ¶ 31, 435

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P.3d 248. To the extent that Carrell’s argument is grounded in the
PCRA, we review its “denial of a motion to appoint counsel . . .
for an abuse of discretion.” Zaragoza v. State, 2017 UT App 215,
¶ 14, 407 P.3d 1122.

¶24 Carrell next argues that the postconviction court erred in
granting the State’s motion for summary judgment. We review a
court’s “decision to grant summary judgment for correctness,
granting no deference” to the decision. Noor v. State, 2019 UT 3,
¶ 18, 435 P.3d 221 (quotation simplified).

ANALYSIS

I. Appointment of Counsel

¶25 Carrell argues that when the postconviction court declined
to appoint counsel, it (A) committed “constitutional error” and (B)
“abused its discretion” under the PCRA. We disagree on both
fronts.

A. Constitutional Right to Counsel

¶26 Carrell argues that he was constitutionally entitled to
counsel “in this collateral proceeding” because it “amount[ed] to
the ‘first review’ of [ineffective assistance] claims of prior counsel
who served as both trial and appellate counsel.” But after the State
argued in its responsive brief that Carrell never raised this below,
Carrell simply took issue with the State’s “attempt to move the
standard of review from an abuse of discretion to one of plain
error,” while still pointing to no place below where he argued that
the court was depriving him of his constitutional right to counsel.
Having reviewed the record ourselves, we see no place where he
raised this. We accordingly regard the issue as unpreserved.

¶27 Because of this, Carrell must establish that an exception to
the preservation rule applies. See Salt Lake City v. Kidd, 2019 UT 4,

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¶ 31, 435 P.3d 248 (holding that the preservation rule applies to
every unpreserved claim, including those raising “constitutional
questions, unless a defendant can demonstrate that exceptional
circumstances exist or plain error occurred” (quotation
simplified)). To demonstrate plain error, Carrell must show that
“(i) an error exists; (ii) the error should have been obvious to the
trial court; and (iii) the error is harmful, i.e., absent the error, there
is a reasonable likelihood of a more favorable outcome.” State v.
Griffin, 2016 UT 33, ¶ 17, 384 P.3d 186 (quotation simplified). And
to show obviousness, Carrell must establish that “the law
governing the error was clear or plainly settled at the time the
alleged error was made.” State v. Garcia, 2022 UT App 77, ¶ 47, 526
P.3d 1238 (quotation simplified), cert. denied, 525 P.3d 1260 (Utah
2022).

¶28 So viewed, Carrell has not established that the
postconviction court committed any constitutional error, much
less that it committed obvious constitutional error, when it denied
his requests for the appointment of counsel. Carrell grounds his
claim in the Sixth Amendment to the United States Constitution,
which provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his
defence.” U.S. Const. amend. VI. The “Sixth Amendment right to
counsel extends to a defendant’s first appeal as of right” and
“includes the right to state-paid counsel for indigent defendants.”
Gailey v. State, 2016 UT 35, ¶ 26, 379 P.3d 1278. It also provides that
defendants “have the right to the effective assistance of counsel
on direct appeal.” Id. ¶ 27. But “[t]he same is not true under the
PCRA.” State v. Nicholls, 2017 UT App 60, ¶ 40, 397 P.3d 709.
Instead, “[n]either the right to state-paid counsel nor the right to
effective assistance of counsel is constitutionally or statutorily
guaranteed in postconviction proceedings.” Gailey, 2016 UT 35,
¶ 28; see also Zaragoza v. State, 2017 UT App 215, ¶ 17 n.4, 407 P.3d
1122 (noting that it is a “well-settled principle that there is no
constitutionally or statutorily guaranteed right to counsel when
defendants elect to pursue collateral attacks on their convictions”

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Carrell v. State

(quotation simplified)); Tillman v. State, 2012 UT App 289, ¶ 22,
288 P.3d 318 (holding that “[u]nless a defendant has been
sentenced to death, there is no statutory or constitutional right to
counsel in a post-conviction proceeding” (quotation simplified)).

¶29 Pointing to Martinez v. Ryan, 566 U.S. 1 (2012), Carrell
nevertheless claims that the United States Supreme Court has
“recognized that the right to assistance of counsel attaches in the
first review of an issue where that first review is the equivalent of
the direct appeal as to the claim.” Carrell then claims that because
he had “the same counsel represent[]” him at trial and again on
appeal, “the first and only opportunity for him to raise [ineffective
assistance] claims was through the[] post-conviction
proceedings.” Turning back to Martinez, Carrell argues that it was
constitutionally “necessary that counsel be appointed” in this
postconviction proceeding.

¶30 But Carrell points to no clear or plainly settled authority
applying Martinez in this manner. And for this reason alone, we
could reject the claim for lack of obvious error. In any event, we
see no basis for concluding that the postconviction court
committed any Martinez error at all. In Martinez, the Supreme
Court answered the question of “whether ineffective assistance in
an initial-review collateral proceeding on a claim of ineffective
assistance at trial may provide cause for a procedural default in a
federal habeas proceeding.” 566 U.S. at 9. The Court held that it
can, but only in a somewhat narrow set of circumstances. Id.
Specifically, Martinez arose out of a state (Arizona) where claims
of ineffective assistance of trial counsel could only be brought by
a petition for postconviction relief. Id. at 4. Martinez reasoned that
in jurisdictions where the postconviction proceeding is the first
proceeding in which the defendant can raise a claim of ineffective
assistance of trial counsel, a federal habeas court may hear such
claims if the defendant’s ability to raise them in a postconviction
petition was lost due to ineffective assistance of counsel. Id. at
13–14. But the Court stressed that its decision did not “resolve

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Carrell v. State

whether that exception exists as a constitutional matter,” but
instead simply “recogniz[ed] a narrow exception” in cases of
“procedural default.” Id. at 9 (emphases added).

¶31 In Trevino v. Thaler, 569 U.S. 413, 429 (2013), the Supreme
Court later expanded the Martinez rule to cover situations in
which a “state procedural framework, by reason of its design and
operation, makes it highly unlikely in a typical case that a
defendant will have a meaningful opportunity to raise a claim of
ineffective assistance of trial counsel on direct appeal.” But the
Court again stressed that this rule is about the existence of an
“exception” to the default rules in federal habeas. See id. at 423,
429.

¶32 In light of this, Carrell’s Martinez claim fails for two
reasons. First, Martinez wasn’t answering a question about the
constitutional right to counsel. Rather, it was answering a
question about the availability of an exception to procedural
default in federal habeas proceedings. Because of this, Martinez
does not obviously establish that Carrell had a constitutional right
to counsel in this proceeding. Second, even on its own terms,
Martinez doesn’t apply here because the framework that led to
Martinez (one in which ineffective assistance can only be raised in
a collateral proceeding) is not the framework used in Utah. To the
contrary, “Utah allows claims for ineffective assistance of trial
counsel on direct appeal.” Patterson v. State, 2021 UT 52, ¶ 63, 504
P.3d 92. Indeed, the Tenth Circuit recently held that Martinez is
inapplicable to claims arising out of Utah precisely because Utah
“provides a meaningful opportunity to present ineffective
assistance of trial counsel claims on direct appeal.” Finlayson v.
State, 6 F.4th 1235, 1243 (10th Cir. 2021).

¶33 Pushing back, Carrell claims that his case is different for
one final reason. Carrell points out that he had the same counsel
at both trial and on direct appeal, and from this, he claims that his
“first opportunity to raise” his ineffective assistance claims was

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Carrell v. State

“through PCRA proceedings.” But while it’s true that Carrell was
represented by the same counsel at trial and again on direct
appeal, we think it’s significant that this was retained counsel.
Thus, to the extent that it is true that this circumstance impaired
counsel’s ability to raise an ineffective assistance claim on direct
appeal, that impairment was the result of Carrell’s own choice to
continue with the same retained counsel through the direct
appeal.

¶34 True, a postconviction petitioner “is not procedurally
barred from raising claims of ineffective assistance of counsel if
the same counsel represented the petitioner at trial and on direct
appeal.” Johnson v. State, 2011 UT 59, ¶ 11, 267 P.3d 880. But even
so, Carrell points to no authority, and we’re aware of none, that
clearly establishes that if a defendant chooses to retain the same
counsel all the way through the direct appeal, this creates an
affirmative constitutional right that wouldn’t otherwise exist to
now have counsel appointed for collateral review. Given that this
is an unpreserved issue, it’s therefore not “clear or plainly
settled,” Garcia, 2022 UT App 77, ¶ 47 (quotation simplified), that
Carrell’s choice to retain his counsel through the direct appeal
created a constitutional right to counsel in the postconviction
proceeding that wouldn’t otherwise have existed. This claim
fails. 2

2. Carrell also suggests that the court violated his rights under the
state constitution. But while Carrell makes a passing reference to
Article 1, Section 12 of the Utah Constitution (which provides that
“[i]n criminal prosecutions the accused shall have the right to
appear and defend in person and by counsel”), Carrell doesn’t
provide us with any authority that delineates the contours of this
state constitutional right, nor does he make any argument unique
to the state constitution. Without such argument or authority,
(continued…)

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Carrell v. State

B. Appointment of Counsel under the PCRA

¶35 Carrell next argues that the postconviction court should
have appointed an attorney under the PCRA. We review the
court’s “denial of a motion to appoint counsel under the [PCRA]
for an abuse of discretion.” Zaragoza, 2017 UT App 215, ¶ 14. And
“in this context, our supreme court has instructed” that a
postconviction court “abuses its discretion only if its decision was
beyond the limits of reasonability, an event which occurs when”
the court “has taken actions that are inherently unfair or that no
reasonable person would take.” Id. ¶ 17 (quotation simplified).

¶36 This claim is statutory, so we begin with the text of the
statute. And in doing so, we “apply the law in effect at the time of
the occurrence regulated by that law.” State v. Wilkerson, 2020 UT
App 160, ¶ 24, 478 P.3d 1048 (quotation simplified). The version
of the PCRA that existed at the time that Carrell requested counsel
provided that “the court may, upon the request of an indigent
petitioner, appoint counsel on a pro bono basis to represent the
petitioner in the post-conviction court or on post-conviction
appeal.” Utah Code § 78B-9-109(1) (2020) (emphasis added). 3 “The
plain, ordinary, and accepted meaning of the word may is
permissive or discretionary, generally indicating that an
individual is either permitted or has a possibility to do
something.” State v. Diviney, 2021 UT App 106, ¶ 22, 500 P.3d 883
(emphasis in original, quotation otherwise simplified), cert. denied,
505 P.3d 55 (Utah 2022). Since this statute uses the word “may,”
we have recognized that a postconviction “court enjoys wide

Carrell has not persuaded us that the postconviction court
committed any obvious error under the state constitution.

3. This subsection has since been amended to include the possible
appointment of counsel from the Indigent Appellate Defense
Division. See Utah Code § 78B-9-109(1)(a) (2023).

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Carrell v. State

latitude regarding whether to appoint counsel in a
post-conviction case.” Zaragoza, 2017 UT App 215, ¶ 17.

¶37 At the time, this statute also provided that “[i]n
determining whether to appoint counsel, the court shall consider
the following factors: (a) whether the petition or the appeal
contains factual allegations that will require an evidentiary
hearing; and (b) whether the petition involves complicated issues
of law or fact that require the assistance of counsel for proper
adjudication.” Utah Code § 78B-9-109(2) (2020). 4 Interpreting this
provision, we have recognized that a postconviction “court enjoys
wide discretion over the ultimate decision about whether to
appoint pro bono counsel in post-conviction cases,” as long as the
court, “in arriving at its decision, considers the factors that the
statute requires it to consider.” Zaragoza, 2017 UT App 215, ¶ 17.

¶38 As noted, the postconviction court denied Carrell’s request
for counsel on two occasions—once after the State filed its first
motion for summary judgment, and again after the State filed its
second motion for summary judgment. Carrell challenges both
denials, but his arguments about each are largely similar. 5

4. This subsection has since been amended to read: “In
determining whether to appoint counsel, the court may consider:
(a) whether the petitioner is incarcerated; (b) the likelihood that
an evidentiary hearing will be necessary; (c) the likelihood that an
investigation will be necessary; (d) the complexity of the factual
and legal issues; and (e) any other factor relevant to the particular
case.” Utah Code § 78B-9-109(2) (2023).

5. Carrell raises one potential difference that warrants brief
mention. Carrell agrees that the postconviction court did
“consider the two requisite factors” with respect to its denial of
his first motion, and our review of the ruling confirms this. With
(continued…)

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Carrell v. State

¶39 Again, the evidentiary hearing factor looks to whether the
petition “contains factual allegations that will require an
evidentiary hearing.” Utah Code § 78B-9-109(2) (2020). But rule
65C of the Utah Rules of Civil Procedure governs postconviction
cases, and rule 65C(l) provides that “[a]fter pleadings are closed,
the court shall promptly set the proceeding for a hearing or
otherwise dispose of the case.” (Emphasis added.) On its face, this
contemplates that a postconviction court is not required to hold a
hearing (evidentiary or otherwise) before ruling on a petition. Cf.
Moench v. State, 2002 UT App 333, ¶ 14, 57 P.3d 1116 (remanding
with directions to the postconviction court to hold a hearing on a
petition for postconviction relief “if necessary”). And this
allowance makes sense, particularly when the case involves (as
most postconviction petitions do) a claim of ineffective assistance
of counsel. The Strickland standard requires a showing of both

respect to the court’s denial of the second motion, however,
Carrell suggests that the court didn’t “expressly” consider the
factors. But Carrell doesn’t directly argue that the second denial
should not be given the deference that’s ordinarily given to such
rulings.
In any event, the statute required the court to “consider”
the factors, but it didn’t require the court to enter findings on
them. See id. § 78B-9-109(2) (2020). When dealing with a similarly
worded statute in the sentencing context, we presume that a court
considered the statutorily required factors, thus placing the
burden on the defendant to demonstrate that the court did not
consider them. See, e.g., State v. Samul, 2018 UT App 177, ¶ 21, 436
P.3d 298. Applying that same rubric here, we note that the court
expressly considered the second factor. And while the court
didn’t refer to the first factor by name, it repeatedly referenced its
denial of the earlier motion, thus suggesting that it was
incorporating its previous analysis—an analysis that, again,
expressly addressed this factor. In these circumstances, Carrell
has not persuaded us that the court did not consider this factor or
that its ruling should not be afforded the usual deference.

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Carrell v. State

deficient performance and prejudice. So if the trial record itself
shows that counsel’s actions were reasonable, or if the record
instead demonstrates that the petitioner was not prejudiced, no
evidentiary hearing would be required before the court can
resolve the claim.

¶40 Here, the postconviction court concluded that it was
“satisfied, based upon the factual allegations in the petition, that
an evidentiary hearing [was] not . . . required” on Carrell’s claims
because the “events of the trial itself are a matter of record
requiring no evidentiary hearing,” and that with respect to the
claims stemming from “events that allegedly took place outside”
of court, “no evidentiary hearing [was] necessary” for it “to apply
the requisite, straight-forward Strickland analysis to trial counsel’s
performance.” The same judge who was presiding over Carrell’s
postconviction case had also presided over Carrell’s trial, so he
was familiar with the evidence presented at trial. And while
Carrell focuses on the court’s denial of his request for counsel,
Carrell hasn’t adequately briefed the contours of a court’s
discretion to deny a petition without holding an evidentiary
hearing, let alone persuaded us that the court could not grant the
State’s motions for summary judgment without first doing so.
Because of that, Carrell has not convinced us that the court’s
analysis of this factor was “beyond the limits of reasonability” or
“inherently unfair.” Zaragoza, 2017 UT App 215, ¶ 19 (quotation
simplified).

¶41 This leaves the second factor, which turns on “whether the
petition involves complicated issues of law or fact that require the
assistance of counsel for proper adjudication.” Utah Code
§ 78B-9-109(2) (2020). On this, the postconviction court noted in
its first denial that “the issues presented in the petition are not
complex and [Carrell] appears to be fully capable of presenting
his claims in a clear and articulate matter.” And in its second
denial, it ruled that, again, “the relevant facts and law are not

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Carrell v. State

unduly complicated” and, as a result, it was “not apparent that
pro bono counsel should be appointed in [Carrell’s] case.”

¶42 In response, Carrell points out that ineffective assistance
claims are “complex,” and he likewise points out that the PCRA
is “filled with statutory rules and procedural minefields.” Both
things are true. Carrell further points out that the State is typically
represented in such cases by attorneys who are well versed in the
law in general and the PCRA in particular, while postconviction
petitions are often filed pro se by incarcerated individuals who
are working with either the resources available through the prison
library or with the prison’s contract attorneys. These things seem
true too. Finally, Carrell correctly points out that at the time of
both of his requests for counsel, the State had filed summary
judgment motions. But from all this, Carrell suggested at oral
argument that “once the State files [a] motion for summary
judgment,” a court must now grant a request for counsel to allow
the petitioner to meaningfully respond to that motion. We part
ways with Carrell here.

¶43 The things that Carrell is pointing to—the legal complexity
of an ineffective assistance claim, the procedural hurdles posed by
the PCRA, the litigation advantages enjoyed by the State, and the
possibility of a summary judgment motion—all exist in virtually
every postconviction case. Yet if the legislature believed that the
collective complexity caused by these things means that a
postconviction petitioner must be provided with counsel (either
initially or at least upon the filing of a summary judgment
motion), the legislature would have written a statute under which
the appointment of counsel is at some point mandatory. But the
legislature didn’t. Instead, it wrote a statute under which the
appointment of counsel in a postconviction case is discretionary,
and it placed no limitation on that discretion that would
automatically be triggered by any particular motion or procedural
hurdle.

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Carrell v. State

¶44 This isn’t to say that a postconviction court can’t choose to
appoint counsel anyway. Since a court has discretion to deny a
request for counsel, it of course also has discretion to grant one,
and we express no view here as to whether a postconviction court
should (or should not) ordinarily grant such a request. But since
the legislature has seen fit to place this decision in the hands of
the postconviction courts, the question before us is simply
whether this court abused its discretion in this case. Carrell’s
arguments on appeal were largely systemic, however, and he
hasn’t persuaded us that there was anything so complicated about
this petition or this case that it would have been “beyond the
limits of reasonability” or “inherently unfair” for the court to deny
his request for counsel. Zaragoza, 2017 UT App 215, ¶ 19
(quotation simplified). We accordingly reject this claim.

II. Summary Judgment

¶45 Separate from the appointment of counsel issues, Carrell
argues that the “post-conviction court erred in granting the State’s
Motion for Summary Judgment.” This is so, he claims, with
respect to both (A) the Jury Instruction Claims and (B) the
Non-Instruction Claims. We disagree.

A. The Jury Instruction Claims

¶46 As noted, Carrell first raised the Jury Instruction Claims in
his Second Amended Petition, and the postconviction court
denied them as being untimely. Carrell now challenges that ruling
on appeal. While Carrell agrees that the Second Amended Petition
was filed “six months after the limitations period expired,” he
argues that these claims “relate back to claims asserted in the
earlier, timely, first-amended petition.” We disagree. 6

6. The postconviction court initially dismissed one of the Jury
Instruction Claims (specifically, the claim that counsel was
(continued…)

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Carrell v. State

¶47 Our supreme court has held that “PCRA petitions are
governed by rule 15 of the Utah Rules of Civil Procedure,”
including “rule 15(c)’s relation-back test.” Noor v. State, 2019 UT
3, ¶¶ 26, 35, 435 P.3d 221. The relation-back test generally
provides that “when a new claim relates back to the date of the
original pleading, a party may include it even when the statute of
limitations has otherwise run on that claim.” Id. ¶ 38 (quotation
simplified). In the part relevant here, the governing rule states
that the relation-back test applies when “the amendment asserts
a claim or defense that arose out of the conduct, transaction, or
occurrence set out—or attempted to be set out—in the original
pleading.” Utah R. Civ. P. 15(c)(2). Thus, the “proper test” is

ineffective for not requesting an instruction on the unanimous
verdict requirement) based on the court’s conclusion that it was
futile. Carrell challenges this futility ruling on appeal, but we need
not address this argument because of our conclusion that, like the
other Jury Instruction Claims, it was untimely filed.
In addition, Carrell alternatively argues that “State action
prevented Carrell from timely filing” the Second Amended
Petition, thereby tolling the PCRA’s statute of limitations. But
Carrell acknowledges that he didn’t raise this argument below. As
a result, this claim is unpreserved and Carrell must establish plain
error to prevail. See Salt Lake City v. Kidd, 2019 UT 4, ¶ 31, 435 P.3d
248. He hasn’t. This claim is based on Carrell’s assertion that the
impediments associated with his incarceration “prevented [him]
from filing the amended claims any sooner.” But Carrell doesn’t
explain with any specificity what those impediments actually
were, nor does he explain how they stopped him from timely
filing the Second Amended Petition even though they didn’t stop
him from timely filing his earlier petitions. Carrell also points to
no settled authority holding that the usual impediments of
incarceration toll the PCRA’s statute of limitations. We
accordingly see no basis for concluding that the postconviction
court plainly erred by not sua sponte recognizing that the statute
of limitations had been tolled.

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Carrell v. State

“whether, under a liberal reading, the amended pleading imports
a new and different cause of action or whether the amended
pleading merely expands or modifies the same causes of action
originally pled.” Noor, 2019 UT 3, ¶ 37 (quotation simplified). And
an amendment “arises out of the same conduct, transaction, or
occurrence when it arises out of the same cause of action and
alleges the same kind of factual basis as the original allegation.”
Id. ¶ 47 (quotation simplified).

¶48 The postconviction court concluded that the Jury
Instruction Claims had “no factual connection whatsoever” to the
claims in the First Amended Petition, did “not amplify or expand
on any of [Carrell’s] timely claims,” and were “entirely
disconnected from them.” 7 And for good reason. In his earlier
petition, Carrell claimed that he received ineffective assistance
when his trial counsel (1) failed to adequately investigate the case,
(2) failed to provide him with discovery, communicate with him,
or prepare him for trial, (3) failed to call an expert witness, (4)
failed to make certain objections, impeach certain witnesses, and
make various arguments at trial, and (5) operated under an actual
conflict of interest. But nowhere in his First Amended Petition did
Carrell make any claim regarding counsel’s failure to request any
jury instructions. 8

7. As noted, the postconviction court had earlier dismissed one of
the Jury Instruction Claims on futility grounds, but these
conclusions would apply with equal force to that particular claim
too.

8. As noted, the test set forth in rule 15(c)(2) asks whether the new
claims relate back to claims set forth in the “original pleading.”
Here, however, the court focused its analysis on whether the
claims Carrell raised in the Second Amended Petition related back
to the claims he raised in his First Amended Petition (as opposed
(continued…)

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Carrell v. State

¶49 Even so, Carrell claims that what matters is that he made
ineffective assistance of counsel claims in his First Amended
Petition. In his view, his Second Amended Petition “simply
expanded a category of claims found in the original timely
petition—counsel failed to pose objections (here, to incomplete
instructions to the jury) and counsel failed to make beneficial
arguments to the benefit of his client (here, to uphold the
defendant’s constitutional right to a unanimous verdict).” But
while it’s true that Carrell’s earlier petition must be given “a
liberal reading,” id. ¶ 37, Carrell’s argument operates at a level of
generality that is at odds with settled principles regarding this
rule.

¶50 Carrell’s focus is on the fact that all of his claims were
ineffective assistance claims. But in theory, a defendant could
claim ineffective assistance with respect to virtually any decision
or action during the lifespan of a case, ranging from the initial
investigation to trial to sentencing. If it were true that a
postconviction petitioner who asserted ineffective assistance in a
timely-filed original petition could then amend the petition to add
any other ineffective assistance claim, there wouldn’t be much left
of the PCRA’s statute of limitations.

¶51 In Noor, however, our supreme court rejected such a broad
interpretation of rule 15(c), holding that the existence of a
common cause of action alone isn’t enough. Id. ¶ 48. The court
explained that for the relation-back test to apply, the “cause of
action or claim asserted must generally be the same in both

to his original petition). Neither party has argued that the court
could not base its analysis on the First Amended Petition. In any
event, we have applied this doctrine in past cases to situations like
this one, where an untimely second amended petition (arguably)
related back to a timely filed first amended petition. See, e.g.,
Martinez v. Dale, 2020 UT App 134, ¶ 23, 476 P.3d 136; Selvage v.
J.J. Johnson & Assocs., 910 P.2d 1252, 1260 (Utah Ct. App. 1996).

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Carrell v. State

pleadings, and the issue presented in the amendment must
factually relate to the issue presented in the first pleading.”
Id. ¶ 47 (emphasis added). Thus, even if a petitioner has asserted
ineffective assistance claims in both the original and amended
petitions, to obtain the benefit of this rule, the petitioner “must
also show that his amendment may be reasonably construed as an
expansion or modification of the original claim brought.” Id. ¶ 49
(emphasis added); see also id. ¶ 40 (explaining that the
relation-back test applies when the amendment “expands or
amplifies what is alleged in the original” petition (quotation
simplified)).

¶52 Again, Carrell raised a number of ineffective assistance
claims in his earlier petition. But none of Carrell’s claims had
anything to do with the jury instructions that the court gave or
didn’t give at trial. Because of this, when Carrell later filed the
Second Amended Petition that raised jury instruction claims for
the first time, these new claims were not an “expansion,”
“modification,” or “amplification” of Carrell’s old claims, nor
were they grounded in the same facts. Id. ¶¶ 40–41, 49 (quotation
simplified). Rather, these claims were based on new procedural
facts and new “occurrence[s]” entirely. Id. ¶ 42.

¶53 Because of this, the postconviction court correctly
concluded that Carrell’s Jury Instruction Claims were untimely.
As a result, those claims were properly denied.

B. The Non-Instruction Claims

¶54 This leaves the remaining claims which, unlike the Jury
Instruction Claims, were timely filed. As noted, the court reached
the merits of these claims and granted the State’s motion for
summary judgment on them.

¶55 Carrell argues that the court erred in doing so, and Carrell
focuses his attention on the court’s conclusion that trial counsel
did not perform deficiently. Supported by amici, Carrell argues

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Carrell v. State

that the court’s deficient performance analysis was based on a
misapplication of the Supreme Court’s decision in Premo v. Moore,
562 U.S. 115 (2011).

¶56 But to prevail on his ineffective assistance claims, Carrell
was required to establish both deficient performance and
prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984);
accord State v. Ray, 2020 UT 12, ¶ 24, 469 P.3d 871. A failure to
establish either prong would be fatal to any of his claims, and a
court (whether it be the postconviction court or this court) can
decide any of them on prejudice alone. See, e.g., State v. Hurwitz,
2021 UT App 112, ¶ 21, 500 P.3d 921 (“Because both prongs of the
Strickland test must be met to establish ineffective assistance of
counsel, we need not address both prongs if a defendant’s claim
clearly fails on one of them.” (quotation simplified)); State v.
Darnstaedt, 2021 UT App 19, ¶ 24, 483 P.3d 71 (“Because a
defendant must establish both [prongs], we often skip the
question of deficient performance when a defendant cannot show
prejudice.” (quotation simplified)), cert. denied, 496 P.3d 716 (Utah
2021); State v. Curtis, 2013 UT App 287, ¶ 34, 317 P.3d 968
(“Appellate courts may resolve an ineffective assistance claim on
prejudice alone if the ineffectiveness did not prejudice the trial’s
outcome.” (quotation simplified)).

¶57 In its ruling, the postconviction court conducted
claim-specific analyses of each of Carrell’s claims and concluded
that Carrell had not established deficient performance or
prejudice for any of them. But Carrell has not challenged the
prejudice portions of the court’s ruling. And Utah appellate courts
will not reverse a ruling of the lower court “that rests on
independent alternative grounds where the appellant challenges
only one of those grounds.” Howick v. Salt Lake City Corp., 2018 UT
20, ¶ 5, 424 P.3d 841 (quotation simplified). Here, the court’s
prejudice rulings operated as independent bases for granting the
State’s request for summary judgment. Carrell’s failure to
challenge them leaves those bases untouched. As a result, we have

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Carrell v. State

no basis for reversing the court’s decision to grant summary
judgment on any of the Non-Instruction Claims.

CONCLUSION

¶58 The postconviction court did not commit plain error when
it denied Carrell’s requests for the appointment of counsel, nor
did it abuse its discretion under the PCRA by doing so. The court
also did not err in granting the State’s request for summary
judgment.

¶59 The judgment of the postconviction court is therefore
affirmed.

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