Peterson v. Kennard

2008 UT 90
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Justin Brent Peterson, 	No. 20070238
Petitioner,
v.
Sheriff Aaron D. Kennard,
Chief Paul Cunningham,
Salt Lake County Jail, and 	F I L E D
Taylorsville Justice Court,
Respondents. 	December 30, 2008
---
Third District, Salt Lake
The Honorable Sandra N. Peuler
No. 020907603
Attorneys: 	Joan C. Watt, Heather A. Brereton, Debra M. Nelson,
Salt Lake City, for petitioner
John N. Brems, George B. Hofmann, Salt Lake City, for
respondents
---
On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
¶1 	We agreed to answer three questions in our writ of
certiorari. 	First, whether Justin Peterson’s asserted lack of
representation by counsel during the period he could appeal his
conviction constitutes a special circumstance permitting him to
seek post-conviction relief. 	We hold that there were no unusual
circumstances or other common law exceptions that would allow Mr.
Peterson to petition for post-conviction relief. 	Next, we
consider whether the court of appeals applied the wrong burden of
proof in its review of Mr. Peterson’s challenge to the district
court’s denial of his post-conviction petition. 	We hold that the
court of appeals correctly assigned Mr. Peterson the burden of
proving that he did not waive his right to counsel, but we
clarify the burden-shifting framework and the level of proof

No. 20070238 	2
required when a defendant claims a deprivation of the right to
counsel. 	Finally, we agreed to consider whether Mr. Peterson’s
signed plea affidavit was sufficient, standing alone, to
establish that he had waived his right to counsel. 	We hold that
the signed plea affidavit, by itself, was sufficient to allow a
presumption of regularity to attach to the proceedings in the
justice court. 	The burden was then on Mr. Peterson to overcome
that presumption by presenting some evidence that his plea was
not knowing and voluntary.
BACKGROUND
¶2 	Petitioner Justin Peterson was charged by Taylorsville
City with one count each of possession of a controlled substance
and possession of drug paraphernalia. 	Mr. Peterson agreed to be
admitted to the Taylorsville Substance Abuse Court Program. 	A
plea of guilty is a condition to acceptance into the program.
The plea is then held in abeyance until the applicant
successfully completes the program. 	At such time, the plea is
withdrawn and the charges dismissed. 	To be eligible for the
program, a defendant must consent to waive particular rights,
including the right to counsel. 	Regarding the right to counsel,
the program’s application states,
Counsel. 	I have the right to consult with
and be represented by an attorney. 	If the
judge were to determine that I am too poor to
be able to hire a lawyer, then the judge
could appoint one to represent me. 	I might
later, if the judge determined I was able, be
required to pay for the appointed lawyer’s
service to me.
Other waived rights include the right to a jury trial, the
presumption of innocence, and the right to have the elements of
the charged crime proven beyond a reasonable doubt. 	The waiver
also pointed out that the conviction could be used to enhance
penalties for any future convictions. 	Mr. Peterson initialed
each of the application forms in a manner that indicated his
desire to waive these rights.
¶3 	Despite completing the application, Mr. Peterson was
not accepted into the program and his case was set for trial.
Two days before the trial date, Mr. Peterson appeared in Judge
Michael Kwan’s courtroom at the Taylorsville Justice Court and
stated that he wanted to resolve his case then and there. 	Judge
Kwan asked him if he wanted to plead guilty, and Mr. Peterson

1 Utah Rule of Criminal Procedure 11 requires judges to not
accept a plea of guilty until the judge finds that the defendant
understands, among other things, the nature of the crime, that
the plea was voluntarily made, and if the defendant is not
represented by counsel, that the right to counsel was knowingly
waived.
2 Mr. Peterson previously signed two other waivers in the
Taylorsville Justice Court and waived his right to an attorney at
least twice in the Midvale Justice Court.
3 	No. 20070238
responded that he did. 	The judge then told Mr. Peterson to take
a waiver form and sit down and read it. 	Mr. Peterson did so.
¶4 	The waiver form is similar to the waiver form used in
the substance abuse program and requires a defendant to initial
each right to be waived and then sign the form. 	Mr. Peterson
initialed each of the listed rights and then signed the form.
The waived rights included the right to counsel, to a jury trial,
and to the presumption of innocence. 	Judge Kwan then conducted
the obligatory rule 11 colloquy 1 with Mr. Peterson regarding the
waiver of rights.
¶5 	Judge Kwan testified in a later hearing that his
standard colloquy includes the following: 	(1) asking if the
defendant has read the waiver; (2) asking if the defendant reads
and understands the English language; (3) asking if the defendant
understands that by pleading guilty he or she is waiving all the
rights listed on the waiver; (4) informing the defendant that he
or she could go to jail; (5) informing the defendant that if he
or she wanted an attorney and could not afford one, one could be
appointed; and (6) asking the defendant if anyone had promised
him or her something for entering a guilty plea or if anyone had
threatened him or her into entering a guilty plea. 	Because Mr.
Peterson was facing two separate charges that day, Judge Kwan
went through the colloquy twice, once for each charge. 	Mr.
Peterson had appeared before Judge Kwan several times in the past
on other charges, and based on his experience with Mr. Peterson,
Judge Kwan felt comfortable that Mr. Peterson knew and understood
what he was doing. 2
¶6 	Judge Kwan noted the following in the court docket,
“[Defendant] entered guilty plea to all charges. 	[Defendant]
advised of Rule 11 and signed waiver[.]” 	The judge then
sentenced Mr. Peterson to jail for 360 days but then suspended
the jail term, placed him on probation, and imposed a number of
penalties and conditions. 	A week later, Judge Kwan revoked Mr.
Peterson’s probation, and Mr. Peterson served thirty-six days of

No. 20070238 	4
his sentence before having it suspended once more. 	Nineteen
months later, Mr. Peterson’s probation was again revoked, and he
was ordered to jail for the remaining 324 days. 	Mr. Peterson,
however, was already serving time in jail for other crimes. 	Six
months later, Mr. Peterson filed a petition for post-conviction
relief, claiming that he did not waive his right to counsel and
that his sentence was a violation of his Sixth Amendment right to
counsel.
¶7 	Taylorsville Justice Court responded by moving to
dismiss the petition. 	The district court held a hearing on the
motion that included testimony from both Mr. Peterson and Judge
Kwan. 	Mr. Peterson claimed that his waiver of counsel was not
knowing and voluntary because he did not read the waiver form but
merely “grabbed it and signatured and then signed it.” 	Mr.
Peterson further claimed that the judge’s colloquy was not
extensive enough to inform him about the rules of procedure and
evidence or the disadvantages of proceeding without counsel or of
his right to a trial de novo. 	Cross-examination of Mr. Peterson
by Taylorsville’s counsel included the following testimony:
Q 	Now, at the time you signed Defendant’s
Exhibit 7, the waiver in this case--let
me make sure I understand your
testimony, you’ve testified that Judge
Kwan asked you if you wanted a lawyer,
correct?
A 	Yes.
Q 	And he asked you if you understood that
you had a right to a lawyer, correct?
A 	Yes.
Q 	And you indicated that you didn’t want a
lawyer, correct?
A 	Yeah. 	I signed the waiver.
. . . .
Q 	And Judge Kwan asked you if you
understood each of the rights that were
listed on the form that you signed,
. . . didn’t he?
A 	Probably, yes.

5 	No. 20070238
Q 	And he asked you if you understood that
by entering a guilty plea, you were
giving up those rights, didn’t he?
A 	Yes.
. . . .
Q 	He did discuss with you the consequences
of a guilty plea, didn’t he, the fact
that you could be sentenced to jail?
A 	Yes.
Q 	And he explained to you how long you
could be sentenced to jail before you
entered your guilty plea, didn’t he?
A 	Yeah.
Q 	And he asked you if you had reviewed the
form that you were signing, didn’t he?
A 	Yeah, I think so.
. . . .
Q 	And then finally before he accepted your
guilty plea he asked if you were making
a knowing and voluntary guilty plea,
didn’t he?
A 	Yes.
After reviewing the evidence, the district court concluded that
Mr. Peterson had knowingly and voluntarily waived his right to
counsel and did not meet the burden of proof to challenge the
waiver. 	Mr. Peterson appealed the district court’s ruling. 	The
court of appeals affirmed and held that there were no unusual
circumstances concerning his waiver and that his post-conviction
“challenge to his justice court convictions is barred by his
failure to seek a trial de novo in the district court.” 	Peterson
v. Kennard, 2007 UT App 26, ¶ 17, 156 P.3d 834. 	On alternative
grounds, the court of appeals affirmed by noting that “the record
contains ample evidence to support the district court’s
determination that Peterson failed to prove a violation of his
right to have counsel present at his justice court plea hearing.”
Id. 	We granted certiorari to consider three questions brought by

3 Utah Code section 78A-1-101 was renumbered in 2008. 	No
substantive changes were made; therefore, we cite to the new
version.
4 We have held that de novo review from a justice court is
an “appeal” and thus satisfies article I, section 12 of the state
constitution, which guarantees “a right to appeal in all cases.”
(continued...)
No. 20070238 	6
Mr. Peterson. 	We have jurisdiction pursuant to Utah Code section
78A-3-102(3)(a) (2008).
STANDARD OF REVIEW
¶8 	“On certiorari, we review the decision of the court of
appeals, not that of the district court.” 	State v. Ferguson,
2007 UT 1, ¶ 11, 169 P.3d 423. 	Our review is for correctness,
and we cede no deference to that court. 	Id.
ANALYSIS
¶9 	Mr. Peterson asks us to consider the following
questions: 	(1) whether Mr. Peterson’s asserted lack of
representation by counsel during the period when he could appeal
his conviction constitutes a special circumstance permitting him
to seek post-conviction relief; (2) whether the court of appeals
erred in its assignment of the burdens of proof applicable to Mr.
Peterson’s petition for post-conviction relief; and (3) whether
the court of appeals erred in its assessment of the signed plea
affidavit in addressing the merits of the district court’s denial
of Mr. Peterson’s petition for post-conviction relief. 	In
analyzing these questions, we find it necessary to combine the
elements of the first two questions. 	Specifically, in order to
know if there were special or unusual circumstances, we needed to
determine whether a valid waiver occurred. 	In so doing, we
address the burden of proof needed to determine when a defendant
waives the right to counsel. 	Therefore, we analyze the first two
questions together before addressing the role of the signed
waiver form.
¶10 	Mr. Peterson’s case is noteworthy because it originated
in justice court. 	Utah’s justice courts are “courts not of
record.” 	Utah Code Ann. § 78A-1-101(2) (2008). 3 	Because of
this, appeals from justice court rulings are not subject to
traditional record review. 	Instead, the Legislature, in
recognizing the vital importance of a record to the operation of
our courts, extended de novo review at the district court level
to all statutory appeals 4 from justice court decisions. 	Utah

4 (...continued)
See Lucero v. Kennard, 2005 UT 79, ¶ 11, 125 P.3d 917.
5 Utah Code section 78-5-120 was amended and renumbered as
78A-7-118 in 2008. 	Because substantive changes were made to this
section, we cite to the version in effect at the time of Mr.
Peterson’s petition for post-conviction relief.
6 The Utah Post-Conviction Remedies Act was amended and
renumbered in 2008 as Utah Code sections 78B-9-101 to -405.
Because substantive changes were made to the Act, we cite to the
version in effect at the time of Mr. Peterson’s petition for
post-conviction relief.
7 	No. 20070238
Code Ann. § 78-5-120 (1996). 5 	In certain instances, a prosecutor
is likewise authorized to seek de novo review of adverse rulings
in district court. 	Id. 	The absence of a record poses challenges
for those who would review almost any action taken by a justice
court. 	Without a record to guide a reviewing court, virtually no
claim of error in a justice court can be evaluated on its merits.
The Legislature has chosen to answer the question of whether
error was committed by the expedient of granting the defendant a
second chance in the district court.
¶11 	The statutory framework for justice court appeals
serves all parties well so long as those appeals are perfected
within the thirty days allotted by law. 	Id. 	Indeed, we have
observed that a defendant charged with an offense in a justice
court is, “if anything, treated more favorably than a similarly
situated district court defendant” because he is afforded the
right to litigate anew a justice court conviction aided by having
been exposed to a complete preview of the prosecution’s case.
Bernat v. Allphin, 2005 UT 1, ¶ 41, 106 P.3d 707. 	Mr. Peterson
did not choose to pursue this advantage.
¶12 	Instead, Mr. Peterson’s claim comes to us by way of a
petition under Utah’s Post-Conviction Remedies Act, Utah Code
Ann. §§ 78-35a-101 to -304 (2002), 6 filed long after the
expiration of the thirty-day time period for obtaining de novo
review in the district court. 	Mr. Peterson claims that when he
entered his uncounseled plea of guilty to misdemeanor drug
charges in justice court, he made an involuntary and unknowing
waiver of his right to counsel. 	According to Mr. Peterson, he
was thereby deprived of his right to be represented by a lawyer
who could have helped him understand that he was entitled to de
novo review in district court. 	Of course, had Mr. Peterson made
a timely appeal, it would have been unnecessary to confront the
issue of whether his waiver was knowing and voluntary because he

7 Even though Mr. Peterson challenges only the jail sentence
and not the conviction, we have read Alabama v. Shelton, 535 U.S.
654 (2002), the controlling authority from the United States
Supreme Court on the Sixth Amendment right to counsel and
sentencing, to require the invalidation of a conviction obtained
in violation of the Sixth Amendment for all purposes. 	Ferguson,
2007 UT 1, ¶ 19. 	Thus, were we to conclude that Mr. Peterson was
unconstitutionally deprived of his right to counsel, Mr. Peterson
would be entitled to the vacation of his conviction, relief more
expansive than the vacation of the jail sentence that he has
requested.
No. 20070238 	8
would have appeared with a clean slate and with a lawyer. 	But he
did not. 	Instead of appealing after his probation was first
revoked, two weeks after sentencing and when he was sent to jail
for thirty-six days, Mr. Peterson waited to act for almost two
years and until he faced serving the remainder of the 360-day
jail sentence. 	It was not until this point that he questioned
the circumstances under which he surrendered his right to be
represented by a lawyer.
¶13 	Because Mr. Peterson failed to take issue with his
uncounseled status within the statutory time to appeal, his
conviction and sentence are “‘entitled to a presumption of
regularity.’” 	State v. Ferguson, 2007 UT 1, ¶ 33, 169 P.3d 423
(quoting State v. Triptow, 770 P.2d 146, 149 (Utah 1989)); see
also Lucero v. Kennard, 2005 UT 79, ¶ 24, 125 P.3d 917 (“In a
proceeding where a defendant seeks to collaterally attack a
court’s judgment, we presume the regularity of the proceedings
below.”). 	Despite the presumption of regularity that attaches to
Mr. Peterson’s conviction, we recognize that a deprivation-of-
counsel claim acquires a special status because of the
constitutional right to counsel granted by the Sixth Amendment.
Therefore, we “may not presume waiver of the right to counsel
unless there is some evidence that the defendant affirmatively
acquiesced to the waiver of counsel.” 	Lucero, 2005 UT 79, ¶ 25.
If there was no waiver, then Mr. Peterson’s conviction would have
violated the Sixth Amendment. 	As a result, both his conviction
and sentence would have been invalid. 7
¶14 	A defendant can waive his right to counsel. 	“The
United States Supreme Court . . . held that the Sixth Amendment
implicitly guarantees criminal defendants the ability to waive
their right to assistance of counsel and proceed pro se.” 	State
v. Pedockie, 2006 UT 28, ¶ 26, 137 P.3d 716 (footnote omitted).
We have recognized three ways that a defendant may give up his
constitutional right to the assistance of counsel: 	through an
express or “true” waiver; through forfeiture; and through a

8 We recognize that the PCRA was amended in 2008 and became
“the sole remedy for any person who challenges a conviction or
sentence for a criminal offense and who has exhausted all other
legal remedies.” 	Utah Code Ann. § 78B-9-102(1) (2008) (emphasis
added). 	This amendment appears to have extinguished our common
law writ authority for future cases. 	Because Mr. Peterson sought
post-conviction relief prior to the implementation of the 2008
amendment, relief through our common law writ authority is still
available to him.
9 	No. 20070238
waiver by conduct. 	Id. ¶ 27. 	Here, the district court found
that Mr. Peterson had expressly waived his right to counsel.
¶15 	As noted above, Mr. Peterson did not appeal the waiver.
Nor did he move to withdraw his plea agreement within the time
permitted by law. 	In Manning v. State, 2005 UT 61, ¶ 36, 122
P.3d 628, we reaffirmed the requirement we announced in State v.
Reyes, 2002 UT 13, ¶ 3, 40 P.3d 630, that a defendant who seeks
to challenge a plea agreement or the waiver of rights contained
in the agreement must first move to withdraw the plea within the
time permitted to seek that relief. 	Because Mr. Peterson did
not, his only avenue for relief is through collateral post-
conviction review.
¶16 	A defendant who seeks post-conviction review is allowed
only two narrow means of access to the courtroom. 	The first
entryway is through the Post-Conviction Remedies Act. 	Utah Code
Ann. §§ 78-35a-101 to -304. 	The second doorway is through our
common law writ authority. 8
¶17 	Although a district court’s de novo review of a justice
court ruling differs markedly from a direct appeal from a court
of record, the PCRA applies, and it bars, without exception,
relief for defendants who have not sought direct appeal. 	Utah
Code Ann. § 78-35a-102(1) (requiring exhaustion of “all other
legal remedies, including a direct appeal”); id. § 78-35a-
106(1)(c) (precluding relief upon grounds that “could have been
but [were] not raised at trial or on appeal”). 	The only recourse
available to a defendant who, like Mr. Peterson, did not seek de
novo review is through our common law writ authority.
¶18 	Generally, we will withhold our power to grant common
law post-conviction relief to a defendant whose “‘contention of
error [was] known or should have been known to the petitioner at
the time of judgment,’” and was not pursued “‘through the regular
and prescribed procedure.’” 	Lucero, 2005 UT 79, ¶ 29 (alteration
in original) (quoting Carter v. Galetka, 2001 UT 96, ¶ 14, 44
P.3d 626). 	Our common law post-conviction jurisprudence

No. 20070238 	10
recognizes, however, two separate but related means by which a
defendant may obtain a review of the merits of his post-
conviction petition despite having failed to exhaust his right to
direct appeal. 	The first common law exception to the exhaustion
of the legal-remedies bar to post-conviction relief takes the
form of rules that we have fashioned expressly for the purpose of
identifying circumstances under which a failure to exhaust the
right of direct appeal should be excused. 	These rules feature
prominently in Manning and Lucero, two cases we will discuss
below in greater detail. 	The second common law exception that
may also lift the procedural bar to post-conviction relief is the
occurrence of unusual circumstances. 	Unusual circumstances are
those that confront us with “an obvious injustice or a
substantial and prejudicial denial of a constitutional right.”
Hurst v. Cook, 777 P.2d 1029, 1035 (Utah 1989). 	We will examine
both of these exceptions in turn.
¶19 	The common law rules that may lift the procedural bar
to post-conviction relief were first established in Manning. 	In
that case, Ms. Manning entered a guilty plea and expressly waived
her right to appeal. 	Later, after the appeal period had passed,
she claimed that she had been denied her right to appeal. 	She
based this claim on the failure of her lawyer to tell her about
the time limits for filing a notice of appeal. 	Post-conviction
relief was the avenue that Ms. Manning followed in her attempt to
undo her plea. 	We held that the PCRA was not available to her
because it is a remedy only for those who challenge “‘a
conviction or sentence for a criminal offense and who [have]
exhausted all other legal remedies, including direct appeal.’”
Manning, 2005 UT 61, ¶ 24 (quoting Utah Code Ann. § 78-35a-
102(1)). 	We decided, however, that there must be some “readily
accessible and procedurally simple method by which persons
improperly denied their right to appeal can promptly exercise
[that] right.” 	Id. ¶ 26. 	Generally, a defendant who fails to
file a timely notice of appeal is presumed to have knowingly and
voluntarily waived his right to appeal. 	Id. ¶ 42. 	To overcome
this presumption, a defendant must prove that he was
“unconstitutionally deprived, through no fault of his own, of his
right to appeal.” 	Id. ¶ 31. 	We noted three exceptions that
would allow the post-conviction procedural bar to be overcome.
These are
(1) the defendant asked his or her attorney
to file an appeal but the attorney, after
agreeing to file, failed to do so; (2) the
defendant diligently but futilely attempted
to appeal within the statutory time frame
without fault on defendant’s part; or (3) the

11 	No. 20070238
court or the defendant’s attorney failed to
properly advise defendant of the right to
appeal.
Id. (citations omitted). 	The defendant must then prove these
exceptions by a preponderance of the evidence. 	Id. ¶ 32. 	We
concluded that Ms. Manning had not carried her burden of proving
that her failure to timely appeal was due to circumstances that
amounted to a “denial” of her right to appeal. 	In so doing, we
reiterated as “well established” the principle that the right to
appeal “will be considered waived where the defendant enters a
knowing and voluntary guilty plea pursuant to a plea agreement
that expressly waives the right to appeal and is entered in
accordance with the procedural safeguards of rule 11 of the Utah
Rules of Criminal Procedure.” 	Id. ¶ 36.
¶20 	Of the three exceptions we listed in Manning, only the
last could be applicable to Mr. Peterson. 	However, under the
Manning rules, Mr. Peterson would have to prove by a
preponderance of the evidence that he had been unconstitutionally
deprived of his right to counsel. 	The district court held a full
evidentiary hearing and determined that Mr. Peterson had not
carried his burden on that matter. 	The factual determinations of
the district court are not before us on certiorari, and
therefore, we will not overturn its findings.
¶21 	We turn next to Lucero, which tailored our analysis of
post-conviction relief to justice court defendants. 	When we
addressed Mr. Lucero’s quest for post-conviction relief, we
adopted common law rules that incorporated the basic principles
underlying the Manning rules but crafted them in a manner that
took into account the unique features of de novo review from a
justice court ruling. 	Lucero, 2005 UT 79, ¶ 11; see also Bernat,
2005 UT 1, ¶ 8 (providing a trial de novo in district court to a
defendant found guilty in justice court, if notice of appeal is
filed within thirty days of sentencing or guilty plea). 	Mr.
Lucero claimed that his guilty plea and resulting jail sentence
were illegal because he was deprived of his Sixth Amendment right
to counsel. 	Because Mr. Lucero sought relief via the PCRA and
not by way of a direct appeal, we reasoned that it would be
improper for us to provide common law relief to right a
constitutional wrong that could have been ameliorated by the
plain, speedy, and adequate remedy provided by a trial de novo.
Lucero, 2005 UT 79, ¶ 38. 	Post-conviction relief would be
available only to a defendant who could establish that “the
constitutional violation was the kind that would demand relief
beyond a new trial.” 	Id. 	Mr. Lucero did not qualify for relief
under this standard and neither does Mr. Peterson. 	Mr.

No. 20070238 	12
Peterson’s claim that his lack of counsel denied him the right to
appeal could have been remedied in a trial de novo. 	By not
appealing, he failed to exhaust his remedies and is thus barred
under both the Manning and Lucero common law rules dealing with
post-conviction relief.
¶22 	Despite failing to exhaust his legal remedies, one last
avenue remains open for Mr. Peterson. 	The unusual circumstances
exception provides review of a post-conviction relief petition if
a defendant is otherwise ineligible for post-conviction relief.
Id. ¶ 43; see also Carter, 2001 UT 96, ¶ 14 (“[I]ssues that could
and should have been raised on direct appeal, but were not, may
not properly be raised in a habeas corpus proceeding, absent
unusual circumstances.”). 	As we stated above, unusual
circumstances confront us with “an obvious injustice or a
substantial and prejudicial denial of a constitutional right.”
Hurst, 777 P.2d at 1035. 	Defined this way, unusual circumstances
may appear in many forms, some directly linked to a failure to
exhaust a right of direct appeal, some not. 	It may, therefore,
be appropriate for us to exercise our common law unusual
circumstances authority in ways that have little or nothing to do
with exhaustion of legal remedies. 	Accordingly, our unusual
circumstances authority is broader in its reach, though no less
rigorously applied, than our rules governing exceptions to the
procedural bar based on the failure to exhaust the right of
direct appeal.
¶23 	Mr. Peterson claims that the unusual circumstances
exception should apply to him because he was deprived of counsel
during the time that he could have appealed his justice court
conviction. 	Taylorsville Justice Court, on the other hand,
argues that Mr. Peterson made a knowing and voluntary waiver of
his right to counsel and cannot now claim that he was deprived of
counsel. 	The key, then, is whether Mr. Peterson knowingly and
voluntarily waived his right to counsel.
¶24 	When analyzing Mr. Peterson’s claim that he did not
knowingly and voluntarily waive his right to counsel, the court
of appeals relied upon our opinion in Lucero. 	There, we stated
the long held presumption that “where a defendant seeks to
collaterally attack a court’s judgment, we presume the regularity
of the proceedings below.” 	Lucero, 2005 UT 79, ¶ 24; see also
Johnson v. Zerbst, 304 U.S. 458, 468 (1938) (“When collaterally
attacked, the judgment of a court carries with it a presumption
of regularity.”). 	Normally, the defendant then bears the burden
of overcoming that presumption by a preponderance of the
evidence. 	Lucero, 2005 UT 79, ¶ 24. 	We stated, however, and the
court of appeals recognized, that a special status is conferred

13 	No. 20070238
upon deprivation-of-counsel claims because of the constitutional
right to counsel. 	Id. ¶ 25; see Peterson v. Kennard, 2007 UT App
26, ¶ 14, 156 P.3d 834. 	Thus, a court cannot “presume waiver of
the right to counsel unless there is some evidence that the
defendant affirmatively acquiesced to the waiver of counsel.”
Lucero, 2005 UT 79, ¶ 25. 	If evidence of acquiescence is
presented, however, a presumption of regularity is established
and the burden shifts to the defendant to prove by some evidence,
as we will discuss below, that the right to counsel was not
knowingly, intelligently, and voluntarily waived. 	Id. 	The court
of appeals found that Mr. Peterson’s signed waiver was enough
evidence to prove acquiescence and shift the burden back to Mr.
Peterson. 	The court then held that Mr. Peterson offered only
self-serving testimony and this was not enough to overcome his
burden of proof.
¶25 	We note, however, that less than a month before the
court of appeals’ decision, we decided the case of State v.
Ferguson. 	2007 UT 1, 169 P.3d 423. 	In that case, we clarified
the burden-shifting framework for a defendant claiming
deprivation of counsel. 	Although the outcome in Mr. Peterson’s
case is the same as under the court of appeals’ analysis, we
reiterate the correct framework that we announced in Ferguson.
In that case, Mr. Ferguson was charged with violating a
protective order, a class A misdemeanor. 	Id. ¶ 8. 	Because Mr.
Ferguson had previously been convicted on the same charge, the
state sought to enhance the new charge to a third degree felony.
Id. 	At the preliminary hearing, the state offered a certified
copy of Mr. Ferguson’s prior conviction. 	Id. 	Mr. Ferguson
objected and stated that the original conviction had been
obtained illegally because, as was shown on the conviction
notice, he had not been represented by counsel. 	Id. 	Mr.
Ferguson then argued that a prior uncounseled misdemeanor
conviction could not be used for enhancement purposes. 	Id.
¶26 	We began our analysis in Ferguson by looking back to
our earlier judgment in Triptow, 770 P.2d 146, and noting that
“judgments based on uncounseled convictions are entitled to a
presumption of regularity.” 	Ferguson, 2007 UT 1, ¶ 32; see
Triptow, 770 P.2d at 149. 	Regularity was established in Ferguson
by the state merely offering a certified copy of Mr. Ferguson’s
conviction. 	Mr. Ferguson argued that under our analysis in
Lucero there could be no presumption of regularity in an
uncounseled conviction because of the special status we afford to
right to counsel claims. 	That was not, however, the import of
the Lucero holding. 	Rather, as we stated in Ferguson, and as we
reiterate now, Lucero stood for the sole proposition that “it is
impermissible to presume a waiver of counsel where a trial record

No. 20070238 	14
is silent on the issue of waiver. . . . 	[N]othing in Lucero
. . . eliminate[s] the Triptow presumption of regularity that we
afford to judgments, even those judgments reflecting an
uncounseled conviction.” 	Ferguson, 2007 UT 1, ¶¶ 37-38. 	In
Ferguson, the state met its initial burden when it presented a
certified copy of Mr. Ferguson’s conviction. 	The conviction
reflected that Mr. Ferguson had not been represented by counsel,
and therefore the record was not silent on the issue of waiver.
We held that the presumption of regularity applied.
¶27 	Once regularity was established, we held that the
burden shifts to the defendant to rebut the presumption by
“offering evidence that he ‘did not knowingly waive counsel.’”
Id. ¶ 39 (quoting Triptow, 770 P.2d at 149). 	We noted that this
burden is very minimal. 	“Requiring that defendants produce
evidence in addition to their own testimony would shift to the
defendants the ultimate burden of proof,” an outcome that we
sought to avoid. 	Id. ¶ 40. 	Such a requirement would also
diminish the special status of deprivation-of-counsel claims
under Lucero. 	We therefore required that a defendant “need only
come forward with some evidence to rebut the presumption of
regularity,” and that a defendant’s “own testimony . . . is
sufficient for this purpose.” 	Ferguson, 2007 UT 1, ¶ 41. 	Once
such evidence is produced, “the burden then shifts to the State
to demonstrate by a preponderance of the evidence that [the
defendant] knowingly waived his right to counsel.” 	Id. 	In sum,
a presumption of regularity attaches to any previous judgment,
including those by a justice court. 	This presumption extends to
waiver of counsel by the defendant, unless the record is silent
on that issue, and there is no evidence of acquiescence by the
defendant. 	To rebut the presumption of regularity, the defendant
need only present some evidence, including self-serving
testimony, of his not having waived the right to counsel. 	The
burden then shifts back to the state to prove by a preponderance
of the evidence that the defendant knowingly and voluntarily
waived his right to counsel.
¶28 	In the case of Mr. Peterson, the justice court’s action
earned a presumption of regularity because the record is not
silent on the issue of waiver. 	The court docket and Mr.
Peterson’s signed waiver form provide the necessary evidence of
acquiescence. 	It was then up to Mr. Peterson to offer some
evidence that he did not knowingly and voluntarily waive his
right to counsel. 	Mr. Peterson stated in his testimony before
the district court that he did not read the waiver form and
therefore did not knowingly and voluntarily waive his right to
counsel. 	Mr. Peterson’s own testimony, however, rebuts this
assertion where he admitted that he was presented a plea

15 	No. 20070238
agreement form which he reviewed, that the form contained an
acknowledgment that he had a right to be represented by a lawyer,
and that he initialed confirmation of his desire to waive that
right. 	Furthermore, Mr. Peterson testified that he was asked by
the judge if he wanted a lawyer and that he understood that he
had a right to a lawyer. 	Mr. Peterson testified that he did not
want one. 	His testimony also conceded that the judge asked if he
understood each of the rights, including waiver of counsel, on
his plea form. 	Mr. Peterson testified that he understood and
that by signing the form he was giving up those rights and could
be sentenced to jail. 	Finally, Mr. Peterson told the judge that
he had reviewed the plea form and that his plea was knowing and
voluntary.
¶29 	Mr. Peterson’s assertion that he did not knowingly and
voluntarily waive his right to counsel, in light of his testimony
that he did, is insufficient because it is unbelievable. 	It
therefore does not rise to the minimal level of “some evidence”
that is required to rebut the presumption of regularity. 	Rather,
it is clear from the district court record that Mr. Peterson knew
what he was doing when he waived his right to be represented by
counsel. 	As a result, there is no burden shift to the Justice
Court and no need for it to prove by a preponderance of the
evidence that Mr. Peterson waived his right to counsel. 	Because
Mr. Peterson did waive his right to counsel, there are no unusual
circumstances that would allow him to overcome the bar to post-
conviction relief.
¶30 	In explaining how our unusual circumstances analysis
depends on whether Mr. Peterson waived his right to counsel, we
have also clarified the court of appeals’ analysis when it placed
the burden of proof on Mr. Peterson to demonstrate that he was
unlawfully denied counsel. 	The court of appeals did err when it
stated that Mr. Peterson offered no evidence besides his own
self-serving testimony and that this was not enough to overcome
his burden of proof. 	As we stated in Ferguson, a defendant’s
burden of proof in waiver of counsel cases is very minimal and
the defendant’s “own testimony . . . is sufficient for this
purpose.” 	2007 UT 1, ¶ 41. 	In Mr. Peterson’s case, however, his
self-serving testimony was unbelievable and therefore
insufficient.
¶31 	The final question we agreed to answer on certiorari is
whether the court of appeals’ reliance on the written waiver
alone was enough to establish that Mr. Peterson waived his right
to counsel. 	Though the court of appeals, like us, did not find
any unusual circumstances, it went on to review the merits of the
case. 	It concluded that the district court’s dismissal of Mr.

No. 20070238 	16
Peterson’s petition for post-conviction relief on its merits was
proper. 	Peterson, 2007 UT App 26, ¶ 13. 	As we noted above,
regularity attaches in waiver of counsel cases when there is
evidence of acquiescence by the defendant. 	Here Mr. Peterson’s
plea affidavit provides evidence that the record was not silent
on the subject of waiver and therefore Lucero’s exception to
regularity does not apply. 	Rather, the plea affidavit, by
itself, was enough evidence to allow a presumption of regularity
to attach to the justice court proceedings. 	The burden was then
on Mr. Peterson to prove by some believable evidence that he did
not knowingly and voluntarily waive his right to counsel. 	As we
have held, Mr. Peterson did not overcome this minimal burden.
CONCLUSION
¶32 	In conclusion, we hold that Mr. Peterson is not
entitled to post-conviction relief because he did not exhaust his
remedies as required by the PCRA and that no common law
exception, including unusual circumstances, is available to him.
We further hold that the correct framework for analyzing waivers
of counsel is as follows: 	(1) If the record is not silent as to
the issue of waiver, a presumption of regularity attaches to all
prior judgments, including those by a justice court; (2) To
overcome a presumption of regularity, a defendant has the minimal
burden of offering some evidence, even self-serving testimony;
and (3) Once the presumption is overcome, the burden shifts to
the state to prove by a preponderance of the evidence that the
defendant knowingly and voluntarily waived his right to counsel.
If, however, the record is silent as to the appointment or waiver
of counsel, no presumption of regularity may be assumed. 	Rather,
the state must produce some evidence of acquiescence of waiver by
the defendant. 	A signed plea affidavit waiving the right to
counsel is enough evidence to prove acquiescence by the defendant
and establish the presumption of regularity.
¶33 	The decision of the court of appeals is affirmed but on
the basis of the framework established in this opinion.
---
¶34 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Parrish concur in Justice Nehring’s
opinion.