State v. Troy Rees

2005 UT 69
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, 	No. 20030208
Plaintiff and Petitioner,
v.
F I L E D
Troy Rees,
Defendant and Respondent. 	November 4, 2005
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Second District, Ogden
The Honorable Parley R. Baldwin
No. 991900480
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Erin Riley,
Asst. Att’y Gen., Salt Lake City, for plaintiff
H. Don Sharp, Ogden, for defendant
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On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
¶1 	We granted certiorari to review the procedure and
remedy selected by the court of appeals to provide a defendant
who claimed that he had been denied a meaningful appeal due to
the ineffectiveness of his counsel. 	We hold that the post-
conviction procedure and remedy extended to Mr. Rees by the court
of appeals were not available to him and therefore reverse.
BACKGROUND
¶2 	Troy Rees was convicted of possession of marijuana with
intent to distribute. 	He appealed to the court of appeals,
challenging the trial court’s ruling on his motion to suppress
evidence together with his conviction. 	The court of appeals
affirmed Mr. Rees’s conviction on three grounds. 	First, the
court stated that the record before it was incomplete because it
was missing the preliminary hearing transcript, the suppression
hearing transcript, and the affidavit in support of the search
warrant. 	Because the issues presented were “highly fact

No. 20030208 	2
sensitive,” the court of appeals concluded that a complete record
was “essential.” 	The court of appeals affirmed Mr. Rees’s
conviction, relying on the principle that “[i]n the absence of an
adequate record on appeal, we cannot address the issues raised
and presume the correctness of the disposition made by the trial
court.” 	State v. Rawlings, 829 P.2d 150, 152-53 (Utah Ct. App.
1992).
¶3 	The court of appeals further determined that Mr. Rees
failed to adequately marshal the evidence in support of the trial
court’s finding that he possessed marijuana with intent to
distribute. 	Owing to this insufficiency, the court of appeals
affirmed this finding. 	Finally, the court of appeals ruled that
Mr. Rees failed to provide an adequate record to support his
contention that the trial court erred when it allowed the State
to refile its information after dismissing the case against
Mr. Rees without prejudice when witnesses for the State failed to
appear at two preliminary hearings. 	The court of appeals again
presumed the correctness of the trial court’s ruling in absence
of an adequate record to the contrary. 	State v. Rees, 2001 UT
App 27U (“Rees I”).
¶4 	After receiving the court of appeals’ decision,
Mr. Rees’s counsel contacted the court clerk to find out what had
happened to the missing portions of the record. 	The court clerk
discovered that although Mr. Rees’s counsel had in fact requested
all the relevant proceedings, the missing transcripts had been
placed on a different shelf than the rest of the record and had
not been filed with the court of appeals.
¶5 	After learning of this mistake, Mr. Rees, through the
same counsel who had represented him throughout the trial and
appeal, filed a petition for post-conviction relief with the
trial court under rule 65B(b) of the Utah Rules of Civil
Procedure. 	In his petition, Mr. Rees asked that his sentence be
reentered so that he could refile his appeal. 	Mr. Rees did not
articulate a clear reason why he believed to be entitled to this
relief, but rather indicated generally that he did not receive a
meaningful appeal because some of the records had not been filed
with the court of appeals. 	In his petition, he suggested,
without explicitly stating it, that his attorney had been
ineffective in supervising aspects of Mr. Rees’s appeal. 	The
trial court dismissed Mr. Rees’s petition and imposed the
original sentence, finding that the case had already been
adjudicated in the court of appeals.
¶6 	Mr. Rees appealed this dismissal to the court of
appeals. 	The court of appeals reversed the trial court’s

1 “Coram nobis” is a Latin term meaning “the error before
us.” 	A writ of error coram nobis is an ancient common law writ
that exists to “correct fundamental errors which render a
criminal proceeding irregular and invalid.” 	Cardall v. United
States, 599 F. Supp. 912, 914-15 (D. Utah 1984). 	We have held
that the writ of error coram nobis can be “used by a sentencing
court to modify or vacate a judgment of conviction on the basis
of the facts which, without defendant’s fault, did not appear on
the face of the record and as to which the defendant was without
other remedy.” 	State v. Johnson, 635 P.2d 36, 38 (Utah 1981),
superseded by Manning v. State, 2005 UT 61, 122 P.3d 628.
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dismissal of Mr. Rees’s petition, and remanded the matter for
further consideration. 	In its opinion, the court of appeals
treated Mr. Rees’s petition as a writ of error coram nobis 1
predicated on a claim for relief based on ineffective assistance
of counsel. 	State v. Rees, 2003 UT App 4, ¶ 8, 63 P.3d 120
(“Rees II”). 	The court of appeals determined that because
Mr. Rees had not yet had the opportunity to argue his ineffective
assistance of counsel claim, he was entitled to post-conviction
relief in the trial court. 	The court of appeals remanded the
case, instructing the trial court to determine whether Mr. Rees
was entitled to coram nobis relief and to “grant [his] petition
and reenter his sentence nunc-pro-tunc” if he prevailed. 	Id.
¶ 15.
¶7 	The State petitioned this court for a writ of
certiorari. 	We granted the State’s request for certiorari review
to take up the questions of whether the court of appeals erred in
(1) treating the petition as a writ of error coram nobis; (2)
reversing the trial court’s dismissal of the petition for
extraordinary relief; and (3) inviting the trial court to reenter
Mr. Rees’s sentence nunc pro tunc, should it find that the
defendant was deprived of his constitutional right to a
meaningful appeal because of his reliance on ineffective counsel.
¶8 	On certiorari, we review the decision of the court of
appeals, not that of the trial court, giving no deference to the
court of appeals’ conclusions of law. 	State v. Geukgeuzian, 2004
UT 16, ¶ 7, 86 P.3d 742. 	We reverse on these issues.
ANALYSIS
¶9 	We confront here the question of whether the writ of
error coram nobis is available to provide a remedy to a defendant
who claims that his appeal was defectively prosecuted because his
appellate counsel was ineffective. 	The court of appeals held
that it was and remanded the matter to the trial court for the

No. 20030208 	4
purpose of ascertaining whether Mr. Rees was denied his right to
appeal because of his counsel’s ineffectiveness. 	If the trial
court found for Mr. Rees on his ineffective assistance claim, the
court of appeals instructed it to resentence Mr. Rees nunc pro
tunc.
¶10 	In reaching this result, the court of appeals rejected
the State’s contention that if Mr. Rees was entitled to relief,
he must pursue it under the provisions of Utah’s Post-Conviction
Remedies Act, Utah Code Ann. § 78-35a-102 (Supp. 2004) (“PCRA”),
and rule 65C of the Utah Rules of Civil Procedure, which sets out
the procedures that complement the substantive provisions of the
PCRA.
¶11 	The court of appeals justified fashioning coram nobis
relief for Mr. Rees by linking it to the procedure grounded in
the writ that we announced in State v. Johnson, 635 P.2d 36 (Utah
1981). 	The court of appeals was drawn to Johnson because Johnson
provided defendants who have been denied a right to appeal a
mechanism to revive their right. 	Under the Johnson procedure, an
eligible defendant could seek resentencing in the trial court
nunc pro tunc. 	This procedure would entitle a defendant to the
benefit of appointed counsel, and, were it determined that he had
been denied his constitutionally guaranteed right of appeal, a
recommencement of the thirty-day period to file his notice of
appeal. 	By making this connection, the court of appeals
suggested that the circumstances surrounding its affirmance of
the trial court in his prior appeal, circumstances that possibly
amounted to a denial of his “right to a meaningful appeal,” Rees
II, 2003 UT App 4, ¶ 16, 63 P.3d 120, constituted the legal
equivalent of the denial of his right to appeal that led us to
create the Johnson remedy. The validity of the court of appeals’
belief that these two situations were factually and legally
comparable is the inquiry upon which our holding hinges.
¶12 	The court of appeals went on to reason that the
enactment after Johnson of rule 65C of the Utah Rules of Civil
Procedure governing petitions for extraordinary relief did not
erode the utility of Johnson’s coram nobis based procedure
because we had “at least obliquely” reaffirmed the coram nobis
relief it announced. 	Id. ¶ 5 n.2.
¶13 	Regardless of whether we professed our prior allegiance
to Johnson directly or obliquely, we unequivocally discarded the
Johnson procedure in Manning v. State, 2005 UT 61, 122 P.3d 628.
In its place, we erected a sturdier, less contrived framework for
a defendant who has been unconstitutionally denied his right to
appeal to refresh his opportunity to perfect his appeal. 	We

2 The 1977 version of rule 65B abolished pleading “special
forms of writs” and replaced them with “action under these
Rules.” 	Utah R. Civ. P. 65B(a) (1977) (amended by 65B(b)(1)
(1992)).
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noted in Manning that we could not simply do away with the
Johnson remedy because were we to do so we would have “no remedy
currently in place under the PCRA or our rules of appellate
procedure for reinstating an unconstitutionally denied criminal
appeal.” 	Id. ¶ 27.
¶14 	Of course, an indication that no remedy exists in
statute or rule to make real the promise afforded by a
constitutional right gives rise to questions of what tool should
be deployed to protect that right. 	Although formally abolished
by rule in 1977, 2 extraordinary writs embody the procedure
traditionally used to protect such a right. 	In Manning we filled
the void created by the demise of the Johnson post-conviction
hearing procedure with a procedure crafted in no small measure of
parts taken from the writ of error coram nobis, most prominently
its guarantee of appointed counsel. 	Id. ¶ 16. 	Although not
styled as an extraordinary writ, the Manning procedure
accomplishes the same objective.
¶15 	One way, then, to ascertain whether some fashion of
coram nobis relief was due Mr. Rees even after our rejection of
the Johnson post-conviction procedure is to explore whether
Mr. Rees had no other remedy available to him. 	The answer to
this question turns on whether an affirmance of conviction
attributable to the ineffective assistance of counsel may
constitute a denial of the right to appeal. 	We conclude that it
does not. 	We will explain how we reach this conclusion shortly,
but we first state why it matters.
¶16 	If the PCRA provides Mr. Rees an adequate remedy at
law, he is not entitled to secure extraordinary relief but must
instead pursue his PCRA remedy. 	PCRA section 78-35a-102(1)
provides that the PCRA “establishes a substantive legal remedy
for any person who challenges a conviction or sentence for a
criminal offense and who has exhausted all other legal remedies,
including a direct appeal,” subject to certain exceptions not
germane to this case. 	The PCRA, then, preempts access to other
forms of extraordinary relief, including the remedy afforded by
coram nobis, by defendants who satisfy the conditions of section
78-35a-102(1). 	Mr. Rees is such a defendant and therefore must
seek his remedy under the PCRA.

No. 20030208 	6
¶17 	We surmised in Manning that “a defendant who simply
fails to file an appeal within the time limits required by rule
4(a) of the Utah Rules of Appellate Procedure would reasonably be
considered to have exhausted any remedies he might have obtained
thereby for purposes of the PCRA.” 	Manning, 2005 UT 61, ¶ 24.
These defendants have not been denied their right to appeal, but
have rather been deemed to have waived it. 	A different legal
status attaches to them than to those defendants who have been
unconstitutionally denied their right to appeal. 	We have
interpreted a “denial” to have constitutional implications when a
defendant has “been prevented in some meaningful way from
proceeding with [his] appeal[].” 	Id.
¶18 	We construe the act of “proceeding” with an appeal to
encompass filing a notice of appeal, not more. 	Defendants who
gain entry to appellate courts and have their appeals concluded
either by a ruling on the merits or involuntary dismissal have
exhausted their remedy of direct appeal and are thereby drawn
into the ambit of the PCRA.
¶19 	We find it telling that the court of appeals described
the claim for which it found coram nobis relief appropriate the
denial of Mr. Rees’s “right to a meaningful appeal because of the
ineffective assistance of his appellate counsel.” 	Rees II, 2003
UT App 4, ¶ 16 (emphasis added). 	This characterization of the
circumstances that would merit the intercession of coram nobis is
substantially different than our description of the essence of an
unconstitutional denial of the right to appeal. 	Both employ the
word “meaningful.” 	As we used the term in Manning, “meaningful”
modifies the type of conduct or circumstance that deprived a
defendant of access to the appellate process. 	As used by the
court of appeals here, “meaningful” modifies “appeal” and
strongly indicates that coram nobis is available to provide an
additional direct appeal to a defendant whose appeal has resulted
in an unfavorable outcome that can be traced to the ineffective
assistance of appellate counsel. 	This interpretation creates a
scenario that plausibly could be claimed in every unsuccessful
post-conviction appeal and carry with it the prospect of having
the seldom-used writ of coram nobis swallow the PCRA.
CONCLUSION
¶20 	Based on the foregoing, we hold that Mr. Rees’s claim
does not implicate an unconstitutional denial of his right to
appeal and that despite the unfavorable outcome of his appeal, he
has exhausted his right to appeal and is therefore required to
prosecute his claim of ineffective assistance of counsel under
the PCRA and rule 65C.
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¶21 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.