*1 ZIMMERMAN, сoncurring granted judge Justice, by liability the trial on the was, by issue the terms of Rule of result: 56(c),interlocutory in char- Civil Procedure remanding so reversing I and join 56(c). acter. Utah R.Civ.P. Interlocu- opportu- can a fair plaintiff Williams have are, definition, tory alterable at orders on the nity ques- evidence present to both See, any judge. e.g., the trial time good he to had a defense tion of whether Nielsen, 22 Utah 2d Jensen v. However, damages. the suit on initial (1968); Blalock, re degree Justice depart I to a from Howe N.C. 64 S.E.2d for to the that result. basis judge granted this trial had the lengths goes great in an Howe to Justice judgment aspects of partial summary on all partial motion for attempt to show the liability legal malpractice. for Barber’s the judgment granted by summary trial during сhanged Apparently, judge trial the liability reach of judge did not all issues his mind concluded that Williams judge not decide whether and that the did good he had a on not shown that defense the had a defense to initial Williams the the first civil action which merits of committed suit in defendant Barber which malpractice Such a the was committed. exception ap- I take malpractice. this change the entirely of mind was within First, I grounds. conclude proach on two 56(c). judge’s power under rule How- trial judgment partial summary was ever, give adequate no- did not counsel dispose of of all the elements intended change of As a conse- tice of his mind. action. But sec- malpractice cause of caught by counsel quence, Williams’ was ond, do not need imрortantly, more we concludes, and, surprise as Justice Howe less obscure the to reach the issue—much unfairly prejudiced because Williams was reasoning— law in this area strained unprepared on proceed his counsel was judge the trial bound to because pro- A remand for further that element. motion for ruling to his on the adhere ceedings point is merited. therefore partial summary judgment. reasons, in re- foregoing join I For the explain. I think that me William’s Let remanding trial versing to the court partial judgment as summary motion proceedings. for further granted included a find- by the court a meritorious defense to that there was HALL, C.J., concurs finding underlying suit. Such concurring opinion of Justice of the cause of action must be element ZIMMERMAN. liability is established.
determined before nothing suggestion,
Despite Justice Howe’s partial sum-
indicates that motion question
mary judgmеnt was limited negligent, without Barber was whether
regard negligence caused to whether that Williams, any liability incur Barber Utah, Appellee, Plaintiff and STATE of that at the time nor is there indication granted, judge intended motion WEST, J. Ronald nothing in the ruling. limit his And to so Appellant. persuades me law facts of this case or the No. 20856. step reading take the
that we should partial summary judgment issue Supreme Court of Utah. finding on one of “liability” to exclude a Sept. of the substantive cause elements 6, 1988. Rehearing Denied Dec. action. Notwithstanding foregoing,
pears me that we need not reach summary partial judgment
this. *2 Willis, Provo,
Kent O. for defendant and appellant. Wilkinson, Sjogren, L.
David L.
Sandra
City,
plaintiff
appellee.
Salt Lake
DURHAM, Justice:
appeals from
court’s
denial of his motion to
plea.
and remand.
We reverse
January
copy
defendant was
child. A
of the stipulation
On
child,
sexual
of a
then
abuse
transmitted
Fourth District Court
under
Code Ann.
first
August
until
defendant was
when
76-5-404.1(l)-{2)
(amended
(Supp.1983)
§
This
resentenced.
occurred almost two
1984)
years
carrying a sentence of five
to months after defendant’s motion to with-
charge,
on that
life. Based
guilty plea
draw his
was denied. Defend-
*3
agreed
forego
right
jury
his
a
to
to
appeals
ant
the denial of his motion to
degree
plead guilty to the second
and to
guilty plea,
his
dispo-
not the
but
felony
attempted
of a child.
sexual abuse
proceeding.
of his habeas corpus
sition
plea bargain,
informa-
to this
Pursuant
though
Even
defendant did not file a
1984,
9,
February
amended on
tion was
conviction,
appeal
original
direct
from his
charge
attempted sexual
defеndant with
appeal
directly
he does
the trial court’s
child. Before
ar-
abuse of a
defendant’s
denial of his motion to withdraw his.
however, the
raignment
sentencing,
plea, and we will consider those claims. A
legislature
Code
Utah state
amended Utah
the record suggests
review of
that defend-
76-5-404.1, making sexual abuse of
Ann. §
probably
irregular-
ant was
unaware of the
Thus,
degree felony.
a
child a second
discrepancies surrounding
ities and
his ar-
guilty,
pleaded
crime to which defendant
raignment and sentencing. The record
child, was
attempted sexual abuse of a
suggesting
not contain
does
evidence
degree
actually
felony.
a third
Utah
statutory
defendant was aware of the
con-
76-4-102(3). Apparently,
Ann.
Code
§
sentencing.
opposi-
fusion
parties
both
court were unaware
to defendant’s
his
change,
motion withdraw
legislative
and defendant was
did
permitted
plead guilty
plea,
a second de-
the State
assert that defendant
gree felony,
longer
parties
crime
that no
existed.
other
were
the statu-
aware of
was sentenced for the second tory changes,
supporting
no
but
affidavit
20,
July
1984.
or documentation
was attached
believe,
argument.
It
State’s
is difficult
Defendant submitted a motion to with-
therefore,
that defendant would have al-
guilty plea
his
in Fourth District
draw
himself to be
to a non-
lowed
sentenced
17,
Acting
on June
1985.1
as his
Court
he,
counsel,
existent crime
his
attorney, defendant maintained that
own
plea bargain
court had
aware that the
been
pleaded guilty
he
not have
if he had
wоuld
negotiated pursuant
mis-
to a mutual
charged was
that the crime he had
known
been
See,
Chavez,
understanding.
v.
degree felony.
e.g.,
was
third
Therefore,
438,
argued,
his
130 Ariz.
to have received in return for his argument nature of the evidence and in the guilty plea. Having pleaded guilty to the court below on the motion to crime he should have been with in plea. Indeed, appears that the trial court placе, the first he now claims that he re- proce the resentencing have viewed degree ceived no reduction or sentence dispositive dure of the withdrawal and avoided no risk. motion and denied the same without a hear deny To defendant relief on the Therefore, ing. we remand this case to the merits, we would have to he assume that evidentiary hearing lower court for an and willingly bargained plead guilty, expect findings factual as to whether defendant’s receiving nothing in return. This original guilty plea knowingly was entered assumption highly speculative and im voluntarily. plausible plea bargain where a is involved. plea bargains requires The nature of ZIMMERMAN, JJ., STEWART and exchange consideration, allowing concur. suggests validity
3. The dissent
that Hammond is not
to demonstrate the
of defendant’s
apposite
multiple postconvic-
position
to a discussion of
on the merits of his motion to with-
complaints.
agree.
guilty plea.
We
Hammond is cited
draw his
(dissenting):
ically
grounds
motion on the
HALL,
based his
Chief Justice
“plea
improperly coerced”
his
was
and that
majority
respectfully
The
I
dissent.
plea,
he entered his
the crime to
at the time
overly
scope and content are
opinion’s
pleading
“punish-
was
which was
Additionally,
expansive.
defend-
broad
materially
by a sentence which was
able
that the claims he
does not contend
ant
than that to which
been sub-
less
[he had]
motion to
in his
with-
raised
jected.”
could
guilty plea were not and/or
draw his
appeal or as
raised on direct
not have been
Cоunty Attorney’s
filed its
Office
corpus complaint
part
his
response to
motion on June
defendant’s
Moreover, defendant has
proceeding.
objected
on
1985. The
to the motion
divulge
and the record does
not shown
grounds
untimely
that it
and that
was
proce-
of defendant’s
good cause in view
request latter claim and
defendant’s
or, considering the fact that
default
dural
resentencing
already
being ad-
were
sentence resulted
defendant’s amended
in a
by the Third District Court
dressed
granting
stipulation and the
from his own
corpus proceeding. Also
1984habeas
complaint,
corpus
a funda-
of his habeas
defendant,
25,1985,
benefit
on June
with
prejudicial denial of a
injustice or
mental
counsel,
Third District
stipulated, and the
right
entry
in the
of defend-
constitutional
рroceeding,
in that
that de-
Court ordered
plea.1
ant’s
properly
sentenced for
fendant should
February
the Fourth Dis-
On
committing the third
of at-
guilty plea
accepted defendant’s
trict Court
child. Defend-
tempted sexual abuse
a
attempted sexual abuse of a
crime of
of habeas
ant’s
for writ
so,
doing
the court found
child.
mo-
granted.3
thus
While defendant’s
voluntarily
pleaded freely and
guilty plea was subse-
tion to withdraw his
knowledge
rights,
full
of his
with
District
by the Fourth
quently denied
understanding
consequences,
July
copy
of the Third
Court
force, threats,
re-
promises
without
transmitted to
District Court’s order was
concluded that there
ward. The court also
that defend-
District Court so
the Fourth
plea.
Defend-
a factual basis for
resentencing
imposed con-
could be
ant’s
degreе
for the second
ant was sentenced
com-
Defendant
then
therewith.
sistent.
notice of
felony
July
1984.2 No
claiming
appeal,
menced this
appeal was filed.
denying
his
erred
Fourth District Court
June
defendant submitted
On
guilty plea.
motion to withdraw
guilty plea. This
motion to withdraw
65B(i)(2),(4)
Rules of
of the Utah
Rule
District
was not filed in the Fourth
motion
part:
pertinent
provides
2,1985.
specif-
Procedure
July
Civil
Court until
sentencing
Shulsen,
arraignment
his offense
at
*7
1.
Wells v.
747
See
curiam);
(Utah 1987)
Attempted
(per
Sexual Abuse of a
*8
Gilliham,
(1976);
v.
N.M.
L.Ed.2d 88
86
piecemeal collateral attack in view of state stat
1335,
(1974);
v.
524 P.2d
1336
Jones
utory provision
petitioners
must assert all
1170,
State,
(Okla.Crim.1983);
668 P.2d
1171
single proceed
postconviction
known
claims in
520, 521-25,
Or.App.
Page Cupp,
P.2d
v.
78
717
State,
651,
ing); Thompson v.
496 P.2d
654-56
1184-85,
338,
1183,
denied,
review
301 Or.
722
271,
1972);
(Alaska
Gaffney,
State v.
121 Ariz.
Parker,
(1986);
503
P.2d 737
Commonwealth v.
272-73,
914,
(Ct.App.1979);
P.2d
589
915-16
582,
(1983).
A.2d
Pa.
469
584
243, 246-47,
Hubbard,
People v.
184 Colo.
519
945,
State,
(1974); Christopher
947-48
v.
1987).
22,
State,
(Utah
(Fla. 1986);
5.
899 type procedural of A the State’s rules serve vital much-quoted A statement of trial, purposes appeal, cognizable by at state are not that are and errors important attack. role collateral The of following from this corpus is the procedural aptly cap- appellate rules is opinion in Brown Court’s unanimous description in tured the Court’s Reed 98-99, 96, 440 P.2d Turner, 21 2d 2901, v. Ross U.S. 104 S.Ct. 82 (Crockett, C.J.): [468 969 1 purposes L.Ed.2d of the served ] extraordinary corpus] is an [Habeas procedural there, by the rule at issue remedy properly is invocable which initially required the defendant which jurisdiction court no only the when legal appeal rather raise claims on offense, or person or the the over than on review: law have requirements of where the oppor- affords the the “It state courts is disregarded party the been so tunity shortly to resolve the issue after effectively denied substantially and trial, while evidence is still available both law, some process of or where due the to assess defendant’s claim and to shown that it would be fact is such retry effectively pre- if he the defendant the not to re-examine unconscionable Friendly, in his Is In- vails error the conviction. contention of If nocence Irrelevant? Collateral Attack known or something which is is Judgments, Criminal 38 U.Chi.L.Rev. on. the party at be known the should (1970). type pro- of rule This entered, it judgment time accuracy and efficien- motes reviewеd in the manner must be decisions, judicial the final- cy of but also permitted by regular the time within decisions, by forcing ity of those judg- procedure, or the prescribed litigate of his defendant to all subject ment becomes and is final trial as together, quickly after attack, except in some such to further allow, the attention docket will and while as we have unusual circumstance appellate focused on court is otherwise, above. Were mentioned case.” ... govern- of regular procedure rules pro- complement of ... “Each State’s time ing appeals and the limitations of channels], to the ex- cedural rules ... im- rendered specified therein would be possible, resolution various tent potent. stage of types questions they сan process at judicial which laws, federal and state ... Under both efficiently.” fairly most It resolved pro- in a petitioner apparent that the frustration is proce- ceeding must show cause for a occurs when interests that State’s resulting preju- dural default is procedural rule is broken pellate he suffered.6 dice significantly when counsel’s diminished then, 65B(i), together with rule This ignorance or inad- results from breach gen- that a the rule reiterates deliberate deci- rather than a vertence bringing postcon- erally precluded from sion, not, from rais- tactical or to abstain could have complaint if raised or viction claim on to raise a ing the claim. Failure appellate appellate in a finality the issue appеal raised reduces the efficacy deprives postconviction proceeding. appellate court proceedings, error, rules procedural opportunity such to review importance of an ability to Supreme the State’s by the United are noted States “undercut[s] procedural rules.”8 enforce Murray v. Carrier:7 Court (cita 490-91, added; (some S.Ct. at 2647 8. Id. emphasis U.S. at citations Id. at omitted). omitted). tions 91 L.Ed.2d 7. 477 U.S.
Recognizing may cases in- appeal.10 Also, that at times and raised on known alleged injustice, volve issue of brought fact that defendant this motion Court clarified: pursued and that he a corpus pro- not, ceeding contends, does majority as the
[Cjause procedural ap- for a default on necessarily suppоrt presumption that de- peal ordinarily requires showing fendant unaware of basis for impediment preventing some external event, peal. existing under our constructing raising counsel from rule, it may is not sufficient that defendant claim. merely
have been
unaware of a basis for
appeal, and the
fact that defendant
However,
Engle,
as we also noted in
sentencing
have been unaware
nei-
principles
appropriate cases” the
“[i]n
explains why
ther
his claim was not the
comity
finality
inform
that
the con-
subject
appellate
single
of an
postconvic-
cepts
prejudice
yield
of cause and
“must
provides
nor
a sufficient
imperative
correcting
a funda-
showing
negate
of cause to
our established
mentally unjust inсarceration.”
re-We
Further,
rule
such cases.11
in contrast
that,
part,
main confident
for the most
to the fact that this Court addressed claims
miscarriage
“victims of a fundamental
several of the habeas
cases cited
justice
cause-and-prejudice
meet the
will
majority,
it is critical to note in
pretend
standard.” But we do not
that
65B(i)(2),(4)
reference
that defend-
always
Accordingly,
this will
be true.
change
ant
knew the
in the law
case,
extraordinary
we think that in an
postcon-
and at the time he filed his initial
prob-
where
constitutional violation has
stipulated
viction
to the out-
ably resulted in the
of one
conviction
proceeding.
come of that
innocent,
actually
who is
a federal habe-
may grant
as court
writ even
addition,
the Fourth District Court did
showing
absence of a
of cause for the
plea
not rule on the motion to
withdraw
procedural default.
until after the Third District Court had
[Additionally,]
ability
...
to raise
[t]he
explicitly granted defendant’s
cor-
ineffective assistance
[of counsel]
pus complaint. Concluding,
majority
as the
part
or in
based whole
counsel’s does, that the Third District Court’s habeas
procedural
substantially
defaults
under-
(resolved
25)
corpus proceeding
June
any predictions
cuts
of unremedied mani-
“adjudged” prior
to the Fourth District
injustices.
fest
We therefore remain of
ruling
(de-
Court’s
on defendant’s motion
view
adherence to the cause and
July 2) simply
nied
because the Fourth
prejudice
conjunctive,”
test “in the
will District had not received “official notice”
prevent
federal habeas courts from
yet
thereof and defendant had not
ensuring the fundamental fairness that
ignores
underly-
resentenced
the rationale
is the central concern of the writ of habe-
ing the rule and is an exercise in semantics.
corpus.9
particularly
This is so
since the record
clearly indicates that the Fourth District
Turning to the instant
proceeding prior
shown,
knew
Third District
argued,
has not even
much less
denial of defendant’s motion to with-
the claim he raised
plea. Nevertheless,
guilty plea
motion to
draw his
could
even
not,
diligence,
with reasonable
have been motion to withdraw the
is viewed as
492, 495-96,
claim,
litigated
9. Id. at
106 S.Ct. at
ceived and
the demands of
(citations omitted).
comity
finality
against labeling
counsel
al
leged
objection
unawareness of the
as a cause
Wells,
10. See
HOWE, C.J., concurs in Associate HALL, dissenting opinion of C.J. Utah, Appellee, Plaintiff and
STATE of BASTIAN,
Randy Defendant Appellant. 870171.
No.
Florence,
Supreme
Ogden,
of Utah.
for defendant
Court
Brian R.
appellant.
Dec.
1988.
Wilkinson,
Thompson,
B.
David L.
David
City,
plaintiff
appellee.
Lake
Salt
DURHAM, Justice:
appeals from a conviction
Defendant
resulting
sodomy
a child and the
ten-
on
upon
year-to-life
imposed
him.
sentence
appeal:
argues
He
two issues
(Supp.1988)
Ann.
76-5-406.5
vio-
Code
§
equal protection guarantees of
lates
the United States
Utah Constitu-
both
tions,
mandatory
the minimum
sen-
Ann.
provision found in Utah Code
tence
(Supp.1988)
76-5-403.1
is unconstitution-
§
punish-
unusual
al because it is cruel and
applied
to him. We affirm
ment аs
sentence.
defendant’s
charged
sodomizing
child,
pursuant
a first
(Supp.1988).
Ann.
76-5-403.1
Utah Code
§
He
also
with one count
sodomy
one
attempted
of a child and
count
attempted
sodomy,
those
forcible
but
sodomy
charges
from the
were severed
charge prior to trial and are not relevant
judge found defend-
The trial
sodomy
a child.
ant
sentencing hearing, evi-
At defendant’s
tended to show
dence was introduced which
a treatment
that he was a candidate for
Halladay Cluff,
(Utah 1984).
685 P.2d
507-08 n. 7
see also
notes
would be labeled
infra
accompanying
degree felony,
text.
6-9 and
second
treated as a
Child and
interim, how-
spite
In the
in
of the statute.
charged, applica-
defendant was
2. At the time
ever,
legislature
amended
the Utah
76-4-102(2) (Supp.1988) to the
tion оf section
Abuse of a Child
to make Sexual
§ 76-5-404.1
76-5-404.1(l)-(2)
version
section
1983
felony
Attempted
degree
Sexual
a second
1984)
(amended
attempted sexual
classified
felony.
degree
of a Child a third
Abuse
felony.
degree
a first
The
abuse of a child as
“Response
following excerpt from a June 1985
may
moot
postconviction
be rendered
claim
3.A
Plea" ex-
Motion to Withdraw
to Defendant’s
plains
granted.
requested
has been
relief
if the
information:
the amended
166,
1981).
Stewart,
(Utah
Spain
P.2d
168
v.
639
9, 1984, plea negotiations
February
were
On
proceeding
corpus complaint and
The habeas
his counsel at
Defendant and
made
However,
this Court on
are not before
hearing.
preliminary
the law then
Under
the
applicable
complaint was
record indicates
(Sec.
Sec. 76-4-
76-5-404.1 and
record, the
of a
granted,
in the absence
Code,
101(2),
1983)the Defend-
Utah Criminal
proceed-
regularity
appropriateness of the
conduct,
of a Child or
Sexual Abuse
ant’s
Robbins,
v.
Child,
ings
assumed. See State
below are
Attempted
of a
Sexual Abuse
771,
1985).
(Utah
773
degree felony.
709 P.2d
punishable
theless,
None-
as a first
stipulation
entered into where-
898
be raised
(2)
postconviction proceed-
in
complaint
postconviction
The
[for
may
ing brought
under this rule and
state
or not the
shall also
whether
relief]
subsequent pro-
be raised in another
judgment of
that resulted in
conviction
ceeding except
good cause shown
complained
the confinement
of has been
for
therein.
so,
if
appeal,
shall iden-
reviewеd
appellate proceedings
tify such
and state
added.)
(Emphasis
harmony
This rule
inis
the results thereof.
existing
principle
case
and the
with our
law
shown,
except
that,
cause
shall further state that
for
or could
raised ei-
which were
have been
legality
constitutionality of his
or
appeal
prior
or in
ther on direct
habeas
or confinement has not al-
commitment
corpus
postconviction complaint
pro-
or
or
ready
adjudged
been
ceeding
may
will be deemed waived and
corpus
proceeding;
other
or
similar
subsequent complaints
pro-
or
be raised
complainant
institut-
shall have
if
ceedings.4
proceedings
ed
similar
court,
federal,
within the state
state
v.Wells Shuls
Indeed,
recently
most
Utah,
en,5
he shall so statе in his com-
this Court stated:
plaint, shall attach a
copy
any plead-
may
corpus proceedings
used
Habeas
by him
ing filed in such court
to his
judgment
in the
to attack a
of conviction
complaint,
set forth the reasons
and shall
injustice
of an
or a sub-
event
obvious
the denial of relief in such other
prejudicial
stantial and
denial of a consti-
apparent
right
court.
such
in the trial of the matter.
tutional
hand,
post-conviction
the court in which the
un-
the other
On
provided by
legal-
der this rule is instituted that the
relief
regular
be used as a substitute
constitutionality
ity or
confine-
pellate review.
already
adjudged
ment has
prior proceedings,
such
the court shall
Morris,
1101,
v.
Codianna
660 P.2d
complaint, giv-
dismiss such
forthwith
(Utah 1983),
1104
this Court stated as fol-
written notice thereof
mail to
lows:
proceed-
and no further
complainant,
[A]llegations
that could have
of error
complaint.
ings shall be had on such
appeal
from
been but were not raised
cannot be raised
a criminal conviction
review,
All claims of the denial of
(4)
corpus
shall
complainant’s
rights
except in unusual circumstances.
constitutional
81,
765,
State,
See,
Morris,
(Ind.1986);
e.g.,
v.
v.
677 P.2d
86
N.E.2d
767
Andrews
493
Schertz
1101,
Morris,
(Utah 1983);
404,
(Iowa 1985);
Codianna v.
660 P.2d
v.
380 N.W.2d
412
Weser
1983);
Morris,
(Utah
272, 274,
1214,
607
State,
1104-05
Andrews v.
P.2d
1216
224 Kan.
579
891,
816,
denied,
(Utah), cert.
U.S.
P.2d
820
449
State,
886,
(1978);
A.2d
McEachern v.
456
889
254,
(1980);
120
State v.
101 S.Ct.
66 L.Ed.2d
Deeran,
(Me.1983); Commonwealth v.
397 Mass.
927,
(Utah 1979)
Boggess,
(citing
P.2d
601
929
412,
136, 138-40,
(1986); Fut
490 N.E.2d
414-16
96,
Turner,
Brown v.
21 Utah 2d