Hurst v. Cook, 860075

CourtSupreme Court of Utah
Citation777 P.2d 1029
Docket NumberNo. 860075,860075
PartiesStephen R. HURST, Plaintiff and Appellant, v. Gerald L. COOK, Warden, Main Facility, Utah State Prison; David L. Wilkinson, Utah State Attorney General, Defendants and Appellees.
Decision Date30 June 1989

Phillip G. Jones, Orem, for plaintiff and appellant.

David L. Wilkinson, Sandra Sjogren, Salt Lake City, for defendants and appellees.

STEWART, Justice:

Stephen R. Hurst pleaded guilty to one count of a crime called "sexual abuse of a child first degree." Hurst was initially charged with two crimes: (1) sodomy on a child, a first degree felony, punishable by a minimum mandatory prison term of five, ten, or fifteen years to life and (2) sexual abuse of a child, a second degree felony, punishable by imprisonment for an indeterminate term of one to fifteen years. 1 Pursuant to plea negotiations, the State filed an amended information which charged Hurst with a crime denominated "sexual abuse of a child," but which alleged the elements of aggravated sexual abuse of a child. The aggravating circumstance that elevated the offense from sexual abuse to aggravated sexual abuse alleged that Hurst occupied a position of special trust with respect to the victim. See § 76-5-404.1(3)(h). Pursuant to a plea bargain, Hurst pleaded guilty to the charge in the amended information and was sentenced to imprisonment for a minimum mandatory term of three years to life. As part of the plea bargain, the sodomy charge, for which a minimum mandatory sentence of five, ten, or fifteen years could have been imposed, was dismissed.

Thereafter, Hurst filed a petition for a writ of habeas corpus in the district court, asserting that he had been convicted of the crime of sexual abuse of a child, a second degree felony, but that he had been sentenced for a first degree felony. He petitioned the district court to reduce his sentence to that applicable to a second degree felony. The State moved to dismiss the petition on the ground that while the information misstated the name of the crime charged, Hurst had in fact pleaded guilty to the elements of aggravated sexual abuse of a child, as alleged in the information. The district court denied the petition on its merits.

Two days later, Hurst filed a second or "amended" petition for a writ of habeas corpus, alleging that he had been ineffectively represented by counsel at the pleading stage of the original proceeding and that he could not lawfully be sentenced for a crime he could not have been found factually guilty of. The essence of his ineffective assistance claim is that his attorney failed to properly advise him during the plea bargaining that he did not hold a "position of special trust" in relation to the victim as defined in § 76-5-404.1(3)(h) and, therefore, there was no aggravating circumstance elevating the crime to a first degree felony. 2 Accordingly, Hurst claims that he is guilty only of simple sexual abuse of a child and that his sentence should be reduced to that for a second degree felony, an indeterminate term of imprisonment of from one to fifteen years.

The warden moved to dismiss the second petition on the ground that under Rule 65B(i)(4) of the Utah Rules of Civil Procedure, the issues plaintiff raised were additional claims which should have been raised and disposed of in Hurst's first petition. In the alternative, the warden moved to deny the petition on the ground that plaintiff's plea to the amended information was made pursuant to a plea bargain by which the charge of sodomy on a child was dropped and the allegation that Hurst had a position of special trust with respect to the victim was added.

The trial court ruled that Hurst was procedurally barred by Rule 65B(i)(4), Utah Rules of Civil Procedure, from raising the claims in his second petition because they either should have been or were raised in his first petition. In the alternative, the trial court held, on the merits, that Hurst had been adequately represented when he pleaded guilty. The court ruled that Hurst had voluntarily pleaded guilty to aggravated sexual abuse of a child in exchange for dismissal of a sodomy charge and was bound by his plea, even though he did not occupy a position of special trust with the child.

I. RULE 65B(i)
--HABEAS CORPUS AND POST-CONVICTION RELIEF

We address first the issue of whether the trial court should have declined to rule on the merits of the claims alleged in the second petition and, instead, should have simply dismissed the writ on the procedural ground that the issues had been or should have been previously adjudicated.

The issue of when successive petitions may be pursued raises sensitive issues concerning the accommodation of the general judicial policy favoring finality of judgments and the constitutional policy embodied in the historic writ of habeas corpus. Rules 65B(f) and 65B(i), the habeas corpus and post-conviction relief provisions of the Utah Rules of Civil Procedure, establish procedural rules for implementation of habeas and post-conviction relief remedies.

Rules 65B(i)(2) and (4) govern applications for successive post-conviction writs. Rule 65B(i)(2) provides in pertinent part:

The complaint shall further state that the legality or constitutionality of his commitment or confinement has not already been adjudged in a prior habeas corpus or other similar proceeding; and if the complainant shall have instituted prior similar proceedings in any court, state or federal, within the state of Utah, he shall so state in his complaint, shall attach a copy of any pleading filed in such court by him to his complaint, and shall set forth the reasons for the denial of relief in such other court. In such case, if it is apparent to the court in which the proceeding under this rule is instituted that the legality or constitutionality of his confinement has already been adjudged in such prior proceedings, the court shall forthwith dismiss such complaint, giving written notice thereof by mail to the complainant, and no further proceedings shall be had on such complaint.

Rule 65B(i)(4) provides:

All claims of the denial of any of complainant's constitutional rights shall be raised in the post-conviction proceeding brought under this rule and may not be raised in another subsequent proceeding except for good cause shown therein.

Although a post-conviction relief remedy and the writ of habeas corpus have sometimes been thought to be separate procedures, the writ of habeas corpus has, over the years, absorbed the post-conviction relief remedy to form a single constitutional remedy. Our construction of Rules 65B(i)(2) and (4), therefore, takes place against the constitutional background of the use of the Writ.

The early history of the writ of habeas corpus lies deep in the common law of England. Like much other law administered by the colonies, and later by the United States and the states, the Writ was borrowed from England, and like other law, it was built upon and adapted to fit the needs of the colonists and subsequent generations. With the ratification of written constitutions in the states and the United States, the writ of habeas corpus became a constitutional fixture in American law.

The writ of habeas corpus is the only legal form of judicial process referred to in the Utah and United States Constitutions. From the early common law in England, the Writ provided a judicial means for securing the liberty of a person restrained by arbitrary or oppressive power. Chaffee, The Most Important Human Right in the Constitution, 32 B.U.L.Rev. 143 (1952). Historically, the Writ has played such a large role in the history of our law that it has received specific constitutional protection. The Declaration of Rights of the Utah Constitution, Article I, section 5, expressly prohibits restrictions on the availability of the Writ except "when the public safety requires it." That provision states:

The privilege of the writ of habeas corpus shall not be suspended, unless, in case of rebellion or invasion, the public safety requires it.

This provision of the Utah Constitution is essentially identical to Article I, section 9 of the United States Constitution.

Quintessentially, the Writ belongs to the judicial branch of government. Article VIII of the Utah Constitution, as initially written, conferred upon the Supreme Court and the district courts the power to issue writs of habeas corpus. When Article VIII was rewritten in 1984, the words "habeas corpus" were left out, but the Supreme Court and the district court were granted the power to "issue all extraordinary writs." See Utah Const. art. VIII, §§ 3, 5 (1A Utah Code Ann. at 65-66 (Supp.1989)). The term "extraordinary writ" clearly reaches all prerogative writs, but there is no doubt that it also includes the most important of all ancient writs, the writ of habeas corpus.

Furthermore, the separation of powers provision, Article V, section 1 of the Utah Constitution, requires, and the Open Courts Provision of the Declaration of Rights, Article I, Section 11, presupposes, a judicial department armed with process sufficient to fulfill its role as the third branch of government. While the essence of judicial power cannot be encapsulated in one writ, the writ of habeas corpus is one of the most important of all judicial tools for the protection of individual liberty.

Initially, the Writ was not available to collaterally attack a criminal conviction, except on the ground that the court lacked jurisdiction or that a sentence was unlawful. Thompson v. Harris, 106 Utah 32, 144 P.2d 761 (1943), cert. denied, 324 U.S. 845, 65 S.Ct. 676, 89 L.Ed. 1406 (1945); Lee Lim v. Davis, 75 Utah 245, 284 P. 323 (1929); 39 Am.Jur.2d Habeas Corpus § 8, at 184 (1968). However, even before the adoption of post-conviction-type relief remedies in this state, this Court recognized that the writ of habeas corpus had a broader application to criminal proceedings than merely testing whether a...

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    ...post-conviction because the trial record was insufficient to allow those claims to be "dealt with on direct appeal." Hurst v. Cook , 777 P.2d 1029, 1036 n.6 (Utah 1989), superseded by statute as stated in Pinder v. State , 2015 UT 56, 367 P.3d 968. ¶37 "On appeal, it is the defendant’s obli......
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