Calder v. State
| Decision Date | 26 May 2022 |
| Docket Number | 20200456-CA |
| Citation | 512 P.3d 485 |
| Parties | Jason Scott CALDER, Appellant, v. STATE of Utah, Appellee. |
| Court | Utah Court of Appeals |
Nathan E. Burdsal, Orem, and Hutch U. Fale, Attorneys for Appellant
Sean D. Reyes and Erin Riley, Salt Lake City, Attorneys for Appellee
¶1 Jason Scott Calder, a therapist in his forties, pled guilty to various offenses resulting from sexual conduct that he engaged in with a sixteen-year-old client. Later, Calder filed a petition for post-conviction relief, claiming that his convictions were the result of ineffective assistance of counsel and that they violated various other constitutional rights. The district court dismissed Calder's petition on summary judgment, concluding that Calder's attorney had not rendered ineffective assistance and that his other constitutional challenges were procedurally barred. Calder now appeals, and we affirm.
¶2 Calder was employed as a therapist at a facility that described itself as a "residential treatment center and boarding school for teenage girls." In March 2017, when Calder was forty-one years old, he began counseling sixteen-year-old Evelyn,2 whose parents specifically asked him to focus on "her low self-esteem and her sexually addictive behaviors." In one counseling session, Evelyn told Calder that she was sexually attracted to him; Calder told Evelyn that the attraction was mutual, but he stated that he "could look but not touch."
¶3 In later sessions, after Evelyn—apparently with Calder's encouragement—showed Calder her breasts, Calder crossed his "boundary" and began to touch Evelyn both over and under her clothing. Evelyn later recounted that, over time, the sessions "got more and more physical" and involved "less and less therapy." Soon, Calder and Evelyn were performing oral sex on each other, an event that Calder estimated happened "9 to 10 times, maybe more." Calder also brought a "vibrator" to the sessions, and on several occasions inserted it or his fingers into Evelyn's vagina. During one of their last "counseling" sessions, while on a walk in a secluded area, Calder and Evelyn had sexual intercourse. At some point during this time, Calder learned that Evelyn had written about their activity in her journal, and Calder instructed her to blot out that information with a marker.
¶4 After details about his conduct came to light, Calder was terminated from his position, and the State charged Calder with seventeen crimes: one count of rape, five counts of object rape, five counts of forcible sodomy, five counts of forcible sexual abuse, and one count of obstructing justice.
¶5 Early in the proceedings, only about five weeks after charges were filed, and on the advice of his attorney (Plea Counsel), Calder pled guilty to five crimes: one count of rape, one count of object rape, one count of forcible sodomy, one count of forcible sexual abuse, and one count of obstructing justice. As part of the plea agreement, Calder admitted that he had committed the five crimes to which he pled guilty, including admitting that he had "sexual intercourse with another person and did not have [her] legal consent" because he occupied a "position of special trust." Also as part of the plea agreement, the State dismissed the other twelve counts. Calder was later sentenced to prison.
¶6 Calder did not file a motion to withdraw his guilty plea, nor did he file a direct appeal.3 Instead, he later filed a petition for post-conviction relief pursuant to the Post-Conviction Remedies Act (PCRA), see Utah Code Ann. §§ 78B-9-101 to -110 (LexisNexis 2018 & Supp. 2021), and rule 65C of the Utah Rules of Civil Procedure. In the memorandum supporting his petition, Calder requested that his convictions be vacated, alleging that Plea Counsel had rendered ineffective assistance and that he had been denied various other constitutional protections.
¶7 In the section of his petition addressing his ineffective assistance claims, Calder argued that—at least regarding his sex offenses—he had been charged under the wrong statute. In particular, he asserted that, instead of facing charges for rape, forcible sodomy, and forcible sexual abuse—first- and second-degree felonies—he should have been charged with third-degree felonies for engaging in "unlawful sexual conduct with a 16- or 17-year-old," see Utah Code Ann. § 76-5-401.2 (LexisNexis 2017) (),4 and that Plea Counsel rendered ineffective assistance by failing to advise him of the potential applicability of the USC Statute. Calder asserted that, had Plea Counsel done so, he "would not have [pled] guilty and would have insisted on going to trial."
¶8 In a separate section of his petition, Calder asserted that his sentence "denied him equal protection of the law," and that the statutes under which he was sentenced were "unconstitutionally vague." Regarding equal protection, Calder argued that his constitutional rights were violated because he "was charged with significantly greater crimes than similarly situated individuals over the last five years." Regarding vagueness, Calder asserted that the statutory scheme was vague because his conduct qualified as criminal under more than one statute, and he argued that, in such a situation, he should have been convicted and sentenced under the more lenient statute. In support of these constitutional claims, Calder submitted an affidavit in which he stated that, "[b]efore [he] pled guilty, [he] asked [Plea Counsel] to investigate" similar cases in which individuals had been charged under the USC Statute rather than under the more serious sex offense statutes. But Calder alleged his constitutional claims as direct claims—that is, nowhere in his petition did Calder assert that Plea Counsel was ineffective for not bringing these constitutional claims prior to entry of his guilty plea.
¶9 The State filed a motion for summary judgment, asking the district court to deny Calder's petition in its entirety. In its motion, the State argued that Plea Counsel had not rendered ineffective assistance by failing to inform and advise Calder regarding the USC Statute because it was by its own terms inapplicable, and because Calder's actions "amounted to rape, object rape, forcible sodomy, and forcible sexual abuse." The State further argued that Calder's other constitutional claims—stated as direct claims—were procedurally barred under the PCRA because they could have been raised in the previous case, but were not.
¶10 After oral argument, the district court granted the State's motion. In its ruling, the court concluded, among other things, that Plea Counsel was not constitutionally ineffective for advising Calder to plead guilty. Specifically, the court determined that Calder's plea agreement—pleading guilty to five counts in exchange for the dismissal of twelve—was favorable and that Calder's argument that he should have instead been charged under the USC Statute was "without merit." The court also ruled that Calder's other constitutional claims were procedurally barred. In so ruling, the court determined that, because Calder acknowledged that he had been aware, during the underlying criminal case, of similarly situated individuals who had been charged under the USC Statute rather than the more serious statutes, he "had the information at hand—before he [pled] guilty—to levy a constitutional challenge based upon vagueness, Equal Protection, or Due Process." In light of its summary judgment ruling, the court dismissed Calder's PCRA petition.
¶11 Calder now appeals the district court's order dismissing his petition on summary judgment. "A [post-conviction] court should grant summary judgment only when, viewing all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Patterson v. State , 2021 UT 52, ¶ 27, 504 P.3d 92 (quotation simplified). "We review a post-conviction court's grant of summary judgment for correctness, granting no deference to the lower court." Bryant v. State , 2021 UT App 30, ¶ 9, 484 P.3d 440 (quotation simplified).
¶12 The PCRA offers a "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." Utah Code Ann. § 78B-9-102(1)(a) (LexisNexis 2018). A PCRA petitioner may raise claims asserting that "the conviction or sentence" was obtained or imposed in an unconstitutional manner; these claims may include claims for ineffective assistance of counsel. Id. § 78B-9-104(1)(a), (b), (d). A petitioner may not, however, bring claims under the PCRA that "could have been but [were] not raised at trial or on appeal," unless "the failure to raise that ground was due to ineffective assistance of counsel." Id. § 78B-9-106(1)(c), (3)(a). As noted, Calder brought a petition challenging his conviction and sentence under the PCRA, and the district court dismissed that petition on summary judgment.
¶13 Calder challenges the court's summary judgment order and, in connection with that challenge, he asks us to consider two issues. First, he asserts that the court erred when it concluded, as a matter of law and undisputed fact, that Plea Counsel did not render constitutionally ineffective assistance. Second, he argues that the court erred when it concluded that his other constitutional claims were procedurally barred under the PCRA. We address Calder's arguments in turn.
¶14 In his PCRA petition, Calder asserted that Plea Counsel rendered ineffective assistance. Specifically, he alleged that Plea Counsel "failed to provide significant legal advice to him" regarding the potential applicability of the USC Statute, which—if applicable—would have resulted in convictions for third-degree felonies rather than more serious...
To continue reading
Request your trial