Kell v. State

• Decision Date: 29 August 2012
• Docket Number: No. 20090998.,20090998.
• Citation: 707 Utah Adv. Rep. 29,2012 UT 25,285 P.3d 1133
• Parties: Troy Michael KELL, Petitioner and Appellant, v. STATE of Utah, Respondent and Appellee.
• Court: Utah Supreme Court

285 P.3d 1133

707 Utah Adv. Rep. 29

2012 UT 25

Troy Michael KELL, Petitioner and Appellant,

v.STATE of Utah, Respondent and Appellee.

No. 20090998.

Supreme Court of Utah.

May 4, 2012.

Rehearing Denied Aug. 29, 2012.

Jon M. Sands, Ken Murray, Arizona, Megan Blythe Moriarty, Salt Lake City, for appellant.

Mark L. Shurtleff, Att'y Gen., Thomas B. Brunker, Christopher D. Ballard, Asst. Att'ys Gen., Salt Lake City, for appellee.

Associate Chief Justice NEHRING, opinion of the Court:

INTRODUCTION

¶ 1 Troy Michael Kell brought a motion under rule 60(b) of the Utah Rules of Civil Procedure in an effort to resuscitate his petition for postconviction relief, which had been denied by the district court and affirmed by us on appeal. The district court determined that relief was unavailable under rule 60(b) because we had already affirmed its rejection of his petition and the case was therefore no longer “pending.” Mr. Kell appeals. We affirm on alternate grounds.

BACKGROUND

¶ 2 Mr. Kell was convicted of murder and sentenced to death.¹ This court affirmed his conviction and sentence on direct appeal. He challenged our ruling by filing a petition for postconviction relief. In the petition, Mr. Kell alleged ineffective assistance of trial counsel. The district court dismissed his petition for postconviction relief and on appeal we affirmed that dismissal.

¶ 3 In January 2009, four months after we ruled on his appeal, Mr. Kell, representing himself, filed a 60(b) motion, asking the district court to relieve him from its earlier dismissal of his petition for postconviction relief.² He asserted that his postconviction counsel (PCRA counsel) had wasted his postconviction opportunity by failing to adequately investigate, research, and raise possible postconviction claims. He further asserted that PCRA counsel had failed to keep him apprised of his appeal, including that PCRA counsel did not tell him that they were neither petitioning for a rehearing in this court nor petitioning for a writ of certiorari in the United States Supreme Court. He also asked the district court to appoint qualified, adequately funded counsel to assist him in his rule 60(b) challenge to the dismissal of the postconviction proceeding.

¶ 4 The State responded with a Motion to Dismiss and for Partial Summary Judgment. In short, the State argued that relief was not appropriate under rule 60(b) because the case was no longer “pending,” that Mr. Kell had no right to effective assistance of postconviction counsel, and that he could not show that his postconviction counsel was in fact ineffective.

¶ 5 Mr. Kell did not respond to this motion, but again requested the appointment of counsel, stating that he needed counsel to help him reply to the complex arguments contained in the State's opposition memorandum.

¶ 6 The district court denied Mr. Kell's 60(b) motion and his motion to appoint counsel. The district court held that because Mr. Kell's postconviction petition had been dismissed, appealed, and affirmed on appeal, the underlying denial of his petition for postconviction relief was no longer “pending” and thus the court could not consider the merits of the 60(b) motion. With the assistance of his federal habeas counsel, Mr. Kell filed a timely notice of appeal from the denial of his 60(b) motion, which we now address.

ISSUES AND STANDARDS OF REVIEW

¶ 7 Mr. Kell first contends that the district court erred when it held that a motion filed under rule 60(b) of the Utah Rules of Civil Procedure must be filed while the action remains “pending.” We typically review a district court's denial of a 60(b) motion for the abuse of discretion because “most are equitable in nature, saturated with facts, and call upon judges to apply fundamental principles of fairness that do not easily lend themselves to appellate review.” ³ However, when the denial of a 60(b) motion is predicated on the district court's interpretation of the law, we review that decision for correctness.⁴ Because the district court's decision in this matter hinged on a question of law, we apply the nondeferential correctness standard.

¶ 8 Next, Mr. Kell contends that the district court erred when it found that he was not entitled to the appointment of qualified and competent counsel to aid him in filing his Motion for Relief from and to Set Aside Judgment under rule 60(b). The district court's order “implicates issues of statutory and constitutional interpretation that we ... review for correctness.” ⁵

ANALYSIS

I. WE AFFIRM THE DISTRICT COURT'S DENIAL OF MR. KELL'S 60(b) MOTION, BUT DO SO ON ALTERNATE GROUNDS

¶ 9 We turn first to whether the district court erred when it denied Mr. Kell's 60(b) motion on the grounds that the motion was barred because the case was no longer “pending.” Mr. Kell asks us to reverse the district court's ruling and remand to allow him to develop his 60(b) motion and other postconviction matters.

¶ 10 Before we address this on the merits, however, we pause to consider whether the issue was preserved and thus available for review on the merits. The State argues that it was not preserved because Mr. Kell did not directly argue to the district court that he was allowed to bring a 60(b) motion under these circumstances. He did not fully develop his argument or offer appropriate citation to authority. The State notes that it argued that a 60(b) ruling was not appropriate and Mr. Kell did not respond.

¶ 11 The State misconstrues the preservation requirement. “The two primary considerations underlying the [preservation] rule are judicial economy and fairness.” ⁶ First, we ask that an issue be preserved in order to “give[ ] the trial court an opportunity to address the claimed error, and if appropriate, correct it.” ⁷ Here, the district court not only had an opportunity to rule on the issue of whether the case was pending, it did rule on it. In fact, the district court conducted a thoroughgoing analysis of the meaning and application of the concept of “pending.” The district court's decision to take up the question of “pending” may have been fortuitous for Mr. Kell. It conclusively overcame any objection that the issue was not preserved for appeal.

¶ 12 As to fairness, “[i]t generally would be unfair to reverse a district court for a reason presented first on appeal.” “Notions of fairness ... dictate that a party should be given an opportunity to address the alleged error in the trial court. Having been given such a chance, the party opposing a claim of error might have countered the argument.” ⁸ The State quite obviously had the opportunity to counter the argument in the district court. We therefore conclude that the issue was properly preserved.

¶ 13 We next consider whether the district court erred when it determined that the 60(b) motion could not be brought because the case was no longer pending. Rule 60(b) allows “the court ... in the furtherance of justice [to] relieve a party or his legal representative from a final judgment, order, or proceeding” for one of five enumerated reasons or “any other reason justifying relief from the operation of the judgment.” ⁹ The rule demands that “[t]he motion shall be made within a reasonable time” and, if it is based on one of the first three enumerated reasons, “not more than 3 months after the judgment, order, or proceeding was entered or taken.” ¹⁰

¶ 14 Mr. Kell did not specify which of rule 60(b)'s subsections he relied upon, but his sole argument was that his postconviction attorneys were grossly negligent in representing him and provided him ineffective assistance. This claim does not fall within any of the five specified subsections of rule 60(b). In Menzies v. Galetka, we determined that Mr. Menzies' ineffective assistance of counsel claim fell under the province of subsection (b)(6).¹¹ Following that precedent, we treat Mr. Kell's motion as one for relief under subsection (b)(6). Rule 60(b)(6) imposes a temporal restriction, albeit an imprecise one, requiring that the motion be brought within a “reasonable time.”

¶ 15 The district court evaluated whether the petition was still “pending.” It analyzed the meaning of “pending,” including its use in the corollary federal statute, 28 U.S.C. § 2244(d)(2). The district court then turned to Utah case law to determine that “a case is pending from the time of its commencement until its final determination on appeal.” ¹² The district court concluded that because we had ruled, and because our ruling is, by definition, “final,” the underlying action was no longer “pending,” and a 60(b) motion was therefore inappropriate.

¶ 16 The language of rule 60(b) does not, by its terms, require that an action be “pending.” Rule 60(b) does, however, attempt to grapple with the tension between “the competing interests of finality and fairness.” ¹³ The rule “seeks to strike a delicate balance between two countervailing impulses: the desire to preserve the finality of judgments and the incessant command of the court's conscience that justice be done in light of all the facts.” ¹⁴ And, in fact, finality, “standing alone, is unpersuasive in the interpretation of a provision whose whole purpose is to make an exception to finality.” ¹⁵

¶ 17 We concede that the procedural posture of Mr. Kell's 60(b) motion is novel, if not unique, and that it raises peculiar questions of its legitimacy. We are reticent, however, to embrace the district court's reasoning and its necessary inference that rule 60(b) can never provide relief after an appellate court has affirmed the underlying decision that is being challenged by the 60(b) motion.

¶ 18 We consider instead the appropriate uses of rule 60(b) more broadly. Rule 60(b) is designed to provide relief to a party that has lost its case. The remedies provided by rule 60(b) should not be understood to be “a substitute for appeal.” ¹⁶ Subsection (6), particularly, “should be very cautiously and sparingly invoked by the [c]ourt only in unusual and exceptional...