Socolov v. State, 20210724-CA

CourtCourt of Appeals of Utah
Writing for the CourtPER CURIAM.
Citation508 P.3d 1009
Parties Oleg SOCOLOV, Appellant, v. STATE of Utah, Appellee.
Docket Number20210724-CA
Decision Date31 March 2022

508 P.3d 1009

Oleg SOCOLOV, Appellant,
v.
STATE of Utah, Appellee.

No. 20210724-CA

Court of Appeals of Utah.

Filed March 31, 2022


Oleg Socolov, Appellant Pro Se

Before Judges Michele M. Christiansen Forster, David N. Mortensen, and Ryan M. Harris.

Per Curiam Opinion

PER CURIAM:

¶1 Oleg Socolov appeals the dismissal of his petition filed under the Post-Conviction Remedies Act (PCRA). We affirm.

¶2 We review an appeal from an order summarily dismissing or denying post-conviction relief for correctness without deference to the lower court's conclusions of law. See Bevan v. State , 2021 UT App 107, ¶ 7, 499 P.3d 191.

BACKGROUND

¶3 Socolov was convicted after a bench trial of misdemeanor offenses of assault (domestic

508 P.3d 1011

violence); domestic violence in front of a child; threat of violence; disorderly conduct; and intoxication. The district court entered the judgment and sentence on February 27, 2020. Shortly after sentencing, Socolov was removed to a federal facility in Nevada pending deportation proceedings. After his conviction, Socolov filed pro se motions that sought reconsideration of a protective order, but he did not file a timely direct appeal.

¶4 Socolov filed a PCRA petition and two amended petitions. He first claimed that his trial counsel rendered ineffective assistance by failing to appeal his convictions and to properly advise him of the right to appeal. His remaining claims evolved over the two amended petitions to encompass claims of error by the district court and additional ineffectiveness claims asserting that trial counsel failed to present relevant evidence, to impeach the testimony of the victim, to assert that Socolov acted in self-defense, and to pursue a claim that Socolov had diminished capacity because he was a battered spouse. Socolov claimed that he was entrapped by the victim, who fabricated claims of domestic violence to place his immigration status in jeopardy. He also raised the "possibility" of his factual innocence of the crimes. In his first amended petition, he added claims of prosecutorial misconduct and claims that he had obtained new evidence about the victim's motivation and fabrication of allegations. A second amended petition elaborated on his claims.

¶5 The district court issued an order to show cause providing Socolov with notice and an opportunity to demonstrate why the claims made in his petition were not precluded under the PCRA. See Utah Code § 78B-9-106(2)(b) (West 2022) ("Any court may raise a procedural bar or time bar on its own motion, provided that it gives the parties notice and an opportunity to be heard.") In a written response, Socolov argued his claims should not be procedurally barred because his failure to file an appeal resulted from ineffective assistance of trial counsel, whom he alleged had failed to properly advise him of the right to appeal.1

¶6 The district court dismissed the PCRA petition, ruling that the first claim—that Socolov was denied the right to appeal because his trial counsel failed to properly inform him of his appeal rights—was not within the scope of the PCRA and instead must be raised in a motion to reinstate the appeal time under rule 4(f) of the Utah Rules of Appellate Procedure. The district court concluded that the remaining claims for relief from the conviction (characterized by the court as prosecutorial misconduct, entrapment, evidentiary issues at trial, and counsel's failure to assert diminished capacity as a defense) were procedurally barred because either the claims "may still be raised on direct appeal," see id. § 78B-9-106(1)(a), or the claims "could have been but [were] not raised at trial, or on appeal," see id. § 78B-9-106(1)(c). The district court also reasoned that because Socolov "has not yet filed a motion under rule 4(f), he has failed to fully exhaust his legal remedies before pursuing post-conviction relief." See id. § 78B-9-102(1) (stating that the PCRA "establishes the sole remedy for any person who has exhausted all other legal remedies, including a direct appeal"). Finally, the district court ruled that a claim of factual innocence...

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1 practice notes
  • State v. Cabututan, 20200151-CA
    • United States
    • Court of Appeals of Utah
    • March 31, 2022
    ...would have to show "a reasonable probability" that "absent counsel's error," "the outcome of his ... case would have been different." 508 P.3d 1009 Id. ¶ 43. And because "a defendant must satisfy both parts of this test[,] ... if we determine that a defendant has made an insufficient showin......
1 cases
  • State v. Cabututan, 20200151-CA
    • United States
    • Court of Appeals of Utah
    • March 31, 2022
    ...would have to show "a reasonable probability" that "absent counsel's error," "the outcome of his ... case would have been different." 508 P.3d 1009 Id. ¶ 43. And because "a defendant must satisfy both parts of this test[,] ... if we determine that a defendant has made an insufficient showin......

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