Winward v. State

• Decision Date: 29 July 2015
• Docket Number: No. 20130743.,20130743.
• Parties: Shannon Glen WINWARD, Appellant, v. STATE of Utah, Appellee.
• Court: Utah Supreme Court

355 P.3d 1022

2015 UT 61

Shannon Glen WINWARD, Appellant

v.STATE of Utah, Appellee.

No. 20130743.

Supreme Court of Utah.

July 29, 2015.

Thomas M. Burton, Salt Lake City, for appellant.

Sean M. Reyes, Att'y Gen., Andrew F. Peterson, Asst. Att'y Gen., for appellee.

Justice DURHAM authored the opinion of the Court, in which Chief Justice DURRANT, Associate Chief Justice LEE, Justice PARRISH, and Judge ORME joined. Due to his retirement, Justice NEHRING does not participate herein; Court of Appeals Judge GREGORY K. ORME sat. Justice DENO G. HIMONAS became a member of the Court on February 13, 2015, after oral argument in this matter, and accordingly did not participate.

Justice DURHAM, opinion of the Court:

INTRODUCTION

¶ 1 This is Mr. Winward's second appeal in a postconviction proceeding he initiated in 2009. On his first appeal, we affirmed the dismissal of most of his claims, concluding they were barred by the statute of limitations of the Post–Conviction Remedies Act (PCRA). Winward v. State, 2012 UT 85, ¶ 28, 293 P.3d 259. But we vacated the dismissal on one narrow issue: whether the U.S. Supreme Court's new decisions in Lafler v. Cooper, ––– U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), created a new cause of action for Mr. Winward under Utah Code section 78B–9–104(1)(f).

¶ 2 We conclude now that they did not. Lafler and Frye announced a new rule, one not “dictated by precedent existing at the time [Mr. Winward's] conviction or sentence became final.” Utah Code § 78B–9–104(1)(f)(i). Therefore, they do not give rise to a new cause of action under the PCRA, and Mr. Winward's petition must be denied.

BACKGROUND

¶ 3 In 1993, Mr. Winward was charged with sodomizing his girlfriend's sons repeatedly over the course of four years and with sexually assaulting a neighbor's child. See State v. Winward, 941 P.2d 627, 629 (Utah Ct.App.1997). His first trial ended in a hung jury. He was tried again and convicted, and his conviction was affirmed by the court of appeals. Id. at 636.

¶ 4 In 2009, Mr. Winward filed a petition for post-conviction relief claiming his counsel had been ineffective in a number of ways, including failing to inform him about a plea bargain the State allegedly offered before the second trial. In response the State argued that Winward's petition was more than a decade late and therefore ought to be dismissed under the PCRA's time bar. The district court agreed, and Mr. Winward appealed.

¶ 5 We affirmed the dismissal of most of Mr. Winward's claims. Winward v. State, 2012 UT 85, ¶ 28, 293 P.3d 259. But before we could issue our decision, the legal landscape changed. The U.S. Supreme Court decided Lafler v. Cooper and Missouri v. Frye, which established a remedy for defendants who fail to accept a plea offer because of the ineffective assistance of counsel, and who ultimately receive a stricter sentence than was offered under the plea bargain. Lafler v. Cooper, ––– U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) ; Missouri v. Frye, ––– U.S. ––––, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). Because the PCRA recognizes a cause of action based on new Supreme Court decisions, and because Mr. Winward seemed to have alleged facts that might support relief under Lafler and Frye , we remanded the case to allow Mr. Winward to pursue a claim based on these decisions. Winward, 2012 UT 85, ¶ 36, 293 P.3d 259.

¶ 6 Mr. Winward did so, and the State again asked the district court to dismiss his claim under rule 12(b)(6). It gave two reasons for dismissal. First, it argued that Lafler and Frye do not satisfy the requirements to create a new cause of action under the PCRA because they were not dictated by precedent when Mr. Winward's conviction became final in 1997. Second, it argued that even if the PCRA did allow Mr. Winward to raise a claim under Lafler and Frye, he had failed to allege facts sufficient to state such a claim. The court agreed with the State's first argument and dismissed Winward's claim “because no set of facts that he could prove would entitle him to relief.” It did not reach the State's second argument.

¶ 7 Mr. Winward now appeals again, arguing that the district court erred and that he is entitled to relief under Lafler and Frye. He also raises other arguments, which we will not consider for reasons explained in Part III below.

STANDARD OF REVIEW

¶ 8 We review 12(b)(6) dismissals for correctness. St. Jeor v. Kerr Corp., 2015 UT 49, ¶ 6, 353 P.3d 137.

ANALYSIS

¶ 9 We affirm the denial of Mr. Winward's claim for the same reason the district court gave in its ruling: Lafler and Frye do not satisfy the requirements of the PCRA provision under which Mr. Winward claims relief. We then explain our reasons for deciding the case on this basis instead of the alternative grounds the State suggested. Finally, we refuse to consider the remaining arguments Mr. Winward's attorney has raised and, because of his unprofessional prosecution of this appeal, refer him to the Office of Professional Conduct for discipline.

I. LAFLER AND FRYE DO NOT GIVE RISE TO A CLAIM UNDER UTAH CODE SECTION 78B–9–104(1)(f)

A. Section 78B–9–104(1)(f)(i) Incorporates Federal Retroactivity Jurisprudence

¶ 10 The PCRA allows a petition like Mr. Winward's if

(f) the petitioner can prove entitlement to relief under a rule announced by the United States Supreme Court, the Utah Supreme Court, or the Utah Court of Appeals after conviction and sentence became final on direct appeal, and that:

(i) the rule was dictated by precedent existing at the time the petitioner's conviction or sentence became final....

Utah Code § 78B–9–104(1)(f). In order to state a claim, Mr. Winward must therefore show that Lafler and Frye were “dictated by precedent existing at the time [his] conviction and sentence became final.”¹

¶ 11 This language became part of the PCRA in 2008,² and we have never before had occasion to interpret it. In doing so now, we note first that section 104(1)(f)(i) is quoted almost verbatim from the U.S. Supreme Court's decision in Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Further, we note that by 2008, “dictated by precedent” had become the established federal standard for distinguishing between old rules and new rules for purposes of determining whether a Supreme Court decision applies retroactively on collateral review. See, e.g., Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007) (quoting Teague ); Williams v. Taylor, 529 U.S. 362, 381, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (same); Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (same). Decisions “not dictated by precedent” announce new rules, and apply retroactively on collateral review only in certain narrow circumstances. Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 1107, 185 L.Ed.2d 149 (2013) (quoting Teague, 489 U.S. at 301, 109 S.Ct. 1060 ). However, decisions that are dictated by precedent—those that merely apply “ ‘the principle that governed’ a prior decision to a different set of facts”—are retroactive on collateral review so long as the precedent they rest on predates the conviction being challenged. Id. (quoting Teague, 489 U.S. at 307, 109 S.Ct. 1060 ).

¶ 12 “[W]hen a word or phrase is ‘transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.’ ” Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)). Seeing no contrary intent in the statute's text or history, we therefore conclude that the legislature intended section 104(1)(f) to allow new PCRA petitions based on decisions that would be considered “dictated by precedent,” and therefore retroactive, under the U.S. Supreme Court's decisions applying Teague. Therefore, if Lafler and Frye are retroactive under federal law as decisions that merely applied the principles of earlier cases, then they create a new cause of action under the PCRA.

B. Lafler and Frye Were Not Dictated by Precedent

¶ 13 Unfortunately for Mr. Winward, we are persuaded that Lafler and Frye are not retroactive under the federal “dictated by precedent” standard, and that they therefore do not create a new cause of action under section 78B–9–104(1)(f).³ In doing so, we look in part to the level of judicial disagreement surrounding Lafler and Frye, but we also perform an independent assessment of the law as it existed prior to those decisions and ask whether that law dictated the outcome of Lafler and Frye.⁴

1. Differences of Judicial Opinion Before Lafler and Frye

¶ 14 When applying Teague, the U.S. Supreme Court looks in part to the differences of opinion surrounding a particular issue prior to its authoritative decision by the Court. In doing so, it has sometimes looked for division among lower courts over the issue, see Butler v. McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990), or to the degree of disagreement among the Justices who considered the issue when it was decided, see O'Dell v. Netherland, 521 U.S. 151, 159–160, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). It also asks whether the Supreme Court that announced the rule claimed to be relying on “controlling precedent,” or whether it expressly announced a new rule. Lambrix v. Singletary, 520 U.S. 518, 528–29, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997). These considerations support a conclusion that Lafler and Frye were dictated by controlling precedent, but not overwhelmingly so.

¶ 15 Examining first the differences of opinion among courts prior to Lafler and Frye, we see that very few courts disagreed with the doctrine that Lafler and Frye articulated. Among the federal courts of appeals, it seems only the Seventh Circuit held that defendants are not prejudiced by a failure to accept an advantageous plea bargain. See United States v. Springs, 988 F.2d 746, 749 (7th...