Barbir v. Orem City

Barbir v. Orem City

IN THE UTAH COURT OF APPEALS
 

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Raji Barbir,

Petitioner and Appellant,

v.

Orem City,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030873-CA
 

F I L E D
(March 10, 2005)
 

2005 UT App 114

 

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Fourth District, Orem Department

The Honorable John Backlund

Attorneys: Jack H. Molgard, Brigham City, for Appellant

Justin C. Johanson, Orem, for Appellee

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Before Judges Billings, Bench, and Davis.

BILLINGS, Presiding Judge:

    Raji Barbir (Defendant) appeals the trial court's denial of his petition for post-conviction relief from his prior conviction of domestic violence (Petition). We affirm.

    Defendant argues that the trial court erred by denying his Petition because (i) the trial court did not comply with the procedural requirements of rule 65C of the Utah Rules of Civil Procedure and (ii) Defendant was denied effective assistance of counsel when he entered his original plea. We disagree.

    Under rule 65C, the trial court was first required to determine whether "any claim has been adjudicated in a prior proceeding, or . . . appears frivolous on its face." Utah R. Civ. P. 65C(g). Only if the trial court did not dismiss the Petition on these grounds was the respondent then required to "answer or otherwise respond." Utah R. Civ. P. 65C(i). Defendant argues that the trial court erred by dismissing the Petition as frivolous after reaching the merits and not holding a hearing. Defendant, however, misinterprets the trial court's ruling and the requirements of rule 65C.

    After the Petition was filed, the trial court first permitted Defendant to amend the Petition to provide additional support for his claims and then permitted the City of Orem to file responsive papers. Afterwards, the trial court entered findings of fact and conclusions of law before denying the Petition, not only because the claims "appear frivolous," but also because "the facts alleged in the petition do not support a claim for relief as a matter of law, and/or have no arguable basis in fact."

    Despite the trial court's use of the word "frivolous," it is clear from the extensive findings of fact and conclusions of law that the trial court reached the merits of the Petition. Thus, although we agree with Defendant that the trial court "considered the merits" of the Petition, we disagree that the trial court then dismissed the Petition under rule 65C(g) as frivolous instead of reaching the merits.(1)

    Alternatively, Defendant argues that the trial court erred by considering his Petition on the merits without holding an evidentiary hearing. We disagree. Rule 65C provides that the trial court may either hold "a hearing or otherwise dispose of the case." Utah R. Civ. P. 65C(j). Thus, the trial court has discretion whether to hold an evidentiary hearing. Moreover, in Moench v. State, 2002 UT App 333, 57 P.3d 1116, we reversed and remanded, directing the trial court to hold a hearing on the defendant's petition for post-conviction relief, but only "if necessary." Id. at ¶14. Thus, the trial court did not err in considering Defendant's Petition on the merits without holding an evidentiary hearing.

    Defendant also argues that the trial court erred by denying the Petition because he had been denied effective assistance of counsel. Specifically, Defendant argues that the attorney he had retained after entering his plea advised him that his plea "may affect [his] immigration status," whereas in fact his plea was certain to affect his immigration status. Criminal defendants generally have a right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate ineffective assistance of counsel, "the defendant must show that counsel's performance was deficient," and "that the deficient performance prejudiced the defense." Id.

    While we have held that deportation is a "collateral consequence" of conviction, State v. McFadden, 884 P.2d 1303, 1304-05 (Utah Ct. App. 1994), if "counsel affirmatively misrepresented the deportation consequences of Defendant's plea," then counsel's performance was constitutionally deficient. State v. Rojas-Martinez, 2003 UT App 203,¶10, 73 P.3d 967, cert. granted, 80 P.3d 152 (Utah 2003).

    Defendant's claim does not fall within the rule in Rojas-Martinez, however, because he does not allege that his counsel at the time he entered his plea made any representations regarding deportation consequences. Rather, it was only Defendant's new counsel, retained after Defendant had entered his plea, who made the misleading representation. Defendant was not denied effective assistance of counsel at the time he entered his plea, and therefore, no grounds existed for Defendant's new counsel to argue ineffective assistance of counsel to withdraw Defendant's plea. As a result, it was not ineffective assistance when Defendant's new counsel failed to move to withdraw the plea on these grounds. The trial court did not err by rejecting Defendant's Petition on its merits.

    We affirm.

______________________________

Judith M. Billings,

Presiding Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

1. Defendant also argues that if the trial court did reach the merits, it should have allowed thirty days for Defendant to respond to any responsive papers filed. However, Defendant did not raise this with the trial court and does not argue plain error on appeal, and thus, we do not consider it. See Campbell, Maack & Sessions v. Debry, 2001 UT App 397,¶17 n.4, 38 P.3d 984.