author: DEHOOG, J.

text:
    In the MATTER OF H. N. F., a Child.
    Department of Human Services, Petitioner-Respondent, v. H. R. E., aka H. R. F., Appellant.
    A168503
    Court of Appeals of Oregon.
    Submitted January 29, 2019. April 24, 2019
    Kenneth A. Kreuscher filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   DEHOOG, J.

Mother appeals a juvenile court judgment terminating her parental rights to her four-year-old daughter. Over mother's opposition, the juvenile court terminated her parental rights on grounds of unfitness, ORS 419B.504, and neglect, ORS 419B.506. On appeal, mother raises three assignments of error. In particular, mother asserts that the juvenile court erred in determining that she is unfit to parent child and that she had neglected child. As a result, mother contends, the court erred in terminating her parental rights. As we explain below, we conclude, on de novo review, that the juvenile court erred in terminating mother's parental rights; accordingly, we reverse and remand.

The juvenile court took jurisdiction over child in 2016, when she was two years old. The Department of Human Services (DHS) had removed child from mother's care after police stopped a car driven by father and found methamphetamine and syringes inside. Mother and child were passengers in the car. At that time, child was dirty, behind on her vaccinations, and needed dental care. Mother and father both displayed physical signs associated with methamphetamine use, which included a dirty appearance, tooth decay, and "pick" marks on their faces. DHS placed child in relative foster care with father's adult son, child's half-brother. Child has since remained in that placement, where she has done well. She is bonded with her caregivers and has no special needs or concerning behavioral or health problems.

Before removing child in this case, DHS was involved with mother in relation to her now-adult children. Specifically, in 2010, as a result of mother's use of methamphetamine, her children were removed and placed in substitute care with family members. Those children returned to live with mother upon reaching adulthood; two of the older children currently live with mother and she has frequent contact with the third.

After child was removed from her care, mother sought out and engaged in substance abuse treatment through the Karuk Tribe. Mother has also undergone urine testing in connection with her treatment and employment at various times over the life of the case; none of those tests have been positive for the use of methamphetamine or other illegal drugs. However, two "hair follicle" tests conducted in the months leading up to the termination trial detected low levels of methamphetamine. Also, despite mother's assertion that she very rarely drank, two of her urine samples tested positive for alcohol use, leading DHS to suspect that she drank more than she claimed.

In addition to obtaining substance abuse treatment, mother has also attended numerous parenting classes, and her family members have attended classes to help them recognize the signs of relapse in people addicted to drugs. Mother's adult daughter testified that she had seen "remarkable changes" in her mother over the past couple of years. Mother no longer exhibits the moods and behaviors that she did during her time of habitual drug use. We could credit the testimony that she seems happier, is more involved with the family, and looks healthier.

Throughout child's placement in substitute care, mother has participated in weekly telephone visits. Mother has also attended weekly, in-person visits with child, each time driving hundreds of miles to Oregon from California, where mother has been living with her parents. Indeed, since 2016, mother has cumulatively driven many thousands of miles to attend her weekly visits with child. Mother has interacted appropriately with child during her visits, playing and laughing with child and otherwise remaining actively engaged.

Approximately six months before the termination trial, mother obtained full-time employment, and she remains employed in a supervisory position in a casino. As part of her responsibilities, mother handles large sums of money. Her position requires that mother be licensed by the State of California, and her employer subjects her to random drug testing.

At the time of trial, mother continued to live in her parents' home, together with her parents and two of her adult children. After a home study conducted in the course of these dependency proceedings, that home was approved as a placement for child, provided that mother not live there. In other words, the home itself was determined to be safe and appropriate for child. Mother intended to continue living with her parents in that home.

As noted, although mother's urine tests were negative for methamphetamine and she denies having used methamphetamine at any time during child's placement in substitute care, two "hair follicle" tests conducted approximately three to four months and a week or two before trial indicated the presence of that drug. A "positive" result for methamphetamine indicates the detection of at least 500 picograms per milligram of tested hair. In this case, one test detected just over that minimum confirmation level, showing 532 picograms of methamphetamine per milligram. The other, earlier test detected somewhat more, or 827 picograms per milligram. Both numbers, however, reflect very low levels of methamphetamine, according to DHS's expert witness.

Dr. Robert Basham, a psychologist, evaluated mother approximately a year and a half before the termination trial.

In his evaluation, Basham stated that, if mother continued to stay with her family in California (and remained separated from father), he would have no significant concerns with respect to her readiness to care for child. He did observe that mother was defensive and would likely not be receptive to mental health treatment, but he also observed that mother did not have any identified mental health problems for which a referral to treatment would be warranted. At trial, however, Basham expressed concern about mother's prognosis to parent child in light of the hair test results, because, he explained, methamphetamine use is very disruptive.

DHS's petition to terminate mother's parental rights alleged as follows:

"The parental rights of the mother to the above-named child should be terminated under ORS 419B.504 on the grounds that mother is unfit by reason of conduct or condition seriously detrimental to the child and integration of the child into the mother's home is improbable within a reasonable time due to conduct or conditions not likely to change, including, but not limited to the following:
"(a) Addictive or habitual use of intoxicating liquors or controlled substances to the extent that parental ability has been substantially impaired.
"(b) Lack of effort or failure to obtain and maintain a suitable or stable living situation for the child so that return of the child to the parent is possible.
"(c) Failure to present a viable plan for the return of the child to parent's care and custody.
"(d) Failure to learn or assume parenting and/or housekeeping skills sufficient to provide a safe and stable home for the raising of the child.
"(e) Lack of effort to adjust the parent's circumstances, conduct or conditions to make return of the child to the parent possible.
"(f) Failure to effect a lasting adjustment after reasonable efforts by available social agencies for such [an] extended duration of time that it appears reasonable that no lasting adjustment can be effected."

DHS also alleged that mother's rights should be terminated under ORS 419B.506 :

"The parental rights of the mother to the child should be terminated under ORS 419B.506 on the grounds she has failed or neglected without reasonable and lawful cause to provide for the basic physical and psychological needs of the child for six months prior to the filing of the petition, as shown by, but not limited to, the following:
"(a) Failure to provide care or pay a reasonable portion of substitute physical care and maintenance while custody was lodged with others.
"(b) Failure to maintain regular visitation or other contact with the child which was designed and implemented in a plan to reunite the child with the parent."

At the close of evidence at the termination trial, DHS moved to dismiss its allegation that mother had failed to maintain regular visitation or other contact with child. The juvenile court found that DHS had demonstrated unfitness and neglect on all of the remaining allegations, however, and the court entered a judgment terminating mother's parental rights pursuant to ORS 419B.504 and ORS 419B.506. Mother appeals that judgment.

In reviewing de novo the juvenile court's judgment terminating mother's parental rights, we determine anew whether mother's parental rights should be terminated. DHS must prove the grounds for termination by clear and convincing evidence, ORS 419B.521(1) ; that is, the evidence must make the existence of the facts in question highly probable. State ex rel. Dept. of Human Services v. Smith , 338 Or. 58, 79, 106 P.3d 627 (2005).

On appeal, with respect to the termination of her parental rights on grounds of unfitness under ORS 419B.504, mother urges us to conclude that the record does not contain clear and convincing evidence that her conduct or condition was seriously detrimental to child. DHS, while acknowledging that mother has made some improvement, asserts that the evidence demonstrates that she has not made "sufficient progress in addressing her substance abuse and parenting issues" and that we should, therefore, conclude that she is unfit.

As the Supreme Court explained in State ex rel. SOSCF v. Stillman , 333 Or. 135, 145-46, 36 P.3d 490 (2001) :

" ORS 419B.504 sets out a two-part test for determining whether to terminate parental rights, both of which must be met before the court orders termination. First, the court must address a parent's fitness: The court must find that the parent is 'unfit by reason of conduct or condition seriously detrimental to the child.' That, in turn, requires a two-part inquiry: The court must find that: (1) the parent has engaged in some conduct or is characterized by some condition; and (2) the conduct or condition is 'seriously detrimental' to the child. Second-and only if the parent has met the foregoing criteria-the court also must find that the 'integration of the child into the home of the parent or parents is improbable within a reasonable time due to conduct or conditions not likely to change.' That second part of the test for termination requires the court to evaluate the relative probability that, given particular conduct or conditions, the child will become integrated into the parental home 'within a reasonable time.' "

In considering whether a parent's conduct or condition is "seriously detrimental," we focus on the effect of the condition on the child, not on the "seriousness of the parent's conduct or condition in the abstract." Id. at 146, 36 P.3d 490. "That said, a condition or conduct can be 'seriously detrimental' based on the potential for such harm." Dept. of Human Services v. B. J. J. , 282 Or. App. 488, 502, 387 P.3d 450 (2016). Our inquiry is child specific. Furthermore, to demonstrate that a parent is unfit, DHS "must prove more than unfitness at some point in the past, but rather must prove that the conduct or condition is seriously detrimental at the time of the termination hearing. " State ex rel. Dept. of Human Services v. A. M. P. , 212 Or. App. 94, 104, 157 P.3d 283 (2007) (emphasis in original). "[P]ast unfitness is insufficient." Dept. of Human Services v. R. K. , 271 Or. App. 83, 89, 351 P.3d 68, rev. den. , 357 Or. 640, 360 P.3d 523 (2015). Thus, DHS must prove that mother's conduct and conditions at the time of the hearing are seriously detrimental to child. See Dept. of Human Services v. A. M. C. , 245 Or. App. 81, 89, 260 P.3d 821 (2011) ("Unspecified detriment that we can discern only because the evidence of conduct or condition 'speaks for itself,' is a far cry from actual, clear, and convincing evidence that proves serious detriment."). Here, DHS has not persuaded us that mother is unfit under those standards.

DHS's case is based primarily on the evidence regarding mother's use of methamphetamine. In support of its contention that mother was unfit at the time of the termination trial, DHS emphasizes mother's past abuse of methamphetamine, together with the two positive hair tests, the psychological evidence of her defensiveness, and the negative effect that her recent use of methamphetamine would have on her prognosis. In DHS's view, mother's continued denial that she used methamphetamine during the pendency of the case, even when confronted with the results of the hair testing, demonstrates that mother has not addressed her drug problem and that her defensiveness has prevented and will continue to prevent her from doing so. However, in light of all of the evidence regarding mother's conduct and conditions at the time of trial, we are not convinced that she was unfit at that time.

Although mother has admittedly had serious problems with methamphetamine use in the past, the evidence was that, by the time of trial, she had made a marked transformation. She and two of her adult children were living with her parents in their home, which had been determined to be a safe and appropriate place for child and was the place that mother intended to continue living. The evidence also showed that mother's family was committed to ensuring child's safety, having gone so far as to take classes to help them recognize the signs of a drug relapse should mother suffer one.

To date, mother has not outwardly manifested signs of a relapse. Mother's ongoing engagement in drug treatment and related urine testing over the course of child's out-of-home placement do not suggest a return to habitual drug use. Furthermore, mother's family expressed that her mood, conduct, and appearance had all measurably improved. At the time of trial, mother was happier, she was involved in activities with her family, and her appearance was healthier than it had been during mother's period of active methamphetamine abuse.

Mother was also gainfully employed at the time of trial. Indeed, her position was one of responsibility; mother supervised others and, in the course of the job, handled large sums of money. As noted, mother was subject to random drug testing as part of that job and her continued employment in that position beginning six months before trial strongly indicates that mother was doing well in that respect.

Mother's significant efforts to maintain her connection with child over the course of this case also inform our view of the relevant circumstances. Mother had regular telephone contact with child and drove hundreds of miles weekly to visit with child in person. The evidence regarding that visitation uniformly showed that mother actively played with and otherwise acted appropriately toward child. In addition to that evidence of mother's commitment to child, she also took and completed numerous parenting classes while child was in substitute care.

We acknowledge DHS's concern regarding the two hair tests conducted in the months before trial, which showed the presence of low levels of methamphetamine. However, there is no evidence in the record of any behavior of mother at or around the time of trial suggesting drug impairment. Indeed, other than those exceedingly low test results, there is no evidence whatsoever that mother in fact used methamphetamine, much less that any such methamphetamine use has had any effect on mother's conduct or life. Thus, although we are mindful of the psychologist's concern regarding mother's apparently minimal recent usage on her prognosis, especially in light of mother's past drug abuse and her defensiveness and resistance to treatment, that evidence, in light of all of the other evidence-including the evidence of mother's changed demeanor, her employment, her significant efforts to engage in treatment and improve her parenting, her devotion to maintaining her connection with child, and her extensive efforts to do so-does not convince us that mother's conduct or condition was seriously detrimental to child at the time of trial. In other words, in the absence of evidence that mother's seemingly incidental use of methamphetamine has negatively affected mother's employment, relationships, or other parts of her life in any way, that evidence, even in light of the psychologist's concerns and considering mother's past drug abuse, does not persuade us that mother is unfit. Cf. Dept. of Human Services v. J. J. B. , 291 Or. App. 226, 418 P.3d 56 (2018) (juvenile court erred in asserting jurisdiction over a child based on substance abuse, despite evidence that parents had "relapsed" and had been using methamphetamine for several months). Instead, we agree with mother that the evidence in this case "provides a clear story of Mother's upward trajectory from a serious drug problem [in the past] to her successful efforts to live a functional life at the time of the hearing."

In sum, DHS has failed to convince us, by clear and convincing evidence, that mother's conduct or condition at the time of the termination trial in this case was seriously detrimental to child. Accordingly, we conclude that the trial court erred in terminating mother's parental rights based on unfitness.

Mother separately challenges the juvenile court's determination that her parental rights should be terminated because of neglect under ORS 419B.506. Pursuant to that statute, the rights of a parent may be terminated

"if the court finds that the parent or parents have failed or neglected without reasonable and lawful cause to provide for the basic physical and psychological needs of the child or ward for six months prior to the filing of a petition. In determining such failure or neglect, the court shall disregard any incidental or minimal expressions of concern or support and shall consider but is not limited to one or more of the following:
"(1) Failure to provide care or pay a reasonable portion of substitute physical care and maintenance if custody is lodged with others.
"(2) Failure to maintain regular visitation or other contact with the child or ward that was designed and implemented in a plan to reunite the child or ward with the parent.
"(3) Failure to contact or communicate with the child or ward or with the custodian of the child or ward. In making this determination, the court may disregard any incidental visitations, communications or contributions."

Here, mother's rights were terminated for neglect on the ground that she had, without reasonable and lawful cause, failed to provide care or pay a reasonable portion of substitute physical care and maintenance while custody of child was lodged with others. To sustain the juvenile court's termination of mother's parental rights on the ground of neglect, we must be persuaded by clear and convincing evidence, that mother, without reasonable and lawful cause, failed to provide care for child or pay a reasonable portion of her care. Here, there is no evidence that persuades us that mother's parental rights may be terminated on that ground. In particular, although there was evidence that mother was employed full-time during the six months before the termination trial, there was no evidence regarding whether she had or had not paid any costs of child's substitute care, nor was there any evidence that mother had ever been ordered or instructed to do so. See Dept. of Human Services v. A. L. M./J. T. C. , 242 Or. App. 625, 633 n. 3, 259 P.3d 17, rev. den. , 350 Or. 716, 260 P.3d 493 (2011) (concluding that the record did not support termination for neglect under ORS 419B.506 where, among other things, there was no evidence that, "during the six months before filing of the termination petition, [parent] was ordered to pay any costs of [child's] substitute care or had any income with which to do so"). In the absence of any such evidence, DHS has not proved by clear and convincing evidence that mother "has failed or neglected without reasonable and lawful cause to provide for the" needs of child under ORS 419B.506.

Reversed and remanded.

      Father's parental rights were terminated by default and father is not a party to this appeal.

      In her first assignment of error, mother asserts that the juvenile court erred in excluding certain evidence as hearsay. Our resolution of mother's other assignments obviates the need to address that contention.

      As we have explained, to the "extent that a credibility determination is based on a comparison of the witness' testimony with the substance of other evidence, this court is as well equipped as the trial court to make that credibility determination." State ex rel. Juv. Dept. v. G. P. , 131 Or. App. 313, 319, 884 P.2d 885 (1994). Accordingly, on de novo review, we defer to the juvenile court's demeanor-based credibility findings, but not to credibility findings that appear to have been driven by a comparison of the testimony with the substance of other evidence. See Dept. of Human Services v. T. M. M. , 248 Or. App. 352, 356 n. 1, 273 P.3d 322, rev. den. , 352 Or. 170, 285 P.3d 720 (2012).

      The home had not been approved as a placement with mother living in the home because of the urine tests indicating mother's alcohol use.

      The home study was conducted as part of a request that child be placed with mother's parents in California. DHS did not move child from her initial placement with her half-brother and his wife, and the approval ultimately expired after six months passed.

      A picogram is one trillionth of a gram.

      DHS also introduced evidence of a psychological evaluation that had been conducted during the earlier case involving mother's older children, approximately seven years before the termination trial in this case. It also introduced testimony from the psychologist who conducted that examination, although that psychologist had not evaluated or treated mother since that time. We do not consider that evidence persuasive, especially given the number of years that have passed since the evaluation was conducted.


source: Caselaw Access Project

license: Public Domain

text:
    In the MATTER OF J. L. T., a Person Alleged to have Mental Illness.
    State v. J. L. T.
    A168134
    Court of Appeals of Oregon.
    April 24, 2019
    Affirmed without opinion.


text:
    In the MATTER OF M. J., a Person Alleged to have Mental Illness.
    State v. M. J.
    A167546
    Court of Appeals of Oregon.
    April 24, 2019
    Affirmed without opinion.


text:
    RENKEN et al. and Stone v. CITY OF OREGON CITY et al.
    A170130
    Court of Appeals of Oregon.
    April 24, 2019
    Affirmed without opinion.


author: PER CURIAM

text:
    STATE of Oregon, Plaintiff-Respondent, v. Tyler James THOMPSON, Defendant-Appellant.
    A165120
    Court of Appeals of Oregon.
    Argued and submitted April 25, 2019. June 5, 2019
    Daniel C. Bennett, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   PER CURIAM

Appealing a judgment of conviction for attempted sodomy in the second degree and attempted sodomy in the first degree, defendant assigns error to (1) the trial court's denial of his motion for a mistrial, based on the state's failure to disclose recorded interviews of multiple witnesses until near the end of trial; (2) the trial court's admission of expert testimony regarding grooming without an adequate foundation to establish its scientific validity; and (3) the trial court's instruction to the jury that it could render a nonunanimous verdict, and the court's acceptance of nonunanimous verdicts.

We reject without written discussion defendant's challenge to the denial of his motion for a mistrial and his plain error challenges implicating jury unanimity. As for defendant's contention regarding the admission of the expert testimony regarding grooming, we are not persuaded by the state's argument that this case is distinguishable from State v. Henley , 363 Or. 284, 422 P.3d 217 (2018), and State v. Plueard , 296 Or. App. 580, 439 P.3d 556, adh'd to as modified on recons. , 297 Or. App. 592, --- P.3d ---- (2019). For reasons similar to those identified in both Henley and Plueard , the trial court erred by admitting the grooming testimony without requiring the state to lay an adequate foundation. We therefore reverse and remand.

Reversed and remanded.


text:
    SANDS, Carlyle Mark v. AMSBERRY
    A165586
    Court of Appeals of Oregon.
    April 24, 2019
    Affirmed without opinion.


text:
    SMITH, Jeffrey Glen v. AMSBERRY
    A165332
    Court of Appeals of Oregon.
    April 24, 2019
    Affirmed without opinion.


text:
    STATE v. CURRY, Dennis James
    A166040
    Court of Appeals of Oregon.
    May 1, 2019
    Affirmed without opinion.


text:
    STATE v. ECKLEY, Robert Dale
    A165339
    Court of Appeals of Oregon.
    May 1, 2019
    Affirmed without opinion.


text:
    TRAN v. TRI-COUNTY METROPOLITAN TRANSIT DISTRICT OF OREGON (TriMet)
    A168361
    Court of Appeals of Oregon.
    May 1, 2019
    Affirmed without opinion.


text:
    In the MATTER OF A. S. A., a Child.
    Department of Human Services, Petitioner-Respondent, v. L. E. A., Appellant.
    A169594
    Court of Appeals of Oregon.
    Submitted May 6, 2019. June 5, 2019
    Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General, filed the brief for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   PER CURIAM

Affirmed. Dept. of Human Services v. S. J. K. , 296 Or. App. 416, 439 P.3d 578 (2019).


author: Justice Pearce, opinion of the Court:

text:
    State of UTAH, Petitioner, v. Honorable Ann BOYDEN and Bela A. Fritz, Respondents.
    No. 20170936
    Supreme Court of Utah.
    Filed March 20, 2019
    Sean D. Reyes, Att'y Gen., John J. Nielsen, Asst. Solic. Gen., Salt Lake City, for petitioner
    Brent M. Johnson, Nancy J. Sylvester, Salt Lake City, for respondent Judge Ann Boyden
    Lori J. Seppi, Isaac E. McDougall, Salt Lake City, for respondent Bela A. Fritz
    Justice Pearce authored the opinion of the Court in which Associate Chief Justice Lee, Justice Petersen, Judge Appleby, and Judge Pohlman joined.
    Having recused themselves, Chief Justice Durrant and Justice Himonas did not participate herein.
    Court of Appeals Judges Kate A. Appleby and Jill M. Pohlman sat.
    On Petition for Extraordinary Relief
   Justice Pearce, opinion of the Court:

INTRODUCTION

¶1 In this somewhat unconventional proceeding, the State seeks to overturn a conviction it recently obtained. The State appears convinced of the defendant's guilt but nevertheless claims it has convicted the wrong person and wants to correct that error. The person the State convicted-that is, the person who was sent to prison for the crime-opposes the State's efforts.

¶2 The district court rebuffed the State's attempt to fix the situation with a motion made under Utah Rule of Civil Procedure 60(b), reasoning that the court had lost jurisdiction over the case and that the State needed to proceed under the Post-Conviction Remedies Act (PCRA). The State petitions us for extraordinary relief and asks that we direct the district court to "exercise jurisdiction over the State's motion for relief under rule 60(b)... and vacate the judgment and conviction ... based upon the defendant's fraud." We conclude that the district court had jurisdiction to adjudicate the State's motion and that rule 60(b), not the PCRA, provides the mechanism through which the State may bring its challenge. We grant the writ and direct the district court to entertain the State's motion.

BACKGROUND

¶3 The defendant was driving a vehicle that appeared to be unregistered and uninsured when Salt Lake City police pulled him over. During the traffic stop, police searched the vehicle and discovered drugs, drug paraphernalia, and a firearm.

¶4 The defendant allegedly identified himself as Bela Fritz. It is unclear what measures the State undertook to confirm the defendant's identity, but the State apparently followed his lead and believed he was Bela Fritz. The State charged and prosecuted the defendant under the name Bela Fritz. The defendant moved through the criminal justice proceedings as Bela Fritz, at all times representing himself to be that person.

¶5 The State charged Bela Fritz with several offenses: possession of a controlled substance with intent to distribute, a first degree felony, see UTAH CODE § 58-37-8(1)(a)(iii) ; purchase, transfer, possession or use of a firearm by a restricted person, a third degree felony, see id. § 76-10-503(3)(a); and possession of drug paraphernalia, a class B misdemeanor, see id. § 58-37a-5(1). Following plea negotiations, the State reduced the first offense to attempted possession, a second degree felony. The second offense remained unchanged, and the State dismissed the third offense. The defendant pleaded guilty to the reduced charges. A presentence report was then prepared with respect to Bela Fritz, recommending that he be sentenced to imprisonment for the term directed by statute. See id. § 76-3-203(3).

¶6 At sentencing, the district court reduced the judgment of conviction on the first offense to a third degree felony, applying Utah Code section 76-3-402. The district court then ordered that Bela Fritz serve a term of imprisonment of up to five years for each offense, with the sentences to run concurrently. The defendant was then transported to the Utah State Prison.

¶7 When the defendant arrived at the Prison, a Department of Corrections officer allegedly discovered that the defendant was not who he claimed to be. The problem, according to the officer, was that the two men did not look enough alike. During the intake process, the officer viewed a photo of Bela Fritz that the Department had on file and observed that it "did not resemble the person standing in [his] office." The officer then asked the defendant to confirm personal information regarding his identity, and the defendant allegedly confessed that he had used Bela Fritz's identity rather than his own. The officer ran the issue up the chain of command, and eventually the State was notified that the Prison believed the defendant was not, in fact, Bela Fritz.

¶8 Less than a month after final judgment had been entered against Bela Fritz, the State returned to the district court claiming the defendant had misled it about his identity. The State moved under Utah Rule of Civil Procedure 60(b) to vacate the conviction, sentence, and judgment. The State informed the district court that the defendant had allegedly "assumed [the] name of another actual person" for purposes of the criminal proceeding. Thus, the State argued, it had erroneously convicted the defendant as "Bela Fritz," and the defendant had been sentenced against the backdrop of Bela Fritz's criminal background.

¶9 The State noted that the Utah Rules of Civil Procedure "govern in any aspect of criminal proceedings where there is no other applicable statute or rule." UTAH R. CIV . P. 81(e). Arguing that no other statute or rule governed these "unusual circumstances," the State asserted that rule 60(b) filled the gap. Applying subsection (b)(3), the State asked the district court to vacate the conviction, sentence, and judgment based on the defendant's fraud, misrepresentation, or other misconduct. See id. 60(b)(3). In the alternative, the State urged the district court to invoke subsection (b)(6), which authorizes a court to grant relief from a judgment, order, or proceeding for "any other reason that justifies relief." Id. 60(b)(6). The State also moved for a misplea, citing the fraud the defendant allegedly perpetrated on the court.

¶10 The district court denied the motion. The court reasoned that following imposition of a valid sentence, a district court loses subject matter jurisdiction over the case. Accordingly, the court concluded it had no authority to "consider and decide the issues presented." Even if it had jurisdiction, the court noted, "a [r]ule 60(b) set aside and declaration of misplea [would not be] warranted." In the court's view, the PCRA "establishe[d] the sole remedy" for the State to challenge the conviction and sentence. See UTAH CODE § 78B-9-102(1)(a). In addition, the court's "authority to rescind acceptance of a guilty plea [was] specifically limited to the window before sentencing and judgment" and "that window [had] closed."

¶11 The State moved the court to reconsider. The State pointed to language in the PCRA authorizing "a person who has been convicted and sentenced for a criminal offense [to] file an action." UTAH CODE § 78B-9-104(1). The State asserted that because it had been neither convicted nor sentenced, the PCRA offered the State no avenue to relief. The State also claimed that if the sentence and judgment were vacated pursuant to its rule 60(b) motion, the court could also address the State's motion for a misplea.

¶12 Again, the district court denied the motion, concluding that the State had neither asserted the court had jurisdiction nor directed the court to authority to support the exercise of jurisdiction. Undeterred, the State tried again, filing a motion to reconsider the denial of its motion to reconsider. The State asserted that rule 60(b) provided the court with jurisdiction to consider the issues the State had raised. And the State implored the court to act because "the Defendant's fraudulent act of obtaining a conviction in the name of another, real person" had resulted in an "innocent person now ha[ving] a record of conviction for enhanceable crimes, including a violent felony."

¶13 The third time was not a charm. The district court again declined. Citing its earlier ruling, the court rejected rule 60(b) as a basis for jurisdiction or relief. This time, however, the court refused to address whether the State might obtain relief through a PCRA petition, stating the issue was an "abstract" question "not properly before" it. The conviction, sentence, and judgment against Bela Fritz were thus left intact even though the State allegedly had reason to believe that Bela Fritz was not the person convicted and sent to prison.

¶14 The State then filed a petition for extraordinary relief in this court, invoking Utah Rule of Civil Procedure 65B. The State asks that we direct the district court to "exercise jurisdiction over the State's motion for relief under rule 60(b)." The State also asks that we vacate the conviction, sentence, and judgment against Bela Fritz because of the defendant's alleged fraud. The State asserts that although such relief would usually be left to the district court on remand, "this is a rare case in which all of the equities favor" taking that course of action here.

STANDARD OF REVIEW

¶15 An aggrieved person, or a person whose interests are threatened, may petition this court for relief if a lower court abuses its discretion or exceeds its jurisdiction and "no other plain, speedy and adequate remedy is available." UTAH R. CIV . P. 65B(a), (d). Unlike parties pursuing direct appeals, however, a petitioner who demonstrates such error "has no right to receive a remedy that corrects [the] lower court's mishandling of [the] particular case." State v. Barrett , 2005 UT 88, ¶ 23, 127 P.3d 682. Whether relief is granted is within our "sound discretion." Id. We consider several factors to decide whether to grant a petition, such as the egregiousness of the error, the significance of the legal issue, and the severity of the consequences resulting from the error. Id. ¶ 24.

¶16 When addressing a petition that asserts error in judicial proceedings, our review is limited to "determin[ing] whether the [lower court] has regularly pursued its authority." UTAH R. CIV . P. 65B(d)(4). The issue here concerns whether the district court regularly pursued its authority or abused its discretion in denying the State's motion for relief under Utah Rule of Civil Procedure 60(b). "A district court has broad discretion in ruling on a motion to set aside an order or judgment under rule 60(b)." In re Willey , 2016 UT 53, ¶ 5, 391 P.3d 171 (citation omitted) (cleaned up). Thus, we generally "review a district court's denial of a 60(b) motion under an abuse of discretion standard." Id. (citation omitted).

¶17 Before us, the district court asserts that a court does not abuse its discretion when it declines to apply a legal principle in a novel fashion. According to the district court, unprecedented applications of legal rules or principles would result in new law, and a court does not abuse its discretion when it refuses to create new law.

¶18 This misstates the discretion a district court possesses. Although we sympathize with a district court that finds itself ruling on a novel issue of law with little guidance, a district court's discretion does not extend to refusing to rule because the question presented is one of first impression. District courts are often called upon to play the role of legal frontiersmen and women. Such a role is undoubtedly a challenging one. But it is one district courts are constitutionally required to undertake. Full and fair adjudication of a matter necessitates that district courts wrestle with questions of first impression, identify the governing legal principles, and apply them to the facts of the case. Whether the court's conclusion would be reviewed deferentially or de novo in no way alters its responsibility to undertake that inquiry.

¶19 Misapplication of the law constitutes an abuse of discretion. See, e.g. , State v. Lowther , 2017 UT 34, ¶¶ 17, 45, 398 P.3d 1032 ("A district court abuses its discretion when it admits or excludes evidence under the wrong legal standard." (citation omitted) (internal quotation marks omitted) ); Johnson v. Johnson , 2014 UT 21, ¶ 24, 330 P.3d 704 ("[T]he district court applied the wrong legal standard, and in so doing, abused its discretion."); State v. Ramirez , 2012 UT 59, ¶ 7, 289 P.3d 444 ("Applying the wrong legal standard, however, will always exceed whatever limited discretion the magistrate has in the bindover decision."); Archuleta v. Galetka , 2011 UT 73, ¶ 152, 267 P.3d 232 ("A decision premised on flawed legal conclusions ... constitutes an abuse of discretion." (citation omitted) ); Taylor-W. Weber Water Improvement Dist. v. Olds , 2009 UT 86, ¶ 3, 224 P.3d 709 ("The district court abuses its discretion when it relies on an erroneous conclusion of law to come to its decision."); Menzies v. Galetka , 2006 UT 81, ¶ 55, 150 P.3d 480 ("If a district court's ruling on a 60(b) motion is based on clearly erroneous factual findings or flawed legal conclusions, the district court has likely abused its discretion."); Barrett , 2005 UT 88, ¶ 17, 127 P.3d 682 ("As a general matter, we agree with the proposition that the abuse-of-discretion standard of review will at times necessarily include review to ensure that no mistakes of law affected a lower court's use of its discretion."); Lund v. Brown , 2000 UT 75, ¶ 9, 11 P.3d 277 ("A decision premised on flawed legal conclusions, for instance, constitutes an abuse of discretion.").

¶20 The defendant asserts that abuse of discretion occurs only in more limited circumstances, such as when a decision shocks one's sense of justice or results from bias, prejudice, or malice. But that is a misstatement of the law.

¶21 When district courts have discretion to weigh factors, balance competing interests, or otherwise choose among a range of permissible approaches or outcomes, those discretionary determinations must rest upon sound legal principles. For that reason, when a legal conclusion is embedded in a district court's discretionary determination, we peel back the abuse of discretion standard and look to make sure that the court applied the correct law. See, e.g. , Gardiner v. Taufer , 2014 UT 56, ¶ 23, 342 P.3d 269 ("[W]e review the district court's legal conclusions in the context of a rule 60(b) ruling for correctness."); see also, e.g. , Rodriguez v. Kroger Co. , 2018 UT 25, ¶ 11, 422 P.3d 815 (noting that although "[a] trial court's decision ... is reviewed under an abuse of discretion standard ..., whether the district court applied the appropriate standard ... presents a legal question that we review for correctness" (citations omitted) (internal quotation marks omitted) ); McLaughlin v. Schenk , 2013 UT 20, ¶ 19, 299 P.3d 1139 (noting that although "application of the law of the case doctrine is ordinarily reviewed under an abuse of discretion standard ..., when a legal question is presented to an appellate court in law-of-the-case packaging, the abuse of discretion standard must yield to the correctness standard of review" (citations omitted) (internal quotation marks omitted) ).

¶22 We apply that approach here. We review for correctness the legal conclusions embedded in the district court's denial of the State's rule 60(b) motion. We then determine whether the court abused its discretion or regularly pursued its authority in denying the motion. Finally, we consider whether to exercise our discretion to grant the writ and instruct the district court to correct its error.

ANALYSIS

I. The District Court Abused Its Discretion When It Declined to Exercise Jurisdiction over The State's Rule 60(b) Motion

¶23 The State moved for relief under Utah Rule of Civil Procedure 60(b)(3), which provides that "[o]n motion and upon just terms, the court may relieve a party or its legal representative from a judgment, order, or proceeding for ... fraud (whether previously called intrinsic or extrinsic), misrepresentation or other misconduct of an opposing party." The district court concluded that it lacked jurisdiction to consider the motion, and even if it had jurisdiction, the PCRA provided the State's sole remedy for pursuing its challenge. Both of these conclusions present questions of law, and we review them for correctness.

¶24 The district court erred in both respects. The State could seek relief under rule 60(b) because neither the PCRA nor any other statute or rule governs this aspect of the criminal proceeding. And rule 60(b) provided the court with jurisdiction to consider the State's motion. This misapplication of the law infected the district court's rulings, and the court thus abused its discretion in denying the State's motion.

A. The State Properly Moved Under Utah Rule of Civil Procedure 60(b) to Challenge the Defendant's Conviction, Sentence, and Judgment

¶25 Criminal matters are governed primarily by the Utah Rules of Criminal Procedure. But those rules are not comprehensive. When looking to fill the gaps between those rules, the Utah Rules of Civil Procedure instruct that "[t]hese rules of [civil] procedure shall also govern in any aspect of criminal proceedings where there is no other applicable statute or rule, provided, that any rule so applied does not conflict with any statutory or constitutional requirement." UTAH R. CIV . P. 81(e).

¶26 The question then is whether the State may avail itself of Utah Rule of Civil Procedure 60(b) in a criminal proceeding to challenge a conviction, sentence, and judgment allegedly entered against an innocent person because a defendant misrepresented his or her identity. In their responses to the petition, the district court and the defendant assert the State categorically may not. They claim that rule 60(b) applies only to a party who lost its case and that allowing the State to move under rule 60(b) would enable the State to seek otherwise impermissible relief. Additionally, in the proceeding below, the district court concluded that the State could raise its challenge only through the PCRA, not rule 60. We disagree. Relief is not available to the State under the PCRA. And the State may utilize rule 60(b) to bring the challenges it has asserted in this case.

¶27 Rule 60(b) provides that "[o]n motion and upon just terms, the court may relieve a party or its legal representative from a judgment, order, or proceeding" for several reasons, including "fraud ..., misrepresentation or other misconduct of an opposing party." UTAH R. CIV . P. 60(b). Contrary to the arguments the district court and the defendant make, nothing in the rule limits its use to a party who lost. Although we have commented that "[r]ule 60(b) is designed to provide relief to a party that has lost its case," Kell v. State , 2012 UT 25, ¶ 18, 285 P.3d 1133, our statement noted the rule's general purpose and common application-and was not definitive commentary on the rule's reach.

¶28 In Kell , we addressed whether a party could file a motion under rule 60(b), and under subsection (b)(6) in particular, following an appellate court's affirmance of the underlying judgment. Id. ¶¶ 17-18, 21 ; see also UTAH R. CIV . P. 60(b)(6) (authorizing a court to provide relief from a judgment or order for "any other reason that justifies relief"). As part of that discussion, we noted that rule 60(b) provides a vehicle for relief for unsuccessful parties and emphasized that "[t]he remedies provided by rule 60(b) should not be understood to be a substitute for appeal." Kell , 2012 UT 25, ¶ 18, 285 P.3d 1133 (citation omitted) (internal quotation marks omitted). We concluded that we would "allow a 60(b) motion after an appellate court has affirmed the underlying judgment only in unusual and exceptional circumstances." Id. ¶ 21 (internal quotation marks omitted). And "those unusual and exceptional circumstances would have to be circumstances that did not manipulate or circumvent the" PCRA. Id. ¶ 22 (internal quotation marks omitted). We did not consider whether rule 60(b) could be used by a prevailing party, and we were not attempting to set any such limits on the rule's scope or application. See id.

¶29 Kell is nevertheless instructive to the question before us. In Kell , the district court read into rule 60(b) a requirement not present in the rule's text, namely, that a case must be "pending" at the time the motion is filed. Id. ¶ 16. We rejected that requirement after considering the rule's broader purpose: "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." Id. ¶ 16 (citation omitted) (internal quotation marks omitted). Rule 60(b) 's "whole purpose is to make an exception to finality," id. (citation omitted), when the strong interest in the finality of judgments is outweighed by the paramount importance of preserving our courts as arbiters of just and equitable proceedings.

¶30 Here, as in Kell , rule 60(b) does not support reading into it an additional, nontextual requirement-that only nonprevailing parties may invoke it. When, for example, the discovery of fraud, misrepresentation or other misconduct undermines a court's confidence that a judgment resulted from a just and fair proceeding, the interest in preserving the judgment gives way, regardless of which party discovered the fraud and attempted to undo it. Accordingly, prevailing parties are not categorically barred from filing motions under rule 60(b).

¶31 The district court and the defendant assert that by allowing the State to seek relief under rule 60(b) in this case, we are "permit[ting] the State to seek relief from a judgment for other rule 60(b) reasons" and "arguably open[ing] the door for the State to challenge an acquittal." We are unpersuaded by the argument that if we permit the State to move under rule 60(b), we are opening Pandora's box. Our decision does not upend any existing limits on the State's ability to challenge a final judgment in a criminal case. And it should not be read so broadly.

¶32 By the civil rules' plain language, the State may invoke rule 60(b) to challenge a judgment only if "there is no other applicable statute or rule, provided, that any rule so applied does not conflict with any statutory or constitutional requirement." UTAH R. CIV . P. 81(e). We thus address whether any other rule of criminal procedure applies, as well as whether the PCRA precludes the State from moving under rule 60(b), as the district court concluded.

¶33 Our rules of criminal procedure contain only one provision authorizing a postsentencing challenge on nonclerical grounds. Rule 22(e) permits a district court to correct a sentence that "exceeds the statutorily authorized maximums;" "is less than statutorily required minimums;" "violates Double Jeopardy;" "is ambiguous as to the time and manner in which it is to be served;" "is internally contradictory;" or "omits a condition required by statute or includes a condition prohibited by statute." UTAH R. CRIM . P. 22(e). None of these circumstances are present here. And neither rule 22(e) nor any other rule of criminal procedure prohibits other postsentencing challenges to a conviction, sentence, or judgment.

¶34 Rule 60(b) may therefore fill that gap in our criminal rules and allow a challenge that falls within the rule's provisions, so long as application of the rule does not conflict with a statutory or constitutional requirement. See UTAH R. CIV. P. 81(e). The district court properly considered the PCRA as a possible source of conflict. As we have noted, "The PCRA and rule 60(b) can be in direct conflict." Kell , 2012 UT 25, ¶ 25, 285 P.3d 1133. The PCRA "establishes the sole remedy for any person who challenges a conviction or sentence for a criminal offense and who has exhausted all other legal remedies," and "replaces all prior remedies for review, including extraordinary or common law writs." UTAH CODE § 78B-9-102(1)(a). Thus, while "the PCRA does not fully extinguish the relevance of rule 60(b)," see Kell , 2012 UT 25, ¶ 25, 285 P.3d 1133, it limits the rule's application. But the PCRA does not apply to the State and thus does not limit the rule's application here.

¶35 Although the PCRA "establishes the sole remedy for any person who challenges a conviction or sentence for a criminal offense," UTAH CODE § 78B-9-102(1)(a), it only authorizes the filing of petitions by persons convicted or sentenced, id. § 78B-9-104(1). Challenges may be brought only by "a person who has been convicted and sentenced for a criminal offense." Id. The State is not such a person.

¶36 Moreover, the PCRA establishes a framework under which the State may respond to petitions for relief. Under section 78B-9-106, a PCRA claim must meet certain procedural and time limitations, and in opposing the claim, "[t]he state may raise" those limitations "at any time." Id. § 78B-9-106(1), (2)(a) (emphasis added). In addition, section 78B-9-108 equates the respondent opposing a PCRA petition with the governmental entity that obtained the conviction or sentence. Id. § 78B-9-108(3)(d) (providing that "[i]f the respondent gives notice that it intends to retry or resentence the petitioner, the trial court may order any supplementary orders ... that may be necessary" (emphasis added) ).

¶37 The PCRA thus does not authorize the State to challenge a conviction or sentence as the district court suggested. Because the State lacked another path to bring this issue before the court, the State properly invoked rule 60(b).

B. Rule 60(b) Grants the District Court Jurisdiction to Consider the State's Motion

¶38 The district court concluded that it could not consider the State's rule 60(b) motion because it lacked jurisdiction to do so. The district court cited the general rule that "[o]nce a court imposes a valid sentence and final judgment is entered, the court ... loses subject matter jurisdiction over the case." State v. Rodrigues , 2009 UT 62, ¶ 13, 218 P.3d 610. Based on this principle, all of the parties to this proceeding assume that upon entry of the judgment against Bela Fritz, the district court lost subject matter jurisdiction over the matter. That may well have been the case. But even assuming the district court's broad subject matter jurisdiction expired at that time, the State's motion under Utah Rule of Civil Procedure 60(b) provided the court with jurisdictional authority to investigate the issues raised.

¶39 Under our procedural rules, district courts retain jurisdiction to address certain matters postsentencing and postjudgment. Under the Utah Rules of Criminal Procedure, a district court may arrest judgment prior to entry of a sentence, correct a sentence if it embodies certain defects, stay a sentence pending appeal, and correct clerical mistakes. UTAH R. CRIM . P. 22, 23, 27, 30. Under the Utah Rules of Civil Procedure, a district court may correct clerical mistakes or relieve a party from a judgment under certain circumstances. UTAH R. CIV . P. 60(a)-(c). District courts may also entertain an independent action for relief from a judgment, order, or proceeding due to fraud on the court. Id. 60(d).

¶40 In each of these circumstances, a district court is taking action in a proceeding that has otherwise concluded, when we might expect jurisdiction over the case to have expired. Moreover, from time to time, we alter our rules of procedure, changing the circumstances under which a district court may exercise jurisdiction post judgment or post sentencing. When we do so, and redefine the limits of district courts' jurisdiction based on the language of a particular rule, we are not referring to constitutional limits on judicial authority. We are using the term "jurisdiction" to refer to the principles, developed via rule-making procedures or embedded in our case law, through which we regulate the proceedings that take place in our courts. And we grant those rules "jurisdictional" status. See State v. Lara , 2005 UT 70, ¶ 12, 124 P.3d 243.

¶41 Thus, as a matter of practice, we speak of such limits on judicial authority as "jurisdictional." "For example, when [this court] turn[s] away an untimely filed appeal on the grounds that we do not have jurisdiction to entertain it, we are granting 'jurisdictional' effect to our own rules of procedure." Id. We have likewise spoken in terms of "jurisdiction" when stating that, as a general rule, a court loses subject matter jurisdiction over a case after it imposes a valid sentence and final judgment is entered. See, e.g. , Rodrigues , 2009 UT 62, ¶ 13, 218 P.3d 610. That "jurisdictional" principle is not of constitutional origin. It is subject to overrides or exceptions set forth in our case law and in our rules of procedure. See Ralphs v. McClellan , 2014 UT 36, ¶ 27, 337 P.3d 230.

¶42 Utah Rule of Civil Procedure 60(b) is such a rule. And when a party moves under rule 60(b), following imposition of a sentence and entry of final judgment, a district court has jurisdiction to consider the motion. No other "specific" grant of authority is needed, as the district court mistakenly suggested. The district court therefore erred in concluding that it lacked jurisdiction to consider the State's rule 60(b) motion.

II. Given the Important Questions and Consequences at Issue, We Exercise Our Discretion and Grant the Writ

¶43 Having concluded the district court abused its discretion, we must determine whether to grant the State's petition. As noted above, we have "outlined a number of nonexclusive factors a court may consider in deciding whether to grant a petition for extraordinary relief." Gilbert v. Maughan , 2016 UT 31, ¶ 16, 379 P.3d 1263. "These factors include 'the egregiousness of the alleged error, the significance of the legal issue presented by the petition, [and] the severity of the consequences occasioned by the alleged error ....' " Id. (quoting State v. Barrett , 2005 UT 88, ¶ 24, 127 P.3d 682 ). Additional factors may color or control our analysis, see id. ¶¶ 18, 20, and in each instance, the determination of whether to grant relief is tailored to the proceeding's particular issues and circumstances.

¶44 Here, the significance of the legal issues presented and the consequences of leaving the error uncorrected provide ample reason to grant the petition. A defendant's misrepresentation of his or her identity is an illicit attempt to game the criminal justice system. It carries with it troubling consequences. If unchecked, the defendant's conduct may result in a conviction being recorded against another. In addition, the defendant's sentence may not be tailored to his or her background, criminal history, or mental or physical health. The sentence may fall well short of legislative requirements in terms of punishment and deterrence. And public safety may be put at risk. The State is obstructed in the exercise of its prosecutorial discretion, and district courts cannot determine appropriate sentences, when operating against a backdrop of misinformation regarding a defendant's identity.

¶45 Accordingly, we exercise our discretion to grant the State's petition. We do not, however, grant all the relief the State seeks. We decline to determine in the first instance that the defendant misrepresented his identity. "[T]he challenged proceedings are judicial in nature," and our review extends no "further than to determine whether the [district court] has regularly pursued its authority." UTAH R. CIV. P. 65B(d)(4). Having concluded the district court failed to regularly pursue its authority in declining to exercise jurisdiction over the State's rule 60(b) motion, we instruct the court to do so and vacate the order denying the State's motion. But we do not direct the district court to grant the motion and we offer no opinion as to the motion's merits.

CONCLUSION

¶46 The State may move under Utah Rule of Civil Procedure 60(b) to undo a conviction allegedly obtained on the basis of fraud, misrepresentation, or other misconduct. Rule 60(b) confers jurisdiction on a district court to adjudicate such a motion. The district court therefore abused its discretion by declining to exercise jurisdiction over the State's rule 60(b) motion in the underlying criminal proceeding. Given the important questions and consequences at issue, we grant the State's petition, vacate the order denying the State's rule 60(b) motion, and instruct the district court to exercise jurisdiction over the matter.

      We use the term "defendant" to refer to the person arrested by the State and presented to the district court as the individual charged with the alleged offenses. That person represented to the court that he was Bela Fritz. He was tried and sentenced under that name. As explained below, infra ¶ 14 n.4, the State now believes that the person tried and sentenced in district court was Bela's brother, Aaron. The defendant apparently still claims to be Bela Fritz (but his briefing is, understandably, a little cagey on the topic of his identity). We stick with the moniker defendant to mean the corporeal entity who sat through trial and was sent to prison to serve the sentence.

      A pretrial screening report prepared by Criminal Justice Services, however, referred to the defendant as Stephen Larry Fritz.

      Section 402 provides that "the court may enter a judgment of conviction for the next lower degree of offense and impose sentence accordingly" if "the court, having regard to the nature and circumstances of the offense ... and to the history and character of the defendant," and after allowing "any victims ... and the prosecuting attorney an opportunity to be heard, concludes it would be unduly harsh to record the conviction as being for that degree of offense established by statute." Utah Code § 76-3-402(1).

      In its petition, the State includes additional allegations regarding the defendant's identity. The State claims the defendant is Bela Fritz's brother, Aaron. According to the State, Aaron Fritz was arrested in the underlying case while on probation in another matter. Comparing Aaron Fritz's alleged criminal history with Bela's, the State argues that the defendant would have been charged differently and would have received a different plea bargain offer, had his identity been known. The State also posits that the defendant would not have received a reduction at sentencing under Utah Code section 76-3-402. The State thus claims the defendant was treated differently-and more favorably-based on his alleged assumption of Bela Fritz's identity.

      None of the parties to this proceeding challenge the State's use of Utah Rule of Civil Procedure 65B to seek extraordinary relief. And we agree with the State that "no other plain, speedy and adequate remedy [was] available." See Utah R. Civ. P. 65B(a). Although the State may appeal an "illegal sentence," Utah Code § 77-18a-1(3)(k), here the State challenges the proceeding as a whole, including the conviction. Cf. State v. Candedo , 2010 UT 32, ¶ 9, 232 P.3d 1008 (interpreting "illegal sentence" as the term appeared in Utah Rule of Criminal Procedure 22(e), and noting that a challenge to an illegal sentence may not "be used as a veiled attempt to challenge the underlying conviction"); State v. Brooks , 908 P.2d 856, 860 (Utah 1995) (interpreting "illegal sentence" as the term appeared in Utah Rule of Criminal Procedure 22(e), and noting that "[a] request to correct an illegal sentence ... presupposes a valid conviction"). The State may also "seek discretionary appellate review of any interlocutory order entered before jeopardy attaches." Utah Code § 77-18a-1(4). But the denial of the State's rule 60(b) motion was not interlocutory. See Migliore v. Livingston Fin., LLC , 2015 UT 9, ¶ 17, 347 P.3d 394 ("It is well settled that an order denying relief pursuant to [r]ule 60(b) is generally a final appealable order." (quoting Mascaro v. Davis , 741 P.2d 938, 946 (Utah 1987) ) ). Whether the denial was also entered after jeopardy attached is not a question to which the parties have paid much attention, and we leave its resolution for another day.

      Other states have reached this same conclusion in similar circumstances. See, e.g. , People v. Martinez , 350 P.3d 986, 992-94 (Colo. App. 2015) (construing the prosecution's argument as a motion to reconsider under rule 60(b), noting that although "[t]here is no applicable rule of criminal procedure permitting a trial court to reconsider an order dismissing a criminal case," the state's rules of criminal procedure "permit[ ] a court to look to the rules of civil procedure in the absence of an applicable criminal rule"); State v. Brown , No. 13 MA 172, 2014 WL 7475170, at *12, *14 (Ohio Ct. App. Dec. 29, 2014) (concluding that "a Civ.[ ]R. 60(B) motion to vacate a dismissal order can be filed by the state via Crim. R. 57(B)," which provides that a court "shall look to the rules of civil procedure and to the applicable law if no rule of criminal procedure exists" (citation omitted) ).

      This may be the first time we have considered whether the State can move for relief under rule 60(b) in a criminal matter. But criminal defendants have previously employed the rule when seeking postconviction relief. In Menzies v. Galetka , a death row inmate moved under rule 60(b) to overturn the dismissal of his petition for postconviction relief. 2006 UT 81, ¶ 2, 150 P.3d 480. We concluded that he was "entitled to rule 60(b)(6) relief due to the extraordinary circumstances of [his attorney's] ineffective assistance of counsel and grossly negligent representation." Id. ¶ 118. In Kell , we affirmed the denial of the defendant's rule 60(b) motion seeking relief from the dismissal of his petition for postconviction relief, but as noted above, we remarked that "the PCRA does not fully extinguish the relevance of rule 60(b)." Kell , 2012 UT 25, ¶¶ 1, 25, 285 P.3d 1133.

      We note an interesting question that we do not reach today. A rule 60(b)(3) motion must be brought within ninety days of judgment. See Utah R. Civ . P. 60(c) (requiring that any motion brought under subsections (b)(1), (2), or (3) "be filed within a reasonable time and ... not more than 90 days after entry of the judgment or order" at issue). And here, the State discovered the alleged fraud and brought its motion within that period.
      Nothing we say today should be interpreted as a concession that the State is without a mechanism to address a defendant's misrepresentation if the State discovers it more than three months after the entry of judgment. We have acknowledged that rule 60"does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding or to set aside a judgment for fraud upon the court." Utah R. Civ . P. 60(d).
      Although we need not reach the question, we note that we, as well as others, have acknowledged that courts have inherent authority to set aside judgments obtained through fraud on the court. See, e.g. , Weber Cty. v. Chambers , 2001 UT 53, ¶ 7, 28 P.3d 694 ("[A]ppellate courts certainly have within their purview the right to raise, sua sponte, the issue of fraud on the court ...."); State v. Schreiber , 121 Utah 653, 245 P.2d 222, 223 (1952) (noting that a district court has authority to vacate an order or judgment procured by fraud); see also, e.g. , United States v. Bishop , 774 F.2d 771, 774 (7th Cir. 1985) (concluding that the district court properly exercised its inherent authority to correct an order modifying a sentence, which had been obtained due to the defendant's misrepresentation); Goene v. State , 577 So.2d 1306, 1309 (Fla. 1991) (addressing double jeopardy issues related to a defendant's "fraud upon ... the court by falsely stating his identity" and stating that "orders, judgments, or decrees which are the product of fraud, deceit, or collusion may be vacated, modified, opened or otherwise acted upon at any time" (emphasis omitted) (citation omitted) (internal quotation marks omitted) ); People v. Ryan , 168 Misc.2d 961, 640 N.Y.S.2d 978, 982, 984 (Sup. Ct. 1996) (concluding that the district court had inherent authority to vacate an illegal sentence obtained through the defendant's "fraud and misrepresentation of his name and past criminal record"); State v. Foster , 484 N.W.2d 113, 116-17 (N.D. 1992) (concluding, when addressing a defendant sentenced under an assumed name, that the district court had inherent authority to correct judgments obtained through fraud).

      We recognize the potential dissonance in the State's position that every aspect of the criminal proceeding was disrupted by the defendant's alleged misrepresentation of his identity, yet entry of the sentence against Bela Fritz was sufficient to wrest the district court of subject matter jurisdiction. This potential dissonance is sharpest with respect to the State's alternative claim that the conviction, sentence, and judgment are void under subsection (b)(4). See Utah R. Civ. P. 60(b)(4). We do not reach the issue because rule 60(b) conferred jurisdiction on the district court to consider the State's motion. But we note our case law suggesting that a void sentence would not divest a district court of jurisdiction. See State v. Lim , 79 Utah 68, 7 P.2d 825 (1932).

      The State advocated in its rule 60(b) motion for a misplea but has not highlighted that request in its arguments to this court. We do not substantively address the misplea question, but instruct the district court to exercise jurisdiction over the State's rule 60(b) motion, including the State's arguments seeking a misplea.


author: Justice Himonas, opinion of the Court:

text:
    Brandon Lee SANDOVAL, Appellant, v. STATE of Utah, Appellee.
    No. 20150617
    Supreme Court of Utah.
    Filed April 3, 2019
    On Direct Appeal
   Justice Himonas, opinion of the Court:

INTRODUCTION

¶1 Brandon Sandoval appeals the district court's summary judgment decision denying his petition for relief under Utah Code section 78B-9-101, et seq. , the Post-Conviction Remedies Act (PCRA). Having failed below to offer a viable theory of relief under the language of the PCRA, Sandoval attempts to launch an as-applied challenge to the PCRA and rule 4-206 of the Utah Code of Judicial Administration, arguing that the destruction of evidence in accordance with rule 4-206 violated his due process rights under the Utah Constitution. Because Sandoval did not properly present this standalone due process argument to the district court and, irrespective of that procedural defect, failed to satisfy his burden of persuasion on appeal, we affirm the grant of summary judgment.

BACKGROUND

¶2 Sandoval was arrested and charged with aggravated burglary, theft, and criminal mischief in 2006. A jury convicted him on all counts in 2008. The court of appeals affirmed his conviction in 2010, and this court denied his petition for writ of certiorari on June 11, 2011. No physical evidence linked Sandoval to the scene of the burglary. But a beanie, a bandana, and a duffle bag filled with stolen property were collected from a yard near the scene of the burglary. A bullet shell casing was also found at the scene. None of these items were ever tested for DNA.

¶3 Rule 4-206(4)(B) of the Utah Code of Judicial Administration directs court personnel to dispose of valueless property from exhibits in evidence "[a]fter three months have expired from final disposition of the case." Nearly two years after Sandoval's conviction was upheld, on May 9, 2012, court personnel disposed of all physical evidence from his case, including a "black knit beanie cap, [a] blue and white bandana, and [a bullet] shell casing, all of which were likely touched by the perpetrators of the burglary." The Rocky Mountain Innocence Center (RMIC) began investigating Sandoval's case in the fall of 2012. On October 24, 2012, RMIC was informed that the evidence used as trial exhibits had not been returned by the court. RMIC was notified by the court regarding the disposal of evidence when it received the actual certificate of destruction on November 2, 2012.

¶4 One year later, on October 30, 2013, Sandoval filed a petition for post-conviction relief under rule 65C of the Utah Rules of Civil Procedure. Sandoval made a number of arguments in the district court. Sandoval primarily argued that he is entitled to relief under Utah Code section 78B-9-104. He argued that his conviction had been obtained in violation of the United States Constitution and Utah Constitution because of: (1) the State's failure to perform DNA testing on the evidence; (2) the failure to preserve the evidence such that Sandoval could avail himself of post-conviction DNA testing; and (3) the State's failure to investigate another suspect. He also argued that he received ineffective assistance of counsel at trial and on his direct appeal. Additionally, Sandoval argued that he is entitled to relief-independent of section 104-because the State violated his due process rights under the Utah Constitution when it disposed of the evidence and deprived him of the ability to seek post-conviction DNA testing, as provided in Utah Code section 78B-9-301. Both parties moved for summary judgment. The district court granted the State's motion and Sandoval appealed to this court.

¶5 On appeal, Sandoval has abandoned his claims seeking relief under section 104 of the PCRA. Instead, Sandoval focuses his appeal solely on whether his due process rights under the Utah Constitution were violated when the evidence was destroyed and he became unable to seek post-conviction DNA testing under section 301 of the PCRA.

¶6 We exercise jurisdiction under Utah Code section 78A-3-102(3)(j).

STANDARD OF REVIEW

¶7 We review for correctness constitutional and statutory interpretation issues, granting no deference to the district court. Schroeder v. Utah Attorney Gen.'s Office , 2015 UT 77, ¶ 16, 358 P.3d 1075 ; Harvey v. Cedar Hills City , 2010 UT 12, ¶ 10, 227 P.3d 256. Similarly, we review the district "court's 'legal conclusions and ultimate grant or denial of summary judgment' for correctness and view[ ] 'the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.' " Orvis v. Johnson , 2008 UT 2, ¶ 6, 177 P.3d 600 (citations omitted).

ANALYSIS

¶8 Sandoval has failed to articulate any relevant section of the PCRA under which he can seek relief. While his original petition alleged the potential for relief under section 104, he has dropped these claims on appeal. He does not present us with any constitutional or statutory violations of his rights that occurred at trial and he has dropped his claim for ineffective assistance of counsel. Accordingly, the PCRA itself offers him no relief.

¶9 Finding no relief in the PCRA, Sandoval presents a standalone state due process argument claiming that, by following rule 4-206(4) of the Utah Rules of Judicial Administration and disposing of the evidence two years after the final disposition of his case, the State violated his state due process rights by stripping him of the ability to exercise the right to post-conviction DNA testing created by section 301 of the PCRA. He additionally asserts that the lack of direct notice of the pending destruction of the evidence violated his due process rights. We do not pass on these due process claims for a number of reasons. First, these claims are improperly before us, having been shoehorned into Sandoval's rule 65C petition. Second, even if these claims were procedurally proper, Sandoval has not carried his burden in persuading us that (1) such a due process right exists and (2) if that right exists, the destruction of the evidence violated that right. We therefore affirm the district court's grant of summary judgment.

Section 104 of the PCRA

¶10 Once all legal remedies-including a direct appeal-have been exhausted, the PCRA is the sole statutory remedy for any person who challenges a conviction or sentence for a criminal offense. UTAH CODE § 78B-9-102. Rule 65C provides the procedural vessel by which a petition seeking post-conviction relief under the PCRA may be filed. Accordingly, a proper rule 65C petition must seek some form of relief under the PCRA. On appeal, Sandoval has abandoned all claims seeking relief under the PCRA. The reason for this is simple: the PCRA itself offers no remedy to Sandoval. As Sandoval's counsel candidly admitted at oral argument, "[t]he State is correct in noting that Mr. Sandoval's claim does not fall under any provision of the PCRA."

¶11 The relevant portions of section 104 require Sandoval to show either that his conviction was obtained or his sentence was imposed in the face of some constitutional or statutory violation or that he received ineffective assistance of counsel. See supra ¶ 4 n.3. Sandoval cannot demonstrate any such violation. He has dropped all appeals that pertain to any supposed due process violations at or before trial or during sentencing-as enumerated in subsections 104(1)(a)-(c)-and no longer asserts ineffectiveness of counsel under subsection 104(1)(d). The relief he now seeks is no longer rooted in section 104. Instead, he seeks relief on the basis that evidence was destroyed after his conviction was obtained and his sentence was imposed-a basis on which the PCRA offers no statutory remedy. See UTAH CODE § 78B-9-104(1) (enumerating the grounds for relief under the PCRA). In other words, Sandoval no longer asserts any claim for relief that would properly be brought in a rule 65C petition.

Sandoval's as-applied challenge

¶12 No doubt because Sandoval recognizes that the PCRA itself offers him no remedy, on appeal he has staged an as-applied challenge under section 301 of the PCRA, claiming that destruction of the evidence in accordance with rule 4-206 violated his due process rights under the Utah Constitution.

Section 301 of the PCRA provides the right to a convicted felon to "file a petition for postconviction DNA testing in the trial court that entered the judgment of conviction if the person asserts factual innocence under oath" and the petition meets several statutory requirements. UTAH CODE § 78B-9-301(2) Such an avowal, if discovered to be fallacious, would risk a perjury charge and could harm Sandoval's chances at parole and release. Sandoval argues that he has a substantive right under the Utah Constitution to avail himself of post-conviction DNA testing under section 301 and that this right was violated when the evidence was destroyed without actual notice nearly two years after the final disposition of his case. This claim fails for a number of reasons.

¶13 As an initial matter, a rule 65C petition is an improper procedural vessel for bringing standalone due process claims. Because rule 65C provides the procedure for filing a petition for post-conviction relief under the PCRA, a proper rule 65C petition must seek relief under specific provisions of the PCRA. While Sandoval presented this type of claim below, his appeal has abandoned any such claims. See supra ¶ 10. Sandoval's standalone due process claim is therefore improperly before us. However, even if we allowed Sandoval to shift the focus of his rule 65C petition to a due process inquiry separated from the statutory rights granted by the PCRA, he has failed to carry his burden here in demonstrating a due process violation under the Utah Constitution.

¶14 Relying on a federal standard, District Attorney's Office for Third Judicial District v. Osborne , 557 U.S. 52, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009), Sandoval asserts that by enacting section 301 and providing procedures for post-conviction DNA testing the State created a substantive right to post-conviction DNA testing. Sandoval then asserts that this right to DNA testing creates a "liberty interest" in any procedures that are "essential to the realization" of the right created by the PCRA and that the state-created right to DNA testing begets "yet other rights to procedures essential to the realization of the parent right." Osborne , 557 U.S. at 68, 129 S.Ct. 2308. Therefore he claims that, by following rule 4-206(4) and disposing of post-conviction evidence, the State violated his state due process rights by stripping him of the ability to exercise the right to DNA testing created by the PCRA. Sandoval has failed to do the requisite leg-work to persuade this court that (1) such a right exists under the Utah Constitution, and (2) even if such a right existed, the destruction of the evidence violated that right.

¶15 We have stated that "[t]here will be times when the legislature enacts laws that confer substantive rights ... [and sometimes] the procedures attached to the substantive right cannot be stripped away without leaving the right or duty created meaningless." State v. Drej , 2010 UT 35, ¶ 31, 233 P.3d 476. But Sandoval has not presented us with focused briefing on this issue. Instead, Sandoval simply argues that Osborne , a federal due process case, mandates the recognition of specific rights under the Utah Constitution. After citing Osborne for the proposition that such rights exists-an unclear proposition -he turns to the Tiedemann standard, a state due process case discussing pre-trial destruction of evidence, for application of that supposed right with no explanation as to why it should apply in the post-trial context. This is not enough.

¶16 Sandoval cannot establish state constitutional rights to post-conviction DNA testing-and any procedural rights related thereto-by citing to a federal case. Instead, Sandoval would have to demonstrate that the due process clause of the Utah Constitution provides such rights. Such an argument would likely involve a thorough examination of Utah's constitutional history in an attempt to show that the original public meaning of the due process clause considered and encompassed such a right. Sandoval has not made that argument. Accordingly, we decline to comment on whether state due process dictates that the PCRA, by providing the right to DNA testing, creates a substantive right to post-conviction evidence retention, noticing, or any procedures related thereto.

¶17 Furthermore, even if such a right existed, Sandoval has not carried his burden in explaining why the destruction of the evidence violated that right. Sandoval argues that his supposed due process right was violated when the State destroyed the evidence two years after the final disposition of the case without giving Sandoval actual notice. But Sandoval fails to adequately explain why he was entitled to actual notice or why two years was an insufficient amount of time for him to exercise his statutory right to post-conviction DNA testing. Although Sandoval was not given actual notice of the destruction of the evidence, he did have constructive notice-in the form of rule 4-206-that the evidence would only be retained for three months. Sandoval does not explain why this constructive notice was insufficient, instead opting to squeeze his notice arguments into the Tiedemann framework-which he has failed to demonstrate is the appropriate framework in these cases. Additionally, Sandoval fails to argue that the two years between the final disposition of his case and the destruction of the evidence was an insufficient amount of time for him to avail himself of the DNA testing statute for purposes of due process. For these reasons, Sandoval's standalone due process claim fails.

Rule 4-206

¶18 Because we foresee a potential due process challenge in a future case we now wish to comment on rule 4-206. Subsection (4) prescribes the procedure for disposing of exhibits used in evidence after final disposition of a case. The three-month time limit functionally imposes a temporal bar on the rights afforded to the convicted by the PCRA because the preservation of their evidence is not guaranteed beyond three months. Additionally, there is no formal notice sent to the convicted aside from the publication of the rule. We note that the Judicial Council may wish to explore whether the three-month time limit imposed by the rule so limits the rights granted by the PCRA as to implicate due process concerns. Additionally, the Council may wish to examine the lack of formal notice directly to the convicted. We do not comment here on the due process implications of the time period imposed by rule 4-206 or the form of notice required by the Utah Constitution.

CONCLUSION

¶19 A convicted felon may seek to have their conviction modified or vacated through the rights and remedies provided by the PCRA. Sandoval has failed to comply with any relevant section of the PCRA that could offer him relief. Additionally, he has failed to properly bring a case that demonstrates that the disposal of evidence years after the final disposition of his trial violated his state due process rights. As a consequence, we do not here decide what, if any, procedures are called for by the state due process clause regarding the right to post-conviction DNA testing. We affirm the district court.

Associate Chief Justice Lee filed a concurring opinion.

Associate Chief Justice Lee, concurring in part and concurring in the judgment:

¶20 The case before us on appeal was filed in the district court under the Postconviction Remedies Act (PCRA), Utah Code section 104. Appropriately so, as Brandon Sandoval had previously challenged his conviction on direct appeal, and the PCRA provides "the sole 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 § 78B-9-102(1). This statutory remedy "replaces all prior remedies for review, including extraordinary or common law writs." Id. The PCRA "does not apply" to "(a) habeas corpus petitions that do not challenge a conviction or sentence for a criminal offense; (b) motions to correct a sentence pursuant to Rule 22(e), Utah Rules of Criminal Procedure ; or (c) actions taken by the Board of Pardons and Parole." Id. § 78B-9-102(2). But except for these excluded proceedings, the PCRA forecloses any claim for relief not allowed by its terms. See id. § 78B-9-102(1). Such preclusion is "[t]he whole point of the sole remedy provision" of the PCRA. Meza v. State , 2015 UT 70, ¶ 43, 359 P.3d 592 (Lee, A.C.J., concurring in part and concurring in the judgment).

¶21 The majority gives some effect to this provision. In affirming the dismissal of the claims presented on appeal the majority notes that "Sandoval has abandoned all claims seeking relief under the PCRA" and correctly concludes that "[t]he relief he now seeks is [not] rooted in section 104." Supra ¶¶ 10, 11. Sandoval's remaining claim asserts that his right to due process was violated "when the evidence was destroyed without actual notice nearly two years after the final disposition of [this] case." Supra ¶ 12. Because this claim seeks relief on "a basis on which the PCRA offers no statutory remedy," the court rightly holds that this claim is foreclosed by the sole remedy provision of the PCRA and is thus not properly before us on this appeal. Supra ¶¶ 11, 13 (holding that "Sandoval's standalone due process claim is therefore improperly before us").

¶22 The majority fails to carry this conclusion to its logical end, however. Despite holding that Sandoval's claim is foreclosed by the PCRA, the majority nonetheless proceeds to opine on the merits of an asserted due process right to postconviction DNA testing. See supra ¶¶ 14-17. I write separately because I respectfully disagree with this portion of the court's opinion. By rejecting Sandoval's due process claim the majority fails to give effect to the sole remedy provision of the PCRA. Importantly, the court also runs afoul of the doctrine of constitutional avoidance.

¶23 The doctrine of constitutional avoidance is an important "principle of judicial restraint." Utah Stream Access Coal. v. VR Acquisitions LLC , 2019 UT 7, ¶ 55, --- P.3d ---- (concluding that disposition of constitutional claim was necessary because no non-constitutional claim was asserted). When a case may be decided on either constitutional or non-constitutional grounds, the doctrine of avoidance directs us to resolve the case on non-constitutional grounds.

¶24 The majority overrides this doctrine. Despite its conclusion that Sandoval's claims are statutorily barred, the court rejects Sandoval's claims on the alternative ground that they fail on their merits. It states that "even if we allowed Sandoval to shift the focus of his rule 65C petition to a due process inquiry separated from the statutory rights granted by the PCRA, he has failed to carry his burden here in demonstrating a due process violation under the Utah Constitution." Supra ¶ 13. In so doing the court proceeds to analyze the due process questions presented in this case-outlining a basis for a party to "demonstrate that the due process clause of the Utah Constitution" may establish a right to post-conviction DNA testing, supra ¶ 16, and adopting a standard for judging whether the destruction of evidence would "violate[ ] that right" assuming "such a right existed." Supra ¶ 17.

¶25 We should not be opining on matters of state constitutional law in a case in which the constitutional claim is foreclosed by statute. Doing so ignores the sole remedy provision of the PCRA and fails to honor the doctrine of constitutional avoidance.

      As the case before us is not the direct criminal appeal and focuses on events that occurred after the trial, we only briefly highlight those facts from the underlying trial that are relevant to the disposition of this matter.

      Rule 4-206(2)(E) instructs the court clerk to "release ... all exhibits ... includ[ing] ... firearms [and] ammunition" to the party which offered them at trial. We acknowledge that the bullet shell casing may qualify as ammunition and therefore should have been returned to the sponsoring party. And its destruction may , therefore, theoretically implicate due process protections. However, we do not explore this point as Sandoval has not carried his burden with regard to the due process claim.

      Section 104 provides myriad circumstances under which a court may vacate or modify a conviction, including the following in relevant part:
      [A] person who has been convicted and sentenced for a criminal offense may file an action in the district court of original jurisdiction for post-conviction relief to vacate or modify the conviction or sentence upon the following grounds:
      (a) the conviction was obtained or the sentence was imposed in violation of the United States Constitution or Utah Constitution;
      (b) the conviction was obtained or the sentence was imposed under a statute that is in violation of the United States Constitution or Utah Constitution, or the conduct for which the petitioner was prosecuted is constitutionally protected;
      (c) the sentence was imposed or probation was revoked in violation of the controlling statutory provisions;
      (d) the petitioner had ineffective assistance of counsel in violation of the United States Constitution or Utah Constitution
      Utah Code § 78B-9-104(1)(a)-(d).

      Sandoval has never actually filed a petition for post-conviction DNA testing under section 301 and now cannot. Subsection 301(2)(a) requires the evidence to be "still in existence and ... in a condition that allows DNA testing to be conducted." Utah Code § 78B-9-301(2)(a) There is no evidence in existence to test. The evidence in question existed at the time of trial and was disposed of years later pursuant to Utah Code of Judicial Administration Rule 4-206. Additionally, Sandoval has never asserted his innocence under oath and so has not complied with the requirements of subsection 301(2). Because of his failure (and now inability) to comply with these clear statutory requirements, Sandoval cannot avail himself of postconviction DNA testing under section 301.

      The federal postconviction "right[s] to due process [are] not parallel to [ ] trial right[s], but rather must be analyzed in light of the fact that [the convicted] has already been found guilty at a fair trial, and has only a limited interest in postconviction relief." Osborne , 557 U.S. at 69, 129 S.Ct. 2308. We decline to explore the contours of any state due process rights unnecessarily and have not been asked to pontificate on federal due process guarantees.

      Sandoval asserts that State v. Tiedemann , 2007 UT 49, 162 P.3d 1106, provides the appropriate framework for determining whether his due process rights under the Utah Constitution were violated when the clerk destroyed evidence after the final disposition of his case. Tiedemann entails a lengthy discussion about the rights of criminal defendants with respect to any information possessed by the State which could aid in their defense at trial. In other words, Tiedemann addresses the pre-trial destruction of evidence. Sandoval has not demonstrated that Tiedemann should also apply in the post-trial context. And nothing in that opinion mentions the rights of appellants who are already convicted and Sandoval has not carried his burden in persuading us that its reasoning should extend to post-trial destruction of evidence.

      The concurrence criticizes us for "opining on matters of state constitutional law." Infra ¶ 25. But we are expressly not opining on the merits of Sandoval's attempt to articulate a state due process claim, which we have gone out of our way to stress; rather, we seek only to emphasize the problems with how Sandoval elected to brief this matter.

      To be clear, we do not mean to imply by "standalone" that Sandoval's alleged state due process claim is not grounded in the PCRA. As Sandoval has argued, it is section 301 of the PCRA that allegedly creates the liberty interest that may give rise to a state due process claim. As such, the "sole remedy" provision of section 102 of the PCRA, which the concurrence faults us for not invoking with respect to Sandoval's state due process claim, simply has no logical play. To say otherwise is to say that the PCRA creates a constitutional right that the PCRA itself forecloses: The metaphor of the serpent devouring its own tail is an apt one.

      We have already noted the potential argument available to Sandoval related to rule 4-206(2)(E) but decline to explore what constitutes "ammunition" for the purposes of this rule or determining if a procedural violation occurred in the disposal of trial exhibits.

      The majority seeks to avoid this problem by framing its constitutional analysis as a response to an "as-applied" challenge to the constitutionality of the PCRA. See supra ¶ 12. Such a challenge admittedly would not-and could not-be foreclosed by the PCRA. But there is no as-applied challenge before us in this case. No such challenge was leveled in the district court, and none was presented in the briefs on appeal.
      An as-applied challenge to the PCRA would identify a basis in the constitution for foreclosing the legislature's authority to limit the grounds for postconviction review to those set forth by the legislature. Such challenges have been raised in recent cases before this court. In Patterson v. State (No. 20180108) for example, the petitioner asserts that the sole remedy provision of the PCRA is unconstitutional to the extent it forecloses the authority of the Utah courts to issue "extraordinary writs" under article VIII of the Utah Constitution. Brief for Petitioner at 34, Patterson v. State (No. 20180108). Sandoval would be free to raise this kind of challenge to the PCRA. He is entitled to show that the PCRA exceeds the legislature's constitutional authority as applied to his case. But he has not attempted to do so-not in the district court, and not in the briefs on appeal.
      Instead of raising an as-applied challenge to the constitutionality of the PCRA, Sandoval has simply asserted that he has a meritorious constitutional claim that is foreclosed by the PCRA. See supra ¶ 11 (noting that Sandoval "seeks relief on the basis that evidence was destroyed after his conviction was obtained and his sentence was imposed-a basis on which the PCRA offers no remedy"). But that is not an as-applied challenge to the constitutionality of the PCRA. It is the assertion of a purportedly meritorious constitutional claim. That is not the same thing. The constitutionality of the PCRA as applied to a particular claim cannot turn on whether the underlying claim is itself meritorious. (That would result in an odd scheme in which the threshold right to assert a claim would depend on whether the claim ultimately succeeds on its merits. I know of no constitutional principle that works like that; Sandoval certainly has not attempted to identify one.) It must instead depend on whether the legislature exceeded its constitutional authority in acting to foreclose a particular claim. Sandoval has raised no such as-applied challenge. And this accordingly cannot be a basis for overriding the doctrine of constitutional avoidance.

      See State v. DeJesus , 2017 UT 22, ¶ 33, 395 P.3d 111 ("[C]ourts will not pass upon a constitutional question ... if there is also present some other ground upon which the case may be disposed of." (internal quotation marks omitted) (quoting Slack v. McDaniel , 529 U.S. 473, 485, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) )); State v. Wood , 648 P.2d 71, 82 (Utah 1982) (stating the "fundamental rule" that the courts should "avoid addressing a constitutional issue unless required to do so").

      The majority seeks to avoid this problem by insisting that it is not opining on the merits of Sandoval's due process claim, but instead just "emphasiz[ing] the problems with how Sandoval elected to brief this matter." Supra ¶ 17 n.8. That is a fair characterization of how the court frames some of its grounds for rejecting Sandoval's claim. But the court also speaks in some detail about both federal and state cases of relevance to the due process claim propounded by Sandoval. And it ultimately concludes that "Sandoval's standalone due process claim fails." Supra ¶ 17. This is constitutional analysis set forth in a section of the opinion that is framed as an alternative ground for the court's judgment. And it flows from a premise that is mistaken-that Sandoval has somehow asserted an as-applied challenge to the constitutionality of the PCRA. See supra ¶ 22 n.10.

      The majority seeks to distance itself from the PCRA's sole remedy provision with the assertion that it has "no logical play" in a case in which the alleged right to DNA testing is itself rooted in the PCRA. See supra ¶ 15 n.7. But this misunderstands the nature of Sandoval's claim. Sandoval seeks to establish a constitutional (not a statutory) right to postconviction DNA testing. Sandoval has pointed to statutory provisions (in the PCRA) that recognize a right to DNA testing as evidence of the constitutional right that he asserts. But he has not asserted that the PCRA establishes a right to the DNA testing he seeks. Instead he has asked us to establish a new constitutional right that is not prescribed by statute. And for that reason we cannot dismiss the applicability of the sole remedy provision on the ground that "otherwise" the PCRA would be viewed as "creat[ing] a constitutional right that the PCRA itself forecloses." Supra ¶ 17 n.8.