2017 UT App 217

THE UTAH COURT OF APPEALS

NICHOLAS J. LEGER,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20150723-CA

Filed November 24, 2017

Fourth District Court, Heber Department

The Honorable Derek P. Pullan

No. 130500137

Nicholas J. Leger, Appellant Pro Se

Sean D. Reyes and Mark C. Field, Attorneys

for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN

concurred.

MORTENSEN, Judge:

¶1 After Victim accused Nicholas J. Leger of beating, 

strangling, and raping her, Leger pled guilty to attempted 

aggravated sexual assault. Five years later, Leger petitioned for 

post-conviction relief, which the district court denied. Because 

we agree with the district court that the claims made in the 

petition were either time-barred or meritless, we affirm the 

court’s denial of the petition.

BACKGROUND

¶2 In November of 2007, Victim and Leger walked into a 

grocery store to buy cigarettes. Victim’s face was red, bruised, 
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and swollen; her lip was cut and swollen; and she had red marks 

on her throat. When Leger left Victim alone at the customer 

service counter, Victim passed a note, asking an employee to call 

the police. The employee complied and led Victim to a secure 

room, but not before Leger saw them and gave chase. Leger 

failed to reach Victim before she made it into the room, and he 

fled the store.

¶3 When the police arrived, Victim was crying, upset, and 

“nearly hyperventilating.” She reported that before coming to 

the store, Leger had “beat, strangled, bit, spit on, screamed 

obscenities at, threatened to kill, sexually assaulted, and 

ultimately raped” her. Police found Leger hiding at a friend’s 

house. He maintained that he had not raped Victim but had 

instead had “mad sex” with her. According to Leger, the marks 

on Victim’s neck were the result of consensual strangulation 

during sex. Victim disputed this, and at a preliminary hearing 

she testified that her relationship with Leger never involved 

consensual violent sexual behavior.

¶4 As a result of a plea bargain, Leger pled guilty to 

attempted aggravated sexual abuse in August of 2008. Shortly 

thereafter, he filed a pro se motion to withdraw his plea, which 

motion he abandoned at the sentencing hearing in October of 

that same year. Leger was sentenced to a prison term of three 

years to life. Leger did not appeal.

¶5 In November of 2013, Leger filed a petition for postconviction relief; he claimed that there was newly discovered 

evidence in his case, his plea was not voluntary, and his trial 

counsel’s performance had been deficient. The State filed a 

motion for summary judgment on the grounds that Leger’s 

claims were time-barred or, alternatively, failed as a matter of 

law. The district court agreed that all but one of Leger’s claims 

were untimely—because Leger was aware or should have been 

aware of the facts underlying the claims within one year after his 

criminal case became final—and granted the State’s motion in 

part. For the one remaining claim, a claim of ineffective 
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20150723-CA 3 2017 UT App 217

assistance of counsel, the district court denied the summary 

judgment motion and set an evidentiary hearing for the issue.

¶6 At the evidentiary hearing, the district court heard 

testimony from trial counsel and Leger. The focus of the hearing 

was Leger’s claim that his trial counsel performed deficiently 

when he failed to retain a forensic nurse to review Victim’s 

injuries. In Leger’s view, a forensic nurse would have been able 

to show that Victim’s injuries were caused “3 to 5 days earlier” 

than the events in question. Trial counsel testified that Leger 

never mentioned to him nor gave him reason to believe that 

Victim’s injuries were old. And because Victim’s injuries “were 

entirely consistent with the consensual sex that the defense 

intended to float at trial”—that is, a consensual strangulation 

defense—trial counsel determined that “hiring a forensic nurse 

to examine the injuries was not necessary.” This defense was 

consistent with Leger’s statements to police and trial counsel. 

The district court found that trial counsel performed effectively

and that hiring a forensic nurse to testify that Victim’s injuries 

were old “would have been inconsistent with and detrimental to 

Leger’s defense.”1 Accordingly, the district court denied Leger’s 

petition for post-conviction relief. Leger now appeals.

ISSUES AND STANDARDS OF REVIEW

¶7 Leger argues that the district court erroneously granted 

summary judgment in favor of the State on his petition for postconviction relief. The district court’s errors, he contends, are 

four-fold: (1) the district court erroneously concluded that 

 

1. The district court also found that even if trial counsel 

performed deficiently, Leger had not proven that he was 

prejudiced. In the district court’s view, the State’s case was 

supported by strong evidence and the court “was not persuaded 

that but for counsel’s [alleged] error in failing to retain a forensic 

nurse, Leger would have insisted on going to trial.”
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20150723-CA 4 2017 UT App 217

Leger’s challenge to the validity of his guilty plea was timebarred because he was aware of the facts supporting the 

challenge at the time he entered his plea; (2) the district court 

erroneously concluded that Leger’s claim that the State withheld 

exculpatory evidence was time-barred for the same reason;2

(3) the district court erroneously concluded that Leger’s 

ineffective-assistance claims were time-barred to the extent they 

relied on facts related to his challenge to the validity of his plea; 

and (4) the district court erroneously concluded that trial counsel

provided effective assistance despite his failure to retain a 

forensic nurse.

¶8 For Leger’s challenges to the district court’s grant of 

summary judgment, we review the court’s ruling for correctness; 

we will affirm if “the record shows that there is no genuine issue 

as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.” Menzies v. State, 2014 UT 40, ¶ 30, 

344 P.3d 581 (citation and internal quotation marks omitted). 

And for Leger’s challenge to the district court’s denial of his 

petition, “we review the post-conviction court’s legal 

conclusions for correctness and its factual findings for clear 

error.” Tillman v. State, 2005 UT 56, ¶ 14, 128 P.3d 1123.

ANALYSIS

I. Summary Judgment

¶9 The district court granted summary judgment in favor of 

the State on all but one of Leger’s claims. In doing so, the court 

determined that at the time he entered his guilty plea, Leger 

“was aware, or through the exercise of reasonable diligence 

 

2. Leger actually raises two separate issues with the court’s 

conclusions about the potentially exculpatory evidence. But 

because the issues are so closely related, we consider them 

together.
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20150723-CA 5 2017 UT App 217

should have been aware” of the evidentiary facts supporting the 

claims on which the court entered summary judgment. See Utah 

Code Ann. § 78B-9-107(2)(e) (LexisNexis Supp. 2017) (providing 

that a cause of action for post-conviction relief accrues when a 

petitioner “knew or should have known, in the exercise of 

reasonable diligence, of evidentiary facts on which the petition is 

based”). Accordingly, the court determined that those claims 

were time-barred because they were not brought “within one 

year after the cause of action” accrued—in this case within one 

year from “the last day for filing an appeal from the entry of the 

final judgment of conviction.” See id. § 78B-9-107(1), (2)(a).3

¶10 On appeal, Leger’s challenges to the grant of summary 

judgment fall into three categories: the voluntariness of his 

guilty plea, the withholding of potentially exculpatory evidence, 

and ineffective assistance of trial counsel.

A. Voluntariness

¶11 In his petition for post-conviction relief, Leger alleged that 

his plea was not voluntary. Specifically, he argued that he was 

“coerced into pleading guilty and then coerced into withdrawing 

his September 15, 2008 motion to withdraw guilty plea.” The 

 

3. While the district court mirrored the language from subsection 

(2)(e) in its recitation of undisputed facts, in its conclusions of 

law, it calculated the time for bringing Leger’s post-conviction 

petition under both that subsection and subsection (2)(a). See

Utah Code Ann. § 78B-9-107(2)(a), (e) (LexisNexis Supp. 2017).

Because the court determined that Leger “was aware at the time 

he pleaded guilty of the evidentiary facts in support of his 

challenge,” the “latest of” the possible dates for accrual would be 

the date under subsection (2)(a). See id. § 78B-9-107(2). The crux 

of Leger’s arguments on appeal is that he did not know the 

evidentiary facts supporting his challenges until much later, and 

the time for bringing his petition should be calculated from that 

later date under subsection (2)(e).
Leger v. State

20150723-CA 6 2017 UT App 217

petition did not explain exactly how Leger was so coerced, but, 

as the State points out, “Leger necessarily knew at the time he 

pleaded guilty whether he personally felt pressured into 

accepting the plea offer.” Additionally, “Leger was present at the 

change-of-plea hearing, he responded to questioning from the 

trial court, and he acknowledged that he read and understood 

the contents of the plea affidavit.” And the district court, in 

granting summary judgment on this point, seemed to 

acknowledge this. The district court listed as an undisputed fact 

that “Leger was aware, or through the exercise of reasonable 

diligence should have been aware, within a year from the time 

his criminal case became final of the evidentiary facts in support 

of his challenge to the validity of his guilty plea.”

¶12 Leger claims that the “evidentiary facts” referenced by the 

district court involved “defense counsel’s consideration of 

retaining a forensic nurse to examine the evidence of the victim’s 

injuries for possible exculpatory or impeachment evidence.” This 

is inaccurate. Those facts addressed one of Leger’s claims of 

ineffective assistance of counsel, and as to those facts, the district 

court denied the State’s motion for summary judgment and 

deemed it necessary to hold an evidentiary hearing because 

“Leger was not aware . . . that his trial counsel did not hire a 

forensic expert to examine the victim’s injuries” until May of 

2013. Discussion of trial counsel’s failure to retain a forensic 

nurse is therefore misplaced in considering whether the district 

court properly granted summary judgment on Leger’s claim that 

he was coerced into pleading guilty.

¶13 In addressing the question of voluntariness, Leger 

identifies only facts related to the district court’s grant of 

summary judgment. Those facts are entirely unrelated to 

whether Leger’s plea was voluntarily entered, and thus he has 

failed to carry his burden of persuasion on appeal. He has not 

demonstrated that there existed a dispute as to the material facts 

surrounding his claim that his plea was involuntary, nor has he 

shown that the State was not entitled to judgment as a matter of 
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20150723-CA 7 2017 UT App 217

law. We therefore affirm the district court’s grant of summary 

judgment on this claim.

B. Withheld Evidence

¶14 Leger also sought post-conviction relief on the ground 

that the State had failed to disclose exculpatory evidence. He 

argued, “In April of 2007, approximately 7 months before this 

alleged crime[,] defendant told police, who documented the 

exchange, that [Victim] liked to be choked to achieve sexual 

satisfaction. This information was not disclosed to the defense. 

This information corroborated [the] claim by defendant that 

[Victim] enjoyed being choked.” The police report in question 

stemmed from a separate domestic violence call, during which 

Victim accused Leger of putting his hands around her throat. 

Leger denied the accusation, but later, as the police were driving 

him to a friend’s house, Leger volunteered that he might have 

held Victim by the throat because she “liked to be strangled 

during sex.” The district court concluded that “Leger was aware, 

or through the exercise of reasonable diligence should have been 

aware, within a year from the time his criminal case became final 

that a police report may have existed documenting his prior 

claim that the victim liked to be [choked] during sexual 

intercourse.”

¶15 Leger argues that the district court’s conclusion was in 

error because:

First, the police report was from an 

encounter Leger had with the police in April 2007, 

which was nine months before the January 2008 

preliminary hearing. Even if Leger did remember 

he had a discussion with the police in April 2007, it 

is entirely unlikely that Leger would have 

remembered any of the details of the content in the 

conversation Leger had with the police nine 
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20150723-CA 8 2017 UT App 217

months after the fact as it related to the victim’s 

[preliminary hearing testimony].[4] . . . 

Certainly, if Leger had remembered this 

April 2007 conversation with the police, then he 

would have informed his defense counsel, who 

would in turn have requested in discovery from 

the Prosecution a copy of all the police reports 

where the police had had any encounter with 

Leger.

Thus, Leger claims, this fact was “clearly disputable.”

¶16 The State counters that because “the police report was 

based on Leger’s own statement, the post-conviction court 

reasonably concluded that Leger was, or should have been, 

aware when he pleaded guilty that in April 2007 he had 

attempted to explain away [Victim’s] prior strangulation 

allegations to police by saying that she liked to be strangled.” 

We agree.

 

4. The preliminary hearing testimony Leger references is the 

following exchange: Defense counsel asked Victim, “Do you 

remember telling the police during that interview that 

sometimes during sexual intercourse prior to that day, there 

would be choking involved between you and Mr. Leger?” Victim 

answered, “No. I stated to the officer that there may have been a 

time where he had—he had maybe had his hands on my throat, 

but never to where I was coughing . . . or passing out, or to that 

extreme, no.” Leger does not explain how this testimony affected 

his ability to remember that he had recently spoken to police 

about Victim’s alleged penchant for sexual strangulation. If 

anything, it seems that hearing Victim’s denial of this 

conversation with police would have reminded Leger of his 

prior conversation.
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20150723-CA 9 2017 UT App 217

¶17 “[T]he ‘trigger’ under section 78B-9-107(2)(e) is actual or 

imputed discovery of the evidentiary facts supporting the 

petition.” Brown v. State, 2015 UT App 254, ¶ 10, 361 P.3d 124

(citation omitted). There is perhaps no easier way for a petitioner 

to discover a certain fact than by experiencing it firsthand. For 

instance, in Sanchez v. State, 2010 UT App 247U (per curiam), the 

post-conviction petitioner argued that his trial counsel had been

ineffective for incorrectly advising him that a guilty plea would 

carry no immigration consequences. Id. para. 5. He further 

argued that he did not know this advice was incorrect until he 

applied for legal status fifteen years later. Id. But we pointed out 

that immediately following his plea, the petitioner had been 

deported. Id. Because the petitioner personally experienced 

deportation, he necessarily had to know that his plea carried 

immigration consequences—and, by extension, that his trial

counsel had advised him incorrectly—at the time he was 

deported. See id. para. 7; see also Mikkelson v. Quail Valley Realty, 

641 P.2d 124, 125–26 (Utah 1982) (explaining that a plaintiff who 

personally inspected property knew or should have known the 

correct square footage of the property); Benson v. Peace Officer 

Standards & Training Council, 2011 UT App 220, ¶ 15, 261 P.3d 

643 (noting that a police officer of twenty years who was 

employed as an investigator during a certain two-year period 

necessarily knew that he did not work as a reserve officer during 

that same time period).

¶18 Given the common-sense understanding that a petitioner 

knows or should know a fact when he personally experiences it, 

we fail to see how Leger could not have known that he once 

spoke with police about the very topic he intended to use as a 

defense to the charges against him. We agree with the State’s 

reasoning that, because “Leger does not explain why it was 

unreasonable for the court to infer from the fact that the police 

report was based on Leger’s own statements that he would 

remember what he told police,” he fails to show that the district 

court erred.
Leger v. State

20150723-CA 10 2017 UT App 217

¶19 To the extent Leger’s argument is that he did not know a 

report had been created based on his statements, he has similarly 

failed to demonstrate error by the district court. While he does 

hypothesize a rather convoluted path he would have needed to 

travel to try and procure the report, engaging in what he claims 

“would amount to a ‘fishing expedition,’” he summarily 

concludes that the hypothetical path would satisfy the statute’s 

call for the exercise of reasonable diligence, see Utah Code Ann. 

§ 78B-9-107(2)(e) (LexisNexis Supp. 2017), and would nevertheless

leave him unable to “have obtained a copy of the April 2007 

police report to learn it documented the exculpatory and 

impeachment evidence that the victim liked being choked 

during sexual intercourse prior to the November 7, 2007 

incident.” This is quite a leap. Leger essentially argues that 

although the police were responding to claims of domestic 

violence, including choking, he cannot be expected to remember 

the interaction. But even if he did remember the interaction, he

cannot be expected to know that the police would document it. 

And even if he knew the police would document the interaction, 

he cannot be expected to know that the report would include an 

accurate account of the statements he made to police. This is 

illogical. Leger knew or should have known that he spoke with 

police in April 2007. Accordingly, he knew or should have 

known that an April 2007 police report likely existed. The district 

court concluded precisely that, and in that conclusion we see no 

error.5

 

5. For the first time on appeal, Leger frames this challenge about 

the police report as a violation of Brady v. Maryland, 373 U.S. 83 

(1963), and asks that we engage in a Brady analysis. Aside from a 

brief suggestion that the prosecutor should have provided Leger 

with this report, he never argued below that the failure to do so 

amounted to a Brady violation. In fact, the only mention of the 

State’s role came in arguing that his trial counsel had been

ineffective for not requesting exculpatory evidence from the 

prosecutor. “An issue is preserved for appeal only if it was 

(continued...)
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20150723-CA 11 2017 UT App 217

C. Ineffective Assistance

¶20 The petition for post-conviction relief included several 

claims of ineffective assistance of counsel. The district court 

granted summary judgment on some of those claims, “to the 

extent they rely on the evidentiary facts related to” the claims 

discussed above. Leger argues that the district court erred in 

granting summary judgment on that basis. He rests his

argument on his belief that he demonstrated error regarding the 

voluntariness of his guilty plea and the State purportedly

withholding exculpatory evidence.6 But because we already 

concluded that Leger did not demonstrate error, we cannot agree 

that the district court was wrong in granting summary judgment 

on claims which relied on facts that were known or should have 

been known by Leger at the time he entered his guilty plea.

Those claims were time-barred.

II. Denial of Remaining Claim

¶21 Finally, Leger claims that the district court erred when it 

denied his petition for post-conviction relief after holding an 

evidentiary hearing on the one remaining claim—that trial 

 

(...continued)

presented to the trial court in such a way that the trial court had 

an opportunity to rule on it.” State v. Martinez, 2015 UT App 193, 

¶ 27, 357 P.3d 27. Because Leger did not give the district court an 

opportunity to rule on a claim of a Brady violation, we will not 

consider that claim made now for the first time on appeal.

6. Again Leger misreads the district court’s order and argues 

that there were disputed facts regarding trial counsel’s decision 

not to retain a forensic nurse. As we previously discussed, the 

district court did not grant summary judgment on this issue and 

instead held an evidentiary hearing. See supra ¶ 12. We therefore 

do not consider the forensic-nurse question in this section.
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20150723-CA 12 2017 UT App 217

counsel had provided ineffective assistance when he failed to 

retain a forensic nurse to review Victim’s injuries.

¶22 To succeed on a claim for ineffective assistance of counsel, 

Leger was required to meet the two-part test set forth in 

Strickland v. Washington, 466 U.S. 668 (1984). “First, the defendant 

must show that counsel’s performance was deficient.” Id. at 687. 

Leger claims that trial counsel was deficient for failing to 

conduct a thorough investigation into his case. “Second, the 

defendant must show that the deficient performance prejudiced 

the defense.” Id. Leger claims that he was prejudiced by pleading 

guilty when he otherwise would not have. The district court 

found that Leger had failed to sufficiently prove either prong.

¶23 Leger contends that his trial counsel performed 

deficiently by not retaining a forensic nurse. “[C]ounsel had 

contacted a forensic nurse to determine if her credentials met the 

criteria as an expert witness to examine the evidence of the 

victim’s injuries for possible exculpatory evidence for Leger’s 

case, and determined they did.” Furthermore, defense counsel 

“had funding approved for the forensic nurse.” But counsel 

nevertheless “did not retain the forensic nurse to examine the 

evidence of the victim’s injuries.” If trial counsel had retained a 

forensic nurse, Leger argues, the nurse would have been able to 

testify that Victim’s injuries “were too old to have been inflicted 

by him on the night [Victim] said she was raped.”

¶24 Assuming a forensic nurse would have so testified and 

that the testimony were believed by a jury or judge at trial, this 

testimony would have undermined Leger’s defense that the 

marks on Victim’s neck were the result of “mad sex” they had 

had earlier that day, before the police were called. It would have 

undermined Leger’s defense that Victim consented to being 

choked during that sexual encounter. And even if we were to 

assume that Leger would have changed course, knowing that 

such testimony would be presented, and that he would not have 

pursued a defense of consensual sex, such a changed course also 

would have undermined Leger’s case. He had already made 
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20150723-CA 13 2017 UT App 217

statements to the police explaining away Victim’s marks. If, at 

trial, Leger suddenly pursued a defense resting on the age of 

Victim’s injuries and, presumably, a lack of sex—consensual or 

otherwise—between Victim and Leger on the day in question, 

the State would have undoubtedly used Leger’s prior 

inconsistent statements against him.

¶25 At the evidentiary hearing before the district court, trial 

counsel testified that he believed the best defense to the charges 

Leger faced was “that the injuries were the result of 

consensual—albeit rough—sexual activity.” We cannot disagree. 

This defense was consistent with the statements Leger had made

from the start. It was consistent with Victim’s injuries. And we 

are thus unable to conclude that the decision to pursue this 

defense, rather than other potential defenses involving the hiring 

of a forensic nurse, lacked a “conceivable tactical basis.” See State 

v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (citation and internal 

quotation marks omitted). We therefore agree with the district 

court that trial counsel did not perform deficiently.7

CONCLUSION

¶26 We hold that the district court did not err either by 

partially granting the State’s motion for summary judgment or 

by denying Leger’s remaining claim for post-conviction relief. 

We accordingly affirm.

 

7. “Because we determine trial counsel acted objectively 

reasonably, we need not reach Strickland’s requirement of 

prejudice.” See State v. Alfatlawi, 2006 UT App 511, ¶ 19, 153 P.3d 

804.