This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 70

IN THE

SUPREME COURT OF THE STATE OF UTAH

SERGIO ALEJANDRO MEZA,

Petitioner-Appellant,

v.

STATE OF UTAH,

Respondent-Appellee.

No. 20130962

Filed August 14, 2015

Attorneys:

Aaron Tarin, Hakeem Ishola, Skyler K. Anderson, West Valley, 

for petitioner-appellant

Tim L. Taylor, Lance E. Bastian, Provo, for respondent-appellee

JUSTICE PARRISH announced the judgment of the Court and

authored the opinion of the Court with respect to Part I, 

in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE DURHAM, and JUDGE ROTH joined.

JUSTICE PARRISH authored an opinion with respect to Part II, in

which JUSTICE DURHAM joined.

JUDGE ROTH authored an opinion concurring in part and

concurring in the result, in which CHIEF JUSTICE DURRANT joined.

ASSOCIATE CHIEF JUSTICE LEE authored an opinion concurring in

part and concurring in the result.

Due to his retirement, JUSTICE RONALD E. NEHRING did not

participate herein; COURT OF APPEALS JUDGE STEPHEN L. ROTH sat.

JUSTICE DENO G. HIMONAS became a member of the Court on

February 13, 2015, after oral argument in this matter, and

accordingly did not participate.

JUSTICE PARRISH, opinion of the Court in part:

INTRODUCTION

¶1 Sergio Meza appeals the district court’s dismissal of his

petition under the Post-Conviction Remedies Act (PCRA) seeking to
MEZA v. STATE

Opinion of the Court in part

1

 This case is before us on the limited question of whether the

PCRA or another mechanism provides a forum for Mr. Meza. We

therefore do not opine on the merits of Mr. Meza’s claim that the

plea in abeyance prejudices him under federal immigration law.

2

withdraw his plea held in abeyance. In the alternative, Mr. Meza

invites us to invoke our extraordinary writ authority to fashion a

remedy allowing him to withdraw his plea.

¶2 We hold that the PCRA does not apply to a successfully

completed plea in abeyance and therefore affirm the district court’s

dismissal of his PCRA petition. We decline Mr. Meza’s request that

we exercise our constitutional power to fashion an alternate remedy

because he has another adequate remedy. Specifically, rule 60(b)(6)

of our rules of civil procedure provides a vehicle for Mr. Meza to

challenge his plea. He may accordingly seek to withdraw his plea

under that rule by filing a motion in the justice court where the plea

was entered.

BACKGROUND

¶3 While represented by counsel, and pursuant to a plea-inabeyance agreement, Mr. Meza pled no contest to charges of

possession and use of a controlled substance and possession of drug

paraphernalia. After Mr. Meza successfully complied with the terms

of the agreement, the justice court withdrew his plea of no contest

and dismissed the two drug charges.

¶4 Mr. Meza subsequently filed an action under the PCRA

seeking to withdraw his plea in abeyance. Mr. Meza argues that his

attorney provided ineffective assistance by advising him that the

“abeyance plea carried no immigration consequences,” when that is

not the case.1

 The State filed a motion to dismiss, arguing that the

district court could not consider Mr. Meza’s PCRA claim because the

only relief available under the PCRA is to set aside a conviction and

the justice court had not entered a conviction against Mr. Meza. Mr.

Meza responded that a plea in abeyance is a conviction under the

PCRA. In the alternative, he asserted that the district court’s

constitutional authority allowed it to fashion a mechanism to allow

him to challenge his plea.

¶5 The district court granted the State’s motion to dismiss,

concluding that the Legislature “did not intend a plea in abeyance

to function as either a judgment or a conviction.” The district court
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Opinion of the Court in part

2

 In his opening brief, Mr. Meza also argues that the PCRA

violates the equal protection provisions of the United States and

Utah constitutions. Because this issue was not raised in the district

court, we decline to address it on preservation grounds. In his reply

brief, Mr. Meza suggests for the first time that the PCRA does not

provide him due process. However, “issues raised by an appellant

in the reply brief that were not presented in the opening brief are

considered waived.” Spencer v. Utah State Bar (In re Application of

Spencer), 2012 UT 92, ¶ 25 n.36, 293 P.3d 360 (internal quotation

marks omitted). Because Mr. Meza first challenged the

constitutionality of the PCRA on due process grounds in his reply

brief, we also decline to address that issue.

3

did not address Mr. Meza’s argument that it had constitutional

authority to fashion a mechanism to allow him to challenge his plea.

Mr. Meza appealed the dismissal of his action to the court of

appeals, which certified his appeal to us. We have jurisdiction

pursuant to section 78A-3-102(3)(b) of the Utah Code.

STANDARD OF REVIEW

¶6 “We review an appeal from an order dismissing or denying

a petition for post-conviction relief for correctness without deference

to the lower court’s conclusions of law.” Winward v. State, 2012 UT

85, ¶ 6, 293 P.3d 259 (internal quotation marks omitted). “The

question of whether to grant a petition for extraordinary relief lies

within the sound discretion of this court.” Snow, Christensen &

Martineau v. Lindberg, 2013 UT 15, ¶ 22, 299 P.3d 1058.

ANALYSIS

 I. THE DISTRICT COURT PROPERLY DENIED 

MR. MEZA’S PCRA CLAIM

¶7 Mr. Meza argues that the district court erred in dismissing

his PCRA claim because it was properly brought under the PCRA.2

Specifically, Mr. Meza asserts that the PCRA provides a remedy for

any person who challenges either a conviction or a sentence and that

his plea in abeyance constitutes a conviction falling within the scope

of the PCRA. The State challenges both of these points, arguing that

entitlement to relief under the PCRA requires both a conviction and

a sentence and that Mr. Meza was neither convicted nor sentenced

because the charges against him were dismissed once he successfully

complied with the terms of his plea-in-abeyance agreement.
MEZA v. STATE

Opinion of the Court in part

4

¶8 We agree with the State. The PCRA provides a postconviction remedy to persons who have been both convicted and

sentenced for a crime. But under the plea-in-abeyance statute, no

judgment of conviction is entered pending completion of a plea-inabeyance agreement. Accordingly, Mr. Meza is not entitled to relief

under the PCRA.

A. Both a Conviction and a Sentence Are Prerequisites to Relief Under

the PCRA

¶9 Mr. Meza argues that a petitioner may be entitled to relief

under the PCRA if he has either a conviction or a sentence. In so

arguing, Mr. Meza relies on several provisions in the PCRA that

reference a conviction or sentence and points to federal court

decisions treating a plea in abeyance as a sentence or a conviction.

See, e.g., United States v. Gorman, 312 F.3d 1159, 1165–67 (10th Cir.

2002) (“Mr. Gorman’s plea in abeyance was both an adjudication of

guilt and a conviction.”). In response, the State acknowledges that

the PCRA allows a petitioner to obtain relief from either a conviction

or a sentence, but argues that the petitioner must be both convicted

and sentenced before he is entitled to relief. We agree with the State

and hold that the PCRA requires a petitioner to be both convicted

and sentenced before he is entitled to relief under the act.

¶10 When faced with a question of statutory interpretation, “our

primary goal is to effectuate the intent of the Legislature.” LeBeau v.

State, 2014 UT 39, ¶ 20, 337 P.3d 254. “The best evidence of the

Legislature’s intent is the statute’s plain language.” Id. “[W]e read

the plain language of the statute as a whole, and interpret its

provisions in harmony with other statutes in the same chapter and

related chapters.” Id. (internal quotation marks omitted).

¶11 The PCRA provides that “a person who has been convicted

and sentenced for a criminal offense may file an action . . . for postconviction relief.” UTAH CODE § 78B-9-104(1) (emphasis added).

The meaning of “and” in this context is clear—both a conviction and

a sentence are required before a petitioner may obtain PCRA relief.

In arguing to the contrary, Mr. Meza relies on sections 78B-9-102(1)

and 78B-9-104(1), which reference conviction and sentence in the

disjunctive. But these sections speak not to the prerequisites for

PCRA relief, but to the types of relief available. For example, section

102(1) explains that the PCRA is “the sole remedy for any person

who challenges a conviction or sentence.” And section 104(1)

enumerates the grounds “to vacate or modify the conviction or
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Opinion of the Court in part

5

sentence.” While these provisions specify a petitioner’s remedy for

a challenged conviction or sentence, they do not dictate the

conditions that a petitioner must satisfy before he is entitled to relief.

¶12 We are bound by the statute’s plain meaning and must give

effect to its requirements. Accordingly, we hold that the PCRA

requires that a petitioner be both convicted and sentenced before he

is entitled to relief, even though the petitioner may choose to

challenge only the conviction or the sentence.

¶13 Having concluded that both a conviction and a sentence are

required before a petitioner is entitled to any relief under the PCRA,

we next address whether Mr. Meza was convicted under the PCRA.

B. Mr. Meza’s Plea in Abeyance Was Not a Conviction 

¶14 The State argues that pleas in abeyance do not qualify as

convictions for purposes of the PCRA. Mr. Meza relies on federal

cases construing pleas in abeyance as convictions in arguing that a

plea of guilty or no contest is considered a conviction. He also

points to other Utah statutes that construe a plea of guilty or no

contest as a conviction. Considering the plain language of the pleain-abeyance statute, we do not find these sources persuasive. Except

in those cases where a statute specifically provides otherwise, a

successfully completed plea in abeyance is not a conviction and

cannot be treated as such.

¶15 The plea-in-abeyance statute defines a plea in abeyance as

“an order by a court, . . . accepting a plea of guilty or of no contest

from the defendant.” Id. § 77-2a-1(1). A court may hold a plea in

abeyance “[a]t any time after acceptance of a plea of guilty or no

contest but prior to entry of judgment of conviction and imposition

of sentence.” Id. § 77-2a-2(1). While the plea is held in abeyance, the

court will “not enter judgment of conviction against the defendant

nor impose sentence upon the defendant.” Id. And if a defendant

successfully completes the conditions of the plea-in-abeyance

agreement, the court may either “reduce the degree of the offense

and enter judgment of conviction and impose sentence for a lower

degree of offense[] or . . . allow withdrawal of a defendant’s plea and

order the dismissal of the case.” Id. § 77-2a-3(2).

¶16 In Mr. Meza’s case, the justice court withdrew his plea and

dismissed the case against him. Mr. Meza’s plea in abeyance was

held “prior to entry of judgment of conviction and imposition of

sentence.” Id. § 77-2a-2(1). And upon completion of Mr. Meza’s

plea-in-abeyance agreement, the court “allow[ed] withdrawal of
MEZA v. STATE

Opinion of the Court in part

3

 Other statutes also construe a plea in abeyance as a conviction.

E.g., UTAH CODE § 17-16-10.5(2)(c) (malfeasance in office); id.

§ 76-9-301.7(1) (cruelty to animals).

4

 The PCRA does provide a mechanism for a petitioner seeking

to withdraw a guilty plea under certain circumstances. See id. § 77-

13-6(2). The PCRA provides a forum for relief from a plea in

abeyance when the plea in abeyance is revoked and a judgment of

conviction is entered, or when the court, in accordance with a

(continued...)

6

[his] plea and order[ed] the dismissal of the case.” Id. § 77-2a-3(2)(b).

Thus, no judgment of conviction was ever entered against Mr. Meza.

¶17 In light of the plain language of the plea-in-abeyance

statute, we are not persuaded by Mr. Meza’s references to other Utah

statutes in which a plea in abeyance is considered a conviction. The

plea-in-abeyance statute states the general rule that a successfully

completed plea in abeyance is not a conviction. The statutes on

which Mr. Meza relies are explicit exceptions to the general rule that

simply have no application to the circumstances presented here. For

example, the Cohabitant Abuse Procedures Act provides that “a plea

of guilty or no contest to any domestic violence offense in Utah,

which plea is held in abeyance[,] . . . is the equivalent of a conviction,

even if the charge has been subsequently reduced or dismissed.” Id.

§ 77-36-1.2(2). And in the Crime Victims Restitution Act, a

conviction includes “(a) judgment of guilt; (b) a plea of guilty; or (c)

a plea of no contest.” Id. § 77-38a-102(1). And a plea in abeyance is

either a “plea of guilty or of no contest.” Id. § 77-38a-102(9). But

neither of these exceptions is applicable here.3

¶18 We presume the Legislature uses each word advisedly.

Had the Legislature intended a plea in abeyance to constitute a

conviction in all circumstances, it would have so provided in the

statute authorizing such pleas. But it did not. Rather, the statute

provides to the contrary. And those statutes that do treat a plea in

abeyance as a conviction do so only in explicitly defined contexts.

For us to consider a plea in abeyance as a conviction in all cases

would render the varying definitions created by the Legislature

superfluous, which we will not do. We therefore hold that a

successfully completed plea in abeyance resulting in dismissal of the

original charges is not a conviction. Because Mr. Meza was never

convicted, he does not qualify for relief under the PCRA.4

 We
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Opinion of the Court in part

4

(...continued)

successfully completed plea-in-abeyance agreement, “reduce[s] the

degree of the offense and enter[s] judgment of conviction and

impose[s] sentence.” See id. § 77-2a-3(2)(a). But it is not available to

a defendant, such as Mr. Meza, who has the charges against him

dismissed entirely.

5 E.g., Perez-Hernandez v. Holder, 332 F. App’x 458, 461 (10th Cir.

2009) (“[A] panel of this court has already held that a guilty plea

held in abeyance entered in Utah state court satisfies the 8 U.S.C.

§ 1101(a)(48)(A) definition of a ‘conviction’ . . . .”); United States v.

Dell, 359 F.3d 1347, 1349 (10th Cir. 2004) (concluding “that the [Utah

federal] district court properly counted Dell’s plea in abeyance as a

conviction under [the United States Sentencing Guidelines]”); United

States v. Gorman, 312 F.3d 1159, 1165 (10th Cir. 2002) (“Mr. Gorman’s

plea in abeyance was both an adjudication of guilt and a

conviction.”).

6

 The PCRA provides that it “establishes the sole remedy for any

person who challenges a conviction or sentence for a criminal

offense[,] . . . . replac[ing] all prior remedies for review, including

extraordinary or common law writs.” UTAH CODE § 78B-9-102(1).

But because Mr. Meza does not challenge a conviction or a sentence,

the PCRA’s “sole remedy” provision is inapplicable to him and does

(continued...)

7

therefore affirm the district court’s dismissal of his PCRA action.

II. A RULE 60(b)(6) MOTION IS AN ADEQUATE REMEDY TO

CHALLENGE A SUCCESSFULLY COMPLETED PLEA IN

ABEYANCE FOR INEFFECTIVE ASSISTANCE OF COUNSEL

¶19 While a Utah plea in abeyance is not considered a

conviction for certain purposes under the PCRA, it is considered a

conviction under certain federal laws.5

 Accordingly, Mr. Meza’s plea

in abeyance may have consequences for his immigration status.

“Before deciding whether to plead guilty, a defendant is entitled to

the effective assistance of competent counsel.” Padilla v. Kentucky,

559 U.S. 356, 364 (2010) (internal quotation marks omitted). And

effective assistance requires “that counsel must inform her client

whether his plea carries a risk of deportation.” Id. at 374. But, as

previously discussed, the PCRA does not provide a mechanism for

challenging alleged ineffective assistance of counsel that leads to the

entry of a plea in abeyance.6

 Mr. Meza argues that we retain
MEZA v. STATE

Opinion of the Court in part

6

(...continued)

not foreclose us from addressing other remedies beyond those

provided in the PCRA.

7

 “[A]n indication that no remedy exists in statute or rule to make

real the promise afforded by a constitutional right gives rise to

questions of what tool should be deployed to protect that right. . . .

[E]xtraordinary writs embody the procedure traditionally used to

protect such a right.” State v. Rees, 2005 UT 69, ¶ 14, 125 P.3d 874.

For example, we have used the petition for an extraordinary writ to

review criminal convictions when a defendant’s right to appeal has

been improperly denied. E.g., Boggess v. Morris, 635 P.2d 39, 42

(using the common-law writ of certiorari to review 1061 (Utah

1993) (affirming the issuance of a common-law writ of certiorari to

review “the regularity of the proceedings to determine whether the

[they] were in accordance with law[] and to correct errors in law

affecting the substantial rights of the parties.” (internal quotation

marks omitted)).

8

 At oral argument the State asserted that Mr. Meza is not entitled

to extraordinary relief unless he can identify the ancient writ that

provided the specific relief he seeks. But this is a misapprehension

of our power to issue extraordinary writs. “Our cases demonstrate

the practical utility of the flexibility of extraordinary writs in various

circumstances.” Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 684

(Utah 1995). Although the Utah Constitution “at one time listed

(continued...)

8

common-law authority to create an exception to the PCRA in order

to grant him a mechanism to challenge his plea. Effectively, Mr.

Meza is asking us to interpret the PCRA in such a way that it

provides him a remedy. We need not consider Mr. Meza’s request

because he has another adequate remedy. There is therefore no need

for the “common-law exception” he suggests.

¶20 In arguing that we should create an exception to the PCRA

to provide him a remedy for his counsel’s ineffective assistance, Mr.

Meza relies on our constitutional authority to issue extraordinary

writs. We agree with Mr. Meza that our constitutional authority to

issue extraordinary writs gives us the authority to remedy

ineffective assistance of counsel.7

 However, we need not exercise

that constitutional authority because Mr. Meza has an adequate

remedy under existing law.8
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Opinion of the Court in part

8

(...continued)

each type of writ that was within this court’s jurisdiction to grant[,]

. . . . the practice of specifically listing each available common law

writ has been abandoned,” State v. Barrett, 2005 UT 88, ¶¶ 10–11, 127

P.3d 682. Instead, the authority to issue extraordinary writs allows

us to provide remedies “not available to a party unless necessary to

preserve a right that cannot be protected by a standard legal or

equitable remedy.” BLACK’S LAW DICTIONARY 1408 (9th ed. 2009)

(defining extraordinary remedy). See Rex v. Bank of England (1780)

99 Eng. Rep. 334 (K.B.) 335; 2 Dougl. 525 (“When there is no specific

remedy, the Court will grant [the writ of] mandamus that justice

may be done.”).

9

¶21 Associate Chief Justice Lee’s concurrence contends that Mr.

Meza never asked us to invoke our extraordinary writ power,

arguing that, at most, we have been asked to use our constitutional

power to entertain his PCRA petition. This is not how we

understand Mr. Meza’s argument. Mr. Meza repeatedly argued that

“where there is no remedy under the PCRA,” we “retain inherent

constitutional authority to create common-law exceptions to the

PCRA.” It is true that Mr. Meza did not file a separate formal rule

65B petition for an extraordinary writ. But the entire crux of his

argument to this court was based on our authority to issue

extraordinary writs and both parties dedicated extensive discussion

to this issue in their briefs and at oral argument. Because the PCRA

does not apply at all to Mr. Meza’s situation, it does not provide Mr.

Meza a mechanism to challenge his alleged constitutional violation.

Yet we have previously recognized that a remedy must exist “in

statute or rule to make real the promise afforded by a constitutional

right.” State v. Rees, 2005 UT 69, ¶ 14, 125 P.3d 874; see also Manning

v. State, 2005 UT 61, ¶¶ 26–27, 31, 122 P.3d 628 (creating an

extraordinary remedy when no remedy existed under PCRA). Thus,

a remedy must exist for a violation of a criminal defendant’s right to

effective assistance of counsel.

¶22 Accordingly, we interpret Mr. Meza’s argument as inviting

us to invoke our extraordinary writ authority to fashion a remedy in

the wake of an unremedied constitutional deficiency. We “have

original jurisdiction to issue all extraordinary writs.” UTAH CONST.

art. VIII, § 3. But we will issue an extraordinary writ only when “no

other plain, speedy[,] and adequate remedy is available.” UTAH R.

CIV. P. 65B(a). In this case, extraordinary relief is not available
MEZA v. STATE

Opinion of the Court in part

9

 Our rules of civil procedure “also govern in any aspect of

criminal proceedings where there is no other applicable statute or

rule.” UTAH R. CIV. P. 81(e).

10 Rule 60(b) “reflects and confirms the courts’ own inherent and

discretionary power, firmly established in English practice long

before the foundation of our Republic, to set aside a judgment whose

enforcement would work inequity.” Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211, 233–34 (1995) (internal quotation marks omitted). Some

jurisdictions have recognized that rule 60(b) was intended “to retain

all [the] substantive rights protected by the old writ of coram nobis.”

State v. Lucero, 563 P.2d 605, 606 (N.M. Ct. App. 1977); see also

Commonwealth v. Spaulding, 991 S.W.2d 651, 655 (Ky. 1999) (“[Rule

60(b)(6)] is a catch-all provision that encompasses those grounds,

which would justify relief pursuant to [the] writ of coram nobis, that

are not otherwise set forth in the rule.”).

10

because Mr. Meza has another remedy available for challenging his

plea in abeyance. That remedy is a motion under rule 60(b)(6) of our

rules of civil procedure.9

¶23 Rule 60(b) allows a court to “set aside a final judgment for

reasons such as mistake, newly discovered evidence, or fraud.”10

Honie v. State, 2014 UT 19, ¶ 87, 342 P.3d 182. Rule 60(b) also

contains a catch-all provision, subsection (6), which allows a party

to seek relief for “any other reason justifying relief from the

operation of the judgment.” UTAH R. CIV. P. 60(b)(6). Rule 60(b)(6)

motions are unavailable if the grounds for relief fall within

subsections (1) through (5). See Laub v. S. Cent. Utah Tel. Ass’n, 657

P.2d 1304, 1306–07 (Utah 1982). And a rule 60(b)(6) motion may not

be brought “in an attempt to evade the PCRA.” Kell v. State, 2012 UT

25, ¶ 24, 285 P.3d 1133. But this case involves neither of these

circumstances. Mr. Meza’s claim does not qualify for relief under

subsections (1)–(5), and since the PCRA does not apply to Mr. Meza,

a motion under subsection (6) does not constitute an attempt to

evade the substantive provisions of the PCRA.

¶24 To begin, Mr. Meza does not qualify for relief under

subsections (1)–(5) of rule 60(b). These subsections allow a party to

seek relief from a judgment in the event of (1) mistake or similar

excuse; (2) newly discovered evidence; (3) fraud; (4) voidness; or

(5) satisfaction, release, or discharge. None of these provisions even

arguably apply here.
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Opinion of the Court in part

11

¶25 Mr. Meza is also not seeking relief “in an attempt to evade

the PCRA.” Kell, 2012 UT 25, ¶ 24. The PCRA provides that it

“establishes the sole remedy for any person who challenges a

conviction or sentence for a criminal offense[,] . . . . replac[ing] all

prior remedies for review, including extraordinary or common law

writs.” UTAH CODE § 78B-9-102(1). For this reason, we have

generally not allowed rule 60(b)(6) motions in contexts where they

would allow a movant to thwart the substantive or procedural

requirements of the PCRA. See Archuleta v. Galetka, 2011 UT 73,

¶ 168, 267 P.3d 232. However, as explained above, the PCRA has no

application to Mr. Meza inasmuch as he does not satisfy the

substantive qualifications for PCRA relief. Because the PCRA’s “sole

remedy” provision is inapplicable here, a rule 60(b)(6) motion would

not constitute an attempt to bypass the PCRA.

¶26 Having concluded that a rule 60(b)(6) motion would not

constitute an attempt to thwart the requirements of rule 60(b)(1)–(5)

or the PCRA, we examine whether Mr. Meza’s unusual and

exceptional circumstances warrant rule 60(b)(6) relief. Mr. Meza has

“a Sixth Amendment right to counsel, a right that extends to the

plea-bargaining process.” Lafler v. Cooper, 132 S. Ct. 1376, 1384

(2012). The Constitution “ensure[s] that no criminal

defendant—whether a citizen or not—is left to the mercies of

incompetent counsel.” Padilla, 559 U.S. at 374 (internal quotation

marks omitted). Moreover, “the seriousness of deportation as a

consequence of a criminal plea, and the concomitant impact of

deportation on families,” requires counsel to “inform her client

whether his plea carries a risk of deportation.” Id.

¶27 In this case, Mr. Meza contends that his counsel was

required to inform him of the possible immigration consequences of

his plea in abeyance. And if Mr. Meza’s counsel did not provide

effective assistance, Mr. Meza must be allowed to challenge his plea.

“[A]n absolute prohibition against providing a forum to a defendant

in which he may assert defects in his guilty plea would certainly

violate constitutional due process guarantees.” State v. Merrill, 2005

UT 34, ¶ 29, 114 P.3d 585. Mr. Meza’s need for a mechanism to

assert a defect in his guilty plea and the PCRA’s failure to provide

such a mechanism leads us to conclude that his circumstances are

sufficiently unusual and exceptional to qualify for relief under rule

60(b)(6).

¶28 Because rule 60(b)(6) provides Mr. Meza with a vehicle for

challenging his guilty plea on the basis of ineffective assistance of
MEZA v. STATE

J. Roth, concurring in part/concurring in the result

12

counsel, there is no reason to consider his request that we exercise

our constitutional power to fashion a remedy for his alleged

ineffective assistance of counsel. Mr. Meza may seek relief from the

consequences of his plea by filing a rule 60(b)(6) motion in the justice

court where he originally entered his plea in abeyance.

CONCLUSION

¶29 The district court correctly concluded that Mr. Meza did not

qualify for relief under the PCRA. The PCRA requires that a

petitioner have been both convicted and sentenced before he is

entitled to seek relief. But Mr. Meza was never convicted. We

therefore affirm the dismissal of Mr. Meza’s suit under the PCRA.

We decline to rely on our constitutional authority to fashion a

mechanism for Mr. Meza to withdraw his plea because he may

obtain relief for the alleged ineffective assistance of counsel by filing

a rule 60(b)(6) motion in the justice court.

JUDGE ROTH, concurring in part and concurring in the result:

¶30 I concur in Part I of the majority opinion and in the court’s

judgment “affirm[ing] the dismissal of Mr. Meza’s suit under the

PCRA.” See supra ¶ 29. I cannot join in Part II, however. First, Mr.

Meza did not request a writ of any kind in the lower court. See 438

Main St. v. EasyHeat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801. And whether

or not preserved below, I cannot read Mr. Meza’s argument on

appeal—that this court has common-law authority to modify the

PCRA or provide a remedy beyond its bounds—so broadly as to

invoke this court’s common-law writ jurisdiction. Second, I share

Justice Lee’s concern that the majority opinion’s proposed rule

60(b)(6) solution to Mr. Meza’s dilemma has not yet passed the test

of the adversarial process, as it was neither raised nor briefed by the

parties. Cf. State v. Robison, 2006 UT 65, ¶ 22, 147 P.3d 448. That said,

a rule 60(b)(6) approach to resolution of the catch-22 created at the

intersection of the plea-in-abeyance statute and the PCRA seems

promising and is certainly worth further consideration in an

appropriate setting.

ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring

in the judgment:

¶31 I concur in the judgment and in Part I of the opinion of

Justice Parrish. But I disagree with the balance of that opinion. The

issues it addresses in Part II are not properly before us, and that

portion of the opinion is thus improperly advisory. Accordingly, I
Cite as: 2015 UT 70

A.C.J. LEE, concurring in part/concurring in the judgment

1

 None of the district court filings in the record make any

reference to Utah Rule of Civil Procedure 65B—our rule governing

extraordinary relief. And none of Meza’s filings includes a document

that asks—in form or substance—for the issuance of an

extraordinary writ. Justice Parrish does not contend otherwise.

Although she purports to see in Meza’s appellate briefing an implicit

invocation of this court’s power to issue an extraordinary writ, supra

¶ 21, Justice Parrish nowhere claims that Meza preserved the issue

(continued...)

13

would affirm on the ground that the Post-Conviction Remedies Act

(PCRA) affords no right to relief to Meza because he is not

challenging a “conviction and sentence” in this case, supra ¶ 11,

without addressing Meza’s entitlement to relief on a petition for an

extraordinary writ, supra ¶ 19 & n.6, or a motion under Utah Rule of

Civil Procedure 60(b)(6), supra ¶ 23.

¶32 In reaching out to address the merits of a petition and

motion that were not filed by Meza or addressed in the briefing on

appeal, Justice Parrish proposes to resolve other issues of substantial

significance. She would hold, specifically, that (a) “the PCRA’s ‘sole

remedy’ provision,” Utah Code section 78B-9-102(1), is somehow

“inapplicable to him and does not foreclose us from addressing

other remedies beyond those provided in the PCRA,” supra ¶ 19 n.7;

(b) the constitution requires that a “remedy must exist” to give Meza

“a mechanism to challenge his alleged constitutional violation” of

his right to counsel, supra ¶ 21; and (c) our cases free a petitioner

seeking an extraordinary writ of a burden of proof of any of the

elements set forth in traditional common-law writs, substituting

instead an undefined principle of “flexibility,” supra ¶ 20 n.8. 

¶33 The lead opinion’s analysis of these significant issues

strikes me as questionable. Because none of the issues was properly

preserved or briefed in this case, moreover, they should not be

resolved in this case.

¶34 The petition dismissed by the district court and presented

to us on appeal was a PCRA petition, plain and simple. Meza never

filed a petition for an extraordinary writ—not in the district court,

and not in our court. The district court, moreover, issued a decision

dismissing a PCRA claim. It never ruled on a petition for an

extraordinary writ because it was never asked to do so. The issue

was accordingly not preserved in the district court.1
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1

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by asking the district court to rule on a petition for extraordinary

writ.

2

 Justice Parrish claims to “understand Mr. Meza’s argument”

differently. Supra ¶ 21. She says that the “entire crux” of Meza’s

argument was his invocation of our “‘inherent constitutional

authority to create common law exceptions to the PCRA.’” Supra

¶ 21. But the quoted sentence is an outlier in the briefing. And, more

importantly, even the quoted language is not an assertion of a right

to an extraordinary writ; it is simply a request that we exercise our

supposed “‘constitutional authority to create common law exceptions

to the PCRA.’” We have no such power, see infra ¶ 19–20, and even

the lead opinion declines to assert it.

The problem is evident in the lack of briefing on the issues the

lead opinion addresses. Nowhere in the parties’ briefs on appeal do

we see any argument at all on the elements of any extraordinary writ

that might be available to Meza, on the existence of an alternative

remedy (like a 60(b) motion), or on the supposed constitutional right

to a remedy (rendering the PCRA’s sole remedy provision

unconstitutional). These are all issues that Justice Parrish reaches out

to decide. This is not a matter of “interpret[ing] Mr. Meza’s

argument[s]” on appeal. Supra ¶ 22. It is a matter of providing a

roadmap for his success on remand. That is not our role.

14

¶35 The same goes for the arguments on appeal. In their briefs

the parties have argued over the extent of the courts’ jurisdiction to

entertain Meza’s petition under the PCRA. That question has

encompassed two subsidiary issues—the proper construction of

Utah Code section 78B-9-104(1) (which authorizes the filing of a

petition by a “person who has been convicted and sentenced for a

criminal offense”), and whether the courts “retain inherent

constitutional authority to create common law exceptions” to the

limiting terms of the PCRA. 

¶36 Meza’s briefs nowhere seek to invoke the power of this

court to issue an extraordinary writ. At most, he has asked us to

“exercise [our] constitutional authority to entertain [his] PCRA

petition.” (Emphasis added).2

 That became even clearer at oral

argument. In response to questions from the bench, Meza’s counsel

conceded that he had not filed a petition for an extraordinary writ

and had nowhere set forth the legal or factual basis for issuance of

such a writ. As if to underscore the point, counsel explained his
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A.C.J. LEE, concurring in part/concurring in the judgment

3

 During oral argument, members of the court appeared to

appreciate the problem—by noting that an opinion on the

availability of a writ that Meza had not sought would constitute an

“advisory opinion.”

4

 Justice Parrish’s attempts to justify her approach to resolving

this case fall short. It cannot be said that we are simply “invok[ing]

our extraordinary writ authority to fashion a remedy in the wake of

an unremedied constitutional deficiency.” Supra ¶ 22. Meza has

neither briefed nor established any “constitutional deficiency,” and

the State has had no chance to respond to any such argument.

5 See, e.g., Tillman v. State, 2005 UT 56, ¶¶ 21–23, 128 P.3d 1123

(applying Hurst exceptions to the PCRA); Gardner v. Galetka, 2004 UT

42, ¶ 17, 94 P.3d 263 (same); Hurst v. Cook, 777 P.2d 1029, 1037 (Utah

(continued...)

15

reasons for stopping short of filing such a petition—“We didn’t do

it in this case because the State has consistently said, ‘sorry, it doesn’t

work, you have to do PCRA.’” And the State, in response, noted that

it was not “prepared to respond to the extraordinary writ argument,

because Mr. Meza did not brief a petition for an extraordinary writ,

and he did not ask for that form of relief.”3

¶37 The availability of an extraordinary writ is thus a matter

not properly presented for our decision. Instead, we are asked to

decide only whether Meza’s claim is proper under the terms of the

PCRA, and whether we retain the power to establish an exception to

the terms of that statute.4

 On the first issue, I would follow Justice

Parrish’s analysis. I would conclude that the PCRA means what it

says, and that Meza’s PCRA claim failed as a matter of law because

he is not a “person who has been convicted and sentenced for a

criminal offense.” See supra ¶¶ 14–18. On the second issue, I would

reject Meza’s argument as foreclosed by the plain language of the

PCRA and by our precedents. 

¶38 By statute, a PCRA claim is “the sole remedy for any person

who challenges a conviction or sentence for a criminal offense.”

UTAH CODE § 78B-9-102(1) (emphasis added). And such remedy

“replaces all prior remedies for review, including extraordinary or

common law writs.” Id. In light of these clear, straightforward

limitations, our cases have repudiated the notion of a judicial

prerogative to create “common law exceptions” to the PCRA. We

embraced that prerogative for a time.5 But we have subsequently
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1989) (establishing common law exceptions to post-conviction

procedural bar).

16

held that any such authority was overridden by the above-quoted

provisions, which were added to the PCRA by amendment in 2008.

See Taylor v. State, 2012 UT 5, ¶ 11 n.3, 270 P.3d 471; Carter v. State,

2012 UT 69, ¶ 23, 289 P.3d 542; Peterson v. Kennard, 2008 UT 90, ¶ 16

n.8, 201 P.3d 956. At least since our decision in Taylor, there can be

no question that we lack the authority to make “common law

exceptions” to the PCRA.

¶39 That is all that we need to say to affirm the decision of the

district court in this case. Because Meza has not filed a petition for

extraordinary relief, and the parties have not briefed the propriety

of such a petition on appeal, we should not opine on the merits of

such a petition. For that reason I cannot join Part II of the lead

opinion, which goes to some lengths to opine on the merits of a

petition that Meza did not file, see supra ¶ 21, to conclude that such

a petition should fail due to the availability of a motion under Utah

Rule of Civil Procedure 60(b)(6), see supra ¶¶ 23–26, and, in the

process, to opine on significant questions of constitutional law (as to

a supposed requirement that a “remedy must exist” for any “alleged

constitutional violation,” supra ¶ 21). 

¶40 The lack of adversarial briefing on the issues explored in

part II of the lead opinion is troubling. We have no briefing, for

example, on the question of whether a “plain, speedy[,] and

adequate remedy is available” to Meza through a mechanism other

than a petition for extraordinary relief. UTAH R. CIV. P. 65B. Nor do

we have any briefing on the question of which if any of the common

law writs might best fit Meza’s case, or whether we may have the

authority to extend an established writ to fit the facts and

circumstances of this case. See supra ¶ 20 n.9 (rejecting the argument

that “Meza is not entitled to extraordinary relief unless he can

identify the ancient writ that provided the specific relief he seeks”).

And because no one has briefed these questions, we likewise lack

any briefing on the availability of the alternative remedy proposed

by Justice Parrish—of a motion to set aside a judgment under Utah

Rule of Civil Procedure 60(b)(6). 

¶41 The notion of a constitutional requirement that a “remedy

must exist” for any “alleged constitutional violation,” supra ¶ 21, is
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A.C.J. LEE, concurring in part/concurring in the judgment

6

 While Marbury v. Madison famously opined that for every right

there is a remedy, 5 U.S. (1 Cranch) 137, 163 (1803), that has not been

reality. Exceptions to this ideal are legion. See Richard H. Fallon, Jr.

& Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional

Remedies, 104 HARV. L. REV. 1731, 1784 (1991) (“Modern doctrines,

beyond any peradventure, depart decisively from the notion that the

Constitution requires effective remedies for all victims of

constitutional violations”). In fact, in Marbury itself the court

declined to fashion a remedy despite its conclusion that Marbury

had a statutory right that had been violated. See 5 U.S. at 154, 180.

And the doctrines limiting or altogether withholding a remedy when

there has been a constitutional violation are extensive: sovereign

immunity, see United States v. Testan, 424 U.S. 392, 400 (1976);

absolute immunity, see, e.g., Tenney v. Brandhove, 341 U.S. 367, 376,

379 (1951); qualified immunity, see Harlow v. Fitzgerald, 457 U.S. 800

(1982); exceptions to the Fourth Amendment’s exclusionary rule, see,

e.g., Davis v. United States, 131 S. Ct. 2419 (2011); the collateral review

exception to the Fourth Amendment, see Stone v. Powell, 428 U.S. 465

(1976); the harmless error doctrine, see, e.g., Chapman v. California, 386

U.S. 18 (1967); and the non-retroactivity principle of new law, see

Teague v. Lane, 489 U.S. 288 (1989). See also; John M. Greabe,

Constitutional Remedies and Public Interest Balancing, 21 WM. & MARY

BILL RTS. J. 857, 881–88 (2013); John C. Jeffries, Jr., The Right-Remedy

Gap in Constitutional Law, 109 YALE L.J. 87, 87–95 (1999). Other

limitations on the availability of a remedy for a constitutional

violation include the redressabilitly prong of injury-in-fact analysis

(continued...)

17

another matter that was not briefed by the parties. And this is a

substantial leap. Justice Parrish’s only authority for it is State v. Rees,

2005 UT 69, ¶ 14, 125 P.3d 874, but the quoted language from Rees is

by no means a holding that the constitution guarantees a judicial

remedy for any violation of its terms. Rees simply speaks of

“questions of what tool should be deployed to protect” a right for

which “no remedy exists in statute or rule.” Id. (emphasis added).

And the answer that the Rees opinion provides is not that a “remedy

must exist” as a constitutional requirement, but simply that

“extraordinary writs embody the procedure traditionally used to

protect such a right.” Id. That is uncontroversial. But it does not at all

support the notion that for every constitutional right there must be

a judicial remedy. American law, in fact, has long repudiated that

principle.6

 I cannot concur in an opinion that sets aside longstanding
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(...continued)

for standing, see, e.g., Linda R.S. v. Richard D., 410 U.S. 614 (1973); the

political question doctrine, see Luther v. Borden, 48 U.S. 1 (7 How.)

(1849); and statutes of limitations.

7 Hill v. Superior Prop. Mgmt. Servs., Inc., 2013 UT 60, ¶ 46, 321

P.3d 1054 (explaining how “[o]ur adversary system demands”

adherence to preservation doctrine); Patterson v. Patterson, 2011 UT

68, ¶ 15, 266 P.3d 828 (explaining how preservation doctrine furthers

“judicial economy” and “fairness” by ensuring that both the lower

(continued...)

18

precedent on an important question of constitutional law—least of

all in a case in which the question is not properly presented. 

¶42 Our law has long recognized the authority of the

legislature to regulate the availability of and limitations on private

claims asserting violations of the constitution. Doctrines of

justiciability, political question, procedural bar, and statutes of

limitations have long limited the availability of judicial review of

constitutional claims. See supra ¶ 11 n.6. Without careful briefing on

the matter, we cannot lightly assume that the legislature exceeded its

authority in limiting review under the PCRA to challenges to a

“conviction or sentence for a criminal offense.” UTAH CODE § 78B-9-

102(1). 

¶43 Nor can we avoid the question by asserting that this

provision is somehow “inapplicable and does not foreclose us from

addressing other remedies outside the PCRA.” Supra ¶ 19 n.7. The

whole point of the sole remedy provision is to prescribe a sole

remedy—to “replace[] all prior remedies for review, including

extraordinary or common law writs.” UTAH CODE § 78B-9-102(1).

Thus, the fact that “Mr. Meza does not challenge a conviction or a

sentence,” supra ¶ 19 n.6, does not make the provision

“inapplicable.” It forecloses his right to assert a claim. That was the

holding of the district court—and of part I of the lead opinion. We

should leave it at that. We should hold that Meza lacks a right to sue

under the PCRA, and leave for any future case the questions

whether he may seek an extraordinary writ or file a 60(b) motion

(and if he so claims, whether he has a constitutional right to any such

remedy).

¶44 Our rules of preservation are longstanding and wellsettled.7

 And there are significant barriers to our resolution of issues
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7

(...continued)

court and the opposing party have an opportunity to address all the

issues); 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801

(“[Preservation] puts the trial judge on notice of the asserted error

and allows for correction at that time in the course of the

proceeding.”).

8 Utah Transit Auth. v. Local 382 of the Amalgamated Transit Union,

2012 UT 75, ¶ 23, 289 P.3d 582 (“[W]hatever else the judicial power

clause may imply, it incorporates a prohibition on the issuance of

advisory opinions by our courts.”); see alsoGregory v. Shurtleff, 2013

UT 18, ¶ 73, 299 P.3d 1098 (Lee, J., concurring in part and dissenting

in part) (“[B]ecause the power we wield must be ‘judicial,’ we are

foreclosed from making law or announcing our views in an advisory

or other non-judicial posture.”).

9 City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1773–74

(2015) (declining to address an “important question” of whether

particular statutory language was applicable because resolution

would “benefit from briefing and an adversary presentation”);

United States v. Fruehauf, 365 U.S. 146, 157 (1961) (recognizing that

advisory opinions are prohibited, in part, because the issues “are not

pressed before the Court with that clear concreteness provided when

a question emerges precisely framed and necessary for decision from

a clash of adversary argument exploring every aspect of a

multifaceted situation embracing conflicting and demanding

interests”).

10 In light of my criticism of the lead opinion’s decision to reach

out to resolve issues not properly presented, I am in no position to

offer my own conclusive views. But I am dubious of at least one

(continued...)

19

that are neither presented by a live controversy nor briefed by the

parties on appeal—barriers ranging from the constitutional (of

issuing advisory opinions)8

 to the pragmatic (of deciding questions

without the benefit of adversary briefing).9

¶45 I can appreciate a sense of sympathy for the plight of Mr.

Meza. And I understand the impulse to preserve an avenue for relief

on his claim of ineffective assistance of counsel. But our role in this

matter is limited. As judges our job is to decide the issues before us

under the law as it stands. I would do so without reaching out to

resolve questions not properly presented.10
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A.C.J. LEE, concurring in part/concurring in the judgment

10(...continued)

additional aspect of Justice Parrish’s opinion—its rejection of the

State’s argument that “Meza is not entitled to extraordinary relief

unless he can identify the ancient writ that provided the specific

relief he seeks.” Supra ¶ 20 n.8. I would be reluctant to read our cases

to have replaced the elements of common law writs with a general

principle of practical “flexibility.” Supra ¶ 20 n.8. Indeed, our

decision in State v. Barrett, which is cited by Justice Parrish, at least

arguably reinforces the viability of the elements of historical writs.

2005 UT 88, ¶ 11, 127 P.3d 682 (explaining that “the practice of

specifically listing each available common law writ has been

abandoned,” but emphasizing that our rule 65B “can be thought of

as a repository of all the extraordinary writs that, in the past, were

envisioned as separate and distinct proceedings,” and holding that

“[t]he fact that rule 65B has subsumed the common law writs does

not . . . change the reality that ‘a court must look to the nature of the

relief sought, the circumstances alleged in the petition, and the

purpose of the type of writ sought in deciding whether to grant

extraordinary relief’” (quoting Renn v. Utah State Bd. of Pardons, 904

P.2d 677, 683 (Utah 1995))). In any event, we should not decide this

important issue in the absence of a “clash of adversary argument” to

assist us in “exploring every aspect of a multifaceted situation.”

Fruehauf, 365 U.S. at 157.

20