This opinion is subject to revision before final

publication in the Pacific Reporter

2016 UT 11

IN THE

SUPREME COURT OF THE STATE OF UTAH

ADRIAN GORDON,

Petitioner,

v.

STATE OF UTAH,

Respondent.

No. 20140345

Filed March 23, 2016

On Direct Appeal 

Third District, Salt Lake

The Honorable Paul G. Maughan

No. 130908310

Attorneys:

Troy L. Booher, Beth E. Kennedy, Jensie L. Anderson, Salt Lake City, 

for petitioner

Sean D. Reyes, Att‘y Gen., Andrew F. Peterson, Ass‘t Att‘y Gen., 

Salt Lake City, for respondent

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in 

which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, and

JUSTICE HIMONAS joined.

JUSTICE JOHN A. PEARCE became a member of the Court on 

December 17, 2015, after oral argument in this matter, and 

accordingly did not participate.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 This case and its companion, Meinhard v. State, 2016 UT 12, 

present issues of first impression under Part 3 of the Post-Conviction 

Remedies Act (PCRA). UTAH CODE §§ 78B-9-300 to -304. In this case 

Adrian Gordon‘s petition for postconviction DNA testing was 

denied on the basis of the State‘s assertion that Gordon had declined 
GORDON v. STATE

Opinion of the Court

2

to request DNA testing at the time of the underlying trial for 

―tactical reasons.‖ Id. § 78B-9-301(4). We reverse and remand on 

procedural grounds. We hold that Gordon was entitled to file a 

memorandum in opposition to the State‘s motion to dismiss the 

petition. We also clarify the operative burdens of pleading and proof 

on the question whether the petitioner declined DNA testing at trial 

for ―tactical reasons,‖ and provide guidance as to the meaning of the 

―tactical reasons‖ clause.

I

¶2 Adrian Gordon was convicted of murder in 2002. After we 

affirmed his conviction in 2004, State v. Gordon, 2004 UT 2, 84 P.3d 

1167, Gordon filed a petition under Part 3 of the PCRA, see UTAH 

CODE § 78B-9-300 to -304. His petition seeks DNA testing on

previously untested items from the scene of the murder in an effort 

to prove his factual innocence. 

¶3 Gordon has identified several items found at the scene of the 

crime that allegedly could contain the true killer‘s DNA: the victim‘s 

wallet and pants pocket, a pair of sunglasses, two Big Gulp cups left 

near the victim‘s body, and a bloody slab of cement that may have 

been used as the murder weapon. If each piece of evidence produces

DNA from the same third party (not Gordon), Gordon posits that the

DNA testing would ―significantly undermine the prosecution‘s 

theory.‖ Petition for Post-Conviction DNA Testing at 6. And he 

claims that such testing could establish his factual innocence in light 

of the largely circumstantial case presented against him at trial. 

¶4 Gordon‘s petition set forth the pleading elements enumerated 

in section 301(2) of the PCRA. See UTAH CODE § 78B-9-301(2). It also 

included an allegation addressed to section 301(4), which forecloses 

DNA testing if the petitioner failed to seek DNA testing at trial for 

―tactical reasons.‖ Id. § 78B-9-301(4). On this matter Gordon asserted 

that he ―did not fail to request testing of the above-described 

evidence at the time of trial for tactical reasons.‖ Petition for PostConviction DNA Testing at 7 But he failed to offer any further 

explanation of this assertion, either in the petition or in the 

supporting memorandum. 

¶5 After Gordon filed his petition, the State filed a response 

asking the district court to dismiss Gordon‘s petition. In its response,

the State alleged that Gordon failed to demonstrate that he had not 

declined DNA testing at trial for ―tactical reasons‖ under the terms 

of section 301(4). Id. § 78B-9-301(4). And the State identified a specific 

tactical reason that it sought to attribute to Gordon—that he declined 

to request DNA testing so that he could use the absence of testing to 
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Opinion of the Court

3

undermine the prosecution‘s case. In support, the State pointed to 

the fact that Gordon‘s counsel had asked a police detective on crossexamination whether DNA testing was done, and referred to the lack 

of DNA evidence in closing arguments in an effort to undermine the 

prosecution‘s case. In the alternative, the State also claimed that even 

if Gordon could satisfy section 301(4), he could not satisfy his burden 

under 301(2)(f) of proving that the evidence he sought to test had 

―the potential to produce new, noncumulative evidence that will 

establish [his] factual innocence.‖ Id. § 78B-9-301(2)(f).

¶6 The district court dismissed Gordon‘s petition twenty days 

after the State‘s response was filed. It did so before Gordon had an 

opportunity to oppose the State‘s filing, and without holding a 

hearing or conducting any additional fact-finding. In the dismissal 

order the court explained that it was dismissing the petition because 

Gordon failed to establish a non-tactical reason for declining DNA 

testing at trial under section 301(4). The order did not address the 

State‘s arguments regarding section 301(2)(f).1

¶7 After the district court entered its order, Gordon filed a 

motion for reconsideration. In that motion Gordon asserted that (1) 

the court should have allowed Gordon to reply to the State‘s 

response before dismissing the petition, and (2) the State bears the 

burden of establishing a tactical reason for Gordon‘s failure to 

request DNA testing. In support of that motion, Gordon submitted a 

declaration stating that his failure to request testing ―was not a 

tactical . . . decision,‖ explaining that he did not realize that the 

evidence in question could be subject to DNA testing and insisting 

that he could not afford such testing in any event. Memorandum in 

Support of Petitioner‘s Motion for Reconsideration at Exhibit B. 

¶8 The district court denied Gordon‘s motion for reconsideration 

on three grounds. It first noted that motions for reconsideration ―are 

not recognized by the Utah Rules of Civil Procedure.‖ Minute Entry 

and Order (April 9, 2014). Second, the court concluded that the 

PCRA does not explicitly give a petitioner a right to reply to a 

response by the State. And third, the court stated that Gordon‘s 

motion ―still [did] not address the clear statutory mandate that 

prohibits the [c]ourt from ordering DNA testing where it  ̳was 

available at the time of trial and the person did not request DNA 

testing . . . for tactical reasons.‘‖ Id.

 

1 As noted below, see infra ¶ 40, we likewise do not reach this 

question on this appeal.
GORDON v. STATE

Opinion of the Court

4

¶9 Gordon filed this appeal. In challenging the district court‘s 

decision, Gordon raises a series of threshold questions of law—as to 

whether a petitioner under Utah Code section 78B-9-301 has a right 

to file a reply to the State‘s opposition, who bears the burden of 

proof on alleged ―tactical reasons‖ for not seeking DNA testing at 

trial, and what is the proper interpretation of the term ―tactical 

reasons.‖ We consider those questions de novo, without any 

deference to the district court. Gardner v. State, 2010 UT 46, ¶ 55, 234 

P.3d 1115.

II

¶10 Gordon challenges the dismissal of his petition for DNA 

testing on both procedural and substantive grounds. As to 

procedure, Gordon claims that the district court erred in refusing to 

allow him an opportunity to file a response in support of his petition

and in assigning him the burden of proof on the question whether he 

declined to request DNA testing at the underlying trial for ―tactical 

reasons.‖ As for substance, Gordon claims the court erred in its 

determination that his decision not to request such testing was 

―tactical‖ under the terms of the statute.

¶11 We reverse on procedural grounds. We hold that Gordon was 

entitled to file a response to the State‘s opposition to his petition 

under Utah Rule of Civil Procedure 65C, and remand to give him an 

opportunity to do so. In so doing, we resolve two other matters that 

were briefed on appeal and are likely to arise on remand. We hold 

that the question whether DNA testing was declined for ―tactical 

reasons‖ is a matter on which the State bears the burden of pleading 

but the petitioner bears the burden of proof. And we clarify the

interpretation of the ―tactical reasons‖ that may foreclose a petition 

for DNA testing.

A

¶12 The procedure for filing and disposition of a petition for DNA 

testing is governed by statute and also by rule. By statute, a 

petitioner seeking postconviction DNA testing must file a petition 

―assert[ing] factual innocence under oath‖ and alleging that a series 

of statutory conditions are met. UTAH CODE § 78B-9-301(2). The 

petitioner is also required to ―serve notice upon the office of the 

prosecutor who obtained the conviction‖ and ―upon the Utah 

attorney general.‖ Id. § 78B-9-301(6)(a). And ―[t]he attorney general 

shall, within 30 days after receipt or service of a copy of the petition, 

or within any additional period of time the court allows, answer or 

otherwise respond to all proceedings initiated under this part.‖ Id. 

―After the attorney general is given an opportunity to respond to a 
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Opinion of the Court

5

petition for postconviction DNA testing, the court shall order DNA 

testing if it finds by a preponderance of the evidence that all criteria 

of Subsection (2) have been met.‖ Id. § 78B-9-301(6)(b).

¶13 The governing procedural framework for disposition of a 

postconviction petition for DNA testing is not clear on the face of the 

PCRA. But it becomes clear when the statute is read in conjunction 

with our rules of civil procedure. And the PCRA should be read in 

harmony with, and not as an end-run around, those rules. See UTAH 

CONST. art. VIII, § 4 (recognizing this court‘s power to promulgate 

rules of ―procedure and evidence,‖ while limiting the legislature‘s 

authority to that of amending the rules ―upon a vote of two-thirds of 

all members of both houses‖); UTAH CODE § 78B-9-301(3) (providing 

that postconviction petitions ―shall comply with Rule 65C, Utah 

Rules of Civil Procedure‖).

¶14 Our civil rules prescribe various means by which the State 

may ―answer or otherwise respond‖ to a petition. UTAH CODE § 78B9-301(6)(a); see also UTAH R. CIV. P. 65C(k). Those means include an 

―answer‖ under civil rule 8 and a ―motion‖ under civil rules 12 or 56. 

See Menzies v. State, 2014 UT 40, ¶ 49, 344 P.3d 581 (interpreting rule 

65C(k) to authorize either a rule 8 answer or a motion under rule 56).

An answer under rule 8 does not directly seek disposition by the 

court; it simply admits or denies the allegations of the petition (or 

complaint) and asserts affirmative defenses. A motion is different. It 

seeks immediate disposition by the court.

¶15 The State‘s filing cannot be understood as a mere answer, as it 

did not merely admit or deny allegations and assert affirmative 

defenses but sought immediate disposition. In that sense the 

response was effectively a motion. It asserted a request that the court 

―deny the petition for DNA testing‖ and articulated grounds for that 

request. And it submitted the matter to the court for immediate 

disposition—without the benefit of any discovery, evidentiary 

hearing, or fact-finding.2

 

2 A motion isn‘t the only procedural means for requesting 

disposition of a PCRA petition. A party seeking resolution by the 

court may also ―certify‖ the case as ―ready for trial‖ under civil rule 

16(b). But the State‘s response here made no mention of a trial, and 

no such proceeding was held. There was no merits hearing in which 

the parties presented evidence and the court made findings of fact 

and conclusions of law. There was only an order dismissing the 

(continued...)
GORDON v. STATE

Opinion of the Court

6

¶16 By rule Gordon had a right to file a formal opposition to the 

State‘s filing. A party opposing a motion is entitled to submit a 

memorandum in opposition. See UTAH R. CIV. P. 7(c); Id. 65C(k). And 

Gordon was afforded no such opportunity. That was error.3

¶17 The error was not rendered harmless, as the State suggests, by 

the district court‘s disposition of Gordon‘s motion for 

reconsideration.4 First, it is not apparent on the record that the court 

gave full consideration to the arguments presented by Gordon in his 

motion for reconsideration. Second, and in any event, the timeframe 

on the motion for reconsideration was much narrower than the 

timeframe that should have been afforded to Gordon on an 

opposition to a motion to dismiss. Gordon should have been given 

thirty days to ―respond by memorandum‖ to the State‘s motion. 

UTAH R. CIV. P. 65C(k). The briefing and decision on his motion for 

reconsideration were considerably tighter than that.

 

petition on the basis of the parties‘ written arguments. This was, in 

effect, a disposition on motion.

3 Rule 65C expressly acknowledges a circumstance in which a 

district court may dismiss a petition for postconviction relief 

summarily and sua sponte. See UTAH R. CIV. P. 65C(h) (directing the 

assigned judge to review the petition and to dismiss the claim if it 

―has been adjudicated in a prior proceeding‖ or ―appears frivolous 

on its face‖). But the negative implication is apparent. Except in the 

narrow circumstances prescribed by rule, dismissal of a 

postconviction petition should not be sua sponte but upon briefing,

including an opportunity for the petitioner to be heard. Such an 

opportunity, in fact, may be the petitioner‘s right as a matter of due 

process. See In re Adoption of B.Y., 2015 UT 67, ¶ 23, 356 P.3d 1215 

(―Mere notice is an empty gesture if it is not accompanied by a 

meaningful chance to make your case. So the Due Process Clause 

also guarantees such a chance— ̳an opportunity to be heard at a 

meaningful time and in a meaningful manner.‘‖ (citation omitted)).

4 There was no error, of course, in the district court‘s denial of 

Gordon‘s motion for reconsideration. Such a motion, after all, is not 

recognized in our rules of civil procedure. See Gillett v. Price, 2006 UT 

24, ¶ 6, 135 P.3d 861 (emphasizing that ―postjudgment motions to 

reconsider are not recognized anywhere in either the Utah Rules of 

Appellate Procedure or the Utah Rules of Civil Procedure‖). But 

Gordon should not have been required to file such a motion, as he 

had a right to file a memorandum in opposition to the State‘s 

motion.
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Opinion of the Court

7

¶18 We reverse and remand on this procedural ground. In so 

doing we leave it to the district court to decide how best to proceed 

in light of this court‘s opinion.5

B

¶19 The above is sufficient to dispose of this appeal. But the 

briefing on appeal has also raised two other issues that are likely to 

arise on remand—who bears the burden of pleading and proof as to 

a DNA petitioner‘s ―tactical reasons‖ for not seeking DNA testing at 

trial, and what is the proper interpretation of that statutory term. We 

address these issues below in the interest of judicial economy and to 

provide guidance to the parties on remand.

1

¶20 A petitioner seeking postconviction DNA testing under the 

PCRA must file a petition alleging a series of statutory elements

including, for example, that the evidence ―is still in existence and is 

in a condition that allows DNA testing to be conducted,‖ and that 

―the proposed DNA testing is generally accepted as valid in the 

scientific field or is otherwise admissible under Utah Law.‖ UTAH 

CODE § 78B-9-301(2)(a), (e). In a separate subsection, the statute also 

provides a basis for defeating the petitioner‘s right to testing. Under 

section 301(4), ―[t]he court may not order DNA testing in cases in 

which DNA testing was available at the time of trial and the person 

did not request DNA testing or present DNA evidence for tactical 

reasons.‖ Id. § 78B-9-301(4). 

¶21 The parties disagree as to the effect of these provisions on the 

burdens of pleading and proof as to a petitioner‘s ―tactical reasons.‖

 

5 Presumably the State‘s motion is one under rule 56, not 12. It 

appears to be such in that it does not accept the petitioner‘s factual 

allegations as true, but instead challenges them as unsupported. If 

so, then we presume that the matter would proceed on remand 

under the terms of rule 56, with the petitioner bearing the burden of 

establishing that there are no genuine issues of material fact and that 

the petitioner is entitled to judgment as a matter of law. If such a 

showing cannot be made, moreover, we presume that the motion 

would be denied, and the court should ―set the proceeding for a 

hearing‖ as required by civil rule 65C(l). See supra ¶ 15 n.2 (noting 

the propriety of a bench trial for disposition of a PCRA petition). We 

leave the details to the district court, however, subject to the legal 

limitations set forth in this opinion.
GORDON v. STATE

Opinion of the Court

8

Although the statute does not speak directly to these burdens, we 

interpret it as steering a middle course—assigning the burden of 

pleading to the State but the burden of proof to the petitioner.

¶22 The statutory reference to the petitioner‘s ―tactical reasons‖ 

for declining to request DNA testing is a matter of ―avoidance.‖ See

UTAH R. CIV. P. 8(c) (listing affirmative defenses, noting that they are

matters ―constituting an avoidance‖). It is presented in the PCRA not 

as an element that must be pleaded by the petitioner, but as a basis 

for defeating a petition that is otherwise sufficient. See UTAH CODE 

§ 78B-9-301(2) (listing the seven elements the petitioner must allege 

to assert a viable claim for DNA testing); id. § 78B-9-301(6)(b) 

(directing the district court to order DNA testing if all of the 

elements of section 301(2) are met). By negative implication, this 

indicates that the question whether the petitioner declined to pursue 

DNA testing for ―tactical reasons‖ is not an element of the 

petitioner‘s case. It is thus not a matter the petitioner must plead, but 

instead an affirmative defense to be pled (if at all) by the State. Cf.

UTAH CODE § 78B-9-105(2) (placing ―the burden of pleading‖ other

―ground[s] of preclusion‖ on the respondent to a PCRA petition).

¶23 Often the burden of proof follows the burden of pleading. But 

not always. And here we think the burden of proof must fall on the 

petitioner. For reasons explained below, we hold that the State has 

the burden of pleading that the petitioner declined to request DNA 

testing for ―tactical reasons,‖ but that the burden of proof shifts to 

the petitioner to establish that he did not have ―tactical reasons‖ for

such failure. Cf. UTAH CODE § 78B-9-105(2) (placing the burden of 

disproving the existence of other grounds for preclusion on the 

petitioner).

¶24 The general presumption is that the burden of proof follows 

the burden of pleading.

6 But the presumption is rebuttable; 

sometimes the burden shifts. And it is appropriately shifted in 

circumstances where the responding party has unique access to 

proof of the matter in question.7 That consideration weighs heavily 

 

6 See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56 (2005) (―The 

burdens of pleading and proof . . . should be assigned to the plaintiff 

who generally seeks to change the present state of affairs.‖ (quoting 

2 J. STRONG, MCCORMICK ON EVIDENCE § 337 (5th ed. 1999))).

7 See Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 494 

n.17 (2004) (noting that the burden may shift to the party who ―has 

peculiar means of knowledge‖ about the information required to 

carry the burden of proof (quoting 9 J. WIGMORE, EVIDENCE § 2486 (J. 

(continued...)
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Opinion of the Court

9

in favor of shifting the burden of persuasion on the question of the 

petitioner‘s ―tactical reasons‖ for declining DNA testing at trial. It is 

hard to imagine a matter more peculiarly within the knowledge of 

the PCRA petitioner than the ―tactical‖ basis for a particular decision 

made at the underlying trial. The petitioner‘s tactical reasons 

typically will be kept to himself and not shared with the prosecution. 

And such reasons will be protected by the attorney-client privilege, 

and thus not available to the State through discovery. 

¶25 For these reasons we hold that the burden of disproving 

―tactical reasons‖ for declining DNA testing at trial belongs to the 

PCRA petitioner. Once the State raises this matter as an affirmative 

defense, the burden of persuasion shifts to the petitioner. 

¶26 The standard of proof is preponderance of the evidence. See

UTAH CODE § 78B-9-105(2) (stating, as to other grounds of preclusion, 

that ―once a ground has been pled, the petitioner has the burden to 

disprove its existence by a preponderance of the evidence‖). To carry 

this burden, the petitioner may proffer non-tactical reasons for the 

decision not to seek DNA testing, supporting those reasons with 

affidavits or evidence in the record. In response, the State may seek 

to rebut the petitioner‘s showing and also to identify alleged tactical 

reasons, supporting those reasons with any evidence that is available

and opening the door to rebuttal evidence by the petitioner.8

Ultimately, it will fall to the district court to sort through the 

evidence and decide whether the petitioner has established by a 

preponderance that the decision not to seek DNA testing at trial was 

not for any ―tactical reason[].‖

C

¶27 That leaves the question of the meaning of ―tactical reasons‖ 

under section 301(4). Gordon has identified two purportedly nontactical reasons for not seeking DNA testing at trial—that he did not 

know it was possible to subject the evidence in question to DNA 

testing and that he could not afford it. In the briefing on this appeal, 

 

Chadbourn ed., rev. ed. 1981))); Campbell v. United States, 365 U.S. 85, 

96 (1961) (explaining the injustice of requiring a party to carry the 

burden of proof on matters that are ―peculiarly within the 

knowledge‖ of the opposing party).

8 As explained below, the ―reasonableness of a lawyer‘s decision‖ is 

not the question; but it may affect the court‘s assessment of the 

credibility of the evidence presented by the parties. See infra ¶ 34

n.11.
GORDON v. STATE

Opinion of the Court

10

the State has advocated for affirmance on the ground that these 

reasons are ―tactical.‖ 

¶28 We do not resolve these questions conclusively here; we deem 

that inappropriate given that Gordon has not had the opportunity to 

file an opposition to the State‘s response to the petition, and the 

issues in question are somewhat fact-intensive. But we do provide 

some guidance for the court on remand, in response to the parties‘ 

arguments on this appeal.

¶29 A tactical reason is one ―involving tactics.‖ AMERICAN 

HERITAGE DICTIONARY 1771 (5th ed. 2011) (defining ―tactical‖). And a 

tactic is ―[a] device or expedient for accomplishing an end.‖ 

WEBSTER‘S THIRD NEW INT‘L DICTIONARY 2327 (2002). So a tactical 

reason is a reason marked by ―the arrangement of procedure with a 

view to ends.‖ See OXFORD ENGLISH DICTIONARY online (defining 

―tactical‖). And it does not, accordingly, encompass actions that are 

purely passive and lacking in purposefulness (such as simply not 

thinking about the possibility of DNA testing).9 But it does extend to 

purposeful decisions not to seek DNA testing at trial. 

¶30 A straightforward example of a tactical reason would be a 

concern that DNA test results might turn out to be unfavorable for 

the defense. See Johnson v. State, 2012 UT App 262, ¶ 2, 286 P.3d 1289. 

Another would be a purposeful decision to use the lack of DNA 

testing as a tool to attack the prosecution‘s case. See State v. Murdock, 

2011 UT App 71, ¶ 4, 253 P.3d 80. Such decisions are tactical in the 

sense that they are purposefully aimed at accomplishing a desired 

end—at increasing the likelihood of an acquittal.

¶31 Gordon proffers a further limitation on what should count as 

a tactical reason. He suggests that an objectively unreasonable decision 

at trial cannot be tactical. We disagree. 

¶32 Granted, we sometimes speak of a tactical act as something 

―[c]haracterized by adroitness, ingenuity, or skill.‖ AMERICAN 

HERITAGE DICTIONARY 1771 (5th ed. 2011). But that does not mean 

that a decision that seems unreasonable in hindsight was not made 

 

9 Dictionaries are ―useful in cataloging a range of possible 

meanings that a statutory term may bear.‖ Hi-Country Prop. Rights 

Grp. v. Emmer, 2013 UT 33, ¶ 19, 304 P.3d 851. They may, as here, 

reveal that words have ―a limited range of meaning‖ and help 

exclude an ―interpretation that goes beyond that range.‖ ANTONIN 

SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW

24 (Amy Gutmann ed., 1997).
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Opinion of the Court

11

for ―tactical reasons‖ at trial. That is the relevant timeframe under 

section 301(4). This provision bars postconviction requests for DNA 

testing when trial counsel declined to ―request DNA testing . . . for 

tactical reasons.‖ UTAH CODE § 78B-9-301(4). The relevant question is 

therefore whether the petitioner‘s trial counsel made a purposeful

tactical decision at trial in declining to seek DNA testing.10 Any 

decision based on counsel‘s purposeful analysis would be based on 

the ―adroitness, ingenuity, or skill‖ of trial counsel—whether or not 

it turned out to be a bad tactic in hindsight. 

¶33 When we speak of having a tactical reason for doing 

something, we imply only a purposeful basis for the decision at the 

time it was made. The tactical reason does not disappear if it is later 

apparent that the decision was an imprudent one. We may then 

think of the decision as a tactical error or mistake. But we still 

understand that it was done for a tactical reason. If a football coach 

runs a double-reverse pass on a third down and one yard to go when 

his team has a lead in the fourth quarter, we would question the 

quality of his ―adroitness, ingenuity, and skill‖ as a coach. But unless 

he chose the play at random out of the playbook, we wouldn‘t say 

that he lacked a tactical reason for his decision. We would just say 

that he made a tactical error.

¶34 The same goes for the decisions of trial counsel under the 

terms of section 301(4). A lawyer, like a football coach, may make 

tactical mistakes. But so long as the lawyer is purposefully 

attempting to represent his client, his decision not to seek DNA 

 

10 In this respect, the focus of the ―tactical reasons‖ inquiry under 

section 301(4) is different from consideration of counsel‘s ―tactical 

reasons‖ on claims for ineffective assistance of counsel. See, e.g., State 

v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162; State v. Crosby, 927 P.2d 638, 644 

(Utah 1996). In those cases the question is whether trial counsel could 

have had any conceivable tactical reason for a particular decision at 

trial—since any such reason is sufficient to defeat a claim for 

ineffective assistance under the Sixth Amendment. See Clark, 2004 UT 

25, ¶ 6 (noting the ― ̳strong presumption that . . . trial counsel 

rendered adequate assistance,‘‖ and emphasizing that a defendant 

must prove that there ―was no  ̳conceivable tactical basis for counsel‘s 

actions‘‖ (citation omitted)). But the sense of ―tactical reasons‖ under 

the PCRA is manifestly different. The focus here is on the actual 

reasons motivating a decision not to seek DNA testing at trial.
GORDON v. STATE

Opinion of the Court

12

testing at trial will be deemed to have been made for ―tactical 

reasons,‖ thus barring a postconviction request for testing.11

¶35 We close with some observations on the reasons proffered by 

Gordon in this case. The first reason is simple ignorance—that 

Gordon did not know that the evidence in question was susceptible 

to DNA testing. On one hand, ignorance is a classic non-tactical 

reason. As noted above, tactical reasons must be purposeful ones. So 

if no thought was given to DNA testing at Gordon‘s trial, it cannot 

be said that he ―did not request DNA testing or present DNA 

evidence for tactical reasons.‖ UTAH CODE § 78B-9-301(4). 

¶36 That said, we cannot resolve this matter on the record before 

us on appeal. Gordon has not presented any evidence of counsel’s

understanding or analysis of the availability of DNA testing. And 

that is plainly central to the analysis under section 301(4). Tactical 

decisions at trial are made by—or at least on advice of—counsel. 

Counsel‘s knowledge, moreover, would be imputed to the client.12

 

11 That does not mean that the reasonableness of a lawyer‘s 

decision is utterly irrelevant. At some point the unreasonableness of 

a decision may be so apparent that the court may question whether 

there was any purposeful—tactical—decision made at all. In a close 

case in which each side presents opposing evidence on the question 

whether there was a tactical reason to decline to seek DNA testing, 

the fact-finder could deem such a decision so unreasonable that there 

could have been no tactical reason at all. 

The converse would also hold. A trial lawyer‘s insistence that he 

never thought about the possibility of DNA testing would not have 

to be accepted at face value. In the face of a significant, obvious 

tactical advantage in forgoing DNA testing at trial, a court might 

find a lawyer‘s assertion of ignorance of the possibility of such 

testing not credible. 

Ultimately, however, the standard is purposefulness, not 

reasonableness. And the question would be for the court to resolve

on the basis of evidence of trial counsel‘s actual thought process as 

informed by circumstantial evidence of what is reasonable under the 

circumstances.

12 A lawyer is an agent to the client, and an agent‘s knowledge is 

imputed to the principal. See RESTATEMENT (THIRD) OF AGENCY § 5.03 

(2006) (―[N]otice of a fact that an agent knows or has reason to know 

is imputed to the principal if knowledge of the fact is material to the 

agent's duties to the principal.‖). A principal may therefore be held 

legally responsible for the knowledge of the agent. See Swan Creek 

(continued...)
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Opinion of the Court

13

So without some evidence of Gordon‘s counsel‘s knowledge or 

understanding, we cannot determine on this appeal whether 

Gordon‘s reasons for not seeking DNA testing at trial were nontactical. We leave that matter for the district court on remand.13

¶37 The same goes for Gordon‘s other proffered non-tactical 

reason—that he could not afford it. We cannot conclude on this 

record whether this was a non-tactical reason or a tactical one. 

Economic considerations, in our view, could be either tactical or nontactical. On one hand, if a defendant has such limited resources that 

he cannot afford to engage defense resources beyond the bare 

payment of the fees charged by his attorneys, then it could 

conceivably be said that he had no choice in the matter of requesting 

DNA testing and thus could not have made a purposeful decision.14

Yet not all financial decisions are non-tactical. Resource allocation, at 

some level, can be a core tactical decision at trial.15 So a decision, for 

example, to prioritize a different defense strategy over DNA testing 

would be a tactical one, as would a decision not to request DNA 

 

Vill. Homeowners v. Warne, 2006 UT 22, ¶ 27, 134 P.3d 1122 (agent‘s 

knowledge of assessments on property imputed to the principal).

13 As noted above, however, the analysis of the question of the 

purposefulness of counsel‘s trial decisions may be informed by 

considerations of reasonableness. The district court, in other words, 

would not be bound to accept counsel‘s assertion of ignorance or 

inattention. If the State points to evidence that any reasonable lawyer 

would have known that DNA testing was available, the court could 

conclude that counsel‘s assertion of ignorance is not believable.

14 See State v. Schoonmaker, 176 P.3d 1105, 1114 (N.M. 2008) 

(overruled on other grounds by State v. Consaul, 332 P.3d 850, 858 

(N.M. 2014) (―A defendant‘s inability to pay for necessary experts is 

not a trial tactic or strategy . . . .‖)).

15 See Gregg v. State, 2012 UT 32, ¶¶ 63–64, 279 P.3d 396 (Lee, J. 

dissenting) (noting that attorneys are required to ―adequately 

investigate‖ a case, but ―[e]ven the best lawyers with the biggest 

budgets make inevitable decisions about when to stop investigating‖

(citation omitted)) .
GORDON v. STATE

Opinion of the Court

14

testing because its benefits seem too marginal to justify spending 

money on it.16

¶38 We also leave this matter for resolution on remand. Because 

Gordon was not afforded an opportunity to submit a response to the 

State‘s motion and the State has not had a chance to file a reply, the 

record at this point is incomplete. Once those filings have been 

submitted, the district court will be in the best position to resolve the 

question presented.

III

¶39 We remand for further proceedings consistent with this 

opinion. On remand, Gordon should be afforded an opportunity to 

file an opposition to the State‘s motion to dismiss Gordon‘s DNA 

testing petition and the State should be allowed to file a reply.17

After those papers have been filed, it will fall to the district court to 

determine whether Gordon declined DNA testing at trial for

―tactical reasons.‖ See UTAH R. CIV. P. 65C(l) ( ―After pleadings are 

closed, the court shall promptly set the proceeding for a hearing or 

otherwise dispose of the case.‖).18 That question can be resolved on 

summary judgment if the State can establish its right to judgment as 

a matter of law under rule 56 of our rules of civil procedure. If not, 

the resolution of that question may require a bench trial (and, 

perhaps, discovery and other trial preparation). 

¶40 The ―tactical reasons‖ question may not be the only matter for 

resolution by the district court, however. To succeed on his petition 

for DNA testing, Gordon will have to satisfy all of the other elements 

of Part 3 of the PCRA, including by showing that the evidence he 

sought to test had ―the potential to produce new, noncumulative 

evidence that [will] establish [his] factual innocence. . . .‖ UTAH CODE

 

16 See Carter v. State, 2012 UT 69, ¶ 25, 289 P.3d 542 (listing 

―limitations in time, funding, and resources‖ as a possible tactical 

reason for failing to raise a claim at trial).

17 Civil rule 65C(k) does not expressly call for a reply, but we find 

such a right incorporated in rule 7(e). UTAH R. CIV. P. 7(e)(1)

(―Within 7 days after the memorandum opposing the motion is filed, 

the moving party may file a reply memorandum‖).

18 We read rule 65C‘s reference to disposition by ―hearing or 

otherwise‖ as an incorporation of other rules of civil procedure. 

Thus, where the rule refers to disposition by ―hearing,‖ it is 

recognizing the possibility of disposition by a hearing on a motion or 

ultimately a bench trial.
Cite as: 2016 UT 11

Opinion of the Court

15

§ 78B-9-301(2)(f). If the district court reaches that issue on remand in 

this case, it should do so in light of our interpretation of that 

provision in Meinhard v. State, 2016 UT 12.