State v. Ogden

538 P.3d 595

STATE of Utah, Appellee,

v.Jesse Roger OGDEN, Appellant.

No. 20210359

Supreme Court of Utah.

Heard May 15, 2023

Filed October 12, 2023

Sean D. Reyes, Att'y Gen., Christopher A. Bates, Asst. Solic. Gen., Salt Lake City, for appellee

Patricia Geary Glenn, Park City, for appellant

Justice Hagen authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Pearce, Justice Petersen, and Justice Pohlman joined.

Justice Hagen, opinion of the Court:

INTRODUCTION

¶1 In 2014, Jesse Roger Ogden pled guilty to two counts of attempted aggravated sexual abuse of a child. Six years later, he filed a motion under rule 60(b)(6) of the Utah Rules of Civil Procedure, which allows a court to grant relief from a judgment under certain circumstances. Ogden alleged that his conviction should be set aside because his counsel provided ineffective assistance during his plea and sentencing proceedings due to an actual conflict of interest that could not be waived. Ogden never challenged his conviction via a direct appeal or under Utah's Post-Conviction Remedies Act (PCRA).

¶2 The district court denied Ogden's rule 60(b)(6) motion. It explained that even if Ogden had a viable ineffective assistance of counsel claim, rule 60(b)(6) was not the appropriate vehicle and Ogden should have brought the claim in a petition under the PCRA.

¶3 On appeal, Ogden argues that the "unusual and exceptional circumstances" underpinning his rule 60(b)(6) motion place his claim for relief outside the scope of the PCRA. We disagree. Ogden's claim of ineffective assistance of counsel falls squarely within the ambit of the PCRA. Because Ogden's challenge to his conviction could have been brought in a petition for post-conviction relief, we affirm the district court's denial of Ogden's rule 60(b)(6) motion.

BACKGROUND

¶4 In November 2013, Ogden was charged with one count of sodomy upon a child and one count of aggravated sexual abuse of a child for acts he committed against his daughter (Victim).¹ Both crimes carried a presumptive sentence of fifteen years to life. Ogden retained attorney Bradley Schofield to represent him.

¶5 In a January 2014 district court hearing in Ogden's criminal case, Schofield raised the issue of a possible conflict. Schofield explained to the court that he had previously represented Ogden in Ogden's 2008 divorce from Victim's mother (Mother). Schofield also explained that a few months before the State brought criminal charges against Ogden, he had agreed to represent Mother's then-current husband in an action to modify alimony payments to his previous wife.² Schofield indicated he did not believe that his representation of Ogden in the pending criminal matter posed a conflict because Ogden had admitted to the criminal conduct. Schofield explained that his aim in the criminal case was to get Ogden the "best deal" possible and to "get him out of the minimum mandatory sentence and guideline."

¶6 The district court investigated the possible conflict further, asking whether Schofield had ever represented Victim or Mother. Schofield confirmed that he had not.

¶7 The court then turned to Ogden, asking whether he understood the "dynamics" of the situation and whether he understood the issue. Ogden asserted that he understood and was not concerned about the possible conflict. The court assured Ogden that if he felt like he needed to retain a different attorney, the court would give him time to do so.

¶8 The State acknowledged that a conflict existed but indicated that it would be satisfied with Ogden waiving the conflict—so long as there was "a very good record" showing that Ogden understood he might not receive the resolution he was looking for.

¶9 The district court judge then explained to Ogden:

[I]f you don't like what they offer and this ends up going to trial and you get convicted, that somehow on appeal you're going to raise this as an issue. That's what I think the State is concerned about is that you're telling me one thing and six months from now you might come back and say oh, wait a minute. Let's start over, ... I should never have had Mr. Schofield as my attorney.

Ogden again stated that he understood. The court pressed further, asking Ogden if he wanted time to talk to another lawyer first, but Ogden declined the offer. The court found that Ogden waived any possible conflict arising from Schofield's representation.

¶10 In March 2014, Ogden pled guilty to two counts of attempted aggravated sexual abuse of a child—a first degree felony with a lesser sentence of three years to life. Not long after Ogden's sentencing, Schofield withdrew as Ogden's counsel, and new counsel was appointed to represent Ogden in restitution proceedings. Ogden never directly appealed his criminal conviction, nor did he file any claim for relief under the PCRA.

¶11 The district court ordered Ogden to pay over $2.2 million to Victim. Ogden then obtained new counsel and appealed the restitution order. We vacated the restitution order, clarified the relevant legal standard, and remanded to the district court to recalculate restitution. State v. Ogden , 2018 UT 8, ¶ 66, 416 P.3d 1132.

¶12 On remand, Ogden again obtained new counsel. Over a year after the criminal restitution proceedings resumed on remand, and six years after Ogden's conviction, Ogden moved under rule 60(b)(6) of the Utah Rules of Civil Procedure to vacate his conviction.

¶13 Ogden argued that his conviction had been entered in violation of his constitutional right to conflict-free counsel. Ogden reasoned that Schofield had been operating under an actual conflict of interest when he represented Ogden during the plea and sentencing proceedings and that the conflict was not waivable. In Ogden's view, this type of claim differed from an ineffective assistance of counsel claim under the PCRA, making a rule 60(b)(6) motion the appropriate avenue for relief.

¶14 The State opposed Ogden's rule 60(b)(6) motion, arguing that it lacked merit and was procedurally barred. The State contended that the district court had adequately inquired into any possible conflict and that, even if a conflict did exist, Ogden waived it and consented to Schofield's continued representation. Further, the State argued that Ogden should have brought his claim as a direct appeal or under the PCRA. And because he did not do so in a timely manner, his claim was barred. The State also argued that even if rule 60(b)(6) was an appropriate avenue for relief, Ogden did not bring the motion within a reasonable time because he filed it more than six years after his conviction.

¶15 After holding oral argument on the matter, the district court denied Ogden's rule 60(b)(6) motion. The court concluded that even if there was a conflict of interest, it was attenuated at best, and Ogden had waived it in open court. The court also found that Ogden could have, and should have, brought his claim as a direct appeal or under the PCRA. And, in any event, the court determined, Ogden's rule 60(b)(6) motion was untimely.

¶16 Ogden then filed this appeal.

ISSUE AND STANDARD OF REVIEW

¶17 The issue before us is whether the district court erred in denying Ogden's rule 60(b)(6) motion.³ We generally review a denial of a rule 60(b) motion for abuse of discretion. In re Estate of Willey , 2016 UT 53, ¶ 5, 391 P.3d 171. But we review "the legal conclusions embedded in the district court's denial of [a] rule 60(b) motion" for correctness. State v. Boyden , 2019 UT 11, ¶ 22, 441 P.3d 737.

ANALYSIS

¶18 Ogden contends that the district court erred when it denied his rule 60(b)(6) motion to set aside his criminal conviction. The court denied Ogden's motion on three alternative grounds: (1) there was no conflict of interest in Schofield's representation, or even if there was, it had been waived; (2) Ogden should have brought his claim as a direct appeal or under the PCRA rather than in a rule 60(b)(6) motion; and (3) Ogden's rule 60(b)(6) motion was untimely in any event. We do not reach grounds one and three because we hold that rule 60(b) is not a proper vehicle for Ogden's challenge. Ogden cannot invoke rule 60(b) to challenge his conviction based on his trial counsel's alleged conflict of interest because such a claim could have been brought in a petition for post-conviction relief.

¶19 Rule 60(b) of the Utah Rules of Civil Procedure provides that a court "may relieve a party ... from a judgment, order, or proceeding" under certain circumstances, including mistake, newly discovered evidence, fraud, or faulty judgment. UTAH R. CIV. P. 60(b) ; see also Kell v. State , 2012 UT 25, ¶ 13, 285 P.3d 1133. Broadly speaking, rule 60(b) "seeks to strike a delicate balance between two countervailing impulses: the desire to preserve the finality of judgments and the incessant command of the court's conscience that justice be done in light of all the facts." Kell , 2012 UT 25, ¶ 16, 285 P.3d 1133 (cleaned up). The rule's purpose "is to make an exception to finality when the strong interest in the finality of judgments is outweighed by the paramount importance of preserving our courts as arbiters of just and equitable proceedings." State v. Boyden , 2019 UT 11, ¶ 29, 441 P.3d 737 (cleaned up).

¶20 To that effect, subsection (6) is a catch-all provision that permits a court to "relieve a party ... from a judgment, order, or proceeding for ... any other reason that justifies relief." UTAH R. CIV. P. 60(b)(6) ; see also Honie v. State , 2014 UT 19, ¶ 87, 342 P.3d 182. But rule 60(b)(6) "should not be understood to be a substitute for appeal." Kell , 2012 UT 25, ¶ 18, 285 P.3d 1133 (cleaned up). Subsection (6) "should be very cautiously and sparingly invoked by the court only in unusual and exceptional circumstances." Id. (cleaned up); see also Archuleta v. Galetka , 2011 UT 73, ¶ 168, 267 P.3d 232. To constitute "unusual and exceptional circumstances," there "would have to be circumstances that did not manipulate or circumvent the [PCRA]." Kell , 2012 UT...