                 This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                 2019 UT 13


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                       BRANDON LEE SANDOVAL,
                             Appellant,
                                       v.
                              STATE OF UTAH,
                                 Appellee.

                               No. 20150617
                            Filed April 3, 2019

                            On Direct Appeal

                     Third District, Salt Lake
                The Honorable Randall N. Skanchy
                         No. 130907469

                                 Attorneys:
        Troy L. Booher, Freyja R. Johnson, Andrew G. Deiss,
          Jensie L. Anderson, Salt Lake City, for appellant
  Sean D. Reyes, Att’y Gen., Andrew F. Peterson, Asst. Solic. Gen.,
                     Salt Lake City, for appellee

   JUSTICE HIMONAS authored the opinion of the Court in which
   CHIEF JUSTICE DURRANT, JUSTICE PEARCE, and JUSTICE PETERSEN
                             joined.
      ASSOCIATE CHIEF JUSTICE LEE filed a concurring opinion.

   JUSTICE HIMONAS, opinion of the Court:
                           INTRODUCTION
   ¶1 Brandon Sandoval appeals the district court’s summary
judgment decision denying his petition for relief under Utah Code
section 78B-9-101, et seq., the Post-Conviction Remedies Act (PCRA).
Having failed below to offer a viable theory of relief under the
language of the PCRA, Sandoval attempts to launch an as-applied
challenge to the PCRA and rule 4-206 of the Utah Code of Judicial
                         SANDOVAL v. STATE
                         Opinion of the Court

Administration, arguing that the destruction of evidence in
accordance with rule 4-206 violated his due process rights under the
Utah Constitution. Because Sandoval did not properly present this
standalone due process argument to the district court and,
irrespective of that procedural defect, failed to satisfy his burden of
persuasion on appeal, we affirm the grant of summary judgment.
                          BACKGROUND
    ¶2 Sandoval was arrested and charged with aggravated
burglary, theft, and criminal mischief in 2006. A jury convicted him
on all counts in 2008. The court of appeals affirmed his conviction in
2010, and this court denied his petition for writ of certiorari on June
11, 2011. No physical evidence linked Sandoval to the scene of the
burglary. But a beanie, a bandana, and a duffle bag filled with stolen
property were collected from a yard near the scene of the burglary.
A bullet shell casing was also found at the scene. None of these items
were ever tested for DNA. 1
    ¶3 Rule 4-206(4)(B) of the Utah Code of Judicial Administration
directs court personnel to dispose of valueless property from
exhibits in evidence “[a]fter three months have expired from final
disposition of the case.” Nearly two years after Sandoval’s
conviction was upheld, on May 9, 2012, court personnel disposed of
all physical evidence from his case, including a “black knit beanie
cap, [a] blue and white bandana, and [a bullet] shell casing, all of
which were likely touched by the perpetrators of the burglary.” 2 The
Rocky Mountain Innocence Center (RMIC) began investigating
Sandoval’s case in the fall of 2012. On October 24, 2012, RMIC was
informed that the evidence used as trial exhibits had not been

_____________________________________________________________
   1 As the case before us is not the direct criminal appeal and

focuses on events that occurred after the trial, we only briefly
highlight those facts from the underlying trial that are relevant to the
disposition of this matter.
   2 Rule 4-206(2)(E) instructs the court clerk to “release . . . all
exhibits . . . includ[ing] . . . firearms [and] ammunition” to the party
which offered them at trial. We acknowledge that the bullet shell
casing may qualify as ammunition and therefore should have been
returned to the sponsoring party. And its destruction may, therefore,
theoretically implicate due process protections. However, we do not
explore this point as Sandoval has not carried his burden with
regard to the due process claim.


                                   2
                         Cite as: 2019 UT 13
                        Opinion of the Court
returned by the court. RMIC was notified by the court regarding the
disposal of evidence when it received the actual certificate of
destruction on November 2, 2012.
    ¶4 One year later, on October 30, 2013, Sandoval filed a petition
for post-conviction relief under rule 65C of the Utah Rules of Civil
Procedure. Sandoval made a number of arguments in the district
court. Sandoval primarily argued that he is entitled to relief under
Utah Code section 78B-9-104. 3 He argued that his conviction had
been obtained in violation of the United States Constitution and
Utah Constitution because of: (1) the State’s failure to perform DNA
testing on the evidence; (2) the failure to preserve the evidence such
that Sandoval could avail himself of post-conviction DNA testing;
and (3) the State’s failure to investigate another suspect. He also
argued that he received ineffective assistance of counsel at trial and
on his direct appeal. Additionally, Sandoval argued that he is
entitled to relief—independent of section 104—because the State
violated his due process rights under the Utah Constitution when it

_____________________________________________________________
    3 Section 104 provides myriad circumstances under which a court

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


                                  3
                         SANDOVAL v. STATE
                        Opinion of the Court

disposed of the evidence and deprived him of the ability to seek
post-conviction DNA testing, as provided in Utah Code section 78B-
9-301. Both parties moved for summary judgment. The district court
granted the State’s motion and Sandoval appealed to this court.
    ¶5 On appeal, Sandoval has abandoned his claims seeking
relief under section 104 of the PCRA. Instead, Sandoval focuses his
appeal solely on whether his due process rights under the Utah
Constitution were violated when the evidence was destroyed and he
became unable to seek post-conviction DNA testing under section
301 of the PCRA.
   ¶6 We exercise       jurisdiction   under   Utah    Code   section
78A-3-102(3)(j).
                     STANDARD OF REVIEW
    ¶7 We review for correctness constitutional and statutory
interpretation issues, granting no deference to the district court.
Schroeder v. Utah Attorney Gen.’s Office, 2015 UT 77, ¶ 16, 358 P.3d
1075; Harvey v. Cedar Hills City, 2010 UT 12, ¶ 10, 227 P.3d 256.
Similarly, we review the district “court’s ‘legal conclusions and
ultimate grant or denial of summary judgment’ for correctness and
view[] ‘the facts and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party.’” Orvis v.
Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations omitted).
                            ANALYSIS
    ¶8 Sandoval has failed to articulate any relevant section of the
PCRA under which he can seek relief. While his original petition
alleged the potential for relief under section 104, he has dropped
these claims on appeal. He does not present us with any
constitutional or statutory violations of his rights that occurred at
trial and he has dropped his claim for ineffective assistance of
counsel. Accordingly, the PCRA itself offers him no relief.
    ¶9 Finding no relief in the PCRA, Sandoval presents a
standalone state due process argument claiming that, by following
rule 4-206(4) of the Utah Rules of Judicial Administration and
disposing of the evidence two years after the final disposition of his
case, the State violated his state due process rights by stripping him
of the ability to exercise the right to post-conviction DNA testing
created by section 301 of the PCRA. He additionally asserts that the
lack of direct notice of the pending destruction of the evidence
violated his due process rights. We do not pass on these due process
claims for a number of reasons. First, these claims are improperly

                                  4
                          Cite as: 2019 UT 13
                          Opinion of the Court
before us, having been shoehorned into Sandoval’s rule 65C petition.
Second, even if these claims were procedurally proper, Sandoval has
not carried his burden in persuading us that (1) such a due process
right exists and (2) if that right exists, the destruction of the evidence
violated that right. We therefore affirm the district court’s grant of
summary judgment.
                        Section 104 of the PCRA
    ¶10 Once all legal remedies—including a direct appeal—have
been exhausted, the PCRA is the sole statutory remedy for any
person who challenges a conviction or sentence for a criminal
offense. UTAH CODE § 78B-9-102. Rule 65C provides the procedural
vessel by which a petition seeking post-conviction relief under the
PCRA may be filed. Accordingly, a proper rule 65C petition must
seek some form of relief under the PCRA. On appeal, Sandoval has
abandoned all claims seeking relief under the PCRA. The reason for
this is simple: the PCRA itself offers no remedy to Sandoval. As
Sandoval’s counsel candidly admitted at oral argument, “[t]he State
is correct in noting that Mr. Sandoval’s claim does not fall under any
provision of the PCRA.”
    ¶11 The relevant portions of section 104 require Sandoval to
show either that his conviction was obtained or his sentence was
imposed in the face of some constitutional or statutory violation or
that he received ineffective assistance of counsel. See supra ¶ 4 n.3.
Sandoval cannot demonstrate any such violation. He has dropped all
appeals that pertain to any supposed due process violations at or
before trial or during sentencing—as enumerated in subsections
104(1)(a)–(c)—and no longer asserts ineffectiveness of counsel under
subsection 104(1)(d). The relief he now seeks is no longer rooted in
section 104. Instead, he seeks relief on the basis that evidence was
destroyed after his conviction was obtained and his sentence was
imposed—a basis on which the PCRA offers no statutory remedy.
See UTAH CODE § 78B-9-104(1) (enumerating the grounds for relief
under the PCRA). In other words, Sandoval no longer asserts any
claim for relief that would properly be brought in a rule 65C petition.
                     Sandoval’s as-applied challenge
    ¶12 No doubt because Sandoval recognizes that the PCRA itself
offers him no remedy, on appeal he has staged an as-applied
challenge under section 301 of the PCRA, claiming that destruction
of the evidence in accordance with rule 4-206 violated his due
process rights under the Utah Constitution. Section 301 of the PCRA
provides the right to a convicted felon to “file a petition for post-
conviction DNA testing in the trial court that entered the judgment

                                    5
                         SANDOVAL v. STATE
                         Opinion of the Court

of conviction if the person asserts factual innocence under oath” and
the petition meets several statutory requirements. 4 UTAH CODE
§ 78B-9-301(2) Such an avowal, if discovered to be fallacious, would
risk a perjury charge and could harm Sandoval’s chances at parole
and release. Sandoval argues that he has a substantive right under
the Utah Constitution to avail himself of post-conviction DNA
testing under section 301 and that this right was violated when the
evidence was destroyed without actual notice nearly two years after
the final disposition of his case. This claim fails for a number of
reasons.
    ¶13 As an initial matter, a rule 65C petition is an improper
procedural vessel for bringing standalone due process claims.
Because rule 65C provides the procedure for filing a petition for
post-conviction relief under the PCRA, a proper rule 65C petition
must seek relief under specific provisions of the PCRA. While
Sandoval presented this type of claim below, his appeal has
abandoned any such claims. See supra ¶ 10. Sandoval’s standalone
due process claim is therefore improperly before us. However, even
if we allowed Sandoval to shift the focus of his rule 65C petition to a
due process inquiry separated from the statutory rights granted by
the PCRA, he has failed to carry his burden here in demonstrating a
due process violation under the Utah Constitution.
   ¶14 Relying on a federal standard, District Attorney’s Office for
Third Judicial District v. Osborne, 557 U.S. 52 (2009), Sandoval asserts
that by enacting section 301 and providing procedures for
post-conviction DNA testing the State created a substantive right to
post-conviction DNA testing. Sandoval then asserts that this right to
DNA testing creates a “liberty interest” in any procedures that are

_____________________________________________________________
    4 Sandoval has never actually filed a petition for post-conviction

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

                                   6
                          Cite as: 2019 UT 13
                          Opinion of the Court
“essential to the realization” of the right created by the PCRA and
that the state-created right to DNA testing begets “yet other rights to
procedures essential to the realization of the parent right.” Osborne,
557 U.S. at 68. Therefore he claims that, by following rule 4-206(4)
and disposing of post-conviction evidence, the State violated his state
due process rights by stripping him of the ability to exercise the right
to DNA testing created by the PCRA. Sandoval has failed to do the
requisite leg-work to persuade this court that (1) such a right exists
under the Utah Constitution, and (2) even if such a right existed, the
destruction of the evidence violated that right.
    ¶15 We have stated that “[t]here will be times when the
legislature enacts laws that confer substantive rights . . . [and
sometimes] the procedures attached to the substantive right cannot
be stripped away without leaving the right or duty created
meaningless.” State v. Drej, 2010 UT 35, ¶ 31, 233 P.3d 476. But
Sandoval has not presented us with focused briefing on this issue.
Instead, Sandoval simply argues that Osborne, a federal due process
case, mandates the recognition of specific rights under the Utah
Constitution. After citing Osborne for the proposition that such rights
exists—an unclear proposition 5—he turns to the Tiedemann standard,
a state due process case discussing pre-trial destruction of evidence, 6
_____________________________________________________________
    5 The federal postconviction “right[s] to due process [are] not

parallel to [] trial right[s], but rather must be analyzed in light of the
fact that [the convicted] has already been found guilty at a fair trial,
and has only a limited interest in postconviction relief.” Osborne, 557
U.S. at 69. We decline to explore the contours of any state due
process rights unnecessarily and have not been asked to pontificate
on federal due process guarantees.
   6  Sandoval asserts that State v. Tiedemann, 2007 UT 49, 162 P.3d
1106, provides the appropriate framework for determining whether
his due process rights under the Utah Constitution were violated
when the clerk destroyed evidence after the final disposition of his
case. Tiedemann entails a lengthy discussion about the rights of
criminal defendants with respect to any information possessed by
the State which could aid in their defense at trial. In other words,
Tiedemann addresses the pre-trial destruction of evidence. Sandoval
has not demonstrated that Tiedemann should also apply in the
post-trial context. And nothing in that opinion mentions the rights of
appellants who are already convicted and Sandoval has not carried
his burden in persuading us that its reasoning should extend to post-
trial destruction of evidence.


                                    7
                         SANDOVAL v. STATE
                        Opinion of the Court

for application of that supposed right with no explanation as to why
it should apply in the post-trial context. This is not enough. 7
    ¶16 Sandoval cannot establish state constitutional rights to
post-conviction DNA testing—and any procedural rights related
thereto—by citing to a federal case. Instead, Sandoval would have to
demonstrate that the due process clause of the Utah Constitution
provides such rights. Such an argument would likely involve a
thorough examination of Utah’s constitutional history in an attempt
to show that the original public meaning of the due process clause
considered and encompassed such a right. Sandoval has not made
that argument. Accordingly, we decline to comment on whether
state due process dictates that the PCRA, by providing the right to
DNA testing, creates a substantive right to post-conviction evidence
retention, noticing, or any procedures related thereto.
    ¶17 Furthermore, even if such a right existed, Sandoval has not
carried his burden in explaining why the destruction of the evidence
violated that right. Sandoval argues that his supposed due process
right was violated when the State destroyed the evidence two years
after the final disposition of the case without giving Sandoval actual
notice. But Sandoval fails to adequately explain why he was entitled
to actual notice or why two years was an insufficient amount of time
for him to exercise his statutory right to post-conviction DNA
testing. Although Sandoval was not given actual notice of the
destruction of the evidence, he did have constructive notice—in the
form of rule 4-206—that the evidence would only be retained for
three months. Sandoval does not explain why this constructive
notice was insufficient, instead opting to squeeze his notice
arguments into the Tiedemann framework—which he has failed to
demonstrate is the appropriate framework in these cases.
Additionally, Sandoval fails to argue that the two years between the
final disposition of his case and the destruction of the evidence was
an insufficient amount of time for him to avail himself of the DNA


_____________________________________________________________
    7 The concurrence criticizes us for “opining on matters of state

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



                                  8
                          Cite as: 2019 UT 13
                         Opinion of the Court
testing statute for purposes of due process. For these reasons,
Sandoval’s standalone due process claim fails. 8
                              Rule 4-206
    ¶18 Because we foresee a potential due process challenge in a
future case we now wish to comment on rule 4-206. Subsection (4)
prescribes the procedure for disposing of exhibits used in evidence
after final disposition of a case. The three-month time limit
functionally imposes a temporal bar on the rights afforded to the
convicted by the PCRA because the preservation of their evidence is
not guaranteed beyond three months. Additionally, there is no
formal notice sent to the convicted aside from the publication of the
rule. We note that the Judicial Council may wish to explore whether
the three-month time limit imposed by the rule so limits the rights
granted by the PCRA as to implicate due process concerns.
Additionally, the Council may wish to examine the lack of formal
notice directly to the convicted. We do not comment here on the due
process implications of the time period imposed by rule 4-206 or the
form of notice required by the Utah Constitution. 9




_____________________________________________________________
    8 To be clear, we do not mean to imply by “standalone” that

Sandoval’s alleged state due process claim is not grounded in the
PCRA. As Sandoval has argued, it is section 301 of the PCRA that
allegedly creates the liberty interest that may give rise to a state due
process claim. As such, the “sole remedy” provision of section 102 of
the PCRA, which the concurrence faults us for not invoking with
respect to Sandoval’s state due process claim, simply has no logical
play. To say otherwise is to say that the PCRA creates a
constitutional right that the PCRA itself forecloses: The metaphor of
the serpent devouring its own tail is an apt one.
   9 We have already noted the potential argument available to
Sandoval related to rule 4-206(2)(E) but decline to explore what
constitutes “ammunition” for the purposes of this rule or
determining if a procedural violation occurred in the disposal of trial
exhibits.

                                   9
                           SANDOVAL v. STATE
       LEE, A.C.J., concurring in part and concurring in the result

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


    ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring
in the judgment:
    ¶20 The case before us on appeal was filed in the district court
under the Postconviction Remedies Act (PCRA), Utah Code section
104. Appropriately so, as Brandon Sandoval had previously
challenged his conviction on direct appeal, and the PCRA provides
“the sole remedy for any person who challenges a conviction or
sentence for a criminal offense and who has exhausted all other legal
remedies, including a direct appeal.” UTAH CODE § 78B–9–102(1).
This statutory remedy “replaces all prior remedies for review,
including extraordinary or common law writs.” Id. The PCRA “does
not apply” to “(a) habeas corpus petitions that do not challenge a
conviction or sentence for a criminal offense; (b) motions to correct a
sentence pursuant to Rule 22(e), Utah Rules of Criminal Procedure;
or (c) actions taken by the Board of Pardons and Parole.” Id. § 78B-9-
102(2). But except for these excluded proceedings, the PCRA
forecloses any claim for relief not allowed by its terms. See id. § 78B-
9-102(1). Such preclusion is “[t]he whole point of the sole remedy
provision” of the PCRA. Meza v. State, 2015 UT 70, ¶ 43, 359 P.3d 592
(Lee, A.C.J., concurring in part and concurring in the judgment).
    ¶21 The majority gives some effect to this provision. In affirming
the dismissal of the claims presented on appeal the majority notes
that “Sandoval has abandoned all claims seeking relief under the
PCRA” and correctly concludes that “[t]he relief he now seeks is
[not] rooted in section 104.” Supra ¶¶ 10, 11. Sandoval’s remaining
claim asserts that his right to due process was violated “when the
evidence was destroyed without actual notice nearly two years after
the final disposition of [this] case.” Supra ¶ 12. Because this claim
seeks relief on “a basis on which the PCRA offers no statutory

                                    10
                          Cite as: 2019 UT 13
      LEE, A.C.J., concurring in part and concurring in the result

remedy,” the court rightly holds that this claim is foreclosed by the
sole remedy provision of the PCRA and is thus not properly before
us on this appeal. Supra ¶¶ 11, 13 (holding that “Sandoval’s
standalone due process claim is therefore improperly before us”).
   ¶22 The majority fails to carry this conclusion to its logical end,
however. Despite holding that Sandoval’s claim is foreclosed by the
PCRA, the majority nonetheless proceeds to opine on the merits of
an asserted due process right to postconviction DNA testing. See
supra ¶¶ 14–17. I write separately because I respectfully disagree
with this portion of the court’s opinion. By rejecting Sandoval’s due
process claim the majority fails to give effect to the sole remedy
provision of the PCRA. Importantly, the court also runs afoul of the
doctrine of constitutional avoidance. 1

_____________________________________________________________
    1 The majority seeks to avoid this problem by framing its

constitutional analysis as a response to an “as-applied” challenge to
the constitutionality of the PCRA. See supra ¶ 12. Such a challenge
admittedly would not—and could not—be foreclosed by the PCRA.
But there is no as-applied challenge before us in this case. No such
challenge was leveled in the district court, and none was presented
in the briefs on appeal.
    An as-applied challenge to the PCRA would identify a basis in
the constitution for foreclosing the legislature’s authority to limit the
grounds for postconviction review to those set forth by the
legislature. Such challenges have been raised in recent cases before
this court. In Patterson v. State (No. 20180108) for example, the
petitioner asserts that the sole remedy provision of the PCRA is
unconstitutional to the extent it forecloses the authority of the Utah
courts to issue “extraordinary writs” under article VIII of the Utah
Constitution. Brief for Petitioner at 34, Patterson v. State (No.
20180108). Sandoval would be free to raise this kind of challenge to
the PCRA. He is entitled to show that the PCRA exceeds the
legislature’s constitutional authority as applied to his case. But he
has not attempted to do so—not in the district court, and not in the
briefs on appeal.
    Instead of raising an as-applied challenge to the constitutionality
of the PCRA, Sandoval has simply asserted that he has a meritorious
constitutional claim that is foreclosed by the PCRA. See supra ¶ 11
(noting that Sandoval “seeks relief on the basis that evidence was
destroyed after his conviction was obtained and his sentence was
imposed—a basis on which the PCRA offers no remedy”). But that is
not an as-applied challenge to the constitutionality of the PCRA. It is
                                                           (continued . . .)

                                   11
                            SANDOVAL v. STATE
       LEE, A.C.J., concurring in part and concurring in the result

    ¶23 The doctrine of constitutional avoidance is an important
“principle of judicial restraint.” Utah Stream Access Coal. v. VR
Acquisitions LLC, 2019 UT 7, ¶ 55, --- P.3d --- (concluding that
disposition of constitutional claim was necessary because no non-
constitutional claim was asserted). When a case may be decided on
either constitutional or non-constitutional grounds, the doctrine of
avoidance directs us to resolve the case on non-constitutional
grounds. 2
    ¶24 The majority overrides this doctrine. Despite its conclusion
that Sandoval’s claims are statutorily barred, the court rejects
Sandoval’s claims on the alternative ground that they fail on their
merits. It states that “even if we allowed Sandoval to shift the focus
of his rule 65C petition to a due process inquiry separated from the
statutory rights granted by the PCRA, he has failed to carry his
burden here in demonstrating a due process violation under the
Utah Constitution.” Supra ¶ 13. In so doing the court proceeds to
analyze the due process questions presented in this case—outlining a
basis for a party to “demonstrate that the due process clause of the
Utah Constitution” may establish a right to post-conviction DNA
testing, supra ¶ 16, and adopting a standard for judging whether the




the assertion of a purportedly meritorious constitutional claim. That
is not the same thing. The constitutionality of the PCRA as applied to
a particular claim cannot turn on whether the underlying claim is
itself meritorious. (That would result in an odd scheme in which the
threshold right to assert a claim would depend on whether the claim
ultimately succeeds on its merits. I know of no constitutional
principle that works like that; Sandoval certainly has not attempted
to identify one.) It must instead depend on whether the legislature
exceeded its constitutional authority in acting to foreclose a
particular claim. Sandoval has raised no such as-applied challenge.
And this accordingly cannot be a basis for overriding the doctrine of
constitutional avoidance.
   2 See State v. DeJesus, 2017 UT 22, ¶ 33, 395 P.3d 111 (“[C]ourts will
not pass upon a constitutional question . . . if there is also present
some other ground upon which the case may be disposed of.”
(internal quotation marks omitted) (quoting Slack v. McDaniel, 529
U.S. 473, 485 (2000)); State v. Wood, 648 P.2d 71, 82 (Utah 1982)
(stating the “fundamental rule” that the courts should “avoid
addressing a constitutional issue unless required to do so”).

                                   12
                          Cite as: 2019 UT 13
       LEE, A.C.J., concurring in part and concurring in the result

destruction of evidence would “violate[] that right” assuming “such
a right existed.” Supra ¶ 17. 3
    ¶25 We should not be opining on matters of state constitutional
law in a case in which the constitutional claim is foreclosed by
statute. Doing so ignores the sole remedy provision of the PCRA4
and fails to honor the doctrine of constitutional avoidance.




_____________________________________________________________
   3 The majority seeks to avoid this problem by insisting that it is
not opining on the merits of Sandoval’s due process claim, but
instead just “emphasiz[ing] the problems with how Sandoval elected
to brief this matter.” Supra ¶ 17 n.8. That is a fair characterization of
how the court frames some of its grounds for rejecting Sandoval’s
claim. But the court also speaks in some detail about both federal
and state cases of relevance to the due process claim propounded by
Sandoval. And it ultimately concludes that “Sandoval’s standalone
due process claim fails.” Supra ¶ 17. This is constitutional analysis set
forth in a section of the opinion that is framed as an alternative
ground for the court’s judgment. And it flows from a premise that is
mistaken—that Sandoval has somehow asserted an as-applied
challenge to the constitutionality of the PCRA. See supra ¶ 22 n.10.
   4  The majority seeks to distance itself from the PCRA’s sole
remedy provision with the assertion that it has “no logical play” in a
case in which the alleged right to DNA testing is itself rooted in the
PCRA. See supra ¶ 15 n.7. But this misunderstands the nature of
Sandoval’s claim. Sandoval seeks to establish a constitutional (not a
statutory) right to postconviction DNA testing. Sandoval has pointed
to statutory provisions (in the PCRA) that recognize a right to DNA
testing as evidence of the constitutional right that he asserts. But he
has not asserted that the PCRA establishes a right to the DNA testing
he seeks. Instead he has asked us to establish a new constitutional
right that is not prescribed by statute. And for that reason we cannot
dismiss the applicability of the sole remedy provision on the ground
that “otherwise” the PCRA would be viewed as “creat[ing] a
constitutional right that the PCRA itself forecloses.” Supra ¶ 17 n.8.

                                   13
