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

                                    2015 UT 61


                                        IN THE
          SUPREME COURT OF THE STATE OF UTAH

                         SHANNON GLEN WINWARD,
                               Appellant,
                                           v.
                                 STATE OF UTAH,
                                    Appellee.

                                  No. 20130743
                               Filed July 29, 2015

                       Third District, Salt Lake
                The Honorable Katie Bernards-Goodman
                           No. 090906912

                                     Attorneys:
             Thomas M. Burton, Salt Lake City, for appellant
     Sean M. Reyes, Att’y Gen., Andrew F. Peterson, Asst. Att’y Gen.,
                               for appellee

       JUSTICE DURHAM authored the opinion of the Court, in which
           CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
                 JUSTICE PARRISH, and JUDGE ORME joined.
    Due to his retirement, JUSTICE NEHRING does not participate herein;
              COURT OF APPEALS JUDGE GREGORY K. ORME 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 DURHAM, opinion of the Court:
                              INTRODUCTION
    ¶1    This is Mr. Winward’s second appeal in a postconviction
proceeding he initiated in 2009. On his first appeal, we affirmed the
dismissal of most of his claims, concluding they were barred by the
statute of limitations of the Post-Conviction Remedies Act (PCRA).
Winward v. State, 2012 UT 85, ¶ 28, 293 P.3d 259. But we vacated the
dismissal on one narrow issue: whether the U.S. Supreme Court’s new
                             WINWARD v. STATE
                            Opinion of the Court
decisions in Lafler v. Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye,
132 S. Ct. 1399 (2012), created a new cause of action for Mr. Winward
under Utah Code section 78B-9-104(1)(f).
    ¶2    We conclude now that they did not. Lafler and Frye
announced a new rule, one not “dictated by precedent existing at the
time [Mr. Winward’s] conviction or sentence became final.” UTAH CODE
§ 78B-9-104(1)(f)(i). Therefore, they do not give rise to a new cause of
action under the PCRA, and Mr. Winward’s petition must be denied.
                              BACKGROUND
    ¶3     In 1993, Mr. Winward was charged with sodomizing his
girlfriend’s sons repeatedly over the course of four years and with
sexually assaulting a neighbor’s child. See State v. Winward, 941 P.2d 627,
629 (Utah Ct. App. 1997). His first trial ended in a hung jury. He was
tried again and convicted, and his conviction was affirmed by the court
of appeals. Id. at 636.
    ¶4    In 2009, Mr. Winward filed a petition for post-conviction relief
claiming his counsel had been ineffective in a number of ways,
including failing to inform him about a plea bargain the State allegedly
offered before the second trial. In response the State argued that
Winward’s petition was more than a decade late and therefore ought to
be dismissed under the PCRA’s time bar. The district court agreed, and
Mr. Winward appealed.
    ¶5     We affirmed the dismissal of most of Mr. Winward’s claims.
Winward v. State, 2012 UT 85, ¶ 28, 293 P.3d 259. But before we could
issue our decision, the legal landscape changed. The U.S. Supreme
Court decided Lafler v. Cooper and Missouri v. Frye, which established a
remedy for defendants who fail to accept a plea offer because of the
ineffective assistance of counsel, and who ultimately receive a stricter
sentence than was offered under the plea bargain. Lafler v. Cooper, 132 S.
Ct. 1376 (2012); Missouri v. Frye, 132 S. Ct. 1399 (2012). Because the
PCRA recognizes a cause of action based on new Supreme Court
decisions, and because Mr. Winward seemed to have alleged facts that
might support relief under Lafler and Frye, we remanded the case to
allow Mr. Winward to pursue a claim based on these decisions.
Winward, 2012 UT 85, ¶ 36.
   ¶6     Mr. Winward did so, and the State again asked the district
court to dismiss his claim under rule 12(b)(6). It gave two reasons for
dismissal. First, it argued that Lafler and Frye do not satisfy the
requirements to create a new cause of action under the PCRA because
they were not dictated by precedent when Mr. Winward’s conviction
became final in 1997. Second, it argued that even if the PCRA did allow
Mr. Winward to raise a claim under Lafler and Frye, he had failed to

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                             Opinion of the Court

allege facts sufficient to state such a claim. The court agreed with the
State’s first argument and dismissed Winward’s claim “because no set
of facts that he could prove would entitle him to relief.” It did not reach
the State’s second argument.
    ¶7    Mr. Winward now appeals again, arguing that the district
court erred and that he is entitled to relief under Lafler and Frye. He also
raises other arguments, which we will not consider for reasons
explained in Part III below.
                          STANDARD OF REVIEW
   ¶8      We review 12(b)(6) dismissals for correctness. St. Jeor v. Kerr
Corp., 2015 UT 49, ¶ 6, ___ P.3d ___.
                                  ANALYSIS
    ¶9     We affirm the denial of Mr. Winward’s claim for the same
reason the district court gave in its ruling: Lafler and Frye do not satisfy
the requirements of the PCRA provision under which Mr. Winward
claims relief. We then explain our reasons for deciding the case on this
basis instead of the alternative grounds the State suggested. Finally, we
refuse to consider the remaining arguments Mr. Winward’s attorney has
raised and, because of his unprofessional prosecution of this appeal,
refer him to the Office of Professional Conduct for discipline.
       I. LAFLER AND FRYE DO NOT GIVE RISE TO A CLAIM UNDER
                   UTAH CODE SECTION 78B-9-104(1)(f)
           A. Section 78B-9-104(1)(f)(i) Incorporates Federal Retroactivity
                                     Jurisprudence
   ¶10     The PCRA allows a petition like Mr. Winward’s if
           (f) the petitioner can prove entitlement to relief under a
           rule announced by the United States Supreme Court,
           the Utah Supreme Court, or the Utah Court of Appeals
           after conviction and sentence became final on direct
           appeal, and that:
           (i) the rule was dictated by precedent existing at the
           time the petitioner’s conviction or sentence became
           final . . . .
UTAH CODE § 78B-9-104(1)(f). In order to state a claim, Mr. Winward
must therefore show that Lafler and Frye were “dictated by precedent
existing at the time [his] conviction and sentence became final.” 1



   1 The parties have briefed this point as an issue of “retroactivity,” but
this label is not quite accurate. Section 104(1)(f) does not purport to
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                             Opinion of the Court
    ¶11 This language became part of the PCRA in 2008, 2 and we have
never before had occasion to interpret it. In doing so now, we note first
that section 104(1)(f)(i) is quoted almost verbatim from the U.S. Supreme
Court’s decision in Teague v. Lane, 489 U.S. 288, 301 (1989). Further, we
note that by 2008, “dictated by precedent” had become the established
federal standard for distinguishing between old rules and new rules for
purposes of determining whether a Supreme Court decision applies
retroactively on collateral review. See, e.g., Whorton v. Bockting, 549 U.S.
406, 416 (2007) (quoting Teague); Williams v. Taylor, 529 U.S. 362, 381
(2000) (same); Saffle v. Parks, 494 U.S. 484, 488 (1990) (same). Decisions
“not dictated by precedent” announce new rules, and apply retroactively
on collateral review only in certain narrow circumstances. Chaidez v.


determine whether Utah courts should apply new Supreme Court
decisions retroactively; rather, it determines whether new Supreme
Court decisions give rise to a new cause of action under the PCRA. See
UTAH CODE 78B-9-104(1) (“[A] person who has been convicted . . . may
file an action . . . upon the following grounds: . . . (f) the petitioner can
prove entitlement to relief under a rule announced by the United States
Supreme Court . . . after conviction and sentence became final . . . .”
(emphasis added)).
      A similar distinction exists in federal law. Whether a new Supreme
Court decision applies retroactively in habeas cases is determined by the
Supreme Court’s retroactivity jurisprudence. See, e.g., Chaidez v. United
States, 133 S. Ct. 1103, 1107 (2013) (determining the retroactivity of a
Supreme Court decision by applying Teague v. Lane, 489 U.S. 288 (1989)).
But whether a new Supreme Court decision creates an opportunity for
prisoners to file a “second or successive habeas corpus application” is
governed by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). 28 U.S.C. §§ 2244(b)(2)(A), 2255(h)(2).
      Our holding here concerns only the latter sort of issue—whether
Mr. Winward’s petition is permissible under Utah Code section 78B-9-
104(1)(f). We do not reach the question of what retroactivity principles
apply in the causes of action listed in subsections 78B-9-104(1)(a)
through 104(1)(e). We do note, however, that the Supreme Court’s
retroactivity precedents may possibly act as a floor, requiring us to
allow retroactive application of at least those precedents that would be
applied retroactively in a federal habeas case. See, e.g., State v. Whitfield,
107 S.W.3d 253, 267 (Mo. 2003) (“It is up to each state to determine . . .
[which U.S. Supreme Court decisions are retroactive] on collateral
review. So long as the state’s test is not narrower than that set forth in
[the Supreme Court’s retroactivity cases], it will pass constitutional
muster.”). We will deal with these issues if and when they arise.
   2   2008 Utah Laws 1845, 1845–46.
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United States, 133 S. Ct. 1103, 1107 (2013) (quoting Teague, 489 U.S. at
301). However, decisions that are dictated by precedent—those that
merely apply “’the principle that governed’ a prior decision to a
different set of facts”—are retroactive on collateral review so long as the
precedent they rest on predates the conviction being challenged. Id.
(quoting Teague, 489 U.S. at 307).
    ¶12 “[W]hen a word or phrase is ‘transplanted from another legal
source, whether the common law or other legislation, it brings the old
soil with it.’” Maxfield v. Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (quoting
Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L.
REV. 527, 537 (1947)). Seeing no contrary intent in the statute’s text or
history, we therefore conclude that the legislature intended section
104(1)(f) to allow new PCRA petitions based on decisions that would be
considered “dictated by precedent,” and therefore retroactive, under the
U.S. Supreme Court’s decisions applying Teague. Therefore, if Lafler and
Frye are retroactive under federal law as decisions that merely applied
the principles of earlier cases, then they create a new cause of action
under the PCRA.
              B. Lafler and Frye Were Not Dictated by Precedent
   ¶13 Unfortunately for Mr. Winward, we are persuaded that Lafler
and Frye are not retroactive under the federal “dictated by precedent”
standard, and that they therefore do not create a new cause of action
under section 78B-9-104(1)(f). 3 In doing so, we look in part to the level of

   3  We recognize that this conclusion is in tension with the federal
circuit courts’ unanimous determination that Lafler and Frye did not
announce a “new rule” that allows a “second or successive” habeas
petition under AEDPA. From First Circuit to Eleventh, see Pagan-San
Miguel v. United States, 736 F.3d 44, 45 (1st Cir. 2013) (per curiam);
Gallagher v. United States, 711 F.3d 315, 315 (2d Cir. 2013) (per curiam);
Navar v. Warden Fort Dix FCI, 569 F. App’x 139, 139–40 (3d Cir. 2014)
(per curiam); Harris v. Smith, 548 F. App’x 79, 79 (4th Cir. 2013) (per
curiam); In re King, 697 F.3d 1189, 1189 (5th Cir. 2012) (per curiam); In re
Liddell, 722 F.3d 737, 738 (6th Cir. 2013) (per curiam); Hare v. United
States, 688 F.3d 878, 879 (7th Cir. 2012); Williams v. United States, 705 F.3d
293, 294 (8th Cir. 2013) (per curiam); Buenrostro v. United States, 697 F.3d
1137, 1140 (9th Cir. 2012); In re Graham, 714 F.3d 1181, 1183 (10th Cir.
2013) (per curiam); In re Perez, 682 F.3d 930, 932–33 (11th Cir. 2012) (per
curiam).
      Ultimately these cases do not decide the issue. Their reasoning is
mostly cursory, and few of them explicitly apply the “dictated by
precedent” standard from Teague. And, although courts sometimes use
Teague to interpret AEDPA’s “new rule” standard, see, e.g., Perez, 682
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                             WINWARD v. STATE
                            Opinion of the Court
judicial disagreement surrounding Lafler and Frye, but we also perform
an independent assessment of the law as it existed prior to those
decisions and ask whether that law dictated the outcome of Lafler and
Frye. 4
1. Differences of Judicial Opinion Before Lafler and Frye
    ¶14 When applying Teague, the U.S. Supreme Court looks in part
to the differences of opinion surrounding a particular issue prior to its
authoritative decision by the Court. In doing so, it has sometimes looked
for division among lower courts over the issue, see Butler v. McKellar, 494
U.S. 407, 415 (1990), or to the degree of disagreement among the Justices
who considered the issue when it was decided, see O’Dell v. Netherland,
521 U.S. 151, 159–160 (1997). It also asks whether the Supreme Court
that announced the rule claimed to be relying on “controlling
precedent,” or whether it expressly announced a new rule. Lambrix v.
Singletary, 520 U.S. 518, 528–29 (1997). These considerations support a
conclusion that Lafler and Frye were dictated by controlling precedent,
but not overwhelmingly so.
   ¶15 Examining first the differences of opinion among courts prior
to Lafler and Frye, we see that very few courts disagreed with the
doctrine that Lafler and Frye articulated. Among the federal courts of
appeals, it seems only the Seventh Circuit held that defendants are not
prejudiced by a failure to accept an advantageous plea bargain. See


F.3d at 932–33, we are aware of no court explicitly holding that the two
are the same, or using cases under AEDPA’s “new rule” standard to
guide its application of Teague. We also note that the one federal
decision of which we are aware that considered whether Lafler and Frye
were “dictated by precedent” under Teague, rather than whether they
announced a “new rule” under AEDPA, agrees with our conclusion that
Lafler and Frye were not dictated by precedent. Berry v. United States, 884
F. Supp. 2d 453, 462 (E.D. Va. 2012). We therefore conclude that the
cases holding that Lafler and Frye do not establish a new rule for AEDPA
purposes, although persuasive, are not dispositive.
   4 We note in this context that under the PCRA, the chief issue is
whether Lafler and Frye were “dictated by precedent existing at the time
the petitioner’s conviction or sentence became final,” UTAH CODE § 78B-9-
104(1)(f)(i) (emphasis added)—in this case, precedent existing in 1997. If
we were applying a rapidly changing, unsettled body of legal principles,
this might require a close analysis of the law of 1997, but here such
analysis is unnecessary. Because we are persuaded that no precedent
preexisting Lafler and Frye dictated those cases’ outcome, we can simply
hold that Lafler and Frye never create a new cause of action under
section 104(1)(f).
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United States v. Springs, 988 F.2d 746, 749 (7th Cir. 1993). Courts in
Louisiana and Missouri reached similar conclusions, see State v. Monroe,
757 So. 2d 895, 898 (La. Ct. App. 2000); Bryan v. State, 134 S.W.3d 795,
802 (Mo. Ct. App. 2004), and so, of course, did we, see State v. Greuber,
2007 UT 50, ¶ 12, 165 P.3d 1185 (“[A] fair trial for the defendant
generally negates the possibility of prejudice.”). But a large majority of
the courts presented with claims like those in Lafler and Frye—even the
Seventh Circuit itself in a later case—reached the same result that Lafler
and Frye did, though they frequently did not acknowledge the precise
legal question that Lafler and Frye decided. Lafler v. Cooper, 132 S. Ct.
1376, 1385 (2012) (listing circuit court decisions consistent with Lafler);
Greuber, 2007 UT 50, ¶ 12 n.4 (listing decisions inconsistent with our
holding in Greuber). This is exactly the sort of near-unanimity we would
expect to see if Lafler and Frye were dictated by precedent.
    ¶16 Much of the Supreme Court’s opinions in Lafler and Frye also
support a conclusion that these decisions were dictated by precedent. To
begin with, the decisions were made on appeal from postconviction
proceedings. Lafler, 132 S. Ct. at 1383–84; Missouri v. Frye, 132 S. Ct. 1399,
1405 (2012). In such proceedings, a court normally applies the law as it
existed at the time of the conviction, see Teague, 489 U.S. at 310, and the
Supreme Court usually does not use such proceedings as an occasion to
pronounce new law. See id. at 316; In re Perez, 682 F.3d 930, 933 (11th Cir.
2012) (per curiam) (“[T]he Court rarely, if ever, announces and
retroactively applies new rules of constitutional criminal procedure in
the postconviction context.”). Further, the Court’s opinions generally
present their reasoning in terms of the application of precedent, rather
than reasoning from constitutional first principles. See Lafler, 132 S. Ct. at
1384–87 (discussing cases including Strickland v. Washington, 466 U.S.
668 (1984); Hill v. Lockhart, 474 U.S. 52 (1985); Lockhart v. Fretwell, 506
U.S. 364 (1993); and Nix v. Whiteside, 475 U.S. 157 (1986)). For the most
part, they are the sort of opinions we would expect to see when the
Supreme Court applies an old rule rather than articulating a new one.
   ¶17 Nevertheless, the opinions did not expressly say that they
applied old law rather than articulating new law. Hare v. United States,
688 F.3d 878, 879 (7th Cir. 2012) (“Neither Frye nor [Lafler] directly
addressed the old rule/new rule question . . . .”). 5 And although they


   5 As In re Perez points out, Lafler did hold that the state court whose
decision it was reviewing had acted “contrary to clearly established
law,” as was required by AEDPA for habeas relief. Perez, 682 F.3d at 933
(quoting Lafler, 132 S. Ct. at 1390). And, as Perez points out, in order for a
rule to be “clearly established law” under AEDPA, it must be an old
rule under Teague. Id.
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                              WINWARD v. STATE
                             Opinion of the Court
emphasized precedent, so did the opinions of the four dissenters. See
Lafler, 132 S. Ct. at 1392 (Scalia, J., dissenting) (“[Lafler’s result] is
foreclosed by our precedents.”); id. at 1393 (“[Lafler] is a vast departure
from our past cases . . . .”). Justice Scalia, writing for three Justices,
described Lafler as “open[ing] a whole new field of constitutionalized
criminal procedure.” Id. at 1391.
    ¶18 In short, Lafler and Frye announced a rule that was followed
by a large majority of courts, and they did so in postconviction cases, in
opinions devoted primarily to the application of precedent. Yet they did
not say they were dictated by precedent, and they were both 5–4
decisions with dissenting opinions that also claimed the clear support of
precedent. Although, on the whole, these considerations suggest that
Lafler and Frye were dictated by precedent, we do not find them
conclusive.
2. Independent Assessment of Lafler and Frye
    ¶19 The key holding of Lafler and Frye is that a defendant who has
been convicted as the result of a fair trial or voluntary plea, and
sentenced through a constitutionally immaculate sentencing process,
can claim to have been prejudiced by his counsel’s ineffectiveness
during plea bargaining. And this key holding is simply not to be found
in the Supreme Court’s prior case law—not explicitly, and not by clear
implication.
    ¶20 Strickland v. Washington does, as Lafler points out, describe the
test for prejudice as requiring defendants to “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Lafler, 132 S. Ct. at
1384 (quoting Strickland, 466 U.S. at 694). And this can undoubtedly be
read to support Lafler’s conclusion that “[i]n the context of pleas a
defendant must show the outcome of the plea process would have been
different with competent advice.” Id. But other language in Strickland
suggests a different interpretation. Strickland also describes its prejudice
test as requiring a “showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable,” 466
U.S. at 687, and states that the “purpose” of the right to effective


      But, contrary to Perez, the Lafler Court did not hold that the state
court had acted contrary to clearly established law by applying
Strickland in a manner that failed to anticipate the outcome of Lafler and
Frye. Instead, the Lafler Court concluded that the state court had failed to
apply Strickland at all. 132 S. Ct. at 1390. It was this failure, not the
failure to anticipate Lafler and Frye, that was contrary to clearly
established law and therefore allowed the Court to grant habeas relief.
Id.
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assistance of counsel is “to ensure a fair trial,” id. at 686. The holding of
Lafler—that prejudice is possible even if a defendant has received a fair
trial—decides an issue neither contemplated nor addressed by
Strickland.
   ¶21 Later cases may have expanded Strickland’s prejudice test, but
they still did not dictate the result in Lafler and Frye. For example, Hill v.
Lockhart established that prejudice exists where a defendant accepts a
plea bargain because of ineffective assistance, and thus waives his right
to trial. 474 U.S. at 59. But it did not establish the converse: that
prejudice exists when a defendant rejects a plea bargain because of
ineffective assistance, thereby exercising his right to trial. Kimmelman v.
Morrison established that Strickland prejudice does not require an
actually unreliable verdict, but merely a verdict based on an unfair
process. 477 U.S. 365, 380 (1986). But the admission of unlawfully
obtained evidence, which was addressed in Kimmelman, is a sort of
procedural unfairness very different from the failure to accept an
advantageous plea bargain.
    ¶22 Further, while some later cases expanded the scope of
Strickland’s prejudice test in ways relevant to Lafler and Frye, other cases
have limited it. In particular, the Lafler dissenters rely on Lockhart v.
Fretwell, which makes clear that not all potential differences in outcome
can constitute prejudice: “[A] prejudice analysis ‘focusing solely on
mere outcome determination, without attention to whether the result of
the proceeding was fundamentally unfair or unreliable,’ would be
defective.” Lafler, 132 S. Ct. at 1394 (Scalia, J., dissenting) (quoting
Fretwell, 506 U.S. at 369).
    ¶23 This seems to us to be the pivot on which Lafler turns: whether
it is “fundamentally unfair” to give someone a harsher sentence than
would have been available to him under a plea deal that he would have
accepted but for his counsel’s failures. And for authority on this crucial
point, Lafler cites only its companion case Frye and a law review article
published in 2011. Lafler, 132 S. Ct. at 1387 (citing Frye, 132 S. Ct. at 1407–
08, and Stephanos Bibas, Regulating the Plea-Bargaining Market: From
Caveat Emptor to Consumer Protection, 99 CAL. L. REV. 1117, 1138 (2011)).
It was not the Court’s precedent that decided this issue, but its
recognition that “plea bargains have become . . . central to the
administration of the criminal justice system,” Frye, 132 S. Ct. at 1407,
and its desire to extend the protections of the Constitution to defendants
who never go to trial. Whether this extension was wise or foolish is not
for us to decide, but we are convinced that it was in fact an extension.
   ¶24 In short, we cannot conclude that Lafler and Frye merely
applied the principles of old cases to new facts, as the “dictated by
precedent” standard requires. Consequently, Lafler and Frye do not give
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                            Opinion of the Court
rise to a new cause of action under Utah Code section 78B-9-104(1)(f),
and we must affirm the district court’s dismissal of Mr. Winward’s
claim.
    II. WE DECLINE TO CONSIDER THE STATE’S CHALLENGE TO
          THE SUFFICIENCY OF MR. WINWARD’S FACTUAL
                        ALLEGATIONS
    ¶25 As the above analysis shows, the district court was correct:
there is no set of facts that would entitle Mr. Winward to relief under
section 104(1)(f). We therefore decline to consider the State’s alternative
argument that Mr. Winward’s claim should be dismissed because he
failed to plead adequate facts under Lafler and Frye.
    ¶26 The State encouraged us to adopt this alternative argument
because “it avoids the necessity of delving into a constitutional question
of first impression.” We disagree. Each of the State’s arguments would
require us to determine how a federal constitutional issue—namely, the
correct application of Lafler and Frye—interacts with a state statutory
issue, namely the correct interpretation of the PCRA and (in the case of
the State’s alternative argument) the Utah Rules of Civil Procedure.
    ¶27 We have decided the case based on our interpretation of
section 104(1)(f) for two reasons. First, of the State’s two arguments, this
one has the narrower implications. The PCRA gives petitioners only a
one-year window in which to bring 104(1)(f) petitions under new
Supreme Court decisions. UTAH CODE § 78B-9-107(1), (2)(f). Lafler and
Frye were decided in 2012, and their one-year window closed in 2013. It
is therefore unlikely that any new 104(1)(f) petitions relying on Lafler
and Frye will ever be filed again, and our application of section 104(1)(f)
will affect only Mr. Winward and the similarly situated prisoners—if
any—whose 104(1)(f) petitions are currently pending below.
    ¶28 On the other hand, deciding this case on the State’s alternative
basis would set the pleading standard for all future PCRA petitions
based on Lafler and Frye. This would not be a bad thing, of course; at
some point, that standard will need to be set. But setting it will require
us to untangle a procedural issue that has not been briefed in this case.
    ¶29 Specifically, rule 65C directs PCRA petitioners to file
affidavits and other evidence with their complaint. UTAH R. CIV. P.
65C(e)(1). Mr. Winward did so here, filing three separate affidavits,
which the State’s brief cites as being part of Mr. Winward’s petition. Yet
these affidavits are not obviously part of Mr. Winward’s petition, but
rather “attachments” to it. UTAH R. CIV. P. 65C(e). The petition itself is
the equivalent of a complaint in an ordinary civil case, and rule 12(b)
does not usually allow judges to consider evidence outside the
complaint when they rule on 12(b)(6) motions. Instead, it requires them

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either to “exclude[]” such evidence or to treat the 12(b)(6) motion as a
motion for summary judgment and give “all parties . . . reasonable
opportunity to present” their facts. UTAH R. CIV. P. 12(b).
    ¶30 In order to rule on the State’s alternative argument, we would
have to determine whether it would be appropriate for us to treat
Mr. Winward’s affidavits as part of his petition on a 12(b)(6) motion.
This question has not been briefed at all by the parties. Indeed, the
State’s entire alternative argument—the sufficiency of Mr. Winward’s
factual allegations under Lafler and Frye—has not been adequately
briefed by the petitioner. Infra ¶ 37.
    ¶31 Under such circumstances, the wiser course is the narrower
one, with clearer law and better briefing. We therefore decline to
determine whether Mr. Winward has pleaded facts adequate for relief
under Lafler and Frye—or rather, facts that would be adequate if Lafler
and Frye could possibly provide relief to a petitioner in Mr. Winward’s
circumstances.
         III. WE CANNOT CONSIDER MR. WINWARD’S OTHER
                          ARGUMENTS
    ¶32 When we remanded this case for further proceedings, the
scope of our remand was clear and narrow. “To qualify [for relief],” we
wrote, “Mr. Winward must prove two things”: first, that he was entitled
to relief under Lafler and Frye; and second, that “the rule [established in
Lafler and Frye] was dictated by precedent existing at the time the
petitioner’s conviction or sentence became final.” Winward v. State, 2012
UT 85, ¶ 35, 293 P.3d 259 (quoting UTAH CODE § 78B-9-104(1)(f)).
    ¶33 Since we remanded, however, Mr. Winward has found a new
attorney—Thomas Burton—and the change has not been an
improvement. Instead of following our instructions and arguing that
Lafler and Frye were “dictated by precedent existing at the time the
petitioner’s conviction or sentence became final,” Mr. Burton has tried to
persuade us that Lafler and Frye are “total watershed cases” and “more
important than Gideon [v. Wainwright].” According to Mr. Burton, these
cases establish a broad principle that “the plea bargain stage is the most
important part of the criminal procedure.” To this first broad principle
Mr. Burton adds a second—which he locates in Faretta v. California, 422
U.S. 806 (1975)—under which a criminal defendant has a “[Sixth]
Amendment constitutional right to control his own defense.”
    ¶34 From these two principles Mr. Burton derives an alarming set
of conclusions. The smallest of these is that Mr. Winward had an
“absolute right to know everything in detail about any pleas sought or
received.” Because this right was violated, Mr. Burton argues, Winward
is now “entitled to immediate release” without regard to the procedural
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                             WINWARD v. STATE
                            Opinion of the Court
limitations of the PCRA. Indeed, Mr. Burton seems to suggest that
Mr. Winward must be released even if his counsel’s performance was
perfectly adequate.
    ¶35 But this is only the beginning. Because serious crimes in Utah
usually carry indeterminate sentences, a person pleading guilty to one
of these crimes does not know, at the time of his plea bargain, precisely
what period of incarceration he is accepting by pleading guilty. This
violates Mr. Burton’s principle that defendants must know “everything
in detail” about the plea bargains that are offered to them. Mr. Burton
therefore argues that all defendants who have pled guilty to crimes
bearing indeterminate sentences must be allowed to enforce the
sentencing guidelines against the parole board as a binding part of their
plea agreement—or, in the alternative, that all of them must be released
at once. In fact, Mr. Burton tells us, all indeterminate sentences are
constitutionally invalid because they violate procedural and substantive
due process and our constitutional requirement of separation of powers.
    ¶36 How are we to respond to such arguments? They’re not the
worst we’ve seen: they follow a discernable logic, and they express
legitimate concerns about the fairness of a criminal justice system that,
though designed for trials and sentences, is now dominated by pleas
and paroles. But they misconstrue precedent in a manner far exceeding
good-faith disagreement, one that demonstrates either gross
incompetence or a reckless disregard for the law.
    ¶37 Perhaps more to the point, these arguments help us not a whit
in deciding this case. They go far beyond the scope of the ruling from
which Mr. Winward appeals; indeed, they go beyond the scope of the
statute that provides the basis for Mr. Winward’s entire petition. They
are thus legally irrelevant, and Mr. Burton’s devotion to them has
distracted him from litigating the issues on which his client’s fate
actually depends. In particular, after the State’s brief raised the serious
issue of the adequacy of Mr. Winward’s petition, Mr. Burton could
spare only a page of his reply brief for his response—a page lacking
even a single citation to the petition whose adequacy had been
challenged. The remainder of his reply was dedicated to persuading us
that we really can release the majority of Utah’s prison population
immediately, and to reviving a Strickland claim whose dismissal we had
already affirmed in our earlier Winward decision.
    ¶38 We note that we are not the first court to reprimand
Mr. Burton for his conduct in prosecuting an appeal. Just last year, the
court of appeals struck one of Mr. Burton’s briefs because it was
“irrelevant and scandalous,” State v. Wolf, 2014 UT App 18, ¶ 12 n.4, 319
P.3d 757, and, in a later case, cautioned him not to employ
“inflammatory language and personal accusations” in his briefing, State

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                            Cite as: 2015 UT 61
                            Opinion of the Court

ex. rel. C.M. v. State, 2014 UT App 234, ¶ 8, 336 P.3d 1069. In 2010, a
California court sanctioned Mr. Burton for “flagrant” violations of the
appellate rules. Emercon Const., Inc., v. Butterfield, No. G041033, 2010 WL
1952736, at *15 (Cal. Ct. App. May 17, 2010). And as far back as 2003, the
Tenth Circuit chose to remind Mr. Burton that, under Tenth Circuit
rules, “presenting a brief to the court constitutes an attorney’s
certification that the issues presented are warranted by existing law or
by a nonfrivolous argument for [changing the law,] and that the factual
contentions or denials are supported in the record.” LaFleur v. Teen Help,
342 F.3d 1145, 1154 (10th Cir. 2003) (internal quotation marks omitted).
    ¶39 Since reminders, reprimands, and sanctions have not
motivated Mr. Burton to conduct himself as a competent and
professional appellate advocate, we conclude that harsher punishment
is necessary. We therefore refer Mr. Burton to the Office of Professional
Conduct for appropriate disciplinary proceedings.
                              CONCLUSION
    ¶40 In summary, we conclude that Lafler v. Cooper and Missouri v.
Frye were not dictated by any precedent existing prior to their decision.
We therefore agree with the district court that Mr. Winward could not
have alleged any set of facts that would have given him a cause of action
under the PCRA’s retroactivity provision, and, accordingly, affirm the
district court’s dismissal of Mr. Winward’s claim.




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