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

                              2014 UT 36

                                IN THE
      SUPREME COURT OF THE STATE OF UTAH
                          ———————
                       CECIL BLAINE RALPHS,
                      Petitioner and Appellant,
                                   v.
             THE HONORABLE CLARK A. MCCLELLAN,
                    and THE STATE OF UTAH,
                   Respondents and Appellees.
                        ———————
                         No. 20130413
                     Filed August 29, 2014
                        ———————
                  Eighth District, Vernal Dep’t
               The Honorable Clark A. McClellan
                         No. 121800514
                        ———————
                           Attorneys:
               Staci A. Visser, Clayton A. Simms,
                  Salt Lake City, for appellant
          Brent M. Johnson, Salt Lake City, for appellee
                        Judge McClellan
            Daniel E. Bokovoy, Michael C. Drechsel,
                Vernal, for appellee State of Utah
                          ———————
    JUSTICE LEE authored the opinion of the Court, in which
   CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
          JUSTICE DURHAM, and JUSTICE PARRISH joined.
                         ———————

 JUSTICE LEE, opinion of the court:
  ¶1 This case comes to us on a petition for extraordinary relief
from a case originating in justice court. The underlying justice
court proceedings involved misdemeanor charges against Cecil
Ralphs under lewdness provisions of the criminal code. An earlier
lewdness case culminated in a conviction in justice court in 2010.
When Ralphs was subject to further lewdness charges in 2011 and
2012, he was charged with felonies in light of his prior convic-
                       RALPHS v. MCCLELLAN
                       Opinion of the Court

tions. And at that point Ralphs sought to challenge his 2010 con-
viction on the ground that he had been deprived of his right to
appeal the 2010 justice court decision under the standards set
forth in Manning v. State, 2005 UT 61, 122 P.3d 628, and Utah Rule
of Appellate Procedure 4(f).
  ¶2 The justice court determined that Ralphs had failed to es-
tablish that he had been denied his right to appeal under Manning.
On de novo appeal to the district court, Judge McClellan affirmed
the justice court’s decision, concluding that Ralphs had waived
the right to assert the denial of his right to appeal under Manning
by waiting too long to assert that claim.
  ¶3 The petition is granted. We hold that the procedures set
forth in Manning and confirmed in Utah Rule of Appellate Proce-
dure 4(f) extend to a de novo appeal of a justice court decision
filed in the district court. And, finding no time limit on the face of
Manning or rule 4(f), we conclude that there was no basis for a
finding of waiver, and accordingly order the district court to con-
sider the merits of Ralphs’s arguments under Manning and rule
4(f).
                                  I
  ¶4 In December 2009, Ralphs entered a plea in abeyance in
Uintah County Justice Court to a charge of lewdness under Utah
Code section 76-9-702(1), a class B misdemeanor. In 2010, prior to
the expiration of the twelve-month term of that plea in abeyance,
Ralphs was charged with and convicted of a second act of lewd-
ness. As a result, the justice court concluded that Ralphs had vio-
lated the terms of his plea in abeyance on the 2009 charge and ac-
cordingly entered a conviction on the 2009 charge.
  ¶5 In January 2011, Ralphs was charged with lewdness for a
third time. In light of the two prior convictions, the State charged
Ralphs with a third-degree felony under Utah Code section 76-9-
702(2)(b)(ii), which provides for an enhancement of misdemeanor
lewdness to a third-degree felony if the defendant has been previ-
ously convicted of lewdness two or more times. A jury found
Ralphs guilty as charged in October 2011. In addition, the jury
made a special finding that Ralphs had two prior lewdness con-
victions and the court accordingly entered a conviction for a third-
degree felony.



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                        Opinion of the Court

  ¶6 Ralphs faced a fourth lewdness charge in April 2012. The
2012 case was also charged as a felony based on the prior convic-
tions.
  ¶7 While this fourth lewdness case was pending, Ralphs filed
a motion requesting a hearing under Manning v. State. In that mo-
tion Ralphs asserted that his otherwise time-barred appeal from
the second (2010) lewdness case should be reinstated on the
ground that he had been deprived of his right to appeal by no
fault of his own. See Manning v. State, 2005 UT 61, ¶ 31, 122 P.3d
628. Ralphs argued, specifically, that he had asked his attorney to
file an appeal from the second lewdness judgment within the ap-
propriate timeframe, but that his counsel had deprived him of the
right to appeal by failing to file it. The justice court held a hearing
on the Manning issue and ultimately denied Ralphs’s motion, de-
termining that Ralphs had not met his burden of proving that he
was unconstitutionally deprived of his right to appeal.
  ¶8 Ralphs filed an appeal of that justice court ruling in the
Eighth District Court, seeking de novo review under Utah Code
section 78A-7-118. The State moved to dismiss the appeal for lack
of subject-matter jurisdiction. At the initial hearing Judge McClel-
lan determined to “take the evidence on the Manning” issue and
to decide later whether the court had jurisdiction to resolve the
matter.
  ¶9 Ralphs’s counsel called several witnesses in support of his
Manning claim, including his appointed counsel in the second
lewdness case. That attorney testified that Ralphs had expressed
his desire to appeal, and that the attorney had not personally filed
an appeal because he had sold his practice to another attorney
during that time and had directed that attorney to file the appeal.
The successor attorney did not testify at the hearing. Ralphs and
his wife also testified. Both indicated that Ralphs had directed his
attorney in the second lewdness conviction to file an appeal.
  ¶10 After hearing evidence and considering further briefing on
jurisdiction, the district court granted the State’s motion to dis-
miss. Instead of ruling on the jurisdictional question, however, the
district court concluded that Ralphs had waived his right to a
Manning hearing by waiting too long to assert his claim, and
therefore held that Ralphs was foreclosed from “collaterally” at-
tacking a conviction that served as an enhancement for the charge


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                       RALPHS v. MCCLELLAN
                       Opinion of the Court

he currently faced. The district court held that if Ralphs had want-
ed to raise the argument that he was deprived of his right to ap-
peal in the second case, he should have done so in the third case.
And it expressed concern over the “mischief” that would ensue
from allowing Manning hearings to proceed without any time lim-
it, on an issue that would leave the parties and subsequent pro-
ceedings in limbo.
  ¶11 Ralphs first sought to pursue an appeal of the district
court’s decision in the court of appeals, but subsequently with-
drew the appeal and filed a petition for extraordinary relief. The
court of appeals then certified the matter to us for review.
  ¶12 In the petition before us, Ralphs challenges the district
court’s decision granting the State’s motion to dismiss on the
grounds that the district court misinterpreted our precedent, rules
of procedure, and statutes. Under civil rule 65B, this petition may
succeed only if “no other plain, speedy and adequate remedy is
available,” UTAH R. CIV. P. 65B(a), and upon a showing that the
district court “abused its discretion.” Id. at 65B(d)(2).
  ¶13 The threshold portion of that standard is easily established.
Because there is no right of appeal from a district court’s de novo
review of a justice court decision, 1 there is no other “plain,
speedy, and adequate remedy” for an abuse of discretion in a dis-
trict court’s decision in such circumstances. UTAH R. CIV. P. 65B(a).
So the controlling question is simply whether the district court
abused its discretion in dismissing Ralphs’s motion. We turn to
that question now.
                                  II
  ¶14 In challenging the dismissal of his appeal, Ralphs contends
that the district court misinterpreted and misapplied Manning,
appellate rule 4(f), and the doctrine of waiver. Respondents, for
their part, challenge the district court’s jurisdiction to entertain a
motion under Manning or rule 4(f), and also insist that any such
motion was time-barred and foreclosed by Utah Rule of Criminal
Procedure 38, which generally governs appeals from justice courts

 1  See UTAH CODE § 78A-7-118(9) (in appeals from justice courts,
“[t]he decision of the district court is final and may not be ap-
pealed unless the district court rules on the constitutionality of a
statute or ordinance”).

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                       Opinion of the Court

to district courts, and by the exclusive remedy provision of the
Post-Conviction Remedies Act (PCRA), Utah Code sections 78B-9-
101 to 405.
  ¶15 We agree with Ralphs. We grant the petition, holding (a)
that appellate rule 4(f) governs Ralphs’s motion to reinstate his
appeal from justice court to district court, in a manner foreclosing
the district court’s waiver analysis; (b) the district court retained
jurisdiction to entertain Ralphs’s motion; and (c) the PCRA’s ex-
clusive remedy provision is inapplicable.
   A.     Appellate Rule 4(f) and an Appeal from Justice Court
  ¶16 The threshold question concerns the applicability of the
principles set forth in Manning, as now formalized in appellate
rule 4(f). Respondents challenge the applicability of those princi-
ples on the basis of criminal rule 38, which prescribes the proce-
dures for an “appeal” from a justice court to a district court, yet
says nothing of a Manning-like procedure for a motion to reinstate
an appeal. UTAH R. CRIM. P. 38.
  ¶17 We acknowledge a degree of ambiguity on the face of
Manning, appellate rule 4(f), and criminal rule 38. Manning and
appellate rule 4(f) are addressed, on their face and in the first in-
stance, to a traditional appeal, while criminal rule 38 is addressed
to the sui generis proceeding for challenging a justice court ruling
in a de novo trial in district court. And rule 38 prescribes detailed
procedures that overlap with the terms of appellate rule 4 in terms
of the manner and means of initiating that de novo challenge—yet
omits any express reference to a motion to reinstate an appeal as
prescribed in Manning and formalized in appellate rule 4(f). It is
accordingly possible, reading the terms of rule 38 in isolation, to
interpret the criminal rule to foreclose the Manning motion for re-
instatement filed by Ralphs in the justice court.
  ¶18 At the same time, the alternative construction posed by
Ralphs is also possible. Although Manning concerned a traditional
appeal from a district court to an appellate court, there is nothing
on the face of our analysis in that case that would foreclose its ex-
tension to an appeal from a justice court decision through a de
novo trial in district court. And, more importantly, the terms of
appellate rule 4(f) arguably encompass such an appeal. The rule
speaks in terms of an appeal from a “trial court” or “sentencing
court” to an “appellate court,” and those terms could easily en-

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                       RALPHS v. MCCLELLAN
                       Opinion of the Court

compass a district court challenge to a justice court ruling. See
UTAH R. APP. P. 1(b) (defining “trial court” as the court “from
which the appeal is taken,” and “appellate court” as “the court to
which the appeal is taken”). 2
  ¶19 The criminal rules, moreover, do not appear to foreclose
the applicability of the appellate rules on this matter. Rule 38 pre-
scribes general procedures governing the manner and means of
pursuing a de novo challenge to a justice court decision. But it
nowhere addresses the matter addressed by appellate rule 4(f)—of
reinstatement of an appeal lost through no fault of a defendant.
  ¶20 So the construction posited by Ralphs is also possible. On
its face, appellate rule 4(f) can be read to encompass an appeal
from a justice court ruling. And criminal rule 38 can be read only
to prescribe general procedures for pursuing an appeal from a jus-
tice court to an appellate court, while leaving room for supple-
mentation by appellate rule 4(f) on the limited matter of a motion
to reinstate pursuant to Manning.
  ¶21 And that is the construction we adopt as the better under-
standing of our rules. The principal basis for adopting it is that the
contrary reading would yield an absurdity, and perhaps an un-
constitutionality. Manning and rule 4(f) protect a right guaranteed
by the Utah Constitution—the right of a criminal defendant to an
appeal. UTAH CONST. art. I, § 12. We have characterized that right
as “essential to a fair criminal proceeding,” and thus a matter that
cannot be “lightly forfeited.” State v. Tuttle, 713 P.2d 703, 704
(Utah 1985). And the constitutional status of that right was a prin-
cipal basis of our preservation of procedures we established to as-
sure that such right would not be lost in circumstances where a


 2  See also UTAH CONST. art. VIII, § 5 (providing for district courts
to exercise “appellate jurisdiction as provided by statute”); UTAH
CODE § 78A–5–102(5) (granting the district court “appellate juris-
diction over judgments and orders of the justice court as outlined
in Section 78A–7–118”); Falkner v. Lindberg, 2012 UT App 303, ¶ 6,
288 P.3d 1097 (holding it “appropriate to employ the rules of ap-
pellate procedure as a model in the context of justice court ap-
peals,” and thus determining that district court retained jurisdic-
tion as appellate court after case had been remitted to justice court
(internal quotation marks omitted)).

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                        Opinion of the Court

defendant has not voluntarily forfeited it. See State v. Johnson, 635
P.2d 36, 38 (Utah 1981) (establishing procedural mechanism for
defendants claiming deprivation of their right to appeal to seek
reinstatement of that right despite apparent forfeiture); Manning v.
State, 2005 UT 61, ¶¶ 11–12, 122 P.3d 628 (finding the Johnson rem-
edy foreclosed by statute, and adopting a new procedure to pro-
tect the right of a defendant who “has been unconstitutionally de-
prived, through no fault of his own, of his right to appeal”); UTAH
R. APP. P. 4(f) (formalizing the procedure established in Manning).
  ¶22 The right to an appeal from a justice court ruling is at least
a matter of equal dignity—and in fact in an important sense a
more significant right. We have upheld the constitutionality of the
right to challenge a justice court ruling in a de novo hearing in
district court, concluding that it qualifies as, effectively, an appel-
late proceeding as guaranteed by our constitution. See Bernat v.
Allphin, 2005 UT 1, ¶ 32, 106 P.3d 707. But in an important sense,
the right to challenge a justice court ruling is more significant than
the right to file a traditional appeal from the district court. That
right is more important in the sense that a justice court is not a
court of record, and a defendant has a right to a de novo proceed-
ing in a court of record. See UTAH CONST. art. VIII, § 5 (granting
district courts “appellate jurisdiction as provided by statute” and
stating that except for matters of Supreme Court original jurisdic-
tion, “there shall be in all cases an appeal of right from the court
of original jurisdiction to a court with appellate jurisdiction”);
UTAH CODE § 78A-5-102(5) (granting district courts “appellate ju-
risdiction over judgments and orders of the justice court[s]”);
UTAH CODE § 78A-7-118 (stating that district courts’ appellate ju-
risdiction over justice courts shall be exercised via “trial[s] de no-
vo” and “hearing[s] de novo”); UTAH CODE § 78A-1-101(2) (stating
that “all courts,” including district courts, “are courts of record,
except the justice courts, which are courts not of record”). That is
why our law guarantees a de novo trial in the district court—
which is a court of record—and not just a traditional appeal,
which would be subject to traditional standards of review calling
for deference to the lower court’s fact finding and other discre-
tionary determinations. See Myers v. Myers, 2011 UT 65, ¶ 32, 266
P.3d 806 (noting that a district court’s findings and discretionary
determinations “are entitled to substantial deference on appeal”).



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                       RALPHS v. MCCLELLAN
                        Opinion of the Court

  ¶23 With this in mind, we cannot construe our rules to guaran-
tee a right to move to reinstate a traditional appeal while foreclos-
ing the right to move to reinstate a de novo challenge to a justice
court ruling. Instead we read appellate rule 4(f) to encompass
both types of appeals, and interpret criminal rule 38 to leave room
for a motion to reinstate an appeal from a justice court judgment
under rule 4(f).
  ¶24 That conclusion forecloses any notion of dismissal of
Ralphs’s motion to reinstate under principles of waiver. Neither
Manning nor rule 4(f) includes any time limitation on a motion to
reinstate an appeal. And absent any such time limitation, we can-
not properly impose one on Ralphs, who was entitled to read our
decisions and rules and rely on their terms. See Carter v. Lehi City,
2012 UT 2, ¶ 15, 269 P.3d 141 (“Litigants ought to be able to rely
on our constructions of our rules and statutes, particularly on
matters as critical as the timing standards for filing deadlines.”).
For that reason, we find no legal basis for the dismissal of
Ralphs’s rule 4(f) motion in the doctrine of waiver—or, more
properly, forfeiture.3 Ralphs faced no time deadline on filing such
a motion, and thus cannot be deemed to have forfeited the right to
file such a motion by his delay in filing it.
  ¶25 That said, we cannot denigrate the concerns regarding fi-
nality and repose identified by Judge McClellan. His point about
the “mischief” introduced by a stale 4(f) motion is well-taken. Yet
absent any time standard in the rule or in Manning itself, our re-
sponse to this concern is simply to flag it for consideration by our
advisory committee on the rules of appellate procedure, with an
indication of our inclination to amend the rule prospectively to
add a time limitation going forward. For purposes of this case,
however, we conclude that Ralphs was entitled to rely on Man-


 3 Principles of “waiver” and “forfeiture” “are often used inter-
changeably,” but the two concepts are technically distinct. State v.
Fuller, 2014 UT 29, ¶ 28 n.21, __ P.3d __ (citing In re Adoption of Ba-
by E.Z., 2011 UT 38, ¶ 51 n. 1, 266 P.3d 702 (Lee, J., concurring)).
Forfeiture “is the failure to make the timely assertion of a right,”
whereas waiver “is the intentional relinquishment or abandon-
ment of a known right.” United States v. Olano, 507 U.S. 725, 733
(1993) (internal quotation marks omitted). The question at issue
here is thus, technically, a matter of forfeiture, not waiver.

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                        Opinion of the Court

ning and on rule 4(f) as written, and thus that it was an abuse of
discretion to dismiss his motion under the doctrine of waiver.
                          B.     Jurisdiction
  ¶26 The next question concerns jurisdiction. Respondents seek
to defend the dismissal of Ralphs’s motion on the ground that the
justice court lost jurisdiction over the second lewdness conviction
once Ralphs was finally sentenced—a matter also depriving the
district court of jurisdiction.
  ¶27 We agree with the general rule that respondents espouse. A
court’s jurisdiction over a criminal matter generally ends after
sentencing. See State v. Rodrigues, 2009 UT 62, ¶ 13, 218 P.3d 610.
But that general rule is also subject to a number of exceptions,
such as rules and statutes recognizing a court’s continuing juris-
diction even after the sentencing phase. See UTAH CODE § 77-18-
1(2)(a), (8) (recognizing court’s jurisdiction to suspend sentences,
place defendant on probation, and supervise the terms of proba-
tion). And appellate rule 4(f) establishes such an exception. In re-
serving the right of a defendant to move to reinstate an appeal
that is lost by no fault of the defendant, rule 4(f) reserves a right of
continuing jurisdiction of the court in which a conviction is en-
tered and a sentence is rendered—a reservation establishing an
exception to the general rule cited by respondents, and thus pre-
serving the jurisdiction of the justice court and also the district
court by extension.
  ¶28 That conclusion is not foreclosed by Utah Code section
78A-7-118, as respondents suggest. Granted, this provision does
not expressly identify an order denying a motion to reinstate an
appeal as an order subject to de novo review in the district court.
But the statute does preserve a de novo appeal from a criminal
“sentencing.” UTAH CODE § 78A-7-118(1), (4). And a rule 4(f) mo-
tion is a matter that would ultimately reopen a proceeding that
would otherwise culminate in a criminal sentence—by means of
reinstating a right to a de novo trial in the district court. So a deci-
sion on such a motion is properly subject to review. We accord-
ingly uphold the district court’s jurisdiction to hear a de novo ap-
peal from the denial of a motion under appellate rule 4(f), and
thus reject respondents’ request that we deny Ralphs’s petition on
that alternative basis.
               C.      Post-Conviction Remedies Act
  ¶29 That leaves the question whether Ralphs’s motion was
foreclosed by the exclusive remedy provision of the PCRA. See

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                      RALPHS v. MCCLELLAN
                       Opinion of the Court

UTAH CODE § 78B-9-102(1). Respondents invoke this provision as
another basis for defending the denial of Ralphs’s motion to rein-
state his right of appeal.
  ¶30 We do not view this provision as having any application in
this case. It clarifies that the PCRA stands as “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). Thus, under limited
exceptions having no application to this case, the PCRA “replaces
all prior remedies for review, including extraordinary or common
law writs.” Id. But the statute has nothing to do with a direct ap-
peal. It leaves that right intact. And because a rule 4(f) motion is
about reinstating a right of appeal, and not at all about review by
post-appeal writ, the PCRA has no application to this case. We ac-
cordingly reject respondents’ invocation of the PCRA’s exclusive
remedy provision as an alternative basis for defending the judg-
ment of dismissal in the district court.
                                  III
  ¶31 For these reasons the petition filed by Ralphs is granted.
We find error in the district court’s waiver analysis, uphold its ju-
risdiction, and interpret Manning and appellate rule 4(f) to apply
to this case. And on that basis we order the district court to pro-
ceed to the merits of Ralphs’s motion.
                           ——————




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