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

                                    2020 UT 37


                                       IN THE

          SUPREME COURT OF THE STATE OF UTAH

                              BENJAMIN ARRIAGA,
                                  Petitioner,
                                          v.
                                 STATE OF UTAH,
                                   Respondent.


                               No. 20180870
                         Heard September 20, 2019
                            Filed June 23, 2020

               On Certiorari to the Utah Court of Appeals

                       Third District, West Jordan
                     The Honorable Charlene Barlow
                             No. 120404690

                                    Attorneys:
                  Emily Adams, Bountiful, for petitioner
        Sean D. Reyes, Att’y Gen., Mark C. Field, Asst. Solic. Gen.,
                     Salt Lake City, for respondent


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


   CHIEF JUSTICE DURRANT, opinion of the Court:
                                  Introduction
   ¶1 Petitioner Benjamin Arriaga pled guilty to first-degree
murder. After sentencing, he filed a pro se petition under the
Post-Conviction Remedies Act (PCRA),1 arguing that his guilty plea
_____________________________________________________________

   1   UTAH CODE §§ 78B-9-101 to -503.
                          ARRIAGA v. STATE
                         Opinion of the Court

was unknowing and involuntary and that he received ineffective
assistance of counsel. The post-conviction court granted the State’s
motion for summary judgment, and the court of appeals affirmed.
We granted petitioner’s writ of certiorari. Because Mr. Arriaga has
failed to identify a material dispute sufficient to rebut the State’s
showing that he was not prejudiced by his guilty plea or the State’s
showing that his trial counsel’s performance was not deficient, we
affirm.
                             Background
    ¶2 In 2010, Mr. Arriaga shot and killed Mr. Benacio Herrera.
Mr. Arriaga confronted Mr. Herrera over an affair Mr. Herrera
allegedly had with Mr. Arriaga’s wife. During the confrontation, the
two men exchanged punches, and Mr. Arriaga pulled out a gun.
Mr. Arriaga told police officers that he shot Mr. Herrera only after
Mr. Herrera lunged for the gun. Mr. Herrera was shot five times—
once in the leg, once in the abdomen, twice in the back, and once in
the back of the head. Although Mr. Arriaga admitted that he killed
Mr. Herrera and that he was angry with Mr. Herrera over the alleged
affair, he told police that the killing was accidental and that he never
intended to kill Mr. Herrera.
    ¶3 The State brought three charges against Mr. Arriaga:
first-degree murder, possession or use of a firearm by a restricted
person,2 and obstruction of justice. Mr. Arriaga indicated, through
trial counsel, that he would agree to plead guilty to first-degree
murder in exchange for the dismissal of the other two charges.
    ¶4 Before the plea hearing, trial counsel prepared and reviewed
a Plea Affidavit with Mr. Arriaga. The elements of murder were
written in the Plea Affidavit as follows: “Def. did knowingly and
intentionally cause[] the death of another.” The following facts were
listed as the sufficient basis for the district court to accept
Mr. Arriaga’s plea: “On 4/4/10, in SL Co, I, while confronting a man
who slept w/ my wife, fought with the man and subsequently shot
him, killing him.” Mr. Arriaga’s native language is Spanish, and
while trial counsel did not provide an interpreter in client meetings,
the Plea Affidavit was written in both English and Spanish.

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   2 Mr. Arriaga was prohibited from possessing or using a firearm
after having previously pled guilty to three third-degree felonies:
possession of a controlled substance, and two counts of
endangerment of a child.


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                        Opinion of the Court

    ¶5 In the plea hearing, Mr. Arriaga stated he was satisfied with
his trial counsel and understood everything trial counsel discussed
with him. When discussing the factual basis for his plea, however, he
made two statements to the district court suggesting he may have
acted in self-defense when he shot Mr. Herrera. The transcript of the
hearing contains the following exchange:
      The Court: Okay. Counsel, can you give me a factual
      basis?
      [Trial Counsel]: Your Honor, on April 4th[,] 2010 in Salt
      Lake County [Mr. Arriaga] confronted a man who had
      been sleeping with his wife. An argument and
      subsequent fight took place at which time he pulled
      out a firearm and he shot the man killing him.
      The Court: Is that what happened, [Mr. Arriaga]?
      [Mr. Arriaga]: I defended myself. It was not my
      intention. I never thought about hurting him.
      The Court: Okay. Does that change the plea at all,
      counsel?
      [Trial Counsel]: Your honor, we had – we had
      discussed the imperfect self-defense concept and that
      he did pull out a gun to get the man to confess to his
      sleeping with his wife. And that the man charged at
      him but he was unarmed. So that is why he used a gun.
      The Court: I will find that that is a sufficient factual
      basis.
      [Mr. Arriaga]: He was drugged and drunk and I didn’t
      know if he had a weapon, a knife and that’s why I . . . .
After this exchange, the district court asked Mr. Arriaga if he
“understood that by pulling the trigger [he] knew that [he] could
cause the death of [the victim],” to which Mr. Arriaga responded,
“Yes.”
    ¶6 The court determined this was a sufficient factual basis to
accept Mr. Arriaga’s plea. Through trial counsel, Mr. Arriaga
requested that the court sentence him immediately. The court
granted this request and sentenced him to fifteen years to life in
prison. He did not appeal.
   ¶7 Mr. Arriaga timely filed a petition for post-conviction relief
in which he raised two arguments: first, his plea was unknowing and
involuntary because he did not understand that the absence of

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                           Opinion of the Court

imperfect self-defense was an element of murder; and second, he
received ineffective assistance of counsel because of a language
barrier with trial counsel. The post-conviction court held an
evidentiary hearing on Mr. Arriaga’s claims, but suspended the
hearing to allow him time to file a second amended petition. After
Mr. Arriaga filed his second amended petition, the State filed a
motion for summary judgment, which the post-conviction court
granted, denying Mr. Arriaga’s petition for post-conviction relief.
The court of appeals upheld the post-conviction court’s decision.3
    ¶8 We granted Mr. Arriaga’s petition for certiorari. We have
jurisdiction under Utah Code section 78A-3-102(3)(a).
                           Standard of Review
   ¶9 Mr. Arriaga asks us to determine whether the court of
appeals erred in affirming the post-conviction court’s denial on
summary judgment of the two claims he raised in his petition for
post-conviction relief.
   ¶10 “On certiorari, we review the decision of the court of
appeals . . . for correctness and give its conclusions of law no
deference.”4 “We affirm a grant of summary judgment when the
record shows that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
law.”5 On review, “facts and all reasonable inferences drawn
therefrom [must be viewed] in the light most favorable to the
nonmoving party.”6
                                 Analysis
   ¶11 Mr. Arriaga raises two grounds for relief in his PCRA
petition. First, he claims that his “conviction was obtained . . . in
violation of the United States Constitution” because his plea was
unknowingly and involuntarily made.7 Second, he claims that he

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   3   Arriaga v. State, 2018 UT App 160, ¶ 21, 436 P.3d 222.
   4 Bluemel v. State, 2007 UT 90, ¶ 9, 173 P.3d 842 (citation omitted)
(internal quotation marks omitted).
   5 Ross v. State, 2012 UT 93, ¶ 18, 293 P.3d 345 (citation omitted)
(internal quotation marks omitted).
   6   Id. (citation omitted) (internal quotation marks omitted).
   7   See UTAH CODE § 78B-9-104(1)(a).


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received ineffective assistance of counsel because trial counsel did
not provide an interpreter when he met with Mr. Arriaga prior to the
plea hearing.8
    ¶12 Mr. Arriaga bears the burden of pleading and proving that
he is entitled to relief under the PCRA.9 But in cases such as this one
where the State responds to a PCRA petition by filing a motion for
summary judgment, it is the State that must show it “is entitled to
judgment and there is no genuine issue of material fact that would
preclude summary judgment in [its] favor.”10 “[T]he moving party
always bears the burden of establishing the lack of a genuine issue of
material fact, but the burden of production of evidence may fall on
the nonmoving party”—in this case Mr. Arriaga—“[]if that party
will bear the burden of production at trial[].”11 “[W]here the burden
of production falls on the nonmoving party, . . . the moving party
may carry its burden of persuasion without putting on any evidence
of its own—by showing that the nonmoving party has no evidence
to support an essential element of a claim.”12
   ¶13 Under this standard, we affirm the court of appeals’
decision to uphold the post-conviction court’s grant of the State’s
motion for summary judgment on both of Mr. Arriaga’s claims.
Although we conclude that Mr. Arriaga has produced sufficient
evidence in support of his claim that his plea was unknowingly and
involuntarily made, we ultimately affirm the court of appeals
because he has not produced evidence that he was prejudiced as a
result.
   ¶14 And on Mr. Arriaga’s second claim—that he received
ineffective assistance of counsel—we conclude that there is no
genuine issue of material fact with respect to whether his trial
counsel’s performance was constitutionally deficient. Accordingly,
we affirm the court of appeals on Mr. Arriaga’s second claim.


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   8   See id. § 78B-9-104(1)(d).
   9   See Menzies v. State, 2014 UT 40, ¶ 81, 344 P.3d 581.
   10 Id. (alteration in original) (internal quotation marks omitted)
(quoting Jones & Trevor Mktg., Inc. v. Lowry, 2012 UT 39, ¶ 29, 284
P.3d 630).
   11   Salo v. Tyler, 2018 UT 7, ¶ 2, 417 P.3d 581.
   12   Id.


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                           Opinion of the Court

             I. Mr. Arriaga’s Claims Were Properly Preserved
    ¶15 The State asserts Mr. Arriaga failed to preserve the theory
that his misunderstanding of the implications of imperfect
self-defense rendered his plea invalid. “[I]n order to preserve an
issue for appeal[,] the issue must be presented to the trial court in
such a way that the trial court has an opportunity to rule on that
issue.”13 Appellate courts consider three factors when determining
whether an issue was properly raised before the district court: “(1)
the issue must be raised in a timely fashion; (2) the issue must be
specifically raised; and (3) a party must introduce supporting
evidence or relevant legal authority.”14
    ¶16 In his petition,15 Mr. Arriaga alleged his “conviction was
obtained by a plea of guilty that was . . . not made voluntarily with
[an] understanding of the nature of the charge and the consequences
of the plea.” He stated that his trial counsel “failed to advise [him] to
go to trial” where he could have presented his “self-defense” theory
and challenged the State’s “lack of proof beyond a reasonable doubt
to all elements of the murder charge.” And he attached the transcript
of the plea hearing, which provided evidence he was confused about
the implications of self-defense to his guilty plea. We conclude that
Mr. Arriaga preserved this claim by raising it in a timely manner
with supporting evidence, and we can address it on the merits.
         II. Mr. Arriaga Has Not Produced Evidence to Support
         His Claim That He Was Prejudiced by His Unknowing and
                              Involuntary Plea
   ¶17 Mr. Arriaga argues the court of appeals erred in affirming
the post-conviction court’s determination that his guilty plea was
knowingly and voluntarily made. He claims he did not understand
that the absence of imperfect self-defense was an essential element of
murder. He further argues he was prejudiced by this
misunderstanding because, had he understood the significance of a
potential imperfect self-defense claim, he would not have pled
guilty, but would have insisted on going to trial.

_____________________________________________________________
   13Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48
P.3d 968.
   14   Id. (citation omitted) (internal quotation marks omitted).
   15The post-conviction court suspended an evidentiary hearing to
allow Mr. Arriaga to file a second amended petition.


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                           Opinion of the Court

    ¶18 We conclude that there is a genuine dispute of material fact
as to whether, at the time he entered his plea, Mr. Arriaga
understood the implication an assertion of imperfect self-defense
may have had on the charges against him. Accordingly, there is a
genuine issue of material fact as to whether his plea was knowing
and voluntary. But we further conclude that Mr. Arriaga has failed
to produce evidence showing that he was prejudiced. As a result, we
affirm the court of appeals’ affirmance of summary judgment.
A. There is a genuine issue of material fact as to whether Mr. Arriaga’s plea
                        was knowing and voluntary
   ¶19 Mr. Arriaga has produced evidence sufficient to avoid
summary judgment on the issue of whether his guilty plea was
unknowing and involuntary because he did not understand the
essential elements of murder. A guilty plea is constitutionally valid
only if it is made “voluntarily, knowingly, and intelligently, with
sufficient awareness of the relevant circumstances and likely
consequences.”16 A plea is knowing and voluntary when the accused
demonstrates an understanding of the nature of the charge, such that
their plea can “stand as an intelligent admission of guilt.”17 In order
to have a complete understanding of a charge, the accused must
have “an understanding of the law in relation to the facts.”18
   ¶20 The Utah Rules of Criminal Procedure provide further
guidance for district courts in determining whether the accused has
a complete understanding of the nature of the charge.19 Rule 11
provides that a defendant must “understand[] the nature and
elements of the offense to which the plea is entered, that upon trial
the prosecution would have the burden of proving each of those
elements beyond a reasonable doubt, and that the plea is an
admission of all of those elements.”20 If a defendant is unaware of an
element the State has to prove, “a defendant cannot intelligently
weigh the risks and benefits of going to trial versus pleading


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   16 State v. Alexander, 2012 UT 27, ¶ 16, 279 P.3d 371 (citation
omitted) (internal quotation marks omitted).
   17   Id. (citation omitted) (internal quotation marks omitted).
   18   Id. ¶ 29 (citation omitted) (internal quotation marks omitted).
   19   Id. ¶ 17.
   20   UTAH R. CRIM. P. 11(e)(4)(A).


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                          Opinion of the Court

guilty.”21 Mr. Arriaga has thus provided sufficient evidence at the
summary judgment stage to support his assertion that he did not
understand the implications of imperfect self-defense for his murder
plea. Accordingly, a genuine issue of material fact exists, and the
post-conviction court erred in concluding, as a matter of law, that his
plea was knowing and voluntary.
    ¶21 The essential elements of first-degree murder include
(1) intentionally or knowingly (2) causing the death of another, and
if the accused has offered some evidence of an affirmative defense,
(3) the absence of that affirmative self-defense, including the
affirmative defense of imperfect self-defense.22 Imperfect self-defense
is available when the defendant “caused the death of another . . .
under a reasonable belief that the circumstances provided a legal
justification or excuse for the conduct although the conduct was not
legally justifiable or excusable under the circumstances.”23 And a
successful claim of imperfect self-defense “reduces murder to
manslaughter.”24 So, at trial, the State would have had to prove the
lack of a valid imperfect self-defense claim in order to convict
Mr. Arriaga of first-degree murder.25 The record demonstrates that

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   21 Alexander, 2012 UT 27, ¶ 30. In order to determine what the
defendant understood upon entering his or her plea, appellate courts
are not limited to the plea colloquy or plea affidavit but may also
look to the “surrounding facts and circumstances.” Id. ¶ 31 (citation
omitted) (internal quotation marks omitted).
   22 UTAH CODE §§ 76-5-203(2)(a), (4)(a). The State argues that the
absence of imperfect self-defense is not an element of murder.
However, in State v. Low, we held that after legislative amendments
in 1999, imperfect self-defense is no longer a lesser included offense
but an “affirmative defense[] to murder.” 2008 UT 58, ¶ 24, 192 P.3d
867. Once the accused has offered evidence of an affirmative defense,
the absence of that defense is an element of murder that the State
must prove beyond a reasonable doubt. Id. ¶ 45.
   23   UTAH CODE § 76-5-203(4)(a).
   24   Low, 2008 UT 58, ¶ 22.
   25 A “defendant’s burden to demonstrate that the factual record
supports an affirmative defense instruction is relatively low,” State v.
White, 2011 UT 21, ¶ 22, 251 P.3d 820, and “only a minimum
threshold of evidence” is required to “establish the affirmative
defense.” Ross v. State, 2012 UT 93, ¶ 29, 293 P.3d 345. So even
                                                           (Continued)
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                        Opinion of the Court

there is a genuine issue of material fact as to whether Mr. Arriaga
understood this.
    ¶22 Mr. Arriaga points to three pieces of evidence in the record
to argue his plea was not knowingly or voluntarily made. First, he
argues the statements he made during the plea colloquy negate the
essential elements of murder. Second, he argues the Plea Affidavit
does not include the absence of imperfect self-defense as an element
of murder. And third, he argues trial counsel did not adequately
explain imperfect self-defense in relation to the facts of his case. We
conclude that there is a genuine dispute as to whether he understood
that the absence of imperfect self-defense is an element of murder.
   ¶23 The transcript of the plea colloquy suggests Mr. Arriaga did
not understand the relationship between his murder charge and
imperfect self-defense. During that colloquy, he made statements
that could conceivably support an imperfect self-defense theory.
Trial counsel stated that Mr. Arriaga initiated the encounter with
Mr. Herrera, but pulled out a gun only to scare Mr. Herrera after the
two had already been fighting. And Mr. Arriaga claimed he thought
Mr. Herrera may have been on drugs and may have been armed.
Additionally, Mr. Arriaga informed the district court that he
defended himself, and never thought about hurting Mr. Herrera.
This suggests that Mr. Arriaga may not have understood that
imperfect self-defense, if presented and proven at trial, could
prevent him from being convicted of first-degree murder. And this
misunderstanding was not clarified by the district court or by
Mr. Arriaga’s trial counsel.
    ¶24 In an attempt to clarify the meaning of these statements, the
district court asked Mr. Arriaga if he understood that “by pulling the
trigger [Mr. Arriaga] knew [he] could cause the death of the
[victim],” to which Mr. Arriaga replied that he did. But even though
the court’s statement was meant to clarify that Mr. Arriaga had the




though the use of lethal force is not legally justified when the
defendant “provokes the use of force . . . with the intent to use force
as an excuse to inflict bodily harm,” Utah Code section
76-2-402(3)(a)(i), or when the defendant is the aggressor and does not
withdraw from the encounter, id. § 76-2-402(3)(a)(iii), Mr. Arriaga’s
self-defense statements were sufficient to show a genuine issue of
material fact in this regard.


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                        Opinion of the Court

requisite intent to commit murder,26 it, together with Mr. Arriaga’s
reply, did not contradict Mr. Arriaga’s statements that he acted in
self-defense. A defendant may pull the trigger, knowing that doing
so will cause the death of another, but if the defendant acted in
self-defense, he or she would be guilty only of manslaughter, not
murder.27 So in asking whether Mr. Arriaga knew that pulling the
trigger could cause Mr. Herrera’s death, the court did not address
the question of whether Mr. Arriaga pulled the trigger to defend
himself.
    ¶25 Additionally, trial counsel’s statements at the plea colloquy
did not clarify that Mr. Arriaga understood imperfect self-defense.
When the district court requested a factual basis for the plea, trial
counsel’s response included specific factual statements that did not
eliminate the possibility that Mr. Arriaga acted in self-defense.28 The
district court then questioned Mr. Arriaga, and he confirmed that he
acted in self-defense.29 When the court asked trial counsel to clarify
Mr. Arriaga’s response, counsel stated that he “discussed the
imperfect self-defense concept”30 with Mr. Arriaga, “that the man


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   26 Adding further confusion, the district court’s use of the verb
“could” indicates a reckless, rather than knowing, mens rea. See State
v. Thurman, 911 P.2d 371, 373–74 (Utah 1996) (holding the plain
language of Utah’s aggravated murder statute required an
intentional and knowing mental state despite one statutory factor
that included a “lesser mental state”—the actor “knew, or reasonably
should have known, that his act or acts would create a great risk of
death to human life”). But because neither party raises this issue, we
decline to address it.
   27  See Low, 2008 UT 58, ¶ 34; see also UTAH CODE §§ 76-5-203(4)(a),
(c); id. § 76-2-402(3)(a).
   28Specifically, trial counsel stated that Mr. Arriaga “confronted a
man who had been sleeping with his wife. An argument and
subsequent fight took place at which time he pulled out a firearm
and he shot the man killing him.”
   29The district court asked Mr. Arriaga if trial counsel’s statement
was in fact what happened. Mr. Arriaga replied, “I defended myself.
It was not my intention. I never thought about hurting him.”
   30“[F]or a plea to be knowing and voluntary, a defendant must
possess more than a conceptual understanding of the nature of the
                                                      (Continued)
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                         Opinion of the Court

charged at him but [] was unarmed” which was “why [Mr. Arriaga]
used a gun.” So trial counsel continued to present facts to support,
rather than disprove, the theory that Mr. Arriaga acted in
self-defense. Because these statements call into question trial
counsel’s understanding of imperfect self-defense in relation to the
facts of Mr. Arriaga’s case, trial counsel’s assurance that he discussed
the imperfect self-defense concept with Mr. Arriaga does not prove
that Mr. Arriaga correctly understood the concept when making his
plea.31
    ¶26 In sum, during the plea colloquy, Mr. Arriaga made
statements that strongly suggest he did not understand the role an
imperfect self-defense theory could have played in his murder trial.
And nothing the district court or Mr. Arriaga’s trial counsel said
clarified this apparent misunderstanding. For this reason, the plea
colloquy does not demonstrate that Mr. Arriaga was adequately
informed of the essential elements of murder.
    ¶27 Second, the Plea Affidavit does not prove that Mr. Arriaga
understood that the absence of imperfect self-defense is an element
of murder. As to the elements of the charge, the affidavit states that
Mr. Arriaga “knowingly and intentionally caused the death of
another.” As to the factual basis for the plea, the affidavit states that
Mr. Arriaga fought with Mr. Herrera prior to shooting him. Neither
of these statements are inconsistent with an imperfect self-defense
theory. And, significantly, the Plea Affidavit does not include or
describe the absence of imperfect self-defense as an element of
murder, nor does it provide evidence that Mr. Arriaga understood
how imperfect self-defense applied in his case.



offense; he must have ‘an understanding of the law in relation to the
facts.’” Alexander, 2012 UT 27, ¶ 35 (citation omitted).
   31  “[T]he court usually may rely on . . . counsel’s assurance that
the defendant has been properly informed of the nature and
elements of the charge to which he is pleading guilty.” Bradshaw v.
Stumpf, 545 U.S. 175, 183 (2005). But reliance is not appropriate when
trial counsel’s own statements misstate the law. See Hicks v. Franklin,
546 F.3d 1279, 1285 (10th Cir. 2008) (finding that a when the trial
court misstated the law on an additional charge in the plea colloquy
and defense counsel failed to correct the error, the “presumption that
defense counsel properly explained the charge to the defendant
seems unwarranted”).


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    ¶28 Finally, nowhere else in the record is there any indication
that Mr. Arriaga was adequately informed that the absence of
imperfect self-defense was an element of murder. In Mr. Arriaga’s
initial police interview, he maintained that he did not intend to kill
Mr. Herrera but acted in self-defense. And in the PCRA evidentiary
hearing, the State’s attorney testified that the only defense trial
counsel discussed with the State was the extreme emotional distress
defense. During this hearing, the State’s attorney referred to
manslaughter as a “lesser charge,” which indicates the State did not
view it necessary to negate Mr. Arriaga’s affirmative defense to
prove an element of murder. And when Mr. Arriaga’s PCRA counsel
began questioning trial counsel about other potential defenses that
could have been raised, the State objected, stating it was outside the
scope of Mr. Arriaga’s petition. The post-conviction court suspended
the evidentiary hearing to allow Mr. Arriaga to file a second
amended petition. Thus, the other evidence in the record strongly
suggests that Mr. Arriaga was not informed that an imperfect
self-defense affirmative defense could have been used to defeat the
State’s first-degree murder charge.
   ¶29 In sum, evidence in Mr. Arriaga’s plea colloquy, Plea
Affidavit, and elsewhere in the record suggests he did not
understand the concept of imperfect self-defense or realize that its
absence is an element of the murder charge to which he pled guilty.32
Because Mr. Arriaga provided sufficient evidence that he did not
understand the absence of imperfect self-defense was an element of
murder, we hold that a genuine issue of material fact remains as to
whether his plea was knowingly and voluntarily made. Accordingly,
the majority of the court of appeals erred on this point.33

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   32  See Alexander, 2012 UT 27, ¶¶ 33–37 (holding that the
defendant’s plea was not knowingly and voluntarily made when the
record—including the preliminary hearing transcript, Plea Affidavit,
plea colloquy transcript, amended charging documents—did not
“demonstrate that [the defendant] was informed of or understood
the essential elements” of the crime).
   33 We note that our analysis on this point accords with Judge
Pohlman’s concurring opinion. Judge Pohlman concurred in the
result of the court of appeals’ opinion because Mr. Arriaga failed to
establish prejudice, but she questioned whether the district court
“adequately remedied the conflict between the statements in
[Mr. Arriaga]’s plea affidavit and his self-defense assertions during
                                                          (Continued)
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                              Opinion of the Court

         B. Mr. Arriaga has not produced evidence to support his claim that
         he was prejudiced as a result of his unknowing and involuntary plea
   ¶30 Although Mr. Arriaga has provided evidence sufficient to
avoid summary judgment on the issue of whether his plea was
unknowing and involuntary, we nevertheless affirm the court of
appeals because he has not produced evidence that he was
prejudiced as a result. To obtain relief under the PCRA, it is not
enough for a petitioner to show his or her conviction was obtained in
violation of the United States Constitution.34 A petitioner must also
show he or she suffered prejudice as a result of this constitutional
error.35
    ¶31 Under the PCRA, a petitioner demonstrates prejudice by
showing “a reasonable likelihood of a more favorable outcome in
light of the facts proved in the post-conviction proceeding, viewed
with the evidence and facts introduced at trial or during
sentencing.”36 This standard is equivalent to the prejudice analysis
courts use to assess ineffective-assistance-of-counsel claims.37 So in


the plea colloquy.” Arriaga v. State, 2018 UT App 160, ¶ 22, 436 P.3d
222 (Pohlman, J., concurring in part and concurring in the result).
   34  Showing that a conviction was obtained in violation of the
United States Constitution is one of several “grounds for relief” a
petitioner may establish under the PCRA. See UTAH CODE
§ 78B-9-104(1)(a).
   35   Id. § 78B-9-104(2).
   36   Id.
   37 These two standards are equivalent because the language of the
PCRA statute is the same as that of the harmfulness prong under our
plain-error analysis, which itself is equivalent to the prejudice
analysis of an ineffective-assistance-of-counsel claim. Compare Low,
2008 UT 58, ¶ 43 (“An error is harmful if it is ‘of such a magnitude
that there is a reasonable likelihood of a more favorable outcome for
the defendant.’”(citation omitted)) with UTAH CODE § 78B-9-104
(“The court may not grant relief . . . unless the petitioner establishes
that there would be a reasonable likelihood of a more favorable
outcome . . . .”). This test is a legal term of art. And “[w]hen the
legislature ‘borrows terms of art in which are accumulated the legal
tradition and meaning of centuries of practice, it presumably knows
and adopts the cluster of ideas that were attached to each borrowed
word in the body of learning from which it was taken.’” Maxfield v.
                                                           (Continued)
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                                Opinion of the Court

determining prejudice under the PCRA, we look to
ineffective-assistance-of-counsel case law to determine the merits of
Mr. Arriaga’s claim.
    ¶32 In order to prove there is a “reasonable likelihood of a more
favorable outcome”38 in a plea case, a defendant must show “there is
a reasonable probability that, but for [the] error[], he would not have
pleaded guilty and would have insisted on going to trial.”39 In other
words, we consider the effect the constitutional error at issue had on
a defendant’s decision to plead guilty rather than go to trial. In most
cases, a defendant’s decision to plead guilty will “turn[] on [his or
her] prospects of success” at trial.40 And when it does, defendants
must show they “would have been better off going to trial” in order
to establish prejudice.41
    ¶33 In order to survive summary judgment, Mr. Arriaga had to
produce evidence that he would not have pled guilty had he known
about the possibility of bringing an imperfect self-defense claim at
trial. But he provides “no evidence to support an essential element
of” his theoretical imperfect self-defense claim.42 In fact, he concedes
that his “chances at trial may have been slim.” Because he fails to
provide evidence that he would have succeeded on his imperfect
self-defense claim at trial, no genuine issue of material fact exists as
to whether there was “a reasonable probability that, but for [the]
error, he would not have pleaded guilty and would have insisted on
going to trial.”43
   ¶34 Instead, Mr. Arriaga argues he does not have to show that
he would have succeeded on his imperfect self-defense claim,

Herbert, 2012 UT 44, ¶ 31, 284 P.3d 647 (quoting Morissette v. United
States, 342 U.S. 246, 263 (1952)). So we assume that, by incorporating
the “reasonable likelihood of a more favorable outcome” language
into the PCRA, the legislature intended to incorporate the
accompanying               well-developed            body           of
ineffective-assistance-of-counsel jurisprudence.
   38   UTAH CODE § 78B-9-104(2).
   39   Hill v. Lockhart, 474 U.S. 52, 59 (1985).
   40   Lee v. United States, 137 S.Ct. 1958, 1965 (2017).
   41   Id. at 1965.
   42   Salo v. Tyler, 2018 UT 7, ¶ 2, 417 P.3d 581.
   43   Hill, 474 U.S. at 59.


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because his decision to plead guilty did not “turn[] on his prospects
of success” at trial.44 He argues, relying on the United States
Supreme Court’s decision in Lee v. United States,45 that there is “a
reasonable probability that, but for [the] error[], he would not have
pleaded guilty and would have insisted on going to trial” because it
affected his understanding of the consequences of his plea.46 But,
under the Supreme Court’s decision in Lee, a misunderstanding
regarding a potential affirmative defense is not enough to support a
finding of prejudice.
    ¶35 In Lee, the Supreme Court explained that, in limited
circumstances, a defendant may rationally reject a plea deal where
“special circumstances”47 suggest that “there is more to consider
than simply the likelihood of success at trial.”48 And the Court
explained that where these “special circumstances” exist, defendants
need not demonstrate a likelihood of success at trial.49 Rather, they
need only show that if “properly advised, [they] would have opted
to go to trial.”50 But the Court cautioned that “special circumstances”
arise only when a defendant provides “substantial and
uncontroverted” evidence that something other than a more
favorable outcome at trial was a determinative issue at the time the
plea decision was made.51
    ¶36 Mr. Arriaga argues that his case involves special
circumstances similar to those in Lee. But we disagree for two
reasons: (1) Mr. Arriaga fails to persuade us that his
misunderstanding regarding his imperfect self-defense claim
constitutes a “special circumstance[]” and (2) he fails to provide

_____________________________________________________________
   44   Lee, 137 S.Ct. at 1965.
   45   Id. at 1958.
   46   Id. at 1969 (quoting Hill, 474 U.S. at 59).
   47   Id. at 1965 (quoting Hill, 474 U.S. at 60).
   48   Id. at 1966.
   49   Id. at 1965 (quoting Hill, 474 U.S. at 60).
   50 Id. at 1966; see also Hill, 474 U.S. at 60. In so doing, a defendant
attempts to convince the court that something other than his or her
prospect at trial was a “determinative issue” in the decision to plead
guilty rather than proceed to trial. See Lee, 137 S.Ct. at 1967.
   51   Lee, 137 S.Ct. at 1969.


                                      15
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                                Opinion of the Court

substantial and uncontroverted evidence his imperfect self-defense
claim was a determinative issue in his plea decision at the time he
entered his plea.
    ¶37 Mr. Arriaga does not show how his imperfect self-defense
claim was a “special circumstance[]” that would have given him a
rational basis to reject his plea deal.52 As the Court in Lee explained,
in limited circumstances, a defendant may rationally reject a plea
deal because “there is more to consider than simply the likelihood of
success at trial.”53 In that case, Mr. Lee convinced the Court that his
decision to go to trial “without any viable defense” 54 was rational
because, under the circumstances, “the consequences of taking a
chance at trial were not markedly harsher than pleading” guilty.55
This was so because the determinative issue for Mr. Lee was not the
length of a potential prison sentence, but his desire to avoid
deportation.56 Mr. Arriaga fails to point to any such “special
circumstance” in this case.
    ¶38 Mr. Arriaga points to his plea-colloquy statements as
evidence that he desired to maintain his imperfect self-defense claim.
But a desire to maintain a potential trial defense could rationally lead
a defendant to forego a plea deal and risk a harsher sentence at trial
only if there was a reasonable likelihood of the defendant succeeding
on that defense. This is because the purpose of asserting imperfect
self-defense is to avoid or reduce time spent in prison.57 And since
Mr. Arriaga fails to produce evidence that he would have succeeded


_____________________________________________________________
   52   Hill, 474 U.S. at 60.
   53   Lee, 137 S.Ct. at 1966.
   54   Id.
   55Id. at 1969; see also id. at 1968 (“[P]reserving the client’s right to
remain in the United States may be more important to the client than
any potential jail sentence.” (citation omitted) (internal quotation
marks omitted)).
   56 Mr. Lee’s trial counsel told him on multiple occasions that his
plea would not lead to deportation, which the State conceded was
deficient performance. Id. at 1964.
   57 See Low, 2008 UT 58, ¶ 22 (“[T]he assertion of a successful
affirmative defense of . . . imperfect self-defense reduces murder to
manslaughter”).


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with his imperfect self-defense claim at trial,58 it would have been
irrational for him to forego his plea deal for the sole purpose of
maintaining that defense. So, unlike the defendant in Lee,
Mr. Arriaga has not met his burden of showing it would have been
rational to forego his plea deal under the circumstances of his case.
    ¶39 Also unlike the defendant in Lee, Mr. Arriaga fails to
provide substantial and uncontroverted evidence that his imperfect
self-defense claim was a determinative issue in his decision. In Lee,
Mr. Lee provided three pieces of evidence to support his claim that,
had he known about the deportation consequences at the time of his
plea, he would have risked going to trial. First, he explained that he
had lived in the United States for most of his life, owned two
businesses in Tennessee, and was the “only family member in the
United States who could care for his elderly parents.”59 Second, he
explained that, after the trial court “warned him that a conviction
‘could result in . . . being deported’” at the plea colloquy, Mr. Lee
told the trial court this affected his decision to plead guilty, but that
he nevertheless proceeded with his plea only because his trial
counsel erroneously assured him that he would not be deported as a
result of pleading guilty.60 And third, he testified that he “asked his
attorney repeatedly whether there was any risk of deportation from
the [plea] proceedings.”61 In fact, both he and his trial counsel
testified in the evidentiary hearing that, had Mr. Lee known of the
deportation consequences, he “would have gone to trial.”62 So
Mr. Lee     pointed      to    contemporaneous,       substantial,   and
uncontroverted evidence that he would not have pled guilty absent
the error. Mr. Arriaga does not make as compelling a case.
    ¶40 Although he points to two pieces of evidence to support his
claim, we find neither persuasive. First, Mr. Arriaga states in his
PCRA affidavit that, had he understood the nature of his plea, he
would not have pled guilty. And second, he points to his
self-defense statements at the plea colloquy, which he argues
demonstrate that, to him, maintaining his theory of imperfect

_____________________________________________________________
   58   See supra ¶ 33.
   59   Lee, 137 S.Ct. at 1968.
   60   Id.
   61   Id. at 1967–68.
   62   Id. at 1968.


                                     17
                          ARRIAGA v. STATE
                         Opinion of the Court

self-defense was a determinative issue. But this is not the kind of
“substantial and uncontroverted” evidence identified in Lee, and it
fails to show a genuine issue of material fact as to whether
Mr. Arriaga’s imperfect self-defense claim was the determinative
issue in his decision to plead guilty.
    ¶41 Mr. Arriaga’s first piece of evidence is not persuasive
because it is nothing more than a “post hoc assertion . . . about how
he would have pleaded but for [the error].”63 Courts “should not
upset a plea solely because of” such assertions, but “should instead
look to contemporaneous evidence to substantiate a defendant’s
expressed preferences.”64 Because Mr. Arriaga points to no
contemporaneous evidence to support his position that he would not
have pled guilty had he known he could have raised an imperfect
self-defense claim, we are left with only his after-the-fact assertion
that he would have done so. This is not enough to persuade us to
upset his plea.
    ¶42 Mr. Arriaga’s second piece of evidence is similarly
unpersuasive. Although Mr. Arriaga’s statements during the plea
colloquy demonstrate his confusion regarding a potential imperfect
self-defense claim, he did not request clarification from the district
court or trial counsel, or refuse, without further clarification, to
proceed. So even though Mr. Arriaga now claims that his
“determinative issue” was maintaining his claim of imperfect
self-defense, the plea colloquy provides evidence only of his
confusion regarding the role an imperfect self-defense claim might
play at trial. It does not provide evidence that Mr. Arriaga’s desire to
raise an imperfect self-defense claim was of such “paramount
importance” that he would have foregone his guilty plea had he
properly understood that element.65 For this reason, Mr. Arriaga’s
second piece of evidence fails to persuade us to upset his plea.
   ¶43 In sum, Mr. Arriaga fails to provide substantial,
uncontroverted, and contemporaneous evidence that his case
presents the kind of “special circumstances,” identified in Lee, such
that it would have been rational for him to forego his plea despite
not having a reasonable likelihood of success at trial. In other words,

_____________________________________________________________
   63   Id. at 1967.
   64   Id.
   65   Id. at 1968.


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                           Opinion of the Court

he has failed to show that, had he understood that the absence of
imperfect self-defense was an element of murder, he would have
elected to proceed to trial rather than accept the plea deal. As a
result, there is no genuine issue of material fact on the question of
whether Mr. Arriaga was prejudiced as a result of his plea. We
therefore affirm the court of appeals.
 III. Mr. Arriaga Has Failed to Produce Evidence That His Counsel’s
                      Performance was Deficient
    ¶44 Mr. Arriaga also argues that the court of appeals
erroneously affirmed the post-conviction court’s determination that
he is not entitled to post-conviction relief because his trial counsel’s
performance was not deficient.66 He asserts that his counsel was
deficient in failing to obtain an interpreter, even though Mr. Arriaga
is a native Spanish speaker. And he argues that, as a result of trial
counsel’s failure to obtain an interpreter, he did not understand trial
counsel’s advice about the plea, or that he was innocent until proven
guilty at trial. Because Mr. Arriaga does not produce evidence that
his trial counsel’s performance fell below an objective standard of
reasonable professional judgment, we affirm the court of appeals’
conclusion that no genuine issue of material fact exists on this point.
    ¶45 In order to prevail on an ineffective-assistance-of-counsel
claim under the PCRA, Mr. Arriaga must first meet his burden of
proof as articulated in Strickland v. Washington.67 Under Strickland,
Mr. Arriaga must demonstrate that counsel “rendered deficient
performance which fell below an objective standard of reasonable
professional judgment.”68 Additionally, he must show he was
prejudiced as a result of trial counsel’s deficient performance.69
Because we reject this argument on the ground that Mr. Arriaga
failed to meet his summary judgment burden of production on his
claim that trial counsel’s performance fell below an objective
standard of reasonable professional judgment, we need not address

_____________________________________________________________
   66   See UTAH CODE § 78B-9-104(1)(d).
   67   466 U.S. 668, 687 (1984).
   68  State v. Maestas, 1999 UT 32, ¶ 20, 984 P.2d 376 (citation
omitted); see also Moench v. State, 2004 UT App 57, ¶ 21, 88 P.3d 353
(citing Strickland, 466 U.S. at 687).
   69Strickland, 466 U.S. at 687; see also Hill v. Lockhart, 474 U.S. 52, 59
(1985).


                                    19
                           ARRIAGA v. STATE
                         Opinion of the Court

whether Mr. Arriaga was prejudiced as a result of counsel’s
performance.70
    ¶46 Mr. Arriaga has failed to produce evidence that his trial
counsel’s failure to obtain an interpreter constituted deficient
performance falling below an objective standard of reasonableness.
Although a trial counsel’s failure to obtain an interpreter could fall
below an objective standard of reasonable professional judgment in a
number of ways,71 Mr. Arriaga fails to produce evidence it did so in
this case. This is because, at the plea colloquy, Mr. Arriaga swore
that he fully understood his trial counsel’s advice and, on appeal, he
_____________________________________________________________
   70 State v. Lopez, 886 P.2d 1105, 1115 (Utah 1994) (“Because [the
petitioner] has not satisfied the first prong of the Strickland test, we
do not need to determine whether he has satisfied the second
prong.”).
   71 First, it may violate rules of professional conduct because trial
counsel must “explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the
representation.” UTAH R. PROF’L CONDUCT 1.4(b). This rule requires
that a client have “sufficient information to participate intelligently
in decisions.” Id. cmt. 5. A language barrier between counsel and a
defendant may prevent a defendant from making an intelligent and
informed decision regarding a plea agreement. So counsel’s failure
to obtain an interpreter when a language barrier exists could raise
constitutional concerns.
    This is because a failure to provide an interpreter in criminal
proceedings may violate a defendant’s right to due process. See Ling
v. State, 702 S.E.2d 881, 883 (Ga. 2010) (“[F]ailure to provide adequate
interpretation services to a defendant in criminal proceedings
implicates due process concerns.”). Additionally, where a defendant
cannot comprehend the proceeding, he or she may not be
constitutionally present. See Tennessee v. Lane, 541 U.S. 509, 523 (2004)
(stating that the federal Due Process and Confrontation Clauses “as
applied to the States through the Fourteenth Amendment” guarantee
criminal defendants be present at all stages of the trial where their
absence might frustrate the fairness of the proceedings) (quoting
Faretta v. California, 422 U.S. 806, 819 n.15 (1975) (internal quotation
marks omitted)). Furthermore, it may be difficult for trial counsel to
adequately explain criminal proceedings and charges, and
subsequently prepare a defendant for a plea hearing, when such a
language barrier exists.


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                         Opinion of the Court

fails to rebut the presumption of truthfulness the law accords this
sworn statement.72
    ¶47 At multiple points in the plea process, Mr. Arriaga had the
opportunity to inform trial counsel or the district court that, as a
result of a language barrier, he did not understand trial counsel’s
advice. But through an interpreter at the plea hearing, Mr. Arriaga
affirmatively informed the district court that he (1) understood
everything counsel had talked to him about; (2) was satisfied with
the advice and assistance of trial counsel; (3) went through the Plea
Agreement with trial counsel prior to the hearing; and (4) was not
forced by anyone to enter a guilty plea. Mr. Arriaga also signed and
attested to the contents of the Plea Agreement, written in both
Spanish and English, agreeing that he read the Plea Agreement,
discussed the contents with trial counsel, and was satisfied with the
advice and assistance of trial counsel. These statements, taken
together, indicate that Mr. Arriaga did not need the assistance of an
interpreter in communicating with his trial counsel, and Mr. Arriaga
fails to provide contrary evidence on appeal.
    ¶48 The “‘truth and accuracy’ of a defendant’s statements
during the [plea colloquy] ‘should be regarded as conclusive in the
absence of a believable, valid reason justifying a departure from the
apparent truth of his [plea colloquy] statements.’”73 Mr. Arriaga does
not raise a believable, valid reason for doubting the truth of his
statements at the plea colloquy. An interpreter was provided at the
plea colloquy in which he made those statements. And Mr. Arriaga
does not provide any evidence to indicate that he had trouble
communicating with his trial counsel in any of his previous
attorney-client meetings. In fact, Mr. Arriaga does not allege or
provide any evidence that he requested an interpreter when
interacting with his trial counsel.


_____________________________________________________________
   72 See Oliver v. State, 2006 UT 60, ¶ 13, 147 P.3d 410 (stating that a
court may rely “on the defendant’s own assurance . . . that the
defendant’s mind is clear” (citation omitted) (internal quotation
marks omitted)); see also Blackledge v. Allison, 431 U.S. 63, 74 (1977)
(“Solemn declarations in open court carry a strong presumption of
verity.”).
   73  United States v. Weeks, 653 F.3d 1188, 1205 (10th Cir. 2011)
(citation omitted).


                                   21
                          ARRIAGA v. STATE
                        Opinion of the Court

    ¶49 In sum, Mr. Arriaga fails to provide a plausible or valid
reason for disbelieving his affirmative statements, both in the Plea
Agreement and during the plea colloquy, that he understood
everything trial counsel informed him of before the plea hearing. So
Mr. Arriaga has not produced evidence that his trial counsel’s failure
to obtain an interpreter constituted deficient performance. For this
reason, we affirm the court of appeals’ conclusion that no genuine
issue of material fact exists.
                             Conclusion
   ¶50 Although Mr. Arriaga provided sufficient evidence to avoid
summary judgment on whether he understood the nature of his plea,
he fails to provide sufficient evidence that he was prejudiced by this
misunderstanding. So his claim that his plea was unknowing and
involuntary fails because there is no genuine issue of material fact as
to whether he was prejudiced as a result. Additionally, we conclude
that there is no genuine issue of material fact as to whether his trial
counsel’s performance, in not obtaining an interpreter, fell below an
objective standard of reasonable professional judgment. As a result,
we affirm the court of appeals.




                                  22
