2005 UT 62
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Nealy W. Adams,
No. 20040722
Petitioner and Appellant,
v.
F I L E D
State of Utah,
Respondent and Appellee.
September 23, 2005
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Second District, Ogden
The Honorable W. Brent West
No. 030903861
Attorneys: Grant W. P. Morrison, William Patrick Morrison,
Salt Lake City, for petitioner
Mark L. Shurtleff, Att'y Gen., Christopher D.
Ballard, Asst. Att'y Gen., Salt Lake City,
for respondent
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DURHAM, Chief Justice:
¶1
Nealy W. Adams appeals the district court's dismissal
of his petition for postconviction relief as untimely under Utah
Code section 78-35a-107(1). We reverse and remand.
BACKGROUND
¶2
Adams was charged with one count of rape and one count
of forcible sexual abuse, based on his alleged rape of his
girlfriend's adult daughter, who had Down Syndrome. At trial,
the former girlfriend testified that Adams had been drinking
regularly and excessively during the period when the alleged
crime occurred. She described one night when she discovered
Adams, drunk and with no clothes on, coming out of her daughter's
room. Adams also testified that he had at times become so drunk
that he could not remember the next day what had happened the
previous night. However, he denied that he could have molested
his girlfriend's daughter while drunk and then failed to remember
it. The jury found Adams guilty of forcible sexual abuse but
acquitted him of the rape charge. Adams was sentenced to one to

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fifteen years in the Utah State Prison, where he is currently an
inmate.
¶3
After discharging his trial attorney and retaining new
counsel, Adams timely appealed his conviction, but the conviction
was affirmed both by the Utah Court of Appeals, State v. Adams,
955 P.2d 781, 788 (Utah Ct. App. 1998), and by this court, State
v. Adams, 2000 UT 42, ¶ 23, 5 P.3d 642.
¶4
During his incarceration, Adams again retained new
counsel and filed a petition for postconviction relief on May 14,
2003. His petition claims (1) that he was not afforded his
constitutional right to effective assistance of counsel at trial
and on appeal, as both his previous attorneys failed to raise the
defense of voluntary intoxication and failed to argue that the
information set forth too broad a time period for the charged
offense; and (2) that his conviction was invalid because of
cumulative error. The district court found Adams's petition "not
frivolous" for purposes of Utah Rules of Civil Procedure
65B(b)(5) and 65C(g)(1). However, in response to the State's
motion, it dismissed Adams's petition as time-barred under the
one-year statute of limitations of the Post-Conviction Remedies
Act ("PCRA"), Utah Code Ann. §§ 78-35a-101 to -110 (2002). The
court rejected Adams's argument that his claim met the statute's
"interests of justice" exception, concluding that Adams had
failed to meet his burden of proving that the exception was
warranted in the context of the specific facts of his case.
¶5
Adams then filed a motion for reconsideration, in which
he argued that the court should have looked not only to his
memorandum in opposition to the State's motion to dismiss, but
also to his petition for relief, in assessing whether the facts
warranted application of the "interests of justice" exception.
Adams argued that the court's dismissal of his petition was
erroneous because, as his petition indicated, he had not learned
of the possibility of raising a voluntary intoxication defense
until he retained his present attorney, after his conviction was
affirmed and after the one-year statute of limitations had run.
¶6
In further support of his position, Adams attached to
his motion for reconsideration an affidavit, in which he
described his efforts to procure an attorney who would examine
his case to determine if there was any basis for requesting
postconviction relief. According to the affidavit, Adams was
unable to find such an attorney until January 2002. The State
moved to strike the affidavit on the basis that Adams could have
submitted the same information in his initial response to the
State's motion to dismiss.
No. 20040722
2

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¶7
Following a hearing, the court granted the State's
motion to strike, denied Adams's motion for reconsideration, and
dismissed Adams's petition with prejudice. The court reasoned
that Adams "could and should have filed his affidavit with his
opposition to the State's motion to dismiss." The court further
held that Adams's "failure to comprehend the legal significance
of [the evidentiary facts on which his petition was based until
he retained his most recent attorney] [wa]s insufficient to
invoke the `interests of justice' exception." Adams appealed the
district court's dismissal of his petition, and we have
jurisdiction pursuant to Utah Code section 78-2-2(3)(b) (2002).
STANDARD OF REVIEW
¶8
What constitutes the "interests of justice" under Utah
Code section 78-35a-107(3) is a legal determination to be made in
accordance with precedent from this court. Because "legal
determinations concerning the proper interpretation of [a]
statute which grants the trial court discretion are reviewed for
correctness," we apply a de novo standard here, id.; see also
Platts v. Parents Helping Parents, 947 P.2d 658, 661 (Utah 1997),
and conclude that the district court erred in its interpretation
of the "interests of justice" exception.
ANALYSIS
¶9
Adams raises three issues on appeal from the district
court's dismissal of his petition: (1) whether the district
court erred in refusing to excuse the untimely filing of his
petition under the "interests of justice" exception to the PCRA's
one-year statute of limitations, Utah Code Ann. § 78-35a-107(3)
(2002), id. § 78-35a-107(3); (2) whether the district court erred
in striking his affidavit in support of his motion for
reconsideration; and (3) whether the PCRA's statute of
limitations is unconstitutional as applied to Adams's petition.
In a case involving both statutory and constitutional questions,
we address the statutory concerns first. Laney v. Fairview City,
2002 UT 79, ¶ 7, 57 P.3d 1007. We hold in this case that the
"interests of justice" exception applies. We therefore need not
reach the issue of whether the PCRA's statute of limitations is
unconstitutional. Hoyle v. Monson, 606 P.2d 240, 242 (Utah 1980)
("[A] constitutional question is not to be reached if the merits
of the case in hand may be fairly determined on other . . .
issues."); see also Laney, 2002 UT 79 at ¶ 7 ("If the district
court erred in [statutory interpretation], there will be no need
to address the constitutional issue before us. We therefore
address the statutory interpretation question first."). In light
3
No. 20040722

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of our analysis, we conclude that whether the district court
properly struck Adams's affidavit is a moot issue.
I. "INTERESTS OF JUSTICE" EXCEPTION TO THE
PCRA STATUTE OF LIMITATIONS
¶10
Because Adams seeks to challenge his conviction for a
criminal offense, and he "has exhausted all other legal remedies,
including a direct appeal," he is directed to seek relief under
the PCRA, Utah Code Ann. § 78-35a-102(1), and rule 65C of the
Utah Rules of Civil Procedure. The PCRA "establishes a
substantive legal remedy" for an individual whose conviction was
infirm for any of a number of reasons, including the
ineffectiveness of the individual's counsel. Utah Code Ann.
§§ 78-35a-102(1), -104(a)-(e).
¶11
Unlike rule 65B (which deals with extraordinary relief
writs), the PCRA imposes a statute of limitations, which
provides, in relevant part, that "[a] petitioner is entitled to
relief only if the petition is filed within one year after the
cause of action has accrued," id. § 78-35a-107(1), but that "[i]f
the court finds that the interests of justice require, a court
may excuse a petitioner's failure to file within the time
limitations," id. § 78-35a-107(3).1
¶12
For Adams, the PCRA statute of limitations began to run
on August 3, 2000, which was the last date on which he could have
filed a petition for certiorari in the United States Supreme
Court to review this court's decision on direct appeal. Id.
§ 78-35a-107(2)(c). Adams therefore had until August 3, 2001 to
file a timely petition for postconviction relief under the PCRA.
His petition, filed on May 14, 2003, was clearly untimely under
section 78-35a-107. Thus, as the district court recognized,

1 We note that though postconviction relief is sought in a
civil proceeding, see Julian v. State, 966 P.2d 249, 250 n.1
(Utah 1999), the purpose of this exception is similar to that
embodied in Rule 24(a) of the Utah Rules of Criminal Procedure
(rather than, as the State argues, the federal doctrine of
equitable tolling). Rule 24(a) states that "[t]he court may,
upon motion of a party or upon its own initiative, grant a new
trial in the interest of justice if there is any error or
impropriety which had a substantial adverse effect upon the
rights of a party." Utah R. Crim. P. 24(a) (2004) (emphasis
added). We have stated that such a rule is an "overall expression
of the need to rectify any error or impropriety in the trial
process that significantly impacted a defendant's rights." State
v. Maestas, 2002 UT 123, ¶ 54, 63 P.3d 621.
No. 20040722
4

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Adams's only avenue for pursuing relief under the PCRA was
pursuant to the "interests of justice" exception set forth in
section 78-35a-107(3).
¶13
Adams argues that the "interests of justice" exception,
whether read narrowly or broadly, applies to his case. He
contends that he has both a non-frivolous claim and good reason
for filing late in that he was not informed that he might assert
the defense of voluntary intoxication either at trial or on
appeal, and only became aware of the possibility after retaining
counsel for these proceedings. The State argues that justice
compels finality of judgments, that direct appeals and collateral
review provide "generous opportunit[ies]" to correct errors in
the conviction process; and that given the difficulties of
reprosecution, the exception should only apply in "truly
extraordinary circumstances" that are "beyond a petitioner's
control," such as where new DNA evidence supports a claim of
actual innocence. The State also points out that Adams's claims
have been found merely to be non-frivolous, rather than
meritorious, and that even a showing of meritoriousness is
insufficient to meet the exception. If meritoriousness were
always sufficient, the State argues, the exception would always
be met, rendering the statute of limitations meaningless.
¶14
We disagree with the State's analysis. We have
undertaken an explanation of the meaning of the "interests of
justice" exception in the context of rule 65B petitions, and we
see no reason to apply a different approach here. See Julian v.
State, 966 P.2d 249, 253-54 (Utah 1998); Frausto v. State, 966
P.2d 849 (Utah 1998).
¶15
In Julian, the petitioner, a convicted sex offender,
applied for postconviction relief beyond the statutory
limitations period. 966 P.2d at 251. The district court held
that, even if the petition were untimely, it would proceed to
consider the merits based on the "interests of justice" exception
in the statute of limitations. Id. On appeal, the State argued,
as it does now, that this exception should apply only under
"truly exceptional circumstances" in order to lessen the burden
on the state. Id. at 254. This court disagreed and affirmed the
lower court's decision, holding that "proper consideration of
meritorious claims raised in a habeas corpus petition will always
be in the interests of justice." Id. In Frausto, this court
approvingly cited Julian and concluded that trial courts "must
always consider the `interests of justice' exception . . . when a
petitioner raises meritorious claims." 966 P.2d at 851.
5
No. 20040722

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¶16
Here, we conclude that the district court erred in its
interpretation of the "interests of justice" exception to the
statute of limitations. An analysis of what constitutes an
exception in the "interests of justice" should involve
examination of both the meritoriousness of the petitioner's claim
and the reason for an untimely filing. We do not establish as a
hard and fast rule that a petitioner must be able to demonstrate
both that his claim is meritorious and that he was justified in
raising it late; rather, we expect that the district court will
give appropriate weight to each of those factors according to the
circumstances of a particular case. For example, a claim of
actual innocence supported by DNA evidence may require virtually
no justification for a late filing; on the other hand, an
entirely frivolous claim would not meet the "interests of
justice" exception even with the best possible excuse for late
filing.
¶17
The present case falls between these two extremes, so
we must consider both the claim itself and Adams's reasons for
filing late. For the reasons explained below, we conclude that
Adams's claim of ineffective assistance of counsel based on
failure to argue voluntary intoxication has sufficient merit
that, coupled with the indications in Adams's petition that his
inability to find a postconviction attorney led to his untimely
filing, it warrants reinstating Adams's petition, thus allowing
him the opportunity to present this claim at a hearing. We
affirm the district court's dismissal as it applies to the other
two claims asserted in Adams's petition.
¶18
As indicated above, the district court initially
dismissed Adams's petition based on Adams's failure to explain,
in his memorandum in opposition to the State's motion to dismiss,
why the "interests of justice" exception should apply in this
case. We clarify that the court should rely not only on the
petitioner's memorandum in opposition but also on the initial
petition itself in evaluating the two factors we have indicated.
Here, we believe that Adams's petition, together with the trial
transcript indicating that both Adams and his former girlfriend
testified as to his intoxication, provide a sufficient basis for
our conclusion.2

2 Because Adams's petition sufficiently explained that he
was prevented from filing earlier because he had not previously
found an attorney who informed him that voluntary intoxication
was a possible defense at trial, we have no need to turn to
Adams's affidavit for further support on this point. We
therefore conclude that Adams's challenge to the district court's
(continued...)
No. 20040722
6

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A. Meritorious Claim
¶19
We first examine the meritoriousness of Adams's claims.
The district court concluded that Adams's petition was not
"frivolous on its face" for purposes of summary dismissal under
rule 65C(g)(1) of the Utah Rules of Civil Procedure. Rule
65C(g)(2) defines "frivolous on its face" as when "the facts
alleged do not support a claim for relief as a matter of law," or
"the claims have no arguable basis in fact." Utah R. Civ. P.
65C(g)(2)(A)-(B). It follows that a petition that does have an
arguable basis in fact, where the alleged facts would support a
claim for relief, is not frivolous and could have sufficient
merit to warrant a hearing even if untimely filed.
¶20
However, in determining whether the "interests of
justice" exception applies, a court that has found a claim to be
non-frivolous must go one step further and examine whether the
claim is meritorious. The petitioner bears the burden of
pointing to sufficient factual evidence or legal authority to
support a conclusion of meritoriousness. While Adams's petition
and the trial transcript support the meritoriousness of Adams's
ineffective assistance of counsel claim based on failure to
assert a voluntary intoxication defense, we find no support for
Adams's claims of ineffective assistance based on failure to
challenge the charged time span of Adams's alleged crime, and of
cumulative error. Moreover, Adams limits his discussion on
appeal to the former claim and does not mention the other two.
We therefore deem the latter two claims waived and limit our
discussion here to the former claim.
¶21
Adams was convicted of forcible sexual abuse. Under
Utah Code section 76-5-404(1), this crime contains two elements
of intent: "a general intent to take indecent liberties or touch
the anus or genitals of another without that person's permission
and the specific intent or purpose to cause substantial emotional
or physical pain or to sexually arouse or gratify any person."
State v. Sessions, 645 P.2d 643, 646 (Utah 1982). Adams claims
that he was denied effective assistance of counsel because of a
failure to raise the defense of voluntary intoxication to the
specific intent element either at trial or on appeal.
¶22
The defense of voluntary intoxication does not apply to
general intent crimes and is only a defense to specific intent

2 (...continued)
striking of his affidavit is moot, and we need not consider it
further.
7
No. 20040722

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crimes if it serves to negate the mens rea element.3 Though the
burden of proof is high--mere proof of drinking or being drunk is
not enough in many cases, see State v. Wood, 648 P.2d 71, 90
(Utah 1982); State v. Sisneros, 631 P.2d 856, 860 (Utah 1981)--
Adams alleges that he was drunk to the point of losing the
ability to comprehend his circumstances, identity, and all memory
of events in his inebriated state. The trial transcript
indicates that both he and his former girlfriend testified to his
drunkenness at trial. Under the rule 65C(g) standard noted
above, Adams's claims are not frivolous, and may be sufficiently
meritorious to warrant a hearing. As this court said in Julian,
[t]his does not mean that a petitioner has an
unconditional right to have his petition
considered fully on its merits. It means
only that a petitioner has a right to have
the claims set forth in his petition reviewed
by a judge for determination as to whether
the petition warrants further proceedings or
whether it should be dismissed.
966 P.2d at 254.
B. Reason for Untimely Filing
¶23
Having determined that Adams's claim is potentially
meritorious, we now examine his reasons for filing late. Adams
seeks to excuse his untimely filing because he did not know the
legal significance of facts in his possession due to the
ineffective assistance of counsel at both his criminal trial and
on appeal. His petition indicates that, despite trial testimony
regarding his intoxication, his trial counsel did not raise

3 Under Utah Code section 76-2-306, voluntary intoxication
"may negate the existence of a particular intent . . . [and]
basic rules of evidence pertaining to materiality and relevance
require that a defendant have the right to adduce evidence which
would tend to disprove the existence of a specific intent."
Sessions, 645 P.2d at 646; see also State v. Stenback, 2 P.2d
1050, 1053-54 (Utah 1931) (explaining that "drunkenness [does
not] excuse[] crime but . . . if the mental status required by
law to constitute crime be one of specific intent or of
deliberation and premeditation, and drunkenness excludes the
existence of such mental state, then the particular crime charged
has not in fact been committed" (internal quotation omitted));
R. W. Gascayne, Annotation, Modern Status of the Rules as to
Voluntary Intoxication as Defense to Criminal Charge, 8 A.L.R. 3d
1236 (2005).
No. 20040722
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voluntary intoxication as an affirmative defense, nor did his
attorney on direct appeal argue ineffective assistance of counsel
on that basis. We disagree with the district court that an
incarcerated petitioner's failure to understand the legal
significance of facts is irrelevant to the analysis in the
context of ineffective assistance of counsel claims. As Justice
Zimmerman explained in his Julian concurrence, it is nearly
impossible
for even the most conscientious prisoner to
discover possibly valid legal claims of error
and pursue them completely. In Utah, most
minimal legal research materials are lacking
at the prison, and the legal services
provided to assist the prisoners are grossly
inadequate. Under such circumstances, it is
a cruel joke to presume as the legislature
has that virtually all prisoners are abusing
the system when they file . . . petitions
more than a year after their conviction.
Id. at 259 (Zimmerman, J., concurring). Where a criminal
defendant exercises his right to counsel at trial and on direct
appeal, we decline to put the burden on individuals untrained in
the law to discover the errors of those whose assistance they
were constitutionally guaranteed. The State is correct when it
points out that there is an important public interest in finality
of judgments and that there are real costs to reprosecution where
a conviction is overturned on postconviction review, but these
cannot outweigh the individual rights, both substantive and
procedural, which the justice system exists to protect.
¶24
One of the greatest safeguards of individual rights is
effective assistance of counsel. There is no adequate substitute
in our system of justice for a competent and dedicated advocate
who carefully prepares and skillfully presents the arguments,
defenses, and objections calculated to best protect his client's
rights and interests. Because the client is the ultimate
decisionmaker,4 there are limits to what even the best of counsel
can do; however, counsel should at least apprise the client of
the options available and give advice based on research,
experience, and sound judgment.

4 See Wood, 648 P.2d at 91 (explaining that an attorney
"acts as an assistant for his client, and not as a master"
(citations omitted)).
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No. 20040722

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¶25
Counsel is deemed ineffective by constitutional
standards5 if his performance both falls below an objective
standard of reasonableness and prejudices his client. Strickland
v. Washington, 466 U.S. 668, 687 (1984). This is a high standard
to meet, as tactical decisions such as "what witnesses to call,
what objections to make, and, by and large, what defenses to
interpose, are generally left to the professional judgment of
counsel." Wood, 648 P.2d at 91; see also State v. Tennyson, 850
P.2d 461, 466 (Utah Ct. App. 1993) (explaining that ineffective
assistance claims "rarely succeed"). Adams claims his trial and
appeal attorneys fell below an objective standard of
reasonableness in failing to raise an affirmative defense that,
given the facts of this case, would have negated an element of
the offense charged.6 He also claims to have suffered prejudice
as a result. See State v. Brechlin, 846 P.2d 1274, 1275 (Utah
1993) (explaining the second prong as requiring "a reasonable
probability . . . that but for counsel's errors, a more favorable
result for the accused would have been obtained").
¶26
In light of the potential meritoriousness of Adams's
claim of ineffective assistance of counsel based on counsel's
failure to argue voluntary intoxication as an affirmative
defense, we conclude that Adams's petition sufficiently justified
its untimely filing to warrant consideration on its merits.
CONCLUSION

5 Adams does not specify whether he is arguing ineffective
assistance of counsel under article I, section 6 of the Utah
Constitution or the Sixth Amendment of the United States
Constitution. In either case, this court applies the standard
laid out in Strickland. See, e.g., State v. Martinez, 2001 UT
12, ¶ 16, 26 P.3d 203 (not specifying which constitution was the
source of the ineffective assistance claim).

6 We have interpreted Utah Code section 78-35a-104(1)(d) as
allowing "a petitioner [to] raise the issues he failed to raise
on direct appeal through an allegation of ineffective assistance
of counsel at trial and on appeal if he was represented by the
same counsel during both phases of the criminal proceedings."
Rudolph v. Galetka, 2002 UT 7, ¶ 7, 43 P.3d 467. Here, Adams was
represented by different counsel at trial and on appeal, and he
raised an ineffective assistance claim, based on a different
argument, in his direct appeal. To dismiss Adams's petition on
that basis, however, under the specific circumstances of this
case, would place the burden of discovering viable defenses on
clients rather than their attorneys, defeating the operation of
the interests of justice exception as we have explained it here.
No. 20040722
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¶27
We hold that Adams is entitled to a hearing on his
claim for postconviction relief based on his former counsel's
failure to assert a voluntary intoxication defense. We do so
because Adams has a non-frivolous claim that may prove
meritorious as well as good reason for filing his petition late,
in that, in the absence of effective assistance of counsel, he
could not be held responsible for understanding the legal
significance of his intoxication as an affirmative defense to the
mens rea element of forcible sexual assault. We reverse the
district court's dismissal of that claim and reinstate the
relevant portion of Adams's petition for postconviction relief.7
We affirm the district court's dismissal of the other claims in
Adams's petition, and we conclude that the issue regarding the
affidavit Adams submitted with his motion for reconsideration is
moot.
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¶28
Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham's opinion.

7 We of course express no view on the question of whether
Adams' claim, after hearing, warrants relief. We determine only
that dismissal without hearing was erroneous.
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No. 20040722

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