
    2013 UT App 189
    Everado COLLINS, Plaintiff and Appellee, v. STATE of Utah, Defendant and Appellant.
    No. 20120664-CA.
    Court of Appeals of Utah.
    July 26, 2013.
    Hakeem Ishola and Aaron Tarin, for Ap-pellee.
    John E. Swallow and Erin Riley, for Appellant.
    Before Judges ORME, DAVIS, and MeHUGH.
   Decision

PER CURIAM:

1 1 The State of Utah appeals the denial of its motion to dismiss a petition for post-conviction relief as untimely and the subsequent grant of that petition, which vacated two 1996 convictions. This case is before the court on the State's motion to summarily reverse both the denial of its motion to dismiss the petition as untimely and the grant of post-conviction relief.

T2 Everado Collins pleaded guilty to felony drug charges and was sentenced in 1996. After serving a jail term, he was deported. Collins filed the underlying petition for post-conviction relief in 2010, asserting that he received ineffective assistance from his trial counsel based upon Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). In Padilla, the United States Supreme Court held that the Sixth Amendment requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea. The State moved to dismiss the petition, arguing both that the petition was untimely and that the rule announced in Padilla should not be retroactively applied to Collins's 1996 convie-tions. The post-conviction court concluded that the Padilla decision was dictated by precedent existing when the 1996 convictions became final and therefore the petition was timely filed under Utah's Post-Convietion Remedies Act (PCRA) within one year of the Padilla decision. See Utah Code Anu. § 78B-9-104(1)®@G) (LexisNexis 2012) (allowing post-conviction relief to vacate a conviction if the petitioner can prove entitlement to relief under a rule announced by the United States Supreme Court after a conviction and sentence became final on direct appeal and show that "the rule was dictated by precedent existing at the time the petitioner's conviction or sentence became final"); see also id. § T8B-9-107(2)(f) (requiring a petition to be filed within one year after "the date on which the new rule described in Subsection 78B-9-104(1)(f) is established"). After denying the motion to dismiss the petition as untimely and holding an evidentiary hearing, the post-conviction court granted relief under Padilla and vacated Collins's convictions. The State moves for reversal of both the denial of its motion to dismiss the post-conviction petition as untimely and the subsequent grant of post-conviction relief.

13 When Collins filed his post-convietion petition, it was an open question whether Padilla applied retroactively to persons whose convictions became final before Padilla was decided. Chaides v. United States, - U.S. -, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), resolved that issue. The Chaides decision states that "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." 1833 S.Ct. at 1107. The United States Supreme Court determined in Chaides that "Padilla's holding that the failure to advise about a non-criminal consequence could violate the Sixth Amendment" announced a new rule that was not dictated by existing precedent. See id. at 1111. Therefore, Collins was not entitled to bring a post-conviction petition under the PCRA after Padilla because that decision was not based upon precedent existing at the time his convictions became final. See Collins v. State, 2013 UT App 182, ¶ 3, 306 P.3d 873; see also Utah Code Ann. § 78B-9-Furthermore, Collins was not entitled to post-conviction relief under Padi/-la because Chaides held that Padilla does not have retroactive application to convie-tions that became final before Padilla was decided. See Chaides, 188 S.Ct. at 1118.

14 Collins argues that there is a basis in Utah law for retroactive application of the Padillo decision. This argument was not raised before the post-conviction court and is not appropriately before this court. See id.; Winward v. State, 2012 UT 85, ¶ 9, 293 P.3d 259.

15 Collins also seeks a remand pursuant to rule 28B of the Utah Rules of Appellate Procedure for a determination whether his post-conviction counsel was ineffective in failing to make an alternative argument that Padilla could be applied retroactively as a matter of Utah law. Under rule 23B, a party in a criminal case may seek a remand for the purpose of creating a record regarding an ineffective assistance of counsel claim under certain cireumstances. Utah R.App. P. 23B. The rule applies only to criminal cases. Id. Post-conviection proceedings are civil matters. Utah Code Ann. $ 78B-9-102(1) (2012). There is no right to counsel in civil post-conviction proceedings. See Hutchings v. State, 2008 UT 52, ¶ 20, 84 P.3d 1150. Accordingly, there is no remand available in this case. See Collins v. State, 2013 UT App 182, ¶ 5, 306 P.3d 873.

16 We reverse both the denial of the State's motion to dismiss the petition for post-conviction relief as untimely and the subsequent grant of post-conviction relief vacating the 1996 convictions.  