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Feb. 20, 2026 Get Citation Alerts Download PDF Add Note

Washington v. State

Court of Appeals of Utah

• Citations: 2026 UT App 27

• Docket Number: Case No. 20230553-CA

• Opinion

• Authorities (31)

• Cited By (0)

• Summaries (0)

• Similar Cases (18.1K)

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Combined Opinion

2026 UT App 27

THE UTAH COURT OF APPEALS

TERRY WAYNE WASHINGTON,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20230553-CA
Filed February 20, 2026

Fifth District Court, Cedar City Department
The Honorable Ann Marie McIff Allen
No. 220500108

Benjamin Miller and Debra M. Nelson,
Attorneys for Appellant
Derek E. Brown and Tanner R. Hafen,
Attorneys for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

TENNEY, Judge:

¶1 Terry Washington was convicted of attempted rape and
sexual solicitation, and this court affirmed his convictions on
direct appeal. Washington later filed a pro se petition for
postconviction relief in which he appeared to raise three claims.
After conducting an initial review, the district court summarily
dismissed two of the claims on the basis that they were
procedurally barred. Washington later filed a motion requesting
the appointment of counsel, while the State filed a motion for
summary judgment on the third claim. The district court
subsequently denied Washington’s request for counsel and
granted the State’s motion for summary judgment on the
remaining claim.
Washington v. State

¶2 Washington now raises four issues on appeal.

• First, Washington challenges the court’s summary
dismissal of his first two claims.

• Second, Washington challenges the court’s denial of his
request for the appointment of counsel.

• Third, Washington challenges the court’s decision
granting summary judgment on his third claim.

• Finally, Washington argues that the court erred by failing
to address a fourth claim that, in his view, he had raised
in the memorandum he filed in support of his
postconviction petition.

¶3 With respect to Washington’s first issue, the State concedes
that the district court erred in summarily dismissing his first two
claims. That concession is well taken, so we reverse that dismissal
and remand for further proceedings. For the reasons set forth
below, however, we see no reversible error with respect to the
remaining issues, so we affirm in all other respects.

BACKGROUND 1

Charges and Trial

¶4 Washington was charged by information with one count of
attempted rape and one count of sexual solicitation.

1. The facts that led to Washington’s criminal convictions are set forth in State v. Washington, 2021 UT App 114, ¶¶ 2–7, 501 P.3d 1160, and we need not recount them here. We’ll instead limit our discussion to the procedural history relevant to the issues before us in this appeal.

20230553-CA 2 2026 UT App 27
Washington v. State

¶5 Before trial, Washington’s counsel (Trial Counsel) raised
some concerns about Washington’s competency, and the district
court ordered a competency evaluation. Two experts evaluated
Washington, and they came to different conclusions about
whether Washington was competent. At a subsequent
competency review hearing, Trial Counsel acknowledged this
difference in opinion. Trial Counsel then asked the court “to
accept the recommendation” from the expert who had deemed
Washington competent and thus rule that Washington was
indeed competent to proceed. At that point, the court addressed
Washington personally and asked him if he felt competent, to
which Washington responded, “Yes, sir, I’d like to have a bench
trial.” 2 When the court asked Washington if he understood the
charges, Washington said, “Well, I do now. . . . Yes, sir.” The court
accepted the stipulation from Trial Counsel about Washington’s
competency, adopted the conclusions from the expert who
concluded that Washington was competent, and set a date for a
bench trial.

¶6 Five days before the scheduled trial, the State moved to
amend the information. The original information had erroneously
stated that attempted rape was a second-degree felony, and the
amended information corrected this by designating it as a first-
degree felony. 3 One day before trial, the State filed a second
amended information that added the specific subsection of the

1. As indicated in the caption to this opinion, the judge who
   presided over the postconviction case was Judge Ann Marie McIff
   Allen. The judge who presided over the criminal case was Judge
   Keith C. Barnes, which explains Washington’s use of the term
   “sir” when addressing the judge at trial.

2. Attempted rape is classified as a “first degree felony punishable
   by imprisonment for an indeterminate term of not fewer than
   three years and which may be for life.” Utah Code § 76-4-
   102(1)(c)(iii) (2018).

20230553-CA 3 2026 UT App 27
Washington v. State

statute for the sexual solicitation charge. The second amended
information read as follows:

The State of Utah, through the undersigned
prosecutor, alleges TERRY WAYNE
WASHINGTON committed the following criminal
offense(s) in Iron County Utah:

COUNT 1: ATTEMPTED RAPE, a First Degree
Felony, in violation of 76-5-402, in that TERRY
WAYNE WASHINGTON, on or about October 21,
2018, did attempt to have sexual intercourse with
another person without the victim’s consent.

The State hereby gives notice to the defendant that if
convicted of count 1, the statutory term of imprisonment
is not less than 5 years and which may be for life.
Imprisonment is mandatory in accordance with UCS,
Section 76-3-406[.][4]

COUNT 2: SEXUAL SOLICITATION, a Class A
Misdemeanor, in violation of 76-10-1313(1)(b), in
that TERRY WAYNE WASHINGTON, on or about
October 21, 2018, did (a) offer or agree to commit
any sexual activity with another person for a fee; or
(b) pay or offer or agree to pay another person to
commit any sexual activity for a fee; or (c) with
intent to engage in sexual activity for a fee or the
functional equivalent of a fee or to pay another
individual to commit any sexual activity for a fee or
the functional equivalent of a fee engage in, offer or
agree to engage in, or request or direct another to

1. This paragraph was incorrect. Under Utah Code section 76-4- 102(1)(c)(iii) (2018), this offense was punishable by a mandatory sentence of three years to life. The State brought this error to the attention of the court at sentencing.

20230553-CA 4 2026 UT App 27
Washington v. State

engage in any of the following acts: (i) exposure of
an individual’s genitals, the buttocks, the anus, the
pubic area, or the female breast below the top of the
areola; (ii) masturbation; (iii) touching of an
individual’s genitals, the buttocks, the anus, the
pubic area, or the female breast; or (iv) any act of
lewdness.

(Italics in original.)

¶7 The day of trial, the parties had a discussion on the record
about the amended informations. During this discussion, Trial
Counsel informed the court that he had seen a copy of the second
amended information and he didn’t “have any objections” to it.
He also said that he understood “that the second-degree felony of
rape is a charge that doesn’t technically exist” and that he
“explained that to [Washington].” The district court agreed with
Trial Counsel that the original information’s reference to
attempted rape as a second-degree felony “was just an oversight,”
and the court further agreed “that the elements of the . . . alleged
crimes . . . did not change, other than the fact that it’s a first-degree
felony, . . . but there was information given that there is a
minimum mandatory prison sentence.”

¶8 The court then proceeded with the bench trial. The State
called seven witnesses, including the victim and various other
witnesses who had interacted with her after the incidents at issue.
After the State rested, Washington moved for a directed verdict,
which the court denied. Washington did not testify and presented
no evidence.

¶9 The district court found Washington guilty on both counts,
after which it sentenced him to three years to life in prison on his
attempted rape conviction, with a concurrent one-year jail
sentence for the solicitation conviction.

20230553-CA 5 2026 UT App 27
Washington v. State

Direct Appeal

¶10 With the assistance of new counsel (Appellate Counsel),
Washington timely appealed his convictions, arguing that
(1) there was insufficient evidence to convict him on the
attempted rape charge and (2) Trial Counsel had provided
ineffective assistance by stipulating to his competency. This court
affirmed Washington’s convictions, holding that the evidence was
sufficient and that Washington had failed to establish ineffective
assistance of counsel. See State v. Washington, 2021 UT App 114,
¶ 21, 501 P.3d 1160. Regarding the latter issue, we held that
because Washington had “failed to provide the competency
review hearing transcript as part of the record, and because
Washington [had] not requested a remand under rule 23B to
supplement the record,” Washington was “unable to meet his
appellate burden of persuasion” that Trial Counsel “rendered
deficient performance.” Id. ¶ 18.

Postconviction Proceedings

¶11 Washington later filed a pro se petition for postconviction
relief under the Postconviction Remedies Act (the PCRA). See
Utah Code §§ 78B-9-101 to -503.

¶12 Washington filled out a preprinted form for his
postconviction petition. In one part that is relevant to this appeal,
the form gave the following instructions to petitioners: “State
concisely every ground on which you claim you are entitled to
post-conviction relief. Summarize briefly the facts supporting
each ground. If necessary, you may attach additional pages
stating additional grounds and facts supporting same.”
Continuing, it provided the following guidance:

GROUNDS: Describe your claims without citing
case law or making argument. (e.g., Ground One:
denial of effective assistance of counsel) followed by
concise summaries of the alleged facts under each
title. You may attach additional paperwork if

20230553-CA 6 2026 UT App 27
Washington v. State

required. Separate each ground with new heading
information (Ground One, Ground Two, etc.).

The form then included two pages of lined space on which a
petitioner could state his or her ground(s) for relief.

¶13 On the first page, Washington handwrote the following,
which we reprint here in full and verbatim:

Ground One: Defective Information

Supporting Fact: The information filed in the instant
case omitted an essential element of the offense
charged. See Memorandum in Support of 65C

Ground Two: Ineffective Assistance of Trial Counsel

Supporting Fact: Trial Counsel failed to object to the
omission of an essential element of the offense
charged. See Memorandum in Support of 65C

Ground Three: Ineffective Assistance of Appellate
Counsel

Supporting Fact: Appellate Counsel failed to raise
the Defective Information and Trial Counsel’s I.A.C.
on this issue. See Memorandum in Support of 65C

These three listed grounds took up about half of a page, thus
leaving about a page and a half of blank space where additional
grounds could have been listed if needed.

¶14 Washington also filed a handwritten supporting
memorandum contemporaneously with his postconviction
petition. The supporting memorandum was organized into five
sections, which were set off with the following as underlined and
centered headings: (i) “Statement of the Case,” (ii) “Statement of

20230553-CA 7 2026 UT App 27
Washington v. State

the Facts,” (iii) “Summary of Arguments,” (iv) “Argument,” and
(v) “Conclusion.”

¶15 Under the Summary of Arguments heading, Washington
spent two paragraphs addressing the first ground that he had
identified in his petition—namely, that the “[i]nformation filed in
the instant case [was] facially invalid.” The next paragraph (which
was the final paragraph in the Summary of Arguments) moved
on to his claims of ineffective assistance. It read as follows (again
reprinted verbatim):

Petitioner was denied his constitutional right to the
assistance of counsel at trial and on direct appeal.
“Two evaluations” were conducted on petitioner to
determine his competency to stand trial, one says
you’re competent, one says you’re not. Trial counsel
was ineffective for stipulating to the evaluation that
stated petitioner was competent for trial . . . The
issue of petitioner’s competency should have been
adjudicated by the court as set forth under statute.
A hearing was required to safeguard petitioner’s
rights regarding his competency or lack thereof, to
enable the court to decide the issue, not by
stipulation. Thus, trial counsel was ineffective and
the trial court abused its discretion. Appellate
counsel was also ineffective for failure to provide
the Appellate Court with sufficient evidence to
address the errors on direct appeal.

¶16 Washington’s memorandum then moved on to the
Argument section. The Argument section comprised 12 pages of
handwritten text, and it contained detailed legal discussion that
was supported by citation to relevant authorities and discussion
of how those authorities supported his claims. 5 It was organized

1. Indeed, the citations and even the use of introductory signals were generally correct under standard legal citation norms.

20230553-CA 8 2026 UT App 27
Washington v. State

in three sections, each of which was set off by a Roman numeral
and an indented and all caps heading. Those headings were:

I. THE INFORMATION FILED IN THIS CASE IS
DEFECTIVE: DUE TO THE OMISSION OF AN
ESSENTIAL ELEMENT OF THE OFFENSE

....

II. MR. WASHINGTON DID NOT RECEIVE
EFFECTIVE ASSISTANCE OF COUNSEL AT
TRIAL

....

III. INEFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL

¶17 Under headings II and III, Washington did not make any
assertion about either Trial Counsel or Appellate Counsel
providing ineffective assistance relating to his competency.
Instead, and consistent with the three grounds for relief that were
identified in the petition, these sections only contained discussion
of Washington’s claims relating to alleged defects in the
information. In section II, Washington asserted that Trial Counsel
should have argued that the information was inadequate because
it did not cite the statute governing attempted offenses or set forth
the elements of an attempted offense. 6 And in section III,
Washington asserted that Appellate Counsel provided ineffective

1. Washington raised similar concerns about each of the three informations that were filed in the case, and the ensuing arguments (both below and on appeal) and rulings have often blurred the distinction between them. But the alleged defects existed in each information, and our resolution of the related issue raised on appeal would apply with equal force to all three. For ease, we’ll use the singular “information” moving forward.

20230553-CA 9 2026 UT App 27
Washington v. State

assistance on appeal by not raising Trial Counsel’s alleged
ineffectiveness concerning defects in the information.

¶18 After Washington filed his petition, and before the State
had been served with it, the district court issued what it titled an
“Order of Summary Dismissal of Claims.” The court stated that it
was conducting an initial review pursuant to rule 65C(b) of the
Utah Rules of Civil Procedure. It then stated that pursuant to Utah
Code section 78B-9-106(1)(c), Washington was “not eligible for
relief” on his first two claims because they “could have been but
were not raised in the trial court, at trial, or on appeal.” After
dismissing those claims, the district court held that Washington
could “proceed on the remaining claim” set forth in his petition.
It accordingly directed the clerk of court to serve a copy of the
petition on the State, and it gave the State 30 days “to answer or
otherwise respond to the portions of the [p]etition that ha[d] not
been summarily dismissed.”

¶19 The State subsequently filed a motion to transfer the
postconviction case to the judge who had sentenced Washington
in the criminal case. See Utah R. Civ. P. 65C(g). At the hearing on
that motion, Washington appeared by video from the jail. When
the court asked Washington if he “want[ed] to be heard on” this
issue, Washington did not appear to understand the import of the
court’s question and began discussing the substance of his
underlying charges. The court interrupted him and said, “We’re
not discussing the underlying issues today. The only thing we’re
discussing is which judge is going to be assigned to the case.
That’s it.” Washington replied, “Well, I’m going to need a lawyer.
I’m going to need a representative to . . . represent me on this case
because I don’t understand . . . what you’re saying.” The court
then told Washington, “Certainly, . . . you are entitled to have an
attorney represent you. . . . [A]nd you can certainly hire an
attorney of your choice. The question would be whether you
would be entitled for government-funded indigency-appointed
counsel.”

20230553-CA 10 2026 UT App 27
Washington v. State

¶20 The court asked the State what its position was on
Washington’s request for counsel. The State responded that
Washington “is absolutely entitled to a court-appointed counsel
for his . . . original criminal proceedings and his direct appeal. But
that same right does not exist for postconviction proceedings like
this one.” The State told the court that rule 65C(j) “does give [the
court] the prerogative to appoint . . . Washington pro bono
counsel,” and it further explained that rule 65C(j) sets forth the
applicable guidelines for making that decision. But the State then
told the court that it had “no position on whether . . . Washington
should be appointed counsel.” After the State concluded, the
court informed Washington that if he “would like to make a
request under [r]ule 65C for the appointment of counsel,” he must
“file that with the appropriate documentation.”

¶21 Washington soon filed a written motion requesting the
appointment of counsel, asserting there, in full, that he was
“incompetent to proceed pro se because of his poverty and
because this is a complex legal issue beyond [his] expertise in self-
representation.” Washington subsequently reiterated his request
for the appointment of counsel in various other filings, including
a pleading relating to his request for leave to file another appeal,
his response to the State’s motion for summary judgment, and a
renewed motion for the appointment of counsel. In the course of
these filings, Washington asserted that he couldn’t “afford an
attorney” because he had “$5,000 in [his] inmate [ac]count” and a
job in the prison with a monthly pay of only $160; that “some of
[his] factual allegations” may “require an evidentiary hearing”;
that this “is a complicated legal matter which is beyond his
expertise to properly litigate”; and that “he falls under [the]
A.D.A.” because “he is [hard] of hearing” and wears “two hearing
aids.” Washington also referred the court to Utah Code section
78B-9-109(2), which, in his telling, required the court to “consider
whether the petition . . . contains factual allegations that will
require an evidentiary hearing and . . . whether the petition
involves compl[ica]ted issues of law, or facts that require the
assistance of counsel for proper adjudication” in determining
whether to appoint counsel.

20230553-CA 11 2026 UT App 27
Washington v. State

¶22 Before the court ruled on Washington’s request for the
appointment of counsel, the State filed a motion for summary
judgment on Washington’s third claim—which, as noted, asserted
that he had received ineffective assistance from Appellate
Counsel. There, the State argued that: (1) there were “no genuine
issues of disputed material facts”; (2) the information was
adequate as a matter of law, which meant that Washington could
not show deficient performance because Appellate Counsel did
not overlook a meritorious issue; and (3) even if the information
was inadequate in some respect, Washington could not show
prejudice because Washington “mounted a vigorous defense
against the charge of attempted rape” but was still ultimately
convicted.

¶23 The district court subsequently issued rulings denying
Washington’s motion for the appointment of counsel and
granting the State’s motion for summary judgment. In its ruling
denying Washington’s request for the appointment of counsel, the
court noted that the appointment of counsel is “discretionary
under Utah Rule of Civil Procedure 65C(j)” but that the rule
requires the court to “consider whether the petition or the appeal
contains factual allegations that will require an evidentiary
hearing and whether the petition involves complicated issues of
law or fact that require the assistance of counsel for proper
adjudication.” The court then stated that “[a]fter reviewing
[Washington’s] remaining claim in his petition, and considering
the factors outlined in rule 65C(j),” it had decided “not to appoint
counsel in this case” because Washington’s allegations were “not
legally or factually complex, nor [did] they require an evidentiary
hearing for proper adjudication.”

¶24 At the outset of its ruling granting the State’s motion for
summary judgment, the court observed that Washington had
raised three claims in his postconviction petition and that it had
“summarily dismissed his first two claims” pursuant to “rule
65C(h) of the Utah Rules of Civil Procedure” “because they could
have been but were not raised in the trial court, at trial, or on
appeal.” With respect to “Washington’s third claim,” the court

20230553-CA 12 2026 UT App 27
Washington v. State

then agreed with the State’s assertion that any objection to the
“adequacy” of the information “would have been meritless.” This
was so, in the court’s view, because the information “included the
statutory definition of rape” and “made clear that Washington
was being charged with the derivative offense of attempted rape.”
While acknowledging that the information did not contain the
statutory citation or elements of an attempted offense, the court
concluded that “Washington clearly knew that he was being
charged with attempted rape.” Here, the court observed that
Washington had prepared a defense to the attempt charge and
“argued about it extensively” at trial. The court accordingly
concluded that Washington had not shown that he received
ineffective assistance, and it thus dismissed this claim.

¶25 Washington appealed that dismissal, after which this court
appointed counsel to represent Washington in this appeal.

ISSUES AND STANDARDS OF REVIEW

¶26 On appeal, Washington first argues that the district court
erred by failing to give him notice and an opportunity to be heard
before summarily dismissing his first two claims. “We review for
correctness the district court’s dismissal of a petition for
postconviction relief.” Monson v. Salt Lake City, 2015 UT App 136,
¶ 5, 351 P.3d 821.

¶27 Second, Washington argues that the district court abused
its discretion by denying his request for counsel. “We review [a]
district court’s denial of a motion to appoint counsel under [the
PCRA] for an abuse of discretion.” Zaragoza v. State, 2017 UT App
215, ¶ 14, 407 P.3d 1122.

¶28 Third, Washington argues that the district court erred by
granting the State’s motion for summary judgment. “We review a
district court’s summary judgment ruling for correctness,
granting no deference to its legal conclusions, and consider
whether it correctly concluded that no genuine issue of material

20230553-CA 13 2026 UT App 27
Washington v. State

fact existed.” Helf v. Chevron U.S.A. Inc., 2015 UT 81, ¶ 46, 361 P.3d
63 (quotation simplified).

¶29 Finally, Washington argues that the district court erred by
failing to address what Washington asserts was a fourth claim
that he raised in his postconviction petition: namely, whether he
received ineffective assistance from Appellate Counsel relating to
the competency issue. As discussed below, we conclude that this
issue was not properly pleaded, so the court’s decision to grant
summary judgment without ruling on it is reviewed for
correctness. See Rokovitz v. Manley Construction LLC, 2025 UT App
3, ¶ 20, 563 P.3d 433.

ANALYSIS

I. Summary Dismissal

¶30 Washington first argues that the district court erred by
summarily dismissing his first two claims. The State agrees that
the court did so in error. This concession is well taken.

¶31 Rule 65C(h) of the Utah Rules of Civil Procedure is titled
“Summary dismissal of claims.” That rule requires a district court
to conduct an initial review of a postconviction petition and then
summarily dismiss a claim if either (1) “it is apparent to the court
that” it “has been adjudicated in a prior proceeding” or (2) it
“appears frivolous on its face.” Utah R. Civ. P. 65C(h)(1). For
purposes of this rule, a

claim is frivolous on its face when, based solely on
the allegations contained in the pleadings and
attachments, it appears that: (A) the facts alleged do
not support a claim for relief as a matter of law;
(B) the claim has no arguable basis in fact; or (C) the
claim challenges the sentence only and the sentence
has expired prior to the filing of the petition.

20230553-CA 14 2026 UT App 27
Washington v. State

Id. R. 65C(h)(2); see also Archuleta v. Galetka, 2011 UT 73, ¶ 49, 267
P.3d 232 (noting that rule 65C(h) serves as an “earl[y] screening
mechanism that allows judges to weed out frivolous post-
conviction claims that have a low likelihood of success”).

¶32 The court’s ruling was titled “Order of Summary Dismissal
of Claims.” In that ruling, the court stated that pursuant to rule
65C(b) of the Utah Rules of Civil Procedure and Utah Code
section 78B-9-106(1)(c), it was dismissing Washington’s first two
claims because they “could have been but were not raised in the
trial court, at trial, or on appeal.” In its subsequent summary
judgment ruling (which, as noted, dismissed the third claim), the
court observed that it had previously “summarily dismissed” the
first two claims pursuant to “rule 65C(h) of the Utah Rules of Civil
Procedure.”

¶33 In light of all this, we see two problems with the court’s
ruling.

¶34 First, although the court initially referred to rule 65C(b),
that rule does not set forth the procedures for the summary
review or dismissal of a postconviction claim. Rather, those
procedures are set forth in rule 65C(h), which seems to have been
the point of the court’s subsequent clarification. But to the extent
that the court’s summary dismissal was indeed entered pursuant
to rule 65C(h), the dismissal was improper because it was based
on a ground that’s not permitted by that rule. As noted, rule
65C(h) allows for summary dismissal if (1) it’s apparent that a
claim “has been adjudicated in a prior proceeding” or (2) a claim
“appears frivolous on its face.” Utah R. Civ. P. 65C(h)(1). But here,
the court’s summary dismissal was predicated on its conclusion
that the claims could have been raised previously but were not.
This ruling therefore fell outside the scope of rule 65C(h).

¶35 Second, we acknowledge that in the course of conducting
the initial summary review, it may become apparent to a district
court that some claims may be procedurally barred because they
could have been raised earlier but were not. See Utah Code § 78B-

20230553-CA 15 2026 UT App 27
Washington v. State

9-106(1)(c) (stating that a petitioner “is not eligible” for
postconviction relief on “any ground” that “could have been but
was not raised in the trial court, at trial, or on appeal”). We further
note that under Utah Code section 78B-9-106(2)(b), “[a]ny court
may raise a procedural bar . . . on the court’s own motion.” And
this may well have been what the court was doing here, albeit
under the (incorrect) auspices of the summary review process set
forth in rule 65C(h).

¶36 But by statute, before dismissing a claim “on the court’s
own motion,” the court must “give[] the parties notice and an
opportunity to be heard.” Id. § 78B-9-106(2)(b); see also Bevan v.
State, 2018 UT App 237, ¶ 5, 434 P.3d 516 (holding that the district
court dismissed the petitioner’s postconviction petition “as
procedurally barred without providing the required notice and
opportunity to be heard” and that this “constitute[d] manifest
error requiring reversal”). Thus, if the district court meant to
invoke this authority (as opposed to the summary dismissal
authority set forth in rule 65C(h)), the court erred by failing to give
Washington notice and an opportunity to be heard about the
potential impact of the procedural bar set forth in Utah Code
section 78B-9-106(1)(c).

¶37 For either reason, we conclude that the court erred by
dismissing the first two claims. We accordingly reverse that
dismissal and remand for further proceedings on those claims.

II. Appointment of Counsel

¶38 Washington next argues that the district court abused its
discretion when it denied his request for the appointment of
counsel. We disagree.

¶39 “Unless a defendant has been sentenced to death, there is
no statutory or constitutional right to counsel in a post-conviction
proceeding.” Tillman v. State, 2012 UT App 289, ¶ 22, 288 P.3d 318
(quotation simplified). Instead, the PCRA “leaves the
appointment of counsel in a petition for post-conviction relief . . .

20230553-CA 16 2026 UT App 27
Washington v. State

to the court’s discretion.” Id. (quotation simplified). Our courts
“have recognized that a postconviction court enjoys wide latitude
regarding whether to appoint counsel” in a postconviction case.
Carrell v. State, 2023 UT App 93, ¶ 36, 536 P.3d 653 (quotation
simplified). “Indeed, in this context, our supreme court has
instructed that a district court abuses its discretion only if its
decision was beyond the limits of reasonability, an event which
occurs when the district court has taken actions that are inherently
unfair or that no reasonable person would take.” Zaragoza v. State,
2017 UT App 215, ¶ 17, 407 P.3d 1122 (quotation simplified). Thus,
as long as the district court “considers the factors that [it is]
require[d] . . . to consider,” the court “enjoys wide discretion over
the ultimate decision about whether to appoint pro bono counsel
in post-conviction cases.” Id.

¶40 Here, Washington argues that the district court failed to
consider certain factors that, in his view, it was required to
consider. When a postconviction petitioner requests the
appointment of counsel, two sources of authority set out the
factors that the court either must or instead may consider. First,
rule 65C(j) of the Utah Rules of Civil Procedure states that the
court “shall consider” (1) “whether the petition . . . contains factual
allegations that will require an evidentiary hearing” and
(2) “whether the petition involves complicated issues of law or
fact that require the assistance of counsel for proper
adjudication.” (Emphasis added.) Second, Utah Code section 78B-
9-109(2) states that the court “may consider” a series of
enumerated factors. (Emphasis added.) In addition to listing the
same two factors listed in rule 65C(j), see Utah Code § 78B-9-
109(2)(b), (d), this statute provides that courts “may consider”
“whether the petitioner is incarcerated,” “the likelihood that an
investigation will be necessary,” and “any other factor relevant to
the particular case,” id. § 78B-9-109(2)(a), (c), (e).

¶41 As discussed above, when the district court denied
Washington’s request for the appointment of counsel, it expressly
considered the two factors set forth in rule 65C(j), but it did not
then engage in any further analysis. Washington now asserts that

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Washington v. State

this was error. In his view, the court was required to consider the
additional factors set forth in Utah Code section 78B-9-109(2).

¶42 We disagree, and we do so because of the plain language
of the controlling authorities. Again, the two factors set forth in
rule 65C(j) are introduced by the term “shall.” Utah cases have
commonly concluded that the word “shall” refers to something
that is mandatory. See State v. Blake, 2025 UT 21, ¶ 37, -- P.3d --
(noting that “‘[s]hall’ is presumed to indicate a mandatory act”);
State v. Grover, 2022 UT App 48, ¶ 37, 509 P.3d 223 (concluding
that the word “shall” within a rule of judicial procedure created a
“mandatory” requirement); Paar v. Stubbs, 2005 UT App 310, ¶ 7,
117 P.3d 1079 (noting that “‘[s]hall’ is commonly understood to
create a mandatory condition”); see also Utah Code § 68-3-12(j)
(noting that for purposes of interpreting a provision in the Utah
Code, “‘[s]hall’ means that an action is required or mandatory”).

¶43 By contrast, the additional factors set out in section 78B-9-
109(2) are introduced with the word “may.” Utah courts have
commonly concluded the word “may” refers to something that is
discretionary. See, e.g., Carrell, 2023 UT App 93, ¶ 36 (“The plain,
ordinary, and accepted meaning of the word may is permissive or
discretionary, generally indicating that an individual is either
permitted or has a possibility to do something.” (emphasis in
original, quotation otherwise simplified)); North Fork Meadows
Owners Ass’n v. Dove, 2023 UT App 107, ¶ 19, 537 P.3d 258 (“The
word ‘may’ is commonly understood as being one that grants
discretionary power to a court.” (quotation simplified)); Mota v.
Mota, 2016 UT App 201, ¶ 6, 382 P.3d 1080 (noting that “a statute’s
use of the word ‘may’ indicates a court’s discretionary power”
and signals that the “statute is permissive”); see also Utah Code
§ 68-3-12(g) (noting that for purposes of interpreting a provision
in the Utah Code, “‘[m]ay’ means that an action is authorized or
permissive”).

¶44 It is “well established that the form of the verb used in a
statute, i.e., something ‘may,’ ‘shall’ or ‘must’ be done, is the
single most important textual consideration determining whether

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Washington v. State

a statute is mandatory or directory.”7 In re M.C., 940 P.2d 1229,
1236 (Utah Ct. App. 1997) (quotation simplified). Here, on the
plain language of the controlling authorities, we think it’s clear
enough that when a postconviction petitioner requests counsel,
(1) the district court is required to consider the two factors set forth
in rule 65C(j) and (2) the court is also permitted to consider the
additional factors set forth in Utah Code section 78B-9-109(2).

¶45 Washington nevertheless pushes back on two fronts, but
we find neither of them persuasive.

¶46 First, Washington claims that even with the language cited
above, our decision in Twitchell v. Twitchell, 2022 UT App 49, 509
P.3d 806, stands for the proposition that a district court must
consider additional factors if a petitioner puts forth “significant
evidence” about them. But Washington’s argument is at odds
with the particular circumstances that trigger the Twitchell rule.

¶47 In Twitchell, we reviewed a child custody determination
that had been made at the close of a divorce trial. See id. ¶ 1. One
of the statutes that controlled that analysis stated, “In determining
any form of custody and parent-time under [this statute], the
court shall consider the best interest of the child and may consider
among other factors the court finds relevant, the following
[factors] for each parent,” after which it set out a list of additional
factors. Utah Code § 30-3-10(2) (2019) (emphases added). 8 On
appeal, the father claimed that the district court had abused its
discretion by “failing to adequately consider” some of the
additional factors that were listed after the statutory “may.”

1. While some of the authorities we’ve cited speak of the ordinary
   meaning of terms such as “shall” and “may” in the context of
   statutes, we see no reason to conclude that the interpretive rules
   applicable to these terms are different for rules. See State v. Grover,
   2022 UT App 48, ¶ 37, 509 P.3d 223.

2. This statute has since been amended and renumbered as Utah
   Code section 81-9-204.

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Washington v. State

Twitchell, 2022 UT App 49, ¶¶ 19, 22–23. Reviewing that claim, we
concluded that if “significant evidence concerning a particular
factor is presented to the district court, findings that omit all
discussion of that evidence must be deemed inadequate.” Id. ¶ 21.
We then faulted the district court in that case for not adequately
explaining its consideration of those factors. See id. ¶ 24.

¶48 Washington asks us to apply the same rule here. But
Washington fails to account for the fact that under the broader
statutory scheme that governed the Twitchell litigation, all of the
factors at issue—including those that followed the “may”—were
also preceded by a mandatory “shall.” We recently explained this
in Tilleman v. Tilleman, 2024 UT App 54, 549 P.3d 65, cert. denied,
558 P.3d 85 (Utah 2024). There, we pointed out that in addition to
the language from Utah Code section 30-3-10(2) that was cited in
Twitchell (and which we discussed above), Utah Code section 30-
3-10.2(2) (2019) separately stated that when a district court
“determin[es] whether the best interest of a child will be served
by ordering joint legal custody or joint physical custody or both,
the court shall consider the custody factors in Section 30-3-10” as
well as an additional set of factors.9 Id. ¶ 13 (quoting Utah Code
§ 30-3-10.2(2) (2019), emphasis added by Tilleman). Putting
sections 30-3-10(2) and 30-3-10.2(2) together, we held in Tilleman
that the “shall” that is used in section 30-3-10.2(2) makes it
mandatory for a court to consider “all the custody factors” set
forth in section 30-3-10(2) “in cases where joint custody is under
consideration.” Id. ¶ 37. Of note, the dispute in Twitchell was
indeed about a joint custody decision, see 2022 UT App 49, ¶¶ 3,
11, 12, which meant that all of the factors were, by statute,
mandatory.

¶49 As a result, we don’t read Twitchell as having created a
broadly applicable rule under which an otherwise permissive
“may” effectively becomes a mandatory “must” whenever a party
presents significant evidence about some statutory factor, even if

1. Utah Code section 30-3-10.2 has since been amended and renumbered as Utah Code section 81-9-205.

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Washington v. State

that factor is preceded by a “may.” Rather, in its full statutory
context, Twitchell is properly understood as having created a rule
about what kind of findings are required to support a court’s
assessment of certain factors that are themselves already
statutorily required in joint custody determinations. Because
there is no similar statutory provision that turns the “may” in
Utah Code section 78B-9-109(2) into a mandatory “shall,” the
Twitchell rule simply doesn’t apply here. Because of this, we
necessarily focus our analysis on the plain language of the statute
at issue here. And again, that language indicates that the relevant
factors are discretionary.

¶50 Second, Washington appeals to policy, arguing that he
needed counsel below because he’s “incarcerated, with limited
access to legal resources and assistance,” and was raising issues
that are “factually and legally complex.” But we have previously
rejected similar arguments when they were raised as challenges
to a district court’s balancing. In doing so, we’ve recognized that
postconviction petitioners are almost always incarcerated and
that ineffective assistance claims are almost always factually and
legally complex. See, e.g., Peterson v. State, 2024 UT App 159, ¶ 59,
559 P.3d 993; Carrell, 2023 UT App 93, ¶ 43. And yet even so, we’ve
pointed out that when the legislature enacted section 78B-9-
109(2), it chose to use the permissive word “may,” with all of the
discretionary meaning that this word normally entails. See Carrell,
2023 UT App 93, ¶ 43.

¶51 Because there is no constitutional right to counsel in a
postconviction case, the decision about whether, on a broad policy
level, it would be a good idea to require district courts to appoint
counsel for postconviction petitioners (and, if so, under what
circumstances) is one that is up to the legislature to make. It
involves systemic considerations that are far beyond our judicial
role and are not ours to make. In our view, the statute the
legislature has written does not require the appointment of
counsel, nor, as relevant here, does it require a court to consider
the discretionary factors set forth in section 78B-9-109(2). Because
of this, we see no abuse of discretion in the district court’s decision

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Washington v. State

not to account for those factors in its ruling denying Washington’s
request for the appointment of counsel.

III. Summary Judgment on Claim Three

¶52 Washington next challenges the district court’s decision to
grant summary judgment on his third claim. As noted,
Washington asserted that he received ineffective assistance from
Appellate Counsel because Appellate Counsel did not argue that
Trial Counsel provided ineffective assistance by failing to assert
that the information was inadequate because it did not cite the
statute governing attempted offenses or include the elements of
an attempted offense. We affirm the district court’s dismissal of
this claim. 10

¶53 “The standard for evaluating whether appellate counsel is
ineffective is the same Strickland standard used to determine
whether trial counsel is ineffective.” Jones v. State, 2020 UT App
125, ¶ 63, 473 P.3d 1190 (quotation simplified). To prevail on an
ineffective assistance of appellate counsel claim based on a failure
to raise a claim of ineffective assistance of trial counsel, “a
petitioner must show that appellate counsel’s failure to raise” the
claim “was objectively unreasonable and that there is a reasonable
probability that the result of the appeal would have been different

1. For readers unaccustomed to the intricacies of the PCRA, this multi-layered framing may seem a touch confusing. The reason for it, however, has to do with the procedural bar set forth in Utah Code section 78B-9-106(1)(c), which, as noted, precludes any claim that “could have been but was not raised in the trial court, at trial, or on appeal.” Because a claim of ineffective assistance by trial counsel could have been raised by appellate counsel on appeal, a petitioner who seeks to raise such a claim for the first time in a postconviction petition essentially has to use the appellate counsel claim as the “gateway” to asserting ineffective assistance by trial counsel. See Ross v. State, 2012 UT 93, ¶¶ 25, 52, 293 P.3d 345, abrogated on other grounds by McCloud v. State, 2021 UT 51, 496 P.3d 179.

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Washington v. State

if the claim had been raised.” Newton v. State, 2025 UT 50, ¶ 37, --
P.3d --. In this sense, “because there is no reasonable probability
of a different outcome in the direct appeal if the claim of
ineffective assistance of trial counsel would have failed, the
prejudice prong of ineffective assistance of appellate counsel
dovetails with the merits of the underlying ineffectiveness claim.”
Id. (quotation simplified). This is so because “the outcome of the
appeal necessarily depends on the outcome of the prejudice
analysis for the trial counsel’s deficiencies, for the outcome of the
direct appeal would only be different if trial counsel’s actions
resulted in prejudice.” Id. ¶ 38.

¶54 To show prejudice with respect to an ineffective assistance
of trial counsel claim, a defendant must show that the alleged
deficient performance “prejudiced the defense.” State v.
Schoenenberger, 2024 UT App 187, ¶ 53, 562 P.3d 1174 (quotation
simplified), cert. denied, 568 P.3d 261 (Utah 2025). “Prejudice is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,
thus undermining confidence in the outcome.” Martin v. State,
2024 UT App 89, ¶ 18, 552 P.3d 758 (quotation simplified), cert.
denied, 561 P.3d 692 (Utah 2024). “In this respect, it is not enough
for the defendant to show that the errors had some conceivable
effect on the outcome of the proceeding. The demonstration of
prejudice must be a demonstrable reality, not simply a speculative
matter.” State v. Bermejo, 2020 UT App 142, ¶ 23, 476 P.3d 148
(quotation simplified). And “when evaluating prejudice, an
appellate court should consider the totality of the evidence, taking
into account such factors as whether the errors affect the entire
evidentiary picture or have an isolated effect and how strongly
the verdict is supported by the record.” State v. Miller, 2023 UT
App 85, ¶ 27, 535 P.3d 390 (quotation simplified).

¶55 Using this analytical framework, we turn to the merits of
the claim that Washington now contends should have been raised
at trial (and, by extension, in the direct appeal). As indicated, the
claim has to do with alleged deficiencies in the information.
Washington points to authority saying that “a defendant is

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Washington v. State

entitled to have the charges against him defined with such
reasonable clarity that he can mount a defense.” State v. Dalton,
2014 UT App 68, ¶ 44, 331 P.3d 1110 (quotation simplified). He
also points to State v. Taylor, 2005 UT 40, ¶ 9, 116 P.3d 360, which
states that an information must contain a “statement of the
elements.” Drawing on this authority, Washington asserts that the
information was deficient because it didn’t include the “proper
citation to the relevant code” provision for an attempted offense
or “the attempt elements.”

¶56 We reject this claim for lack of prejudice. Having reviewed
the record from the underlying criminal case, we see no indication
that Washington’s defense at trial was impaired in any way by
these alleged defects. Indeed, the record makes it abundantly
clear both that (1) Washington knew that he had been charged
with an attempted rape and (2) he was fully prepared to defend
against the attempt aspect of the attempted rape charge. To
provide just a few examples from the record before us:

• The district court began the bench trial by asking
Washington if he “underst[oo]d” “the charges that [had]
been charged against [him],” specifically noting that those
charges included “one count of attempted rape, a first-
degree felony,” to which Washington replied, “Yes, sir.”

• The State concluded its opening statement by “ask[ing]
that the [c]ourt find Mr. Washington guilty of attempted
rape and sexual solicitation.”

• After the State rested its case, Trial Counsel made a motion
for a directed verdict in which he argued that “no evidence
was presented that amounts to attempted rape” because,
in his view, the State had not presented sufficient evidence
showing that the two elements of attempt—intent to
commit the underlying crime and a substantial step toward
commission of that crime—had been proven.

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Washington v. State

• During Trial Counsel’s closing argument, he devoted a
significant amount of time to countering the elements of
attempt, primarily highlighting Washington’s lack of
intent to commit the underlying rape and the absence of a
substantial step toward commission of that offense,
arguing that there was “doubt . . . whether [Washington]
attempted to rape [the victim].”

¶57 The district court later addressed the attempt nature of that
charge at some length in its verdict, noting again that Washington
was charged with “[a]ttempted rape[] and sexual solicitation” and
providing a detailed analysis on the elements of attempt before
ruling that “the State [had] met its burden of proof on the charge
of attempted rape.”

¶58 Washington simply has not persuaded us that, as a result
of the alleged deficiencies in the information, he was somehow
unaware of the nature of this charge or of the elements of an
attempted offense, nor has he persuaded us that his defense at
trial would have been any different if the information had
included either the statutory citation for an attempted offense or
its elements. And in a similar vein, the fact finder in that trial
(which, again, was the district court) was likewise aware of the
attempt charge, and the court discussed it at length in the verdict.
We therefore see no basis for concluding that Washington was
prejudiced by this alleged error. Because of this, we see no basis
for overturning the district court’s decision to grant summary
judgment on this claim.

¶59 Finally, we note that in his brief, Washington also points
out that the information incorrectly stated that the mandatory
minimum prison sentence for attempted rape was five years to
life, while the applicable sentence was actually three years to life.
But Washington did not assert this additional error in either his
postconviction motion or his memorandum, so this appears to be
a new claim that’s being asserted for the first time in this appeal.

20230553-CA 25 2026 UT App 27
Washington v. State

¶60 Regardless, and assuming for argument only that this
claim is properly before us, we reject it for lack of prejudice. In his
brief, Washington asserts that if he had been informed of the
correct sentencing range in the information, this may have
“influence[d]” his “decisions and understanding” of the case. But
this assertion is cursory. On the basis of the briefing and our own
review of the record, we’re not persuaded that this particular
error influenced Washington’s preparation for trial or sentencing,
much less the outcome of either proceeding, in any meaningful
way. To the extent that this alleged error is properly before us, we
reject Washington’s claims on it too.11

IV. Alleged Fourth Claim

¶61 Finally, Washington argues that the district court erred by
failing to consider what he now asserts was a fourth claim—
namely, that he received ineffective assistance because Appellate
Counsel did not properly support the argument that Trial
Counsel provided ineffective assistance by stipulating to
Washington’s competency. We see no reversible error, and this is

1. As indicated above, the appellate counsel claim acts as a gateway to the trial counsel claim and requires us to look, for prejudice purposes, to the merits of the trial counsel claim. We recognize here that in part I above, we reversed the district court’s decision summarily dismissing that very claim. As a result, we acknowledge that our analysis in this part III may well have some bearing on any future analysis of the merits of the first two claims. But in its briefing and arguments, the State has not asserted that if we rule in this manner on the appellate counsel claim, this would allow us to somehow not reverse the summary dismissal of the first two claims. Instead, the State has affirmatively conceded that we should reverse that summary dismissal. And, as noted, that dismissal was not predicated on the court’s conclusion about the merits of those claims but was instead predicated on its conclusion about whether Washington previously could have raised them at all.

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Washington v. State

so because we don’t believe that Washington properly pleaded
this as a fourth claim in his petition.

¶62 Rule 65C(d) of the Utah Rules of Civil Procedure is
introduced by a subheading referring to the “Contents of the
Petition,” and its text states that the postconviction “petition shall
set forth all claims that the petitioner has in relation to the legality
of the conviction or sentence.” We have thus held that a
“petitioner must set out all of his claims relating to the legality of
his conviction or sentence in his petition for post-conviction relief
and may not bring additional claims in later proceedings.” Gordon
v. State, 2016 UT App 190, ¶ 36, 382 P.3d 1063 (quotation
simplified). Rule 65C(f) then separately addresses the
“Memorandum of Authorities,” and its text allows the petitioner
to file “a separate memorandum” in which he or she may “set
forth argument or citations or discuss authorities.” Utah R. Civ. P.
65C(f).

¶63 Here, Washington wrote his petition on a preprinted form.
In the relevant place, that form contained an instruction directing
Washington to “[s]tate concisely every ground on which” he
“claim[ed]” that he was “entitled to post-conviction relief.”
(Emphasis added.) We don’t regard this instruction as being
complicated or tied to arcane legal jargon. Its directive seems clear
enough, and Washington seems to have understood it. In the
space immediately beneath that instruction, Washington listed
and separately enumerated three grounds for relief:

Ground One: Defective Information

Supporting Fact: The information filed in the instant
case omitted an essential element of the offense
charged. See Memorandum in Support of 65C

Ground Two: Ineffective Assistance of Trial Counsel

20230553-CA 27 2026 UT App 27
Washington v. State

Supporting Fact: Trial Counsel failed to object to the
omission of an essential element of the offense
charged. See Memorandum in Support of 65C

Ground Three: Ineffective Assistance of Appellate
Counsel

Supporting Fact: Appellate Counsel failed to raise
the Defective Information and Trial Counsel’s I.A.C.
on this issue. See Memorandum in Support of 65C

Given the nature of this dispute on appeal, we think three things
are particularly significant from the above. First, there were three
listed claims, not four. Second, each of these claims referred to the
alleged defects in the information at trial. And third, none of these
claims mentioned any problems relating to the competency
stipulation.

¶64 Washington employed a similar structure in the
memorandum that he filed contemporaneously with his petition.
In the Argument section of that memorandum, Washington listed
three arguments, each of which was clearly delineated by a
Roman numeral heading. Those headings tracked the structure
and substance of the three claims that he had listed in his petition.
Under each of these headings, Washington included detailed legal
arguments that were supported by applicable authorities, and
these arguments corresponded to the three claims he had
identified—which, again, all turned on alleged defects in the
information. Nowhere in these three sections did Washington
address a purported fourth claim relating to Trial Counsel’s
stipulation to his competency.

¶65 In this appeal, however, Washington nevertheless asserts
that he did raise this as a fourth claim through the paragraph that
he included in the Summary of Arguments section of his
memorandum. As noted, however, rule 65C(d) plainly requires a
petitioner to “set forth all claims that the petitioner has in relation
to the legality of the conviction or sentence” in the petition, and

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Washington v. State

the form that Washington used likewise instructed him to “[s]tate
concisely every ground on which” he “claim[ed]” that he was
“entitled to post-conviction relief.” (Emphases added.)
Washington simply did not include, in the petition, any assertion
that his prior attorneys had provided ineffective assistance
relating to the competency issue.

¶66 Washington nevertheless argues that he essentially raised
this by incorporation. He points out that the preprinted form
stated that, “[i]f necessary,” the petitioner could “attach
additional pages stating additional grounds and facts supporting
same.” Washington then argues that the assertions he made in his
memorandum fell under the auspices of this provision. We
disagree.

¶67 As discussed, rule 65C differentiates between the petition
(which is addressed in rule 65C(d)) and the memorandum (which
is addressed in rule 65C(f)). This preprinted form doesn’t purport
to combine the two. Instead, on its face, it allows a petitioner to
attach additional pages to the petition.

¶68 And even there, it allows the petitioner to attach additional
pages “if necessary.” This qualifier suggests that the additional
pages can be attached if there is some need to do so, and the most
natural implication is that this would occur if the petitioner runs
out of space. Otherwise, the phrase “if necessary” would have no
meaning. Here, however, there was no such problem. The form
provided two pages of lined space on which Washington could
state his grounds for relief. The three grounds that Washington
listed took up about half of a single page, and Washington then
left about a page and a half of blank space. In light of this, it does
not seem that Washington was even plausibly invoking this
provision when he then filed a separate memorandum, and
Washington never said that he thought he was doing so in either
his petition or the memorandum itself.

¶69 Moreover, like the petition, the memorandum does not
purport to list a potential competency issue as a fourth ground.

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Washington v. State

Again, the headings tracked the same three-issue structure that
Washington put forward in his petition, and none of them
addressed either a purported fourth claim or any claim about
competency. Consistent with the structure, the arguments that
Washington advanced in his Argument section focused on the
three claims he had identified in his petition. Again, none of these
arguments concerned competency.

¶70 The passage that Washington now points to on appeal
came in the Summary of Arguments section. But this was just a
single paragraph, it contained no citation to any legal authority,
and, again, it was not repeated anywhere else in either the petition
or the Argument section of the memorandum. We recognize that
“in general, a pro se document is to be liberally construed” and
that such a filing is “held to less stringent standards than formal
pleadings drafted by lawyers.” McNair v. State, 2014 UT App 127,
¶ 12, 328 P.3d 874 (quotation simplified). We also recognize that
pro se litigants are “entitled to every consideration that may
reasonably be indulged.” Allen v. Friel, 2008 UT 56, ¶ 11, 194 P.3d
903 (quotation simplified). But even so, “‘reasonable’ indulgence
is not unlimited indulgence.” Id. And courts must “consider[]”
pro se documents “as a whole.” McNair, 2014 UT App 127, ¶ 14
(quotation simplified).

¶71 Here, we think the operative rule is clear enough. Again,
rule 65C(d) requires “all claims that the petitioner has” related to
“the legality of the conviction or sentence” to be “set forth” in the
“petition,” as opposed to the supporting memorandum, and the
preprinted form is likewise clear about this requirement.
Washington simply did not allege in his petition that he was
raising a separate ground relating to Trial Counsel’s handling of
the competency issue. And even if we were to conclude, by way
of reasonable indulgence, that Washington could somehow raise
a separate and additional ground in his accompanying
memorandum, we believe that he needed to do something in that
memorandum to make it clear to the district court that he was
intending to raise it as an independent issue. On balance, given
(1) the clear and detailed structure he set forth in both the petition

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Washington v. State

and the memorandum, (2) the detailed arguments Washington
made in his Argument section that also tracked the structure of
his identified issues, and (3) the silence about any competency
issue within either the structural signposts or the Argument
section of his memorandum, we don’t believe that Washington
did enough to raise this as a separate ground when he included a
few sentences about it in his Summary of Arguments section.
Because of this, we see no error in the district court’s failure to rule
on it.

CONCLUSION

¶72 We reverse the district court’s dismissal of Washington’s
first two claims and remand for further proceedings on them. For
the reasons set forth above, however, we see no error or abuse of
discretion with respect to the other issues raised on appeal, so we
affirm the rulings at issue.

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