Glasscock v. State

2017 UT App 39

THE UTAH COURT OF APPEALS

DAVID GLASSCOCK,
Appellant,
v.
STATE OF UTAH,
Appellee.

Per Curiam Decision
No. 20150242-CA
Filed March 2, 2017

Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 130901361

David Glasscock, Appellant Pro Se
Sean D. Reyes and Erin Riley, Attorneys for Appellee

Before JUDGES STEPHEN L. ROTH, KATE A. TOOMEY, and DAVID N.
MORTENSEN.

PER CURIAM:

¶1 David Glasscock appeals the dismissal of his petition for
post-conviction relief. We affirm.

¶2 The district court dismissed Glasscock’s petition for post-
conviction relief after determining that it was time-barred under
Utah Code section 78B-9-107(1). “We review an appeal from an
order dismissing or denying a petition for post-conviction relief
for correctness without deference to the lower court’s
conclusions of law.” Gardner v. State, 2010 UT 46, ¶ 55, 234 P.3d
1115 (citation and internal quotation marks omitted).

¶3 Utah Code section 78B-9-107(1) states that “[a] petitioner
is entitled to relief only if the petition is filed within one year
after the cause of action has accrued.” Utah Code Ann. § 78B-9-
State v. Glasscock

107(1) (LexisNexis 2012). The statute goes on to set forth the
dates upon which the cause of action accrues:

(a) the last day for filing an appeal from the
entry of the final judgment of conviction, if no
appeal is taken;
(b) the entry of the decision of the appellate
court which has jurisdiction over the case, if an
appeal is taken;
(c) the last day for filing a petition for writ of
certiorari in the Utah Supreme Court or the United
States Supreme Court, if no petition for writ of
certiorari is filed;
(d) the entry of the denial of the petition for
writ of certiorari or the entry of the decision on the
petition for certiorari review, if a petition for writ
of certiorari is filed;
(e) the date on which petitioner knew or should
have known, in the exercise of reasonable
diligence, of evidentiary facts on which the petition
is based; or
(f) the date on which the new rule described in
Subsection 78B-9-104(1)(f) is established.

Id. § 78B-9-107(2). Here, Glasscock pled guilty to attempted
aggravated abuse of a child and was sentenced on November 6,
2003. Glasscock never filed a notice of appeal.

¶4 Glasscock filed his petition for post-conviction relief on
February 25, 2013. The district court summarily dismissed two
grounds raised in the petition, but ordered the State to respond
to the remaining grounds. The State, in turn, filed a motion to
dismiss arguing that the petition was time-barred under section
78B-9-107. The petition was not filed within one year of the last
day for filing a notice of appeal. Accordingly, Glasscock’s claims
are time-barred unless subsections (e) or (f) apply. Glasscock
asserted that he was unaware of the requirement to register as a

20150242-CA 2 2017 UT App 39
State v. Glasscock

sex offender, which is the basis of his claims, until April 19, 2010.
Thus, even assuming for the sake of argument that this is the day
that Glasscock knew or should have known about the
registration requirement, he was required to file his petition
within one year of that date. See id. § 78B-9-107(2)(e). However,
he did not file his petition until February 25, 2013, almost three
years after becoming aware of the facts upon which his petition
is based, thereby making the petition untimely.

¶5 Glasscock argues that the time for filing the petition for
post-conviction relief should have been tolled because certain
conditions prevented him from timely filing the petition.
However, those conditions did not occur until well after a year
had passed following his alleged discovery of his requirement to
register as a sex offender. The district court correctly concluded
that these alleged disabilities could not have prevented
Glasscock from timely filing a petition for post-conviction relief
because they did not occur until well after a year following the
discovery of his potential claim on April 19, 2010.

¶6 Finally, Glasscock argues on appeal that the “interests of
justice” exception to the post-conviction remedies time bar
applies to this matter because it was in effect when he was
sentenced. See Utah Code Ann. § 78-35a-107(3) (West 2003).
However, Glasscock did not preserve this argument in the
district court. See Brookside Mobile Home Park, Ltd. v. Peebles, 2002
UT 48, ¶ 14, 48 P.3d 968 (“[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.”).
Issues that are not raised at trial are usually deemed waived. See
id. Accordingly, because the issue was not properly preserved in
the district court, and because Glasscock has not alleged that we
should review the issue under plain error or under the
exceptional circumstances doctrine, we do not address it.

¶7 Affirmed.

20150242-CA 3 2017 UT App 39