Wamsley v. State

IN THE UTAH COURT OF APPEALS

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Korte H. Wamsley Jr., ) PER CURIAM DECISION
)
Petitioner and Appellant, ) Case No. 20100617‐CA
)
v. ) FILED
) (February 24, 2012)
State of Utah, )
) 2012 UT App 57
Respondent and Appellee. )

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Third District, West Jordan Department, 090416684
The Honorable Robert W. Adkins

Attorneys: Randall W. Richards, Ogden, for Appellant
Mark L. Shurtleff and Ryan D. Tenney, Salt Lake City, for Appellee

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Before Judges Orme, Thorne, and Christiansen.

¶1 Korte H. Wamsley Jr. appeals the dismissal of his petition for postconviction
relief as untimely. We affirm.

¶2 A petitioner seeking postconviction relief “has the burden of pleading and
proving by a preponderance of evidence the facts necessary to entitle the petitioner to
relief.” Utah Code Ann. § 78B‐9‐105(1) (2008). Additionally, once a ground for
preclusion of relief has been raised, “the petitioner has the burden to disprove its
existence by a preponderance of the evidence.” Id. § 78B‐9‐105(2). Relief may be
precluded on various procedural grounds, see id. § 78B‐9‐106,1 or if the petition is not
timely filed. See id. § 78B‐9‐107. A court may raise a procedural or time bar on its own
and must provide the parties an opportunity to respond to the issue. See id. § 78B‐9‐106.

¶3 Here, the trial court raised the issue of whether Wamsley’s petition was time
barred under Utah Code section 78B‐9‐107 sua sponte. After briefing and a hearing, the
trial court found that the petition was untimely and that relief was therefore precluded.
Wamsley acknowledges that his petition, filed in June 2009, is untimely as calculated
from the date of his sentencing in October 2007. See id. § 78B‐9‐107(2)(a) (providing that
a petition must be filed within one year after the last day for filing an appeal, if no
appeal is taken).

¶4 Wamsley argues, however, that his petition was timely under three other
provisions of the Postconviction Remedies Act. See Utah Code Ann. §§ 78B‐9‐101 to
‐405. He asserts that under section 78B‐9‐107(2)(e), his petition was timely filed from
the date he discovered new evidence. See id. § 78B‐9‐107(2)(e) (providing that a petition
may be filed within one year from “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”). Further, he asserts that under section 78B‐9‐107(3), the time to file his
petition was tolled by the State’s failure to disclose the alleged newly discovered
evidence. See id. § 78B‐9‐107(3) (tolling the time period where a petitioner is prevented
from filing by state action in violation of the constitution). And he asserts that under
section 78B‐9‐402, the alleged new evidence brings him within the factual innocence
provisions, thereby making the petition timely. See id. § 78B‐9‐402 (2008) (setting out
the requirements for a petition for a determination of factual innocence).2

¶5 Under the circumstances of this case, each of these provisions is predicated on a
single fundamental requirement–that Wamsley establishes the existence of newly
discovered evidence. Because Wamsley has failed to do so with any specificity, none of
these provisions apply to make his petition timely.

¶6 Wamsley vaguely alleges that he discovered after his conviction that his former
wife had forged witness statements and that one of his daughters had made unfounded

1. This section was amended in 2010, but the relevant provisions remain substantively
the same as the 2008 statute applicable to Wamsley’s petition.

2. This section was amended in 2010. The 2008 version applies to Wamsley’s petition
filed in 2009.

20100617‐CA 2
allegations of abuse against other people. These allegations are too vague and
incomplete to show that there is actually newly discovered evidence. He fails to show
that his alleged evidence is, in fact, credible rather than merely his suspicion. He does
not show when the evidence was discovered or why he could not have discovered it
during his criminal case. In fact, the record shows that he knew or should have known
of the alleged newly discovered information well before he pleaded guilty to reduced
charges. Accordingly, Wamsley has not met his burden of establishing relevant facts by
a preponderance of the evidence to show that there is new evidence for the purposes of
his petition.

¶7 Because Wamsley has not established the existence of newly discovered evidence
that would extend the time for filing his petition, the controlling date for the purposes
of the statute of limitations for filing a petition is November 2007, when any appeal
would have been due from the date of sentencing. He concedes that his petition is not
timely filed from that date. Accordingly, the trial court did not err in finding that
Wamsley’s petition was time barred.

¶8 Affirmed.3

____________________________________
Gregory K. Orme, Judge

____________________________________
William A. Thorne Jr., Judge

____________________________________
Michele M. Christiansen, Judge

3. Because we resolve this case on the failure to establish the existence of any newly
discovered evidence, making Wamsley’s petition untimely under any section he
invokes, we do not address whether Wamsley’s petition was sufficient as a factual
innocence petition under section 78B‐9‐402. However, we note that if there was any
prior confusion about whether a postconviction petition and a factual innocence
petition could be combined, the statute has been amended to clarify that they are two
separate and distinct proceedings. See Utah Code Ann. § 78B‐9‐104(3) (Supp. 2011).

20100617‐CA 3