Gutierrez v. State

2016 UT App 101

THE UTAH COURT OF APPEALS

PEDRO GUTIERREZ,
Appellant,
v.
STATE OF UTAH,
Appellee.

Per Curiam Decision
No. 20160064-CA
Filed May 12, 2016

Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 150903672

Pedro Gutierrez, Appellant Pro Se
Sean D. Reyes and Mark C. Field, Attorneys
for Appellee

Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and
STEPHEN L. ROTH.

PER CURIAM:

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

¶2 Gutierrez pleaded guilty to one count of attempted rape
of a child and one count of aggravated sexual abuse of a child,
both first degree felonies. Before sentencing, Gutierrez sent the
court a letter asking to withdraw his pleas and claiming he had
not seen the discovery in the case and that he pleaded guilty
because his original attorney told him that his family members
would be arrested if he did not. The trial court appointed new
counsel to represent Gutierrez on his plea withdrawal request.
After researching the issues, new counsel stated at sentencing
that there was no basis for pursuing a motion to withdraw the
Gutierrez v. State

guilty pleas. Gutierrez agreed to withdraw the motion, and the
trial court sentenced him. Gutierrez filed an untimely pro se
notice of appeal. This court dismissed the appeal. See Order of
Summary Dismissal, Case No. 20140318-CA (July 18, 2014).

¶3 In the petition for post-conviction relief Gutierrez filed in
the district court, he claimed that (1) his guilty pleas were not
knowing and voluntary because he did not understand the
charges and was coerced to plead by a threat of deportation;
(2) the State failed to disclose evidence; and (3) he received
ineffective assistance of counsel when trial counsel failed to
provide him with documents or the presentence investigation
report. The State moved for summary judgment based upon the
preclusion provision of the Post-Conviction Remedies Act
(PCRA). See Utah Code Ann. § 78B-9-106(1)(c) (LexisNexis 2012)
(stating a petitioner “is not eligible for relief . . . upon any
ground that . . . could have been but was not raised at trial or on
appeal”). The district court concluded that all of Gutierrez’s
claims could have been raised in his motion to withdraw his
guilty pleas, which he voluntarily withdrew, or in a direct
appeal from his sentence, which he failed to timely pursue.
Accordingly, the district court ruled that each of the claims was
procedurally barred.

¶4 The district court also refused to apply a narrow
exception to the PCRA’s preclusion provision under which a
petitioner “may be eligible for relief on a basis that the ground
could have been but was not raised at trial or on appeal, if the
failure to raise that ground was due to ineffective assistance of
counsel.” Id. § 78B-9-106(3). The district court reasoned that
under this exception, a petitioner must assert that his attorney
was the cause of his failure to raise his claims at trial or on
appeal. See Lafferty v. State, 2007 UT 73, ¶ 44, 175 P.3d 530 (“*A+
claim that could have been brought on direct appeal may not be
reviewed unless the defendant’s failure to bring the claim was
the result of ineffective assistance of counsel.”). Because

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Gutierrez v. State

Gutierrez did not allege that failure to raise the claims in the trial
court or on appeal was due to ineffective representation, the
exception did not apply.

¶5 “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.” Kell
v. State, 2008 UT 62, ¶ 8, 194 P.3d 913 (citation and internal
quotation marks omitted). Each of the claims that Gutierrez
raised in his post-conviction petition could have been raised in
the trial court or on direct appeal. Furthermore, he did not assert
that his attorney caused the failure to raise the claims in the trial
court or on direct appeal in order to qualify for the limited
exception to preclusion. On appeal, Gutierrez essentially repeats
the claims made in his post-conviction petition without making
any attempt to address the actual basis for dismissal under the
PCRA’s preclusion provisions. The district court did not rule on
the merits of the post-conviction petition; therefore, no ruling on
the merits is before us on appeal. The only issues before us
concern whether the district court correctly dismissed the
petition under the PCRA’s preclusion provisions. Because all of
the claims made in the petition were based upon facts that were
known at the time he filed, and then withdrew, his motion to
withdraw his guilty pleas, or were known and could have been
raised in a timely direct appeal, the district court correctly ruled
that the claims were procedurally barred and dismissed the
petition.

¶6 Affirmed.

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