McCamey v. State

2017 UT App 97

THE UTAH COURT OF APPEALS

GARY JOE MCCAMEY,
Appellant,
v.
STATE OF UTAH,
Appellee.

Per Curiam Opinion
No. 20160785-CA
Filed June 15, 2017

Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 150908028

Gary Joe McCamey, Appellant Pro Se
Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee

Before JUDGES J. FREDERIC VOROS JR., STEPHEN L. ROTH, and
DAVID N. MORTENSEN.

PER CURIAM:

¶1 Gary Joe McCamey appeals the grant of summary
judgment on his petition seeking post-conviction relief. We
affirm.

¶2 In 2003, McCamey was on parole for his 1991 convictions
for sexual offenses involving children. As a condition of his
parole, he was not allowed to have contact with anyone under
the age of eighteen. McCamey’s probation officer suspected that
McCamey was living with his wife, his thirteen-year-old
stepdaughter J.W., and his five-year-old son. The probation
officer contacted the Murray City police officer who was a
resource officer at J.W.’s school. That officer’s 2003 police report
stated that the probation officer was trying to gather evidence to
McCamey v. State

show that McCamey was living in the home with the children.1
The report also stated that the probation officer was “concerned”
that McCamey may have “victimized” J.W. The probation officer
determined from a source at J.W.’s school that McCamey would
sometimes pick her up from school early. The probation officer
shared this information with Murray City police. A Murray City
detective wrote a report about a “possible sex offense”
investigation. The detective’s report noted that the probation
officer reported that McCamey “had been around [J.W.] alone,”
and the probation officer was “concerned that McCamey may
have perpetrated a sexual offense towards her.” When
interviewed, J.W. denied that McCamey had ever touched her,
tried to touch her, or made sexual advances towards her. Due to
lack of information and “no allegations or disclosures” from
J.W., Murray City closed the 2003 investigation without filing
charges.

¶3 In 2012, J.W. reported that nine years earlier McCamey
had touched her unlawfully more than once. In 2013, the State
charged McCamey with two counts of aggravated sexual abuse
of a child, a first degree felony, and one count of lewdness
involving a child, a third degree felony.

¶4 In an October 2014 letter, McCamey “complained to the
trial court that his defense attorney was not doing what he was
asking her to do” and stated his belief that the statute of
limitations should have barred the 2013 prosecution. However,
on January 20, 2015, McCamey entered into a plea agreement
through which he pleaded guilty to two amended counts of
attempted sexual abuse of a child, a third degree felony, and
obtained a dismissal of the lewdness charge. In connection with
his guilty pleas, McCamey admitted the factual basis for the
charges, acknowledged and waived each of his statutory and

1. The 2003 police reports referred to herein were attached to the
petition for post-conviction relief.

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constitutional rights (except the right to counsel), and affirmed
that if he wanted to withdraw his guilty pleas, he must file a
motion to withdraw before sentencing. McCamey did not move
to withdraw his pleas or file a direct appeal.

¶5 On November 15, 2015, McCamey filed a petition under
the Post-Conviction Remedies Act (PCRA). In relevant part, the
petition asserted that the 2013 charges were barred by the statute
of limitations and that his trial counsel was ineffective for not
pursuing a statute of limitations defense. The district court
granted summary judgment on the claims. First, it ruled that
McCamey’s statute of limitations claim was procedurally barred
under Utah Code section 78B-9-106(1)(c) because he could have
raised the claim at trial or on appeal. The district court noted that
“McCamey brought his concern regarding the statute of
limitations defense to the Court’s attention” in his October 2014
letter, but the court did not address the question because
McCamey entered guilty pleas to reduced charges in January
2015.

¶6 The district court next noted that under section
78B-9-106(3) of the PCRA, a person may still be eligible for relief
on a ground otherwise precluded “if the failure to raise that
ground was due to ineffective assistance of counsel.” See Utah
Code Ann. § 78B-9-106(3) (LexisNexis 2012). Because McCamey
asserted an ineffective assistance of counsel claim, the district
court reviewed the merits of the statute of limitations claim to
the extent necessary to address the exception under section 78B-
9-106(3). The district court ruled that McCamey had not shown
ineffective assistance of his trial counsel based upon the failure
to raise a statute of limitations defense to the 2013 charges. The
district court concluded that the statute of limitations had not
expired because the 2003 communications did not amount to a
“report of the offense” that triggered the running of the four-
year statute of limitations that was in effect in 2003.

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¶7 “[W]e review a grant of summary judgment for
correctness, granting no deference to the [lower] court.” Ross v.
State, 2012 UT 93, ¶ 18, 293 P.3d 345 (second alternation in
original) (citation and internal quotation marks omitted). In
reviewing a grant of summary judgment, we will affirm the
district court’s decision “when the record shows that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Id. (citation and
internal quotation marks omitted).

¶8 On appeal, McCamey claims that the district court erred
in determining that the 2013 charges were not barred by the
statute of limitations. McCamey does not specifically address the
district court’s determination that the claim was precluded by
section 78B-9-106(1)(c) of the PCRA. See Utah Code Ann. § 78B-9-
106(1)(c) (LexisNexis 2012). The district court stated, that in an
October 2014 letter that was attached to the petition, “McCamey
brought his concern regarding the statute of limitations defense
to the Court’s attention in the underlying criminal case.”
However, the district court further noted that “no motion or
request for relief was ever filed on this issue.” Thereafter,
McCamey pleaded guilty to reduced charges and was sentenced.
The district court ruled that McCamey was not eligible for relief
under the PCRA on this claim because he failed to pursue it in
the district court or on appeal.

¶9 The district court did not err in determining that the
statute of limitations claim was barred under section 78B-9-
106(1)(c) of the PCRA unless the exception in section 78B-9-
106(3) applied. In addition, by pleading guilty to the amended
charges, McCamey waived any pre-plea issues, including
statutory and constitutional claims. See State v. Rhinehart, 2007
UT 61, ¶ 15, 167 P.3d 1046 (holding that by pleading guilty, a
defendant is deemed to have admitted the essential elements of
the crime charged and thereby waives all nonjurisdictional
defects, including alleged pre-plea constitutional violations);
James v. Galetka, 965 P.2d 567, 573 (Utah Ct. App. 1998) (holding

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that “criminal statutes of limitations are not jurisdictional, but
are a bar to prosecution which can be waived by a knowing and
voluntary guilty plea”).

¶10 The district court next addressed McCamey’s claim that
his trial counsel was ineffective for failing to raise the statute of
limitations defense. Resolving this claim required the district
court to examine the merits of a possible statute of limitations
defense. After doing so, the district court concluded that the
defense could not have succeeded and thus that “counsel for the
Defendant could not have been ineffective for declining to
pursue this statute of limitations defense.”2

¶11 “Under the PCRA, a criminal defendant may obtain post-
conviction relief if he establishes that he received ineffective
assistance of counsel.” Lucero v. State, 2016 UT App 50, ¶ 7, 369
P.3d 469 (citing Utah Code Ann. § 78B-9-104(1)(d) (LexisNexis
2012)).

To prevail, [a criminal defendant] must establish
both prongs of an ineffective assistance of counsel
claim articulated in Strickland v. Washington, 466
U.S. 668 (1984). First, he must show that “counsel’s
performance was deficient.” Id. at 687. Counsel’s
performance, however, is not deficient “if counsel
refrains from making futile objections, motions, or
requests” Layton City v. Carr, 2014 UT App 227,
¶ 19, 336 P.3d 587 (citation and internal quotation
marks omitted). Second, [the criminal defendant]

2. McCamey, acting pro se, did not expressly argue the
ineffectiveness of counsel claim in his opening brief filed in this
court. However, in context we understand his claim to challenge
the rationale for the district court’s decision on the
ineffectiveness of counsel claim. Accordingly, this court also
addresses the claim.

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must show that his counsel’s “deficient
performance prejudiced the defense.” Strickland,
466 U.S. at 687. A failure to make the required
showing of either prong under Strickland “defeats
the ineffectiveness claim” Id. at 700.

Lucero, 2016 UT App 50, ¶ 7 (brackets in original) (citations and
internal quotation marks omitted).

¶12 McCamey contends that his counsel performed
deficiently by failing to assert a statute of limitations defense to
the 2013 charges for aggravated sexual abuse of a child. In 2001
and 2002, when McCamey committed the offenses, the
applicable statute of limitations allowed a prosecution to
commence “within four years after the report of the offense to a
law enforcement agency.” Utah Code Ann. § 76-1-303.5 (Lexis
1999). In 2008, the Utah Legislature repealed section 303.5 and
indefinitely extended the limitations period for specific crimes
including aggravated sexual abuse of a child. See Lucero, 2016 UT
App 50, ¶ 8. The revised statute of limitations contained in Utah
Code section 76-1-301 allows the State to commence a
prosecution for aggravated sexual abuse of a child “at any time.”
Utah Code Ann. § 76-1-301(2)(o) (LexisNexis Supp. 2016).

¶13 Under Utah law, “a statutory amendment enlarging a
statute of limitations will extend the limitations period
applicable to a crime already committed only if the amendment
becomes effective before the previously applicable statute of
limitations has run, thereby barring prosecution of the crime.”
State v. Lusk, 2001 UT 102, ¶ 26, 37 P.3d 1103; see also State v.
Toombs, 2016 UT App 188, ¶ 16, 380 P.3d 390. “[A] legislative
amendment enlarging a limitation period may be applied
retroactively to crimes committed before the amendment where
the limitations defense has not accrued to the defendant before
the amendment becomes effective.” Lusk, 2001 UT 102, ¶ 28.

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¶14 Here, McCamey claims that the 2003 communications
from his probation officer to Murray City police constituted a
“report of the offense to a law enforcement agency” to
commence the running of the four-year statute of limitations in
effect in 2001 and 2002.3 Accordingly, if the probation officer’s
communications are a “report of the offense,” triggering the
four-year statute of limitations in effect at the time McCamey
committed the offenses, then the limitations period expired in
2007—before the 2008 amendment extended the limitations
period indefinitely—and barred the prosecution of these charges
in 2013. See Toombs, 2016 UT App 188, ¶ 16. Conversely, if the
probation officer’s communications did not constitute a “report
of the offense,” they did not trigger the statute of limitations, and
the four-year statute of limitations had not yet run when the
amendment to the statute of limitations became effective in 2008.

¶15 In State v. Green, 2005 UT 9, 108 P.3d 710, the Utah
Supreme Court defined “report of the offense,” as that term is
used in Utah Code section 76-1-303(c). The supreme court
adopted a three-part test, stating,

This test . . . requires (1) a discrete and identifiable
oral or written communication (2) that is intended
to notify a law enforcement agency that a crime has
been committed and (3) that actually
communicates information bearing on the elements
of a crime as would place the law enforcement
agency on actual notice that a crime has been
committed.

3. In a variation on this claim, McCamey appears to assert that,
because J.W. denied any abuse in a 2003 interview by police, he
has a vested right to rely upon that “exoneration.” The closure of
the investigation based upon lack of evidence does not constitute
an exoneration.

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Id. ¶ 46. A report must be more than “mere clues that criminal
conduct has occurred” and requires ‘‘a heightened level of
specificity.” See id. ¶¶ 43–44. A report requires “a degree of
articulation of criminal conduct sufficient to permit a law
enforcement agency to conclude what was done and who did it
without additional investigation or analysis.” See id. ¶ 43.

¶16 The district court found that the 2003 communications
between the probation officer and Murray City police officers
were “discrete and identifiable, but otherwise do not constitute a
‘report of the offense’ sufficient to start the limitations period.”
Instead, the district court found that the intent of the
communications was to spur investigation into a suspected
offense based upon McCamey’s background and apparent living
arrangement with a person under the age of eighteen. The court
noted that none of the communications in 2003 actually
provided information bearing on the elements of sexual abuse of
a child. And the investigation of the possible offense was
unsuccessful, largely because the possible victim denied that any
inappropriate behavior had occurred. The district court ruled
that the 2003 communications did not provide actual notice that
a crime had been committed and therefore did not start the
running of the statute of limitations. Accordingly, the district
court concluded that counsel was not ineffective for declining to
pursue a statute of limitations defense.4

4. The district court also correctly noted that, even if
communications in 2007 between J.W.’s mother and Murray City
police claiming that McCamey had abused J.W. constituted a
report of the offense and triggered the running of the statute of
limitations, the statute of limitations had not run at the time that
the 2008 amendments became effective and extended the statute
of limitations period for these offenses. See State v. Lusk, 2001 UT
102, ¶ 26, 37 P.3d 1103.

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¶17 The inquiry in this case focuses on whether the probation
officer’s statements to Murray City police met the third-prong of
the Green test, i.e., whether the statements communicated
information that would place the law enforcement agency on
actual notice that a crime had been committed. The probation
officer’s communication was intended to solicit information
about whether or not McCamey was living in the same home
with two children under eighteen. If so, this would constitute a
probation violation, but it would not otherwise have been
criminal conduct. The probation officer also stated a “suspicion”
or “concern” that McCamey might have abused J.W. based upon
the living arrangement and access to J.W. These communications
required further investigation to determine what, if any, criminal
activity might have occurred. During the investigation, J.W.
denied any improper contact and the investigation was closed.

¶18 Similarly, in State v. Toombs, 2016 UT App 188, 380 P.3d
390, this court observed, “Although Neighbor’s communications
may have been intended to inform [the detective] of criminal
conduct, her statements only articulated her suspicions and
merely offered clues that a crime may have occurred.” Id. ¶ 21.
Neighbor did not allege conduct between the defendant and the
suspected victim “with any level of specificity.” Id. ¶ 22. Thus,
this court concluded that “without a higher level of specificity,
“Neighbor’s statements do not articulate criminal conduct
sufficient to permit a law enforcement agency to conclude what
was done and who did it without additional investigation or
analysis.” Id. ¶ 23 (citation and internal quotation marks
omitted). This court concluded that because the communications
were not a “report of the offense” to law enforcement, the four-
year statute of limitations was not triggered and the statute of
limitations had not expired before the defendant was charged.
Id. ¶ 24. Under the similar circumstances in this case, the district
court did not err in concluding that the 2003 communications
were not a “report of the offense” that triggered the four-year

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statute of limitations; rather, they described merely suspicious
circumstances, not actual crimes.

¶19 McCamey’s additional arguments on appeal conflate the
concept of “report of the offense,” as used in former section 76-1-
303.5, with the police report in this case that was prepared to
report the results of the investigation. The fact that a police
report was prepared does not equate with a “report of the
offense” under former Utah Code section 76-1-303.5. In addition,
the fact that the 2003 investigation resulted in a parole
revocation is irrelevant. The revocation was based on a violation
of the parole condition that McCamey was not to have contact
with persons under eighteen and was not due to any
determination that criminal conduct occurred.

¶20 The district court did not err in its determination that the
2003 communications between McCamey’s probation officer and
Murray City police did not constitute a “report of the offense”
that triggered the running of the four-year statute of limitations.
Therefore, the 2013 charges were not barred. Because it would
have been futile to assert the statute of limitations defense, trial
counsel was not ineffective in declining to assert that claimed
defense. Accordingly, the district court also did not err in its
determination that counsel was not ineffective and the exception
in section 78B-9-106(3) does not apply.

¶21 Affirmed.

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