Paolone v. State of Utah

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Michael L. Paolone,
Petitioner and Appellant,

v.

State of Utah,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981441-CA

F I L E D
November 16, 1999
  1999 UT App 339

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Second District, Farmington Department
The Honorable Jon M. Memmott

Attorneys:
Michael L. Paolone, Draper, for Appellant Pro Se
Jan Graham, Norman E. Plate, and Scott Keith Wilson, Salt Lake City, for Appellee

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Before Judges Wilkins, Billings, and Orme.

WILKINS, Presiding Judge:

Petitioner Michael L. Paolone appeals the trial court's dismissal of his petition for post-conviction relief with prejudice. We affirm.

On appeal from a dismissal of a petition for post-conviction relief with prejudice, we will set aside the trial court's findings of fact only if they are clearly erroneous, and we review its conclusions of law for correctness. See Matthews v. Galetka, 958 P.2d 949, 950 (Utah Ct. App. 1998). Furthermore, "'"we survey the record in the light most favorable to the findings and judgment; and we will not reverse if there is a reasonable basis therein to support the trial court's refusal to be convinced that the writ should be granted."'" Id. (quoting York v. Shulsen, 875 P.2d 590, 593 (Utah Ct. App. 1994) (additional citations omitted).

In this case, our review of Paolone's claims of error is limited because he has failed to include in the record a transcript of the evidentiary hearing upon which the trial court based its findings of fact, conclusions of law, and order. Rule 11 of the Utah Rules of Appellate Procedure provides, "[i]f the appellant intends to urge on appeal that a finding or conclusion is unsupported by or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion." Utah R. App. P. 11(e)(2). Since Paolone failed to provide this court with the transcript required, we presume that the judgment was supported by competent and sufficient evidence. See State v. Penman, 964 P.2d 1157, 1162 (Utah Ct. App. 1998). "'Therefore, our review is strictly limited to whether the trial court's findings of fact support its conclusions of law and judgment.'" State v. Byrns, 911 P.2d 981, 988 (Utah Ct. App. 1995) (quoting Sampson v. Richins, 770 P.2d 998, 1002 (Utah Ct. App. 1989)).

Turning to Paolone's specific claims, we conclude they are without merit. First, Paolone argues the trial court erred in finding that he withdrew the appeal of his conviction of forcible sexual abuse. However, the trial court specifically found that Paolone "acknowledged that he wanted to withdraw his previously filed letter" seeking an appeal of his conviction of forcible sexual abuse. Although the trial court stated that there was conflicting evidence on this issue, it found counsel's testimony "more credible" than Paolone's. Because Paolone has not provided us with the transcript of all relevant evidence bearing on this issue, we must presume the propriety of this finding. See Byrns, 911 P.2d at 987.

Second, Paolone asserts he was not given adequate notice that the trial court would rule on his ineffective assistance of counsel claim at the evidentiary hearing. However, the record before us contains a minute entry stating that Paolone was advised more than two months in advance that his claim of ineffective assistance of counsel would be examined at the evidentiary hearing. Because Paolone has offered no record of evidence to the contrary, we reject this argument. See W. & G. Co. v. Redevelopment Agency, 802 P.2d 755, 761 (Utah Ct. App. 1990) (stating notice is sufficient if party is informed of specific issue being considered by the court). Paolone also argues that because he sent a letter to the trial court requesting an appeal of his conviction of forcible sexual abuse, his trial counsel rendered ineffective assistance by failing to file an appeal on his behalf. As previously stated, the trial court found that Paolone specifically acknowledged at his plea hearing that he wanted to withdraw the letter seeking an appeal. This finding, which we must presume is correct, clearly supports the trial court's conclusion that Paolone's trial counsel was not ineffective by failing to file an appeal on Paolone's behalf.

Finally, Paolone contends the findings of fact and conclusions of law set forth in the trial court's order do not accurately reflect what occurred at the evidentiary hearing. Because Paolone has not provided us with the transcript from the hearing, we are unable to fully review the adequacy of the trial court's findings. The record before us does contain an extensive minute entry detailing the findings of fact and conclusions of law as announced by the trial court. These findings and conclusions are consistent with those contained in the trial court's order.

Affirmed.
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge -----

WE CONCUR:
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 

______________________________
Gregory K. Orme, Judge