Harris v. State of Utah

----ooOoo----

Troy Gordon Harris,
Petitioner and Appellant,

v.

State of Utah,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000252-CA

F I L E D
May 4, 2000
  2000 UT App 132 -----

Second District, Ogden Department
The Honorable Michael D. Lyon

Attorneys:
Tom Jones, Salt Lake City, for Appellant

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Before Judges Bench, Billings, and Davis.

PER CURIAM:

Appellant appeals an order of the district court dismissing his petition for post-conviction relief.(1) We affirm.

Appellant asserts that the district court erred in dismissing the petition as frivolous on its face without an evidentiary hearing. This procedure was proper pursuant to Utah Rule of Civil Procedure 65C(g)(1). Moreover, summary dismissal was appropriate, as the petition raises issues that were waived either when appellant pleaded guilty and failed to timely move to withdraw his guilty pleas, see State v. Price, 837 P.2d 578, 583 (Utah Ct. App. 1992) (stating court is without jurisdiction to entertain request to withdraw guilty plea where request is made more than thirty days after plea entered and defendant was advised of time limit), or by appellant's failure to raise the issues in a timely appeal from the underlying conviction. See Utah Code Ann. § 78-35a-106 (1996) (petitioner is not eligible for relief upon any ground that could have been but was not raised at trial or on appeal).

Appellant contends that section 78-35a-106 and Rule 65C(g)(1) are unconstitutional inasmuch as they allow summary disposition of frivolous petitions. However, appellant failed to raise this constitutional challenge before the district court. "As the Utah appellate courts have reiterated many times, we generally will not consider an issue, even a constitutional one, which the appellant raises on appeal for the first time." State v. Webb, 790 P.2d 65, 77 (Utah Ct. App. 1990). "Exceptions to this general rule consist of those cases where there are 'exceptional circumstances' for the failure to raise the issue below," or where plain error can be shown. Id. at 78 (citations omitted). Appellant makes neither showing. Accordingly, we decline to address the issue.
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
James Z. Davis, Judge

1. Appellant asserts that it was improper for one of the sentencing judges to dispose of his petition. He states that "[a]t the time of filing of the petition herein we believed and expected that this matter would be assigned to a judge who had not previously been involved in this case." Appellant ignores Utah Rule of Civil Procedure 65C(f) which specifically provides that a petition for post-conviction relief shall be assigned to the judge who sentenced the petitioner, when available.