Umana v. Galetka

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Umana v. Galetka. Filed February 17, 2000 IN THE UTAH COURT OF APPEALS

----ooOoo----

Marvin Umana,
Petitioner and Appellant,

v.

Hank Galetka, Warden, Utah State Prison, State of Utah,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990714-CA

F I L E D
February 17, 2000


2000 UT App 32 -----

Second District, Ogden Department
The Honorable Michael J. Glasmann

Attorneys:
Marvin Umana, Draper, Appellant Pro Se -----

Before Judges Greenwood, Jackson, and Billings.

PER CURIAM:

Marvin Umana appeals the dismissal of his petition for post-conviction relief as frivolous on its face. This appeal is before the court on a sua sponte motion for summary affirmance. Umana did not file a response.

This court affirmed Umana's conviction of aggravated sexual assault on direct appeal. See State v. Umana, No. 970403-CA, slip op. (Utah Ct. App. May 14, 1998). The court rejected claims that photographs and statements introduced at trial should have been excluded and a claim of ineffectiveness of trial counsel. This court concluded that, given compelling evidence of guilt independent of the statements or photographs, there was no reasonable likelihood of a more favorable result, and the weight of the evidence precluded finding prejudice from alleged ineffectiveness of trial counsel.

Utah Code Ann. § 78-35a-106(1)(c) (1996) states that post-conviction relief is not available if a claim could have been, but was not, raised at trial or on appeal. Umana invoked an exception contained in section 78-35a-106(2) (1996) allowing a claim to be asserted in a post-conviction petition "if the failure to raise the ground was due to ineffectiveness of trial counsel." Umana asserted claims of ineffectiveness of trial counsel on direct appeal, and there is no basis to apply the exception. The challenges to Umana's conviction were either raised and rejected on direct appeal or could have been raised.

The trial court also correctly rejected the challenge to the sentence because Umana did not demonstrate the trial court erred in sentencing him to the term of middle severity of the applicable minimum mandatory terms or that any mitigating circumstances were presented in support of a lesser sentence.

See Utah Code Ann. § 76-3-201(6) (1999) (providing if statute mandates that one of three stated minimum terms shall be imposed, court shall impose term of middle severity unless there are circumstances in aggravation or mitigation of crime).

We affirm the dismissal of the petition.
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 

______________________________
Judith M. Billings, Judge

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