Botts v. State of Utah

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Alvin Marion Botts,
Petitioner and Appellant,

v.

State of Utah,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000950-CA

F I L E D
June 7, 2001 2001 UT App 187 -----

Seventh District, Price Department
The Honorable Bruce K. Halliday

Attorneys:
Alvin Marion Botts, Draper, Appellant Pro Se -----

Before Judges Greenwood. Billings, and Davis.

PER CURIAM:

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

Rule 65C of the Utah Rules of Civil Procedure governs post-conviction proceedings collaterally challenging a criminal conviction.(1) Botts's petition challenges his convictions of five counts of Attempted Sodomy on a Child based upon no contest pleas. Rule 65C(g) allows dismissal of a petition as frivolous on its face when a review of allegations in the pleadings and attachments demonstrate that "the facts alleged do not support a claim for relief as a matter of law," or "the claims have no arguable basis in fact." Utah R. Civ. P. 65C(g)(2)(A) & (B).

Although the district court also reviewed portions of the criminal proceedings, we conclude that the dismissal of the petition can be affirmed because it is also frivolous on its face within the meaning of Rule 65C(g). See Debry v. Noble, 889 P.2d 428, 444 (Utah 1995) ("[A]n appellate court may affirm a trial court's ruling on any proper grounds, even though the trial court relied on some other grounds.") To the extent that Botts claims that the district court did not follow the procedures required for acceptance of a guilty plea under Alford v. North Carolina, 400 U.S. 5, 91 S. Ct. 160 (1970), his claims are without merit. The Statement of Defendant attached to the petition demonstrates that the pleas were not intended or accepted as Alford pleas. Similarly, the ineffectiveness of counsel claim does not contain an allegation of any facts that would demonstrate either deficient performance or resulting prejudice. The claim that Botts was misled by the prosecutor to believe that Attempted Sodomy on a Child was a second degree felony is negated by Botts's own admission that he was advised that the offense was a first degree felony before entry of his pleas and by the interlineations on the Statement of Defendant executed in advance of the pleas. The double jeopardy claim is based wholly upon speculation, is without a factual basis, and was waived by the entry of the no contest pleas. The factual statement in support of the pleas clarifies that the charges resulted from Botts's performance of an oral sex act with or upon the victim on five separate occasions during the relevant time period.

Botts represents that the signed judgment and sentence recited his convictions for Sodomy on a Child, although he entered no contest pleas to Attempted Sodomy on a Child. To this extent, his assertion appears to be correct. However, Botts was sentenced to five indeterminate terms of five years to life, and not to the minimum/mandatory terms that pertain to Sodomy on a Child. Accordingly, he is not being punished for the greater offense, and has demonstrated no basis for reversal of his convictions. The case is remanded to the district court for the limited purpose of correcting the clerical error in the judgment entered in the underlying criminal case. See Utah R. Civ. P. 60(a) ("Clerical mistakes in judgment . . . arising from oversight or omission may be corrected by the court at any time of its own initiative . . . and after such notice, if any, as the court orders.").

We affirm the dismissal of the petition as frivolous on its face.
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 

______________________________
Judith M. Billings, Judge
 

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James Z. Davis, Judge
 

1. Although the district court cited the analogous provision in Rule 65B(b)(5), this does not alter our analysis.