Baird v. Galetka

Baird v. Galetka

IN THE UTAH COURT OF APPEALS
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Dale J. Baird,
Petitioner and Appellant,

v.

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

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020435-CA

F I L E D
(July 17, 2003)

2003 UT App 250

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Third District, Salt Lake Department

The Honorable Tyrone E. Medley

Attorneys: Dale J. Baird, Draper, Appellant Pro Se

Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee

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Before Judges Billings, Greenwood, and Orme.

ORME, Judge:

We do not consider Appellant's claim that the statute of limitations prescribed by Utah Code Ann. § 78-35a-107(1) (2002) is unconstitutional. Appellant did not raise this claim below, and in his appellate brief he does not argue, much less demonstrate, "that 'exceptional circumstances' exist or 'plain error' occurred." State v. Holgate, 2000 UT 74,¶11, 10 P.3d 346 (citations omitted). Cf. Swart v. State, 1999 UT App 96,¶4, 976 P.2d 100 (per curiam) ("[N]o court has yet actually declared the statute of limitations set forth in section 78-35a-107 unconstitutional[.]").

In arguing that the "interests of justice" exception applies to this appeal, Appellant merely recites the facts of his situation. He does not cite any legal authority or engage in any legal analysis regarding this argument. As "'[a] reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research,'" State v. Larsen, 828 P.2d 487, 491 (Utah Ct. App. 1992) (citation omitted), aff'd, 865 P.2d 1355 (Utah 1993), we do not consider this claim.(1) At a minimum, Appellant should have engaged in an analysis of what courts have previously held to satisfy the "interests of justice" test, as well as a convincing argument, based on Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), that his counsel was, indeed, ineffective by constitutional standards.

However, as to Appellant's claim regarding the relevance of the "official version of the offense" for sentencing purposes, the State has conceded "that this Court should remand the case for additional factual findings as to when this claim accrued," for purposes of calculating when the one-year window for filing a petition began to run. On the basis of this concession, we remand for this limited purpose.

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Gregory K. Orme, Judge

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WE CONCUR:

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Judith M. Billings,

Associate Presiding Judge

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Pamela T. Greenwood, Judge

1. Our decision would likely be the same even if we were to reach the merits of Appellant's contentions. Even if we agreed that the statute of limitations was tolled under Utah Code Ann. § 78-35a-107(2)(e) (2002) until Appellant obtained his file from his attorney, he still did not file his petition until more than one year after receiving it. We doubt his stated reason for this delay--that the prison does not have a law library--would be sufficient under the "interests of justice" exception.

Also, unlike past court cases involving the "interests of justice" exception, see, e.g., Frausto v. State, 966 P.2d 849, 851 (Utah 1998) (plurality opinion); Swart v. State, 1999 UT App 96,¶4, 976 P.2d 100 (per curiam), the lower court in this case considered the "interests of justice," making five distinct conclusions of law regarding this exception. It concluded this analysis by holding that "the interests of justice do not excuse petitioner's failure to file within the time limitations."