Verikokidis v. State

Utah State Courts - Opinions - Verikokidis v. State

IN THE UTAH COURT OF APPEALS

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Alex Verikokidis,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20030206-CA

F I L E D
(September 5, 2003)

2003 UT App 306

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Third District, Salt Lake Department

The Honorable Tyrone E. Medley

Attorneys: Alex Verikokidis, Draper, Appellant Pro Se

Mark L. Shurtleff and Erin Riley, Salt Lake City, for Appellee

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Before Judges Jackson, Greenwood, and Orme.

PER CURIAM:

Appellant Alex Verikokidis appeals from both the denial of his third petition for post-conviction relief and the denial of his motion for post-conviction DNA testing.

The Utah Supreme Court affirmed the underlying convictions, concluding that Appellant's seven-year absence between conviction and sentencing indirectly resulted in the inability to effectively prosecute an appeal. See State v. Verikokidis, 925 P.2d 1255 (Utah 1996). Appellant filed his initial petition for post-conviction relief alleging that trial counsel rendered ineffective assistance by failing to obtain a transcript to preserve the trial testimony for appeal. This court affirmed the district court's dismissal of the petition. See Verikokidis v. State, No. 980204-CA, slip op. (Utah Ct. App. Oct. 8, 1998) (per curiam). Appellant did not appeal the dismissal of his second petition for post-conviction relief. This appeal is taken from dismissal of a third petition for post-conviction relief.

While the third petition was pending, Appellant filed a separate motion for post-conviction DNA testing, pursuant to Utah Code Ann. § 78-35a-301 (2002). Appellant failed to satisfy the burden to allege and prove the existence of evidence that could be DNA tested. Moreover, counsel for the State confirmed that no physical evidence was in police custody. At a hearing on the motion, the State's counsel offered to contact the physician who examined the victim. The court accepted the offer and directed the State to determine whether there was any physical evidence in possession of the physician. Both the physician's trial testimony, which was available, and the affidavit procured by the State confirmed that no physical evidence was obtained from the victim and only a physical examination was performed. That examination revealed physical enlarging of the victim's anal and vaginal openings consistent with her account of repeated incidents of anal and vaginal intercourse with Appellant, but the examination did not include the collection of any physical evidence such as blood or semen.

The trial court correctly concluded that the claims in the third petition were precluded under Utah Code Ann. § 78-35a-106(1) (2002), because they either were, or could have been, raised on direct appeal or in the two prior requests for post-conviction relief. The petition was procedurally barred as successive.

The district court concluded that "[n]o physical evidence that could have been tested for DNA of the perpetrator was ever obtained from the victim"; accordingly, the court correctly concluded that no evidence existed "on which relevant DNA testing may be conducted in this case." Because Appellant failed to satisfy his burden under section 78-35a-301(2) to prove that "evidence has been obtained regarding [his] case which is still in existence and is in a condition that allows DNA testing to be conducted," the district court did not err in denying the motion for DNA testing. See Utah Code Ann. § 78-35a-301(6)(b) (requiring court to order DNA testing if it finds by a preponderance of the evidence that all criteria of subsection (2) have been met).

We affirm the district court's order of dismissal.

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Norman H. Jackson,

Presiding Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge