Henry v. State

Henry v. State

IN THE UTAH COURT OF APPEALS
 

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Jonathan M. Henry,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20031053-CA
 

F I L E D
(September 10, 2004)
 

2004 UT App 300

 

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Third District, Salt Lake Department

The Honorable J. Dennis Frederick

Attorneys: Jonathan M. Henry, Salt Lake City, Appellant Pro Se

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

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Before Judges Davis, Jackson, and Orme.

PER CURIAM:

    This case is before the court on its own motion for summary disposition on the basis that the questions presented are so insubstantial as to not merit further consideration by the court. See Utah R. App. P. 10(e). Respondent/Appellee the State responded to the motion, Appellant/Petitioner Henry did not.

    Henry pleaded guilty to attempted distribution or arranging to distribute a controlled substance, a third degree felony, and attempted aggravated assault, a class A misdemeanor. Subsequent to his plea, but prior to sentencing, Henry filed what the district court construed to be a motion to withdraw his plea. The district court denied the motion and proceeded to sentence Henry.

    Henry then filed a pleading entitled "Motion of Appeal on the decision to not Withdraw Guilty Plea." He also filed a pleading entitled "Appeal to vacate Sentence given by Judge Frederick on 1-10-03." The record does not reflect that the district court ever ruled on these motions. Nor did the district court construe them as notices of appeal and transmit them to the proper appellate court.

    Several months later, Henry filed a petition for postconviction relief. Henry claimed counsel had been ineffective and that ineffective representation caused Henry to plead guilty based on lack of information and misleading information received from counsel. Henry also alleged violations of Utah Rule of Criminal Procedure 11 in accepting his plea.

    The State moved to dismiss the petition on the basis that Henry was ineligible for relief under the Postconviction Remedies Act, pursuant to rule 65B of the Utah Rules of Civil Procedure, because his postconviction claim was identical to the claim already made in Henry's motion to withdraw his plea. Therefore, Henry had a plain, speedy, and adequate remedy in the form of a direct appeal from the denial of his motion to withdraw his plea. Henry failed to avail himself of a direct appeal. Moreover, a post conviction petition must be dismissed if the argument regarding the alleged unlawful restraint on liberty has already been adjudicated in a prior proceeding. See Utah R. Civ. P. 65B(b)(5).

    We agree with the State that the district court construed Henry's pleadings to be motions to reconsider and not notices of appeal. As a result, Henry failed to directly appeal the denial of his motion to withdraw his plea. Because he did not avail himself of the plain, speedy, and adequate remedy of a direct appeal, he is barred from postconviction relief.

    We summarily affirm the dismissal of Henry's petition for postconviction relief.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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Gregory K. Orme, Judge