Johnson v. State

IN THE UTAH COURT OF APPEALS

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Donald R. Johnson,

Petitioner and Appellee,

v.

State of Utah,

Respondent and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020436-CA
 

F I L E D
(April 15, 2004)
 

2004 UT App 108

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Sixth District, Kanab Department

The Honorable David Mower

Attorneys: Mark L. Shurtleff and Thomas Brunker, Salt Lake City, for Appellant

Donald R. Johnson, Ogden, Appellee Pro Se

Linda M. Jones, Salt Lake City, for Amicus Curiae Salt Lake Legal Defender Association

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Before Judges Bench, Orme, and Thorne.

ORME, Judge:

We appreciate the additional briefing undertaken in this case and the participation by the amicus. The procedural confusion that prompted our request for further briefing has since been illuminated and, hopefully, clarified by the court in another case. See Manning v. State, 2004 UT App 87, 496 Utah 26. Applying the Manning analysis and other settled legal principles to this appeal, we vacate the lower court's resentencing order and remand for further proceedings.

Under the Post-Conviction Remedies Act (the PCRA), the lower court was required to dismiss Petitioner's untimely petition unless it found that, in the "interests of justice," the limitations period should not be enforced. Utah Code Ann. § 78-35a-107(1), (3) (2002). Petitioner was potentially entitled to the benefit of this exception, given his allegation that poisoning and other physical abuse inflicted by the Kane County Jail staff "prevented him from meeting the deadline."(1) However, the court declined to make findings on this issue because "the only way to resolve the dispute is to listen to witnesses testify about events."(2) The lower court preferred to resentence Petitioner, thereby permitting him a new opportunity to appeal. The result, of course, would be to spare that court the burden of "listen[ing] to witnesses testify about events," but at the expense of resurrecting appeal rights otherwise long since extinguished.

The lower court is not entitled to disregard the plain language of the PCRA, which states that "[a] petitioner is entitled to relief only if the petition is filed within one year," Utah Code Ann. § 78-35a-107(1) (2002) (emphasis added), or "[i]f the court finds that the interests of justice [operate to] excuse a petitioner's failure to file within the time limitations."(3) Id. § 78-35a-107(3). The lower court failed to make the findings required by the statute. Consequently, the court's resentencing order cannot be affirmed under Utah R. Civ. P. 65C and the PCRA.

The amicus's primary argument, that the petition is not governed by rule 65C and the PCRA but rather by Utah R. Civ. P. 65B, was definitively dispelled by Manning. Thus, rule 65B's lack of a comparable time limit is of no help to Petitioner.

We vacate the lower court's resentencing order and remand for consideration of whether "the interests of justice . . . excuse [Petitioner's] failure to file within the time limitations" of the PCRA and, if so, to reach the merits of his
petition,(4) or for such other proceedings as may now be appropriate.

______________________________

Gregory K. Orme, Judge

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WE CONCUR:

______________________________

Russell W. Bench,

Associate Presiding Judge

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William A. Thorne Jr., Judge

1. We note that Petitioner nowhere specifically alleged that his mistreatment while incarcerated prevented him from timely filing his postconviction petition. Instead, Petitioner consistently stated that the alleged abuse "during the months of June and July, 1997" prevented him from filing a direct appeal from his felony convictions. Thus, we hasten to add that the "interests of justice" inquiry, at this juncture, would not be whether Petitioner was prevented from directly appealing his convictions within thirty days of his June 24, 1997 sentencing. See Utah R. App. P. 4(a). If the "interests of justice" require extension of the PCRA's one-year limitation, Petitioner may yet establish his entitlement to resentencing--not as an alternative to the lower court delving into the factual basis for his "interests of justice" argument, but as the remedy for denial of his right to appeal if such denial was due, as he claims, to custodial abuse. See Manning v. State, 2004 UT App 87,¶25, 496 Utah Adv. Rep. 26 (holding a defendant would be entitled to resentencing if denied the right to appeal because of "interference with . . . exercise of the right to appeal [originating] in the criminal justice system").

2. Thus, we find no merit in the amicus's assertions that the court, either expressly or impliedly, based its ruling on the "interests of justice" exception. The court stated: "While [listening to witnesses testify concerning the 'interests of justice' exception] is a potential resolution, the cleaner and more effective method would be to resentence the defendant in the criminal case so that his right to appeal is renewed." (Emphasis added.) Given this pronouncement, we agree with the State that "[n]o fair reading of the post-conviction court's order [indicates] that the lower court found the 'interests of justice' exception satisfied."

3. Alternatively, the amicus argues that, even if the lower court failed to consider the "interests of justice" exception, Petitioner's petition is not time-barred because the statute of limitations in the PCRA is unconstitutional. We need not address this argument for two reasons. First, Petitioner did not argue below that the statute of limitations in the PCRA is unconstitutional, and amicus has not argued plain error or exceptional circumstances on appeal. See, e.g., State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994) (stating that issues not raised below, including "constitutional questions," "cannot be argued for the first time on appeal" absent "'plain error'" or "'exceptional circumstances'") (citation omitted). Second, it is a "well-settled rule that an amicus brief cannot extend or enlarge the issues on appeal." Madsen v. Borthick, 658 P.2d 627, 629 n.3 (Utah 1983). Accord Dean v. Henriod, 1999 UT App 50,¶7, 975 P.2d 946. Thus, courts should "consider[ only] those portions of the amicus brief[s] that bear on the issues pursued by the parties to [an] appeal." Id. See also Manning, 2004 UT App 87 at ¶16 n.4 (noting "'interests of justice' escape valve [in the PCRA] alleviates the concern" otherwise presented by rigid time limitation on bringing action for postconviction relief).

4. The lower court has already determined that the claims in Petitioner's petition had "no[t] been adjudicated in a prior proceeding" and that the petition was "not frivolous on its face." Utah R. Civ. P. 65C(g)(1).