Evon v. State

Evon v. State

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

Kenny Ray Evon,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040995-CA
 

F I L E D
(February 17, 2005)
 

2005 UT App 73

 

-----

Third District, Salt Lake Department

The Honorable William W. Barrett

Attorneys: Kenny Ray Evon, Draper, Appellant Pro Se

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

-----

Before Judges Greenwood, Jackson, and Thorne.

PER CURIAM:

    Kenny Ray Evon appeals the denial and dismissal with prejudice of his petition for post-conviction relief. This case is before the court on a sua sponte motion for summary disposition.

    "We review an appeal from an order dismissing or denying petition for post-conviction relief for correctness without deference to the lower court's conclusions of law." Rudolph v. Galetka, 2002 UT 7,¶4, 43 P.3d 467.

    The petition collaterally challenging Evon's conviction and sentence was filed pursuant to the Post-Conviction Remedies Act. See Utah Code Ann. §§ 78-35a-101 to -110 (2002); Utah R. Civ. P. 65C. To the extent that Evon challenged the actions of the Utah Board of Pardons and Parole in his petition, the district court correctly concluded that the claims are not properly asserted in a petition seeking post-conviction relief. See Utah Code Ann. § 78-35a-102(2)(c) (stating the Post-Conviction Remedies Act does not apply to "actions taken by the Board of Pardons and Parole"). Accordingly, we do not consider these claims on appeal, including Evon's claim that the sentencing matrix was not properly applied.

    In a petition seeking post-conviction relief, "[t]he petitioner has the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief." Id. § 78-35a-105. A petitioner is not eligible for relief on any ground that "was raised or addressed at trial or on appeal" or "could have been but was not raised at trial or on appeal." Id. § 78-35a-106(b)-(c). However, "a person may be eligible for relief on a basis that the ground could have been but was not raised at trial or on appeal, if the failure to raise that ground was due to ineffective assistance of counsel." Id. § 78-35a-106(2).

    The district court correctly concluded that Evon's claim he was denied the right of allocution at sentencing was procedurally barred as a claim that could have been raised on direct appeal. Evon failed to file a direct appeal and failed to allege or demonstrate that failure to raise this issue on appeal was due to ineffective assistance of counsel.

    Evon claimed in his petition that his guilty plea was both involuntary and unknowing, although he did not file a timely motion to withdraw his guilty plea. The district court reviewed the claims based upon Evon's allegation that his trial counsel was ineffective in representing him in connection with the guilty plea. Evon made broad, general assertions that his counsel lied and deceived him into entering a guilty plea. However, the district court noted that Evon did not allege any specific lies or describe the deception that he claims resulted in entry of the guilty plea, or describe what part of the plea agreement he claims he did not receive at sentencing. Any claim that he did not receive the benefit of his plea bargain should have been raised at sentencing or on appeal.(1) In the absence of any pleading of "the facts necessary to entitle the petitioner to relief," Evon failed to satisfy his burden. Id. § 78-35a-105 (2002); see also Utah R. Civ. P. 65C(c)(3) (requiring petitioner to state "all of the facts that form the basis of the petitioner's claim to relief").

    Evon also claimed that his plea was not knowing because he could not read without glasses. The district court correctly concluded that whether Evon could read the documents himself is not dispositive of his claim that his guilty plea was not knowing or intelligent, and found that Evon represented in his written plea statement that he either read the statement himself or had it read to him by his attorney and that he understood it.

    We affirm the denial and dismissal of the petition for post-conviction relief.

______________________________

Pamela T. Greenwood, Judge

______________________________

Norman H. Jackson, Judge

______________________________

William A. Thorne Jr., Judge

1. On appeal, Evon claims that he was threatened by counsel for the State and a transport jailor. Even if these allegations were made in support of the petition, they are not relevant to show ineffective assistance of trial counsel absent a showing that these facts were communicated to counsel. Evon's efforts to supply the allegation that he failed to present in the district court will not be considered for the first time on appeal.