Kruitbosch v. State

IN THE UTAH COURT OF APPEALS
 

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Gary Taylor Kruitbosch,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040054-CA
 

F I L E D
(April 28, 2005)
 

2005 UT App 193

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First District, Brigham City Department

The Honorable Clint S. Judkins

Attorneys: Gary Taylor Kruitbosch, Draper, Appellant Pro Se

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Before Judges Billings, Bench, and Jackson.

PER CURIAM:

    Gary Taylor Kruitbosch appeals the dismissal of his petition for post-conviction relief.

    Kruitbosch claims the district court erred in dismissing his petition seeking relief from a 1990 conviction for sexual abuse of a child, a second degree felony. In 2002, this court determined an appeal from a prior petition for post-conviction relief pertaining to the same 1990 conviction. See Kruitbosch v. Galetka, 2002 UT App 15 (mem.) (per curiam). We noted in that decision that Kruitbosch had filed no direct appeal, but had filed previous petitions seeking post-conviction relief from this petition. See id. at ¶2. Accordingly, we concluded that Kruitbosch "failed to demonstrate that he did not, or could not, have previously raised these claims on direct appeal or in prior petitions for relief." Id.

    The petition that is the subject of this appeal was filed in May of 2003, approximately eighteen months after our earlier decision issued, and it raises claims that are either duplicates or variations of claims raised in the previous petition(s), or could have been raised in previous petitions. See Utah Code Ann. § 78-35a-106(1)(d) (2002). "Section 78-35a-106(1) precludes a petitioner from seeking relief on any ground that 'was raised or addressed at trial or on appeal' or that 'could have been but was not raised at trial or on appeal.'" Hutchings v. State, 2003 UT 52,¶13, 84 P.3d 1150 (quoting Utah Code Ann. § 78-35a-106(1)(b), (c)). "In addition, the section precludes relief based on any ground that 'was raised or addressed in any previous request for post-conviction relief or could have been, but was not, raised in a previous request for post-conviction relief.'" Id. (quoting Utah Code Ann. § 78-35a-106(1)(d)).

    The claims raised were, or could have been, raised in prior proceedings and were precluded by section 78-35a-106 of the Post Conviction Remedies Act. Accordingly, we affirm the district court's dismissal of the petition for post-conviction relief, and deny the motion to remand the case to the district court for an evidentiary hearing.

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Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

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Norman H. Jackson, Judge