Lay v. State

Lay v. State

IN THE UTAH COURT OF APPEALS
 

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Ronald M. Lay,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20050170-CA
 

F I L E D
(April 28, 2005)
 

2005 UT App 195

 

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Second District, Ogden Department

The Honorable Pamela G. Heffernan

Attorneys: Ronald M. Lay, Draper, Appellant Pro Se

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

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Before Judges Billings, Bench, and Jackson.

PER CURIAM:

    Ronald M. Lay appeals the trial court's dismissal of his petition for post-conviction relief. This is before the court on its own motion for summary disposition based on the lack of a substantial question for review.

    Lay pleaded guilty to a second degree felony and was sentenced in 2000. The trial court suspended Lay's sentence and placed him on probation. In December 2002, an affidavit was filed alleging that Lay violated the conditions of his probation. Lay admitted the violations, and the trial court revoked his probation.

    Lay filed a petition for post-conviction relief in August 2003, raising several issues. The main thrust of the petition is that Lay's conviction was improper. In addition, Lay challenged the revocation of his probation and asserted that he had received ineffective assistance of counsel. After receiving a response from the State, the trial court dismissed most of Lay's claims as barred. However, the trial court held a hearing on whether Lay had received ineffective assistance of counsel and whether he had lost his rights to appeal the conviction and the probation revocation.

    At the hearing, Lay chose to move forward only on the issues of whether he received ineffective assistance of counsel for his probation revocation proceedings and whether the trial court should have followed Utah Rule of Criminal Procedure 11 and gone through a colloquy with Lay. Lay stipulated that his counsel for the probation proceedings notified him of his right to appeal the revocation. There was no indication that Lay requested to appeal and was denied that right. As a result, the trial court found no ineffective assistance of counsel. The trial court also determined there was no basis in law for holding a rule 11 colloquy for a probation revocation.

    On appeal, Lay asserts the trial court erred in dismissing his petition. However, Lay does not identify the basis for any trial court error, but rather reargues his positions below. As a result, he does not pose a substantial question for review given the basis for the trial court's rulings.

    This court reviews an appeal from the dismissal or denial of a petition for post-conviction relief for correctness without deference to the trial court's conclusions of law. See Myers v. State, 2004 UT 31,¶9, 94 P.3d 211. Moreover, the record will be reviewed "in the light most favorable to the findings and judgment," and the trial court's ruling will be upheld if there is a reasonable basis in the record to support the ruling. Id.

    Most of Lay's claims were dismissed as barred by statute. A person is not eligible for relief on any ground that "could have been but was not raised at trial or on appeal." Utah Code Ann. § 78-35a-106(1)(c) (2002). A post-conviction petition "is not a substitute for direct appellate review." Myers, 2004 UT 31 at ¶11. Additionally, a "petitioner is entitled to relief only if the petition is filed within one year after the cause of action has accrued." Utah Code Ann. § 78-35a-107(1) (2002).

    Lay pleaded guilty in March of 2000 and was sentenced in June of 2000. He did not move to withdraw his plea, nor did he appeal. Absent an appeal, the operative date to begin the time for filing post-conviction relief is the last day an appeal could have been filed. See id. § 78-35a-107(2)(a). Thus, any claims challenging his conviction should have been filed no later than approximately July 2001. Lay's petition was filed more than two years after the time had run. Any matters challenging Lay's conviction are thus barred as untimely.

    Lay's claims regarding the revocation of his probation are also barred. Lay was advised of his right to appeal the revocation, but he failed to do so. Thus, any issue that could have been raised on direct appeal is barred. See id. § 78-35a-106(1)(c); Myers, 2004 UT 31 at ¶11.

    Finally, after a hearing, the trial court dismissed Lay's claims of ineffective assistance of counsel based on Lay's own stipulation that his attorney advised him of his right to appeal. Absent any indication that Lay requested to appeal his probation revocation, the trial court properly determined Lay did not receive ineffective assistance.

    Accordingly, the trial court's dismissal of Lay's petition for post-conviction relief is affirmed.

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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