Rivas v. State

IN THE UTAH COURT OF APPEALS
 

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Pedro Rivas,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040750-CA
 

F I L E D
(March 17, 2005)
 

2005 UT App 128

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Third District, Salt Lake Department

The Honorable William B. Bohling

Attorneys: Pedro Rivas, Draper, Appellant Pro Se

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

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

    Pedro Rivas appeals the dismissal of his petition for post-conviction relief. This case is before the court on a sua sponte motion for summary disposition.

    In a Minute Entry and Order entered on May 15, 2002, the district court considered and rejected Rivas's claim that he was sentenced for the wrong offense, concluding that Rivas was convicted of two counts of forcible sodomy and "the sentence imposed by the court was consistent with the crime charged." Based upon the amended information and the jury verdict forms, which were made a part of the record in the post-conviction proceedings, the district court did not err in concluding that the sentencing claim was frivolous on its face.

    To the extent that Rivas claims he received ineffective assistance from his trial counsel, those claims were either raised and determined, or could have been raised and determined, on direct appeal. See State v. Rivas, 2000 UT App 9. The district court did not err in determining that those claims could not be reasserted in the post-conviction proceedings. See Utah Code Ann. § 78-35a-106(1)(b)-(c) (2002) (stating a person is not eligible for relief upon any ground that was raised or addressed on appeal or could have been raised on appeal).

    The State's response to the sua sponte motion is limited to the only issue on which it was required to respond by the district court, that is, the alleged failure of appellate counsel to advise Rivas of the issuance of our decision on direct appeal until after the time for seeking a writ of certiorari to the Utah Supreme Court had expired. The State asserts that a claim of ineffectiveness of appellate counsel based upon failure to pursue discretionary review on certiorari is without merit because a criminal defendant has no constitutional right to counsel in pursuing discretionary review. See Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) ("[A] criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals or applications for review in this Court."). However, another construction of Rivas's claim is that counsel was allegedly ineffective in representing him on appeal by failing to advise him of the issuance of the decision on direct appeal in time to allow him to pursue a petition for certiorari on his own or through privately retained counsel. We conclude that even if counsel was deficient in failing to timely notify Rivas of our decision, the district court correctly dismissed the ineffectiveness claim based upon lack of prejudice. We are persuaded that the district court correctly concluded that there was no reasonable probability that the Utah Supreme Court would have granted certiorari. Rivas did not allege any grounds on which he would have sought discretionary review on certiorari; accordingly, he did not demonstrate that he was prejudiced by appellate counsel's failure to timely inform him of the issuance of the decision on direct appeal.

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

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge