Rohwedder v. State

Rohwedder v. State

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

Billy L. Rohwedder,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040862-CA
 

F I L E D
(February 3, 2005)
 

2005 UT App 53

 

-----

Third District, Salt Lake Department

The Honorable Timothy R. Hanson

Attorneys: Billy L. Rohwedder, Draper, Appellant Pro Se

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

-----

Before Judges Billings, Greenwood, and Thorne.

PER CURIAM:

    This case is before the court on its own motion for summary disposition on the basis that the issues presented for review are so insubstantial as to not merit further consideration. See Utah R. App. P. 10. The trial court dismissed Appellant Rohwedder's post-conviction petition on the grounds that the petition was untimely filed. See Utah Code Ann. § 78-35a-107 (1995),(1) and on the basis that Rohwedder's claims fail as a matter of law.

    Rohwedder's response does not address the trial court's ruling and certainly does not demonstrate that the ruling was erroneous.

    The State argues that Rohwedder's petition was untimely because, while Rohwedder was sentenced prior to the effective date of Utah Code section 78-35a-107, the statute of limitations on post-conviction petitions became effective approximately four months after sentencing. Therefore, Rohwedder had until April 29, 1997, one year from the effective date of the statute, to file his petition. The petition was not filed until February 19, 2004. As a result, the petition is untimely.

    The trial court went on to review the merits of the petition, despite its untimeliness, and concluded that Rohwedder's claim that he was wrongly prosecuted in adult court based on Utah Code section 78-3a-25(1995), a portion of which has been declared unconstitutional, is in error. See State v. Mohi, 901 P.2d 991 (Utah 1995) (determining that the portion of Utah Code section 78-3a-25 that allows the prosecution to determine which court to file in, adult or juvenile, with no guidance is unconstitutional).

    According to the trial court, Rohwedder was prosecuted in adult court pursuant to Utah Code section 78-3a-16(1995), which has not been declared unconstitutional, not under Utah Code section 78-3a-25. Rohwedder has not demonstrated that this determination was in error.

    The dismissal of Rohwedder's post-conviction petition is affirmed.

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Pamela T. Greenwood, Judge

______________________________

William A. Thorne Jr., Judge

1. For clarity, all statutes will be cited as in effect at the time Rohwedder was charged.