State of Utah, v. Smith

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State of Utah v. Smith, Case No. 981056-CA, Filed October 16, 1998. IN THE UTAH COURT OF APPEALS

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MEMORANDUM DECISION (Not For Official Publication)

State of Utah, Plaintiff and Appellee, 

v. 

Tracey Eugene Smith, Defendant and Appellant. 


Case No. 981056-CA


F I L E D (October 16, 1998)   -----  

Fifth District, Beaver Department

The Honorable J. Philip Eves

Attorneys: Tracey Eugene Smith, Draper, Appellant Pro Se

Jan Graham and Angela F. Micklos, Salt Lake City, for Appellee -----  

Before Judges Bench, Billings, and Greenwood.

PER CURIAM:

Defendant Tracey Eugene Smith appeals from the denial of his second motion to correct sentence, or in the alternative, motion to withdraw guilty plea. We affirm.

Smith makes three claims on appeal. First, he contends the trial court erred in ruling that his motion was time-barred. Second, he contends the trial court erred in denying the motion because he was not adequately advised of the consequences of his guilty plea. Third, he contends the trial court erred in denying the motion because he did not receive effective assistance of counsel in the trial court and on appeal. The Utah Supreme Court affirmed Smith's conviction, State v. Smith, 866 P.2d 532 (Utah 1993), and this court subsequently affirmed the denial of Smith's first motion to correct illegal sentence by an unpublished memorandum decision, State v. Smith, No. 960689-CA, slip op. (Utah Ct. App. April 3, 1997). In addition, the majority of the issues raised in the present appeal were determined in the Third District Court's 1993 denial of Smith's petition for writ of habeas corpus in Smith v. Galetka, Case No. 930900217, which Smith did not appeal. We take judicial notice of the contents of the ruling containing in the Third District Court's decision on the habeas corpus petition. See Utah R. Evid. 201.

The State concedes that the trial court incorrectly based its ruling, in part, upon the statute of limitations applicable to petitions for post-conviction relief. However, the ruling may be affirmed on any appropriate ground, even if not relied upon by the trial court.

Smith's claim he was not advised of the consequences of his guilty plea as required by Utah R. Crim. P. 11(g)(2) is without merit. The guilty plea was conditioned upon the trial court's sentencing Smith to a term of life imprisonment. A condition of the plea bargain was that Smith could withdraw his guilty plea if the trial court imposed the death penalty. The plea colloquy establishes that the consequences of the guilty plea were fully explained to Smith. The trial court sentenced Smith to an indeterminate term of life imprisonment. Smith's remaining claims regarding the sentencing recommendation made by the court pursuant to Utah Code Ann. 77-27-13(5)(a)(1994) were determined in his prior appeal to this court and his habeas corpus proceeding, and will not be reconsidered. "A ground for relief from a conviction or sentence that has once been fully and fairly adjudicated in a prior habeas proceeding should not be readjudicated unless it can be shown that there are 'unusual circumstances.'" Hurst v. Cook, 777 P.2d 1029, 1036 (Utah 1989).

Smith's claim of ineffectiveness of trial counsel was "fully and fairly adjudicated," following an evidentiary hearing, in the habeas corpus proceedings and will not be reconsidered. Id. Smith now asserts ineffectiveness of counsel appointed to represent him in his direct appeal, who later represented him in the habeas corpus proceedings. Smith claims counsel appointed to represent him in his direct appeal was ineffective by failing to assert ineffectiveness of trial counsel on appeal. However, the same attorney represented Smith in the habeas corpus proceedings where the claim of ineffectiveness of trial counsel was adjudicated. Smith cannot demonstrate any prejudice from counsel's failure to raise the claim on direct appeal.

Smith next contends counsel was ineffective in failing to appeal the adverse ruling on his habeas corpus petition. There is no constitutional right to appointed counsel beyond the first appeal of a criminal conviction. See Coleman v. Thompson, 501 U.S. 722, 756, 111 S. Ct. 2546, 2568 (1991). "[N]either the Due Process Clause nor the Fourteenth Amendment's equal protection guarantee necessitate that States provide counsel in state discretionary appeals where defendants already had one appeal as of right." Id. (citing Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437 (1974)). Accordingly, Smith's claim of ineffective assistance of counsel based upon a failure to pursue an appeal of a decision on a habeas corpus petition cannot be pursued. In addition, Smith's brief demonstrates that counsel's reasons for not appealing were based upon strategic considerations. Finally, Smith has not demonstrated that he was prejudiced by the failure to appeal by showing that an appeal was likely to be successful.

Under the circumstances, we conclude the trial court did not err in dismissing the motion as frivolous, repetitive and without merit. Accordingly, we affirm the denial of the motion.
 
 
 
 

______________________________

Russell W. Bench, Judge
 
 
 
 

______________________________

Judith M. Billings, Judge
 
 
 
 

______________________________

Pamela T. Greenwood, Judge

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