Bird v. State of Utah

----ooOoo----

Paul Bird,
Plaintiff and Appellant,

v.

State of Utah,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000256-CA

F I L E D
June 29, 2000
  2000 UT App 209 -----

Fourth District, Provo Department
The Honorable Lynn W. Davis

Attorneys:
Paul Bird, Draper, Appellant Pro Se
Jan Graham and Erin Riley, Salt Lake City, for Appellee

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Before Judges Greenwood, Davis, and Orme.

PER CURIAM:

Appellant Paul Bird appeals the denial of a petition for post-conviction relief. The appeal is before the court on a sua sponte motion for summary affirmance.

Following Bird's 1995 conviction for Forcible Sexual Abuse, Judge Ray M. Harding sentenced him to a one-to-fifteen year term in prison. The court suspended the sentence, placing Bird on probation for thirty-six months. While on probation, Bird was convicted in 1996 of two counts of Sexual Abuse of a Child and one count of Distribution of Harmful Material to a Minor. Judge Lynn Davis sentenced Bird to two terms of one-to-fifteen years on the sexual abuse counts and a term of not to exceed five years on the remaining count. Judge Davis ordered the terms to run consecutively to each other and to any sentence imposed by Judge Harding following probation revocation. Judge Harding subsequently revoked Bird's probation and committed him to serve his original sentence of one-to-fifteen years.

Bird filed a petition for post-conviction relief contending that Judge Harding erred in sentencing him to consecutive sentences. Bird misinterprets the relationship between his sentences. The consecutive sentences were imposed by Judge Davis. Judge Harding later reinstated the original sentence of one to fifteen years following probation revocation.

The Post-Conviction Remedies Act bars any claim for post-conviction relief that "was raised or addressed . . . on appeal" or that "could have been but was not raised . . . on appeal." Utah Code Ann. § 78-35a-106(1)(b) and (c) (1996). The Act makes an exception if "the ground could have been but was not raised at trial or on appeal, if the failure to raise that ground was due to ineffective assistance of counsel." Id. at § 78-35a-106(2) (1996). The issue of consecutive sentences could have been raised in a direct appeal from the 1996 conviction and sentence to consecutive terms by Judge Davis. Bird makes no claim that the failure to appeal was the result of ineffective assistance of counsel.

The trial court did not err in ruling that the petition for post-conviction relief was procedurally barred. However, the trial court also considered the merits of Bird's claims and determined that the sentencing court imposed consecutive sentences only after consideration of the factors enumerated in Utah Code Ann. § 76-3-401(4) (1999). The court correctly concluded that the sentencing court did not abuse its discretion in sentencing Bird to consecutive sentences.

Accordingly, we affirm the dismissal of the petition for post-conviction relief.
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
James Z. Davis, Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge