Hutchings v. State of Utah

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Hutchings v. Stateof Utah, Case No. 20000994-CA, Filed March 22, 2001 IN THE UTAH COURT OF APPEALS

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Larry L. Hutchings,
Petitioner and Appellant,

v.

State of Utah,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000994-CA

F I L E D
March 22, 2001 2001 UT App 95 -----

Seventh District, Castle Dale Department
The Honorable Bruce K. Halliday

Attorneys:
Larry L. Hutchings, Draper, Appellant Pro Se -----

Before Judges Bench, Billings, and Orme.

PER CURIAM:

Hutchings was convicted in 1992 following guilty pleas to two second degree felony counts of Sexual Abuse of a Child. His probation was revoked in 1996. Based upon Hutchings' failure to file a docketing statement, this court dismissed a direct appeal from the probation revocation (Case No. 960726-CA) on December 9, 1996. Hutchings then filed his first petition for post-conviction relief in January of 1997, challenging the probation revocation on the merits and on procedural grounds. This court affirmed the district court's dismissal of that petition. See Hutchings v. State, No. 970479-CA, slip op. (Utah Ct. App. Jan. 23, 1998). Although noting that the trial court's dismissal of the direct appeal raising essentially the same issues was appropriate, this court concluded that the claims in the petition for extraordinary relief also failed on the merits. In November of 1999, Hutchings filed a second petition for extraordinary writ directly in the Utah Supreme Court, stating that he had been unable to obtain relief from either the district court or this court. After the supreme court's transferred the petition to district court, the petition was dismissed and this appeal followed.

The Post-Conviction Remedies Act, Utah Code Ann. §§ 78-35a-101 to -110 (1996), is dispositive. Section 78-35a-106(1) precludes relief on any ground that was "raised or addressed. . . on appeal" or "could have been but was not raised on appeal" or "was raised or addressed in any previous request for post-conviction relief or could have been, but was not raised in a previous request for post-conviction relief."

The claims Hutchings raised in his second petition were either raised and addressed, or could have been raised, in either the direct appeal from the probation revocation, the first petition for post-conviction relief, or the appeal from dismissal of that petition. The second petition repeats claims raised and addressed in prior proceedings including a claim that his probation terminated in July of 1995, and claims of procedural irregularities in the revocation proceedings. The remaining claims could have been raised in the prior proceedings. Given the preclusive effect of section 78-35a-106, Hutchings may not continue to obtain review of claims that were either raised or could have been raised on direct appeal or in previous post-conviction proceedings and the appeal therefrom.

The district court considered and rejected a claim that the sentence imposed was illegal. See Utah R. Crim. P. 22(e). The district court concluded that the judgment incorrectly recited that Hutchings entered a guilty plea to one first degree felony and one second degree felony, rather than guilty pleas to two second degree felonies. The sentence, however, correctly reflected the conviction for two second degree felonies, as did subsequent proceedings on probation revocation. The trial court did not err in concluding the sentence was not illegal.

Hutchings contends this court cannot act until the Utah Supreme Court transfers the appeal to this court. The appeal, however, is within the original jurisdiction of this court under Utah Code Ann. § 78-2a-3(2)(f)(1996), and no transfer from the supreme court is necessary to vest this court with jurisdiction.

We affirm the dismissal.
 
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Judith M. Billings, Judge
 
 

______________________________
Gregory K. Orme, Judge