Kelley v. State

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Kelley v. State



Gene Michael Kelley,
Petitioner and Appellant,


State of Utah,
Respondent and Appellee.

(Not For Official Publication)

Case No. 20010333-CA

(December 28, 2001)

2001 UT App 416



Second District, Farmington Department
The Honorable Jon M. Memmott

Gene Michael Kelley, Draper, Petitioner Pro Se
Melvin C. Wilson and Gary O. McKean, Farmington, for Respondent


Before Judges Greenwood, Billings, and Davis.


Petitioner Gene Kelley filed numerous petitions in the trial court for extraordinary relief related to conditions of confinement in the Davis County Jail. See Utah R. Civ. P. 65B(c). His claims include: refusal of the jail to forward Petitioner's mail to him at the Utah State Prison, refusal of access to postage and mail privileges, refusal to provide a timely haircut, meals provided that had insufficient calorie count, refusal to provide phone access as needed, refusal to provide a medically indicated mattress, refusal to move Petitioner out of medical tier for, allegedly retaliatory reasons, and ineffective assistance of counsel in his criminal case. After filing the petitions, Petitioner was transferred to the Utah State Prison.

With respect to Petitioner's claim of ineffective assistance of counsel, the trial court concluded that because an appeal has been filed in Petitioner's criminal case, the claim should be dismissed. The trial court apparently concluded that the filing of an appeal necessarily afforded a plain, speedy, and adequate remedy by providing a means to consider the ineffectiveness claim. However, the trial court did not make a record as to whether petitioner has raised the issue of ineffective trial counsel in direct appeal of Petitioner's criminal conviction, in which case, he would be precluded from asserting the issue in the petition. The court also did not make any finding that Petitioner could actually have raised the issue of ineffective trial counsel on direct appeal. A claim of ineffectiveness of trial counsel can be raised on direct appeal only where (1) Petitioner has different counsel on appeal from counsel at the trial level, and (2) the trial court record is adequate to determine the ineffective assistance claim. See State v. Litherland, 2000 UT 76,¶12-13, 12 P.3d 92. State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991). If the ineffectiveness claim could not have been raised on direct appeal, then the claim could be asserted in the petition and should not have been dismissed without a hearing. The trial court had an insufficient factual basis to dismiss the claim as facially frivolous. The case is reversed and remanded on this claim for further factual findings and proceedings in accordance with Humphries and Litherland.

With respect to the issue of petitioner's mail not being forwarded to him at the prison, the trial court ordered the Assistant Davis County Attorney to investigate and remedy the error. The court granted Petitioner relief.

With respect to the remaining claims, the trial court ruled they were rendered moot by Petitioner's transfer to the Utah State Prison. All of Petitioner's claims relate to conditions of his confinement in Davis County Jail. In Duran v. Morris, 635 P.2d 43, 45 (Utah 1981), the Petitioner challenged conditions of confinement related to his placement in maximum security. At the time of appeal, petitioner had been transferred to medium security placement. In determining the issues were rendered moot by the move, the Utah Supreme Court noted that internal prison administrative decisions entail no collateral legal consequences such as those relating to a criminal conviction. See id. The court extended this policy to moves from one facility to another. See id. In this case, the claims raised by Petitioner are likewise rendered moot by his move to the Utah State Prison. Further, the issues presented in the petition are neither likely to reoccur nor have far reaching public interest.

Therefore, the rulings of the trial court are affirmed and the petition for extraordinary relief is denied as to all claims except the claim of ineffective assistance of trial counsel.

This claim is reversed and remanded for further factual determination and proceedings as detailed in this decision.

Pamela T. Greenwood, Presiding Judge

Judith M. Billings, Judge

James Z. Davis, Judge