Lacombe v. Kennard

----ooOoo----

Patricia A. Lacombe,
Petitioner and Appellant,

v.

Aaron Kennard, Salt Lake County Sheriff,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000505-CA

F I L E D
May 24, 2001 2001 UT App 168 -----

Third District, Salt Lake Department
The Honorable Tyrone E. Medley

Attorneys:
Patricia A. Lacombe, Salt Lake City, Appellant Pro Se
David E. Yocom and T.J. Tsakalos, Salt Lake City, for Appellee

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Before Judges Greenwood, Billings, and Davis.

PER CURIAM:

Appellant Patricia A. Lacombe appeals the dismissal of her petition for a writ of habeas corpus, which sought to collaterally challenge the 1998 revocation of her original probationary term. This case is before the court on a sua sponte motion for summary disposition.

Relying upon State v. Grate, 947 P.2d 1161 (Utah Ct. App. 1997), Lacombe claims that she did not receive the required notice of the probation violation charge prior to the termination of the probation term. The district court summarily dismissed the petition as moot because Lacombe had been released from jail prior to the submission of the petition to the court for a ruling. Appellee urges summary dismissal of the appeal as moot and also contends the district court lacked jurisdiction over the case based on Lacombe's failure to serve the petition. We decline to adopt either ground.

Lacombe's release from jail did not moot her challenge to the 1998 revocation of her probation if her probation was not also terminated. If Lacombe were to succeed on the merits of the petition, her probation would be deemed to have terminated in February of 1998. Similarly, the argument that failure to serve the petition defeated the jurisdiction of the district court and this court is without merit. Rule 65C of the Utah Rules of Civil Procedure allows a district court to summarily dismiss a petition for post-conviction relief prior to service. See Utah R. Civ. P. 65C(g). Accordingly, "[i]f, on review of the petition, the court concludes that all or part of the petition should not be summarily dismissed, the court shall designate the portions of the petition that are not dismissed and direct the clerk to serve a copy of the petition." Utah R. Civ. P. 65C(h). The court had jurisdiction to consider and summarily dismiss the petition prior to its service, and Lacombe may appeal that decision.

Nevertheless, we may affirm the district court on alternative grounds. See, e.g., DeBry v. Noble, 889 P.2d 428, 444 (Utah 1995) ("[A]n appellate court may affirm a trial court's ruling on any proper grounds, even though the trial court relied on some other grounds."). Lacombe failed to either appeal the 1998 probation revocation or to file a motion to correct illegal sentence in the criminal case pursuant to Rule 22(e) of the Utah Rules of Criminal Procedure, as was done in Grate. See Grate, 947 P.2d at 1163; see also Utah R. Civ. P. 22(e) ("The court may correct an illegal sentence, or a sentence imposed in an illegal manner, at any time.") Accordingly, the petition for post-conviction relief was properly dismissed because claims challenging the probation revocation proceeding should have been pursued in a direct appeal or in a motion to correct an illegal sentence. See Utah Code Ann. § 78-35a-106(1)(a), (c) (1996) (precluding post-conviction relief if claim may be raised by post-trial motion or could have been but was not raised at trial or on appeal).

We affirm the dismissal of the petition.
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 

______________________________
James Z. Davis, Judge