Barker v. State DoC

----ooOoo----

Daniel Barker,
Petitioner and Appellant,

v.

State of Utah, Department of Corrections,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010652-CA

F I L E D
January 4, 2002 2002 UT App 2 -----

Fifth District, St. George Department
The Honorable G. Rand Beacham

Attorneys:
Daniel Barker, Las Vegas, Nevada, Petitioner Pro Se -----

Before Judges Billings, Davis, and Greenwood.

PER CURIAM:

Petitioner filed for extraordinary relief under Rule 65B(b) and (d) of the Utah Rules of Civil Procedure, claiming he received ineffective assistance of counsel at the trial and appellate level, and claiming that the sentence imposed from his criminal conviction was illegal. The trial court dismissed all of his claims as facially frivolous and failing to state a claim upon which relief may be granted. Because this appeal involves the trial court's interpretation of Rule 65B(c)(5), which allows the court to dismiss petitions which are frivolous on their face, the issue is a question of law, reviewed for correctness, affording no deference to the trial court. See Alvarez v. Galetka, 933 P.2d 987, 989 (Utah 1997); Lancaster v. Utah Bd. of Pardons, 869 P.2d 945, 947 (Utah 1994). Further, a dismissal for failure to state a claim upon which relief can be granted involves the sufficiency of the pleadings, not the merits of the case. Alvarez, 933 P.2d at 989. The reviewing court must accept all factual allegations in the complaint as true and consider them and all reasonable inferences in the light most favorable to the petitioner. See id.

Petitioner claims he received ineffective assistance of counsel in the trial court. Petitioner alleges a sufficient factual basis to have received a hearing on his claim of ineffective assistance of trial counsel. A possibility exists that, if Petitioner could substantiate his claim, the facts could support an ineffective assistance of counsel claim. When viewed in the light most favorable to Petitioner, the facts allege deficient performance by counsel and prejudice to Petitioner because he would not have accepted the State's offer. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), (adopted by Utah in State v. Templin, 805 P.2d 182, 186 (Utah 1990)). The court erred in dismissing this claim as frivolous on its face without affording Petitioner a hearing on the claim.

Petitioner claims he received ineffective assistance of counsel at the appellate stage because the court did not appoint counsel for his petition and, had he been appointed counsel, his petition would have been framed to avoid dismissal as frivolous on its face. Petitioner is not legally entitled to appointment of counsel on a petition for extraordinary relief. See Utah Code Ann. § 77-32-304(2)(2000). The trial court correctly dismissed this claim for failure to state a claim upon which relief can be granted.

Petitioner also claims that the consecutive sentences imposed on him by the sentencing court were illegal. He claims the sentence imposes a term which cannot be served because, according to Petitioner, it amounts to 113 years in custody. Further, Petitioner claims that the sentence amounts to a life term, which is not legal for his convictions. Petitioner fails to state a claim for which relief can be granted and this claim was properly dismissed as facially frivolous by the court.

Therefore, the dismissal of the claim of ineffective assistance of counsel at the trial level is reversed and remanded for further hearing in accordance with our decision. The claim that the court imposed an illegal sentence by ordering consecutive terms and the claim of ineffective assistance of counsel on appeal are facially frivolous pursuant to Rule 65B(a)(5) of the Utah Rules of Civil Procedure, and the court's dismissal of those claims is affirmed.
 
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge
 
 
 

______________________________
Pamela T. Greenwood, Judge