Gamblin v. State of Utah

----ooOoo----

James R. Gamblin,
Petitioner and Appellant,

v.

State of Utah,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010507-CA

F I L E D
March 14, 2002 2002 UT App 77 -----

Third District, Salt Lake Department
The Honorable Glenn K. Iwasaki

Attorneys:
James R. Gamblin, Draper, Appellant Pro Se
Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee

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Before Judges Bench, Orme, and Thorne.

PER CURIAM:

This matter is before the court on a sua sponte motion for summary disposition pursuant to Rule 10(a)(2) of the Utah Rules of Appellate Procedure. Petitioner appeals the order granting the State's motion to dismiss his post-conviction petition filed under Rule 65C of the Utah Rules of Civil Procedure. Petitioner's conviction was previously affirmed on direct appeal. See State v. Gamblin, 2000 UT 44, 1 P.3d 1108.

Petitioner first asserts that the post-conviction court erred in finding that he was not prejudiced by appellate counsel's inadequate briefing. However, the post-conviction court correctly found that Petitioner was not prejudiced because the Utah Supreme Court addressed the merits of the arguments on appeal despite the inadequate briefing. See id. at ¶¶7-8 (noting brief did not comply with rule 24, but choosing to further address arguments in the interests of justice).

Petitioner also asserts that appellate counsel was ineffective because he failed to raise the issue that Petitioner felt the judge was biased against him and therefore he was compelled to enter a guilty plea. Petitioner did not present this issue in his rule 65C petition, but did raise it orally at the hearing. However, Petitioner previously raised and argued this same claim in both his motion to withdraw his plea and on direct appeal. See id. at ¶¶3, 15, 18. Consequently, this issue is procedurally barred because it "was raised or addressed . . . on appeal." Utah Code Ann. § 78-35a-106(1)(b) (1996).

Next, Petitioner argues that the post-conviction court erred in finding that appellate counsel was not ineffective based upon Petitioner's claims of lack of contact during the appeal. Again, the court correctly found that Petitioner's subjective expectation about the amount of contact his attorney should have maintained did not rise to the level of ineffectiveness, especially when appellate review is limited to the record on appeal. See State v. Pliego, 1999 UT 8,¶17, 974 P.2d 279 ("An appellate court's 'review is . . . limited to the evidence contained in the record on appeal.'" (quoting Wilderness Bldg. Sys., Inc. v. Chapman, 699 P.2d 766, 768 (Utah 1985))). Furthermore, the post-conviction court properly concluded that Petitioner failed to show any prejudice because he did not specify what additional appellate claims should have been included in the appeal and how those claims would have produced a more favorable outcome. See State v. Maestas, 2000 UT App 22, ¶19, 997 P.2d 314 ("Having failed to show that the errors of his trial counsel resulted in prejudice, defendant's ineffective assistance of counsel claim fails.").

Finally, Petitioner argues that the post-conviction court improperly dismissed his claim of ineffective assistance of counsel at the hearing to withdraw his guilty plea. On direct appeal, this issue was addressed in a motion filed under Rule 23B of the Utah Rules of Appellate Procedure, which the supreme court denied. Consequently, this issue is procedurally barred because it "was raised or addressed . . . on appeal." Utah Code Ann. § 78-35a-106(1)(b). The claim is further barred because Petitioner had different counsel on appeal, thus the claim "could have been but was not raised . . . on appeal." Utah Code Ann. § 78-35a-106(1)(c); see also State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991) ("[I]neffective assistance of trial counsel should be raised on appeal if the trial record is adequate to permit decision of the issue and defendant is represented by counsel other than trial counsel."). Accordingly, the post-conviction court properly dismissed this claim as procedurally barred because it was raised or could have been raised on direct appeal. See Utah Code Ann. § 78-35a-106(1).

Petitioner has failed to demonstrate that the court erred in dismissing his rule 65C petition for post-conviction relief. Petitioner failed to show any prejudice due to counsel's alleged deficient performance. See Maestas, 2000 UT App 22 at ¶19. All of the other post-conviction issues Petitioner raised have been previously raised or should have been raised on direct appeal, and thus, they were procedurally barred. See Utah Code Ann. § 78-35a-106(1). Consequently, Petitioner fails to present any meritorious issues for appellate review.

Affirmed.
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge
 
 

______________________________
William A. Thorne Jr., Judge