Kruitbosch v. Galetka

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Gary Taylor Kruitbosch,
Petitioner and Appellant,

v.

Hank Galetka, Utah State Prison, and State of Utah,
Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010541-CA

F I L E D
January 17, 2002 2002 UT App 15 -----

First District, Brigham City Department
The Honorable Clint S. Judkins

Attorneys:
Gary Taylor Kruitbosch, Ogden, Petitioner Pro Se
Mark Shurtleff and Erin Riley, Salt Lake City, for Respondents

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Before Judges Billings, Davis, and Thorne.

PER CURIAM:

This matter is before the court on Respondents' motion for summary affirmance. See Utah R. App. P. 10(a)(2). Petitioner filed a petition for extraordinary relief under Rule 65C of the Utah Rules of Civil Procedure, claiming (1) that his plea of guilty to sexual abuse of a child was involuntary due to mental illness; (2) that the police arrested the wrong person in the case; (3) that the trial court failed to inform Petitioner that he had thirty days to attempt to withdraw his plea (and also failed to inform Petitioner of other constitutional rights); (4) that the trial court had no jurisdiction to accept the plea or to sentence Petitioner; and (5) that the judgment was never properly signed by the court. The trial court denied the petition, after a hearing, on the basis that all of Petitioner's claims either were raised, or could have been raised, on direct appeal or in prior petitions for relief. See Utah Code Ann. §78-35a-106(1)(d)(2000 Supp.). We agree.

In post-conviction proceedings, the burden is on the Petitioner to show the proceedings and judgment were in error. See State v. Adams, 830 P.2d 306, 308 (Utah Ct. App. 1992). Petitioner failed to demonstrate that he did not, or could not, have previously raised these claims on direct appeal or in prior petitions for relief. Petitioner filed no direct appeal, and he has filed several petitions for writs of habeas corpus in state and federal courts. Further, Petitioner does not contend that the issues were not previously raised due to ineffective assistance of counsel. See Utah Code Ann. §78-35a-106(2)(2001 Supp.). Therefore, Respondent's motion for summary affirmance of the trial court's denial of the petition for extraordinary relief is granted.
 
 

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Judith M. Billings,
Associate Presiding Judge
 
 

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James Z. Davis, Judge
 
 

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William A. Thorne, Jr., Judge