Candelaria v. State

Candelaria v. State

IN THE UTAH COURT OF APPEALS

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Bernabe Candelaria,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION (Not For Official Publication)
 

Case No. 20030472-CA
 

F I L E D
(October 2, 2003)
 

2003 UT App 323

 

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Second District, Ogden Department
The Honorable Pamela G. Heffernan

Attorneys: Bernabe Candelaria, Draper, Appellant Pro Se

Mark L. Shurtleff, Erin Riley, and Annina M. Mitchell, Salt Lake City, for Appellee

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Before Judges Jackson, Greenwood, and Orme.

PER CURIAM:

This case is before the court on its own motion for summary affirmance. The State filed a response to this court's motion. Candelaria, in his response to this court's motion, simply reasserts the same argument made in the trial court. However, for the first time, he also argues that there is a conflict of interest when the same judge who presided over his trial also decides his petition for extraordinary relief. This issue is not properly before this court because it was not preserved below. See Smith v. Four Corners Mental Health Ctr., 2003 UT 23,¶19, 70 P.3d 904; State v. Archambeau, 820 P.2d 920, 922 (Utah Ct. App. 1991); Olson v. Park-Craig-Olson, 815 P.2d 1356, 1357 (Utah Ct. App. 1991).

Candelaria also complains that the trial court has not yet ruled on his claim that the State was untimely in its response to his petition for extraordinary relief. This claim is not before this court. See id.

Candelaria has not persuasively explained how the trial court erred in dismissing his petition. The trial court summarily dismissed several of his claims as having already been addressed by this court on direct appeal of his convictions. See State v. Candelaria, 2002 UT App 141. The trial court dismissed several other claims because they were simply criticisms of this court's decision on direct appeal.

The court concluded four of the claims merited response from the State. These claims alleged ineffective assistance of appellate counsel in failing to raise various claims on appeal. After receiving the State's response and Candelaria's reply, the court determined that Candelaria had not made a claim that, if true, would provide the basis for a claim of ineffective assistance of counsel. See Rudolph v. Galetka, 2002 UT 7,¶7, 43 P.3d 467. He has not demonstrated that this conclusion was in error.

We summarily affirm the dismissal of Candelaria's petition for extraordinary relief.

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Norman H. Jackson,

Presiding Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge