Pearce v. State of Utah

----ooOoo----

Coi Lane Pearce,
Petitioner and Appellant,

v.

State of Utah,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020873-CA

F I L E D
January 30, 2003 2003 UT App 18 -----

Second District, Ogden Department
The Honorable Parley R. Baldwin

Attorneys:
Coi Lane Pearce, Duchesne, Appellant Pro Se
Mark L. Shurtleff and Erin Riley, Salt Lake City, for Appellee -----

Before Judges Davis, Orme, and Thorne.

PER CURIAM:

Petitioner filed for extraordinary relief under rule 65C of the Utah Rules of Civil Procedure. Appellant seeks post-conviction relief from his guilty plea to three counts of Attempted Aggravated Sexual Abuse of a Child. He asserted four grounds in his petition: (1) that his plea of guilty was unlawfully induced, involuntary, and without understanding of the nature of the charges and the consequences of the plea; (2) that his conviction was obtained by use of a coerced confession; (3) that he was denied effective assistance of counsel; and (4) that he was convicted pursuant to an unconstitutional statute related to constitutionally protected conduct.

The trial court dismissed three of the four claims as facially frivolous, but required the State to respond to the allegation of ineffective assistance of counsel. After receiving the response, the trial court dismissed the ineffective assistance of counsel claim.

With respect to all but the ineffective assistance of counsel claim, this court lacks jurisdiction to consider the merits because Appellant did not move to withdraw his plea. Failure to do so "extinguishes a defendant's right to challenge the validity of the guilty plea on appeal." State v. Reyes, 2002 UT 13,¶3, 40 P.3d 630.

Applicable to all four claims is the premise that issues which could have been raised on direct appeal, but were not, may not be raised for the first time in a post-conviction claim. See Rudolph v. Galetka, 2002 UT 7,¶5, 43 P.3d 467. The only exception is when claims were not raised on direct appeal because of ineffective assistance of appellate counsel. See id. at ¶7. Appellant does not allege these claims were not raised due to ineffective assistance of counsel. His ineffective assistance of counsel argument is limited to alleged deficiencies in counsel's representation of Petitioner in connection with his guilty plea.

This court lacks jurisdiction to address three of Appellant's claims and all of the claims are barred from consideration for the reason stated. Therefore, the trial court's dismissal of the petition is summarily affirmed.
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Gregory K. Orme, Judge
 
 

______________________________
William A. Thorne Jr., Judge