Sherratt v. Friel

Sherratt v. Friel

IN THE UTAH COURT OF APPEALS

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William H. Sherratt,
Petitioner and Appellant,

v.

Clint Friel, Warden, Utah State Prison,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020739-CA

F I L E D
(July 25, 2003)

2003 UT App 269

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Fifth District, Cedar City Department

The Honorable Robert T. Braithwaite

Attorneys: William H. Sherratt, Appellant Pro Se

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Before Judges Davis, Greenwood, and Thorne.

PER CURIAM:

Petitioner William H. Sherratt appeals the dismissal of his petition for post-conviction relief and the denial of his motion to recuse Judge Braithwaite. This case is before the court on its own motion for summary affirmance. See Utah R. App. P. 10(e).

If a claim for post-conviction relief is facially frivolous, the court must dismiss the claim. See Moench v. State, 2002 UT App 333,¶6, 57 P.3d 1116. Further, any claim that was or could have been raised at trial or on direct appeal "may not be raised . . . in a post-conviction relief proceeding absent unusual circumstances." Rudolph v. Galetka, 2002 UT 7,¶5, 43 P.3d 467 (per curiam); see Utah Code Ann. § 78-35a-106(1)(b)-(c) (2002).

Petitioner contends the district court improperly dismissed his claim that the trial court lacked jurisdiction. Petitioner contends the trial court did not have jurisdiction because the record does not indicate that the information was sworn. The information must be sworn to by a person having reason to believe that an offense has been committed. See Utah R. Crim. P. 4(a). In his supplemental memorandum in support of his motion to recuse, Petitioner acknowledged that the prosecutor swore to the information. Moreover, "defects . . . in the charging information . . . were waived when they were not brought to the attention of the trial court prior to the trial." Robbins v. Cook, 737 P.2d 225, 225 (Utah 1987) (per curiam). Therefore, the district court did not err by dismissing Petitioner's jurisdiction claim. See Utah R. Civ. P. 65C(g)(2)(A).

Petitioner next contends that a letter from church officials and a Division of Child and Family Services report are newly discovered evidence that entitle him to post-conviction relief. "Because [Petitioner] relies on [the letter and the report] for nothing more than to impeach the victim's testimony," they do not entitle Petitioner to post-conviction relief. Wickham v. Galetka, 2002 UT 72,¶15, 61 P.3d 978.

Petitioner alleges the shorts the victim threw away after he allegedly raped her the first time have been discovered and warrant post-conviction relief. Petitioner fails to allege that the shorts could not have been "discovered through the exercise of reasonable diligence." Utah Code Ann. § 78-35a-104(1)(e)(i) (2002). Moreover, Petitioner does not allege that the discovery of the shorts "negate[s] a specific element of the prosecution's case," Wickham, 2002 UT 72 at ¶14, or can be used "for some other non-impeachment purpose." Julian v. State, 2002 UT 61,¶20, 52 P.3d 1168. Further, Petitioner has not sought to have any DNA tested in accordance with the post-conviction relief statute. See Utah Code Ann. § 78-35a-301 (2002).

Petitioner also contends that he is entitled to post-conviction relief because his trial was fundamentally unfair. He claims Judge Braithwaite was biased because he bound Petitioner over for trial. He further contends that in closing argument, the prosecutor vouched for witnesses and used "religious icons" and "key-words." Although Petitioner's bias and prosecutorial misconduct claims should have been raised on direct appeal, see Rudolph, 2002 UT 7 at ¶5, Petitioner properly raised these claims "through an allegation of ineffective assistance of counsel at trial and on appeal" because "he was represented by the same counsel" at trial and on appeal. Id. at ¶7; see Utah Code Ann. § 78-35a-106(2).

Petitioner claims that his counsel was ineffective because he failed to object to Judge Braithwaite presiding and to the prosecutor's closing statements. To establish that his counsel was ineffective, Petitioner "must prove that his counsel's performance fell below an objective standard of reasonable professional judgment" and that the deficient performance prejudiced him. Moench, 2002 UT App 333 at ¶10. Further, a claim for post-conviction relief "is frivolous on its face when, based solely on the allegations contained in the pleadings and attachments, it appears that" "the claim[ has] no arguable basis in fact." Utah R. Civ. P. 65C(g)(2). Petitioner fails to allege any facts that indicate that Judge Braithwaite was biased. Further, the petition attachments establish that the prosecutor did not improperly vouch for the witnesses or emphasize the victim's "religious motives." See State v. Bakalov, 1999 UT 45, ¶57, 979 P.2d 799 (noting prosecutor may make assertions about what jurors should infer from evidence). Therefore, Petitioner's claims that his counsel was ineffective because he failed to object to Judge Braithwaite presiding or to the prosecutor's closing statements have no factual basis. See Codianna v. Morris, 660 P.2d 1101, 1109 (Utah 1983) ("[T]he failure of counsel to make . . . objections which would be futile . . . does not constitute ineffective assistance." (quotations and citation omitted)).

Petitioner contends that his counsel was also ineffective because he failed to contact witnesses. Petitioner does not allege facts that demonstrate either deficient performance or resulting prejudice.

Petitioner contends his counsel was ineffective because he failed to supply an Anders brief. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Because counsel filed a regular appellate brief, he was not required to file an Anders brief.

We have considered Petitioner's other claims for post-conviction relief and conclude that the district court properly dismissed those claims. See Indian Vill. Trading Post, Inc. v. Bench, 929 P.2d 367, 369 (Utah Ct. App. 1996) (noting this court does not need to address in writing every issue raised).

For the first time on appeal, Petitioner claims the district court violated his right to due process by dismissing his petition before the date scheduled for "paper review." In general, "we will not consider issues raised for the first time on appeal." Julian v. State, 966 P.2d 249, 258 (Utah Ct. App. 1998). Further, Petitioner has not established prejudice by the dismissal before the date scheduled for "paper review."

Finally, Petitioner claims that Judge Eves erred by denying his motion to recuse Judge Braithwaite in post-conviction proceedings. However, rule 65C(f) of the Utah Rules of Civil Procedure required the petition to be assigned to Judge Braithwaite as sentencing judge. Further, Petitioner failed to "produce[] a scintilla of evidence to indicate any bias or prejudice on the part of Judge [Braithwaite]." State v. McGee, 24 Utah 2d 396, 473 P.2d 388, 390 (1970).

Accordingly, we affirm the dismissal of the petition for post-conviction relief as frivolous. We also affirm the denial of the motion to recuse Judge Braithwaite.

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge