Oliver v. State

Oliver v. State

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

Gary Lee Oliver,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040320-CA
 

F I L E D
(October 15, 2004)
 

2004 UT App 360

 

-----

Third District, Salt Lake Department

The Honorable Frank G. Noel

Attorneys: Gary Lee Oliver, Draper, Appellant Pro Se

Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee

-----

Before Judges Davis, Jackson, and Orme.

PER CURIAM:

This case is before the court on its own motion for summary affirmance on the basis that the issues presented on appeal are so insubstantial as to not merit further consideration by the court. See Utah R. App. P. 10. The district court determined that the petition was untimely and that, even if it had been timely, the State was entitled to summary judgment.

The petition was determined to be untimely because the one-year statute of limitations on post-conviction remedies became effective on April 29, 1996. Oliver was sentenced on January 20, 1997, after the statute of limitations became effective. According to the district court, Oliver had until April 29, 1997 to file a post-conviction petition. He did not file until September 3, 2002. The court further found that Oliver did not meet the "interests of justice" exception to the statute of limitations.

Despite the finding that the petition was untimely, the district court went on to address whether, assuming the petition had been timely filed, the State would be entitled to summary judgment. Oliver's claims were that: he was under the influence of a psychotropic drug, given in the jail, that impaired his ability to understand the change of plea; he was denied his right of appeal; the State failed to fulfill the terms of the plea agreement; and he received ineffective assistance of counsel in the plea and sentencing.

The district court, after reviewing the plea colloquy, determined that Oliver understood the proceedings. The court also determined that Oliver had not been deprived of his right to counsel because he had no right to appeal the sentence on the ground that his plea was invalid.

The district court determined that the State had fulfilled the terms of the plea agreement. The sentencing court declined to follow the recommendation of reducing the conviction, but did follow the recommendation not to impose a gun enhancement onto the five to life sentence. Further, Oliver was informed at the change of plea that the court is not bound to follow any recommendation.

The court also determined that counsel was not ineffective. Counsel correctly informed Oliver that he could only move to withdraw his plea within thirty days of entry of the plea. This was the state of the law at the time Oliver was advised. The court also indicated that Oliver failed to demonstrate that he was prejudiced even if counsel had been ineffective.

Oliver has not demonstrated that these findings were erroneous. Oliver claims that to impose the statute of limitations on post-conviction petitions on him would be retroactive application of the statute. However, the statute went into effect before his sentencing and, therefore, is not retroactively imposed.

Oliver selects one phrase of the prosecutor's argument at the sentencing and change of plea hearing to support his argument that the prosecutor failed to fulfill the terms of the plea agreement. Review of the entire transcript shows that the prosecutor did fulfil the terms of the agreement, which was to recommend that Oliver be sentenced a degree lower with imposition of a gun enhancement, or, if Oliver was sentenced to five to life, to recommend life in prison with no gun enhancement.

The district court was correct in determining that Oliver had not received ineffective assistance of counsel. Oliver was correctly advised of the state of the law regarding withdrawal of a plea as it existed at the time he was advised. Moreover, Oliver has not demonstrated, as he claims, that counsel was a "tool" of the State, nor has he shown that counsel's actions prejudiced him in any way.

We, therefore, summarily affirm the ruling of the district court.

______________________________

James Z. Davis, Judge

______________________________

Norman H. Jackson, Judge

______________________________

Gregory K. Orme, Judge