State v. Peterson

State v. Peterson

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Joseph C. Peterson,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040797-CA
 

F I L E D
(December 2, 2004)
 

2004 UT App 456

 

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Third District, Salt Lake Department

The Honorable Deno Himonas

Attorneys: Joseph C. Peterson, Eloy, Arizona, Appellant Pro Se

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Before Judges Billings, Bench, and Orme.

PER CURIAM:

    Joseph Peterson appeals the trial court's order summarily dismissing his petition for coram nobis. This is before the court on its own motion for summary disposition.

    Peterson pleaded guilty to a third degree felony charge in 1998. His sentence was suspended and he was put on probation. His probation terminated in June 2003. In July 2004, Peterson filed his petition for coram nobis alleging that he received ineffective assistance of counsel and that his plea and conviction should be vacated.

    The petition was filed in the sentencing court under the same criminal case number rather than as a new case under rule 65C of the Utah Rules of Civil Procedure. The trial court could have considered the petition substantively as a motion to withdraw Peterson's plea, or as a post-conviction petition pursuant to rule 65C. The specific basis for the trial court's dismissal is unclear. It appears from the record, however, that Peterson's petition was procedurally barred whether construed as a post-conviction petition or as a motion to withdraw a plea.

    Pursuant to the version of Utah Code section 77-13-6 in effect at the time of Peterson's plea, a motion to withdraw a plea must be made within thirty days after the entry of the plea. See Utah Code Ann. § 77-13-6(2)(b) (1994). The effect of section 77-13-6 is to grant a limited opportunity to withdraw a plea. If a motion to withdraw is not filed within the specified time frame, "[t]hereafter, the right is extinguished." State v. Abeyta, 852 P.2d 993, 995 (Utah 1993). If the trial court considered Peterson's petition as a motion to withdraw his plea, the trial court correctly dismissed the petition as untimely.

    Alternatively, if the trial court considered the petition as a post-conviction petition pursuant to the Post-Conviction Remedies Act (Act), see Utah Code sections 78-35a-101 to -110 (2002), and rule 65C, then Peterson's petition was also time barred. Under the Act, a defendant must file a petition within one year after the cause of action has accrued. See Utah Code Ann. § 78-35a-107(1). A cause of action may accrue on "the date on which petitioner knew or should have known, in the exercise of reasonable diligence, of evidentiary facts on which the petition is based." Id. § 78-35a-107(1)(e). Peterson filed his petition more than one year after his case was closed and his sentence terminated, and almost six years after his plea. He asserts that his claim is based on facts that were unknown to him. However, he does not provide dates or factual support for this assertion. Thus, Peterson has not alleged sufficient facts to show that he has timely filed his petition.

    Because Peterson's petition was untimely either as a post-conviction petition or as a motion to withdraw his plea, the trial court correctly dismissed the petition.

    Accordingly, the dismissal of Peterson's petition is affirmed.

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Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

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Gregory K. Orme, Judge