Godfrey v. State

Godfrey v. State

IN THE UTAH COURT OF APPEALS
 

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James C. Godfrey,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040856-CA
 

F I L E D
(March 17, 2005)
 

2005 UT App 124

 

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Second District, Ogden Department

The Honorable Ernest W. Jones

Attorneys: James C. Godfrey, Gunnison, Appellant Pro Se

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

    James C. Godfrey appeals the trial court's summary dismissal of his petition for post-conviction relief.

    A person is not eligible for post-conviction relief based on any ground that was raised, or could have been but was not raised, at trial or on direct appeal. See Utah Code Ann. § 78-35a-106(1)(b)-(c) (2002). In his petition, Godfrey alleged that he received ineffective assistance of counsel because his trial counsel failed to object to a lineup identification, failed to properly cross-examine witnesses, and failed to call appropriate witnesses. In his direct appeal, Godfrey raised an ineffective assistance claim. Thus, his petition claims regarding ineffective assistance of trial counsel are barred because they were already raised, or could have been raised, in his direct appeal.

    Godfrey also asserts in his petition that his appellate counsel was ineffective because of failure to challenge the lineup identification, failure to file a rule 23B motion regarding trial counsel, and failure to challenge the admission of his prior conviction. The admissibility of Godfrey's prior conviction was raised in his direct appeal and is therefore barred. Further, his other claims of ineffective assistance of appellate counsel are time barred. A petitioner may be entitled to post-conviction relief only if the petition is filed within one year after the cause of action has accrued. See id. § 78-35a-107(1) (2002). Godfrey's action, if any, accrued when his petition for certiorari was denied by the Utah Supreme Court in 1999. His petition was filed in 2003, well beyond the one-year time frame.

    Godfrey also asserts that there was no probable cause for his arrest, that the two counts of criminal activity should have been merged, and that the prosecution used false testimony. The issue of probable cause was raised in his direct appeal and is thus barred. The other issues could have also been raised on direct appeal and are therefore also barred.

    Godfrey's primary contention in his petition is that newly discovered evidence should result in relief. He argues that the trial court erred in determining that the new evidence, an affidavit of the investigating detective given in a public records matter, did not significantly differ from the detective's trial testimony because the court went beyond the face of the petition and evaluated the merits. See Moench v. State, 2002 UT App 333,¶¶7-8, 57 P.3d 1116 (holding trial court erred in summarily dismissing petition on its merits). A trial court may summarily dismiss a petition for post-conviction relief if the trial court finds it to be frivolous on its face. See Utah R. Civ. P. 65C(g)(2). A petition is frivolous on its face when, "based solely on the allegations contained in the pleadings and attachments, it appears that . . . the facts alleged do not support a claim for relief as a matter of law [or] the claims have no arguable basis in fact." Id.

    The trial court's determination that the affidavit did not significantly differ from the trial testimony is, in essence, a determination that Godfrey's claim of perjury has no arguable basis in fact. The trial court could properly make this determination because both the affidavit and the trial testimony were attached to the petition and were available for review as part of the petition. Unlike the Moench court, the trial court did not go beyond the face of the petition and attachments to determine whether Godfrey's claim was frivolous.

    Furthermore, Godfrey's "new evidence" is insufficient to warrant post-conviction relief under Utah Code section 78-35a-104(1)(e). For new evidence to provide grounds for relief, a petitioner must show that the evidence was not available in time for trial or appeal; the evidence is not merely cumulative; the evidence is not merely impeachment evidence; and that, in light of all the evidence, the new evidence demonstrates that no reasonable person could have found the petitioner guilty. See Utah Code Ann. § 78-35a-104(1)(e) (2002). Godfrey asserts that the detective's affidavit shows that the detective perjured himself at trial because of inconsistencies in details about the search for the license plate number. This new evidence is merely impeachment evidence and is thus not sufficient for post-conviction relief. See Wicham v. Galetka, 2002 UT 72,¶13, 61 P.3d 978 (noting newly discovered evidence does not warrant a new trial where its only use is impeachment).

    Additionally, at the time of trial, Godfrey had notes from a private investigator that provided details of the license plate search that showed the same inconsistencies Godfrey now alleges as new evidence. Also, the prosecution introduced an exhibit at trial showing the search results for a license plate series and identifying one-third of those as trucks. Therefore, the discrepancies in the detective's testimony regarding the license plate search and results were already known at the time of trial. As a result, the new evidence is also merely cumulative to evidence that was known to Godfrey at the time of trial.

    Finally, Godfrey has not shown that, "viewed with all the other evidence, the newly discovered material evidence demonstrates that no reasonable trier of fact could have found [Godfrey] guilty." Utah Code Ann. § 78-35a-104(1)(e)(iv). Godfrey has not even acknowledged the evidence against him. He has not met his burden to show that the new evidence warrants post-conviction relief.

    In sum, the trial court did not err in summarily dismissing Godfrey's petition. Godfrey's claims were either barred or frivolous on their face. Accordingly, the dismissal of Godfrey's petition is affirmed.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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William A. Thorne, Judge