Tillman v. State , 719 Utah Adv. Rep. 45 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
ElRoy Tillman, ) MEMORANDUM DECISION
)
Petitioner and Appellant, ) Case No. 20100994‐CA
)
v. ) FILED
) (October 12, 2012)
State of Utah, )
) 2012 UT App 289Respondent and Appellee. )
‐‐‐‐‐
Third District, Salt Lake Department, 090921863
The Honorable Randall N. Skanchy
Attorneys: ElRoy Tillman, Draper, Appellant Pro Se
Mark L. Shurtleff and Thomas B. Brunker, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges Thorne, McHugh, and Christiansen.
McHUGH, Judge:
¶1 ElRoy Tillman appeals from the denial of postconviction relief from his 1983
conviction of capital murder.1 See Utah Code Ann. § 76‐5‐202 (1978) (“Murder in the
first degree”) (current version at id. (Supp. 2012) (“Aggravated murder”)).2 We affirm.
¶2 Tillman was charged by information with capital murder for the May 26, 1982
killing of Mark Schoenfeld. See State v. Tillman (Tillman I), 750 P.2d 546, 550 (Utah 1987).
Schoenfeld’s body was found “lying on a smoldering bed . . . [and] badly burned” from
an intentionally‐set fire, and further examination revealed that he had “received several
severe blows to the head.” Id. “[T]he primary cause of death was asphyxiation” from
the fire, but the evidence also indicated that Schoenfeld could have suffered “fatal brain
damage” from the blows. Id. The information included burglary or aggravated burglary
as aggravating factors to support the capital murder charge.3 However, the State
1
The supreme court, which has original jurisdiction over capital and first degree
felony cases, transferred jurisdiction to this court under Utah Code Ann. § 78A‐3‐102
(Supp. 2012). Although the supreme court may not transfer appeals of capital
convictions to the court of appeals, see id. § 78A‐3‐102(4)(a), it vacated Tillman’s death
sentence and remanded to the trial court for resentencing. Tillman’s post conviction
petition after resentencing is properly before this court because his murder conviction is
not classified as a capital felony under current law. Cf. State v. Doung, 813 P.2d 1168,
1169 (Utah 1991) (“[T]he appeal lies in the court having jurisdiction of the degree of
crime recorded in the judgment of conviction and for which defendant is sentenced,
rather than the degree of crime charged in the information or found in the verdict.”).
2
Aggravated murder was previously labeled “[m]urder in the first degree” and
classified as a “capital offense,” regardless of the penalty sought. See Utah Code Ann.
§ 76‐5‐202(2) (1978). Under the current statute, aggravated murder is a capital felony
only if the State pursues the death penalty. See id. § 76‐5‐202(3)(a) (Supp. 2012).
3
An aggravating factor is a “fact or situation that increases the degree of liability
or culpability for a criminal act.” Black’s Law Dictionary 227 (9th ed. 2009). When Tillman
was charged, the degree of liability for criminal homicide increased to capital murder if
the “homicide was committed while the actor was engaged in the commission of”
certain enumerated crimes, including “aggravated arson, arson, aggravated burglary,
[or] burglary.” Utah Code Ann. § 76‐5‐202(1)(d) (1978) (current version at id. (Supp.
(continued...)
20100994‐CA 2
amended the information at the preliminary hearing to add “arson or aggravated
arson” as aggravating factors. The amended information did not list the elements of the
aggravating crimes. After a trial held in 1983, the jury convicted Tillman of capital
murder and sentenced him to death. See id. at 551. The Utah Supreme Court affirmed
Tillman’s conviction and death sentence in 1987. See id. at 577.
¶3 Tillman filed his first petition for postconviction relief in 1988. In it, he claimed
that the original information was “defective on its face” because it did not “specifically”
charge him with any of the aggravating crimes and because the amendment
compounded “the defects of the already defective information.” Additionally, Tillman
claimed that there was insufficient evidence to support the conviction because his
accomplice (Accomplice) had provided the bulk of the State’s case against him. The
district court denied Tillman’s petition and he appealed. The supreme court affirmed
the district court’s denial of Tillman’s first postconviction petition. See Tillman v. Cook
(Tillman II), 855 P.2d 211, 222 (Utah 1993). In particular, the court held that there was
sufficient evidence to support the arson and burglary aggravating factors, see id. at
218–20; that the addition of the arson aggravator was not prejudical error, see id. at
215–16; and that neither Tillman’s trial counsel nor his appellate counsel were
constitutionally deficient, see id. at 220–22.
¶4 Tillman filed a federal petition for habeas corpus in 1994, the denial of which was
affirmed by the Tenth Circuit Court of Appeals. See Tillman v. Cook, 215 F.3d 1116, 1133
(10th Cir. 2000). While the federal petition was pending, Tillman filed a second state
postconviction action in 1995, which was dismissed by the Utah Supreme Court because
his claims were procedurally barred.
¶5 Tillman challenged his conviction and sentence in a third state postconviction
petition in 2001. The third petition was based on newly discovered evidence in the form
of partial transcripts of interviews with Accomplice. The district court affirmed
Tillman’s conviction but vacated his death sentence due to the State’s failure to provide
3
(...continued)
2012)).
20100994‐CA 3
him the transcripts before trial.4 See Tillman v. State (Tillman III), 2005 UT 56, ¶ 12, 128
P.3d 1123. The State appealed the vacation of Tillman’s death penalty and the Utah
Supreme Court affirmed. See id. ¶¶ 13, 94. Tillman was resentenced to a prison term of
five years to life. However, on October 1, 2009, the Utah Board of Pardons and Parole
issued an order that Tillman serve “Natural Life in Prison.” Tillman filed a federal civil
rights complaint challenging that decision. The federal district court dismissed that
complaint for failing to state a proper claim for relief, and the Tenth Circuit affirmed
that decision. See generally Tillman v. Bigelow, 2012 WL 3262835 (10th Cir. 2012).
¶6 Tillman filed the fourth and current state petition for postconviction relief
without the assistance of counsel on December 21, 2009, raising eight challenges to his
1983 conviction. The district court declined to hold an evidentiary hearing and granted
the State’s motion for summary dismissal, ruling that each claim was time or
procedurally barred. Tillman now appeals, requesting that he either be given a new trial
or have his sentence reduced. “‘We review an appeal from an order dismissing or
denying a petition for post‐conviction relief for correctness without deference to the
lower court’s conclusions of law.’” Gardner v. State, 2010 UT 46, ¶ 55, 234 P.3d 1115(quoting Taylor v. State, 2007 UT 12, ¶ 13, 156 P.3d 739). Additionally, Tillman asserts
that the district court erred in denying his motion for appointment of counsel. Because
“the appointment of counsel in a petition for post‐conviction relief not summarily
dismissed [is left] to the court’s discretion,” we review the district court’s decision for
abuse of discretion. See Hutchings v. State, 2003 UT 52, ¶ 20, 84 P.3d 1150 (citing Utah
Code Ann. § 78‐35a‐109 (1999) (current version at id. § 78B‐9‐109(1) (2008))).
I. Notice
¶7 On appeal, Tillman first argues that the amended information was invalid
because it did not list the elements of the aggravating crimes included to support the
capital murder charge. Tillman asserts that by not listing the elements of burglary,
aggravated burglary, arson, or aggravated arson, the State deprived him of notice of the
charges against him and also divested the court of jurisdiction to prosecute him. We
agree with the district court that Tillman’s challenge to his conviction based on
inadequate notice (the Notice Claim) is both time barred and procedurally barred under
4
Tillman did not appeal the district court’s decision affirming his conviction.
20100994‐CA 4
the Post Conviction Remedies Act (the PCRA). See Utah Code Ann. §§ 78B‐9‐101 to ‐405
(2008 & Supp. 2012).
¶8 To be timely, a petition for postconviction relief must be filed within one year of
the accrual of the cause of action. See Utah Code Ann. § 78B‐9‐107(1) (2008). Under the
PCRA, Tillman’s cause of action would have accrued on May 24, 1988, which was the
last day that he could have petitioned for writ of certiorari to the United States Supreme
Court after his 1983 conviction was affirmed by the Utah Supreme Court. See id. § 78B‐9‐
107(2)(c). However, Utah adopted the PCRA in 1996, see id. § 78B‐9‐103, which the State
concedes reset the accrual date of his cause of action. Therefore, the State argues that
Tillman’s petition had to have been filed within one year of the PCRA’s July 1, 1996
effective date. Cf. Pace v. DiGuglielmo, 544 U.S. 408, 412 n.2 (2005) (“[P]etitioners whose
convictions became final before the enactment of [the federal postconviction act’s]
statute of limitations . . . have until one year from the enactment of the habeas statute of
limitations to file their petitions.” (citation and internal quotation marks omitted).
Although Tillman does not dispute the accrual date of his cause of action, he asserts that
the PCRA’s statute of limitations should not apply because the amended information
was defective, thereby depriving the court of jurisdiction.
¶9 In support, Tillman cites cases in which a defendant’s conviction was reversed on
direct appeal due to a defective information or indictment. See, e.g., State v. Topham, 123
P. 888, 891–92 (Utah 1912) (requiring that an information contain specific allegations
such that “the court could judge whether the accused should have been put upon trial,
and that she might then know what she was to defend against”); People v. Hill, 3 P. 75,
78 (Utah 1884) (stating that under territorial law, an indictment was “sufficient if the
charge [was] stated with so much certainty that the defendant [knew] what he [was]
called upon to answer, and the court how to render judgment”). None of these decisions
purports to examine the time in which a challenge to a defective information can be
made under the PCRA or states an exception to the general rule that “defenses and
objections based on defects in the . . . information” must be raised no later than “five
days prior to the trial.” Utah R. Crim. P. 12(c)(1)(A); see also State v. Hall, 671 P.2d 201,
202 (Utah 1983) (per curiam) (declining to review an unpreserved challenge to an
allegedly defective information); Sherratt v. State, 2010 UT App 167U, para. 2 (per
curiam) (“It is well‐settled law in Utah that any challenge to an allegedly defective
information must be raised before trial.”). Additionally, Tillman has pointed us to no
language in the PCRA or controlling precedent providing for an exception to the
20100994‐CA 5
PCRA’s statute of limitations for jurisdictional claims. Thus, Tillman’s challenge to his
conviction based on the Notice Claim is time barred.5
¶10 The district court also properly concluded that the Notice Claim is procedurally
barred. The PCRA precludes review of any claim that has or could have been
previously raised at trial, on appeal, or in a prior postconviction petition. See Utah Code
Ann. § 78B‐9‐106(1)(b)–(d) (Supp. 2012). In the present petition, Tillman alleges that the
amended information’s failure to list the elements of the burglary and arson
aggravators unconstitutionally deprived him of notice of the crime charged. Although
Tillman has raised notice claims before, he asserts that his current claim is different
because he now asserts that the deficiencies in the amended information rendered him
unable to “know[] if he committed the crimes of burglary and arson.” However, the
current petition’s Notice Claim is barred by the PCRA because all of the issues either
were, or could have been, raised in his direct appeal or in a prior postconviction
petition. See id. § 78B‐9‐106(1).
¶11 In his first petition for postconviction relief, Tillman alleged that the amended
information gave him inadequate notice because it was amended at the preliminary
hearing to add arson and aggravated arson as aggravating factors, because it included
attempt crimes, and because it charged multiple crimes. See Tillman II, 855 P.2d 211,
214–16 (Utah 1993). The first postconviction court rejected those claims. See id. at 213–14.
The Utah Supreme Court affirmed because Tillman had shown no prejudice and
because his “attorneys had more than three months after the amendment to prepare a
defense to the additional aggravating circumstances alleged.” See id. at 215–16, 222.
5
Tillman further argues in his reply brief that his petition is not time barred
because rule 22(e) of the Utah Rules of Criminal Procedure allows for an illegal sentence
to be corrected at any time. However, rule 22(e) is inapplicable to Tillman’s challenge to
his conviction because it “assumes a valid conviction” and applies only to the review of
a sentence. See State v. Johnston, 2009 UT App 136, ¶ 12, 210 P.3d 973 (mem.).
Additionally, we decline to consider arguments raised for the first time in reply briefs.
See generally In re E.R., 2001 UT App 66, ¶ 15, 21 P.3d 680 (citing rule 24(c) of the Utah
Rules of Appellate Procedure in declining to review an issue raised for the first time in
the reply brief).
20100994‐CA 6
¶12 Even assuming that the current Notice Claim differs from those previously
raised by Tillman, he could have raised the allegedly new claim on direct appeal or in
any of his three previous postconviction petitions. Tillman has identified no facts about
the charging information that he did not know when he filed his direct appeal in 1983 or
when he filed his first petition for postconviction relief in 1988. See Utah Code Ann.
§ 78B‐9‐106; cf. Rudolph v. Galetka, 2002 UT 7, ¶ 5, 43 P.3d 467 (“Any issues that were not
addressed on direct appeal but could have been raised may not be raised for the first
time in a post‐conviction relief proceeding absent unusual circumstances.”). Thus,
Tillman’s Notice Claim is procedurally barred.
II. Brady Evidence
¶13 Tillman next argues that his conviction should be overturned because the
evidence of the interviews with Accomplice that led to the commutation of his death
sentence was improperly suppressed in violation of Brady v. Maryland, 373 U.S. 83(1963) (the Brady Claim). “[T]he suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id.
at 87. Years after Tillman’s trial, partial transcripts of the polygraph interviews with
Accomplice were found in one of the prosecutor’s case files. Neither the transcripts, nor
recordings of the interviews, had been disclosed previously to Tillman. See Tillman III,
2005 UT 56, ¶¶ 5, 24, 128 P.3d 1123. Tillman asserts that, before his 1983 trial, the
prosecutor was aware that the interviews had been recorded and therefore “knowingly
and intentionally” suppressed the evidence in violation of Brady. Tillman further alleges
that the interviews disprove the arson and aggravated arson aggravating factors. Again,
Tillman’s claim is both time barred and procedurally barred.
¶14 Even assuming that the partial transcripts were newly discovered in May 2001
when the State provided them to Tillman, he has waited too long to assert his Brady
Claim. Under the PCRA, Tillman had one year to file his petition from the date he
“knew or should have known, in the exercise of reasonable diligence, of evidentiary
facts on which the petition is based.” See Utah Code Ann. § 78B‐9‐107(1), (2)(e) (2008).
Upon receipt of the transcripts, Tillman was aware of all the information necessary to
advance his claims. Thus, to be timely, his petition based on this evidence was due by
May 2002. See id. Because Tillman did not file the current petition until 2009, the district
court correctly held that the Brady Claim is time barred.
20100994‐CA 7
¶15 The Brady Claim is also procedurally barred because Tillman already relied on
the State’s failure to produce the transcripts as the basis for his 2001 petition for
postconviction relief. In that petition, Tillman argued that there is a reasonable
probability that if the transcripts had been disclosed before trial, the outcome would
have been different at both the guilt and penalty phases because the defense would
have conducted a more probing cross‐examination of Accomplice. Tillman did not, but
could have, raised the claim that the transcripts prove that he did not commit arson or
aggravated arson at that time. Furthermore, the postconviction court vacated Tillman’s
death sentence, but affirmed his capital murder conviction. See Tillman III, 2005 UT 56,
¶¶ 10, 12. Tillman did not appeal the denial of his petition with regard to his conviction;
the State appealed the vacation of his death sentence. See id. ¶ 13. The supreme court
affirmed the postconviction court’s commutation of the death sentence and ordered that
Tillman be resentenced. See id. ¶ 92. At no time during these proceedings did Tillman
advance the current argument that the transcripts prove that he is not guilty of arson or
aggravated arson. Because Tillman could have done so, his claim is procedurally
barred. See Utah Code Ann. § 78B‐9‐106(1)(d) (Supp. 2012).
¶16 Additionally, a prior postconviction proceeding determined that Tillman cannot
meet the showing of “prejudice” necessary to prevail on the Brady Claim. See Tillman III,
2005 UT 56, ¶ 28. In response to Tillman’s third postconviction petition, the district
court ruled that the transcripts would have provided Tillman with favorable
impeachment evidence and that the State either knew or should have known of their
existence at the time of Tillman’s trial. However, the district court distinguished
between the guilt phase and penalty phase of Tillman’s trial in assessing the harm
caused by the failure to produce the transcripts. The district court ruled that while the
lack of the evidence prejudiced Tillman’s sentence, it was “unconvinced that a different
outcome of the guilt phase of the trial would have resulted even if the additional
impeachment evidence had been known and utilized by defense counsel.” The same
conclusion is appropriate here. Even if Tillman would have been acquitted of arson or
aggravated arson based on the transcripts, the Utah Supreme Court has previously held
that there was sufficient “[u]ncontroverted evidence . . . that Tillman secretly entered
Schoenfeld’s house with the intent to kill the victim. Clearly, the jury had adequate
evidence upon which to conclude that Tillman committed burglary.” Tillman II, 855
P.2d 211, 219 (Utah 1993). Thus, the Supreme Court has already considered and rejected
a challenge to Tillman’s conviction based on the failure of arson as an aggravating
factor. His attempt to raise the same issue here is procedurally barred.
20100994‐CA 8
III. Ineffective Assistance of Counsel
¶17 Tillman also asserts that over “the last 23 years” generally, and specifically at his
2005 resentencing, his court‐appointed counsel was ineffective for failing to object to the
amendment of the information before his 1983 trial and for failing to “demand[]” a new
trial. Tillman’s claim is time barred.
¶18 Tillman had one year from “the date on which [he] knew or should have known,
in the exercise of reasonable diligence, of evidentiary facts on which the petition is
based” to file his ineffective assistance of counsel claim. See Utah Code Ann. § 78B‐9‐
107(2)(e) (2008). Tillman was resentenced in 2005 and knew at that time that his counsel
did not demand a new trial based on the transcripts or the amended information. Thus,
Tillman should have appealed by 2006, and the current petition is untimely. To the
extent that Tillman challenges his counsel’s effectiveness generally over “the last 23
years” for failing to demand a new trial based on the charging information, his claim is
procedurally barred. See id. § 78B‐9‐106(1) (Supp. 2012). The Utah Supreme Court has
previously rejected Tillman’s claim of ineffective assistance of counsel, and further
allegations of deficient performance by counsel could have been brought in the prior
postconviction proceedings. See Tillman II, 855 P.2d at 221 (“In light of our conclusion
that the amendment to the information was not prejudicial, failure to object could not
constitute ineffective assistance.”).
IV. Evidentiary Hearing
¶19 Tillman further argues that the district court erred in denying his request for an
evidentiary hearing on the issues raised in his fourth postconviction petition. However,
the district court’s actions are consistent with the procedural rules governing
postconviction remedies.
¶20 Rule 65C of the Utah Rules of Civil Procedure provides that the assigned judge
“shall review the petition” and “shall” summarily dismiss a claim for postconviction
relief if “it is apparent to the court that [the] claim has been adjudicated in a prior
proceeding” or if the “the facts alleged do not support a claim for relief as a matter of
law.” See Utah R. Civ. P. 65C(h)(1), (2)(A). Consistent with that mandate, the district
court reviewed Tillman’s petition and determined that Tillman’s claims were all time or
procedurally barred. See Utah Code Ann. § 78B‐9‐106(1)(b)–(d) (Supp. 2012); id. § 78B‐9‐
20100994‐CA 9
107(1) (2008); id. § 78B‐9‐106(1)(e) (Supp. 2012). Therefore, the PCRA required the
district court to dismiss Tillman’s fourth petition for postconviction relief summarily
and to terminate all proceedings on the claim. See Utah R. Civ. P. 65C(h)(1).
¶21 Rule 65C is consistent with the PCRA. See id. Under the rule, the respondent is
required to answer and the court is instructed to “promptly set the proceeding for a
hearing or otherwise dispose of the case,” see id. R. 65C(k), (l), only if there are claims in
the petition that survive the mandatory initial review, see id. R. 65C(h). We have
affirmed the district court’s dismissal of each of the claims in Tillman’s fourth petition.
Thus, the district court did not err in dismissing Tillman’s petition without first holding
a hearing.
V. Court‐Appointed Counsel
¶22 Finally, Tillman argues that the district court erred in denying his request for
court‐appointed counsel. Unless a defendant has been sentenced to death,6 “there is no
statutory or constitutional right to counsel in a post‐conviction proceeding.” Schwenke v.
State, 2012 UT App 18, ¶ 3, 269 P.3d 1004 (per curiam) (citing Hutchings v. State, 2003 UT
52, ¶ 20, 84 P.3d 1150). The PCRA specifically indicates that “[i]f any portion of the
petition is not summarily dismissed, the court may . . . appoint counsel on a pro bono
basis . . . .” Utah Code Ann. § 78B‐9‐109(1) (2008) (emphasis added). Because all of
Tillman’s claims were summarily dismissed, the PCRA does not provide for the
discretionary appointment of counsel. Even assuming the absence of that limitation, our
supreme court has recognized that the Utah Legislature “leav[es] the appointment of
counsel in a petition for post‐conviction relief not summarily dismissed to the court’s
discretion.” See Hutchings, 2003 UT 52, ¶ 20 (citing Utah Code Ann. § 78‐35a‐109 (1999)
(current version at id. § 78B‐9‐109 (2008)). The district court did not exceed its discretion
by declining to appoint counsel to represent Tillman in his fourth state petition for
6
Indigent defendants who have been sentenced to death have a statutory right to
appointment of counsel in postconviction proceedings. See Utah Code Ann. § 78B‐9‐
202(2) (Supp. 2012); Utah R. Crim. P. 8(e).
20100994‐CA 10
postconviction relief, which the district court correctly concluded contained only claims
that were procedurally or time barred.
¶23 For the reasons stated above, we affirm Tillman’s conviction and sentence.
____________________________________
Carolyn B. McHugh, Judge
‐‐‐‐‐
¶24 WE CONCUR:
____________________________________
William A. Thorne Jr., Judge
____________________________________
Michele M. Christiansen, Judge
20100994‐CA 11