Schwenke v. State ( 2013 )

2013 UT App 25_________________________________________________________
THE UTAH COURT OF APPEALS
ALAPATI PAUL SCHWENKE,
Petitioner and Appellant,
v.
STATE OF UTAH,
Respondent and Appellee.
Per Curiam Decision
No. 20120967‐CA
Filed January 25, 2013
Fourth District, Fillmore Department
The Honorable Donald J. Eyre Jr.
No. 120700036
Alapati Paul Schwenke, Appellant Pro Se
Before JUDGES ORME, THORNE, and CHRISTIANSEN.
PER CURIAM:
¶1 Alapati Paul Schwenke appeals the dismissal of his petition
for a determination of factual innocence. This matter is before the
court on Schwenke’s motion for summary disposition seeking
dismissal of the appeal so that he may petition the supreme court
for certiorari review. We affirm the trial court’s dismissal of the
petition.
¶2 In his motion for summary disposition and memorandum
in support, Schwenke fails to assert any trial court error in its
rationale or decision to dismiss the petition for factual innocence.
Rather, he merely reargues the matter as presented in the trial
Schwenke v. State
court. Indeed, his memorandum in support here is identical to the
memorandum filed in the trial court. This is insufficient to raise an
issue on appeal. See Allen v. Friel, 2008 UT 56, ¶ 14, 194 P.3d 303.
¶3 “[A]n appeal is a resort to [an appellate] court to review the
decision of a [trial] court.” Id. Therefore, Utah appellate rules
require the appellant to address reasons why the trial court’s
decision should be overturned. See id. Here, Schwenke fails to
address the trial court’s ruling that the issues raised in his inno‐
cence petition are procedurally barred because they had been
previously litigated on direct appeal or in Schwenke’s first petition
for postconviction relief. Absent an allegation of trial court error,
there is simply no issue for appellate review. See id.
¶4 Affirmed.
20120967‐CA 2 2013 UT App 25