Todd v. State ( 2016 )

2016 UT App 232THE UTAH COURT OF APPEALS
SHAYNE E. TODD,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20160745-CA
Filed November 25, 2016
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 150908512
Shayne E. Todd, Appellant Pro Se
Before JUDGES STEPHEN L. ROTH, KATE A. TOOMEY, and DAVID N.
MORTENSEN.
PER CURIAM:
¶1 Shayne E. Todd appeals the August 24, 2016 order
resolving seven submissions filed on August 9, 2016, following
the dismissal of his petition for post-conviction relief in a July 19,
2016 memorandum decision and order. The case is now before
this court on a sua sponte motion for summary disposition. We
affirm.
¶2 In 1999, Todd shot and killed his estranged wife. Todd
was convicted of murder, a first degree felony, and possession of
a dangerous weapon by a restricted person, a second degree
felony. He pleaded guilty to the weapons charge prior to the jury
trial on the murder charge. Todd pursued a direct appeal, which
raised claims of prosecutorial misconduct related to his murder
conviction. This court affirmed the conviction in State v. Todd,
2007 UT App 349, ¶ 1, 173 P.3d 170. This court also affirmed the
Todd v. State
dismissal of Todd’s first petition for post-conviction relief, see
Todd v. State, 2011 UT App 313, ¶ 7, 262 P.3d 1222 (per curiam),
and affirmed the denial of a motion to correct an illegal sentence,
see State v. Todd, 2013 UT App 231, ¶ 1, 312 P.3d 936.1
¶3 The district court dismissed Todd’s second petition for
post-conviction relief in the underlying case in a memorandum
decision and order dated July 19, 2016. In that decision, the
district court found that the claims raised in the petition were
either frivolous or had already been adjudicated in previous
proceedings. See Utah R. Civ. P. 65C(h)(1) (“*I+f it is apparent to
the court that any claim has been adjudicated in a prior
proceeding, or if any claim in the petition appears frivolous on
its face, the court shall forthwith issue an order dismissing the
claim . . . .”). Todd did not file a timely notice of appeal from the
July 19, 2016 order. Instead, on August 9, 2016, he filed seven
submissions in the district court, including (1) a motion to
reconsider and vacate the dismissal of his post-conviction
petition; (2) a motion to withdraw his guilty plea to the weapons
charge; (3) a supplemental declaration in support of the post-
conviction petition; (4) a memorandum in support of the request
for reconsideration of the dismissal of his post-conviction
petition; (5) a letter to the court; (6) a motion seeking leave to
amend the post-conviction petition; and (7) an amended
memorandum in support of the motion to amend the post-
conviction petition.
1. In 2012, this court summarily affirmed by order the district
court’s denial of Todd’s second motion to correct an illegal
sentence in case number 20120536-CA. In 2015, this court
summarily affirmed by order the district court’s denial of Todd’s
third motion to correct an illegal sentence in case number
20140715-CA.
20160745-CA 2 2016 UT App 232Todd v. State
¶4 In the August 24, 2016 order, the district court considered
the seven submissions filed on August 9, 2016. The district court
stated that although Todd alluded to newly discovered evidence,
he failed to demonstrate that any new evidence existed. The
district court denied the motions, stating that Todd “again
makes stale arguments regarding his plea, the jury’s findings,
and the sentence by the Board of Pardons.”
¶5 Todd’s August 30, 2016 notice of appeal stated that the
appeal was taken from the August 24, 2016 order, as did the
docketing statement filed in this court. However, in response to
the sua sponte motion for summary disposition, Todd claims
that his appeal is taken from the July 19, 2016 memorandum
decision and order dismissing his petition for post-conviction
relief. Because the notice of appeal filed on August 30, 2016 was
not timely filed within thirty days after entry of the July 19, 2016
memorandum decision and order, we lack jurisdiction to
consider it. See Utah R. App. P. 4(a). Furthermore, none of the
submissions on August 9, 2016, operated to extend the time for
appeal. See id. 4(b); see also Gillett v. Price, 2006 UT 24, ¶ 7, 135
P.3d 861 (“*R+egardless of the motion’s substance, postjudgment
motions to reconsider and other similarly titled motions will not
toll the time for appeal because they are not recognized by our
rules.”).
¶6 Accordingly, the issues before this court on appeal are
limited to whether the district court erred in denying the seven
submissions filed on August 9, 2016. However, Todd’s response
to the sua sponte motion addresses neither the content nor the
effect of the district court’s decision and reargues claims that
have been made in his previous filings, including reasserting his
defense at the jury trial that his wife’s shooting was accidental.
None of Todd’s arguments are directed to the substance of the
August 24, 2016 order being appealed nor are they directed to
the claims that were actually raised in his most recent petition
for post-conviction relief.
20160745-CA 3 2016 UT App 232Todd v. State
¶7 Much of Todd’s response argues that the Utah Board of
Pardons and Parole (the Board) inappropriately calculated his
consecutive sentences because his actual aggregate sentence is
statutorily limited. Even if Todd’s claim on appeal is liberally
construed as arguing that the district court erred in not allowing
him to amend his post-conviction petition to challenge the
actions of the Board, the claim lacks merit. Any claim directed to
the Board’s actions must be asserted in a petition for
extraordinary relief directed to the Board under rule 65B of the
Utah Rules of Civil Procedure. See Utah R. App. P 65B(d). For
that reason, the district court did not err in denying
reconsideration of its dismissal of the post-conviction petition in
denying a motion to amend the petition to add a procedurally
inappropriate claim against the Board or to assert claims that
have been the subject of prior proceedings.
¶8 In support of his request to vacate the dismissal of his
post-conviction petition filed roughly fifteen years after his
convictions, Todd argues that his most recent petition is based
upon newly discovered evidence. In sum, Todd asserts that
because he raised claims in his recent filings that were not raised
on appeal or in his prior petitions and have not been
adjudicated, those claims constitute new evidence. However, the
preclusion provisions of the Post-Conviction Remedies Act
(PCRA) are not limited to claims that were actually raised on
appeal or in previous post-conviction petitions and extend to
claims that could have been, but were not, raised on appeal or in
a previous post-conviction petition. See Utah Code Ann. § 78B-9-
106(c), (d) (LexisNexis 2012). The district court did not err in
determining that Todd failed to demonstrate any new evidence
that was not known to him at the time he filed his direct appeal
or his previous post-conviction petition.
¶9 The district court did not err in refusing to consider an
untimely motion to withdraw his guilty plea to the weapons
charge, because the district court lacked jurisdiction to consider
20160745-CA 4 2016 UT App 232Todd v. State
it.2 Furthermore, although the second petition for post-
conviction relief included claims that might be construed as
challenges to his guilty plea under the PCRA, Todd did not file a
timely appeal from the dismissal of the petition. To the extent
that Todd sought reinstatement of the time to appeal the
conviction on the weapons charge, such a claim must be pursued
in an appropriate motion under rule 4(f) of the Utah Rules of
Appellate Procedure and not in a petition for post-conviction
relief.
¶10 None of Todd’s remaining arguments in this appeal are
directed to the subject of the August 24, 2016 order, which is the
subject of this appeal. Instead, he again argues that his murder
conviction was invalid because the shooting of his wife was
accidental. Even if the claim had been properly raised in the
post-conviction petition, it would have been subject to
preclusion as a claim that should have been raised on direct
appeal. See id. § 78B-9-106(1)(c). Similarly, any claims related to
alleged prosecutorial misconduct are precluded because they
were raised and addressed on direct appeal. See id. § 78B-9-
106(1)(b).
¶11 Accordingly, we affirm the district court’s August 24,
2016 order denying relief based upon the seven submissions
Todd filed on August 9, 2016.
2. When Todd entered his guilty plea, the relevant statute would
have required a motion to withdraw a guilty plea to be made
within thirty days after the entry of the plea. See Utah Code Ann.
§ 77-13-6(2)(b) (Lexis 1999).
20160745-CA 5 2016 UT App 232