Gonzales v. State

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Arthur Gonzales, ) PER CURIAM DECISION
)
Petitioner and Appellant, ) Case No. 20120661‐CA
)
v. ) FILED
) (November 1, 2012)
State of Utah, )
) 2012 UT App 313Respondent and Appellee. )
‐‐‐‐‐
Third District, Salt Lake Department, 100926031
The Honorable Robert P. Faust
Attorneys: Arthur Gonzales, Gunnison, Appellant Pro Se
Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges Orme, Thorne, and Roth.
¶1 Arthur Gonzales appeals the trial court’s order dismissing his petition for
postconviction relief as time barred. This is before the court on its own motion for
summary disposition based on the lack of a substantial question for review. We affirm.
¶2 Gonzales asserts that a new rule of law applies to his case and that therefore the
petition should be considered timely. See Utah Code Ann. § 78B‐9‐104(1)(f) (Supp. 2012)
(permitting postconviction relief where a petitioner can prove entitlement to relief
under a new rule announced by the Utah Supreme Court). He asserts that a new legal
rule announced in State v. Worthen, 2009 UT 79, 222 P.3d 1144, applies to him and would
have permitted the admission of the psychological records of his victim. In Worthen, the
supreme court addressed the privilege set forth in rule 506 of the Utah Rules of
Evidence and the corresponding exception when the privileged records may be
obtained. In particular, the supreme court explained what constitutes “an element of a
claim or defense” in a criminal case for purposes of showing an exception to the
privilege. See id. ¶ 31. “An element of a claim or defense under rule 506(d)(1) . . .
encompasses evidence that interjects reasonable doubt into the elements the State bears
the burden to prove.” Id. The court further held that the evidence may include
impeachment evidence. See id. ¶ 35.
¶3 Although the records sought in Worthen and in Gonzales’s own case were
similar, Worthen does not apply to Gonzales. In fact, the Worthen court distinguished
the circumstance of Gonzales specifically based on the outcome of Gonzales’s own
direct appeal. See id. ¶ 33. The Worthen court noted that the supreme court had not
reached the issue of whether impeachment evidence would be within the scope of an
element of a claim or defense in Gonzales’s direct appeal because the records were
appropriately excluded from Gonzales’s trial on other grounds. See id. (citing State v.
Gonzales, 2005 UT 72, ¶ 43, 125 P.3d 878).
In Gonzales, the defendant argued the victim’s “relevant
mental state to be an inability to tell the truth” and “because
of the likelihood of finding exculpatory evidence that [the
victim] ‘cannot be believed’ in her mental health records, the
defense was entitled to an in camera review.” We again
declined to thoroughly analyze the issue of what constitutes
an element of a claim or defense because we determined that the
fraudulent and flawed means by which the mental health records
in that case were obtained resulted in their inadmissibility.
Id. (alteration in original) (emphasis added) (quoting Gonzales, 2005 UT 72, ¶ 16).
Gonzales’s attorney had obtained the mental health records of his victim without going
through the proper process and without notice. As a result, the trial court excluded the
records. See Gonzales, 2005 UT 72, ¶ 18. Accordingly, any new rule announced in
Worthen regarding the process and required showings to obtain review of otherwise
privileged records is not applicable to Gonzales because the records here were excluded
due to the improper means by which they were obtained, not because of any
determination about whether an exception applied to the privilege.
20120661‐CA 2
¶4 Given that no new rule applies to Gonzales’s petition by reason of Worthen, the
petition is clearly time barred. The time for filing a petition for postconviction relief
expired in early 2007, almost four years before the instant petition was filed. See Utah
Code Ann. § 78B‐9‐107(2)(c) (2008). Accordingly, the trial court did not err in
dismissing the petition.
¶5 Affirmed.
____________________________________
Gregory K. Orme, Judge
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William A. Thorne Jr., Judge
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Stephen L. Roth, Judge
20120661‐CA 3