Marchet v. State

2016 UT App 28THE UTAH COURT OF APPEALS
AZLEN ADIEU FARQUOIT MARCHET,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20151024-CA
Filed February 11, 2016
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 140905584
Azlen Adieu Farquoit Marchet, Appellant Pro Se
Sean D. Reyes and Mark C. Field, Attorneys
for Appellee
Before JUDGES GREGORY K. ORME, STEPHEN L. ROTH, and
MICHELE M. CHRISTIANSEN.
PER CURIAM:
¶1 Azlen Adieu Farquoit Marchet appeals the dismissal of
his second petition for post-conviction relief. We affirm.
¶2 This court affirmed Marchet’s conviction of rape. See State
v. Marchet, 2009 UT App 262, ¶ 1, 219 P.3d 75. Over seventeen
months later, Marchet filed his first petition under the Post-
Conviction Remedies Act (PCRA). See Utah Code Ann. §§ 78B-9-
101 to 109 (LexisNexis 2012). This court affirmed the district
court’s dismissal of that first petition because it was time-barred.
See Marchet v. State, 2014 UT App 108, ¶ 1, 327 P.3d 44 (per
curiam). Marchet then filed his second post-conviction petition
over forty-one months after his conviction became final, claiming
that his trial and appellate attorneys were ineffective, his
Marchet v. State
constitutional rights were violated, the State withheld evidence,
and the trial court erroneously admitted prior acts evidence.
Marchet argued that some claims in the second petition were
based upon evidence that he had recently discovered. The State
moved for summary judgment on the basis that the claims were
time-barred, see Utah Code Ann. § 78B-9-107(1), and that any
claims not relying on alleged newly discovered evidence were
also procedurally barred, see id. § 78B-9-106(1)(c).
¶3 The district court dismissed Marchet’s second petition for
post-conviction relief after determining that all of his claims
were either time-barred or procedurally barred. “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 (citation and internal quotation marks omitted).
¶4 A post-conviction petitioner “is entitled to relief only if
the petition is filed within one year after the cause of action has
accrued.” Utah Code Ann. § 78B-9-107(1). The district court
correctly found that Marchet’s cause of action under the PCRA
accrued on “the last day for filing a petition for writ of certiorari
. . . in the United States Supreme Court . . . if no petition for writ
of certiorari is filed.” Id. § 78B-9-107(2)(c). The district court
determined that date to be March 9, 2010, and found that
Marchet had one year—until March 9, 2011—to timely file his
post-conviction petition. Marchet did not file his second post-
conviction petition until August 13, 2014. Accordingly, the
second petition was time-barred under the PCRA’s statute of
limitations for the same reason that the first petition was time-
barred.
¶5 Marchet argued that an exception to the PCRA’s statute of
limitations should apply to his second petition. Marchet claims
that his cause of action did not accrue until he obtained his prior
trial and appellate attorneys’ case files on June 18, 2013. He
20151024-CA 2 2016 UT App 28Marchet v. State
asserted that these case files contained evidence not previously
disclosed to him that entitled him to assert the exception to the
time bar contained in Utah Code section 78B-9-107(2)(e). See id.§ 78B-9-107(2)(e) (stating that a cause of action accrues on “the
date on which petitioner knew or should have known, in the
exercise of reasonable diligence, of evidentiary facts on which
the petition was based”). Under this exception, Marchet had one
year from the date of discovery in which to file a petition. See id.
§ 78B-9-107(1). The district court correctly concluded that “even
calculating the post-conviction accrual date from the date
Marchet actually discovered these evidentiary facts, all of his
claims that rely on this evidence [were] still time-barred.”
Because Marchet conceded in the petition that he learned of
these evidentiary facts on June 18, 2013, he had one year—until
June 18, 2014—to timely file his second post-conviction petition.
Because Marchet filed the second petition on August 13, 2014,
the claims that relied upon evidentiary facts discovered in June
2013 are still time-barred under the PCRA. Furthermore, the
district court ruled that, to the extent Marchet’s claims were not
based on the allegedly newly discovered evidentiary facts
disclosed on June 18, 2013, the claims were also procedurally
barred because all of the facts on which Marchet relied were
known when he filed his direct appeal, i.e., facts from the trial
testimony, the jury instructions, and the rule 404(b) hearing.
Because those claims could have been raised on direct appeal,
they were procedurally barred under the PCRA. 1
1. Although the district court also found that those claims could
have been raised in the first post-conviction petition, it should be
noted that this court affirmed the dismissal of that petition as
time-barred. See Marchet v. State, 2014 UT App 108,¶ 1, 327 P.3d
44 (per curiam). Therefore, it would have been futile to include
the claims in question in the first petition.
20151024-CA 3 2016 UT App 28Marchet v. State
¶6 The district court found that Marchet raised one claim in
the second post-conviction petition that could not have been
raised on appeal or in his first post-conviction petition. Marchet
argued that the legal standard for determining the admissibility
of prior acts evidence set forth in State v. Verde, 2012 UT 60, 296
P.3d 673, which issued on September 25, 2012, should now apply
to his case and that the evidence would not have been admitted
if Verde applied. Under the PCRA, petitioners may obtain relief if
they “can prove entitlement to relief under a rule announced by
the . . . Utah Supreme Court . . . after conviction and sentence
became final on direct appeal” and also show that “the rule was
dictated by precedent existing at the time the petitioner’s
conviction or sentence became final.” Utah Code Ann. § 78B-9-
104(1)(f) (LexisNexis 2012). The district court ruled that even if
Verde announced a new rule, Marchet’s claim is still too late
because the second post-conviction petition was not filed by
September 25, 2013, which was the date one year from the
issuance date of the Verde opinion. 2 Marchet’s second post-
conviction petition was untimely under this exception.
¶7 Marchet has not demonstrated that the district court erred
in dismissing his claims as time-barred even if they were based
on newly discovered evidentiary facts or subsequently decided
case law. To the extent that the claims were not allegedly based
upon new evidentiary facts, the district court correctly
concluded those claims were procedurally barred because they
2. Because the second post-conviction petition was untimely
even if the exception contained in Utah Code section 78B-9-
104(1)(f) applied, the parties did not call upon either the district
court or this court to determine whether Verde announced a new
rule that was “dictated by precedent existing at the time
[Marchet’s] conviction or sentence became final.” See Winward v.
State, 2015 UT 61, ¶ 2, 355 P.3d 1022 (quoting Utah Code section
78B-9-104(1)(f)(i), petition for cert. filed, Oct. 27, 2015 (No. 15-924).
20151024-CA 4 2016 UT App 28Marchet v. State
could have been raised on direct appeal. Accordingly, because
the district court correctly applied the provisions of the PCRA,
we affirm the dismissal of Marchet’s second post-conviction
petition.
20151024-CA 5 2016 UT App 28