Brown v. State, 20140387–CA.

• Decision Date: 08 October 2015
• Docket Number: No. 20140387–CA.,20140387–CA.
• Citation: 2015 UT App 254,361 P.3d 124
• Parties: Keith Scott BROWN, Appellant, v. STATE of Utah, Appellee.
• Court: Utah Court of Appeals

361 P.3d 124

2015 UT App 254

Keith Scott BROWN, Appellant,

v.STATE of Utah, Appellee.

No. 20140387–CA.

Court of Appeals of Utah.

Oct. 8, 2015.

Taylor C. Hartley, Orem and Stephanie R. Large, Attorneys for Appellant.

Sean D. Reyesand Andrew F. Peterson, Salt Lake City, Attorneys for Appellee.

Memorandum Decision

ORME, Judge:

¶ 1 Appellant Keith Scott Brown (Defendant) appeals the district court's dismissal of his petition for post-conviction relief. we agree the petition was untimely and affirm.

¶ 2 In February 2011, Defendant pled guilty to one count of sodomy on a child, a first degree felony, and two counts of sexual abuse of a child, second degree felonies. On March 31, 2011, the district court sentenced him to concurrent statutory prison terms of ten years to life for the first degree felony and one to fifteen years on each of the second degree felonies. Defendant did not seek to withdraw his guilty pleas at any time before sentencing, and he did not file a direct appeal.

¶ 3 On November 6, 2012, more than a year and a half after he was sentenced, Defendant filed what he titled a “motion for misplea,” seeking to set aside his guilty pleas on the ground that when he pled guilty, he was under the influence of medication that rendered him unable to knowingly and voluntarily plead guilty. Defendant did not claim that he was unaware that he was under the influence. Instead, he claimed that “he did not tell his attorney about his prescription drug use,” although the attorney was apparently aware of a serious automobile accident that Defendant had been in only days before. The district court denied Defendant's motion, finding that his “pleas were knowing and voluntary because he showed no signs of impairment and because he expressly disavowed prescription drug use when asked at his initial appearance hearing.” Defendant appealed, and this court summarily dismissed his appeal for lack of jurisdiction. See State v. Brown,2013 UT App 99, ¶ 1, 300 P.3d 1289(per curiam). Defendant filed petitions for a writ of certiorari in both the Utah Supreme Court and the United States Supreme Court. Both petitions were denied. State v. Brown,308 P.3d 536 (Utah 2013); Brown v. Utah,–––U.S. ––––, 134 S.Ct. 544, 187 L.Ed.2d 370 (2013).

¶ 4 On November 25, 2013, Defendant filed a petition for post-conviction relief under Utah's Post–Conviction Remedies Act (the PCRA). SeeUtah Code Ann. § 78B–9–101to –405 (LexisNexis 2012). Defendant claimed that he received ineffective assistance of counsel at the time his guilty pleas were entered due to trial counsel's incorrect advice about the consequences of pleading guilty and because trial counsel operated under several conflicts of interest when he urged Defendant to plead guilty. In addition, Defendant repeated his claim that his guilty pleas were not knowingly and voluntarily made because he was on pain medication when he entered them. The district court found that all of the pertinent facts supporting Defendant's ineffective-assistance claims were known to Defendant before he entered his pleas and that more than one year had passed before Defendant filed his PCRA petition.¹Although Defendant claimed that “he came to a realization about [the] real impact of his sentence at some point long after sentencing,” the district court concluded that “coming to a better or more complete understanding of the practical import of his plea is different [from] coming to know new evidentiary facts. The record reflects that the pertinent facts were known to [Defendant] long before, more than a year before, [he] filed the present petition.”

¶ 5 The district court also determined that “[a]ll of the facts concerning the voluntariness of [Defendant]'s plea, particularly his injuries from a car accident and any medication [prescribed as a result], were known at the time of the plea, certainly were known [in the] six weeks between the plea [and sentencing.]” The court concluded that Defendant's challenge to the validity of his pleas was procedurally barred because he could have moved to withdraw his pleas but did not. Accordingly, the court denied Defendant's PCRA petition as untimely. Defendant appeals.

¶ 6 On appeal, Defendant first contends that he received ineffective assistance of counsel in two respects. He contends that trial counsel “[a]ffirmatively misrepresent[ed] the consequences” of Defendant's guilty pleas by assuring him that he would spend only “two to three years in prison” because trial counsel would “wine and dine” the Board of Pardons and Parole (the Board). Defendant also contends that trial counsel operated under various conflicts of interest, including that (1) trial counsel's “own daughter had business dealings with [Defendant]” that might have put her at risks similar to those faced by his known victims, (2) trial counsel “could have been called as a potential witness against” Defendant, (3) trial counsel was related to Defendant by marriage, and (4) trial counsel's “law firm had recently experienced negative media exposure that made [trial counsel] not want to draw any more media attention to his firm.” Second, Defendant contends that his pleas were unknowing and involuntary because he was on pain medication at the time he entered his guilty pleas and because of trial counsel's “misinformation” regarding the consequences of his guilty pleas. “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.” Taylor v. State,2012 UT 5, ¶ 8, 270 P.3d 471(citation and internal quotation marks omitted).

¶ 7 Under the PCRA, “[a] 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)(LexisNexis 2012).²A cause of action accrues on the latest of several possible dates, including “the last day for filing an appeal from the entry of the final judgment of conviction, if no appeal is taken,” and “the date on which [the] petitioner knew or should have known, in the exercise of reasonable diligence, of evidentiary facts on which the petition is based.” Id.§ 78B–9–107(2)(a), (e). The PCRA also provides that

[t]he limitations period is tolled for any period during which the petitioner was prevented from filing a petition due to state action in violation of the United States Constitution, or due to physical or mental incapacity. The petitioner has the burden of proving by a preponderance of the evidence that the petitioner is entitled to relief under this Subsection (3).

Id.§ 78B–9–107(3). Defendant does not allege that any action by the State in violation of the United States Constitution, or any physical or mental incapacity, prevented him from timely filing his petition. Rather, relying on the later accrual date under section 78B–9–107(2)(e), he contends that his PCRA petition was timely filed and should not be time-barred because he filed it “within one year of recognizing the significance of his attorney's ineffective assistance of counsel.”

¶ 8 More specifically, Defendant contends that he had no reason to doubt trial counsel's statements regarding the Board until he learned that his first hearing date before the Board “would not actually be until after he had been in prison for over seven years and that it could not come any sooner by any effort on anyone's part.” He also claims that he did not realize the significance of trial counsel's conflicts of interest until he retained his current counsel. According to Defendant, “just because [he] may have known of these basic facts at the time of sentencing, he did not understand their significance until later.” The State contends that basing the PCRA's cause-of-action accrual date under section 78B–9–107(2)(e)“on when a petitioner subjectively becomes aware of the legal significance of the facts he already knows would essentially eviscerate the PCRA's statute of limitations, leaving no effective time limit to filing a post-conviction petition.”

¶ 9 No pertinent Utah decision has been called to our attention by the parties, but in Owens v. Boyd,235 F.3d 356 (7th Cir.2000), the Seventh Circuit addressed whether the one-year time limit to file a petition for collateral relief under federal law, see 28 U.S.C.A. § 2244(d)(1)(West 2006), “begins when a prisoner actually understandswhat legal theories are available.” Owens,235 F.3d at 359(emphasis in original). Under section 2244(d)(1), “[a] state prisoner who wants collateral relief from federal court must file the federal petition within one year from the latest of” several dates, including “ ‘the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.’ ” Id.at 357(quoting 28 U.S.C. § 2244(d)(1)(D)(West 2006)). The court noted that “the time commences when the factual predicate ‘could have been discovered through the exercise of due diligence’, not when it was actually discovered by a given prisoner.” Id.at 359. Moreover, “the trigger in § 2244(d)(1)(D)is (actual or imputed) discovery of the claim's ‘factual predicate’, not recognition of the facts' legal significance.” Id.Thus, the court concluded, the period in which to file “begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance. If § 2244(d)(1)used a subjective rather than an objective standard, then there would be no effective time limit[.]” Id.

¶ 10 Although we are not bound by Owens,its reasoning is compelling. Under section 78B–9–107 of the Utah Code, the time to file a post-conviction petition begins when the “petitioner knew or should have known, in the exercise of reasonable diligence, of evidentiary facts on which the petition is based.” Utah Code Ann. § 78B–9–107(2)(e). Thus, similar to section 2244(d)(1)(D) of the United States Code, the “trigger” under section 78B–9–107(2)(e)is actual or imputed...