Julian v. State
| Decision Date | 04 August 1998 |
| Docket Number | No. 970163,970163 |
| Citation | 966 P.2d 249 |
| Parties | 349 Utah Adv. Rep. 18 Larry JULIAN, Plaintiff and Appellee, v. STATE of Utah, Defendant and Appellant. |
| Court | Utah Supreme Court |
J. Thomas Bowen, Jennifer Gowans, Midvale, for plaintiff.
Jan Graham, Att'y Gen., Laura Dupaix, Asst. Att'y Gen., for defendant.
INTRODUCTION
The State appeals from a district court's grant of Larry Julian's petition for extraordinary relief in which Julian challenged his 1987 convictions of two counts of sodomy upon a child, first degree felonies, in violation of Utah Code Ann. § 76-5-403.1. The court vacated his convictions, ruling that errors which Julian alleged took place at trial constituted plain and harmful error. We reverse and remand for further proceedings.
On July 27, 1987, a jury convicted Julian of committing sodomy upon his two daughters, ages eight and ten. The court sentenced Julian to two concurrent prison terms of fifteen years to life. This court affirmed the convictions on direct appeal. See State v. Julian, 771 P.2d 1061 (Utah 1989).
On December 18, 1995, Julian filed a petition in the district court for extraordinary relief ("habeas corpus" petition) pursuant to rule 65B of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 65B (1995). 1 In a memorandum supporting his petition, Julian alleged that (1) the trial court 2 committed plain and harmful error by admitting into evidence adult witnesses' testimony regarding the children's out-of-court statements of the alleged sexual abuse without first determining that those statements were reliable, as required by Utah Code Ann. § 76-5-411 (1995); (2) trial counsel were ineffective for failing to object to the unreliable hearsay and for failing to request that the court make reliability findings; and (3) appellate counsel was ineffective for failing to raise the trial court's reversible errors on direct appeal.
On February 12, 1996, the State moved for an extension of time to respond to the petition. The habeas court granted that motion, and the State then filed a timely motion to dismiss the petition on the ground that it was time-barred by Utah Code Ann. § 78-12-25(3) (1992), the four-year limitations provision Julian filed a memorandum in opposition to the State's motion to dismiss, arguing, inter alia, that the catch-all statute could not be constitutionally applied to bar his petition. After considering the parties' memoranda, the habeas court denied the State's motion to dismiss. In a written order dated May 30, 1996, the court ruled that the four-year catch-all statute did not apply to Julian's petition for two reasons. First, the court concluded that the catch-all statute applied only where relief was not otherwise provided for by law and that relief was provided for by the one-year statute in section 78-35a-107. Thus, according to the court, the State's decision not to invoke the appropriate statute of limitations was an attempt to circumvent the intent of the legislature. Second, the court concluded that while the catch-all statute's four-year limitations period was noticeably longer than the period prescribed by the ninety-day statute struck down in Currier, it was equally inflexible. Nevertheless, because the one-year statute applied to Julian's petition, the court declined to reach the issue of whether application of the catch-all statute would be constitutional. The court then considered Julian's petition in light of the one-year statute. While it did not determine whether Julian's petition was filed within the one-year limitations period, the court concluded that even if his petition was untimely, given the gravity of his claims the court would excuse such untimeliness under the "interests of justice" exception of the said statute and consider the merits of the petition. 4
for civil claims not otherwise provided for by law (the "catch-all" statute). According to the State, that statute took effect when the court of appeals declared unconstitutional Utah Code Ann. § 78-12-31.1 (1992) (the former "ninety-day" statute of limitations provision applicable to habeas corpus petitions). See Currier v. Holden, 862 P.2d 1357 (Utah Ct.App.1993). After the ninety-day statute was declared unconstitutional, the legislature enacted Utah Code Ann. § 78-35a-107 (1996) (the new "one-year" statute of limitations provision for post-conviction relief), which became effective May 1, 1995, approximately eight months before Julian filed his petition. 3 However, the State asserted that it elected not to invoke the one-year statute because it had adopted a policy of not invoking the new statute to the detriment of a defendant until May 1, 1996, to give defendants an opportunity to learn of the statute before they were penalized by its application
Thereafter, on July 12, 1996, Julian filed a request for a ruling on his petition, asserting that the State had not filed an answer. However, on August 5, 1996, the State filed a second motion to dismiss the petition, alleging that (1) the trial court was not required to make reliability findings pursuant to section 76-5-411 before admitting the children's out-of-court statements into evidence because those statements were properly admissible under the Utah Rules of Evidence; (2) trial and appellate counsel were not ineffective in failing to raise the section 76-5-411 issue because the children's statements were admissible under evidentiary rules; and (3) even if the trial court should have made reliability findings pursuant to section 76-5-411, its failure to do so did not violate Julian's constitutional rights and was harmless error.
On September 20, 1996, Julian filed a memorandum in opposition to the State's second motion to dismiss. Neither party requested a hearing, but both filed requests for a ruling on the petition. The habeas court did not rule on the State's second motion to dismiss but instead treated it as a response to Julian's petition.
On March 10, 1997, the habeas court issued a written order setting aside Julian's convictions. In the findings of fact and conclusions of law supporting its order, the court made the following legal conclusions: (1) The trial court erred in failing to make reliability findings under section 76-5-411; (2) Julian's trial and appellate counsel failed to provide adequate representation because they did not request reliability findings at trial or raise the reliability issue on appeal; and (3) there was a "reasonable probability that, absent improperly admitted adult testimony, the outcome of the trial would have been different." The court subsequently denied the State's request for a stay of its order pending appeal and released Julian from prison on bond.
On appeal, the State asserts three main arguments to support its claim that the court erred in granting the relief Julian sought in his petition: (1) the petition was time-barred by section 78-12-25(3)'s four-year catch-all statute of limitations period, and the one-year statute could not be applied retroactively to Julian's petition; (2) even if the court correctly applied the one-year statute, it erred in excusing Julian's untimeliness under the statute's "interests of justice" exception; and (3) reliability findings under section 76-5-411 were not required because the challenged testimony was otherwise admissible under the Utah Rules of Evidence; therefore, the court erred in concluding that the lack of reliability findings constituted plain error and that Julian's counsel were ineffective.
Julian, on the other hand, asserts that the four-year catch-all statute may not be constitutionally applied to bar his habeas petition. Furthermore, he maintains his position--as set forth in his petition--that the trial court's failure to make reliability findings pursuant to section 76-5-411 constituted plain and harmful error, violated his substantive rights, and resulted in substantial prejudice and that defense counsels' failure to raise the reliability issue constituted ineffective assistance of counsel. He also asserts, for the first time, that expert testimony regarding the child victims' veracity was prejudicial and constituted plain and reversible error.
When reviewing an appeal from an order dismissing a petition for extraordinary relief or granting the relief requested in such a petition, we accord no deference to the lower court's conclusions of law but review them for correctness. See Monson v. Carver, 928 P.2d 1017, 1022-23 (Utah 1996).
PROVISION--UTAH CODE
ANN. § 78-12-25(3)
The first issue is whether the four-year catch-all statute of limitations period in section 78-12-25(3) may be applied to bar Julian's petition for extraordinary relief. That section provides that an action may be brought within four years for relief "not otherwise provided for by law." 5 The application of a statute of limitations is a question of law, which we review for correctness. See Gramlich v. Munsey, 838 P.2d 1131, 1132 (Utah 1992).
The State's reasoning for applying the catch-all statute may be summarized as follows: When the court of appeals in Currier struck section 78-12-31.1 (the ninety-day statute) as unconstitutional, the four-year catch-all statute became applicable to petitions for post-conviction relief. This is so because post-conviction proceedings, including petitions for writs of habeas corpus, are civil actions. See Andrews v. Morris, 607 P.2d 816, 822 (Utah 1980). The catch-all's four-year period began to run from the time Julian's cause of action accrued, which was March 28, 1989, the date on which this court affirmed his convictions. See State v. Julian, 771 P.2d 1061 (Utah 1989). Because Julian's cause of action expired on March 28, 1993, the one-year statute--which became effective The habeas court ruled that the catch-all statute did not apply because relief was otherwise provided for by the one-year sta...
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