Opinion
Case No. 20040777-CA.
Filed November 4, 2004. (Not For Official Publication).
Appeal from the Sixth District, Panguitch Department, The Honorable K.L. McIff.
Earl L. Barnes, Gunnison, Appellant Pro Se.
Before Judges Bench, Davis, and Orme.
MEMORANDUM DECISION
Earl Barnes appeals the trial court's dismissal of his petition for post-conviction relief as frivolous on its face. This is before the court on its own motion for summary disposition on the basis that the grounds for review are so insubstantial as not to merit further proceedings and consideration by the court. See Utah R. App. P. 10(e).
This court reviews an appeal from an order dismissing a petition for post-conviction relief for correctness. See Moench v. State, 2004 UT App 57, ¶ 8, 88 P.3d 353. Under rule 65C of the Utah Rules of Civil Procedure, a trial court must review a petition for post-conviction relief to determine if it is "frivolous on its face." Utah R. Civ. P. 65C(g)(1). A petition is frivolous when "based solely on the allegations contained in the pleadings and attachments," it appears that the facts alleged do not support a claim for relief as a matter of law, or the claims have no arguable basis in fact. Utah R. Civ. P. 65C(g)(2). To determine whether a petition is frivolous on its face, a trial court "need only determine whether the petition contains sufficient facts to state a cause of action." Moench v. State, 2002 UT App 333, ¶ 7, 57 P.3d 1116. The trial court must "ensure that the petitioner pleaded each element of the relief sought."Id. If the trial court finds the petition to be frivolous, it must dismiss the petition. See Utah R. Civ. P. 65C(g)(1).
In his petition, Barnes alleged that he received ineffective assistance of counsel, that his plea was unknowing and involuntary, and that the trial court did not conduct a proper rule 11 colloquy. Barnes failed to plead sufficient facts to state a cause of action for any of these asserted claims.
To prevail on an ineffective assistance of counsel claim, a petitioner must demonstrate that counsel's performance was "so deficient as to fall below an objective standard of reasonableness, and that but for counsel's deficient performance, there is a reasonable probability that the outcome . . . would have been different." Myers v. State, 2004 UT 31, ¶ 20, 94 P.3d 211. To show prejudice in the context of a guilty plea, a defendant "must show that there is a reasonable probability that, but for counsel's error, he would not have pleaded guilty and would have insisted on going to trial." State v. Martinez, 2001 UT 12, ¶ 17, 26 P.3d 203. Barnes alleged that his counsel was ineffective because counsel failed to investigate mitigating circumstances and failed to file any motions on Barnes's behalf. Barnes did not identify what type of motion should have been filed, nor did he specify mitigating factors not presented to the court. He also did not allege any facts that would establish prejudice. Barnes's petition does not contain sufficient facts to state a cause of action for ineffective assistance of counsel.
Barnes also asserted that the trial court failed to conduct a proper colloquy under rule 11. "[I]n post-conviction relief cases, `a failure to comply with Utah's rule 11 in taking a guilty plea does not in itself amount to a violation of a defendant's rights under either the Utah or the United States Constitution.'" Moench, 2004 UT App 57 at ¶ 17 (quotingSalazar v. Warden, 852 P.2d 988, 992 (Utah 1993)). To obtain post-conviction relief, a defendant "`must show more than a violation of the prophylactic provisions of rule 11; he . . . must show that the guilty plea was in fact not knowing and voluntary.'" Id. (quoting Salazar, 852 P.2d at 992) (alteration in original).
Barnes alleged that the trial court failed to properly inform him of various rights he was waiving by his plea. However, the minutes of the plea hearing show that the trial court went through a complete colloquy, and that Barnes responded that he understood the waiver of rights and willingly entered the plea. Additionally, Barnes alleged no specific facts that demonstrate his plea was in fact unknowing and involuntary. Barnes asserted that his plea was unknowing and involuntary because he was on an antidepressant medication at the time of his plea. He did not plead specific facts, however, that demonstrate that his decision-making capacity or understanding were in fact affected by the drug.
Barnes did not plead sufficient facts in his petition to support a claim for relief. Thus, the trial court properly dismissed the petition as frivolous on its face.
Accordingly, the dismissal of Barnes's petition is affirmed.
Russell W. Bench, Associate Presiding Judge, James Z. Davis, Judge, Gregory K. Orme, Judge.