Opinion
Case No. 20010595-CA.
Filed June 26, 2003. (Not For Official Publication)
Appeal from the Fourth District, Provo Department, The Honorable Lynn W. Davis.
Brian Richard Peterson, Draper, Appellant Pro Se.
Mark L. Shurtleff and Erin Riley, Salt Lake City, for Appellee.
Before Judges Bench, Davis, and Thorne.
MEMORANDUM DECISION
Appellant Brian Richard Peterson appeals from the denial of his petition for post-conviction relief.
Peterson is precluded from raising any ground in his post-conviction petition that could have been, but was not, raised at trial or on appeal.See Utah Code Ann. § 78-35a-106(1) (2002). However, "if the failure to raise that ground was due to ineffective assistance of counsel," preclusion does not apply. Id. § 78-35a-106(2). The district court found that Peterson was not denied his right to appeal his sentence. A party challenging factual findings on appeal must marshal the evidence supporting the verdict, i.e., must "present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists," and then demonstrate that "there is a fatal flaw in the evidence." West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct.App. 1991). Peterson has not met this burden.
Peterson's petition claimed he was denied his right to appeal by counsel's failure to initiate an appeal when requested to do so. Following an evidentiary hearing, the district court found that counsel was not requested to perfect an appeal, and $1,000 received by counsel after sentencing paid the balance due for legal services and was not payment for an appeal. The court further found trial counsel would have filed an appeal upon a request. On appeal, Peterson does not contend that counsel was specifically requested to file an appeal, but claims it was obvious to trial counsel that he wished to appeal the sentence. The claim is without evidentiary support. We conclude that the findings are adequately supported and that they, in turn, support the conclusion that Peterson was not denied a right to appeal by ineffectiveness of counsel.
Because Peterson was not precluded from appealing his sentence by the actions of trial counsel, he is precluded from claiming that counsel was ineffective in representing him in his 1990 sentencing hearing. We also affirm the district court's findings and its conclusion that Peterson had not demonstrated that his counsel was ineffective at sentencing as consistent with the evidence presented at the evidentiary hearing.
Peterson also failed to marshal the evidence and demonstrate error in the extensive findings of fact on the claim that his no contest plea was knowing and voluntary. The court found that Peterson was fully advised by counsel about the consequences of a no contest plea to the first degree felony of forcible sodomy, including a possible prison sentence of five years to life. The court also found that although Peterson was advised that there was a chance he could receive probation, the sentencing court would not be bound by his recommendation. Without undertaking marshaling of the evidence, Peterson simply reasserts that he was led by counsel to believe that probation was the probable outcome at sentencing. The district court found that Peterson's testimony was not credible, and we do not disturb its finding. See Promax Dev. Corp. v. Mattson, 943 P.2d 247, 255 (Utah Ct.App. 1997) (stating it is trial court's role to assess witness credibility based upon its advantaged position to observe testimony). We do not consider the claim asserted for the first time on appeal that trial counsel failed to accurately predict the parole determination by the Board of Pardons.
We affirm the judgment of the district court denying the petition for post-conviction relief.
Russell W. Bench, Judge, James Z. Davis, Judge, and William A. Thorne Jr., Judge, concur.