Neese v. State

2017 UT App 164
THE UTAH COURT OF APPEALS
M ICHAEL NEESE,
Appellant,
v.
S TATE OF U TAH ,
Appellee.
Per Curiam Opinion
No. 20160903-CA
Filed August 31, 2017
Fourth District Court, Provo Department
The Honorable Christine S. Johnson
No. 150400036
Michael Neese, Appellant Pro Se
Sean D. Reyes and Mark C. Field, Attorneys
for Appellee
Before JUDGES M ICHELE M. C HRISTIANSEN , K ATE A. TOOMEY , and
R YAN M. HARRIS.
PER CURIAM:
¶1 	Michael Neese appeals the district court’s order granting
the State’s motion for summary judgment and dismissing his
petition for post-conviction relief.
¶2 	Appellate courts review a district court’s order granting
summary judgment for correctness, granting no deference to the
district court. See Menzies v. State, 2014 UT 40, ¶ 30, 344 P.3d 581.
“We affirm a grant of summary judgment when the record
shows that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law.” Id. (citation and internal quotation marks omitted).

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20160903-CA 	2 	2017 UT App 164
¶3 	Utah Code section 78B-9-107(1) states that “[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). The statute goes on to set forth the
dates upon which the cause of action accrues:
(a) 	the last day for filing an appeal from the
entry of the final judgment of conviction, if no
appeal is taken;
(b) 	the entry of the decision of the appellate
court which has jurisdiction over the case, if an
appeal is taken;
(c) 	the last day for filing a petition for writ of
certiorari in the Utah Supreme Court or the United
States Supreme Court, if no petition for writ of
certiorari is filed;
(d) 	the entry of the denial of the petition for
writ of certiorari or the entry of the decision on the
petition for certiorari review, if a petition for writ
of certiorari is filed;
(e) 	the date on which petitioner knew or should
have 	known, 	in 	the 	exercise 	of 	reasonable
diligence, of evidentiary facts on which the petition
is based; or
(f) 	the date on which the new rule described in
Subsection 78B-9-104(1)(f) is established.
Id. § 78B-9-107(2). However, the Post-Conviction Remedies Act’s
“limitations period is tolled for any period during which the
petitioner 	was 	prevented 	from 	filing 	a 	petition 	. . . 	due 	to
physical or mental incapacity.” Id. § 78B-9-107(3).
¶4 	Neese 	filed 	his 	petition 	for 	post-conviction 	relief 	on
January 8, 2015. The State, in turn, filed a motion for summary
judgment 	arguing 	that 	the 	petition 	was 	time-barred 	under
section 78B-9-107. Neese filed a direct appeal following his
convictions, and this court issued a decision affirming those

Neese v. State
20160903-CA 	3 	2017 UT App 164
convictions on May 2, 2012. Neese did not file a petition for writ
of certiorari in the Utah Supreme Court. Accordingly, Neese’s
cause of action under subsection (c) accrued on June 1, 2012. The
petition was not filed within one year of that date. Therefore,
Neese’s claims are time-barred unless subsections (e) or (f)
apply, or the time for filing a petition was tolled due to Neese’s
physical or mental incapacity.
¶5 	Neese first argues that he could not have known all of the
facts relevant to his petition until February 2014, when he claims
that he became aware that the Board of Pardons and Parole
(Board) 	intended 	to 	require 	him 	to 	complete 	sex 	offender
treatment as a condition of release. The district court correctly
concluded that Neese was aware of all the facts relevant to his
petition no later than May 2, 2012, when this court resolved
Neese’s direct appeal. As of that date, Neese knew or should
have known about any medical issues that may have affected the
voluntariness of his plea. Further, Neese knew or should have
known that the Board intended to treat Neese as a sex offender
in October 2011, when he received a copy of the Board’s Original
Hearing 	Decision 	concerning 	the 	timing 	of 	his 	first 	parole
hearing. The Decision indicated that a “sex offender treatment
memo” 	would 	be 	required 	at 	Neese’s 	parole 	hearing. 	This
statement put Neese on notice that the Board intended to treat
him as a sex offender. Therefore, Neese knew or should have
known all facts upon which his petition was based on or before
May 2, 2012, thereby making his petition untimely.
¶6 	Neese 	next 	asserts 	that 	the 	district 	court 	erred 	in
concluding that the statute of limitations period was not tolled
due to alleged issues concerning his mental capacity. More
particularly, 	Neese 	proffered 	evidence 	to 	the 	district 	court
purporting to show that he suffered from mental health issues
and did not receive proper medication while incarcerated at the
Utah County Jail between November 2009 and March 2011. For
purposes of resolving the motion for summary judgment, the

Neese v. State
20160903-CA 	4 	2017 UT App 164
district 	court 	accepted 	the 	allegation 	as 	true; 	however, 	it
concluded 	that 	the 	information 	was 	irrelevant 	to 	Neese’s
condition between the time the post-conviction cause of action
accrued in June 2012 and when he filed the petition in January
2015. 	Neese 	presented 	no 	evidence 	concerning 	his 	mental
capacity 	after 	June 	2012. 	Conversely, 	the 	State 	presented 	a
transcript of Neese’s September 2011 hearing with the Board,
which 	demonstrated 	that 	Neese 	responded 	lucidly 	and
coherently to questions asked of him, had a “detailed memory of
the facts underlying his convictions,” and had a “thorough
understanding of how consecutive enhancements are applied
and how a sentencing matrix is interpreted.” Neese presented no
evidence to rebut the State’s case or to support his contention of
diminished mental capacity after June 2012. See Orvis v. Johnson,
2008 UT 2, ¶ 18, 177 P.3d 600 (stating that once a summary
judgment movant has demonstrated that there is no dispute as
to material facts, the burden shifts to the non-movant to “set
forth specific facts showing that there is a genuine issue for
trial”). Accordingly, the district court correctly concluded that
the statute of limitations was not tolled by any mental incapacity
alleged by Neese.
¶7 	Affirmed.