Alvarez-Delvalle v. State

2015 UT App 126

THE UTAH COURT OF APPEALS

JOSE LUIS ALVAREZ-DELVALLE,
Petitioner and Appellant,
v.
STATE OF UTAH,
Respondent and Appellee.

Per Curiam Decision
No. 20150235-CA
Filed May 21, 2015

Second District Court, Farmington Department
The Honorable Glen R. Dawson
No. 130700695

Jose Luis Alvarez-Delvalle, Appellant Pro Se
Sean D. Reyes and Mark C. Field, Attorneys
for Appellee

Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and
JOHN A. PEARCE.

PER CURIAM:

¶1 Jose Luis Alvarez-Delvalle appeals the district court’s
dismissal of his petition for post-conviction relief as procedurally
barred under Utah’s Post-Conviction Remedies Act (the PCRA).
This case is before the court on the State’s motion for summary
disposition. We affirm.

¶2 A person is not eligible for relief under the PCRA “upon
any ground that . . . was raised or addressed at trial or on
appeal.” Utah Code Ann. § 78B-9-106(1)(b) (LexisNexis 2012). In
addition, a person is not eligible for relief under the PCRA
“upon any ground that . . . could have been but was not raised at
trial or on appeal.” Id. § 78B-9-106(1)(c). There is an exception to
the procedural bar if “the failure to raise that ground was due to
Alvarez-Delvalle v. State

ineffective assistance of counsel.” Id. § 78B-9-106(3). Where, as
here, the petitioner directly appealed his conviction and was
represented by different counsel on appeal, the petitioner must
demonstrate that failure to raise the claims on direct appeal
constituted ineffective assistance by appellate counsel. See Allen
v. Friel, 2008 UT 56, ¶ 25, 194 P.3d 903 (stating that, to avoid
preclusion under the statute, claims of trial counsel’s
ineffectiveness “could only be reached if they were presented as
issues that appellate counsel should have raised but did not
because of ineffectiveness”). The district court concluded,

In this case Petitioner meets neither of the
exceptions that would allow him to raise claims in
his petition for post-conviction relief that could
have been raised on appeal but were not. Petitioner
was represented by different counsel at trial and on
appeal. Furthermore, Petitioner has not alleged
that his appellate counsel was ineffective. All of
Petitioner’s claims of ineffectiveness of counsel that
were not raised on appeal could have been raised
on appeal. Accordingly, Petitioner is not eligible
for relief under the PCRA for any claims that he
could have raised on appeal but did not. As all of
Petitioner’s claims either were raised on appeal or
could have been raised on appeal, Petitioner
cannot be afforded relief under the PCRA.

¶3 On the direct appeal of Alvarez-Delvalle’s conviction, we
held that the district court in the original criminal case correctly
denied Alvarez-Delvalle’s request for new counsel. State v.
Alvarez-Delvalle, 2012 UT App 96, ¶ 9, 275 P.3d 279. We also
considered and rejected claims that trial counsel was ineffective
for failing to call the victim’s mother to testify at trial and for
failing to present mitigating evidence at sentencing. Id. ¶ 13. In
his post-conviction petition, Alvarez-Delvalle again raised these
claims that had been adjudicated on appeal. The district court
did not err in dismissing these claims based upon the procedural
bar of section 78B-9-106(1)(b).

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Alvarez-Delvalle v. State

¶4 The district court also did not err in dismissing the
remaining claims in the post-conviction petition on the ground
that they could have been asserted on direct appeal where
Alvarez-Delvalle was represented by different counsel on
appeal. See Johnson v. State, 2011 UT 59, ¶ 11, 267 P.3d 880
(stating that a “petitioner is not procedurally barred from raising
claims of ineffective assistance of counsel [in a post-conviction
petition] if the same counsel represented the petitioner at trial
and on direct appeal”). The post-conviction petition raised
additional ineffectiveness of counsel claims that were not raised
on direct appeal, to wit: that trial counsel did not ask for a recess
to confer with him about an issue that arose during trial or object
to the trial court’s response to two jury questions. These claims
could have been raised on direct appeal and the district court
properly applied the procedural bar of section 78B-9-106(1)(c).

¶5 A “person may be eligible for relief on a basis that the
ground could have been but was not raised at trial or on appeal,
if the failure to raise that ground was due to ineffective
assistance of counsel.” Utah Code Ann. § 78B-9-106(3)
(LexisNexis 2012). When a petitioner invokes this exception, a
post-conviction court may consider the ineffective assistance
claims only in the context of a claim that appellate counsel was
also ineffective for failing to raise those claims of trial counsel’s
ineffectiveness on direct appeal. See Allen, 2008 UT 56, ¶¶ 15−16.
Alvarez-Delvalle did not assert in his post-conviction petition
that appellate counsel was ineffective for failing to raise the
additional issues of ineffectiveness of trial counsel. For the first
time on appeal, Alvarez-Delvalle asserts, in conclusory terms
and without any factual detail, that his appellate counsel was
ineffective. Because the claim was made for the first time on
appeal and is inadequately briefed, we decline to consider it. See
id.

¶6 Finally, the State correctly notes that Alvarez-Delvalle
fails to address the merits of the district court’s decision
applying the procedural bar. In addition, Alvarez-Delvalle
attempts to amplify and add to his ineffectiveness claims in his

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Alvarez-Delvalle v. State

memorandum opposing summary disposition. It is fundamental
that the burden of an appellant is to demonstrate error in the
decision being appealed. See id. ¶ 18 (stating that failure to
address the holdings in the district court’s order and inadequate
briefing support dismissal of the appeal). Alvarez-Delvalle has
made no attempt to demonstrate error in the district court’s
decision dismissing his petition as procedurally barred.

¶7 We affirm.

20150235-CA 4 2015 UT App 126