Branch v. State

2015 UT App 204
THE UTAH COURT OF APPEALS
C LARENCE S HEDWOOD BRANCH ,
Appellant,
v.
S TATE OF U TAH ,
Appellee.
Amended Per Curiam Decision1
No. 20140505-CA
Filed August 13, 2015
Second District Court, Farmington Department
The Honorable John R. Morris
No. 130700217
Clarence Shedwood Branch, Appellant Pro Se
Sean D. Reyes and Andrew F. Peterson, Attorneys
for Appellee
Before JUDGES GREGORY K. O RME, J. F REDERIC VOROS JR ., and
JOHN A. PEARCE.
PER CURIAM:
¶1 	Clarence Shedwood Branch appeals the dismissal of his
petition for post-conviction relief as time-barred under Utah’s
Post-Conviction Remedies Act (the PCRA). We affirm.
¶2 	Pursuant to a plea bargain that resolved three criminal
cases, Branch pleaded guilty to first degree felony aggravated
assault, second degree felony attempted rape, and third degree
1. This Amended Per Curiam Decision replaces our Per Curiam
Decision issued June 18, 2015, see Branch v. State, 2015 UT App
155. In this decision, we modify the last sentence of paragraph 7
and revise paragraph 8.

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20140505-CA 	2 	2015 UT App 204
felony aggravated assault. On December 22, 2005, the district
court sentenced Branch to fifteen years to life for aggravated
sexual assault, one to fifteen years for attempted rape, and zero
to five years for aggravated assault, with the terms to run
consecutively. Branch did not seek to withdraw his guilty pleas
and did not appeal.
¶3 	Under the PCRA, 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). If no
direct appeal is filed, the cause of action accrues on “the last day
for filing an appeal from the entry of the final judgment of
conviction.” Id. § 78B-9-107(2)(a). Branch had until January 21,
2006, to file a notice of appeal. Therefore, his cause of action
accrued on that date, and he had one year, until January 21,
2007, in which to file a timely post-conviction petition. Branch
filed his petition on March 12, 2013, in which he challenged the
voluntariness 	of 	his 	guilty 	pleas 	and 	claimed 	ineffective
assistance of his trial counsel. In support of the latter claim, he
alleged that he received inaccurate advice about the potential
sentence, he was under the influence of medication administered
at 	the 	jail, 	and 	counsel 	failed 	to 	investigate 	his 	mental
competence.2 Branch claimed counsel did not tell him about
lesser included offenses, told him he would be paroled, refused
to file motions challenging the credibility of the aggravated
sexual assault victim, did not hire an expert, incorrectly waived
a 	preliminary 	hearing, 	and 	did 	not 	explain 	indeterminate
sentencing to him.
¶4 	The PCRA provides that “[t]he limitations period is tolled
for any period during which the petitioner was prevented from
filing a petition due to state action in violation of the United
2. Records from the underlying criminal cases reflect that after
competency evaluation proceedings, the court found that Branch
was competent.

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20140505-CA 	3 	2015 UT App 204
States Constitution, or due to physical or mental incapacity.” Id.
§ 	78B-9-107(3). 	Branch 	had 	the 	burden 	to 	prove 	by 	a
preponderance of the evidence that he was entitled to relief
under section 78B-9-107(3). He did not allege any action by the
State 	in 	violation 	of 	the 	United 	States 	Constitution 	that
prevented him from timely filing his petition. In addition, the
district court correctly concluded that while Branch claimed that
he was under the influence of medication at the time of his guilty
pleas and sentencing, he did not allege or demonstrate that his
failure to file a post-conviction petition for over seven years after
conviction was due to his physical or mental incapacity.
¶5 	After the district court raised a possible time bar and the
State filed a motion to dismiss on the same basis, Branch claimed
that his petition was based upon a claim of factual innocence or
exoneration through DNA testing. These claims were made in an
apparent attempt to avoid the time bar applicable to his PCRA
claims 	as 	pleaded. 	See 	id. 	§ 	78B-9-107(4) 	(“The 	statute 	of
limitations is tolled during the pendency of the outcome of a
petition asserting: (a) exoneration through DNA testing under
Section 78B-9-303; or (b) factual innocence under Section 78B-9-
401.”). However, the State correctly notes that Branch’s petition
alleged that he received ineffective assistance of counsel and that
his guilty pleas were invalid. He did not allege a statutory
factual innocence or exoneration through DNA testing claim,
although 	his 	filings 	mentioned 	DNA 	evidence 	in 	passing.
Furthermore, factual innocence or exoneration through DNA
testing claims must be made in separate petitions and cannot be
combined in a petition under the PCRA’s general provisions. See
id. § 78B-9-104(3) (stating that DNA testing and factual innocence
claims “may not be filed as part of a petition under” the general
provisions of the PCRA, “but shall be filed separately and in
conformity with the provisions of Part 3 or Part 4”). The district
court correctly concluded that the statutory tolling provisions
applicable to factual innocence or exoneration through DNA
testing petitions were inapplicable to Branch’s petition in this

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case, and those provisions did not act to extend the limitations
period.
¶6 	Branch also claimed that he was entitled to equitable
tolling of the PCRA’s time bar based upon the “interests of
justice” or egregious injustice exceptions. The 2008 amendments
to 	the 	PCRA 	removed 	the 	previous 	“interests 	of 	justice”
language and replaced it with the statutory tolling provisions of
section 78B-9-107. See Cunningham v. State, 2012 UT App 358, ¶ 4,
294 P.3d 588. While Utah Supreme Court case law suggests that
a court may have the authority to consider claims that are
otherwise 	procedurally 	barred, 	the 	supreme 	court 	has 	not
delineated the parameters of any exception. See Gardner v. State,
2010 UT 46, ¶ 94, 234 P.3d 1115; see also Winward v. State, 2012 UT
85, ¶ 14, 293 P.3d 259 (stating that Gardner “explicitly declined to
decide whether any exception to the PCRA’s procedural bars
survived the 2008 amendments”). In Winward, the supreme court
articulated a framework for considering a petitioner’s claim that
he qualifies for an exception to the PCRA’s procedural bars.
Winward, 	2012 	UT 	85, 	¶ 	18. 	As 	a 	“threshold 	question, 	[a
petitioner] 	must 	demonstrate 	that 	he 	has 	a 	reasonable
justification 	for 	missing 	the 	deadline, 	combined 	with 	a
meritorious 	defense.” 	Id. 	Thus, 	a 	petitioner 	is 	required 	to
“persuade the court that, given the combined weight of the
meritoriousness of the petitioner’s claim and the justifications for
raising 	it 	late, 	the 	court 	should 	consider 	recognizing 	an
exception to the PCRA’s procedural rules.” Id. ¶ 20 (citation and
internal quotation marks omitted).
¶7 	Here, the district court found that Branch “provided no
justification for waiting approximately seven years to file” the
petition and that Branch alleged no facts to suggest that the
conduct of his trial counsel or the medications he had taken “had
any effect on his ability to timely raise his claims.” Accordingly,
Branch could not satisfy the threshold test to merit any further
consideration of an exception to the PCRA’s time bar. See id. ¶ 19
(stating that if the threshold question is not satisfied, the court

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need not address the question of the constitutional authority to
recognize 	an 	exception 	to 	the 	PCRA’s 	procedural 	bar).
Accordingly, the district court correctly rejected the claim that
Branch 	justified 	his 	filing 	delay 	sufficient 	to 	even 	consider
whether he should be excused from the time bar.
¶8 	Finally, Branch suggested that he was entitled to assert his
claims based upon Winward because he argued it announced a
change in the law applicable to ineffective assistance of counsel
claims arising during the plea bargaining process and therefore
should toll the statute of limitations on Branch’s similar claim
under 	the 	statutory 	exception 	contained 	in 	section 	78B-9-
104(1)(f). Id. ¶ 35 (“Because the U.S. Supreme Court’s decision in
Lafler [v. Cooper, 132 S. Ct. 1376 (2012)] overrules our holding in
[State v.] Greuber [2007 UT 50, 165 P.3d 1185], Mr. Winward may
be entitled to file a new post-conviction claim under the PCRA’s
statute 	of 	limitations.”). 	Because 	Branch 	accepted 	his 	plea
bargain, the situation addressed in Winward does not exist in the
underlying case and the Winward holding would not apply to
Branch’s claims. Furthermore, the Utah Supreme Court has since
determined in Winward’s second appeal that Lafler v. Cooper, 132
S.Ct. 1376 (2012), and Missouri v. Frye, 132 S.Ct. 1399 (2012), “do
not give rise to a new cause of action under the PCRA.” Winward
v. State, 2015 UT 61, ¶ 2.
¶9 	Because Branch’s remaining claims were not presented to
the district court and are therefore unpreserved, those claims
will not be considered for the first time on appeal. See State v.
Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. Accordingly, we affirm
the district court’s dismissal of Branch’s post-conviction petition
as time-barred.