Avila v. Taylorsville City

2018 UT App 11

THE UTAH COURT OF APPEALS

GASPAR AVILA,
Appellant,
v.
TAYLORSVILLE CITY,
Appellee.

Opinion
No. 20160612-CA
Filed January 19, 2018

Third District Court, Salt Lake Department
The Honorable Su J. Chon
No. 150908680

Steven L. Newton and Alexander J. Helfer, Attorneys
for Appellant
Stephen K. Aina, Attorney for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

ORME, Judge:

¶1 Appellant Gaspar Avila appeals the district court’s
dismissal of his petition for post-conviction relief on summary
judgment. We conclude that the petition was untimely and
affirm.

¶2 On February 27, 2007, Avila pled guilty to, and was
sentenced on, one count of driving under the influence of
alcohol, drugs, or a combination of both, which is a class B
misdemeanor. At the time of his guilty plea, Avila signed a
waiver of rights acknowledging that his plea was knowing and
voluntary. He was not represented by counsel, but he was
advised in the waiver that he had the right to representation. He
was sentenced immediately by the Taylorsville Justice Court
Avila v. Taylorsville City

after signing the waiver and entering his guilty plea. He did not
file a direct appeal.

¶3 Late in 2015, more than eight years after his sentencing,
Avila filed a petition for post-conviction relief under Utah’s
Post-Conviction Remedies Act (the PCRA). See Utah Code Ann.
§§ 78B-9-101 to -405 (LexisNexis 2012). Taylorsville City moved
for summary judgment on the ground that the petition was time-
barred. The district court agreed and granted the City summary
judgment, relying on section 107 of the PCRA. See id. § 78B-9-107.
“We review an appeal from an order dismissing or denying a
petition for post-conviction relief for correctness without
deference to the lower court’s conclusions of law.” Gardner v.
State, 2010 UT 46, ¶ 55, 234 P.3d 1115 (citation and internal
quotation marks omitted). “Similarly, we review a grant of
summary judgment for correctness, granting no deference to the
lower court.” Ross v. State, 2012 UT 93, ¶ 18, 293 P.3d 345
(brackets, citation, and internal quotation marks omitted).

¶4 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). If no direct appeal is
filed, then the cause of action accrues on the later of “the last day
for filing an appeal from the entry of the final judgment of
conviction,” id. § 78B-9-107(2)(a), or “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,” id. § 78B-9-107(2)(e). Avila had until March 29, 2007, to
file a direct appeal of his guilty plea; therefore, any petition for
post-conviction relief filed after March 29, 2008, is presumptively
time-barred. 1

1. At the time of Avila’s sentencing, a criminal defendant had
thirty days to file a notice of appeal from a justice court
conviction. See Utah Code Ann. § 78-5-120(1) (LexisNexis Supp.
(continued…)

20160612-CA 2 2018 UT App 11
Avila v. Taylorsville City

¶5 Nonetheless, Avila argues that his petition was timely
because it was filed within one year of his discovering the
allegedly new facts on which his petition is based. He asserts
that he became aware “on or about November 13, 2015,” that the
justice court “failed to comply with Rule 11(e)” of the Utah Rules
of Criminal Procedure. He contends that, due to this failure,
there is “sufficient doubt” that his plea was knowing and
voluntary.

¶6 “[T]he ‘trigger’ under section 78B-9-107(2)(e) is actual or
imputed discovery of the evidentiary facts supporting the
petition.” Brown v. State, 2015 UT App 254, ¶ 10, 361 P.3d 124.
The “evidence” underlying Avila’s claim is the following: (1) an
affidavit by Avila stating that the court did not comply with rule
11(e), (2) his waiver of rights signed at the time of his guilty plea,
(3) the court docket, and (4) “the lack of an Information.” Under
section 78B-9-107(2)(e), “the time commences when the factual
predicate could have been discovered through the exercise of
due diligence, not when it was actually discovered by a given
[petitioner].” Brown, 2015 UT App 254, ¶ 9 (citation and internal
quotation marks omitted). All of Avila’s evidence has been
available to him since his sentencing in 2007. Further, any claim
based on these evidentiary facts could have been raised on direct
appeal. See Utah Code Ann. § 78B-9-106 (stating that a petitioner
is not eligible for relief “upon any ground that . . . could have
been but was not raised at trial or on appeal”).

¶7 Avila’s argument does not focus on any new evidence but
rather on various cases to demonstrate a significant departure by
the justice court from the requirements of rule 11(e) of the Utah

(…continued)
2001). The Utah Legislature amended the statute in 2016,
permitting a criminal defendant only twenty-eight days to file
such a notice of appeal. See id. (Supp. 2016).

20160612-CA 3 2018 UT App 11
Avila v. Taylorsville City

Rules of Criminal Procedure. Avila argues that it is “unrealistic”
to assume that at the time of his plea he, as an unrepresented
party, would have been aware of rule 11(e) or its significance in
regard to his guilty plea. But the extent of his legal knowledge is
essentially irrelevant; all the “evidence” he refers to would have
been available to him at the time he entered his plea and was
sentenced. And instead of presenting new evidence that only
became available to him during the seven years following his
guilty plea, Avila merely asserts that he did not understand the
legal significance of rule 11(e)’s requirements at the time of his
sentencing. As we stated in Brown, “the time for filing begins to
run when the petitioner knows or, in the exercise of reasonable
diligence, should have known the evidentiary facts and not when
the petitioner recognizes their legal significance.” 2015 UT App 254,
¶ 10 (emphasis added) (brackets, citation, and internal quotation
marks omitted).

¶8 Because Avila’s petition refers to no new evidence and the
period to file his petition therefore began to run on March 29,
2007, the district court correctly concluded that Avila’s 2015
petition was time-barred. Accordingly, the district court
properly granted summary judgment to the City.

¶9 Affirmed.

20160612-CA 4 2018 UT App 11