Schwenke v. State
2012 UT App 18
Utah Ct. App.2012Background
- Schwenke appeals the district court's July 29, 2011 ruling and October 6, 2011 order dismissing his amended post‑conviction relief petition.
- The Utah Court of Appeals granted a sua sponte summary disposition after Schwenke obtained a final order on October 6, 2011, establishing appellate jurisdiction.
- Schwenke claimed Utah Code section 78B‑9‑104 is unconstitutional because it limits relief from wrongful imprisonment, but the argument was not preserved below.
- Schwenke argued for effective assistance of counsel in the post‑conviction process; the court noted there is no right to counsel in post‑conviction proceedings and he represented himself.
- The district court found a technical defect in the original petition that required correction before merits review and allowed amendment rather than dismissing outright.
- The court limited review to grounds permitted under the Post‑Conviction Remedies Act and held claims raised or could have been raised at trial or on appeal are precluded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of constitutional challenge to the Act | Schwenke: grounds unconstitutional | State: not preserved in district court | Unpreserved arguments are not reviewable |
| Right to counsel in post‑conviction proceedings | Schwenke asserts ineffective assistance | State: no right to counsel in post‑conviction relief | No right to counsel; self‑representation permitted |
| Scope of claims under the Post‑Conviction Remedies Act | Schwenke seeks broader relief beyond Act grounds | State: limits claims to Act grounds | Court properly limited claims to Act grounds |
| Preclusion of raised or trial‑level issues | Schwenke argues merits were not fully reviewed | State: claims raised or raisable at trial are precluded | Relief denied; claims precluded under 78B‑9‑106 |
Key Cases Cited
- State v. Holgate, 2000 UT 74 (Utah) (claims not raised may be reviewed only on appeal)
- Hutchings v. State, 2003 UT 52 (Utah) (no right to counsel in post‑conviction relief)
- State v. Wareham, 2006 UT App 327, 143 P.3d 302 (Utah Ct. App. 2006) (hybrid representation not allowed; pro se filing after appointment)
- Gardner v. State, 2010 UT 46, 234 P.3d 1115 (Utah) (proper grounds required under Post‑Conviction Remedies Act)
- State v. Frampton, 737 P.2d 183 (Utah) (defendant who represents himself cannot claim ineffective assistance)