Case Information
*1 IN THE UTAH COURT OF APPEALS
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Ricky Cunningham, ) MEMORANDUM DECISION
)
Petitioner and Appellant, ) Case No. )
v. ) F I L E D
) (December 2012) Utah, ) ) App Respondent and Appellee. )
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Seventh District, Moab Department, Honorable Lyle R. Anderson
Attorneys: Ricky Gunnison, Appellant Pro Se
Mark L. Shurtleff, Brett J. DelPorto, and Patrick Nolan, Salt Lake City, Appellee
Before Judges Thorne, Christiansen.
THORNE, Judge: Petitioner Ricky relief. affirm.
¶2 A background criminal case necessary understand appeal. entered agreement guilty murder, classified domestic violence offense, driving influence (DUI) two more convictions ten years. On trial sentenced mandatory term five life murder zero five years DUI conviction. *2 Approximately four later, on March 18, 2010, filed a petition for post ‐ conviction relief, arguing counsel. [1] ¶3 The filed motion for summary judgment arguing that Cunningham’s cause action accrued one year “from date which petitioner or should in diligence, evidentiary the petition based,” see Utah Code Ann. § ‐ ‐ 107(2)(e) (LexisNexis 2008), because failed to file his post ‐ conviction relief petition frame the dismiss his case. The ‐ determined Cunningham missed deadline ‐ relief his tardiness was excused by equitable one ‐ year Utah Code section ‐ ‐ 107(3). Thereafter, dismissed petition finding that barred by one ‐ year ‐ court’s ruling, arguing tardiness is excused by Post Conviction Relief Act’s (PCRA) “interest justice” limitations. “We review an appeal from an order dismissing denying petition correctness without deference lower conclusions law.” 55, (internal quotation marks omitted). erred by failing excuse tardiness
filing petition “interest justice” exception. Cunningham asserts requires “reversal [a]ny conviction obtained via [the] deprivation [a] right regardless mere passage time.” The asserts excuses late filing petition Utah Code 35a 107(3), previous of PCRA. Utah Code 35a 107(3) Supp. language replaced by tolling provision, tolls period “for period during prevented from filing due state action violation United States Constitution, due physical or mental incapacity.” Utah Code argued defense attorney him he guilty. argued attorney investigate inability form intent related highly state neither claimed compliance PCRA nor demonstrated applies. affirm ¶7 Affirmed.
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William A. Thorne Jr., Judge
¶8 WE CONCUR:
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Carolyn Judge
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Michele M. Christiansen, Judge 9 amend. notes
[2] has not attempted to satisfy the the currently PCRA. Even the the PCRA, has to demonstrate exception would apply him. To invoke an must “persuade court that, given the combined weight the meritoriousness petitioner’s claim justifications raising it late, the interests justice require the court apply an rules.” , 94. has not only neglected provide either reason why he incapable timely filing petition,
[3] he not persuaded this given combined weight meritoriousness claim justification raising late, interests justice require this create limitations applicable
[2] statute, such current contains bar but does not include is unconstitutional. does not articulate manner current is constitutional. Nor does he address how statute, provision subsection (3), insufficiently flexible meet constitutional requirements. Thus, we decline address constitutional argument. Anderson 1099, (Utah 1985) (“It rule this [c]ourt should avoid addressing constitutional unless required do so.”).
[3] period, either knew diligence underpinning counsel claim, claim provides basis ‐ petition. concedes, appeal, he aware several months prison term, counsel him he he accepted bargain. at incident he had had