Case Information
*1 IN THE UTAH COURT OF APPEALS
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Alapati Paul Schwenke, ) PER CURIAM DECISION
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Petitioner Appellant, ) Case No. )
v. )
) F I L E D Utah, ) (January 20, 2012) )
Respondent Appellee. ) App 18 )
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Fourth District, Fillmore Department, 110700044
The Honorable Donald J. Eyre, Jr.
Attorneys: Alapati Paul Schwenke, Draper, Appellant Pro Se
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Before Judges McHugh, Thorne, Christiansen.
¶1 Alapati Paul seeks appeal court’s July 29, ruling October order summarily for relief. This matter before sua sponte motion for summary disposition basis so insubstantial as not merit further proceedings consideration court, well own motion summary reversal.
originally issued sua sponte motion summary disposition based lack final appealable order. However, subsequently obtained a final order October operated confer jurisdiction this
(continued...) *2 ¶2 In motion for summary reversal Schwenke argues that portions of the ‐ Act unconstitutional. Specifically, he that Code ‐ 9 ‐ 104, sets forth the which post ‐ conviction relief may be based, is unconstitutional because it unfairly limits a person’s right to seek relief from wrongful imprisonment. However, Schwenke never this argument in the district court. Accordingly, the argument not preserved for review. See State v. Holgate , 2000 UT 74, ¶ 11, 10 P.3d 346 (stating that generally “claims not raised before the court may not be appeal”).
¶3 Schwenke complains also he not afforded the right to effective assistance counsel in the post conviction proceeding. In the first instance, there is no statutory constitutional right to counsel in a post conviction proceeding. See Hutchings v. State , UT ¶ 20, 84 P.3d 1150. As such, he had no right to effective appointed counsel in proceeding. Second, while there is an anomalous order in record granting Schwenke’s request for appointment counsel, after entry the order continued to file all pleadings pro se basis. A “defendant may choose self representation the counsel, but not entitled to ‘hybrid representation’ where he could both enjoy the file pro se motions.” State Wareham App ¶ 302. By continuing file all documents pro se, he chose represent himself instead being represented by appointed counsel. Accordingly, right effective was violated. asserts the district court erred in dismissing petition post conviction relief frivolous its face. Specifically, argues that because the district court allowed amend original petition post ‐ conviction rather than the petition frivolous, the district court had already implicitly ruled the frivolous. Schwenke argues district should have required the respond the petition. This case. district found technical defect in original petition needed be corrected before court merits petition. More particularly, original failed (...continued) court.
state whether his conviction had been reviewed on appeal, “and if so, the number and title the proceeding, the issues raised on appeal, the results the appeal.” Utah R. Civ. P. 65C(d)(4). The district court allowed to correct this procedural defect rather than the petition prior to reviewing its merits. the district court did err when it later reviewed the petition to determine whether it frivolous. See id. R. 65C(h)(1) (requiring the district court a petition determine whether it frivolous on its face prior to service on the State).
¶5 next argues the district court erred in limiting any claims set forth in post ‐ conviction relief those based upon ineffective newly discovered evidence. Utah Code 78B ‐ 9 ‐ 104 sets forth the grounds upon which petitioner may seek post ‐ conviction relief. See Utah Code Ann. § 78B ‐ 9 ‐ 104(1) (Supp. 2011). Such grounds, which include claims based upon ineffective newly discovered evidence, the sole grounds upon which petitioner may obtain relief under the Post ‐ Conviction Remedies Act. [2] See Gardner 2010 ¶ 234 1115 (stating if claim is procedurally proper, “relief may be granted on one the specific grounds set forth in the [Post ‐ Conviction Remedies Act]”). Contrary Schwenke’s argument, the district court did limit claims those based solely on ineffective counsel those based newly discovered evidence. Instead, the court limited claims those allowed by the Post ‐ Conviction Remedies Act, which included those two grounds. While the did refer solely those two when discussing one of claims, it only after the determined such claim have been at appeal. See Utah Code Ann. § 78B ‐ ‐ 106(1)(c) ‐ (d) (Supp. 2011). Further, never articulated how such claim fit within any other grounds relief allowed by Post ‐ Conviction Remedies Act. Thus, court correctly limited those allowed act. Finally, Post ‐ Conviction Remedies Act precludes any other
issues raises in appeal. A petitioner eligible under Post Conviction Remedies Act any ground “was addressed at trial Act has different parts addressing of actual innocence testing DNA, encompass different pleading requirements. See Code Ann. §§ ‐ (Supp. 2011). *4 or on appeal” or “could have been raised but was raised at trial or on appeal.” Id. Accordingly, Schwenke is precluded from obtaining any on his claims that he was guilty matter of law that evidence was insufficient support his conviction, because these claims either were raised could have been raised at trial or on appeal. Further, his claim that certain witnesses perjured themselves claim that should have been raised at trial appeal. Schwenke supports these claims solely with citations underlying record. As such, these claims should have been known him during trial appeal could have been at that time. Therefore, all such precluded Code 106. claim he provided ineffective during
his trial similarly precluded. First, represented himself during trial on appeal. Accordingly, cannot base his own ineffectiveness counsel. See Frampton (Utah 1987) (stating “a defendant who elects represent himself cannot thereafter complain quality own defense amounted denial ‘effective counsel’”). To extent he complains about actions original appointed attorney prior representing himself at trial, all such allegations ineffectiveness known at time during appeal. they have been at time. For these reasons, entitled ineffective under Act. ¶8 Accordingly, we affirm.
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Carolyn B. McHugh,
Presiding Judge
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William A. Thorne Jr., Judge
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Michele M. Christiansen, Judge