IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Ricky Cunningham, ) MEMORANDUM DECISION
)
Petitioner and Appellant, ) Case No. 20110254‐CA
)
v. ) FILED
) (December 20, 2012)
State of Utah, )
) 2012 UT App 358
Respondent and Appellee. )
‐‐‐‐‐
Seventh District, Moab Department, 100700055
The Honorable Lyle R. Anderson
Attorneys: Ricky Cunningham, Gunnison, Appellant Pro Se
Mark L. Shurtleff, Brett J. DelPorto, and Patrick B. Nolan, Salt Lake
City, for Appellee
‐‐‐‐‐
Before Judges Thorne, McHugh, and Christiansen.
THORNE, Judge:
¶1 Petitioner Ricky Cunningham appeals the dismissal of his petition for post‐
conviction relief. We affirm.
¶2 A brief procedural background of Cunningham’s criminal case is necessary to
understand the issues on appeal. Cunningham entered into a plea agreement with the
State and pleaded guilty to murder, classified as a domestic violence offense, and
driving under the influence (DUI) with two or more prior convictions within ten years.
On May 5, 2005, the trial court sentenced Cunningham to a mandatory term of five
years to life on the murder conviction and zero to five years for the DUI conviction.
Approximately four years later, on March 18, 2010, Cunningham filed a petition for
post‐conviction relief, arguing ineffective assistance of counsel.1
¶3 The State filed a motion for summary judgment arguing that Cunningham’s
cause of action accrued one year “from 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,” see Utah Code Ann. § 78B‐9‐107(2)(e) (LexisNexis 2008), and because
Cunningham failed to file his post‐conviction relief petition within that time frame the
court should dismiss his case. The post‐conviction court determined that Cunningham
missed the deadline for post‐conviction relief and that his tardiness was not excused by
the equitable tolling exception to the one‐year statute of limitations under Utah Code
section 78B‐9‐107(3). Thereafter, the court dismissed Cunningham’s petition finding that
it was barred by the one‐year statute of limitations for post‐conviction relief.
Cunningham appeals the court’s post‐conviction ruling, arguing that his tardiness is
excused by the Post‐Conviction Relief Act’s (PCRA) “interest of justice” exception to the
one‐year statute of limitations. “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
(internal quotation marks omitted).
¶4 Cunningham argues that the court erred by failing to excuse his tardiness in
filing his post‐conviction petition under an “interest of justice” exception. Cunningham
asserts that the “interest of justice” exception requires “reversal of [a]ny conviction
obtained via [the] deprivation of [a] fundamental right regardless of the mere passage
of time.” The “interest of justice” exception that Cunningham asserts excuses the late
filing of his petition is found in Utah Code section 78‐35a‐107(3), a previous version of
the PCRA. See Utah Code Ann. § 78‐35a‐107(3) (LexisNexis Supp. 2007). The “interest of
justice” language in section 78‐35a‐107(3) has been replaced by the current tolling
provision, effective May 5, 2008, that tolls the limitation period “for any period during
which the petitioner was prevented from filing a petition due to state action in violation
of the United States Constitution, or due to physical or mental incapacity.” Utah Code
1
Cunningham argued that his defense attorney incorrectly advised him that he
would serve less time in prison if he pleaded guilty. Cunningham also argued that his
attorney failed to investigate an inability to form intent defense related to his highly
intoxicated state and bipolar disorder.
20110254‐CA 2
Ann. § 78B‐9‐107(3) amend. notes (LexisNexis 2008).2 Cunningham has not attempted to
satisfy the requirements of the currently effective PCRA.
¶5 Even under the prior version of the PCRA, Cunningham has failed to
demonstrate that any “interest of justice” exception would apply to him. To invoke an
“interest of justice” exception under section 78‐35a‐107, a petitioner must “persuade the
court that, given the combined weight of the meritoriousness of petitioner’s claim and
the justifications for raising it late, the interests of justice require the court to apply an
exception to procedural rules.” Gardner, 2010 UT 46, ¶ 94. Cunningham has not only
neglected to provide either court with the reason why he was incapable of timely filing
his post‐conviction petition,3 he has not persuaded this court that given the combined
weight of the meritoriousness of his claim and the justification for raising it late, the
interests of justice require this court to create an exception to the statute of limitations
applicable to post‐conviction relief.
2
Cunningham also argues that a post‐conviction statute, such as the current
section 78B‐9‐107, that contains a limitation bar but does not include an “interest of
justice” exception is unconstitutional. Cunningham does not articulate the manner in
which the current statute of limitations for post‐conviction relief is not constitutional.
Nor does he address how the current statute, with the tolling provision in subsection
(3), is insufficiently flexible to meet constitutional requirements. Thus, we decline to
address Cunningham’s constitutional argument. See State v. Anderson, 701 P.2d 1099,
1103 (Utah 1985) (“It is a fundamental rule that this [c]ourt should avoid addressing
constitutional issues unless required to do so.”).
3
Cunningham, within the one‐year statute of limitations period, either knew or
should have known, in the exercise of reasonable diligence of the facts underpinning his
ineffective assistance of counsel claim, which claim provides the basis for his post‐
conviction petition. Cunningham concedes, in his brief on appeal, that he was aware
several months into his prison term, that his defense counsel incorrectly advised him
that he would serve less time in prison if he accepted the plea bargain. The post‐
conviction court found that Cunningham knew at the time of the incident that he had
been intoxicated and that he had bipolar disorder.
20110254‐CA 3
¶6 Cunningham has neither claimed compliance with the PCRA requirements nor
demonstrated that any “interest of justice” exception applies. We affirm the post‐
conviction court’s dismissal of Cunningham’s petition for post‐conviction relief.
¶7 Affirmed.
____________________________________
William A. Thorne Jr., Judge
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¶8 WE CONCUR:
____________________________________
Carolyn B. McHugh, Judge
____________________________________
Michele M. Christiansen, Judge
20110254‐CA 4