Wamsley v. State

2014 UT App 254
_________________________________________________________

THE UTAH COURT OF APPEALS

KORTE H. WAMSLEY JR.,
Plaintiff and Appellant,
v.
STATE OF UTAH,
Defendant and Appellee.

Opinion
No. 20121006-CA
Filed October 23, 2014

Third District Court, West Jordan Department
The Honorable Charlene Barlow
No. 120409899

Korte H. Wamsley Jr., Appellant Pro Se

Sean D. Reyes and Brett J. DelPorto, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
JOHN A. PEARCE and SENIOR JUDGE RUSSELL W. BENCH concurred.1

ROTH, Judge:

¶1 Korte H. Wamsley Jr. entered Alford pleas to two counts
of sexual abuse of a child involving two of his daughters. Five
years later, Wamsley filed a petition for postconviction relief

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah R. Jud.
Admin. 11-201(6).
 Wamsley v. State

alleging that he was factually innocent. Wamsley submitted with
the petition an affidavit from the younger daughter, stating that
her father had never touched her inappropriately. The district
court granted the State’s subsequent motion to dismiss the
petition, finding that the affidavit was ‚not . . . credible.‛
Wamsley appeals, arguing that the court inappropriately
weighed the evidence and denied his request for an evidentiary
hearing. We affirm.

BACKGROUND

¶2 In 2005, the State charged Wamsley with six first degree
felony counts of aggravated sexual abuse of a child. Wamsley’s
older daughter (Older Daughter) had told investigators that he
began abusing her in August 2004 and continued until the early
months of 2005. Wamsley’s younger daughter (Younger
Daughter) also came forward and told police that her father had
touched her inappropriately sometime around May 2005.
According to Younger Daughter, Wamsley came into her
bedroom at night and told her he needed to check her for
something. He instructed Younger Daughter to take off her
pants and underwear, lie on her stomach, and open her legs. He
then placed his hands on Younger Daughter’s thighs and spread
her legs, causing her pain. He stopped and left the room when
he heard somebody open the front door to their home.

¶3 Wamsley eventually entered Alford guilty pleas2 to two
second degree felony counts of sexual abuse of a child, one for

2. ‚By entering an Alford plea, a defendant does not admit guilt.
Rather, the defendant enters a guilty plea because he recognizes
that a prosecutor has enough evidence to obtain a guilty
verdict.‛ State v. Ott, 2010 UT 1, ¶ 9 n.2, 247 P.3d 344; see also
North Carolina v. Alford, 400 U.S. 25, 37–38 (1970).

20121006-CA 2 2014 UT App 254
 Wamsley v. State

each daughter.3 The court sentenced Wamsley to two
indeterminate prison terms of one to fifteen years, then
suspended the prison terms and placed Wamsley on probation
for seventy-two months. The court prohibited Wamsley from
having any contact with Older Daughter and Younger Daughter.

¶4 Wamsley filed a petition for postconviction relief in 2012,
alleging that he was ‚factually innocent of the crimes for which
he was convicted and sentenced.‛ The only evidence submitted
with the petition was the affidavit of Younger Daughter.
According to the affidavit, Younger Daughter had turned
eighteen and wanted to reestablish a relationship with her
father. She asked the court to remove the no-contact order,
stating that she ‚want*s her] father . . . to be[ ]able to see [her]
and want[s] all charges/convictions concerning him reversed.‛
The substantive focus of her affidavit is paragraph 3, where she
states, ‚I . . . repeatedly have declared that my father . . . has
never touched me inappropriately or in any of my private areas.
Also I never wanted charges filed against my father nor did I
participate in filing charges against him.‛

¶5 The State moved to dismiss the petition, arguing that
‚because *Wamsley’s conviction+ . . . is based upon his plea of
guilty . . . , and [his petition] relies solely upon the recantation of
prior statements and sworn testimony made by [Younger
Daughter+, the petition should be dismissed.‛ See Utah Code

3. The State ‚question*s+ whether *Younger Daughter’s+ affidavit
has any relevance to *Wamsley’s+ claim of factual innocence‛
because ‚under the most reasonable interpretation of the Third
Information and the Plea Statement, Wamsley pleaded guilty to
two counts of abusing *Older Daughter+.‛ We have carefully
reviewed the record and find the State’s argument unpersuasive.

20121006-CA 3 2014 UT App 254
 Wamsley v. State

Ann. § 78B-9-402(4) (LexisNexis Supp. 2013)4 (providing that the
court ‚may dismiss the petition at any time . . . if the court finds
that the evidence of factual innocence relies solely upon the
recantation of testimony or prior statements made by a witness
against the petitioner, and the recantation appears to the court to
be equivocal or selfserving‛). With the motion, the State
submitted affidavits from Older Daughter and the girls’ mother
(Mother) reaffirming their prior statements to investigators that
Wamsley sexually abused his daughters. In addition, Older
Daughter stated in her affidavit that she heard Younger
Daughter tell her grandmother and Mother that Wamsley
sexually abused Younger Daughter and that Younger Daughter
had disclosed the abuse to her as well. Mother also stated that
both of her daughters told her ‚that they were, each, sexually
abused by their father.‛

¶6 In response, Wamsley attacked the credibility of Older
Daughter and Mother, submitting more than sixty pages of
documents that he argued showed that Older Daughter’s
affidavit ‚contains untrue statements‛ and that Mother’s
‚declaration *is+ untrue.‛ The court granted the State’s motion
and dismissed Wamsley’s petition. The court did ‚not find
[Younger Daughter’s] affidavit to be credible given [her] prior
testimony‛ and the statements in Older Daughter’s and Mother’s
affidavits. As a result, the court concluded, quoting section 78B-
9-402(9)(c) of the Utah Code, that Wamsley had ‚not presented

4. Because the provisions in effect at the relevant time do not
differ from the statutory provisions now in effect in any way
material to our analysis, we cite to the current edition of the
Utah Code Annotated as a convenience to the reader.

20121006-CA 4 2014 UT App 254
 Wamsley v. State

credible evidence that would establish a ‘bona fide and
compelling issue of factual innocence.’‛5 Wamsley appeals.

ISSUE AND STANDARD OF REVIEW

¶7 Wamsley raises a number of arguments that all relate to a
single issue—whether the district court erred when it granted
the State’s rule 12(b)(6) motion to dismiss his petition for
postconviction relief. ‚Whether a [district] court properly
granted a rule 12(b)(6) motion to dismiss ‘is a question of law
that we review for correctness, affording the *district+ court’s
decision no deference.’‛ Miller v. State, 2010 UT App 25, ¶ 6, 226
P.3d 743 (quoting Williams v. Bench, 2008 UT App 306, ¶ 6, 193
P.3d 640).

ANALYSIS

¶8 Wamsley argues that the ‚allegations‛ in his petition
‚show that *Wamsley+ is highly unlikely to have committed the
crime with which he was charged.‛ Consequently, he contends,
the petition demonstrated a bona fide issue of factual innocence
and the district court ‚should have held an evidentiary hearing‛
before dismissing the petition. Wamsley also argues that the
court improperly weighed the evidence and failed to view the
facts ‚in a light most favorable to him, not the State.‛ Although
we agree with Wamsley that the court appears to have weighed
the evidence, we conclude that the court’s decision to dismiss the
petition without holding a hearing was not improper because
the petition is based solely on Younger Daughter’s equivocal
affidavit and because Wamsley failed to establish a ‚compelling

5. The court quoted the correct language from section 78B-9-
402(9)(c), but its written decision inadvertently referenced
section 78B-9-403(9)(c), a subsection that does not exist.

20121006-CA 5 2014 UT App 254
 Wamsley v. State

issue of factual innocence.‛ See Utah Code Ann. § 78B-9-402(4)
(LexisNexis Supp. 2013).

I. The Equivocal Affidavit

¶9 Section 78B-9-402 of the Utah Code (‚The Factual
Innocence Statute‛) permits anyone ‚who has been convicted of
a felony offense‛ to ‚petition the district court . . . for a hearing
that the person is factually innocent of the crime or crimes of
which the person was convicted.‛ Id. § 78B-9-402(1). ‚’Factual
innocence’‛ means that the petitioner did not ‚engage in the
conduct for which the petitioner was convicted,‛ ‚engage in
conduct relating to any lesser included offenses,‛ or ‚commit
any other felony arising out of or reasonably connected to the
facts supporting the indictment or information‛ underlying the
conviction. Id. § 78B-9-401.5(2) (LexisNexis 2012). Once a petition
is filed, the court conducts an initial review to determine that the
allegations in the petition are not ‚merely relitigating facts,
issues, or evidence presented in previous proceedings or
presenting issues that appear frivolous or speculative on their
face.‛ Id. § 78B-9-402(9)(b) (LexisNexis 2013). The petition must
also meet the requirements of subsection 2(a), which requires
that the petition include the following allegations supported by
‚affidavits or other credible documents‛:

(i) newly discovered material evidence exists that,
if credible, establishes that the petitioner is
factually innocent;
(ii) the specific evidence identified by the petitioner in
the petition establishes innocence;
(iii) the material evidence is not merely cumulative
of evidence that was known;
(iv) the material evidence is not merely impeachment
evidence; and
(v) viewed with all of the other evidence, the newly
discovered evidence demonstrates that the
petitioner is factually innocent.

20121006-CA 6 2014 UT App 254
 Wamsley v. State

Id. § 78B-9-402(2)(a) (emphases added). Additionally, subsection
(3)(a) provides that the petition must allege that neither the
petitioner nor the petitioner’s attorney ‚knew of the evidence at
the time of trial or sentencing or in time‛ to bring it to the court’s
attention in any prior postconviction proceeding and that ‚the
evidence could not have been discovered‛ earlier ‚through the
exercise of reasonable diligence.‛6 Id. § 78B-9-402(3)(a)(i).

¶ 10 The ‚court shall dismiss the petition‛ if it decides the
petition does not meet these threshold requirements, but if the
court decides not to dismiss the petition, ‚it shall order the
attorney general to file a response to the petition.‛ Id. § 78B-9-
402(9)(b). ‚After the time for response by the attorney general . . .
has passed, the court shall order a hearing if it finds the petition
meets the requirements of Subsections (2) and (3) and finds there
is a bona fide and compelling issue of factual innocence . . . .‛ Id.
§ 78B-9-402(9)(c). ‚No bona fide and compelling issue of factual
innocence exists if . . . the petitioner is unable to identify with
sufficient specificity the nature and reliability of the newly
discovered evidence that establishes the petitioner’s factual
innocence.‛ Id.

6. The statute is not clear as to whether the requirements of
subsection (3)(a) should be a part of a court’s initial
determination. See Utah Code Ann. § 78B-9-402(3)(b) (LexisNexis
Supp. 2013). Subsection (3)(b) states that, ‚*u+pon entry of a
finding that the petition is sufficient under Subsection (2)(a), the
court shall then review the petition to determine if Subsection
(3)(a) has been satisfied.‛ Id. But subsection (3)(b) does not
specify whether the subsection (2)(a) sufficiency determination it
refers to also includes the initial determination mandated to
occur in conjunction with subsection (9)(b) or only the
sufficiency determination required by subsection (9)(c) after the
attorney general responds, or both. For reasons discussed below,
infra ¶¶ 20–23, this question need not be resolved in order to
complete our analysis of the issues on appeal.

20121006-CA 7 2014 UT App 254
 Wamsley v. State

¶ 11 Here, the court made an initial determination that
Wamsley’s petition was ‚sufficient to meet the requirements of
subsections (2)(a) and (3)(a)‛ and ordered the ‚attorney
general . . . to file a response.‛ The State moved to dismiss the
petition under rule 12(b)(6) of the Utah Rules of Civil Procedure,
arguing that Wamsley had ‚failed to satisfy the threshold
requirements of the factual innocence statute.‛ The court
ultimately dismissed Wamsley’s petition because it did not find
Younger Daughter’s affidavit to be credible. Wamsley points out
that in the context of a rule 12(b)(6) motion to dismiss, the court
must ordinarily ‚accept the factual allegations in the *petition+ as
true and consider them and all reasonable inferences to be
drawn from them in a light most favorable to the *petitioner+.‛
Miller, 2010 UT App 25, ¶ 16 (alterations in original) (citation and
internal quotation marks omitted). Consequently, he argues, the
court inappropriately weighed the evidence when deciding
whether to dismiss his petition.

¶ 12 Wamsley’s argument, however, overlooks a provision of
the Factual Innocence Statute that seems to impose a different
standard from rule 12(b)(6) for the district court’s assessment of
the adequacy of the petition where the conviction stems from a
guilty plea and the evidence of factual innocence depends on a
witness’s recantation. The rules of civil procedure may be
preempted ‚by other rules promulgated‛ by the Utah Supreme
Court or ‚statutes enacted by the Legislature.‛ Utah R. Civ. P. 1;
see also id. R. 81(a) (noting that the rules of civil procedure ‚apply
to all special statutory proceedings, except insofar as such rules
are by their nature clearly inapplicable‛). And the Factual
Innocence Statute outlines a narrow class of cases where courts
are not required to view a particular category of facts submitted
in support of a petition for postconviction relief in a light most
favorable to the petitioner. Specifically, subsection (4) provides
that if the defendant’s conviction ‚was based upon a plea of
guilty‛ and the petition ‚relies solely upon the recantation of
testimony or prior statements made by a witness against the
petitioner,‛ the court ‚may dismiss the petition at any time . . . if
the court finds‛ that ‚the recantation appears . . . to be equivocal

20121006-CA 8 2014 UT App 254
 Wamsley v. State

or selfserving.‛ Utah Code Ann. § 78B-9-402(4) (emphasis
added).

¶ 13 Requiring a recantation to be unequivocal and not
selfserving seems to require a different approach from rule
12(b)(6), which requires that the factual allegations be accepted
as true and that any inferences be viewed in the light most
favorable to the petitioner. Instead, determining whether or not
an affidavit is ‚equivocal‛ under subsection (4) implicitly
involves examining the affidavit’s contents for internal
consistency and even comparing it with other evidence in the
record, particularly any prior statements the affiant may have
made that the affidavit purports to recant. And with regard to
the ‚selfserving‛ inquiry, the court may even consider whether
ulterior motives may have colored the affiant’s testimony. In
other words, the statute allows district courts to conduct a
probing review that is qualitatively different from simply
accepting ‚the factual allegations . . . as true‛ and drawing ‚all
reasonable inferences . . . in a light most favorable to the
*petitioner+.‛ Miller v. State, 2010 UT App 25, ¶ 16, 226 P.3d 743
(alteration in original) (citation and internal quotation marks
omitted). As a consequence, the petitioner loses the benefit of the
doubt ordinarily available in connection with a motion to
dismiss if the purported recantation is equivocal, or, in other
words, susceptible to more than one interpretation.

¶ 14 Here, Wamsley’s convictions were based on guilty pleas
to two counts of sexual abuse of a child. The first charge was
based on Older Daughter’s allegations that Wamsley abused her
when Mother was out of town. The second charge related to
Younger Daughter’s statement to police that her father told her
to take off her underwear so he could check her for something,
had put his hands on her thighs, had spread her legs until it
hurt, and had left the room when he heard someone walk in the
front door of the family’s home. Wamsley’s petition requested
that the court ‚find him factually innocent of the *child sexual
abuse] crimes for which he was convicted and sentenced.‛ In
support, he attached only Younger Daughter’s affidavit and

20121006-CA 9 2014 UT App 254
 Wamsley v. State

argued that it ‚provides substantial, compelling evidence‛ that
Wamsley ‚is factually innocent of the charges for which he was
convicted.‛ In the affidavit, Younger Daughter stated that ‚I . . .
repeatedly have declared that my father . . . has never touched
me inappropriately or in any of my private areas‛ and that ‚I
never wanted charges filed against my father nor did I
participate in filing charges against him.‛ Wamsley’s convictions
were based on guilty pleas, and his petition relied entirely upon
Younger Daughter’s ‚recantation of . . . prior statements‛ she
had made that served as the basis for one of the charges against
him.7 See Utah Code Ann. § 78B-9-402(4) (LexisNexis Supp.
2013). Consequently, the court could dismiss the petition ‚at any
time‛ under subsection (4) if it found Younger Daughter’s
recantation ‚equivocal or selfserving.‛ See id.

¶ 15 The court dismissed Wamsley’s petition, noting that
Wamsley ‚pled guilty to two counts of sexual abuse of a child‛
and that, ‚consequently, his petition must be analyzed under
subsection (4)‛ of the Factual Innocence Statute. After observing
that the petition ‚relies solely upon *Younger Daughter’s]
affidavit,‛ which ‚purports to recant *Younger Daughter’s]
sworn testimony,‛ the court found that the affidavit was ‚not . . .
credible‛ and concluded that Wamsley had failed to ‚establish a
bona fide and compelling issue of factual innocence.‛ (Citation
and internal quotation marks omitted.) Although the court did
not use the word ‚equivocal‛ to characterize Younger
Daughter’s affidavit, its reference to subsection (4) in the context
of Wamsley’s guilty pleas and the court’s observation that the
petition ‚relies solely‛ on an affidavit that ‚recant*s+ . . . sworn
testimony‛ demonstrates that it considered subsection (4) as a

7. Wamsley does not dispute that his petition is based ‚solely‛
on Younger Daughter’s affidavit. See Utah Code Ann. § 78B-9-
402(4). We address the court’s dismissal of Wamsley’s petition as
it relates to the count involving his conduct against Older
Daughter later in this decision. See infra ¶ 24.

20121006-CA 10 2014 UT App 254
 Wamsley v. State

basis for dismissal of the petition. See Utah Code Ann. § 78B-9-
402(4). And we conclude that dismissal under subsection (4) was
appropriate without an evidentiary hearing because Younger
Daughter’s affidavit was equivocal.8

¶ 16 The statute does not set forth any specific standard to
determine whether or not a ‚recantation‛ is ‚equivocal,‛ see id.,
and there does not appear to be any case law interpreting the
language of subsection (4). To interpret the statute, we therefore
look to the ‚ordinary meaning‛ that the pertinent terms ‚would
have to a reasonable person familiar with the usage and context
of the language in question.‛ Olsen v. Eagle Mountain City, 2011
UT 10, ¶ 9, 248 P.3d 465; see also Dillon v. Southern Mgmt. Corp.
Ret. Trust, 2014 UT 14, ¶ 50, 326 P.3d 656 (‚When interpreting a
statute, we look to the plain language first, recognizing that our
primary goal is to give effect to the legislature’s intent in light of
the purpose the statute was meant to achieve.‛ (citation and
internal quotation marks omitted)). ‚The starting point to
discerning such meaning is the dictionary,‛ which contains a
‚useful . . . cataloging . . . of possible meanings that a statutory
term may bear.‛ Hi-Country Prop. Rights Group v. Emmer, 2013
UT 33, ¶ 19, 304 P.3d 851. According to Black’s Law
Dictionary, a statement is equivocal if it is ‚*o+f doubtful
character,‛ appears ‚questionable,‛ has ‚more than one meaning
or sense,‛ or is ‚ambiguous.‛ Black’s Law Dictionary 621 (9th ed.
2009); see also Merriam-Webster.com, http://www.merriam-
webster.com/dictionary/equivocal (last visited Sept. 8, 2014)
(defining ‚equivocal‛ as ‚subject to two or more interpretations
and usually used to mislead or confuse‛).

8. Even if the district court did not intend to dismiss the petition
under subsection (4), we would still affirm its decision on that
basis. See Madsen v. Washington Mut. Bank, FSB, 2008 UT 69, ¶ 26,
199 P.3d 898 (‚When reviewing a decision made on one ground,
we have the discretion to affirm the judgment on an alternative
ground if it is apparent in the record.‛ (emphasis omitted)).

20121006-CA 11 2014 UT App 254
 Wamsley v. State

¶ 17 After reviewing the pertinent aspects of the record and
Wamsley’s factual innocence petition, we conclude that Younger
Daughter’s affidavit is ‚ambiguous‛ in that it has ‚more than
one meaning or sense‛ or ‚is subject to two or more
interpretations‛ and is therefore ‚equivocal‛ under subsection
(4), see Utah Code Ann. § 78B-9-402(4), particularly when read
alongside what she told police in 2005. Nowhere in Younger
Daughter’s affidavit does she specifically deny that Wamsley
engaged in the conduct that formed the basis for his prosecution
and guilty plea for the charge that involved her as victim. The
closest she gets to a recantation is her claim that
‚I . . . repeatedly have declared that my father . . . has never
touched me inappropriately or in any of my private areas.‛ She
only states that Wamsley never did anything to her that was
‚inappropriate‛ and never touched her ‚private areas.‛ But that
is not necessarily inconsistent with her earlier statements
describing Wamsley’s actions.

¶ 18 First, it is not clear what the term ‚private areas‛ means to
Younger Daughter. Even if we assume she means the specific
parts of the body described in the child sexual abuse statute,
such as the anus, buttocks, genitalia, or breasts, see Utah Code
Ann. § 76-5-404.1 (LexisNexis Supp. 2013), that does not
inevitably conflict with her 2005 description of Wamsley’s
conduct, which included touching of other body parts. As such,
her affidavit statement that Wamsley never touched her ‚private
areas‛ does not necessarily contradict her prior statements that
he touched other parts of her body in the context of a very
intrusive visual examination of her ‚private areas.‛ Second, from
the perspective of her present circumstances, she may now be
unwilling to characterize Wamsley’s conduct as
‚inappropriate*+.‛ But her subjective belief about the propriety
of Wamsley’s treatment of her as a much younger child does not
alter the specifics of what she described at the time, nor does it
demonstrate that he is factually innocent of sexual abuse of a
child. See id. (defining the offense of ‚sexual abuse of a child‛ to
include touching a child’s ‚anus, buttocks, or genitalia,‛ or ‚the
breast of a female child,‛ or ‚tak*ing+ indecent liberties with a

20121006-CA 12 2014 UT App 254
 Wamsley v. State

child‛). Consequently, it is far from clear whether Younger
Daughter’s affidavit is meant to be a full and unambiguous
recantation of the allegations underlying Wamsley’s conviction
or is, rather, a carefully worded attempt to now characterize his
conduct as less damning in order to reflect her present view of
him in the changed circumstances of their relationship.

¶ 19 Even if we were to read Younger Daughter’s statement
that ‚my father . . . has never touched me inappropriately or in
any of my private areas‛ as an unambiguous denial of
Wamsley’s sexual abuse, the affidavit is still equivocal in other
respects. Specifically, Younger Daughter never addresses the fact
that the substance of her affidavit is entirely inconsistent with
her prior statements, and her affidavit provides no basis to credit
her present recantation over her preliminary hearing testimony
or other prior statements she made describing the abuse. For
instance, in a probable cause statement supporting the
information, a detective stated that Younger Daughter told her
how Wamsley abused her, and that description of Wamsley’s
conduct matches her testimony at the preliminary hearing. And
according to her preliminary hearing testimony, she told Mother,
her grandmother, and a family friend about the abuse. Further,
Mother and Older Daughter have both stated in affidavits that
Younger Daughter told them that Wamsley abused her. Younger
Daughter’s affidavit does not claim that her prior statements
were untruthful or that she misled investigators and her family
members. In fact, the affidavit entirely fails to acknowledge that
she ever made any conflicting statements, and it does not
attempt to explain why her prior testimony and statements
ought to be entirely discounted in favor of the conflicting
statements in her affidavit. Consequently, Younger Daughter’s
affidavit amounts to a kind of self-impeachment, calling into
question the reliability of her own prior testimony and
statements simply because she now says something apparently
different. As such, her affidavit is not the unequivocal
recantation that the statute requires, but at best is ‚merely
impeachment evidence.‛ See Utah Code Ann. § 78B-9-
402(2)(a)(iv) (LexisNexis Supp. 2013) (providing that the

20121006-CA 13 2014 UT App 254
 Wamsley v. State

evidence supporting a petition for factual innocence cannot be
‚merely impeachment evidence‛).

II. Other Deficiencies in the Petition

¶ 20 Wamsley nevertheless maintains that he is entitled to a
hearing because the court already ‚determined that the Petition
(and its supporting affidavit) met the requirements‛ of
subsection (2)(a), ‚thereby determining that *Younger
Daughter’s] affidavit was credible.‛ Wamsley’s argument,
however, is not consistent with the procedures outlined in the
Factual Innocence Statute. The ruling that he references was only
the court’s initial determination that Wamsley’s petition was
plausible enough to warrant a response from the State—a
determination that required the court to assess the validity of the
petition under subsection (2)(a).9 See id. § 78B-9-402(2), (9)(b).
However, after the State has filed a response, the statute states
that the court should then evaluate again whether the petition
meets the requirements set forth in subsections (2) as well as
those requirements listed in subsection (3) of the statute. Id.
§ 78B-9-402(9)(c). The court also looks to see if ‚a bona fide and
compelling issue of factual innocence‛ exists in light of the
State’s response. Id. The court is under no obligation to hold a
hearing on the petition if it determines those requirements are
not met. Were we to accept Wamsley’s reading of the statute, a
petitioner would automatically receive a hearing every time the
court ordered a response from the State, a result that is
inconsistent with subsection (9)(c)’s directive that courts are
implicitly required to reassess whether ‚the petition meets the
requirements of Subsections (2) and (3)‛ ‚[a]fter the time for a
response by the attorney general . . . has passed.‛ Id.

9. And possibly subsection (3)(a), which the court did in this
case. See supra ¶ 9 & note 7.

20121006-CA 14 2014 UT App 254
 Wamsley v. State

¶ 21 But even if Younger Daughter’s affidavit was not
equivocal and the court’s initial determination that Wamsley’s
petition satisfied subsection (2)(a) could not be reexamined,
Wamsley has still failed to demonstrate that there was a
‚compelling issue of factual innocence‛ warranting a hearing.
See id. Under subsection (9)(c), ‚the court shall order a hearing if
it finds that the petition meets the requirements of subsections
(2) and (3) and finds there is a bona fide and compelling issue of
factual innocence.‛ Id. (emphasis added). The statute defines
‚*b+ona fide and compelling issue of factual innocence‛ as
‚newly discovered material evidence‛ that, ‚if credible, would
clearly establish the factual innocence of the petitioner.‛ Id.
§ 78B-9-401.5(1) (LexisNexis 2012).

¶ 22 The evidence before the district court does not meet that
threshold. With respect to the charge involving Younger
Daughter, Wamsley supported his initial petition with one
affidavit denying ‚inappropriate[]‛ touching without explicitly
disavowing either the abuse or the prior statements describing
the abuse. Even assuming that all the facts alleged in the
affidavit are true, the affidavit is so ambiguous that it does not
‚clearly establish *Wamsley’s+ factual innocence,‛ id., a
conclusion that would have become more clear to the district
court when the State submitted affidavits from Older Daughter
and Mother, affirming that Older Daughter was abused and
stating that Younger Daughter had acknowledged abuse in their
presence. And the materials Wamsley later submitted with his
response to the State’s motion similarly fail to raise a compelling
issue of factual innocence. Wamsley attached to his response a
variety of documents that he argues demonstrated that Older
Daughter ‚is willing to lie under oath‛ and that Mother’s
statements are ‚untrue.‛ For instance, he submitted documents
showing that the Division of Child and Family Services had
investigated allegations Older Daughter had made that Younger
Daughter sexually abused her siblings, that Mother had typed
her daughters’ statements for police, and that the girls’
grandmother denied ever hearing Younger Daughter claim that
Wamsley sexually abused her. He also submitted the results of

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 Wamsley v. State

two polygraphs he had taken and a psychosexual evaluation
showing that his denials to statements describing his daughters’
allegations were ‚in the ‘Non-Deceptive’ range‛ and that he was
not sexually attracted to children.

¶ 23 These documents, and others Wamsley submitted, fall
into two broad categories—(1) impeachment evidence against
Mother and Older Daughter and (2) evidence bolstering
Wamsley’s own denials. None of the evidence clearly shows that
Older Daughter’s and Mother’s assertions are untruthful, nor
does it reconcile the ambiguities in Younger Daughter’s affidavit
or the affidavit’s inconsistencies with Younger Daughter’s prior
statements. Consequently, the conflicting nature of the
evidentiary picture before the court simply would not support a
finding that Wamsley’s factual innocence had been ‚clearly
establish*ed+.‛ See Utah Code Ann. § 78B-9-401.5(1). So even if
Wamsley’s petition satisfied the requirements of subsections
(2)(a) and (3)(a), the district court correctly determined that
Wamsley failed to demonstrate a ‚bona fide and compelling
issue of factual innocence‛ and that, as a result, he was not
entitled to a hearing with regard to his conviction for abusing
Younger Daughter. See id. § 78B-9-402(9)(c) (LexisNexis Supp.
2013) (providing that a petition for factual innocence does not
justify a hearing unless the court ‚finds there is a bona fide and
compelling issue of factual innocence‛); see also id. § 78B-9-
402(2)(a)(iv) (providing that the ‚material evidence‛ supporting
a petition for factual innocence cannot be ‚merely impeachment
evidence‛); id. § 78B-9-401.5(1) (LexisNexis 2012) (defining
‚*b+ona fide and compelling issue of factual innocence‛ as
‚newly discovered material evidence‛ that, ‚if credible, would
clearly establish the factual innocence of the petitioner‛).

¶ 24 With respect to the charge involving Older Daughter,
there is even less justification for ordering a hearing because
there is no evidence that would satisfy subsection (2)(a), which
provides that ‚the material evidence‛ supporting a petitioner’s
‚assertion of factual innocence‛ cannot be ‚merely impeachment
evidence.‛ Id. § 78B-9-402(2)(a)(iv) (LexisNexis Supp. 2013). As

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 Wamsley v. State

we have discussed, Wamsley’s petition was based solely on
Younger Daughter’s affidavit denying that he had ever ‚touched
[Younger Daughter] inappropriately.‛ He did not submit any
evidence with his initial petition that called into question his
conviction for abusing Older Daughter. And the only documents
he submitted in response to the State’s motion to dismiss that
had any relevance to Older Daughter consisted entirely of
impeachment evidence. Wamsley admits as much on appeal,
arguing that a reasonable inference from the fact that ‚one
victim now admits to being told what to say and trained using a
diagram of the human body as a child makes it likely the other
[child] was [coached] as well.‛ He even characterizes the
documents he submitted in response to the State’s motion to
dismiss ‚as impeachment evidence showing *that+ both *Older
Daughter] and [Mother] had lied, and continued to lie, under
oath.‛ Impeachment evidence is insufficient by itself to satisfy
subsection (2)(a), let alone demonstrate a ‚bona fide and
compelling issue of factual innocence.‛ Utah Code Ann. § 78B-9-
402(2)(a)(iv), (9)(c). We therefore conclude that the district court
properly denied Wamsley’s petition and had no obligation to
hold a hearing before doing so.

CONCLUSION

¶ 25 We conclude that Wamsley’s petition for postconviction
relief was based solely on an equivocal affidavit and that the
evidence did not establish a compelling bona fide issue of factual
innocence. We also conclude that Wamsley relied entirely on
impeachment evidence to demonstrate his factual innocence of
charges involving Older Daughter. Consequently, we affirm the
district court’s decision dismissing the petition without holding
a hearing.
____________

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