Brown v. State

2015 UT App 254

THE UTAH COURT OF APPEALS

KEITH SCOTT BROWN,
Appellant,
v.
STATE OF UTAH,
Appellee.

Memorandum Decision
No. 20140387-CA
Filed October 8, 2015

Fourth District Court, Provo Department
The Honorable David N. Mortensen
No. 130401823

Taylor C. Hartley and Stephanie R. Large, Attorneys
for Appellant
Sean D. Reyes and Andrew F. Peterson, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN
concurred.

ORME, Judge:

¶1 Appellant Keith Scott Brown (Defendant) appeals the
district court’s dismissal of his petition for post-conviction relief.
We agree the petition was untimely and affirm.

¶2 In February 2011, Defendant pled guilty to one count of
sodomy on a child, a first degree felony, and two counts of
sexual abuse of a child, second degree felonies. On March 31,
2011, the district court sentenced him to concurrent statutory
prison terms of ten years to life for the first degree felony and
one to fifteen years on each of the second degree felonies.
 Brown v. State

Defendant did not seek to withdraw his guilty pleas at any time
before sentencing, and he did not file a direct appeal.

¶3 On November 6, 2012, more than a year and a half after
he was sentenced, Defendant filed what he titled a ‚motion for
misplea,‛ seeking to set aside his guilty pleas on the ground that
when he pled guilty, he was under the influence of medication
that rendered him unable to knowingly and voluntarily plead
guilty. Defendant did not claim that he was unaware that he was
under the influence. Instead, he claimed that ‚he did not tell his
attorney about his prescription drug use,‛ although the attorney
was apparently aware of a serious automobile accident that
Defendant had been in only days before. The district court
denied Defendant’s motion, finding that his ‚pleas were
knowing and voluntary because he showed no signs of
impairment and because he expressly disavowed prescription
drug use when asked at his initial appearance hearing.‛
Defendant appealed, and this court summarily dismissed his
appeal for lack of jurisdiction. See State v. Brown, 2013 UT App
99, ¶ 1, 300 P.3d 1289 (per curiam). Defendant filed petitions for
a writ of certiorari in both the Utah Supreme Court and the
United States Supreme Court. Both petitions were denied. State
v. Brown, 308 P.3d 536 (Utah 2013); Brown v. Utah, 134 S. Ct. 544
(2013).

¶4 On November 25, 2013, Defendant filed a petition for
post-conviction relief under Utah’s Post–Conviction Remedies
Act (the PCRA). See Utah Code Ann. § 78B-9-101 to -405
(LexisNexis 2012). Defendant claimed that he received
ineffective assistance of counsel at the time his guilty pleas were
entered due to trial counsel’s incorrect advice about the
consequences of pleading guilty and because trial counsel
operated under several conflicts of interest when he urged
Defendant to plead guilty. In addition, Defendant repeated his
claim that his guilty pleas were not knowingly and voluntarily
made because he was on pain medication when he entered them.
The district court found that all of the pertinent facts supporting

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Defendant’s ineffective-assistance claims were known to
Defendant before he entered his pleas and that more than one
year had passed before Defendant filed his PCRA petition.1
Although Defendant claimed that ‚he came to a realization
about [the] real impact of his sentence at some point long after
sentencing,‛ the district court concluded that ‚coming to a better
or more complete understanding of the practical import of his
plea is different [from] coming to know new evidentiary facts.
The record reflects that the pertinent facts were known to
[Defendant] long before, more than a year before, [he] filed the
present petition.‛

¶5 The district court also determined that ‚*a+ll of the facts
concerning the voluntariness of *Defendant+’s plea, particularly
his injuries from a car accident and any medication [prescribed
as a result], were known at the time of the plea, certainly were
known [in the] six weeks between the plea [and sentencing.+‛
The court concluded that Defendant’s challenge to the validity of
his pleas was procedurally barred because he could have moved
to withdraw his pleas but did not. Accordingly, the court denied
Defendant’s PCRA petition as untimely. Defendant appeals.

¶6 On appeal, Defendant first contends that he received
ineffective assistance of counsel in two respects. He contends
that trial counsel ‚[a]ffirmatively misrepresent[ed] the
consequences‛ of Defendant’s guilty pleas by assuring him that
he would spend only ‚two to three years in prison‛ because trial
counsel would ‚wine and dine‛ the Board of Pardons and Parole
(the Board). Defendant also contends that trial counsel operated

1. Defendant was sentenced on March 31, 2011. Thus, he had
until May 2, 2011, to file a direct appeal, which he did not do.
Consequently, Defendant’s cause of action accrued on that date
and he had one year, until May 2, 2012, in which to file a timely
PCRA petition. Defendant did not file his current petition until
November 25, 2013, some eighteen months late.

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 Brown v. State

under various conflicts of interest, including that (1) trial
counsel’s ‚own daughter had business dealings with
[Defendant]‛ that might have put her at risks similar to those
faced by his known victims, (2) trial counsel ‚could have been
called as a potential witness against‛ Defendant, (3) trial counsel
was related to Defendant by marriage, and (4) trial counsel’s
‚law firm had recently experienced negative media exposure
that made [trial counsel] not want to draw any more media
attention to his firm.‛ Second, Defendant contends that his pleas
were unknowing and involuntary because he was on pain
medication at the time he entered his guilty pleas and because of
trial counsel’s ‚misinformation‛ regarding the consequences of
his guilty pleas. ‚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.‛
Taylor v. State, 2012 UT 5, ¶ 8, 270 P.3d 471 (citation and internal
quotation marks omitted).

¶7 Under the PCRA, ‚*a+ petitioner is entitled to relief only if
the petition is filed within one year after the cause of action has
accrued.‛ Utah Code Ann. § 78B-9-107(1) (LexisNexis 2012).2 A
cause of action accrues on the latest of several possible dates,
including ‚the last day for filing an appeal from the entry of the
final judgment of conviction, if no appeal is taken,‛ and ‚the
date on which [the] petitioner knew or should have known, in
the exercise of reasonable diligence, of evidentiary facts on
which the petition is based.‛ Id. § 78B-9-107(2)(a), (e). The PCRA
also provides that

2. Because there have been no changes to the statutory
provisions in effect at the relevant time, we cite the current
version of the Utah Code Annotated as a convenience to the
reader.

20140387-CA 4 2015 UT App 254
 Brown v. State

[t]he limitations period is tolled 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. The petitioner has the burden
of proving by a preponderance of the evidence that
the petitioner is entitled to relief under this
Subsection (3).

Id. § 78B-9-107(3). Defendant does not allege that any action by
the State in violation of the United States Constitution, or any
physical or mental incapacity, prevented him from timely filing
his petition. Rather, relying on the later accrual date under
section 78B-9-107(2)(e), he contends that his PCRA petition was
timely filed and should not be time-barred because he filed it
‚within one year of recognizing the significance of his attorney’s
ineffective assistance of counsel.‛

¶8 More specifically, Defendant contends that he had no
reason to doubt trial counsel’s statements regarding the Board
until he learned that his first hearing date before the Board
‚would not actually be until after he had been in prison for over
seven years and that it could not come any sooner by any effort
on anyone’s part.‛ He also claims that he did not realize the
significance of trial counsel’s conflicts of interest until he
retained his current counsel. According to Defendant, ‚just
because [he] may have known of these basic facts at the time of
sentencing, he did not understand their significance until later.‛
The State contends that basing the PCRA’s cause-of-action
accrual date under section 78B-9-107(2)(e) ‚on when a petitioner
subjectively becomes aware of the legal significance of the facts
he already knows would essentially eviscerate the PCRA’s
statute of limitations, leaving no effective time limit to filing a
post-conviction petition.‛

¶9 No pertinent Utah decision has been called to our
attention by the parties, but in Owens v. Boyd, 235 F.3d 356 (7th

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 Brown v. State

Cir. 2000), the Seventh Circuit addressed whether the one-year
time limit to file a petition for collateral relief under federal law,
see 28 U.S.C.A. § 2244(d)(1) (West 2006), ‚begins when a
prisoner actually understands what legal theories are available.‛
Owens, 235 F.3d at 359 (emphasis in original). Under
section 2244(d)(1), ‚*a+ state prisoner who wants collateral relief
from federal court must file the federal petition within one year
from the latest of‛ several dates, including ‚‘the date on which
the factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.’‛ Id. at
357 (quoting 28 U.S.C. § 2244(d)(1)(D) (West 2006)). The court
noted that ‚the time commences when the factual predicate
‘could have been discovered through the exercise of due
diligence’, not when it was actually discovered by a given
prisoner.‛ Id. at 359. Moreover, ‚the trigger in § 2244(d)(1)(D) is
(actual or imputed) discovery of the claim’s ‘factual predicate’,
not recognition of the facts’ legal significance.‛ Id. Thus, the
court concluded, the period in which to file ‚begins when the
prisoner knows (or through diligence could discover) the
important facts, not when the prisoner recognizes their legal
significance. If § 2244(d)(1) used a subjective rather than an
objective standard, then there would be no effective time
limit[.]‛ Id.

¶10 Although we are not bound by Owens, its reasoning is
compelling. Under section 78B-9-107 of the Utah Code, the time
to file a post-conviction petition begins when the ‚petitioner
knew or should have known, in the exercise of reasonable
diligence, of evidentiary facts on which the petition is based.‛
Utah Code Ann. § 78B-9-107(2)(e). Thus, similar to
section 2244(d)(1)(D) of the United States Code, the ‚trigger‛
under section 78B-9-107(2)(e) is actual or imputed discovery of
the evidentiary facts supporting the petition. See Owens, 235 F.3d
at 359. See also Black’s Law Dictionary 669 (9th ed. 2009) (stating
that an ‚evidentiary fact‛ is ‚*a+ fact that is necessary for or leads
to the determination of an ultimate fact‛). Accordingly, the time
for filing begins to run when the petitioner knows or, in the

20140387-CA 6 2015 UT App 254
 Brown v. State

exercise of reasonable diligence, should have known the
evidentiary facts and ‚not when the *petitioner+ recognizes their
legal significance.‛ See Owens, 235 F.3d at 359. ‚If *section 78B-9-
107(2)(e)] used a subjective rather than an objective standard,
then there would be no effective time limit*.+‛ See id.

¶11 Here, the ‚evidentiary facts‛ that form the basis of
Defendant’s claims include (1) trial counsel’s alleged statement
that Defendant could be released from prison ‚in two to three
years,‛ (2) trial counsel’s alleged conflicts of interest, and (3) the
fact that Defendant was on recently prescribed pain medication
when he entered his guilty pleas. Defendant does not claim that
he was unaware of these facts when he pled guilty. Indeed, he
concedes that he ‚may have known of these basic facts at the
time of sentencing‛ but that he ‚did not understand their
significance‛ or, in the case of counsel’s alleged statement about
Defendant’s likely release date, its falsity, until later.

¶12 Defendant cites a civil case, Merkley v. Beaslin, 778 P.2d 16
(Utah Ct. App. 1989), for the proposition that ‚*t+he client is not
an expert; he cannot be expected to recognize professional
negligence if he sees it, and he should not be expected to watch
over the professional or to retain a second professional to do so.‛
See id. at 19 (citation and internal quotation marks omitted). We
are not persuaded. Although we are cognizant of the fact that
Defendant’s knowledge of the law is limited, ‚*i+f these
considerations delay[ed] the period of limitations until the
*petitioner+ has spent a few years in the *prison+ law library,‛
Owens, 235 F.3d at 359, section 78B-9-107(2) of the Utah Code
might as well not exist, see id.

¶13 The district court concluded that ‚coming to a better or
more complete understanding of the practical import of his plea
is different [from] coming to know new evidentiary facts.‛ We
agree. Under the PCRA, Defendant’s subjective appreciation of
the facts supporting his petition is irrelevant.

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 Brown v. State

¶14 Defendant asserts that trial counsel misinformed him that
trial counsel could bargain with the Board to secure Defendant’s
release from prison in no more than two to three years. The
district court found that ‚*b+oth the initial appearance hearing
and the sentencing hearing put [Defendant] on notice of the
terms of his likely incarceration.‛ The court observed that before
Defendant entered his pleas, he acknowledged ‚the minimum
mandatory penalty associated with each count‛ and ‚that the
State had recommended a sentence, on one count alone, of 10
years to life, with additional sanctions for other counts.‛ Indeed,
in his plea affidavit, Defendant specifically affirmed, ‚I know
that by pleading guilty to a crime that carries a mandatory
penalty, I will be subjecting myself to serving a mandatory
penalty for that crime.‛ He further acknowledged that the State
was recommending a ‚sentence of 10 years to life.‛3

¶15 In addition, at Defendant’s sentencing hearing but before
imposition of sentence, the district court emphasized that ‚this
was a potential life sentence‛ and stated that although parole
would likely be considered at some point, the court believed that
the Board ‚should consider the fact that there could have been
many more charges as there were many more violations as
expressed by the victims in this case.‛ The sentencing judge
informed Defendant, ‚[You] will not . . . and should not be
released in this case unless you have successfully completed sex
offender treatment. If that’s not accomplished, I do not anticipate
that you will be released.‛ Accordingly, the district court
concluded that ‚the facts of the minimum mandatory nature of
this sentence were placed squarely before [Defendant] at the
time of sentencing such that if [he] understood that something
else would have been expected, he should have filed a motion to
withdraw his plea.‛ We agree. Regardless of what trial counsel

3. The sentencing matrix in the presentence investigation report
also estimated that Defendant would serve around eleven years
of an indeterminate prison sentence.

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 Brown v. State

may have told him, Defendant was aware, or should have been
aware, from the statements in his plea affidavit and from the
district court’s own statements, that he faced a long sentence.

¶16 Moreover, we conclude that the facts supporting
Defendant’s ineffective-assistance claims based on trial counsel’s
alleged conflicts of interest were known to Defendant before he
was sentenced. Defendant claims that he received ineffective
assistance of counsel because (1) trial counsel’s ‚own daughter
had business dealings with *Defendant+,‛ (2) trial counsel ‚could
have been called as a potential witness against‛ Defendant, (3)
trial counsel was related to Defendant by marriage, and (4) trial
counsel’s ‚law firm had recently experienced negative media
exposure that made [trial counsel] not want to draw any more
media attention to his firm.‛ The district court found that
Defendant ‚offers no basis for this court to conclude that the
facts‛ concerning Defendant’s conflict-of-interest claims ‚all
were not known to [Defendant] before he entered his plea, and
thus before he was sentenced.‛ We agree with the district court.
Indeed, as the State correctly points out, on appeal Defendant
‚offers no reason to suggest that he either did not or could not
have known of *the alleged conflicts of interest+ earlier.‛

¶17 Lastly, the evidence Defendant offered to support his
claim that his pleas were unknowing and involuntary was
known to him, or should have been known to him, at the time he
entered his pleas. Defendant offered several pieces of evidence
to support this claim, including an affidavit describing the
circumstances of a severe car crash he was involved in just a few
days before he entered his pleas and his mental state at the time
he entered his pleas; a newspaper account of the crash;
photographs of the car both before and after the crash; medical
records detailing his injuries from the crash; and his prescription
medication records. The State notes that Defendant attached this
evidence to his ‚motion for misplea,‛ which he filed on
November 6, 2012. As the State points out, ‚[e]ven if [Defendant]
could somehow show that the evidence was unavailable to him

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 Brown v. State

when he pleaded, it was unquestionably available to him when
he signed his affidavit *supporting his motion for misplea+.‛ Yet
Defendant did not file his current petition until November 25,
2013, more than one year after filing his motion for misplea. We
agree with the State and conclude that this evidence establishes
that Defendant was aware of the facts supporting his motion for
misplea no later than October 2012, more than one year before he
filed his current PCRA petition.

¶18 In sum, we conclude that under the PCRA, Defendant’s
subjective appreciation of the facts supporting his ineffective-
assistance claims is essentially irrelevant. Defendant was aware,
or should have been aware, of all of the principal facts
supporting his various claims by the time he was sentenced. The
time for Defendant to file a direct appeal expired on May 2, 2011.
See supra note 1. As a result, his cause of action accrued on May
2, 2011, and he had one year, or until May 2, 2012, in which to
file a timely PCRA petition. Defendant did not file his petition
until November 25, 2013, some eighteen months later.
Accordingly, the district court did not err in concluding that
Defendant’s petition was untimely under the PCRA.

¶19 In the alternative, Defendant contends that if his petition
is otherwise time-barred under the PCRA, ‚it should be allowed
to proceed under the egregious injustice exception *to+ the act’s
procedural bars.‛ The State argues that Defendant’s ‚argument
for an exception to the time and procedural bars is unpreserved
and inadequately briefed.‛ We agree that the egregious-injustice
argument was unpreserved, and thus we have no occasion to
decide whether the argument was also inadequately briefed on
appeal.

¶20 ‚‘As a general rule, claims not raised before the *district+
court may not be raised on appeal.’‛ Winward v. State, 2012 UT
85, ¶ 9, 293 P.3d 259 (alteration in original) (quoting State v.
Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346). ‚An issue is preserved for
appeal when it has been presented to the district court in such a

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 Brown v. State

way that the court has an opportunity to rule on *it+.‛ Id.
(alteration in original) (citation and internal quotation marks
omitted). When an argument is unpreserved, ‚we will not
address it for the first time on appeal unless the party can prove
either plain error or exceptional circumstances.‛ Id. In this case,
Defendant failed to present his egregious-injustice argument to
the district court, and he does not argue the applicability of
either of the exceptions to our preservation rule. We therefore do
not reach the egregious-injustice argument.

¶21 Finally, Defendant directly challenges the validity of his
guilty pleas. He contends that he ‚could not have understood
and did not understand all of the consequences to his pleading
guilty‛ based on trial counsel’s misinformation and because of
his ‚overdose of prescription pain medication‛ due to his car
accident. We concluded above that the district court did not err
in finding Defendant’s claims, including his ineffective-
assistance claims, untimely under the PCRA. See supra ¶ 18. It
follows that his claim about his competence to plead guilty is
likewise procedurally barred.

¶22 The PCRA precludes relief for any claim that ‚could have
been but was not raised at trial or on appeal.‛ Utah Code Ann.
§ 78B-9-106(1)(c) (LexisNexis 2012). This is because ‚a petition
for post-conviction relief is a collateral attack of a conviction
and/or sentence and is not a substitute for direct appellate
review.‛ Loose v. State, 2006 UT App 149, ¶ 13, 135 P.3d 886
(citation and internal quotation marks omitted). In this case, the
district court concluded that Defendant’s ‚challenge to the
validity of his pleas [was] procedurally barred because he could
have, but did not, move to withdraw his pleas.‛ We agree.

¶23 Section 77-13-6 of the Utah Code provides that ‚*a+ plea of
guilty . . . may be withdrawn only upon leave of the court and a
showing that it was not knowingly and voluntarily made.‛ Utah
Code Ann. § 77-13-6(2)(a). Moreover, that section provides that
‚*a+ request to withdraw a plea of guilty . . . shall be made by

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 Brown v. State

motion before sentence is announced.‛ Id. § 77-13-6(2)(b).
Defendant did not file a motion to withdraw his pleas.

¶24 Defendant asserts that he ‚was incapacitated by the
overdosed prescription pain medication that he had used after
the severe car accident.‛ According to Defendant, ‚*i+t cannot be
underestimated how important it was that his counsel assist the
Court, as an officer of the court, to help it know of [Defendant+’s
incorrect answers and to inquire further into his mental and
physical capacity.‛ However, Defendant provides no
explanation as to why the six weeks between when he entered
his guilty pleas and when his sentencing hearing was convened
was an insufficient amount of time for him to recognize the
alleged flaws in his pleas and to move to withdraw them. The
district court concluded that if Defendant ‚believed he was
impaired when he entered his pleas he had six weeks to
contemplate this issue and could have moved to withdraw the
pleas.‛ We agree with this pivotal reasoning of the district court
and affirm the district court’s denial of Defendant’s post-
conviction petition.

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