2015 UT App 229
THE UTAH COURT OF APPEALS
RICHARD BRIAN COLLUM,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20140760-CA
Filed September 11, 2015
Seventh District Court, Price Department
The Honorable George M. Harmond
No. 130700052
Richard Brian Collum, Appellant Pro Se
Sean D. Reyes and Erin Riley, Attorneys for Appellee
Before JUDGES J. FREDERIC VOROS JR., STEPHEN L. ROTH, and
JOHN A. PEARCE.
PER CURIAM:
¶1 Richard Brian Collum appeals the trial court’s order
dismissing his petition for post-conviction relief as untimely. We
affirm.
¶2 Collum pleaded no contest to a charge of sexual abuse of
a child in 2010. He was sentenced to the statutory term of one to
fifteen years in prison on July 6, 2010. The Judgment and
Commitment order was entered on July 8, 2010. Collum did not
appeal his sentence. In June 2013, Collum filed a petition for
post-conviction relief under the Post-Conviction Remedies Act
(PCRA). Utah Code Ann. §§ 78B-9-101 to -405 (LexisNexis 2012
and Supp. 2014). The trial court noted that the petition appeared
to be untimely and provided notice to the parties inviting a
response to the timeliness issue pursuant to section 78B-9-
106(2)(b). Collum responded, and the State filed a motion to
Collum v. State
dismiss, to which Collum also responded. After consideration of
the pleadings, the trial court dismissed Collum’s petition as
untimely under section 78B-9-107. Collum appeals.
¶3 Collum acknowledges that his petition was untimely filed
but asserts that his petition should be heard on the merits for
various reasons. However, he does not show that any statutory
provision or other exception would apply to his petition to
permit it to move forward on the merits. Additionally, because
the timeliness of the petition is the dispositive issue, to the extent
that Collum raises other issues, they are not relevant to the
posture of this appeal.
¶4 Collum first asserts that he has a “constitutional right to
appeal beyond *the+ time limit.” He cites Manning v. State, 2005
UT 61, 122 P.3d 628, to support his argument, and notes that
Manning permits a court to reinstate the time to file a direct
appeal. Manning, however, does not apply to alter the date for
filing a petition for post-conviction relief. To the extent that
Collum asserts that he was deprived of a direct appeal from his
sentence,1 he may seek relief under Manning in the proper
forum. But his post-conviction petition is a separate action not
within the scope of his criminal case. Collum’s assertion that he
was denied a direct appeal has no bearing on the timeliness of
his post-conviction petition.
¶5 Under Utah Code section 78B-9-107, a petitioner may be
entitled to post-conviction relief “only if the petition is filed
within one year after the cause of action has accrued.” Utah
Code Ann. § 78B-9-107(1). For Collum, because he did not
appeal, the date of accrual was August 9, 2010, the last day for
filing an appeal. Id. § 78B-9-107(2)(a). Collum initially
1. Because Collum did not move to withdraw his plea before
sentencing, he is precluded from appealing the validity of his
plea on direct appeal. See State v. Rhinehart, 2007 UT 61, ¶ 14, 167
P.3d 1046.
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Collum v. State
acknowledged that his petition was filed beyond the time limit,
but now he attempts to provide alternate dates of accrual or to
support a tolling of the time to file under other subsections of
section 78B-9-107. None of his claims have merit.
¶6 Section 78B-9-107(2)(f) provides that a cause of action may
accrue on the date on which a new rule of law is established as
described in section 78B-9-104(1)(f). Subsection 104(1)(f) provides
that a petitioner may assert a claim for relief if the petitioner
“can prove entitlement to relief under a rule announced by the
United States Supreme Court, the Utah Supreme Court, or the
Utah Court of Appeals after conviction and sentence became
final.” Id. § 78B-9-104(1)(f). Collum has not identified any newly
announced rule as a basis for relief. Accordingly, there is no
change to the date his cause of action accrued under this
subsection.
¶7 Collum also argues that the petition should be considered
timely based on subsection 107(2)(e), which states that a cause of
action accrues one year from the “date on which petitioner knew
or should have known . . . of evidentiary facts on which the
petition is based.” Id. § 78B-9-107(2)(e). He has not, however,
asserted any new evidentiary facts that would support a later
date of accrual. His petition is based on facts known to him
during the course of his criminal proceeding, up to and
including the date of sentencing. He explains his frustrations
with counsel and alleges various failures of counsel all occurring
no later than July 6, 2010. The “facts” that Collum asserts are
new are matters regarding his research and knowledge
developed later, which do not constitute evidentiary facts on
which the petition is based.
¶8 Collum also asserts that tolling provisions apply to make
his petition timely. He argues that the time for filing should be
tolled under subsection 78B-9-107(3), which provides that the
limitations period is tolled for any time “during which the
petitioner was prevented from filing a petition due to state
action.” Utah Code Ann. § 78B-9-107(3). He argues that he was
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Collum v. State
prevented from filing because he lacked access to the courts.
However, the trial court noted that Collum had met with the
prison contract attorneys multiple times and had not alleged that
the attorneys had failed to assist him with his petition. The other
allegations in Collum’s brief primarily regard incidents
occurring in his criminal case that are irrelevant to the filing of
his petition. Collum has failed to show that the trial court erred
in finding that Collum was not prevented from filing his petition
by state action.
¶9 Collum next argues that the trial court erred in finding
that the statute of limitations in the PCRA is constitutional.
However, the trial court did not reach the constitutional
question. Rather, the court reviewed Collum’s claims to see if
they would meet the threshold required before the court would
have to reach a constitutional issue. See Winward v. State, 2012
UT 85, ¶ 18, 293 P.3d 259. To meet the threshold, a petitioner
“must demonstrate that he has a reasonable justification for
missing the deadline combined with a meritorious defense.” Id.
¶10 The trial court found that Collum failed to meet either
part of this threshold showing. As noted above, all of the
operative facts were known to Collum, and he had access to
contract attorneys. Further, the trial court found that there was
insufficient factual support for any of Collum’s substantive
claims. Collum has not shown that the trial court erred in its
determination.
¶11 Collum also asserts that the trial court erred in declining
to appoint counsel for post-conviction proceedings. However,
there is no right to assistance of counsel in non-capital post-
conviction proceedings. Hutchings v. State, 2003 UT 52, ¶ 20, 84
P.3d 1150.
¶12 Collum also argues regarding the trial court’s denial of his
motion for reconsideration and refers to his pleadings in support
of that motion. The notice of appeal was filed before the trial
court denied the motion, and specified only the trial court’s
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Collum v. State
order dismissing his petition as untimely. Accordingly, matters
regarding the motion to reconsider are beyond the scope of this
appeal. Finally, the other issues raised in Collum’s brief are not
relevant to the posture of this appeal or are otherwise without
merit, and are not addressed further. Carter v. State, 2012 UT 69,
¶ 16, n.7, 289 P.3d 542 (stating that appellate courts “need not
analyze and address in writing each and every” issue raised).
¶13 Affirmed.
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