2017 UT App 97

THE UTAH COURT OF APPEALS

GARY JOE MCCAMEY,

Appellant,

v.

STATE OF UTAH,

Appellee.

Per Curiam Opinion

No. 20160785-CA

Filed June 15, 2017

Third District Court, Salt Lake Department

The Honorable Paul B. Parker

No. 150908028

Gary Joe McCamey, Appellant Pro Se

Sean D. Reyes and Daniel W. Boyer, Attorneys

for Appellee

Before JUDGES J. FREDERIC VOROS JR., STEPHEN L. ROTH, and 

DAVID N. MORTENSEN.

PER CURIAM:

¶1 Gary Joe McCamey appeals the grant of summary 

judgment on his petition seeking post-conviction relief. We 

affirm.

¶2 In 2003, McCamey was on parole for his 1991 convictions 

for sexual offenses involving children. As a condition of his 

parole, he was not allowed to have contact with anyone under 

the age of eighteen. McCamey’s probation officer suspected that 

McCamey was living with his wife, his thirteen-year-old 

stepdaughter J.W., and his five-year-old son. The probation

officer contacted the Murray City police officer who was a 

resource officer at J.W.’s school. That officer’s 2003 police report

stated that the probation officer was trying to gather evidence to 
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show that McCamey was living in the home with the children.

1

The report also stated that the probation officer was “concerned” 

that McCamey may have “victimized” J.W. The probation officer 

determined from a source at J.W.’s school that McCamey would 

sometimes pick her up from school early. The probation officer 

shared this information with Murray City police. A Murray City 

detective wrote a report about a “possible sex offense”

investigation. The detective’s report noted that the probation

officer reported that McCamey “had been around [J.W.] alone,” 

and the probation officer was “concerned that McCamey may 

have perpetrated a sexual offense towards her.” When 

interviewed, J.W. denied that McCamey had ever touched her, 

tried to touch her, or made sexual advances towards her. Due to 

lack of information and “no allegations or disclosures” from 

J.W., Murray City closed the 2003 investigation without filing 

charges.

¶3 In 2012, J.W. reported that nine years earlier McCamey 

had touched her unlawfully more than once. In 2013, the State 

charged McCamey with two counts of aggravated sexual abuse 

of a child, a first degree felony, and one count of lewdness 

involving a child, a third degree felony.

¶4 In an October 2014 letter, McCamey “complained to the 

trial court that his defense attorney was not doing what he was 

asking her to do” and stated his belief that the statute of 

limitations should have barred the 2013 prosecution. However, 

on January 20, 2015, McCamey entered into a plea agreement 

through which he pleaded guilty to two amended counts of 

attempted sexual abuse of a child, a third degree felony, and 

obtained a dismissal of the lewdness charge. In connection with 

his guilty pleas, McCamey admitted the factual basis for the 

charges, acknowledged and waived each of his statutory and 

 

1. The 2003 police reports referred to herein were attached to the 

petition for post-conviction relief.
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constitutional rights (except the right to counsel), and affirmed 

that if he wanted to withdraw his guilty pleas, he must file a 

motion to withdraw before sentencing. McCamey did not move 

to withdraw his pleas or file a direct appeal.

¶5 On November 15, 2015, McCamey filed a petition under 

the Post-Conviction Remedies Act (PCRA). In relevant part, the 

petition asserted that the 2013 charges were barred by the statute 

of limitations and that his trial counsel was ineffective for not 

pursuing a statute of limitations defense. The district court 

granted summary judgment on the claims. First, it ruled that 

McCamey’s statute of limitations claim was procedurally barred 

under Utah Code section 78B-9-106(1)(c) because he could have 

raised the claim at trial or on appeal. The district court noted that 

“McCamey brought his concern regarding the statute of 

limitations defense to the Court’s attention” in his October 2014 

letter, but the court did not address the question because 

McCamey entered guilty pleas to reduced charges in January 

2015.

¶6 The district court next noted that under section 

78B-9-106(3) of the PCRA, a person may still be eligible for relief 

on a ground otherwise precluded “if the failure to raise that 

ground was due to ineffective assistance of counsel.” See Utah 

Code Ann. § 78B-9-106(3) (LexisNexis 2012). Because McCamey 

asserted an ineffective assistance of counsel claim, the district 

court reviewed the merits of the statute of limitations claim to 

the extent necessary to address the exception under section 78B9-106(3). The district court ruled that McCamey had not shown 

ineffective assistance of his trial counsel based upon the failure 

to raise a statute of limitations defense to the 2013 charges. The 

district court concluded that the statute of limitations had not 

expired because the 2003 communications did not amount to a 

“report of the offense” that triggered the running of the fouryear statute of limitations that was in effect in 2003.
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¶7 “[W]e review a grant of summary judgment for 

correctness, granting no deference to the [lower] court.” Ross v. 

State, 2012 UT 93, ¶ 18, 293 P.3d 345 (second alternation in 

original) (citation and internal quotation marks omitted). In 

reviewing a grant of summary judgment, we will affirm the 

district court’s decision “when the record shows that there is no 

genuine issue as to any material fact and that the moving party 

is entitled to a judgment as a matter of law.” Id. (citation and 

internal quotation marks omitted).

¶8 On appeal, McCamey claims that the district court erred 

in determining that the 2013 charges were not barred by the 

statute of limitations. McCamey does not specifically address the 

district court’s determination that the claim was precluded by 

section 78B-9-106(1)(c) of the PCRA. See Utah Code Ann. § 78B-9-

106(1)(c) (LexisNexis 2012). The district court stated, that in an 

October 2014 letter that was attached to the petition, “McCamey 

brought his concern regarding the statute of limitations defense 

to the Court’s attention in the underlying criminal case.” 

However, the district court further noted that “no motion or 

request for relief was ever filed on this issue.” Thereafter, 

McCamey pleaded guilty to reduced charges and was sentenced. 

The district court ruled that McCamey was not eligible for relief 

under the PCRA on this claim because he failed to pursue it in 

the district court or on appeal. 

¶9 The district court did not err in determining that the 

statute of limitations claim was barred under section 78B-9-

106(1)(c) of the PCRA unless the exception in section 78B-9-

106(3) applied. In addition, by pleading guilty to the amended 

charges, McCamey waived any pre-plea issues, including 

statutory and constitutional claims. See State v. Rhinehart, 2007 

UT 61, ¶ 15, 167 P.3d 1046 (holding that by pleading guilty, a 

defendant is deemed to have admitted the essential elements of 

the crime charged and thereby waives all nonjurisdictional 

defects, including alleged pre-plea constitutional violations); 

James v. Galetka, 965 P.2d 567, 573 (Utah Ct. App. 1998) (holding 
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that “criminal statutes of limitations are not jurisdictional, but 

are a bar to prosecution which can be waived by a knowing and 

voluntary guilty plea”).

¶10 The district court next addressed McCamey’s claim that 

his trial counsel was ineffective for failing to raise the statute of 

limitations defense. Resolving this claim required the district 

court to examine the merits of a possible statute of limitations 

defense. After doing so, the district court concluded that the 

defense could not have succeeded and thus that “counsel for the 

Defendant could not have been ineffective for declining to 

pursue this statute of limitations defense.”2

¶11 “Under the PCRA, a criminal defendant may obtain postconviction relief if he establishes that he received ineffective 

assistance of counsel.” Lucero v. State, 2016 UT App 50, ¶ 7, 369 

P.3d 469 (citing Utah Code Ann. § 78B-9-104(1)(d) (LexisNexis 

2012)).

To prevail, [a criminal defendant] must establish 

both prongs of an ineffective assistance of counsel 

claim articulated in Strickland v. Washington, 466 

U.S. 668 (1984). First, he must show that “counsel’s 

performance was deficient.” Id. at 687. Counsel’s 

performance, however, is not deficient “if counsel 

refrains from making futile objections, motions, or 

requests” Layton City v. Carr, 2014 UT App 227, 

¶ 19, 336 P.3d 587 (citation and internal quotation 

marks omitted). Second, [the criminal defendant] 

 

2. McCamey, acting pro se, did not expressly argue the 

ineffectiveness of counsel claim in his opening brief filed in this 

court. However, in context we understand his claim to challenge 

the rationale for the district court’s decision on the 

ineffectiveness of counsel claim. Accordingly, this court also 

addresses the claim.
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must show that his counsel’s “deficient 

performance prejudiced the defense.” Strickland, 

466 U.S. at 687. A failure to make the required 

showing of either prong under Strickland “defeats 

the ineffectiveness claim” Id. at 700.

Lucero, 2016 UT App 50, ¶ 7 (brackets in original) (citations and 

internal quotation marks omitted).

¶12 McCamey contends that his counsel performed 

deficiently by failing to assert a statute of limitations defense to 

the 2013 charges for aggravated sexual abuse of a child. In 2001

and 2002, when McCamey committed the offenses, the 

applicable statute of limitations allowed a prosecution to 

commence “within four years after the report of the offense to a 

law enforcement agency.” Utah Code Ann. § 76-1-303.5 (Lexis 

1999). In 2008, the Utah Legislature repealed section 303.5 and 

indefinitely extended the limitations period for specific crimes 

including aggravated sexual abuse of a child. See Lucero, 2016 UT 

App 50, ¶ 8. The revised statute of limitations contained in Utah 

Code section 76-1-301 allows the State to commence a 

prosecution for aggravated sexual abuse of a child “at any time.” 

Utah Code Ann. § 76-1-301(2)(o) (LexisNexis Supp. 2016).

¶13 Under Utah law, “a statutory amendment enlarging a 

statute of limitations will extend the limitations period 

applicable to a crime already committed only if the amendment 

becomes effective before the previously applicable statute of 

limitations has run, thereby barring prosecution of the crime.” 

State v. Lusk, 2001 UT 102, ¶ 26, 37 P.3d 1103; see also State v. 

Toombs, 2016 UT App 188, ¶ 16, 380 P.3d 390. “[A] legislative 

amendment enlarging a limitation period may be applied 

retroactively to crimes committed before the amendment where 

the limitations defense has not accrued to the defendant before 

the amendment becomes effective.” Lusk, 2001 UT 102, ¶ 28.
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¶14 Here, McCamey claims that the 2003 communications

from his probation officer to Murray City police constituted a 

“report of the offense to a law enforcement agency” to 

commence the running of the four-year statute of limitations in 

effect in 2001 and 2002.3 Accordingly, if the probation officer’s 

communications are a “report of the offense,” triggering the 

four-year statute of limitations in effect at the time McCamey 

committed the offenses, then the limitations period expired in 

2007—before the 2008 amendment extended the limitations 

period indefinitely—and barred the prosecution of these charges 

in 2013. See Toombs, 2016 UT App 188, ¶ 16. Conversely, if the 

probation officer’s communications did not constitute a “report 

of the offense,” they did not trigger the statute of limitations, and 

the four-year statute of limitations had not yet run when the 

amendment to the statute of limitations became effective in 2008.

¶15 In State v. Green, 2005 UT 9, 108 P.3d 710, the Utah 

Supreme Court defined “report of the offense,” as that term is 

used in Utah Code section 76-1-303(c). The supreme court 

adopted a three-part test, stating, 

This test . . . requires (1) a discrete and identifiable 

oral or written communication (2) that is intended 

to notify a law enforcement agency that a crime has 

been committed and (3) that actually 

communicates information bearing on the elements 

of a crime as would place the law enforcement 

agency on actual notice that a crime has been 

committed.

 

3. In a variation on this claim, McCamey appears to assert that,

because J.W. denied any abuse in a 2003 interview by police, he 

has a vested right to rely upon that “exoneration.” The closure of 

the investigation based upon lack of evidence does not constitute 

an exoneration.
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Id. ¶ 46. A report must be more than “mere clues that criminal 

conduct has occurred” and requires ‘‘a heightened level of 

specificity.” See id. ¶¶ 43–44. A report requires “a degree of 

articulation of criminal conduct sufficient to permit a law 

enforcement agency to conclude what was done and who did it 

without additional investigation or analysis.” See id. ¶ 43.

¶16 The district court found that the 2003 communications 

between the probation officer and Murray City police officers 

were “discrete and identifiable, but otherwise do not constitute a 

‘report of the offense’ sufficient to start the limitations period.” 

Instead, the district court found that the intent of the 

communications was to spur investigation into a suspected 

offense based upon McCamey’s background and apparent living 

arrangement with a person under the age of eighteen. The court 

noted that none of the communications in 2003 actually 

provided information bearing on the elements of sexual abuse of 

a child. And the investigation of the possible offense was 

unsuccessful, largely because the possible victim denied that any 

inappropriate behavior had occurred. The district court ruled 

that the 2003 communications did not provide actual notice that 

a crime had been committed and therefore did not start the 

running of the statute of limitations. Accordingly, the district 

court concluded that counsel was not ineffective for declining to 

pursue a statute of limitations defense.4

 

4. The district court also correctly noted that, even if 

communications in 2007 between J.W.’s mother and Murray City 

police claiming that McCamey had abused J.W. constituted a 

report of the offense and triggered the running of the statute of 

limitations, the statute of limitations had not run at the time that 

the 2008 amendments became effective and extended the statute 

of limitations period for these offenses. See State v. Lusk, 2001 UT 

102, ¶ 26, 37 P.3d 1103.
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¶17 The inquiry in this case focuses on whether the probation

officer’s statements to Murray City police met the third-prong of 

the Green test, i.e., whether the statements communicated 

information that would place the law enforcement agency on 

actual notice that a crime had been committed. The probation 

officer’s communication was intended to solicit information 

about whether or not McCamey was living in the same home 

with two children under eighteen. If so, this would constitute a 

probation violation, but it would not otherwise have been 

criminal conduct. The probation officer also stated a “suspicion”

or “concern” that McCamey might have abused J.W. based upon 

the living arrangement and access to J.W. These communications 

required further investigation to determine what, if any, criminal 

activity might have occurred. During the investigation, J.W. 

denied any improper contact and the investigation was closed.

¶18 Similarly, in State v. Toombs, 2016 UT App 188, 380 P.3d 

390, this court observed, “Although Neighbor’s communications 

may have been intended to inform [the detective] of criminal 

conduct, her statements only articulated her suspicions and 

merely offered clues that a crime may have occurred.” Id. ¶ 21.

Neighbor did not allege conduct between the defendant and the 

suspected victim “with any level of specificity.” Id. ¶ 22. Thus, 

this court concluded that “without a higher level of specificity, 

“Neighbor’s statements do not articulate criminal conduct 

sufficient to permit a law enforcement agency to conclude what 

was done and who did it without additional investigation or 

analysis.” Id. ¶ 23 (citation and internal quotation marks 

omitted). This court concluded that because the communications 

were not a “report of the offense” to law enforcement, the fouryear statute of limitations was not triggered and the statute of 

limitations had not expired before the defendant was charged. 

Id. ¶ 24. Under the similar circumstances in this case, the district 

court did not err in concluding that the 2003 communications 

were not a “report of the offense” that triggered the four-year 
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statute of limitations; rather, they described merely suspicious 

circumstances, not actual crimes.

¶19 McCamey’s additional arguments on appeal conflate the 

concept of “report of the offense,” as used in former section 76-1-

303.5, with the police report in this case that was prepared to 

report the results of the investigation. The fact that a police 

report was prepared does not equate with a “report of the 

offense” under former Utah Code section 76-1-303.5. In addition, 

the fact that the 2003 investigation resulted in a parole 

revocation is irrelevant. The revocation was based on a violation 

of the parole condition that McCamey was not to have contact 

with persons under eighteen and was not due to any 

determination that criminal conduct occurred.

¶20 The district court did not err in its determination that the 

2003 communications between McCamey’s probation officer and 

Murray City police did not constitute a “report of the offense” 

that triggered the running of the four-year statute of limitations.

Therefore, the 2013 charges were not barred. Because it would 

have been futile to assert the statute of limitations defense, trial 

counsel was not ineffective in declining to assert that claimed 

defense. Accordingly, the district court also did not err in its 

determination that counsel was not ineffective and the exception 

in section 78B-9-106(3) does not apply.

¶21 Affirmed.