IN THE UTAH COURT OF APPEALS

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Arthur Gonzales,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee. )

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) PER CURIAM DECISION

Case No. 20120661

‐ CA

F I L E D

(November 1, 2012)

2012 UT App 313

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Third District, Salt Lake Department, 100926031

The Honorable Robert P. Faust

Attorneys: Arthur Gonzales, Gunnison, Appellant Pro Se

Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee

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Before Judges Orme, Thorne, and Roth.

¶1 Arthur Gonzales appeals the trial court’s order dismissing his petition for

postconviction relief as time barred. This is before the court on its own motion for

summary disposition based on the lack of a substantial question for review. We affirm.

¶2 Gonzales asserts that a new rule of law applies to his case and that therefore the

petition should be considered timely. See Utah Code Ann. § 78B

‐ 9

‐ 104(1)(f) (Supp. 2012)

(permitting postconviction relief where a petitioner can prove entitlement to relief

under a new rule announced by the Utah Supreme Court). He asserts that a new legal

rule announced in State v. Worthen

, 2009 UT 79, 222 P.3d 1144, applies to him and would

have permitted the admission of the psychological records of his victim. In Worthen

, the

supreme court addressed the privilege set forth in rule 506 of the Utah Rules of

Evidence and the corresponding exception when the privileged records may be20120661

‐ CA 2 obtained. In particular, the supreme court explained what constitutes “an element of a

claim or defense” in a criminal case for purposes of showing an exception to the

privilege. See id. ¶ 31. “An element of a claim or defense under rule 506(d)(1)

. . .

encompasses evidence that interjects reasonable doubt into the elements the State bears

the burden to prove.” Id. The court further held that the evidence may include

impeachment evidence. See id. ¶ 35.

¶3 Although the records sought in Worthen and in Gonzales’s own case were

similar, Worthen does not apply to Gonzales. In fact, the Worthen court distinguished

the circumstance of Gonzales specifically based on the outcome of Gonzales’s own

direct appeal. See id. ¶ 33. The Worthen court noted that the supreme court had not

reached the issue of whether impeachment evidence would be within the scope of an

element of a claim or defense in Gonzales’s direct appeal because the records were

appropriately excluded from Gonzales’s trial on other grounds. See id. (citing State v.

Gonzales

, 2005 UT 72, ¶ 43, 125 P.3d 878).

In Gonzales

, the defendant argued the victim’s “relevant

mental state to be an inability to tell the truth” and “because

of the likelihood of finding exculpatory evidence that [the

victim] ‘cannot be believed’ in her mental health records, the

defense was entitled to an in camera review.” We again

declined to thoroughly analyze the issue of what constitutes

an element of a claim or defense because we determined that the

fraudulent and flawed means by which the mental health records

in that case were obtained resulted in their inadmissibility

.

Id. (alteration in original) (emphasis added) (quoting Gonzales

, 2005 UT 72, ¶ 16).

Gonzales’s attorney had obtained the mental health records of his victim without going

through the proper process and without notice. As a result, the trial court excluded the

records. See Gonzales

, 2005 UT 72, ¶ 18. Accordingly, any new rule announced in

Worthen regarding the process and required showings to obtain review of otherwise

privileged records is not applicable to Gonzales because the records here were excluded

due to the improper means by which they were obtained, not because of any

determination about whether an exception applied to the privilege.20120661

‐ CA 3 ¶4 Given that no new rule applies to Gonzales’s petition by reason of Worthen

, the

petition is clearly time barred. The time for filing a petition for postconviction relief

expired in early 2007, almost four years before the instant petition was filed. See Utah

Code Ann. § 78B

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‐ 107(2)(c) (2008). Accordingly, the trial court did not err in

dismissing the petition.

¶5 Affirmed.

____________________________________ Gregory K. Orme, Judge

____________________________________ William A. Thorne Jr., Judge

____________________________________ Stephen L. Roth, Judge