2016 UT App 232

THE UTAH COURT OF APPEALS

SHAYNE E. TODD,

Appellant,

v.

STATE OF UTAH,

Appellee.

Per Curiam Decision

No. 20160745-CA

Filed November 25, 2016

Third District Court, Salt Lake Department

The Honorable Randall N. Skanchy

No. 150908512

Shayne E. Todd, Appellant Pro Se

Before JUDGES STEPHEN L. ROTH, KATE A. TOOMEY, and DAVID N.

MORTENSEN.

PER CURIAM:

¶1 Shayne E. Todd appeals the August 24, 2016 order 

resolving seven submissions filed on August 9, 2016, following 

the dismissal of his petition for post-conviction relief in a July 19, 

2016 memorandum decision and order. The case is now before 

this court on a sua sponte motion for summary disposition. We 

affirm.

¶2 In 1999, Todd shot and killed his estranged wife. Todd

was convicted of murder, a first degree felony, and possession of 

a dangerous weapon by a restricted person, a second degree 

felony. He pleaded guilty to the weapons charge prior to the jury 

trial on the murder charge. Todd pursued a direct appeal, which 

raised claims of prosecutorial misconduct related to his murder 

conviction. This court affirmed the conviction in State v. Todd, 

2007 UT App 349, ¶ 1, 173 P.3d 170. This court also affirmed the 
Todd v. State

20160745-CA 2 2016 UT App 232

dismissal of Todd’s first petition for post-conviction relief, see 

Todd v. State, 2011 UT App 313, ¶ 7, 262 P.3d 1222 (per curiam), 

and affirmed the denial of a motion to correct an illegal sentence, 

see State v. Todd, 2013 UT App 231, ¶ 1, 312 P.3d 936.1

¶3 The district court dismissed Todd’s second petition for 

post-conviction relief in the underlying case in a memorandum 

decision and order dated July 19, 2016. In that decision, the 

district court found that the claims raised in the petition were

either frivolous or had already been adjudicated in previous 

proceedings. See Utah R. Civ. P. 65C(h)(1) (“*I+f it is apparent to 

the court that any claim has been adjudicated in a prior 

proceeding, or if any claim in the petition appears frivolous on 

its face, the court shall forthwith issue an order dismissing the 

claim . . . .”). Todd did not file a timely notice of appeal from the 

July 19, 2016 order. Instead, on August 9, 2016, he filed seven 

submissions in the district court, including (1) a motion to 

reconsider and vacate the dismissal of his post-conviction 

petition; (2) a motion to withdraw his guilty plea to the weapons 

charge; (3) a supplemental declaration in support of the postconviction petition; (4) a memorandum in support of the request 

for reconsideration of the dismissal of his post-conviction 

petition; (5) a letter to the court; (6) a motion seeking leave to 

amend the post-conviction petition; and (7) an amended 

memorandum in support of the motion to amend the postconviction petition.

 

1. In 2012, this court summarily affirmed by order the district 

court’s denial of Todd’s second motion to correct an illegal 

sentence in case number 20120536-CA. In 2015, this court 

summarily affirmed by order the district court’s denial of Todd’s 

third motion to correct an illegal sentence in case number 

20140715-CA. 
Todd v. State

20160745-CA 3 2016 UT App 232

¶4 In the August 24, 2016 order, the district court considered 

the seven submissions filed on August 9, 2016. The district court 

stated that although Todd alluded to newly discovered evidence, 

he failed to demonstrate that any new evidence existed. The 

district court denied the motions, stating that Todd “again 

makes stale arguments regarding his plea, the jury’s findings, 

and the sentence by the Board of Pardons.”

¶5 Todd’s August 30, 2016 notice of appeal stated that the 

appeal was taken from the August 24, 2016 order, as did the 

docketing statement filed in this court. However, in response to 

the sua sponte motion for summary disposition, Todd claims 

that his appeal is taken from the July 19, 2016 memorandum 

decision and order dismissing his petition for post-conviction 

relief. Because the notice of appeal filed on August 30, 2016 was 

not timely filed within thirty days after entry of the July 19, 2016 

memorandum decision and order, we lack jurisdiction to 

consider it. See Utah R. App. P. 4(a). Furthermore, none of the 

submissions on August 9, 2016, operated to extend the time for 

appeal. See id. 4(b); see also Gillett v. Price, 2006 UT 24, ¶ 7, 135 

P.3d 861 (“*R+egardless of the motion’s substance, postjudgment 

motions to reconsider and other similarly titled motions will not 

toll the time for appeal because they are not recognized by our 

rules.”). 

¶6 Accordingly, the issues before this court on appeal are 

limited to whether the district court erred in denying the seven 

submissions filed on August 9, 2016. However, Todd’s response 

to the sua sponte motion addresses neither the content nor the 

effect of the district court’s decision and reargues claims that 

have been made in his previous filings, including reasserting his 

defense at the jury trial that his wife’s shooting was accidental. 

None of Todd’s arguments are directed to the substance of the 

August 24, 2016 order being appealed nor are they directed to 

the claims that were actually raised in his most recent petition 

for post-conviction relief. 
Todd v. State

20160745-CA 4 2016 UT App 232

¶7 Much of Todd’s response argues that the Utah Board of 

Pardons and Parole (the Board) inappropriately calculated his 

consecutive sentences because his actual aggregate sentence is 

statutorily limited. Even if Todd’s claim on appeal is liberally 

construed as arguing that the district court erred in not allowing 

him to amend his post-conviction petition to challenge the 

actions of the Board, the claim lacks merit. Any claim directed to 

the Board’s actions must be asserted in a petition for 

extraordinary relief directed to the Board under rule 65B of the 

Utah Rules of Civil Procedure. See Utah R. App. P 65B(d). For 

that reason, the district court did not err in denying 

reconsideration of its dismissal of the post-conviction petition in

denying a motion to amend the petition to add a procedurally 

inappropriate claim against the Board or to assert claims that 

have been the subject of prior proceedings. 

¶8 In support of his request to vacate the dismissal of his 

post-conviction petition filed roughly fifteen years after his 

convictions, Todd argues that his most recent petition is based 

upon newly discovered evidence. In sum, Todd asserts that 

because he raised claims in his recent filings that were not raised 

on appeal or in his prior petitions and have not been 

adjudicated, those claims constitute new evidence. However, the 

preclusion provisions of the Post-Conviction Remedies Act 

(PCRA) are not limited to claims that were actually raised on 

appeal or in previous post-conviction petitions and extend to 

claims that could have been, but were not, raised on appeal or in 

a previous post-conviction petition. See Utah Code Ann. § 78B-9-

106(c), (d) (LexisNexis 2012). The district court did not err in 

determining that Todd failed to demonstrate any new evidence 

that was not known to him at the time he filed his direct appeal 

or his previous post-conviction petition.

¶9 The district court did not err in refusing to consider an 

untimely motion to withdraw his guilty plea to the weapons 

charge, because the district court lacked jurisdiction to consider 
Todd v. State

20160745-CA 5 2016 UT App 232

it.2 Furthermore, although the second petition for postconviction relief included claims that might be construed as 

challenges to his guilty plea under the PCRA, Todd did not file a 

timely appeal from the dismissal of the petition. To the extent 

that Todd sought reinstatement of the time to appeal the 

conviction on the weapons charge, such a claim must be pursued 

in an appropriate motion under rule 4(f) of the Utah Rules of 

Appellate Procedure and not in a petition for post-conviction 

relief.

¶10 None of Todd’s remaining arguments in this appeal are 

directed to the subject of the August 24, 2016 order, which is the 

subject of this appeal. Instead, he again argues that his murder 

conviction was invalid because the shooting of his wife was 

accidental. Even if the claim had been properly raised in the 

post-conviction petition, it would have been subject to 

preclusion as a claim that should have been raised on direct 

appeal. See id. § 78B-9-106(1)(c). Similarly, any claims related to 

alleged prosecutorial misconduct are precluded because they 

were raised and addressed on direct appeal. See id. § 78B-9-

106(1)(b).

¶11 Accordingly, we affirm the district court’s August 24, 

2016 order denying relief based upon the seven submissions 

Todd filed on August 9, 2016.

 

2. When Todd entered his guilty plea, the relevant statute would 

have required a motion to withdraw a guilty plea to be made 

within thirty days after the entry of the plea. See Utah Code Ann. 

§ 77-13-6(2)(b) (Lexis 1999).