2016 UT App 101

THE UTAH COURT OF APPEALS

PEDRO GUTIERREZ,

Appellant,

v.

STATE OF UTAH,

Appellee.

Per Curiam Decision

No. 20160064-CA

Filed May 12, 2016

Third District Court, Salt Lake Department

The Honorable James T. Blanch

No. 150903672

Pedro Gutierrez, Appellant Pro Se

Sean D. Reyes and Mark C. Field, Attorneys

for Appellee

Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and

STEPHEN L. ROTH.

PER CURIAM:

¶1 Pedro Gutierrez appeals the dismissal of his petition for 

post-conviction relief. We affirm.

¶2 Gutierrez pleaded guilty to one count of attempted rape 

of a child and one count of aggravated sexual abuse of a child, 

both first degree felonies. Before sentencing, Gutierrez sent the 

court a letter asking to withdraw his pleas and claiming he had 

not seen the discovery in the case and that he pleaded guilty 

because his original attorney told him that his family members 

would be arrested if he did not. The trial court appointed new 

counsel to represent Gutierrez on his plea withdrawal request. 

After researching the issues, new counsel stated at sentencing 

that there was no basis for pursuing a motion to withdraw the 
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20160064-CA 2 2016 UT App 101

guilty pleas. Gutierrez agreed to withdraw the motion, and the

trial court sentenced him. Gutierrez filed an untimely pro se 

notice of appeal. This court dismissed the appeal. See Order of 

Summary Dismissal, Case No. 20140318-CA (July 18, 2014).

¶3 In the petition for post-conviction relief Gutierrez filed in 

the district court, he claimed that (1) his guilty pleas were not 

knowing and voluntary because he did not understand the 

charges and was coerced to plead by a threat of deportation; 

(2) the State failed to disclose evidence; and (3) he received 

ineffective assistance of counsel when trial counsel failed to 

provide him with documents or the presentence investigation 

report. The State moved for summary judgment based upon the 

preclusion provision of the Post-Conviction Remedies Act 

(PCRA). See Utah Code Ann. § 78B-9-106(1)(c) (LexisNexis 2012) 

(stating a petitioner “is not eligible for relief . . . upon any 

ground that . . . could have been but was not raised at trial or on 

appeal”). The district court concluded that all of Gutierrez’s 

claims could have been raised in his motion to withdraw his 

guilty pleas, which he voluntarily withdrew, or in a direct 

appeal from his sentence, which he failed to timely pursue. 

Accordingly, the district court ruled that each of the claims was 

procedurally barred. 

¶4 The district court also refused to apply a narrow 

exception to the PCRA’s preclusion provision under which a 

petitioner “may be eligible for relief on a basis that the ground 

could have been but was not raised at trial or on appeal, if the 

failure to raise that ground was due to ineffective assistance of 

counsel.” Id. § 78B-9-106(3). The district court reasoned that 

under this exception, a petitioner must assert that his attorney 

was the cause of his failure to raise his claims at trial or on 

appeal. See Lafferty v. State, 2007 UT 73, ¶ 44, 175 P.3d 530 (“*A+ 

claim that could have been brought on direct appeal may not be 

reviewed unless the defendant’s failure to bring the claim was 

the result of ineffective assistance of counsel.”). Because 
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20160064-CA 3 2016 UT App 101

Gutierrez did not allege that failure to raise the claims in the trial 

court or on appeal was due to ineffective representation, the 

exception did not apply.

¶5 “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.” Kell 

v. State, 2008 UT 62, ¶ 8, 194 P.3d 913 (citation and internal 

quotation marks omitted). Each of the claims that Gutierrez 

raised in his post-conviction petition could have been raised in 

the trial court or on direct appeal. Furthermore, he did not assert 

that his attorney caused the failure to raise the claims in the trial 

court or on direct appeal in order to qualify for the limited 

exception to preclusion. On appeal, Gutierrez essentially repeats 

the claims made in his post-conviction petition without making 

any attempt to address the actual basis for dismissal under the 

PCRA’s preclusion provisions. The district court did not rule on 

the merits of the post-conviction petition; therefore, no ruling on 

the merits is before us on appeal. The only issues before us 

concern whether the district court correctly dismissed the 

petition under the PCRA’s preclusion provisions. Because all of 

the claims made in the petition were based upon facts that were 

known at the time he filed, and then withdrew, his motion to 

withdraw his guilty pleas, or were known and could have been 

raised in a timely direct appeal, the district court correctly ruled 

that the claims were procedurally barred and dismissed the 

petition.

¶6 Affirmed.