Robinson v. State , 362 P.3d 957 ( 2015 )

2015 UT App 279THE UTAH COURT OF APPEALS
ROBERT D. ROBINSON,
Appellant,
v.
STATE OF UTAH,
Appellee.
Per Curiam Decision
No. 20150713-CA
Filed November 19, 2015
Third District Court, West Jordan Department
The Honorable L. Douglas Hogan
No. 140410328
Robert D. Robinson, Appellant Pro Se
Sean D. Reyes and Thomas B. Brunker, Attorneys
for Appellee
Before JUDGES J. FREDERIC VOROS JR., STEPHEN L. ROTH, and
JOHN A. PEARCE.
PER CURIAM:
¶1 Robert D. Robinson appeals the district court’s order
granting the State’s motion for summary judgment and
dismissing Robinson’s petition for post-conviction relief. This
matter is before the court on its own motion for summary
disposition on the basis that the grounds for relief are so
insubstantial as not to merit further proceedings and
consideration by the court.
¶2 The district court dismissed Robinson’s petition for post-
conviction relief after determining that it was time barred under
Utah Code section 78B-9-107(1). “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
Robinson v. State
conclusions of law.” Gardner v. State, 2010 UT 46, ¶ 55, 234 P.3d
1115 (citation and internal quotation marks omitted).
¶3 Utah Code section 78B-9-107(1) states that “*a+ petitioner
is entitled to relief only if the petition is filed within one year
after the cause of action has accrued.” Utah Code Ann. § 78B-9-
107(1) (LexisNexis 2012). The statute goes on to set forth the
dates upon which the cause of action accrues:
(a) the last day for filing an appeal from the entry
of the final judgment of conviction, if no appeal is
taken;
(b) the entry of the decision of the appellate court
which has jurisdiction over the case, if an appeal is
taken;
(c) the last day for filing a petition for writ of
certiorari in the Utah Supreme Court or the United
States Supreme Court, if no petition for writ of
certiorari is filed;
(d) the entry of the denial of the petition for writ of
certiorari or the entry of the decision on the
petition for certiorari review, if a petition for writ
of certiorari is filed;
(e) the date on which petitioner knew or should
have known, in the exercise of reasonable
diligence, of evidentiary facts on which the petition
is based; or
(f) the date on which the new rule described in
Subsection 78B-9-104(1)(f) is established.
Id. § 78B–9–107(2).
¶4 After pleading no contest to several charges, Robinson
was sentenced on March 11, 2011. He never filed a notice of
appeal. Thus, unless he could establish that another accrual
dated applied, Robinson was required to file his petition for
post-conviction relief within one year of April 11, 2011, i.e., “the
20150713-CA 2 2015 UT App 279Robinson v. State
last day for filing an appeal from the entry of the final judgment
of conviction, if no appeal is taken.” Id. § 78B-9-102(2)(a).
Robinson did not file his petition for post-conviction relief until
June 24, 2014. Robinson never made a viable argument to the
district court as to why another accrual date should apply.
Specifically, each of the claims raised by Robinson, such as
whether counsel adequately investigated any potential alibi
witnesses, were known or should have been known by Robinson
at the time he was sentenced. Accordingly, such claims fail to
operate to alter the accrual date. Thus, the petition was filed
more than a year after his claim accrued. Because Robinson’s
petition for post-conviction relief was not filed until after the
one-year statute of limitations had passed, the district court
correctly determined that Robinson’s petition was time barred.
¶5 Affirmed.
20150713-CA 3 2015 UT App 279