Sherratt v. State , 344 P.3d 650 ( 2015 )

2015 UT App 32_________________________________________________________
THE UTAH COURT OF APPEALS
WILLIAM SHERRATT,
Petitioner and Appellant,
v.
STATE OF UTAH,
Respondent and Appellee.
Per Curiam Decision
No. 20141034-CA
Filed February 12, 2015
Fifth District Court, Cedar City Department
The Honorable Keith C. Barnes
No. 080500231
William Sherratt, Appellant Pro Se
Sean D. Reyes and Erin Riley, Attorneys for Appellee
Before JUDGES JAMES Z. DAVIS, STEPHEN L. ROTH, and
MICHELE M. CHRISTIANSEN.
PER CURIAM:
¶1 William Sherratt seeks to appeal the dismissal of his petition
for postconviction relief and the denial of a motion to restart the
postconviction petition. This case is before the court on a sua
sponte motion for summary disposition.
¶2 Sherratt filed two notices of appeal in the Fifth District Court
case number 080500231, and we consolidated those appeals at
Sherratt’s request. This appeal is limited to a review of the October
9, 2014 Amended Decision and Order in case number 080500231
(the October 9, 2014 Order).
¶3 In an October 18, 2012 Amended Order and Ruling (the
October 18, 2012 Order), the district court found that Sherratt’s
Sherratt v. State
filing of the petition for postconviction relief filed in case number
080500231 was an “attempt . . . to retry his criminal case and to
address issues that should have been raised on appeal.” The district
court also found that the claims relied “on information which
existed prior to the trial of his criminal case, was in fact known to
Mr. Sherratt and his counsel, and that some of the information was
in fact offered by counsel but not received by the court.” The
October 18, 2012 Order dismissed the petition for postconviction
relief (the postconviction petition) filed in case number 080500231,
as well as a separate petition for a determination of factual
innocence (the factual innocence petition) filed in case number
110501051.1 Sherratt did not file a timely notice of appeal from the
dismissal of his postconviction petition in case number 080500231.2
¶4 On June 9, 2014, the district court requested further briefing
on the issue of whether the October 18, 2012 Order was void
because it was entered while an unresolved motion to recuse the
assigned judge was pending. After supplemental briefing, the
district court entered the October 9, 2014 Order before us in this
appeal. The district court concluded that because Sherratt did not
file a recusal motion in case number 080500231, there was “no
apparent voidness problem associated with the Amended Order in
this case.” After noting that he did not file a timely appeal of the
1. A minute entry in this case states that the original filings were
withdrawn, that Sherratt could file an amended petition referring
to matters properly raised under the Post-Conviction Remedies
Act, see Utah Code Ann. § 78B-9-104 (LexisNexis 2012), and that if
Sherratt also sought relief under the Postconviction Determination
of Factual Innocence statute, see id. § 78B-9-402, he would be
required to file “a new petition as a new case.”
2. On January 24, 2013, we dismissed an untimely appeal—filed
only in case number 110501051—from the October 18, 2012 Order
for lack of jurisdiction. See Order of Summary Dismissal, Sherratt
v. State (No. 20121068-CA).
20141034-CA 2 2015 UT App 32Sherratt v. State
October 18, 2012 Order, the district court considered Sherratt’s
claim that the dismissal should be set aside for “fraud on the court”
or under rule 60(b) of the Utah Rules of Civil Procedure.3 The
district court concluded that Sherratt had not demonstrated that he
was entitled to reinstatement of his postconviction petition, because
his claims “could have been raised in a timely appeal”of the
October 18, 2012 Order and “because rule 60(b) is not intended to
be a substitute for an appeal.” Accordingly, the district court
denied the motion to set aside the October 18, 2012 Order
dismissing the postconviction petition in case number 080500231
and to restart the petition.
¶5 The notices of appeal initiating this consolidated appeal
were each filed only in case number 080500231 and listed only that
number, which corresponds to the postconviction petition.
Accordingly, we lack jurisdiction in this appeal to consider any
claims related to the dismissal of the factual innocence petition in
case number 110501051. We agree with the district court’s
conclusion that because there was no recusal motion filed in case
number 080500231, there was no voidness issue related to the
October 18, 2012 Order. It follows that the October 18, 2012 Order
dismissing the postconviction petition was final and appealable,
and Sherratt did not file a timely appeal of the October 18, 2012
Order in case number 080500231. Thus, we lack jurisdiction to
consider an appeal of the October 18, 2012 Order, and we review
only the October 9, 2014 Order denying the motion to restart the
postconviction petition.
¶6 The district court also did not err in denying the motion to
restart the postconviction petition. Claims regarding alleged “fraud
3. The fraud alleged was that the factual innocence petition was
originally incorrectly filed by a court clerk in Sherratt’s criminal
case. See State v. Sherratt, 2009 UT App 229U, para. 4 (per curiam)
(concluding that the petition alleging factual innocence was
correctly dismissed because it was improperly filed in the criminal
case).
20141034-CA 3 2015 UT App 32Sherratt v. State
on the court” by a court clerk’s initial misfiling of the factual
innocence petition in the criminal case are insufficient to
demonstrate a basis for setting aside the dismissal of the separate
postconviction petition. The issues raised in the motion to restart
that petition rely upon Brown v. State, 2013 UT 42, 308 P.3d 486, also
relate only to the separate factual innocence petition in case
number 110501051, and are not before us for review in this appeal.
¶7 Accordingly, we dismiss this appeal insofar as it seeks to
directly appeal the October 18, 2012 Order dismissing the
postconviction petition. We affirm the October 9, 2014 Order
denying a motion to set aside the dismissal of the postconviction
petition and restart that petition. We also deny Sherratt’s motion
seeking sanctions against opposing counsel made pursuant to rules
33 and 40 of the Utah Rules of Appellate Procedure because the
motion lacks merit.
20141034-CA 4 2015 UT App 32