Snyder v. State , 346 P.3d 669 ( 2015 )

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2015 UT App 37

_________________________________________________________
THE UTAH COURT OF APPEALS
BARRY J. SNYDER,
Petitioner and Appellant,
v.
STATE OF UTAH,
Respondent and Appellee.
Per Curiam Decision
No. 20140376-CA
Filed February 20, 2015
First District Court, Logan Department
The Honorable Brian G. Cannell
No. 120100137
Barry J. Snyder, Appellant Pro Se
Sean D. Reyes and Ryan D. Tenney, Attorneys for Appellee
Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and
JOHN A. PEARCE.
PER CURIAM:
¶1     Barry J. Snyder appeals from the trial court’s order granting
summary judgment in favor of the State and dismissing his petition
for postconviction relief. We affirm.
¶2      On appeal from a grant of summary judgment, this court
reviews the trial court’s decision for correctness. Menzies v. State,

2014 UT 40

, ¶ 30. Summary judgment is appropriate where there
is no disputed issue of material fact and the moving party is
entitled to judgment as a matter of law. See

id.

 When the non-
moving party bears the burden of proof on an issue, the party must
set forth specific facts showing there is a genuine issue for trial and
may not merely rest on allegations. Id. ¶ 81. Although Snyder
Snyder v. State
alleges that he received ineffective assistance of counsel in entering
his guilty plea, he has failed to set forth specific facts that would
preclude summary judgment. Furthermore, several of the issues he
raises on appeal were either waived in the trial court or were not
preserved for appeal.
¶3     Snyder pleaded guilty to one count of sexual exploitation of
a minor in exchange for the dismissal of nine additional counts.
After sentencing, he filed a notice of appeal. However, he later
voluntarily withdrew the appeal.
¶4      Snyder filed a petition for postconviction relief. To the extent
that the claims raised would be substantive challenges to his
conviction, the claims were waived by his guilty plea. “The general
rule applicable in criminal proceedings . . . is that by pleading
guilty, the defendant is deemed to have admitted all of the essential
elements of the crime charged and thereby waives all
nonjurisdictional defects, including pre-plea constitutional
violations.” State v. Rhinehart,

2007 UT 61

, ¶ 15,

167 P.3d 1046

(citation and internal quotation marks omitted). In a postconviction
challenge to a conviction based on a guilty plea, a petitioner must
show that “‘he did not voluntarily or intelligently enter his plea.’”
Medel v. State,

2008 UT 32

, ¶ 26,

184 P.3d 1226

 (quoting United States
v. Wright,

43 F.3d 491

, 494 (10th Cir. 1994)).
¶5     Snyder alleged that he received ineffective assistance of
counsel in both pre-plea and post-plea proceedings, rendering his
plea invalid. To establish ineffective assistance of counsel, a
defendant must show both that counsel’s performance was
deficient and that the deficient performance prejudiced the
defendant. Menzies,

2014 UT 40

, ¶ 75 (citing Strickland v. Washing-
ton,

466 U.S. 668

, 687 (1984)). In evaluating counsel’s performance,
the focus is on “whether counsel’s assistance was reasonable
considering all the circumstances.” Id. ¶ 76 (citation and internal
quotation marks omitted). The strong presumption that counsel’s
conduct was not deficient may be overcome only by demonstrating
“that the challenged actions cannot be considered sound strategy
20140376-CA                        2

2015 UT App 37

Snyder v. State
under the circumstances.”

Id.

 (citation and internal quotation marks
omitted).
¶6      Snyder has not set forth facts that would support a
determination that his counsel was ineffective. Snyder asserts that
counsel failed to assure that the pre-sentence report was corrected.
This claim could have been addressed on Snyder’s direct appeal.
See, e.g., State v. Jaeger,

1999 UT 1

, ¶ 41,

973 P.2d 404

 (addressing
pre-sentence report challenges on direct appeal). Because Snyder
voluntarily withdrew the appeal, any issue related to the pre-
sentence report or sentencing itself is barred.1 See Utah Code Ann.
§ 78B-9-106(1)(c) (LexisNexis 2012) (barring postconviction claims
on grounds that could have been raised on direct appeal).
¶7     Snyder also asserts that counsel was ineffective for failing to
move to withdraw the guilty plea after Snyder provided legal
authority that Snyder believed would provide a defense. Before
sentencing, Snyder wrote the trial court about his disagreements
with counsel. Shortly after, however, Snyder wrote another letter
stating that the issues with counsel had been resolved, and it was
agreed that moving forward with sentencing was the best option.
The record shows that Snyder waived the filing of a motion to
withdraw his plea. Accordingly, he cannot now complain that
counsel failed to move for withdrawal of Snyder’s plea.
¶8     Snyder also contends that counsel failed to investigate the
evidence before advising him to plead guilty and did not spend
enough time on the case. Appellate courts generally decline “to
hold that counsel is ineffective based on the amount of time counsel
1. In an effort to overcome the procedural bar, Snyder asserts on
this appeal that he received ineffective assistance of appellate
counsel in his direct appeal. However, because this claim is argued
for the first time on appeal in his postconviction case, it is not
properly before this court. See 438 Main St. v. Easy Heat, Inc.,

2004 UT 72

, ¶ 51,

99 P.3d 801

.
20140376-CA                       3

2015 UT App 37

Snyder v. State
spent working on the case or consulting with a client.” Nicholls v.
State,

2009 UT 12

, ¶ 38,

203 P.3d 976

. Additionally, Snyder does not
set out specific facts to establish this claim but rather makes
conclusory allegations, stating merely his belief that counsel did
not evaluate the evidence. In contrast to his belief, the record shows
that counsel told Snyder that the images were “very bad” and
clearly violated the law. Accordingly, pursuing a plea bargain that
resulted in the dismissal of nine of ten charges appears to be sound
strategy under the circumstances.
¶9     In sum, Snyder has not shown that the trial court erred in
granting summary judgment and dismissing his petition.
¶10    Affirmed.2
2. Snyder also asserts that the trial court erred by declining to
appoint counsel on appeal. However, Snyder is not entitled to
counsel in this postconviction proceeding. See Hutchings v. State,

2003 UT 52