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Lucero v. Kennard4/1/2004
Benjamin Frank Lucero (Petitioner) appeals the district court's dismissal of his petition for post-conviction relief. He argues that while he was before the Murray City Justice Court (Justice Court), he was not properly advised of his constitutional right to counsel, and consequently did not knowingly and voluntarily waive his right to counsel before pleading guilty to driving under the influence of alcohol (DUI) in violation of Utah Code Annotated section 41-6-44 (Supp.2003). Petitioner argues that the record in the Justice Court is insufficient to allow a determination of whether the required colloquy *177 between the Justice Court and Petitioner occurred and that the trial court should not have considered evidence outside the record.
**2 The Justice Court responds by first arguing that neither the district court nor this court has jurisdiction to hear this case because Petitioner failed to file a timely appeal to the district court for a trial de novo. The Justice Court further argues that if there is jurisdiction there was sufficient evidence on the record and through proffered and sworn testimony, for the district court to conclude that Petitioner was advised of his rights, and properly waived his right to counsel. We affirm the district court's decision, but on other grounds.
BACKGROUND
**3 Petitioner was charged in the Justice Court [FN1] with DUI, a class B misdemeanor, in violation of Utah Code Annotated section 41-6-44 (Supp.2003), and improper usage of lanes, a class C misdemeanor, in violation of Utah Code Annotated section 41-6-61 (1998). At a bench trial, Petitioner appeared pro se. After pleading guilty to DUI, the charge of improper usage of lanes was dismissed. On June 4, 2002, Petitioner was sentenced to a jail term of 180 days, ordered to pay a fine, and placed on probation for eighteen months. Petitioner did not file an appeal of his conviction to the district court within the thirty days required by law. See Utah Code Ann. § 78-5- 120(1) (2002). However, on August 1, 2002, Petitioner filed, in the Third District Court, a Petition for Post-Conviction Relief or, in the alternative, Motion to Correct Illegally Imposed Sentence under Rules 65B and 65C of the Utah Rules of Civil Procedure. This petition sought an extraordinary writ granting his immediate release on the grounds that Petitioner was not represented by counsel, had not waived his right to counsel, and was sentenced in violation of the Sixth Amendment.
FN1. Under Utah Code Annotated section 78-5-101 (2002), justice courts are courts "not of record."
**4 The Justice Court held a review hearing on September 10, 2002, where it suspended Petitioner's remaining jail sentence and released him from custody. Six days later, in the Third District Court, a hearing took place on Petitioner's petition for post-conviction relief. At this hearing, rather than challenging his plea or conviction, Petitioner requested that his suspended sentence be vacated.
**5 After testimony from Petitioner, proffered testimony of the Justice Court judge, and submission of affidavit testimony of two Justice Court clerks, the district court entered Findings of Fact and Conclusions of Law stating that Petitioner knowingly and voluntarily waived his right to be represented by counsel when he entered his plea. Petitioner filed a timely appeal to this court for review of the district court's order.
ISSUES AND STANDARD OF REVIEW
**6 Petitioner challenges the district court's dismissal of his petition for post-conviction relief, claiming the record was insufficient. The Justice Court asserts the district court lacked jurisdiction to consider the petition. In addition, the Justice Court argues the district court properly found no violation of Petitioner's Sixth Amendmen
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