Shayne E. Todd, Appellant,
State of Utah, Appellee.
District Court, Salt Lake Department The Honorable Randall N.
Skanchy No. 150908512
E. Todd, Appellant Pro Se
Judges Stephen L. Roth, Kate A. Toomey, and David N.
Shayne E. Todd appeals the August 24, 2016 order resolving
seven submissions filed on August 9, 2016, following the
dismissal of his petition for post-conviction relief in a
July 19, 2016 memorandum decision and order. The case is now
before this court on a sua sponte motion for summary
disposition. We affirm.
In 1999, Todd shot and killed his estranged wife. Todd was
convicted of murder, a first degree felony, and possession of
a dangerous weapon by a restricted person, a second degree
felony. He pleaded guilty to the weapons charge prior to the
jury trial on the murder charge. Todd pursued a direct
appeal, which raised claims of prosecutorial misconduct
related to his murder conviction. This court affirmed the
conviction in State v. Todd, 2007 UT App 349, ¶
1, 173 P.3d 170. This court also affirmed the dismissal of
Todd's first petition for post-conviction relief, see
Todd v. State, 2011 UT App 313, ¶ 7, 262 P.3d 1222
(per curiam), and affirmed the denial of a motion to correct
an illegal sentence, see State v. Todd, 2013 UT App
231, ¶ 1, 312 P.3d 936.
The district court dismissed Todd's second petition for
post-conviction relief in the underlying case in a memorandum
decision and order dated July 19, 2016. In that decision, the
district court found that the claims raised in the petition
were either frivolous or had already been adjudicated in
previous proceedings. See Utah R. Civ. P. 65C(h)(1)
("[I]f it is apparent to the court that any claim has
been adjudicated in a prior proceeding, or if any claim in
the petition appears frivolous on its face, the court shall
forthwith issue an order dismissing the claim . . . .").
Todd did not file a timely notice of appeal from the July 19,
2016 order. Instead, on August 9, 2016, he filed seven
submissions in the district court, including (1) a motion to
reconsider and vacate the dismissal of his post-conviction
petition; (2) a motion to withdraw his guilty plea to the
weapons charge; (3) a supplemental declaration in support of
the post-conviction petition; (4) a memorandum in support of
the request for reconsideration of the dismissal of his
post-conviction petition; (5) a letter to the court; (6) a
motion seeking leave to amend the post-conviction petition;
and (7) an amended memorandum in support of the motion to
amend the post-conviction petition.
In the August 24, 2016 order, the district court considered
the seven submissions filed on August 9, 2016. The district
court stated that although Todd alluded to newly discovered
evidence, he failed to demonstrate that any new evidence
existed. The district court denied the motions, stating that
Todd "again makes stale arguments regarding his plea,
the jury's findings, and the sentence by the Board of
Todd's August 30, 2016 notice of appeal stated that the
appeal was taken from the August 24, 2016 order, as did the
docketing statement filed in this court. However, in response
to the sua sponte motion for summary disposition, Todd claims
that his appeal is taken from the July 19, 2016 memorandum
decision and order dismissing his petition for
post-conviction relief. Because the notice of appeal filed on
August 30, 2016 was not timely filed within thirty days after
entry of the July 19, 2016 memorandum decision and order, we
lack jurisdiction to consider it. See Utah R. App.
P. 4(a). Furthermore, none of the submissions on August 9,
2016, operated to extend the time for appeal. See
id. 4(b); see also Gillett v. Price, 2006 UT
24, ¶ 7, 135 P.3d 861 ("[R]egardless of the
motion's substance, postjudgment motions to reconsider
and other similarly titled motions will not toll the time for
appeal because they are not recognized by our rules.").
Accordingly, the issues before this court on appeal are
limited to whether the district court erred in denying the
seven submissions filed on August 9, 2016. However,
Todd's response to the sua sponte motion addresses
neither the content nor the effect of the district
court's decision and reargues claims that have been made
in his previous filings, including reasserting his defense at
the jury trial that his wife's shooting was accidental.
None of Todd's arguments are directed to the substance of
the August 24, 2016 order being appealed nor are they
directed to the claims that were actually raised in his most
recent petition for post-conviction relief.
Much of Todd's response argues that the Utah Board of
Pardons and Parole (the Board) inappropriately calculated his
consecutive sentences because his actual aggregate sentence
is statutorily limited. Even if Todd's claim on appeal is
liberally construed as arguing that the district court erred
in not allowing him to amend his post-conviction petition to
challenge the actions of the Board, the claim lacks merit.
Any claim directed to the Board's actions must be
asserted in a petition for extraordinary relief directed to
the Board under rule 65B of the Utah Rules of Civil
Procedure. See Utah R. App. P 65B(d). For that
reason, the district court did not err in denying
reconsideration of its dismissal of the post-conviction
petition in denying a motion to amend the petition to add a
procedurally inappropriate claim against the Board or to
assert claims that have been the subject of prior
In support of his request to vacate the dismissal of his
post-conviction petition filed roughly fifteen years after
his convictions, Todd argues that his most recent petition is
based upon newly discovered evidence. In sum, Todd asserts
that because he raised claims in his recent filings that were
not raised on appeal or in his prior petitions and have not
been adjudicated, those claims constitute new evidence.
However, the preclusion provisions of the Post-Conviction
Remedies Act (PCRA) are not limited to claims that were
actually raised on appeal or in previous post-conviction
petitions and extend to claims that could have been, but were
not, raised on appeal or in a previous post-conviction
petition. See Utah Code Ann. § 78B-9-106(c),
(d) (LexisNexis 2012). The district court did not err in
determining that Todd failed to demonstrate any new evidence
that was not known to him at the time he filed his direct
appeal or his previous post-conviction petition.
The district court did not err in refusing to consider an
untimely motion to withdraw his guilty plea to the weapons
charge, because the district court lacked jurisdiction to
consider it. Furthermore, although the second petition
for post-conviction relief included claims that might be
construed as challenges to his guilty plea under the PCRA,
Todd did not file a timely appeal from the dismissal of the
petition. To the extent that Todd sought reinstatement of the
time to appeal the conviction on the weapons charge, such a
claim must be pursued in an appropriate motion under rule
4(f) of the Utah Rules of Appellate Procedure and not in a
petition for post-conviction relief.
None of Todd's remaining arguments in this appeal are
directed to the subject of the August 24, 2016 order, which
is the subject of this appeal. Instead, he again argues that
his murder conviction was invalid because the shooting of his
wife was accidental. Even if the claim had been properly
raised in the post-conviction petition, it would have been
subject to preclusion as a claim that should have been raised
on direct appeal. See id. § 78B-9-106(1)(c).
Similarly, any claims related to ...