District Court, Salt Lake Department The Honorable Paul B.
Parker No. 150908028
Joe McCamey, Appellant Pro Se
D. Reyes and Daniel W. Boyer, Attorneys for Appellee
Judges J. Frederic Voros Jr., Stephen L. Roth, and David N.
PER CURIAM OPINION
Gary Joe McCamey appeals the grant of summary judgment on his
petition seeking post-conviction relief. We affirm.
In 2003, McCamey was on parole for his 1991 convictions for
sexual offenses involving children. As a condition of his
parole, he was not allowed to have contact with anyone under
the age of eighteen. McCamey's probation officer
suspected that McCamey was living with his wife, his
thirteen-year-old stepdaughter J.W., and his five-year-old
son. The probation officer contacted the Murray City police
officer who was a resource officer at J.W.'s school. That
officer's 2003 police report stated that the probation
officer was trying to gather evidence to show that McCamey
was living in the home with the children.The report also
stated that the probation officer was "concerned"
that McCamey may have "victimized" J.W. The
probation officer determined from a source at J.W.'s
school that McCamey would sometimes pick her up from school
early. The probation officer shared this information with
Murray City police. A Murray City detective wrote a report
about a "possible sex offense" investigation. The
detective's report noted that the probation officer
reported that McCamey "had been around [J.W.] alone,
" and the probation officer was "concerned that
McCamey may have perpetrated a sexual offense towards
her." When interviewed, J.W. denied that McCamey had
ever touched her, tried to touch her, or made sexual advances
towards her. Due to lack of information and "no
allegations or disclosures" from J.W., Murray City
closed the 2003 investigation without filing charges.
In 2012, J.W. reported that nine years earlier McCamey had
touched her unlawfully more than once. In 2013, the State
charged McCamey with two counts of aggravated sexual abuse of
a child, a first degree felony, and one count of lewdness
involving a child, a third degree felony.
In an October 2014 letter, McCamey "complained to the
trial court that his defense attorney was not doing what he
was asking her to do" and stated his belief that the
statute of limitations should have barred the 2013
prosecution. However, on January 20, 2015, McCamey entered
into a plea agreement through which he pleaded guilty to two
amended counts of attempted sexual abuse of a child, a third
degree felony, and obtained a dismissal of the lewdness
charge. In connection with his guilty pleas, McCamey admitted
the factual basis for the charges, acknowledged and waived
each of his statutory and constitutional rights (except the
right to counsel), and affirmed that if he wanted to withdraw
his guilty pleas, he must file a motion to withdraw before
sentencing. McCamey did not move to withdraw his pleas or
file a direct appeal.
On November 15, 2015, McCamey filed a petition under the
Post-Conviction Remedies Act (PCRA). In relevant part, the
petition asserted that the 2013 charges were barred by the
statute of limitations and that his trial counsel was
ineffective for not pursuing a statute of limitations
defense. The district court granted summary judgment on the
claims. First, it ruled that McCamey's statute of
limitations claim was procedurally barred under Utah Code
section 78B-9-106(1)(c) because he could have raised the
claim at trial or on appeal. The district court noted that
"McCamey brought his concern regarding the statute of
limitations defense to the Court's attention" in his
October 2014 letter, but the court did not address the
question because McCamey entered guilty pleas to reduced
charges in January 2015.
The district court next noted that under section 78B-9-106(3)
of the PCRA, a person may still be eligible for relief on a
ground otherwise precluded "if the failure to raise that
ground was due to ineffective assistance of counsel."
See Utah Code Ann. § 78B-9-106(3) (LexisNexis
2012). Because McCamey asserted an ineffective assistance of
counsel claim, the district court reviewed the merits of the
statute of limitations claim to the extent necessary to
address the exception under section 78B-9-106(3). The
district court ruled that McCamey had not shown ineffective
assistance of his trial counsel based upon the failure to
raise a statute of limitations defense to the 2013 charges.
The district court concluded that the statute of limitations
had not expired because the 2003 communications did not
amount to a "report of the offense" that triggered
the running of the four-year statute of limitations that was
in effect in 2003.
"[W]e review a grant of summary judgment for
correctness, granting no deference to the [lower]
court." Ross v. State, 2012 UT 93, ¶ 18,
293 P.3d 345 (second alternation in original) (citation and
internal quotation marks omitted). In reviewing a grant of
summary judgment, we will affirm the district court's
decision "when the record shows that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Id.
(citation and internal quotation marks omitted).
On appeal, McCamey claims that the district court erred in
determining that the 2013 charges were not barred by the
statute of limitations. McCamey does not specifically address
the district court's determination that the claim was
precluded by section 78B-9-106(1)(c) of the PCRA.
See Utah Code Ann. § 78B-9-106(1)(c)
(LexisNexis 2012). The district court stated, that in an
October 2014 letter that was attached to the petition,
"McCamey brought his concern regarding the statute of
limitations defense to the Court's attention in the
underlying criminal case." However, the district court
further noted that "no motion or request for relief was
ever filed on this issue." Thereafter, McCamey pleaded
guilty to reduced charges and was sentenced. The district
court ruled that McCamey was not eligible for relief under
the PCRA on this claim because he failed to pursue it in the
district court or on appeal.
The district court did not err in determining that the
statute of limitations claim was barred under section
78B-9-106(1)(c) of the PCRA unless the exception in section
78B-9-106(3) applied. In addition, by pleading guilty to the
amended charges, McCamey waived any pre-plea issues,
including statutory and constitutional claims. See State
v. Rhinehart, 2007 UT 61, ¶ 15, 167 P.3d 1046
(holding that by pleading guilty, a defendant is deemed to
have admitted the essential elements of the crime charged and
thereby waives all nonjurisdictional defects, including
alleged pre-plea constitutional violations); James v.
Galetka, 965 P.2d 567, 573 (Utah Ct. App. ...