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McCamey v. State

Court of Appeals of Utah

June 15, 2017

Gary Joe McCamey, Appellant,
v.
State of Utah, Appellee.

         Third District Court, Salt Lake Department The Honorable Paul B. Parker No. 150908028

          Gary Joe McCamey, Appellant Pro Se

          Sean D. Reyes and Daniel W. Boyer, Attorneys for Appellee

          Before Judges J. Frederic Voros Jr., Stephen L. Roth, and David N. Mortensen.

          PER CURIAM OPINION

          PER CURIAM:

         ¶1 Gary Joe McCamey appeals the grant of summary judgment on his petition seeking post-conviction relief. We affirm.

         ¶2 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.[1]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.

         ¶3 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.

         ¶4 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.

         ¶5 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.

         ¶6 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.

         ¶7 "[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).

         ¶8 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.

         ¶9 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. ...


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