2011 UT 59
Filed September 30, 2011

The Utah Supreme Court dismissed the petition for post-conviction relief of a man convicted of murder because his claims either should have been raised on direct appeal or were appropriately dismissed by the district court for lack of jurisdiction.

Terry Johnson was convicted of murdering his child’s baby-sitter in 2004. He was sentenced to five years to life. Mister Johnson’s criminal defense lawyer filed a motion for a new trial, alleging that evidence had been admitted in violation of the Utah Rules of Evidence. Mr. Johnson then obtained a new criminal defense attorney, who filed a supplemental motion for a new trial that alleged that Mr. Johnson’s trial lawyer had been ineffective. The trial court denied both of Mr. Johnson’s motions. Mr. Johnson and his new criminal defense attorney appealed his conviction to the Utah Court of Appeals. The Utah Court of Appeals considered each of Mr. Johnson’s claimed grounds for reversal, but ultimately affirmed his conviction. Mr. Johnson and his criminal defense lawyer then filed a petition for post-conviction relief in the Utah district court. The Utah district court dismissed all of Mr. Johnson’s claims. Mr. Johnson and his criminal defense attorney appealed the dismissal of his petition to the Utah Supreme Court.

The Utah Supreme Court affirmed the dismissal of Mr. Johnson’s petition. Under Utah’s Post-Conviction Remedies Act, ineffective assistance of counsel is grounds for post-conviction relief. However, in his petition, Mr. Johnson challenged the effectiveness of the criminal defense attorney who represented him at his murder trial. Since Mr. Johnson was represented by a different criminal defense lawyer on direct appeal, Mr. Johnson could have raised this claim as part of that direct appeal but he did not. His claim was therefore barred.

Two of Mr. Johnson’s other claims – erroneous admission of open ended jury instructions and sufficiency of the evidence to convict him at trial – had been adjudicated in the district court. These claims were likewise barred because Mr. Johnson did not raise them on direct appeal.

Finally, the Utah Supreme Court held that the Utah district court rightly dismissed Mr. Johnson’s remaining claims as frivolous. In those claims Mr. Johnson essentially asked the district court to review the decision made by the Utah Court of Appeals, which a district court does not have jurisdiction to do. Mr. Johnson’s remedy for his dissatisfaction with the Utah Court of Appeals’ decision was to petition the Utah Supreme Court for certiorari, which he had already done and which petition had been denied.