Opinion
Case No. 20060236-CA.
Filed June 22, 2006. (Not For Official Publication).
Appeal from the Fourth District, Provo Department, 060400151, The Honorable Gary D. Stott.
Before Judges Greenwood, Davis, and Thorne.
Robert S. Treff, Draper, Appellant Pro Se.
MEMORANDUM DECISION
Robert S. Treff appeals the trial court's dismissal of his petition for post-conviction relief as frivolous. This is before the court on its own motion for summary disposition based on the lack of a substantial question for review.
Treff pleaded guilty to manslaughter and was sentenced in 1987. He filed his petition for relief in January 2006. In the petition, he asserted that the plea affidavit he signed cannot be located. In response to the motion for summary disposition, in addition to the failure to locate his plea document, he raised issues of due process not raised in his petition below.
The trial court dismissed the petition as frivolous because it failed to state a claim, lacked facts in support of any claim, was barred because Treff failed to pursue a direct appeal, and was untimely. Treff has presented no substantial issue for review regarding the trial court's ruling.
First, the due process issues are raised for the first time on appeal and thus are not properly before this court. See Monson v. Carver, 928 P.2d 1017, 1022 (Utah 1996) (noting general rule that "issues not raised at trial cannot be argued for the first time on appeal"). Furthermore, because Treff pleaded guilty, he waived all non-jurisdictional defects, including constitutional violations. See State v. Parsons, 781 P.2d 1275, 1278 (Utah 1989).
Second, Treff raises no substantial question for review regarding the claims presented in his petition. The key allegation is that Treff's plea agreement cannot be located. Although Treff implies that this would negate his guilty plea, the inability to find the document years after the plea does not invalidate Treff's plea. Treff admits that the document did exist and that he signed it. He does not assert that the trial court failed to perform a rule 11 colloquy to determine that Treff's plea was voluntary and knowing. See Utah R. Crim. P. 11. Compliance with rule 11 creates a presumption that the plea was voluntarily entered. See State v. Martinez, 2001 UT 12, ¶ 22, 26 P.3d 203. In addition, Treff failed to challenge the validity of his plea in a timely manner, either by moving to withdraw the plea or by filing a timely post-conviction petition.
In sum, the trial court did not err in dismissing Treff's petition. Accordingly, the trial court's dismissal is affirmed.
Pamela T. Greenwood, Associate Presiding Judge, James Z. Davis, Judge and William A. Thorne Jr., Judge, concur.