ZARAT v. STATE, 2010 UT App 279


Teodoro Zarat, Petitioner and Appellant, v. State of Utah, Respondent and Appellee.

Case No. 20100403-CA.Utah Court of Appeals.
Filed October 7, 2010. Not For Official Publication

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the Third District, Salt Lake Department, 090919238 The Honorable L.A. Dever.

Hakeem Ishola, West Valley City, for Appellant.

Before Judges McHugh, Orme, and Thorne.

MEMORANDUM DECISION
PER CURIAM:

Teodoro Zarat appeals the dismissal of his petition for postconviction relief. This is before the court on its own motion for summary disposition based on the lack of a substantial question for review.

The trial court dismissed Zarat’s petition because the court determined that the claim had been previously adjudicated and was frivolous. See Utah R. Civ. P. 65C(h)(1) (providing for the dismissal of previously adjudicated or frivolous claims). In his response to the court’s motion, Zarat briefly asserts that although the claims of ineffective assistance of counsel raised in the two cases were identical, the claim in this case had not been adjudicated because the charge and case came in a different year. However, because the crux of the claim in both cases is whether Zarat knew or should have known that counsel’s alleged advice was incorrect, the finding in the earlier case that he knew of the immigration consequences of a plea to a drug charge applies equally to this later case.

The trial court found that Zarat, aka Elias Sanchez, knew or should have known in October 1993 that there were serious adverse consequences to a drug charge when he was deported as a result of a drug-related conviction. At that time, he was on notice that any assertion that a drug-related conviction would have no effect

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on immigration matters was inaccurate. When he allegedly received similar advice in 1994, he already knew that there were, indeed, immigration consequences. Accordingly, the trial court could properly determine that Zarat’s claim of ineffective assistance of counsel regarding the adverse immigration effects of a drug conviction had been previously adjudicated, although with a different drug charge and a different alias. As a result, Zarat is precluded from raising the issue again. See Gudmundson v. Del Ozone, 2010 UT 33, ¶ 29, 232 P.3d 1059.

Zarat does not otherwise address the trial court’s rationale in dismissing his petition. The remainder of his response argues the underlying merits and various allegations of error, but it is not relevant to the narrow issue of whether the trial court properly determined that his claim had been previously adjudicated. Additionally, his argument is based on an erroneous factual premise given the trial court’s finding in the prior case. Zarat asserts that he did not discover that counsel’s advice was incorrect until 2008. However, the trial court found that he knew or should have known of the immigration consequences of a drug-related conviction in 1993. Accordingly, Zarat does not present a substantial issue warranting further consideration by this court.

Affirmed.

Carolyn B. McHugh, Associate Presiding Judge, Gregory K. Orme, Judge, William A. Thorne Jr., Judge.

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