Gregg v. State

2012 UT 32, 279 P.3d 396, 709 Utah Adv. Rep. 24, 2012 WL 1987569, 2012 Utah LEXIS 65
CourtUtah Supreme Court
DecidedJune 1, 2012
DocketNos. 20090255, 20090567
StatusPublished
Cited by30 cases

This text of 2012 UT 32 (Gregg v. State) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gregg v. State, 2012 UT 32, 279 P.3d 396, 709 Utah Adv. Rep. 24, 2012 WL 1987569, 2012 Utah LEXIS 65 (Utah 2012).

Opinions

Justice PARRISH,

opinion of the Court:

INTRODUCTION

T1 Petitioner David Vincent Gregg appeals the dismissal of his petition for post-conviction relief, The district court dismissed Mr. Gregg's claims as procedurally barred under the Post-Conviction Remedies Act (PCRA). We hold that Mr. Gregg qualifies for an exception to the procedural bar because he received ineffective assistance of trial and appellate counsel. Therefore, we vacate his conviction and remand for new trial.

BACKGROUND

12 On July 18, 2003, David Vincent Gregg was convicted of rape, a first-degree felony. The trial court sentenced him to an indeterminate sentence of five years to life. Mr. Gregg has served nearly nine years in the Utah State Prison, where he is currently incarcerated. This matter is before us on appeal from the district court's summary judgment order dismissing Mr. Gregg's amended petition for post-conviction relief. Because this case comes before us after a jury verdict, "we recite the facts from the record in the light most favorable to the jury's verdict and present conflicting evidence only as necessary to understand issues [399]*399raised on appeal." State v. Bluff, 2002 UT 66, 12, 52 P.3d 1210 (internal quotation marks omitted).

T3 Mr. Gregg was tried by jury in July 2008. At trial, both parties agreed that the only contested issue was whether the alleged victim, Ms. S., consented to sexual intercourse with Mr. Gregg. At sentencing, the trial court also acknowledged that "[t]he only issue before the court and before the jury was the question of consent," and noted that "Itlhis was a highly difficult issue."

[ 4 Seven months earlier, in January 2003, Mr. Gregg and Ms. S8. met online and had begun corresponding through an online dating service, LDSSinglesOnline.com (LDSSO). A few weeks later on February 15, 20083, Mr. Gregg and Ms. S. began chatting on LDSSO shortly after midnight. After chatting online with Mr. Gregg, Ms. S. gave him her phone number and the two talked on the phone for the first time. Around 2:00 a.m., Ms. S. invited Mr. Gregg to her apartment. Just before Mr. Gregg arrived, Ms. S. called her friend Matt and asked him to call her in one hour. Ms. S. testified that she asked Matt to call her because she was concerned that Mr. Gregg, whom she had never met before, was coming over late at night. Mr. Gregg arrived at her home at 2:20 a.m.

5 After Mr. Gregg arrived, he and Ms. S. talked and then engaged in consensual kissing and sexual foreplay. They were interrupted when Matt called at 3:20 a.m. Ms. S. answered Matt's call and pretended the call was from a girlfriend. After ending the call, Ms. S. told Mr. Gregg that a girlfriend was coming over because she was having problems with her boyfriend. In reality, Matt had indicated that he would drive up to Ms. S.'s apartment in Bountiful onee his girlfriend Jess got off of work in Draper. At this point, Mr. Gregg's and Ms. S.'s description of events diverge.

16 According to Ms. S.'s testimony, once she ended the call with Matt, she and Mr. Gregg resumed kissing. She testified that she stopped and told Mr. Gregg that she was uncomfortable because they had just met. Mr. Gregg asked her if they could continue with sexual activity for another five minutes and promised they would not have intercourse. Ms. S. testified that she told Mr. Gregg "no" several times before he suddenly grabbed her ankles and began to rape her. She testified that shortly thereafter, Matt called again, interrupting intercourse.

17 Mr. Gregg's version of events is quite different.1 According to Mr. Gregg, after Ms. S. received the phone call at 8:20 a.m., they resumed kissing, which progressed to consensual foreplay. They paused for a brief conversation about how far they wanted sexual activity to progress. Ms. S. agreed to continue, and Mr. Gregg agreed that they would stop whenever she wanted. They resumed consensual sexual activity, which gradually escalated to the point of intercourse. According to Mr. Gregg, Ms. S. did not say "no" or stop foreplay after their conversation about boundaries. Rather, Ms. S. asked Mr. Gregg to turn off the lights and helped him pull off her pants before the two began consensual intercourse.

8 Both Mr. Gregg and Ms. S. agree about the events after this point. Matt's phone call interrupted intercourse. Ms. S. answered the phone and asked Matt and his girlfriend to wait outside a few minutes before coming to the front door. Police records indicate that this phone call occurred .at 4:07 a.m. With Matt and Jess waiting outside, Mr. Gregg and Ms. S. got dressed. Then Ms. S. answered the door, invited Matt and his girlfriend into her apartment, and introduced the couple to Mr. Gregg. Matt and Jess stayed in the apartment while Ms. S. walked Mr. Gregg to his car, hugged him, gave him a kiss, and said goodnight.

T9 At trial, Ms. S. testified that onee she got back to her apartment, she began to ery. She told Matt and Jess what had happened, and they urged her to go to the hospital or call the police. She resisted, saying that she was fine and that she was responsible for not stopping things with Mr. Gregg sooner. Matt called a rape crisis line, suggesting that Ms. S. had been assaulted. The crisis line told Matt that if Ms. S. went to the hospital, [400]*400they would file a report, but she would not have to press charges. Ms. S. was still resistant until she called another friend of hers, Sean, whom she had dated and met on LDSSO. Sean was able to convince her to go to the hospital to get the morning-after pill to prevent a potential pregnancy.

110 While at the hospital, the examining nurse brought Ms. S. to a room to wait for a doctor. The nurse then returned with a rape victim advocate and a detective. Ms. S. was hesitant to talk to them because she did not feel that it was necessary. In her own words, Ms. S. testified that she "didn't know-[there were] so many feelings going through my mind and I wanted to make sure what I was feeling was valid ... But I'm not sure, you know, if what I'm feeling is just my imagination." At this time, Ms. S. had never claimed she was raped in her conversations with Matt, Jess, Sean, or the examining nurse.

T11 The rape victim advocate and the detective encouraged Ms. S. to tell them about her encounter with Mr. Gregg, suggesting that she could use a fake name so that no one would be implicated. Ms. S. finally acquiesced and described the events of the previous evening. After Ms. S. told them about her encounter with Mr. Gregg, she testified that the rape victim advocate and the detective "told [her] that they ha[ld] never heard of someone that was more manipulative, and that what happened was a date rape. And [Mr. Gregg was] a person who plays mind games." At that point, Ms. S. decided to press charges against Mr. Gregg.

1 12 Six months later, after a two-day trial, the jury convicted Mr. Gregg of one count of rape, a first-degree felony. After trial and before sentencing, Mr. Gregg fired trial counsel based on counsel's "serious errors" at trial Mr. Gregg filed a pro se motion to arrest the judgment, which the trial court denied. At that same hearing, the trial court sentenced Mr. Gregg to an indeterminate term of five years to life.

183 Mr. Gregg retained appellate counsel, who appealed the district court's denial of the motion to arrest the judgment and filed a rule 23B remand motion with the Utah Court of Appeals.2 The court of appeals denied the motion and affirmed the conviction. We denied Mr.

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Bluebook (online)
2012 UT 32, 279 P.3d 396, 709 Utah Adv. Rep. 24, 2012 WL 1987569, 2012 Utah LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gregg-v-state-utah-2012.