Martinez-Ferrate v Department of Commerce, Division of Occupational and Professional Licensing

Martinez-Ferrate petitioned for review of department’s order imposing probation on his medical licenses. The panel rejected his petition. It first held that Martinez-Ferrate failed to identify the applicable standards of review for any of the seven issues and failed to cite to the record where any of the issues were preserved and thus affirmed on that ground. Acknowledging that Department did identify some issues that may be preserved, that panel addressed them as an alternative ground of denying the petition. It held there was no due process violation when the hearing officer admitted an unsworn statement by the unlicensed person in Martinez-Ferrate’s office who caused the harm to the patient involved because the statement was not used in making findings of fact and Martinez-Ferrate failed to demonstrate prejudice from either the statement or from the lack of cross examination. The panel upheld Department’s finding of gross negligence holding that substantial evidence supported the finding because Martinez-Ferrate treated the patient with infrared light without first examining the patient or her medical records and made false entries in the patient’s file. It affirmed a finding that Martinez-Ferrate knew the unlicensed person would act independently as he knew the person had infrared devices and allowed the person access to patient records and otherwise allowed her freedom to counsel and treat his patients and further held that Martinez-Ferrate negligently supervised the person by failing to train her or at least set limits on what she could do independently. It finally upheld the finding of gross negligence in treatment holding the risks that the unlicensed person would use the infrared devise was significant and in any event Martinez-Ferrate planned to perform the same treatment on her liver which lacked any medical basis and thus was not an alternative medical practice.

State v MacNeill

MacNeill appealed his sex abuse conviction. The panel affirmed. The panel held any argument about the denial of MacNeill’s motion to change venue was forfeited as his attorney passed the jury for cause. It held there was no ineffective assistance of counsel when MacNeill’s attorney did not object to victim’s testimony she believed MacNeill killed her mother because the attorney used the testimony to try and undermine her testimony ab out the abuse by pointing to a motive to lie which was reasonable as victim’s credibility was a key issue in the case. It finally held that MacNeill’s speedy trial claim had been rejected in an earlier appeal and MacNeill inadequately briefed whether an exception to the law of the case doctrine applied or whether he suffered prejudice from the erasure of victim’s police interview.

Mower v Nibley

Mower appealed the dismissal of his complaint for lack of jurisdiction over Nibley. The panel affirmed. It held that Nibley did not waive his jurisdictional challenge as he was pro se and under Utah Supreme Court precedent merely denying liability is not an appearance and Nibley here only denied held that there was no general jurisdiction over Nibley because Nibley’s domicile is japan and has been for 30 years, his wife lives in Japan, he owns no property in Utah and has been in the state twice in the past 10 years and his contacts in the state have been with private entities not eh state of Utah and Nibley’s real property in Utah is not dispositive.

Cramer v State

Cramer appealed the dismissal of his petition for post-conviction relief. The panel affirmed holding that Cramer’s petition was untimely as it was field more than one year after his conviction became final, the new evidence exception did not apply as he knew the facts which formed the basis of his petition more than two years before the filed his late petition and a previous petition for post-conviction relief we did not restart the clock.