Jorge Martin Benvenuto, whose "thrill killing" took a teenage boy's life and critically injured a teenage girl, should not be able to withdraw his guilty plea five years after the legal deadline, because his petition is procedurally flawed and was filed too late.
That is the argument from the Utah Attorney General's Office, which filed a response Friday in 3rd District Court to Benvenuto's petition to withdraw his guilty plea.
Benvenuto, 28, has argued that there is a provision in the 1963 Vienna Convention signed by the United States and other countries, including Uruguay, where Benvenuto was born, that a citizen charged with a crime in another country must be informed he has the right to contact his own country's consulate.
Benvenuto, who had faced the death penalty, pleaded guilty in 1998 to capital murder for shooting Zachary Snarr to death and trying to kill Yvette Rodier (now Yvette Rodier Evans). As part of the plea bargain, prosecutors agreed not to seek the death penalty and Benvenuto got a sentence of life in prison without parole.
Snarr, who was 18 at the time, was an award-winning photographer who was trying to take photos of the moon rising above Little Dell Reservoir in 1996 when Benvenuto shot him to death. Rodier Evans, then also 18, had accompanied Snarr. She was shot and badly injured but survived.
Benvenuto filed a post-conviction petition for habeas corpus in October and raised the issue of not being told he had the right to contact the Uruguayan consul after his arrest.
Assistant Attorney General Thomas Brunker argued in the state's response that the state does not concede Benvenuto is a foreign national but will address that issue as part of the state's motion to dismiss Benvenuto's petition.
Brunker notes that Benvenuto did not tell anyone, including his original legal team, that he was anything but a U.S. citizen. Nor did he raise the issue in court while entering his guilty plea. He did not list Uruguay as his country of residence when he filed an employment application at a workplace about a year before the crimes were committed.
Even if Benvenuto had contacted the Uruguayan consulate, he "has not alleged what benefit, if any, would have followed from that contact. However, Benvenuto still would have faced a capital murder trial and possible death sentence," the state's memorandum says.
Benvenuto is not legally permitted to raise claims that he could have, but did not, raise at trial or on direct appeal, the state document says. In addition, it is legally too late to claim that he got ineffective assistance from his lawyers, according to state officials.
Benvenuto raises no facts that show he received ineffective legal help, the state's document argues. The attorney general's office has asked 3rd District Judge Deno Himonas to dismiss the petition.
Benvenuto's lawyer has a Dec. 18 deadline to reply, and there is a Jan. 4, 2006, deadline for the attorney general's office to submit a rebuttal.