It's All About the Training

When I went into business for myself, it was my goal to become a DUI defense specialist. The first thing I did was join the National College for DUI Defense (NCDD). This stellar organization consists of DUI defense specialists and expert qualified scientists from around the country. Last week I spent 3 days in intensive training in Boston with the NCDD members, faculty, regents, and guest lecturers.

The training ran the gambit from more effective cross examination of officers, to the faulty science behind drug and alcohol monitoring, to the ethics of plea bargains.  The bottom line is I came away a stronger lawyer. I learned new techniques and had my previous knowledge and practices reinforced.  I am re-energized to fight harder for you in the courtroom.

I am not only proud to have graduated from the intensive session, but I am proud to be a defense attorney dedicated to representing people in DUI cases.  The law and science of DUI cases is so complex that you need someone committed to continued proficiency in this area. If you go to the NCDD website you will see a handle of Utah lawyers are members.  But look closely - when did that lawyer last attend the College, if ever?  I'm the only Utah lawyer who has attended in almost 2 years. Give yourself the best advantage in the courtroom by hiring a lawyer with current training!  Call me at 385-243-0058, for a free consultation.

The Court Has Broad Discretion in Sentencing

 In State v. Guillen, 2016 UT App. 39, Defendant appealed his sentence for attempted theft and providing false information to a police officer. Defendant claimed that the trial court plainly erred by considering his actions during sentencing in the sentencing decision.

The sentencing of a trial court is reviewed for an abuse of discretion. The court abuses its discretion when it fails to consider all the legally relevant factors and no reasonable person would take the view adopted by the file court.

Defendant’s point of contention is that the prosecutor and trial court commented on his failure to look at the victim while she was making her impact statement. Defendant explained that his attorney told him to not look at the victim.  The court accepted this explanation.  This exchange show the defendant was able to correct the court’s misconceptions. In addition, the PSI recommended Defendant serve two concurrent 1 year sentences, had a bad history with supervised probation, and pending charges in Colorado.  Therefore, nothing in the record shows a lesser sentence was warranted and Defendant’s sentence so the trial court’s sentence is affirmed.

Your Friends Can Get You In Trouble, Too

In State v. Mikkelson,  2016 UT App. 136, the district court granted Defendant's Motion to Suppress evidence obtained after officers stopped her vehicle for the sole purpose of investigating her passenger's probation violation. The State appealed and the Court of Appeals reversed the decision, holding Defendant's Fourth Amendment rights were not violated.

In April 2014, to police officers were watching defendant's vehicle because she was parked and idling, behind the in a high drug trafficking area.  The vehicle was registered to a known drug dealer. Defendant's friend arrived and got into the passenger side of the vehicle. Friend was known to police officers as a person on probation and the hour was past curfew. Police officers called the assigned probation officer who asked that police investigate the situation. Officers then stopped the vehcile to question the probationer. A warrants check revealed an outstanding warrant for the Defendant (driver). Drugs and paraphernalia were found on the defendant during a search incident to arrest and while inventory the vehicle.

Defendant filed a motion to supress the evidence due to the unlawful search and seizure as she had not been suspected of committing a crime prior to the stop. The district court agreed that there was no reasonable articulable suspicion to stop the defendant. In addition, the district court ruled that the probation officer could not delegate his investigatory authority to police officers.

Upon review, a Motion to Suppress evidence based on Fourth Amendment violations presents a mixed question of law and fact.  The trial court's factual findings are reviewed for clear error and the legal conclusions for correctness. Probationers have constitutional rights that lay between that of a prisoner and the general public.  Probation officers can search someone under supervision when they have reasonable articulable suspicion that a probation violation or crime has occurred. Police officers, however, cannot engage in warrantless searches when acting solely as a police officers.

In areas where there is a shortage of probation officers, such as Price where this case occurred, the law allows for police officers to assist probation officers in investigating and apprehending people violating probation. Defendant never denied that probation officers can seek such assistance from police officers.  However, Defendant did dispute the police officers' lawful ability to stop and seize her, as the driver of the vehicle, since she was not suspected of committing any crime.  Not only does the law allow police to stop a vehicle suspected of committing a "wrongdoing," the US Supreme Court allows for police to stop a vehicle to investigate a passenger. Under the law, all people in the vehicle are then lawfully detained for the duration of the stop.

Your Story Must Be Plausible To Raise a Reasonable Doubt of Guilt

In State v. Jimenez, 2016 UT App. 138, Defendant appealed his conviction for felony burglary on the grounds the trial court abused its discretion in excluding his medical record exhibits. Even though the Court of Appeals found the evidence was relevant, the evidence against the defendant was so persuasive, the error was harmless and his conviction was affirmed.

In December 2012, a woman came home to find her house had been broken into.  Entry was made through a window that was accessed from a garbage can that had been placed under it. The window could not be accessed from ground level without climbing on some object.  Later, the woman found blood smeared in various areas of her bedroom and kitchen.  A DNA analysis completed and matched to the defendant, whose profile was already in a State database.  The defendant was questioned and denied ever being in said house.

At the time of trial, Defendant came up with an alternate, convoluted explanation about how his blood came to be in the home. Ostensibly, after trying to help a crying girl get her medication from a friend's house, Defendant was attacked by a pit bull. The girl got a dishtowel to help Defendant clean up his wounds. The dishtowel was then brought into the woman's house, where it spread his blood. Defendant also sought to introduce medical records at his trial to show he suffered from numerous medical conditions that would make it impossible for him to do any climbing such as multiple herniated discs, a crushed vertebrae, and a torn tendon. The State objected to the medical records on the grounds that they were based on the Defendant's self reported diagnosis, contained no objective medical tests, and contained no medical opinion as to his ability to climb.  The records were also limited to a six month time period and ended almost one year prior to the date of the burglary.  The trial court refused to admit the records on the grounds of relevance. In addition, the trial court refused to admit the records as cumulative to the defendant's own testimony as to his medical condition.

The trial court's ruling on admission of evidence is reviewed for an abuse of discretion. Even if the trial court should have admitted the evidence, the exclusion is reviewed for harmless error. Exclusion of evidence is harmful if there is a reasonable likelihood that a different outcome would result with the introduction of the evidence and the verdict of the jury is undermined.

The Court of Appeals held that the the medical records were relevant evidence. However, introduction of the evidence would not have lead to a different verdict. The DNA evidence at the scene was strong evidence of Defendant's guilt. His story, on the other hand, was not plausible.  Although he identified numerous witnesses in his account, not one of those people were called to testify and corroborate his story.  In addition, the probative value of the medical records was limited as there were no medical tests or assessments identified to confirm Defendant's self reported diagnosis.  The probative value was too limited to have raised a reasonable doubt in the mind of the jury in light of the DNA evidence.

When Is a Request To Lie Witness Tampering?

In State v. Plexico, 2016 UT App. 118, Defendant appealed her conviction for witness tampering. The Utah Court of Appeals affirmed.

Defendant was originally charged with two counts of assault for an altercation with her boyfriend and friend. Within two hours of receiving a citation from the police, Defendant asked her friend to change her statement to the police. Defendant was then charged with witness tampering. The charges were severed for trial and Defendant was acquitted on both counts of assault. Defendant was then tried on the the witness tampering charge and convicted by a jury.

At the time of trial, the trial court refused to allow Defendant to present evidence that she was acquitted of the underlying charges. The court reasoned that allowing the acquittal into evidence would be as prejudicial as allowing a prior conviction into evidence. The court would allow Defendant's attorney to admit enough evidence to establish whether Defendant knew criminal charges were pending. The Court also read a jury instruction that explained to the jury that the underlying circumstances were not evidence in the case against Defendant. After conviction, Defendant filed a motion for a new trial. With that motion, there was an Affidavit from one juror attesting to the fact that she thought Defendant had been convicted of the underlying charges.

Defendant first appealed on the grounds that there was insufficient evidence to find her guilty of witness tampering.  She argued that merely asking a friend to lie does not meet the plain language of the statute. The threshold issue of statutory interpretation is decided as a matter of law. The Court will only reverse a jury verdict when the evidence is sufficiently inconclusive or inherently improbable that reasonable minds must entertain a reasonable doubt that the Defendant committed the crime.The standard of review is highly deferential.

Generally, asking a friend to lie is not a crime. However, asking a friend to lie for the purpose of preventing an official proceeding (i.e. criminal charges ) or to testify falsely is a crime under Utah Code §76-8-508. Defendant bears the burden of marshalling the evidence in favor of the verdict. Defendant vastly understated the evidence against her and that undermined her claim. Ultimately, the jury had to decide if asking a friend to lie and tell police that Defendant did not hit her boyfriend, was the same as asking her to testify falsely. The jury found it was.  In light of the evidence presented, the Court of Appeals could not find that reasonable minds must have entertained a reasonable doubt concerning Defendant's guilt.

Defendant next claimed that the trial court abused its discretion by not allowing her to present evidence that she was acquitted of the underlying charge. In doing so, the trial court misapplied Rules 403 & 404, of the Utah Rules of Evidence. Furthermore, the trial court did not make the proper analysis to determine whether the evidence was admissible for non character purposes.

Evidence must be excluded if it is only being offered to show a person has a propensity to commit (or not commit) a crime.  If there is a proper, non character purpose for the evidence, the trial court must then review the evidence to determine if it makes a fact of consequence more probable than without the evidence. The trial court determined the evidence of Defendant's acquittal of the underlying crime would unduly prejudice the jury.  In addition, the evidence was irrelevant because it did not address any elements of the crime of witness tampering. The Court of Appeals could not it was an abuse of discretion to exclude the evidence under these circumstances.

Defendant's last point of appeal was an error in the jury instructions. Defendant argued it was plain error to for the court to allow a jury instruction that inadequately articulated the required mens rea of the crime of witness tampering. To prevail on a claim of plain error, Defendant must show that:1) an error exists; 2) the error should have been obvious to the trial court; and 3) the error was harmful. The Court of Appeals determined there was no error.

Jury instructions that inadequately articulate the required mens rea do not create an error when a party affirmatively represents he or she has no objection to the instruction. Not only did defendant have no objection to the instructions as given, she proposed allegedly faulty instruction in this case. Furthermore, jury instructions are looked at in the entirety.  As a general rule, the basic elements must be represented and the taken as a whole they instructions must fairly represent the law. The mere fact that one instruction, standing alone, is not as accurate as it could be, is not grounds for reversing a conviction.  In the present case, the jury instructions accurately provided the mens rea for the crime of witness tampering (knowingly, intentionally, or recklessly) but only provided the definitions for the term  knowingly and intentionally. Since the jury instructions as a whole fairly represented the law and provided the basic elements of the crime, there is no grounds for reversal.

Post Conviction Relief Proceedings Must Comply With the Rules of Civil Procedure

In Gordon v. State,  2016 UT 11, the Utah Supreme Court addressed an issue of first impression under Part 3 of the Post Conviction Relief Act (PCRA). Gordon's petition for post conviction DNA testing was denied by the district court based on the State's assertion that Gordon declined to request DNA testing at the time of trial for tactical reasons. Although Gordon sought relief on both substantive and procedural grounds, the case was reversed and remanded on procedural grounds only.

Gordon was convicted of murder in 2002.  His conviction was affirmed by the Court of Appeals in 2004.  Gordon then filed a PCRA petition for DNA testing on items that were located at the murder scene. Gordon claimed testing these items could significantly undermine the largely circumstantial case against him and show he was factually innocent. Utah Code §78B-9-301(4) prohibits a court from ordering post conviction DNA testing if the petitioner failed to seek testing at the time of trial for tactical reasons. In his petition Gordon denied the failure to test was tactical but failed to provide any reasoning. The district court dismissed Gordon's petition 20 days after the State filed an opposition claiming Gordon failed show he did not have a tactical reason for not previously testing the DNA. Gordon was not given an opportunity to respond to the State's pleading or given a hearing to present evidence. Gordon then filed a motion for reconsideration, claiming he should have been allowed to reply and that the State has the burden of establishing the tactical reason issue. In addition, Gordon informed the district court that he did not have the DNA previously tested because he was not aware the items in question could be tested and he lack the funds necessary for testing. The district court denied Gordon's motion, holding that: 1) Motions for Reconsideration are not recognized by the Utah Rules of Civil Procedure; 2) The PCRA did not give a petitioner the right to file a reply memorandum; and 3) his original motion did not address the statutory mandate of tactical reasons.

Gordon's first grounds for appeal was whether he had a right to file a reply memorandum when the State opposed his PCRA petition. The Utah Supreme Court held that Gordon was entitled to file a reply. The statute authorizing PCRA should be read in harmony with the Utah Rules of Civil Procedure. The Rules allow for the State to file either an answer or a motion.  As the State's response to Gordon's motion sought immediate dismissal of his petition, it was a motion. Under the Utah Rules of Civil Procedure, a party opposing a motion is entitled to submit a memorandum within 30 days of the filing. The Court held it was an error for the District Court to not allow Gordon to file a reply memorandum to the State's opposition to his PCRA petition. The case was remanded to allow Gordon to file a reply.

Although the case was being remanded, the Court also clarified the operative burden of pleading and proof on whether the DNA was not tested for tactical reasons as a matter of judicial economy. A petitioner seeking relief under the PCRA must meet a series of stautory elements.  Among other issues, post conviction DNA testing is not available if the petitioner did not request it at the time of trial for tactical reasons. Generally, the burden of proof follows the burden of pleading. Sometimes this burden shifts if the burden is rebuttable. For the issue of "tactical reasons" the burden of pleading is on the State, and it is considered an affirmative defense to a PCRA petition for DNA testing.  The burden of proof, which is by a preponderance of the evidence, is on the petitioner to disprove there was no tactical reason to not have the DNA tested. This is appropriate because the petitioner has unique access to the proof of the matter in question. The evidence can be proffered by affidavits or evidence found in the record.

Finally, the Court wanted to provide the district court guidance in determining what constitutes a "tactical reason."  A tactical reason is a view to an end.  It consists of purposeful, not passive decisions. Because Gordon was not allowed to file his memorandum, the Court could not determine if his reasons were tactical.  Gordon claims he did not know the evidence could be subjected to DNA testing. On its face, this would be passive and therefore, not tactical.  However, his attorney's knowledge would have to be explored and that would be imputed to Gordon.  Gordon also claimed that he did not have the money for DNA testing. This too, could be passive: not testing the DNA out of circumstance is not purposeful when it comes to deciding a defense.  However, if Gordon made a reasoned decision as to where to devote his limited funds and declined to pursue DNA, then that would be a purposeful decision for tactical reasons.

Plea Colloquies Are Not Mandatory For Violation of Probation Hearings

In State v. Pacheco, 2016 UT App., Defendant appealed the revocation of his probation and imposition of consecutive prison sentences.  Defendant claims that the trial court court failed to determine his admissions to violating probation were knowing and voluntary because it did not conduct a proper plea colloquy.

While on probation for burglary and aggravated assault, Defendant physically a verbally attacked a witness in the prior case.  Police were called but defendant had already left the scene.  Defendant did not report the altercation to his probation officer, as required. Probation filed a violation report with the trial court and recommended that Defendant's probation be revoked and he serve out his prison sentence. Although Defendant initially denied the allegations, he agreed to plead guilty in exchange for the State not filing new criminal charges stemming from the incident.  The court then questioned Defendant as to the voluntariness of his admissions as well as reminding him of his right to have an evidentiary hearing on the allegations before taking his plea and sentencing him to prison.

When reviewing a violation of probation, the upper court reviews the facts in the light most favorable to the trial court's findings.  Since this issue was not preserved, the appeal is reviewed under the plain error standard.  To prevail in a claim for plain error the defendant must show that: 1) and error exists; 2) the error should have been obvious to the trial court; and 3) the error was harmful.

The level of awareness sufficient to knowingly waive a right depends on the circumstances. When a person is pleading guilty to a crime, Rule 11 of the Utah Rules of Criminal Procedure requires defendant be advised of a detailed inventory of rights. No such requirement exists for an admission to violating probation. Defendant argued that the trial court was not required to comply with Rule 11 for a violation of probation admission, but should have advised him of more than it did. There is no support for Defendant's argument under the law.

To show that the trial court should have been aware of the error, the law governing the error needs to be clear at the time the alleged error was made.  There is no plain error when there is no settled appellate case law to guide the trial court. The record in the present case showed the court questioned Defendant as to whether he was knowingly and voluntarily admitting to violating probation and waiving his right to a hearing. There is no required form of the colloquy.  Therefore any error would not have been obvious to the trial court.  Defendant's appeal was denied

The High Burden When Claiming Your Attorney Did A Lousy Job

In State v. Jaramillo, 2016 UT App. 70, Defendant appealed his convictions for multiple felonies and the sentencing imposed. Defendant's appeal was denied in part and remanded for sentencing issues.

Defendant was accused of carjacking a woman and forcing her to drive him to Ogden by knife point. In Centerville they stopped for gas and the woman ran away.  Defendant went into the convenience store and unsuccessfully attempted to rob the clerk and a customer of their vehicles. Defendant then went across the street to a closed fast food restaurant.  He broke into the building, and demanded the employees give him money.  Defendant then made a second attempt to steal the vehicle from the customer at the convenience store.  Defendant's crime spree ended when he was run over by the customer. Defendant was appointed an attorney. Dissatisfied, defendant was allowed to change attorneys three times.  His trial attorney presented little defense.  She did however, cross examine witnesses to attack the police investigation and advance a theory of voluntary intoxication.  Counsel established that Defendant exhibited bizarre and erratic behavior, that the witnesses described him as acting high or drunk.  Defendant was convicted of two counts of aggravated robbery, one count of aggravated kidnapping, one counsel of aggravated assault, one count of possession of a dangerous weapon by a restricted person, and one count of trespassing.

Defendant first appealed based on ineffective assistance of counsel.  He filed a Rule 23B Motion to remand the case to supplement the record. Defendants seeking to supplement the record on remand must show non-speculative allegations of acts that do not fully appear on the record below. There are four requirements:

1) Defendant must present affidavits of facts not contained in the existing record;
2) Defendant must provide allegations of fact that are not speculative;
3) Defendant must show that counsel rendered deficient performance; and
4) Such performance must fall below an objective standard of reasonable professional judgment.

In addition, counsel's performance must have prejudiced the defendant such that but for the deficient performance the result of the trial would have been different.

Defendant claimed through affidavits and a forensic examination that occurred 5 years after the crime took place, that his attorney failed to fully investigate and present clearly exculpatory evidence of voluntary intoxication.  Defendant pointed to pieces of evidence that indicated he may have ingested a large quantity of anti anxiety medication he had been prescribed the night before the events occurred. However, for voluntary intoxication to be a defense to a crime, a defendant must not only prove he was intoxicated, but that the intoxication prevented him from forming the requisite mental state to commit the offense.  To do this, defendant must first indicate the requsite mental state for each crime of which he was convicted, and then show how his intoxication prevented him for forming this mental state.  Defendant did not do this so his motion to remand the case to supplement the record was denied.

Claims of ineffective assistance of counsel raised for the first time on appeal are reviewed for correctness. Defendants claiming ineffedtive assistance of counsel must overcome a strong presumption that counsel rendered constitutionally sufficient assistance.  They must also show specific instances of deficient performance that caused prejudice on the record. In the present case, the record on appeal did not reflect the extent of trial counsel's knowledge of Defendant's medication use. Defendant did not show that trial counsel performed deficiently. Even if trial counsel was deficient, he did show how the results of the trial would have been different if counsel presented evidence of his intoxication. There is still the burden of showing the inability to form the mens rea for the crime.

Defendant next appealed his sentence of 15 years to life for aggravated kidnapping. Defendant argued that the trial court failed to consider proportionality or his potential for rehabilitation as required by case law that came out after defendant was sentenced. New rules of criminal procedure announced in judicial decisions are applied retroactively.

The penalty for aggravated kidnapping is 15 years to life.  A court may reduce the sentence to 6-10 years to life if it is in the interests of justice. When looking at proportionality, the court must consider the  gravity of the defense and the harshness of the penalty. In addition, the court must consider the sentences imposed for more and less serious crimes to ensure the sentence imposed is not arbitrary. In Defendant's case, the court did not appear to consider the comparative factor of the sentence.  Since the court did not consider all legally relevant factors the case was remanded for new sentencing.

Although Defendant also argued that court failed to consider his potential for rehabilitation, there was ample evidence that the court was given information about Defendant's mental health issues from Defendant, his attorney, and pre sentence reports.  Despite this, as long as the case was remanded for sentencing, the Court of Appeals invited the trial court to take a second look at Defendant's potential for rehabilitation if the court deemed this factor relevant to its new sentencing decision.

The Preliminary Hearing Saga Continues

In State v. Pham, 2016 UT App. 105, the Utah Court of Appeals again took on the issue of whether the Utah preliminary hearing scheme violates a person's Sixth Amendment right to confront witnesses. Even though Defendant did not prevail, the Court did state that there can be circumstances where the cross examination completed at a preliminary hearing will not satisfy the requirements of the Confrontation Clause. Its is up to the appellant to allege a circumstance that results in a specific limitation in cross examination at the preliminary hearing stage.

Defendant was confronted by victim for picking on two young men.  Defendant shot victim. Police were across the street and called for Defendant to stop for police as he fled. Defendant abandoned his vehicle and stole an SUV. Defendant was charged with: 1) discharging a firearm causing serious bodily injury; 2) receiving o transferring a stolen vehicle; 3) obstruction of justice; and failure to stop at the command of a law enforcement officer. The victim testified at the preliminary hearing. Defendant was given unrestricted opportunity to cross examine the victim. Prior to trial, the victim moved to Mexico and was unable to be served a subpoena. The victim's preliminary hearing transcript was admitted as evidence. Defendant was convicted of all charges by a jury.

Defendant first appeals on the grounds that the admission of the victim's testimony from the preliminary hearing violated the Confrontation Clause. This presents a matter of law that is reviewed for correctness. In the present case, defendant does not claim he did not have the proper opportunity and motive to cross examine the witness at the preliminary hearing. Instead, he argued that the nature of a preliminary hearing itself restricts confrontation because the court only hears enough facts to establish probable cuase and does not determine credibility.  The Court held that although the principal fact finding and determinations of credibility are left until trial, there are no obvious structural limitations in Utah's preliminary hearing scheme that limits the scope or depth of cross examination.

Defendant next appeals on the grounds that the evidence presented at trial was insufficient to prove that by shooting the victim, he caused a substantial risk of death. The evidence will be viewed in the light most favorable to the jury verdict. To overturn a verdict, the evidence must be so inconclusive or inherently improbable, that a reasonable jury could not find beyond a reasonable doubt that the defendant committed the crime.

Defendant claims that he did not cause a substantial risk of death by shooting the victim.  However, he failed to properly marshal the evidence. The evidence presented was that Defendant shot the victim in the stomach and the bullet pierced his scrotum prior to permanently lodging in his leg.  The victim was hospitalized for three days and has received ongoing treatment. Defendant failed to cite to any case in which a gunshot wound was insufficient to support a jury's finding of a substantial risk of death (though a brief review showed many cases in favor of this proposition). Defendant also failed to cite to any authority to support his statement that a gunshot wound cannot create a substantial risk of death. Because being shot can lead to death. it is not inherently unreasonable for a jury to find that the victim suffered a substantial risk of death in the present case.

The Right To An Attorney Does Not Mean You Get a Choice

In State v. Abelon, 2016 UT App. 22, Defendant appealed his convictions for six counts of sexual exploitation of a minor. Defendant was sentenced to six consecutive terms of 1-15 years in prison with three terms suspended, and probationary terms. The Court of Appeals affirmed his convictions and sentence but remanded the case to resolve Defendant's objections to the pre-sentence report (PSR).

Defendant was assigned a court appointed attorney. As the case made it way through the system, Defendant made four separate complaints about his attorney.  Each time, the Court gave Defendant an opportunity to say why he was dissatisfied and queried counsel as to his efforts in providing Abelon a defense. Each time, the trial court found that counsel was not performing deficiently. Defendant was convicted at trial and prior to sentencing, the court ordered a PSR.  At the time of sentencing, Defendant informed the court of 11 separate, substantial inaccuracies in the PSR.  The State encouraged the court to disregard any information that was inaccurate. No factual findings were made concerning the defendant's objections prior to sentencing.

Defendant's first grounds of appeal was that the court failed to reasonably inquire into his dissatisfaction with his appointment counsel.  This matter is reviewed under the abuse of discretion standard. A trial court has an affirmative obligation to investigate the reasons for defendant's dissatisfaction with court appointed counsel. Courts should keep in mind that defendants are usually less than articulate about these matters and under a lot of stress.In the present case, Defendant was speaking in generalities about his counsel's perofrmance whereas his attorney was able to provide a detailed account of the steps he was taking to provide Defendant with a defense. Defendant was unable to point to any new issues that the Court had not already dealt with.  Upon review, the COurt of Appeals did not find the trial court abused its discretion in how it handled it Defendant's complaints or its assessment of the situation.

Defendant next appealed on the grounds that the trial court failed to resolve his objections to the PSR.This presents a question of law that is reviewed for correctness. Tied to this complaint, Defendant also claimed his attorney provided ineffective assistance of counsel for not requesting the trial court make findings resolving Defendant's objections. A claim of ineffective assistance of counsel raised for the first time on appeal is a question of law.

When a defendant objects to information in a PSR a trial court must take 3 steps: 1) consider the objection; 2) make findings about the alleged inaccuracies; and 3) determine on the record the relevance of that information as it relates to sentencing. In the present case, the trial court only addressed the first step. The case was remanded for the trial court to properly resolve Defendant's objections.

Despite these inadequacies, Defendant was not entitled to a new sentencing hearing. Defendant's request was based in the general assertion that the district court sentenced him based on inaccurate and misleading information. Although factual findings were not made, there was no evidence presented that the court sentenced Defendant based on matters challenged in his objections. The Court came to this conclusion based partially on the State's invitation to the trial court to disregard the disputed information. However, the Court invited the trial court to resentence the defendant if, after resolving the defendant's objections, a different sentence would be appropriate.

Every Cross Examination Must Be Complete

In State v. Goins, 2016 UT App. 57, Defendant appealed his conviction for aggravated assault and brandishing a weapon in a fight. Defendant based his appeal on a violation of his right to confront and cross examine witnesses.

Defendant's charges stem from an incident where he was looking for someone who had stolen his phone.  Defendant got into a scuffle with a 3rd person, bit off part of the man's ear and stabbed him under the arm with a knife.  A witness to the altercation testified at the preliminary hearing.  The witness could not be located at the time of trial. The trial court allowed the witness' testimony to be admitted declaring he was unavailable.

Evidentiary rulings are reviewed under an abuse of discretion standard. The COurt will reverse only if the error is harmful. If the ruling implicates the Confrontation Clause, then the ruling is a question of law that is reviewed for correctness.  Hearsay is an out of court statement that is being used to prove the truth of the matter asserted in the statement.

Defendant first challenged the trial court's determination that the witness was unavailable to testify at trial. The burden of proof is on the party offering the evidence to show the witness cannot be produced in court. A party must make every reasonable effort to secure a witness for in court testimony. The standard is not whether the prosecution could have done more, but whether the efforts made were reasonable.

Prior to the preliminary hearing, the prosecution sent out police on bicycles looking for the witness in the area of the homeless shelter. Somehow he was located.  He showed up at the preliminary hearing with his pastor for support.  The pastor became the main point of contact and verified he informed the witness of all hearing dates.  The witness then disappeared shortly before trial and after serving some jail time. The Court found that the prosecution made more than reasonable efforts to secure the witness but also that Defendant had acquiesced to using a third party as contact by not making objections to this method at prior hearings

Defendant next challenged the trial court's determination that the prior testimony was not hearsay.  Prior testimony is testimony given at a prior hearing in which the defendant had an opportunity to cross examine the witness. Defendant claims that his attorney had a different motive or interest in cross examining the witness at the preliminary hearing: just debunking probable cause.  However, long standing case  law in Utah holds that the motive to cross examine a witness is the same at a preliminary hearing and trial: to establish the client's innocence.

The defendant's conviction was affirmed.

Think Twice Before You Admit to Violating Probation

In State v. Goodrich, 2016 UT App. 72, the defendant appealed the revocation of his probation and reinstatement of the original sentence after admitted to two probation violations. Defendant pleaded guilty to two counts of felony Sex Abuse of a Child.  After completing treatment, he was allowed to move to Oregon, and complete supervised probation in that state. The State of Oregon filed a probation violation claiming defendant possessed sexual stimulus material in electronic form and left the state without permission.

Defendant's attorney convinced the Court and the State to amend the allegations to 1) defendant viewing sexual stimulus material, 2) and not being truthful about his travel plans. Defendant admitted these allegations and told the court he fabricated the probation violations in order to get back to Utah. The court imposed the suspended prison sentence of 1-15 years, to run concurrently to each other.

Defendant first appeals on the grounds his attorney was ineffective and failed to investigate and mitigate the probation violation allegations and also violated his duty of loyalty. This presented a question of law that is reviewed for correctness. To prove ineffective assistance of counsel the defendant must show that counsel's performance both fell below the objective standard of reasonableness and there is a reasonable probability that the results of the hearing would be different if counsel had not made the errors.  In support of this claim, defendant states his attorney should have gotten a copy of the probation violation documents from Oregon.  Such documents would show his due process rights were violated and he did not violate probation. However, Defendant admitted to the court he violated probation. The Judge found his reasoning to be an aggravating circumstance.

Defendant also claims that his attorney had a conflict of interest and violated his duty of loyalty. Defendant failed to show that his attorney advocated against him.  Instead, the record shows his attorney to steps to reduce the severity of the allegations.

Defendant's second basis for appeal is his failure to receive timely and adequate notice of the allegations against him and an opportunity to be heard regarding the allegations. Since this claim was not preserved it is evaluated under plain error. To prevail on a claim of plain error, Defendant must show that 1) there was an error, 2) the error should have been obvious to the trial court, and 3) the error prejudiced the defendant. Defendant failed to show there was any error and only addressed why it was obvious. However, the Court was not convinced Defendant did not receive timely and adequate notice.  Defendant was present at the hearing verified he reviewed the allegations and presented a defense. He has failed to show how he was prejudiced by the notice he received.

Finally, Defendant claims the cumulative effect of the errors necessitates the reversal of his sentence. The Court applies the standard of review applicable to each underlying claim or error.  The Court will reverse only if the cumulative effect of several errors undermines our confidence that a fair trial was had. The Court identified no errors.  However, assumed errors for evaluating the defendant's claim and still could not find the defendant had been prejudiced. Defendant's claims failed in large part because he willingly admitted that he violated probation.

Defendant's appeal was denied.

Complete and Court Ordered Restitution Can Be The Same Amount

In State v. Turner, 2016 UT App. 79, the defendant appealed the amount of restitution he was ordered to pay by the trial court. Defendant pleaded guilty to one count of felony burglary and one count of felony criminal mischief for kicking in the door of a newly constructed house and causing extensive damage inside with a hatchet. He stipulated that complete restitution was $10,629, but requested a hearing on his ability to pay.

At the hearing, defendant presented a financial declaration as well as oral evidence concerning his current circumstances.  Defendant had been employed for 2 weeks and was earning $1,000 a month.  Defendant had monthly expenses of $152 a month plus food.  The court determined that court ordered restitution would be $10,629, payed over eight years, in the amount of $125 a month. The court found no rational reason why the victim should not be made whole.

The restitution decision of a trial court will not be disturbed unless it exceeds the authority provided by law or is an abuse of discretion.  Restitution is an abuse of discretion if no reasonable person could take the view adopted by the court.

Under Utah Law, a court has to determine both complete and court ordered restitution.  Complete restitution is the amount that would make the victim whole. When determining court ordered restitution, the court must look at the following: 1) the loss suffered by the victim; 2) the financial resources of the defendant; 3) the burden on the defendant to pay the amount with regard to other financial obligations; 4) the ability of the defendant to pay on an installment basis; 5) the rehabilitative effect on the defendant; and 6) any other circumstances the court deems may make restitution inappropriate.

Defendant argued that since the amount of court ordered restutition was the same as complete restitution, the trial court must not have considered his financial resources or the burden $125 a month would be considering his other financial obligations. However, the record reflects the court received the presented evidence.  Furthermore, the law allows for the amount to be the same.

Defendant's appeal was denied.