Case Information
*1
T HE U TAH C OURT OF A PPEALS
S TATE OF U TAH , Plaintiff and Appellee, v.
D AVID J AMES A LLEN , Dеfendant and Appellant. Memorandum Decision No. 20130405-CA Filed June 25, 2015 Second District Court, Farmington Department The Honorable Michael G. Allphin No. 121700011
Scott L. Wiggins, Attorney for Appellant Sean D. Reyes, Ryan D. Tenney, and Deborah L. Bulkeley, Attorneys for Appellee J UDGE K ATE A. T OOMEY authored this Memorandum Decision, in which J UDGES M ICHELE M. C HRISTIANSEN and J OHN A. P EARCE
concurred.
TOOMEY, Judge: David James Allen appeals his sentence, arguing that his
trial counsel rendered ineffective assistance by not asserting that Allen had mental-health issues as a defense for his probation violation. We affirm. On February 6, 2012, Allen pled guilty to one count of
attempted distribution of a controlled substance, a third-degree fеlony. As part of the plea agreement, the State agreed to recommend the reduction of Allen’s offense to a class A misdemeanor upon his successful completion of probatiоn. Before sentencing, Allen moved to withdraw his guilty plea, claiming he was “under a great deal of mental *anxiety+ and stress” when he pled guilty. The trial court denied Allen’s motion and ordered Adult Probation and Parolе (AP&P) to prepare a presentence investigation report. In the report, AP&P recommended that Allen be “sentenced to serve 0–5 years in the Utah State Prison, suspended upon successful completion of formal probation.” AP&P also suggested, as a special condition to probation, that Allen complete a mental health evaluation because Allen “reported being diagnosed with bipolar disorder, but did not provide any specific information regarding when he was diagnosed or his current status.” At sentencing, the court adopted AP&P’s recommendations. Between sentencing and Fеbruary 28, 2013, AP&P filed two
probation-violation reports. In each report, AP&P noted Allen’s failure to participate in counseling or treatment. In the February 2013 report, an AP&P agent opined that “Allen suffers from multiple mental health disorders and he must undergo an evaluation in order to be successful.” Accordingly, AP&P recommended that Allen’s probation be “revoked and terminated as unsuccessful with the service of 180 days jail.” At a subsequent hearing, Allen admitted to violating the terms of his probаtion and his trial counsel asked the court to follow AP&P’s recommendations, stating, “I think there’s some serious mental health issues. Unless [Allen is] absolutely supervised and medicated I think these are the kind of things that you’re gоing to run into.” On March 18, 2013, the court accepted trial counsel’s and AP&P’s recommendation, revoked and terminated Allen’s probation as “unsuccessful,” and ordered Allen to serve 180 days in jail. [1] Allen appеaled before he was released from jail on July 26, 2013. [2]
1. It is unclear whether the trial court effectively ordered a new sentence or restarted Allen’s probation by requiring him to “serve 180 days in the Davis County Jail” to close out this case. Utah case law indicates that trial courts have “the authority to execute only (continued…) Allen, represented by new counsel on appeal, contends that his trial сounsel rendered ineffective assistance by “failing to affirmatively request that the sentencing court consider *Allen’s+ (…continued)
the previously imposed sentence.” See State v. Anderson , 2009 UT 13, ¶ 9, 203 P.3d 990. But see Utah Code Ann. § 77-18-1(12)(e)(iii) (LexisNexis Supp. 2014) (“If probation is revoked, the defendant shall bе sentenced or the sentence previously imposed shall be executed.”). Because neither party disputes the classification of Allen’s jail term—whether it is a condition of probation or a renewed sentence—we do not address the matter.
2. The State argues that because Allen was released from jail on
July 26, 2013, his appeal is moot. In his reply brief, Allen contends
his appeal is not mоot because his conviction still affects his
rights. “An appeal is moot if during the pendency of the appeal
circumstances change so that the controversy is eliminated,
thereby rendering the rеlief requested impossible or of no legal
effect.”
Utah Transit Auth. v. Local 382 of the Amalgamated Transit
Union
, 2012 UT 75, ¶ 14, 289 P.3d 582 (citation and internal
quotation marks omitted). But, “*w+here collateral
legal
consequencеs may result from an adverse decision, courts have
generally held an issue not moot and rendered a decision on the
merits.”
Barnett v. Adams
, 2012 UT App 6, ¶ 7, 273 P.3d 378
(citation and internal quotation marks omitted);
see also Duran v.
Morris
, 635 P.2d 43, 45 (Utah 1981) (recognizing that in criminаl
cases a petitioner’s release from custody renders a case moot only
if there is no possibility of any collateral legal consequences, such
as the petitioner’s inability to vote or the use of the conviction as a
factor in determining sentencing in a future trial). We are not
convinced that Allen faces no collateral legal consequences as a
result of his felony conviction and revoked probation terms.
Accordingly, we reach the issues underlying Allen’s appeal.
See
Barnett
,
mental illnesses as a defense to the probation violation.” [3] He suggests that if the court had properly evaluated his mental illnesses, it would have sent Allen to a treatment program as part of a new probation term, instead of jail. Allen further argues that with proper treatment he would have successfully completed probation which would have resulted in the reduction of his third-degree-felony conviction to a class A misdemeanor. “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether [the] defendant was deprived of the effective assistance of counsel as a matter of law.” Layton City v. Carr , 2014 UT App 227, ¶ 6, 336 P.3d 587 (alteration in original) (citation and internal quotation marks omitted).
3. Allen also argues that his trial counsel erred because counsel should have invoked statutes governing verdicts and рleas of “guilty with a mental illness” that would require the court to evaluate his mental illness and consider his mental illness at sentencing. See Utah Code Ann. §§ 77-16a-103, -104 (LexisNexis 2012). This argument is misplaced. Allen pled guilty in the ordinary sense and dоes not challenge the court’s denial of his motion to withdraw his guilty plea. Moreover, pursuant to Utah law, if the court finds by clear and convincing evidence that the defendant has a mental illness, “the cоurt shall impose any sentence that could be imposed under law upon a defendant who does not have a mental illness and who is convicted of the same offense.” Id. § 77-16a-104(3) (providing the court the disсretion to place defendant in custody, order probation, or commit the defendant to the department of human services if by clear and convincing evidence the defendant’s illness posеs an immediate risk). Allen therefore fails to demonstrate how trial counsel’s alleged errors prejudiced his defense because he has not shown how a “guilty with a mental illness” plea would have changеd the outcome.
¶6 To establish that his trial counsel rendered ineffective
assistance, Allen must demonstrate (1) that his “counsel’s
performance was deficient” and (2) “that the deficient
performancе prejudiced the defense.”
See Strickland v. Washington
,
466 U.S. 668, 687 (1984). To demonstrate that his counsel’s
performance was deficient, Allen “must show that counsel’s
representation
fell below an objective
standard of
reasonablеness.”
Id.
at 689. This requires the defendant to
overcome the “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Id.
Allen has not established that his trial counsel rendered
ineffective assistance, because even if we were to find that
his counsel’s performance was deficient, Allen has not
demonstrated that the deficient performance prejudiced his
defense. “To establish the prejudice element of an ineffective
assistance of counsel claim, the defendant must show that a
reasonable probability exists that, but for counsel’s error, the
result would have been different.”
Carr
, 2014 UT App 227, ¶ 12
(citation and internal quotation marks omitted). Allen argues,
“But for counsel’s unprofessional and unreasonable failure to
request that the sentencing сourt consider *Allen’s+ mental
illnesses as a defense or mitigating circumstance to the probation
violation at sentencing, the result at sentencing would have been
different.” Allen offers no evidence that a mental health
professional or doctor has diagnosed him with a mental illness.
Instead, to support his assumption that he suffers from mental
illness, Allen solely relies on (1) the AP&P agent’s opinion that
“Mr. Allen suffers frоm multiple mental health disorders and he
must undergo an evaluation in order to be successful” and (2) his
trial counsel’s comment to the court that Allen has serious mental
issues and needs to be supervised and mediсated to be successful. Even if we were to assume that trial counsel’s and AP&P’s
opinion were enough to establish that Allen has a mental illness,
“it is not enough to show that the alleged errors had some
conceivable effect on the outcome[,] . . . [Allen] must show that a
reasonable probability exists that . . . the result would have been
different.”
See State v. Millard
,
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