STATE OF UTAH v. BEVERLY ANN ELKFACE
No. 20210550-CA
THE UTAH COURT OF APPEALS
March 9, 2023
2023 UT App 24
Seventh District Court, Price Department; No. 211700006; The Honorable Jeremiah Humes
Wendy Brown, Attorney for Appellant
Sean D. Reyes and Natalie M. Edmundson, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
[1] As part of a global plea agreement, Beverly Ann Elkface entered guilty pleas in three criminal cases against her. A presentence investigation report (PSI) was prepared and submitted to the district court. At the sentencing hearing, the court imposed prison sentences in each case consistent with the upward departure recommendation in the PSI. Elkface now appeals her sentences on the ground that her defense counsel (Counsel)
BACKGROUND
[2] While Elkface was serving probation for two criminal cases (the probation cases), the State filed five new criminal cases against her. In March 2021, Elkface appeared before Judge Humes for a hearing at which Judge Humes advised her that he “may be disqualified from presiding in this matter, based on his former office‘s involvement in the case.” Judge Humes‘s involvement with Elkface began in 2018 when, prior to his appointment to the bench, he served as one of the line prosecutors in the probation cases.1 In this capacity, he actively participated in the proceedings and sought to have Elkface‘s probation revoked. To this end, he filed numerous adversarial pleadings against Elkface—six in one case alone—and appeared in court to argue that Elkface should be held to be in violation of her probation and sanctioned. Elkface was not advised of the full extent of the judge‘s involvement in the probation cases, however, and without any apparent discussion with Counsel, she “waive[d] any conflict and agree[d] to Judge Humes presiding.”
[3] The following month, Elkface and the State appeared before Judge Humes to present a “global resolution” for the seven pending cases. Pursuant to the agreement, Elkface agreed to plead guilty in three of the new cases, and the State agreed to dismiss two of the new cases. Because Elkface had not yet completed probation in the probation cases, both parties also agreed to “track” the probation cases to the sentencing hearing, meaning the court would review Elkface‘s progress in those cases at the sentencing hearing and would, at that hearing, make a determination as to whether Elkface had violated her probation in those cases.
[4] Thereafter, Adult Probation and Parole (AP&P) prepared a PSI for Elkface that included a sentencing matrix that was consistent with the Utah Sentencing Guidelines, which placed Elkface into the “presumptive probation” category and recommended supervised probation and “0-90 days [of] jail with a mid-point of 45 days.” Based on Elkface‘s history—including her previous violations in the probation cases (that Judge Humes had helped litigate) and her “significant drug abuse problem“—AP&P disagreed with the guidelines’ recommendation and instead recommended that Elkface be denied probation and sentenced to prison.
[5] In August 2021, Elkface appeared before Judge Humes for sentencing. Citing her “refusal to stay clean and stay out of trouble,” the State requested that Elkface be sentenced to prison consistent with AP&P‘s recommendation. Conversely, Counsel urged Judge Humes to follow the sentencing guidelines and place Elkface on probation. In support, Counsel argued that “almost all” Elkface‘s probation violations were related to substance abuse, which Elkface was working to address through both treatment and therapy. Moreover, Elkface had a job, had disassociated from individuals who were a bad influence on her, and was “working very hard to stay out of trouble and to better herself” because she was pregnant.
[6] At the close of the hearing, Judge Humes imposed prison sentences in each of the three cases to which Elkface pleaded guilty. The sentences imposed were consistent with AP&P‘s recommendation. Judge Humes explained that although the cases had been “difficult . . . to evaluate,” ultimately, Elkface‘s inability to succeed on probation in the probation cases indicated she would “require more intensive supervision” to succeed. Then, at the State‘s request, Judge Humes closed the probation cases and adjudicated them as unsuccessful.
ISSUE AND STANDARD OF REVIEW
[7] Elkface now appeals her prison sentences, arguing that Counsel rendered constitutionally ineffective assistance by failing to seek disqualification of Judge Humes.2
ANALYSIS
[8] Elkface argues that Counsel was ineffective for “failing to insist on [Judge Humes‘s] disqualification” because Judge Humes “previously prosecuted her in numerous cases, including in some of the cases before the court at the sentencing hearing.” To prevail on this claim, Elkface must show (1) that Counsel‘s performance was “deficient” and (2) that this “deficient performance prejudiced the defense.” See Strickland v. Washington, 466 U.S. 668, 687 (1984).
[9] Rule 2.11(A) of the Utah Code of Judicial Conduct3 provides that “[a] judge shall disqualify himself or herself in any proceeding in which the judge‘s impartiality might reasonably be questioned.”
[10] A judge subject to disqualification, “other than for bias or prejudice,” may ask the parties to waive disqualification.
[11] Applying rule 2.11 to the facts of this case, Elkface contends that Judge Humes should have been disqualified under provisions (A)(1) and (A)(6)(a) of the rule, and that it was therefore unreasonable for Counsel not to either file a motion requesting that Judge Humes disqualify himself or to insist that Judge Humes follow the procedure in provision (D) to obtain a valid waiver.5 We agree with Elkface on both fronts.
[13] Second, because Judge Humes was subject to disqualification, Counsel performed deficiently by failing to either insist that Judge Humes disqualify himself or to insist that the court obtain a valid waiver. In determining whether Counsel performed deficiently, we examine whether, “considering all the circumstances, counsel‘s acts or omissions were objectively unreasonable.” See State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. Here, that means we must ask whether Judge Humes‘s disqualification from the case “was sufficiently important under the circumstances” that Counsel‘s failure to insist on disqualification “fell below an objective standard of reasonableness.” See State v. Ray, 2020 UT 12, ¶ 36, 469 P.3d 871. And under the circumstances here, we agree with Elkface that it did.6
was prosecuted by other prosecutors in that office for a different offense. Id. ¶ 32. In imposing a sentence in the new case, the sentencing judge took the defendant‘s criminal history into consideration, including his prior conviction. Id. The defendant appealed his sentence, arguing, among other things, that the sentencing judge was “required to recuse himself” under rule 2.11(A) of the Utah Code of Judicial Conduct because he served as the county attorney when the defendant was prosecuted in the earlier case. Id. The defendant did not preserve this specific argument for appeal, however, and therefore was required to argue that the sentencing judge “plainly erred by not recusing himself sua sponte.” Id.
Here, Judge Humes was the actual prosecutor on multiple cases against Elkface, some of which were still at issue in the sentencing hearing. In that capacity, he filed several adversarial pleadings against her and sought revocation of her probation. This level of involvement stands in stark contrast with that of the sentencing judge in Grover. There, the judge merely served as the county attorney when the defendant was prosecuted years earlier for an entirely different offense. The judge had no direct involvement on the previous case.
And perhaps more importantly, Grover was decided under the plain error doctrine, and the success of the defendant‘s claim therefore hinged on whether the sentencing judge “committed an obvious error” in failing to recuse himself under rule 2.11(A). Id. ¶ 49 (quotation simplified). In concluding the sentencing judge did not commit an obvious error, this court explained that an error is obvious only if “the law governing the error is clear or plainly settled.” Id. (quotation simplified). Consequently, because the defendant “ha[d] not pointed to any law that clearly or plainly establishes that rule 2.11(A) requires recusal if a sentencing judge served as the county attorney when a defendant was prosecuted for an entirely different offense,” he could not establish plain error. Id. ¶ 50. This analysis is inapposite in this case, because the (continued...)
[14] As an initial matter, the issue before Judge Humes was the appropriate sentence
[15] Alternatively, Counsel performed deficiently by failing to request that Judge Humes follow the procedure set forth in rule 2.11(D) to obtain a valid waiver. Counsel‘s failures in asking the court to adhere to the waiver procedure are twofold. First, Counsel did not ensure that Judge Humes adequately disclosed the basis of his disqualification. The minute entry from the waiver hearing indicates that Judge Humes informed Elkface that he “may be disqualified from presiding in this matter” because of “his former office‘s involvement in the case.” This disclosure was far from complete, however, as it did not inform Elkface that Judge Humes had served as the prosecutor on the probation cases or that he had personally filed multiple adversarial pleadings in those probation matters. And Counsel should have been aware of Judge Humes‘s previous involvement in the probation cases, given that Counsel was Elkface‘s counsel of record in those cases. Second, following Judge Humes‘s disclosure, Counsel did not ask that the parties be permitted to discuss, outside Judge Humes‘s presence, whether to waive disqualification. Instead, the record merely states, “[Elkface] waives any conflict and agrees to Judge Humes presiding over this matter. The State also waives the conflict.” There is no indication whatsoever that Elkface was given an adequate opportunity outside the judge‘s presence to consider the potential impact flowing from Judge Humes‘s previous dealings with her.
[16] Having concluded that Counsel rendered deficient performance, we next analyze whether that deficient performance was prejudicial. “Strickland‘s prejudice prong requires a court to consider the totality of the evidence before the judge or jury and then ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” State v. Gallegos, 2020 UT 19, ¶ 33, 463 P.3d 641 (quotation simplified). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. ¶ 63 (quotation simplified). Here, Elkface argues that had Judge Humes been disqualified from the case and a new judge assigned, “there is a reasonable likelihood that the factors weighing in favor of probation would have won out.” We agree.
[17] Under our state sentencing structure, trial judges have exclusive discretionary authority to determine whether a defendant will be sent to prison or to serve probation. “Hence, it is absolutely essential that a judge be and remain impartial prior to the commencement of sentencing proceedings when the positions of the respective parties will be presented and considered by the court.” Thompson v. State, 990 So. 2d 482, 491 (Fla. 2008). On the record before us, we acknowledge Elkface‘s point that, having served as a prosecutor on multiple cases against her, including the probation cases, Judge Humes‘s sentencing decision was at least to some extent informed by his personal knowledge about her. During the time Judge Humes served as the prosecutor, Elkface faced problems complying with her probation, struggled with substance abuse, and was charged with additional crimes. Based on human nature, it is hard to imagine that any judge would have the ability to disregard a preconceived negative view of Elkface‘s past. Moreover, the evidence presented at the sentencing hearing showed that Elkface had good reason to argue for probation rather than a prison sentence. First, she was pregnant and due to deliver within a few months of sentencing. Second, the sentencing matrix recommended forty-five days in jail followed by probation. Third, the evidence presented at the sentencing hearing demonstrated that Elkface was making efforts toward improving her behavior—she had made recent and consistent efforts at recovery, she was employed,
CONCLUSION
[18] Counsel performed deficiently by failing to seek Judge Humes‘s disqualification from the case under rule 2.11 of the Utah Code of Judicial Conduct, and this deficiency prejudiced Elkface because Counsel‘s failure undermines our confidence in the outcome of the sentencing proceeding. Accordingly, we vacate Elkface‘s sentences and remand the matter for further proceedings.