Case Information
*1
T HE U TAH C OURT OF A PPEALS
S TATE OF U TAH , Appellee, v.
G REGORY K ENT H OWELL , Appellant.
Memorandum Decision No. 20120204-CA Filed April 28, 2016 Third District Court, Salt Lake Department The Honorable Judith S.H. Atherton No. 091902210 B. Kent Morgan and Benjamin R. Dyer, Attorneys for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee
J UDGE G REGORY K. O RME authored this Memorandum Decision, in which J UDGE S TEPHEN L. R OTH and S ENIOR J UDGE P AMELA T.
G REENWOOD concurred.
ORME, Judge: Gregory Kent Howell (Defendant) appeals his conviction
and sentence on three counts of securities fraud and one count of pattern of unlawful activity, for which the trial court sentenced him to four concurrent prison terms of one to fifteen years. We affirm.
1. Senior Judge Pamela T. Greenwood sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11- 201(6). In 2006, Defendant and his former colleague
(Codefendant) sought to buy and complete a large residential
development known as the Fruitland Project. They solicited
investors by overstating their experience and understating the
risk, and Codefendant funneled investor funds to an undisclosed
side project called Alpha Bay. After the Fruitland Project failed
and investors complained, the State investigated and ultimately
charged both Defendant and Codefendant. Codefendant entered
into a plea agreement which, among other things, required him
to testify against Defendant in exchange for a reduced sentence.
After a jury trial in which Codefendant testified against him,
Defendant was convicted. Defendant now argues that the trial
court erred in convicting him under Utah’s Pattern of Unlawful
Activity Act, that he received ineffective assistance from his trial
counsel, that the State failed to show that he acted willfully and
therefore did not prove every element of securities fraud, that
the prosecution withheld material evidence, and that his
sentence was unconstitutionally disproportionate to that of
Codefendant. Each of Defendant’s five arguments fails.
2. Defendant articulated a sixth argument: a challenge to the
definition of ‚security‛ as used in this case. But Defendant has
not developed that argument. Instead, Defendant addressed the
issue in one sentence, without citing any authority, in his
statement of the issues. While ‚adequate briefing . . . is not a
‘hard-and-fast default notion,’‛
State v. Roberts
,
(continued…) ¶3 Defendant’s first argument is that his conduct did not fall within Utah’s Pattern of Unlawful Activity Act. Defendant claims that criminal conduct spanning only a few weeks or months, with no threat of future criminal conduct, ‚do*es+ not constitute a pattern of unlawful activity.‛ He argues that the relevant events occurred in the span of about one month, which he contends was too short to constitute a ‚pattern‛ under the statute. We do not reach the merits of Defendant’s claim, however, because he has not complied with our preservation requirement. See Utah R. App. P. 24(a)(5) (requiring all opening briefs to include a ‚citation to the record showing that the issue was preserved in the trial court . . . or . . . a statement of grounds for seeking review of an issue not preserved in the trial court‛). Defendant’s opening brief provides no preservation citation for this issue. Only after the State pointed out his lack of preservation did Defendant, in his reply brief, claim that the plain error exception to our preservation rule applies. But dealing with preservation in the reply brief is too late. ‚[W]e have consistently refused to consider arguments of plain error raised for the first time in an appellant’s reply brief, even if the plain error argument is in response to a dispute over preservation raised for the first time in the appellee’s brief.‛ Marcroft v. Labor Comm’n , 2015 UT App 174, ¶ 4, 356 P.3d 164 (citation and internal quotation marks omitted). Because Defendant made no mention of the plain error exception until the reply brief, we will not consider whether this alleged error was plain. See id.
(…continued)
position.‛
Roberts
,
¶5 Defendant’s second argument is that he received
ineffective assistance from his trial counsel. A defendant
claiming ineffective assistance of counsel must show both ‚that
counsel’s performance was deficient‛ and ‚that the deficient
performance prejudiced the defense.‛
Strickland v. Washington
,
¶6 Defendant claims that trial counsel’s performance was deficient because counsel did not impeach Codefendant’s testimony during cross-examination by asking about the terms of Codefendant’s plea agreement, which failure Defendant says was prejudicial given the importance of Codefendant’s testimony to the State’s case. But even assuming that counsel’s performance was objectively deficient, Defendant has not shown that any such deficiency prejudiced the defense. Trial counsel’s decision not to impeach Codefendant did not deprive Defendant of a fair trial when Codefendant would have testified that the only plea agreement in effect at that time called for him to plead guilty and testify against Defendant, when that plea and ensuing conviction would put Codefendant at risk of deportation, and that no subsequent, more favorable deal had been finalized as of that time. Further, the totality of the evidence would weigh in favor
of guilt even if Defendant’s trial counsel had successfully impeached Codefendant’s testimony by highlighting his plea agreement because of the investors’ testimony regarding Defendant’s deceptive statements and Defendant’s own admissions. Thus, we conclude that Defendant’s trial counsel did not render constitutionally ineffective assistance by failing to question Codefendant about the terms of his plea agreement because Defendant has not demonstrated that any errors in this regard prejudiced him.
¶8 Defendant’s third argument is that the State did not prove
every element of securities fraud because it did not prove
willfulness. When reviewing the sufficiency of evidence
following a jury trial, ‚we review the evidence and all inferences
which may reasonably be drawn from it in the light most
favorable to the verdict.‛
State v. Shumway
,
¶9 The requisite mental state for securities fraud is
willfulness,
see
Utah Code Ann. § 61-1-21 (LexisNexis 2011), which requires proof that a defendant ‚desire[d] to engage in the
conduct or cause the result,‛
id.
§ 76-2-103 (2012), and ‚act*ed]
deliberately and purposefully, as distinguished from merely
accidentally or inadvertently,‛
State v. Larsen
,
deposits. Investors also testified that Defendant never clarified that neither Defendant nor Codefendant had previously participated in a large real estate development project. Evidence of each of these statements and omissions was before the jury, and the evidence shows that the jury’s conclusion that Defendant acted willfully in misleading the investors is not inconclusive or inherently improbable such that reasonable minds would necessarily have entertained reasonable doubts about Defendant’s guilt.
¶12 Defendant’s fourth argument is that the State failed to
turn over material evidence that would have affected the
outcome if Defendant had known about it. He claims that the
State failed to timely disclose that Codefendant was a Canadian
citizen facing deportation and that the State would eventually
agree to a further reduced sentence to help Codefendant avoid
deportation. At the time of trial, Codefendant’s plea deal had
not changed, but Defendant alleges
that
the fact of
Codefendant’s Canadian citizenship made it inevitable that the
State would offer Codefendant a new, improved deal to limit the
risk of his deportation. Thus, Defendant argues that the State’s
withholding of that evidence necessitates a new trial under
Brady
v. Maryland
,
trial court ‘in such a way that the trial court has an opportunity 5. At Defendant’s trial, Codefendant testified that there had been no promises other than those made in the first plea agreement. Defendant’s argument assumes that the State must surely have known what it would eventually do and that he was entitled to have that knowledge shared with him before trial.
to rule on that issue.’‛
State v. Bird
, 2015 UT 7, ¶ 10, 345 P.3d
1141 (quoting
Pratt v. Nelson
,
7. This case is in a somewhat unique posture. The parties and the trial court engaged in an extensive discussion of the alleged Brady violation during oral argument on Defendant’s rule 27 motion to stay the sentence pending appeal. Rule 27 of the Utah Rules of Criminal Procedure requires a defendant who is seeking to avoid incarceration pending appeal to ‚file a written motion‛ and memorandum with the trial court that, among other things, ‚identif[ies] the issues to be presented on appeal and support[s] the defendant’s position that those issues raise a substantial question of law or fact reasonably likely to result in a reversal.‛ Utah R. Crim. P. 27(b)(2)(A). The trial court then determines whether to issue a certificate of probable cause. See id.
(continued…) Because the motion was not timely and the trial court was not legally bound to address the merits, including the Brady issue, Defendant’s Brady claim is not preserved. Therefore, our review of Defendant’s Brady claim is
limited to the review for plain error alternatively sought by Defendant. See State v. Gailey , 2015 UT App 249, ¶ 7, 360 P.3d 805. Plain error applies only when an appellant shows that ‚(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.‛ State v. Dunn , 850 P.2d 1201, 1208–09 (Utah 1993). Even assuming Defendant has met the first two elements of plain error—and it is difficult to see how the requirement of obviousness to the trial court would have been met—he cannot prove that the State’s failure to provide evidence of Codefendant’s Canadian citizenship (and the possible deportation implications) was a harmful error such that it undermines our confidence in the jury verdict. The mere possibility of a more favorable deal for Codefendant would not substantially affect Codefendant’s credibility as a witness. Indeed, if counsel had questioned Codefendant on the issue and he had testified truthfully, he would have said that the only deal then agreed upon was Codefendant’s initial plea agreement, which ultimately may have bolstered Codefendant’s credibility because he was willing to testify against Defendant even though the guilty plea entailed the risk of deportation. Thus, even if this (…continued)
R. 27(b)(1)(A)–(b)(3)(B). Although the Brady issue was addressed in this context, the court only had authority to assess the strength of Defendant’s issues for appeal in the process of deciding whether Defendant should remain incarcerated during appeal—not to rule on whether to grant a new trial. (The trial court denied Defendant’s Rule 27 motion.) was an error and even if the error was plain, Defendant has not shown that the State’s failure to turn over this information was prejudicial. Because Defendant has not established prejudice, we cannot conclude that the plain error exception to preservation applies. Defendant’s final argument is that his sentence violates
the ban on ‚cruel and unusual punishment‛ set forth in Article
1, section 9 of the Utah Constitution. We determine whether a
sentence is unconstitutionally cruel and unusual by asking if
‚the sentence imposed in proportion to the offense committed is
such as to shock the moral sense of all reasonable men as to what
is right and proper under the circumstances.‛
State v. Nance
, 438
P.2d 542, 544 (Utah 1968).
Accord Monson v. Carver
,
the Court compared the defendant’s sentence only to the
defendant’s offense, which is the traditional method of assessing
proportionality.
See id.
at 652. Further, the Utah Supreme Court
has expressly rejected arguments that proportionality review
includes comparing a defendant’s sentence to that of a defendant
in an already decided case who was convicted of the same crime.
State v. Carter
,
proportionality the sentences of defendants in different cases who are guilty of the same crime, we see no obvious reason why a different rule would apply in the case of codefendants. And Defendant has not persuaded us otherwise. It is true that 9. Indeed, disparate sentences among codefendants are not uncommon in our jurisprudence, and they have been upheld by other appellate courts. See, e.g. , United States v. Kuhrt , 788 F.3d 403, 408, 424–25 (5th Cir. 2015) (affirming defendant’s disparate sentence even though defendant was merely an employee of his coconspirator who orchestrated a multi-billion-dollar Ponzi scheme when defendant’s sentence fell within the federal guidelines and the coconspirator ‚plead*ed+ guilty, accept*ed+ responsibility and testif*ied+ at multiple trials‛); United States v. McKinney , 53 F.3d 664, 678 (5th Cir. 1995) (affirming defendant’s disparate sentence when defendant’s sentence was within the federal sentencing guidelines and his only challenge was based on the lesser sentence of his more- culpable codefendant); United States v. Rackstraw , 7 F.3d 1476, 1482 (10th Cir. 1993) (holding ‚that the sentencing disparity [did] not violate the Eighth Amendment‛ when coconspirators in the transport of crack cocaine received roughly equal sentences despite one coconspirator transporting 1,040 ounces during a two-year period while the other transported ‚only sixteen-and-one-half . . . ounces on one occasion‛).
Defendant faces between one and fifteen years in prison in addition to his obligation to pay restitution to the investors while Codefendant, who testified against him but arguably played a more important role in the scam, is obligated only to serve probation and pay restitution. Although these sentences are disparate, Defendant’s only challenge to the legality of his sentence is to point out the disparity of the two sentences and Codefendant’s greater culpability. And as explained above, proportionality review does not turn on such a comparison. Affirmed.
10. Defendant also argues on appeal that the trial court improperly considered his refusal to admit guilt as a factor in its sentencing decision, an argument he supports by alleging, without record citations, that the State raised his refusal to admit guilt during sentencing. Even assuming that the State made an improper remark about Defendant’s refusal to admit guilt in support of its argument for incarceration, ‚the trial court is presumed to have disregarded the prosecutor’s commentary.‛ State v. Phillips , 2012 UT App 286, ¶ 25, 288 P.3d 310. Thus, ‚‘there will not be a reversal unless it affirmatively appears that the court was misled or improperly influenced by such remarks.’‛ Id. (quoting People v. Myatt , 384 N.E.2d 85, 88 (Ill. App. Ct. 1978)). Defendant has pointed to no affirmative evidence that the trial court considered the State’s alleged improper remark. Thus, we will not disturb the sentence the trial court imposed on that ground.