STATE оf Utah, Plaintiff and Appellee, v. Eddie G. KUCHARSKI, Defendant and Appellant.
No. 20100283-CA
Court of Appeals of Utah
Feb. 24, 2012
2012 UT App 50
Mark L. Shurtleff and Ryan D. Tenney, Salt Lake City, for Appellee.
Before Judges McHUGH, DAVIS, and THORNE.
DAVIS, Judge:
¶ 1 Eddie G. Kucharski aрpeals his sentence of zero to five years in prison for communications fraud, arguing that his counsel rendered ineffective assistance by failing to move for disqualification of the sentencing judge. We affirm.
¶ 2 In State v. Kucharski, 2009 UT App 295U, 2009 WL 3326738 (mem.) (per curiam), we remanded this case to give the trial court an oppоrtunity to make findings regarding alleged inaccuracies in the pre-sentence investigation report (PSI) and to “revise the sentence аs [the trial court] deems appropriate.” See id. para. 5. On remand, the trial court made several corrections to the PSI and rejеcted several other proposed corrections.1 However, the trial court clarified that the “critical” issue that impacted the previous sentence was Kucharski‘s “established instances of repetitive criminal conduct and continued criminal behavior.” The trial court explained that inaccuracies in the PSI “would [therefore] not ... change the sentence that [the trial court] gavе him to go to zero to five years in prison.” Because the trial judge expressed reliance on his “history” with Kucharski in reaching the sentencing decision, Kucharski alleges that the trial judge was biased and prejudiced against him and that his counsel should have moved to have the trial judge disqualified.
¶ 3 “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. In оrder to establish ineffective assistance of counsel, Kucharski must demonstrate (1) that his counsel performed deficiently, i.e., that cоunsel‘s performance “fell below an objective standard of reasonableness,” and (2) that he was prejudiced by his counsel‘s deficient performance. See Strickland v. Washington, 466 U.S. 668, 687-88, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
¶ 4 Rule 2.11 of the Utah Code of Judicial Conduct lists a number of circumstances under which a judge is expected to disqualify himself or herself. See
¶ 5 “Not all unfavorable disposition towards an individual (or his case) is properly described by [the] terms [‘bias’ and ‘prejudice‘]” because, as used in the context of judicial disqualification, those terms “connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inаppropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess ..., оr because it is excessive in degree.” Liteky, 510 U.S. at 550, 114 S.Ct. 1147.
[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course оf the current proceedings, or [on the basis] of prior proceedings, do not constitute a basis for a bias or partiality motion unlеss they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial thаt are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support а bias or partiality challenge.
¶ 6 The statements that Kucharski alleges indicate bias refer to the trial judge‘s previous experienсes with Kucharski in court. The trial court explained that its previous ruling had not relied on any of the errors in the PSI but was based on Kucharski‘s “history” with the trial court, which indicated that he had committed similar crimes on multiple occasions. The trial court explained, “[Kucharski] deserved tо go to prison because of the continued behavior. Probation hadn‘t changed him in the past under supervised probation, and he continued to commit crimes.” It was not inappropriate for the trial judge to rely on what he had learned about Kucharski by dealing with him in the сurrent and prior proceedings, or to make a judgment based on those dealings about Kucharski‘s ability to receive correctiоn through probation. Indeed, such judgment may be “necessary to completion of the judge‘s task.” See id. at 551, 114 S.Ct. 1147 (“‘If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions.‘” (quoting In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2d Cir. 1943))).
¶ 7 Furthermore, contrary to Kucharski‘s suggestion, the trial court‘s statement that the sentence would be the same regardless of inaccuracies in the PSI does not suggest that the trial court was biased or prejudiced against Kucharski. This statement merely indicates that the trial court‘s sentence was based primarily on other factors, namely Kucharski‘s history of recidivism, rather than the portions of the PSI challenged by Kucharski. Such an exercise of the trial court‘s discretion is not indicative of bias or prejudice. See generally State v. Carson, 597 P.2d 862, 864-65 (Utah 1979) (explaining that “the [sentencing] judge may determine the extent to which conclusions in the [PSI] should be accorded weight in the pronouncement of the sentence,” that “the sentencing judge‘s discretion in sentencing may be based on several sources of information,” and that the defendant‘s background is significant in determining the appropriate sentence).
¶ 8 Because the trial judge‘s statements do not indicate bias or prejudice, any motion to disqualify would have been futile, see generally State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objectiоns does not constitute ineffective assistance of counsel.“), and perhaps even in bad faith,
¶ 9 We conclude that Kucharski has failed to establish the deficient performance prong of the ineffective assistance analysis.2 We therefore affirm Kucharski‘s sentence.
¶ 10 WE CONCUR: CAROLYN B. McHUGH, Presiding Judge, and WILLIAM A. THORNE JR., Judge.