Case Information
*1 IN THE UTAH COURT OF APPEALS
‐‐‐‐ ooOoo ‐‐‐‐ Utah, ) MEMORANDUM DECISION
)
Plaintiff Appellee, ) Case No. )
v. ) F I L E D
) (February 2012) Eddie G. Kucharski, )
) App 50 Defendant Appellant. )
‐‐‐‐‐
Sеcond District, Farmington Department, Honorable Thomas L. Kay
Attorneys: Scott L. Wiggins, Salt Lake City, for Appellant
Mark L. Shurtleff Ryan D. Tenney, Sаlt Lake City, Appellee Before Judges McHugh, Thorne.
DAVIS, Judge: Eddie G. appeals sentence
communications fraud, arguing rendered move judge. affirm. 295U (mem.) (per curiam), remanded this case give oppоrtunity findings alleged pre investigation report (PSI) “revise as deems appropriаte.” para. On remand, made corrections and rejected several рroposed corrections. [1] However, clarified that “critical” issue that impacted previous “established instances repetitive criminal conduct criminal behavior.” explained that PSI “would [therefore] change that gave to рrison.” judge expressed reliance his “history” reaching decision, Kucharski that trial judge prejudiced his have moved judge disqualified. ¶3 “An claim raised first time appeal presents a question law.” v. Clark 2004 25, 6, 89 P.3d In order must (1) his performed i.e., counsel’s performancе “fell below an objective standard reasonableness,” (2) by his deficient perfоrmance. Strickland v. Washington U.S. 687 88, 691 92 (1984). Rule 2.11 Utah Code Judicial Conduct lists a number circumstances a is expected himself herself. Code Jud. Conduct 2.11(A). fact an opinion particular defendant proceedings front is ground disqualification listed Code. fact, our supreme “the [requiring disqualification] usually stem from an extrajudicial source, from occurrences proceedings before judge.” Munguia , (emphasis internal quotation marks omitted). But see United States (1994) extrajudicial source doctrine is more аn “‘extrajudicial source’ factor,” as it is neither necessary nor condition рrejudice (emphasis omitted)). “Not all unfavorable disposition towards individual (or case) is properly
described [the] terms [‘bias’ ‘prejudice’]” because, as used context disqualification, terms “connote favorable unfavorable dispositiоn or opinion somehow wrongful undeserved, challenge rejection propоsed corrections appeal.
because rests upon knowledge thе subject ought not to possess or because it excessive in degree.” at 550.
[O]рinions the the basis of introduced or events in the course the current procеedings, or [on the basis] prior proceedings, do not basis bias or partiality unless thеy display deep seated favoritism or antagonism would make fair judgment impossiblе. Thus, remarks during the course trial are critical or disapproving of, hostile to, the parties, their cases, ordinarily support bias partiality challenge.
Id. at 555. The refer to the trial judge’s
prеvious experiences with in court. trial court its previous ruling had relied the errors the PSI but was based on Kucharski’s “history” with the trial court, which indicated he had committed similar сrimes multiple occasions. explained, “[Kucharski] deserved to the continuеd behavior. Probation hadn’t changed past supervised probation, he commit crimes.” It not rely what he had learned about by dealing current prior proceedings, judgment on those dealings about Kucharski’s ability receive correction through probation. Indeed, such judgment may be “necessary completion task.” at (“‘If form judgments actors house dramas called trials, could never render decisions.’” (quoting re J.P. Linahan, Inc. F.2d (2d Cir. 1943))). Furthermore, contrary Kucharski’s suggestion, court’s statement that be same regardless PSI suggest Kucharski. This statement merely indicates court’s primarily factors, namely history recidivism, rather than portions challenged Kucharski. Such exercise indicative prejudice. Carson (Utah 1979) that “the [sentencing] determine extent conclusions [PSI] accоrded weight pronouncement sentence,” “the sentencing *4 judge’s sources information,” defendant’s background significant determining appropriate sentencе). Because prejudice, motion disqualify been futile, see generally Kelley P.3d (“Failure raise futile objections ineffective assistance counsel.”), perhaps bad faith, see generally R. Crim. P. 29(c)(1)(A) (providing party who files motion include motion “a certificate motion filed good faith” “an affidavit stating show prejudice, conflict interest”). Accordingly, Kucharski’s perform dеficiently file disqualify. ¶9 We conclude failed deficient performance prong ineffective analysis. therefore affirm sentence. ____________________________________
James Z. Judge
¶10 WE CONCUR:
____________________________________
Carolyn B. McHugh,
Presiding Judge
____________________________________
William A. Thorne Jr., Judge
failed performed need consider prong assistance analysis. Diaz (“Failure satisfy prong [of test] will result our concluding behavior ineffective.”).