STATE of Utah, Plaintiff and Appellee, v. Angelo Noe MARTINEZ, Defendant and Appellant.
No. 20120297-CA.
Court of Appeals of Utah.
June 20, 2013.
2013 UT App 154
CONCLUSION
¶ 15 Utah law does not require that a modification to the provisions of an arbitration agreement governing the method of service be in writing, and Createrra has not disputed the district court‘s findings both that Createrra agreed to an oral modification to the parties’ operating agreement that allowed the arbitrator to issue his decisions by email and that Createrra then accepted service of the arbitrator‘s decisions by email without objection. Because there is no dispute that Createrra received the arbitrator‘s last emailed decision by November 3, 2010, the motion to vacate filed ninety-one days later, on February 2, 2011, was untimely. We therefore affirm the district court‘s decision.
Samuel P. Newton, for Appellant.
John E. Swallow and Karen A. Klucznik, for Appellee.
Judge MICHELE M. CHRISTIANSEN authored this Memorandum Decision, in which Judges GREGORY K. ORME and CAROLYN B. McHUGH concurred.
Memorandum Decision
CHRISTIANSEN, Judge:
¶ 1 Defendant Angelo Noe Martinez appeals his convictions for aggravated assault and distribution of a controlled substance in a drug-free zone. We affirm.
¶ 2 Defendant‘s convictions stem from a drug transaction that took place at a public park in January 2010.1 During the transaction, Defendant stabbed Luis Torres after Torres threatened Defendant with a gun. At trial, defense counsel argued that Defendant stabbed Torres in self-defense. Accordingly, the trial court‘s jury instructions included a summary of the law of self-defense. The relevant jury instruction included the following sentence: “A person is not justified in using force ... if the person is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony.” See also
¶ 3 On appeal, Defendant asserts that the trial court failed to adequately instruct the jury on his claim of self-defense. “[W]hen there is a basis in the evidence ... which would provide some reasonable basis for the jury to conclude that ... the defendant [acted to protect himself] from an imminent threat ..., an instruction on self-defense should be given to the jury.” State v. Lucero, 2012 UT App 202, ¶ 6, 283 P.3d 967 (alterations and omissions in original) (quoting State v. Knoll, 712 P.2d 211, 214 (Utah 1985)). Even though the trial court did instruct the jury on the law of self-defense, Defendant claims that the court‘s instructions were flawed because they did not properly explain the State‘s and Defendant‘s relative burdens of proof. See id. (“Once the jury has been instructed on self-defense, the [State] has the burden to prove beyond a reasonable doubt that the [defendant did] ... not [act] in self-defense.” (alterations and omission in original) (citation and internal quotation marks omitted)). Defendant asserts that the trial court‘s error in failing to provide proper instructions requires reversal of his convictions.
¶ 4 At the outset, we note, and Defendant acknowledges, that he did not preserve his objection to the jury instructions before the trial court. Therefore, we must review his claim for plain error. See
¶ 5 Additionally, Defendant argues for the first time on appeal that his convictions should be overturned as a result of the ineffective assistance of his trial counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). Defendant argues that his trial counsel‘s failure to request specific instructions regarding the burdens of proof for a claim of self-defense was objectively deficient performance and prejudiced his defense by seriously undermining the fairness of his trial. According to Defendant, “it seems likely that with proper instructions, the jury would have considered self-defense to create a reasonable doubt as to [Defendant‘s] guilt.” We review this claim as a matter of law. See State v. Sellers, 2011 UT App 38, ¶ 9, 248 P.3d 70. To warrant reversal, Defendant must first “demonstrate that specific acts or omissions of counsel fell below an objective standard of reasonableness.” See Powell, 2007 UT 9, ¶ 24. Second, Defendant must show that this deficient performance prejudiced his defense. See Strickland, 466 U.S. at 687. Prejudice is established by showing “that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Powell, 2007 UT 9, ¶ 45 (citation and internal quotation marks omitted). Thus, the prejudice test for ineffective assistance of counsel claims is equivalent to the harmfulness test for plain error. See Dunn, 850 P.2d at 1225.
¶ 6 We conclude that Defendant‘s claims of plain error and ineffective assistance fail because he cannot demonstrate that the instructions given to the jury were harmful or that his counsel‘s failure to request proper instructions resulted in prejudice. Because the analysis is equivalent on both claims, we limit our analysis to whether providing the jury with an instruction setting forth the appropriate burdens of proof would have created a reasonable probability, in this instance, that Defendant would have been acquitted.4
¶ 7 As a general matter, self-defense is not available as a defense to a criminal act in several circumstances. See
¶ 8 With respect to Defendant‘s drug conviction, we determine that even if the jury instructions had been prepared exactly to Defendant‘s specification, those instructions could not have affected the jury‘s decision on the drug count because self-defense is not a valid defense to the attempted commission of
¶ 9 As to the aggravated assault charge, Defendant has never disputed that he stabbed Torres. Indeed, his entire defense hinged on his claim of self-defense, which necessarily involved admission of the underlying assault. However, because we affirm Defendant‘s conviction of the felony drug offense, Defendant‘s use of force against Torres cannot be justified because it occurred during the drug transaction. See
¶ 10 Defendant is correct in asserting that a proper self-defense jury instruction should inform the jury about the burdens of proof necessary for self-defense to be considered. However, Defendant could not have successfully raised such a defense in this case. That is, Defendant‘s use of force against Torres cannot be justified here because the stabbing occurred during the commission of a felony. Therefore, Defendant cannot demonstrate that the trial court‘s failure to provide jury instructions setting forth the appropriate burdens of proof was harmful under the plain error standard. Nor can Defendant demonstrate that his trial counsel‘s failure to request such instructions prejudiced him, resulting in ineffective assistance at trial. Accordingly, we decline to reverse Defendant‘s convictions.
¶ 11 Affirmed.