Case Information
*1 IN THE UTAH COURT OF APPEALS
‐‐‐‐ ooOoo ‐‐‐‐ Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. ‐ )
v. ) F L E D
) (March 2012) Jose Luis Alvarez ‐ Delvalle, )
) App and Appellant. ) ‐‐‐‐‐
Second District, Farmington Department,
The Honorable Glen R. Dawson
Attorneys: Scott L. Wiggins, Salt Lake City, Appellant
Mark L. Shurtleff and Karen Klucznik, Salt Lake City, Appellee ‐‐‐‐‐
Before Judges Orme, Thorne, Christiansen.
CHRISTIANSEN, Judge: ¶1 Defendant Jose Luis Alvarez ‐ Delvalle appeals jury conviction rape, see Utah Code Ann. § (2008), subsequent sentence. We affirm.
I. Substitution Counsel violated Sixth Amendment to when it adequately inquire about reasons had requested change applied incorrect legal standard “The Sixth Amendment United States Constitution Article Section Utah Constitution guarantee indigent counsel.” 573. *2 determine good cause existed to allow new counsel. We review whether trial court’s refusal appoint substitute violated Sixth Amendment right correctness. See State v. , 2001 UT App 159, ¶ 12, 27 P.3d 573.
¶3 “When a defendant expresses dissatisfaction appointed counsel, trial has a duty ‘make some non suggestive efforts determine the nature defendant’s complaints’ deciding whether good cause substitute exists .” ¶ 13 (quoting State v. Pursifell , 746 P.2d 270, 273 (Utah Ct. 1987)). Before trial constitutionally required substitute defense counsel, cause exists substitution. See v. Pando, 2005 UT App 384, ¶ 23, 122 P.3d 672 (“‘While an indigent defendant has represent him, does constitutional right lawyer one appointed, absent cause.’” (quoting Pursifell , 272)), cert. denied , 132 P.3d 683 (Utah 2006); Lovell , 1999 UT 40, ¶ 22, (establishing defendant requests new counsel, defendant carries burden proving cause warrants substitution of counsel), cert. , S. Ct. (2000). A can “[g]ood substitute [by demonstrating a] ‘conflict interest, complete breakdown in communication[,] irreconcilable which leads an apparently unjust verdict.’” Pando, UT 384, ¶ (third alteration (quoting Lovell , ¶ 31). In addition showing improperly refused substitute counsel, decision in prejudice defendant. Lovell 35.
¶4 Given case, hold did violate Sixth Amendment properly inquired into Defendant’s new simply carry burden establish during inquiry proper existed from which could determine cause.
¶5 On September sent stated, in part,
I like fire my lawyer grounds interest. He my best intentions mind I like new lawyer. don’t feel I can defend my case *3 with my present lawyer. I take this case very serious as I feel the outcome will impact my life.
¶6 With the trial scheduled only month away, the trial court pretrial conference on September which it considered Defendant’s letter. The trial court began the discussion properly explaining Defendant’s to and then stated, “Your doesn’t make it clear me why there is conflict between you and your attorney. Would you tell me as clear as way as you possibly can?” Through interpreter, Defendant responded, “I lost my faith [my counsel] because he never (unintelligible) anything my side. How am I going go trial with person is . . . about me?”
¶7 The then allowed defense the prosecutor make statements about representation had been provided Defendant. Specifically, defense stated had discussed case with Defendant, told him what be trial, gave him option choose between plea bargain or proceeding The prosecutor stated, “My sense is that only disagreement this matter is . . . [D]efendant’s refus[al] acknowledge what [defense counsel] believes potential outcome this case based facts.” The prosecutor commented thought it “appropriate defense to tell client what likely odds are if chooses go forward.” ¶8 After defense prosecutor their statements, asked if there “anything else [he] wish[ed] tell” court. stated, “I just want representation. That’s all want.” Following exchange, it did “find [wa]s sufficient grant removal of” counsel. ¶9 On appeal, “the erred conducting more meaningful inquiry into allegations complaints” an appropriate inquiry had made, determined interest existed. However, based upon record us, appears court “reasonable non suggestive effort[] determine nature [D]efendant’s complaints,” During discussion regarding complaints about counsel, simply carry burden establishing *4 assert v. existed. interest of Lovell that claim his for factual any , (discussing requirements establish cause based on of interest). Given in this case, we hold that an adequate inquiry. Based on Defendant’s failure establish cause, correctly Defendant’s request for new counsel.
II. Ineffective Assistance of Counsel Claims Presenting Critical Evidence at Trial argues that was call victim’s mother testify at bases his entire on statement
that victim’s mother made an investigator adult probation parole (AP&P) department that included presentence investigation report (PSR) given advance sentencing hearing. Though Defendant claims this statement exculpated him trial, provides no evidence victim’s mother similar statements or have testified similarly trial.
¶11 Because claims his performed ineffectively, Defendant must demonstrate, inter alia, “that [his] performance objectively 2. On appeal, demonstrated grounds such as complete breakdown communication or irreconcilable conflict. However, provide any would these grounds cause. Scales (Utah Ct. 1997) (“To successfully show ‘good cause’ rejecting counsel, defendant meet heavy burden. A defendant do more show or she ‘meaningful relationship’ or her attorney. . . . Instead, ‘good cause’ . . . ‘must animosity [between or her attorney] such deterioration attorney ‐ client relationship effective imperiled. To result denial defendant’s counsel, animosity may be based solely on defendant’s illegitimate complaints subjective perception events.” (alteration omitted)). Because affirm basis, we do reach argument was denial new counsel.
deficient.” See Clark , UT 25, ¶ 6, To this, “[D]efendant must overcome the ‘strong presumption that [his] counsel rendered adequate assistance,’ by persuading the that was no ‘conceivable tactical basis counsel’s actions.’” Id. (second alteration emphasis omitted). brief point any the record which we can evaluate what investigation whether defense any tactical decisions regarding any possible testimony from the victim’s mother. See generally Utah R. P. 23B(a) (“A party appeal criminal case may move the remand the case the entry of findings of fact, necessary the appellate determination of of ineffective assistance counsel.”).
¶12 Defendant also fails that was prejudiced by counsel’s performance. Clark , UT ¶ (requiring claiming ineffective assistance demonstrate, inter alia, “a reasonable probability that but deficient conduct would have obtained more favorable outcome at trial”). ignores physical evidence supported victim’s trial testimony. also makes no attempt analyze whether statement such as one victim’s mother PSR admissible at See generally Utah R. Evid. 608(a). In sum, has persuaded us his performed deficiently prejudiced counsel’s performance. B. Sentencing claims performed ineffectively sentencing by
failing present mitigating evidence. Even were assume counsel’s failure orally present any mitigating factors sentencing constituted deficient performance, has established deficient performance, especially mitigating factors been orally sentencing were contained PSR. generally v. Munguia , ¶ (“‘To prove ineffective assistance counsel, [the defendant] show: (1) performance objectively deficient, (2) reasonable probability exists but deficient conduct [the defendant] obtained more favorable outcome trial.’” (quoting Clark 25, 6)); (“A probability probability sufficient undermine confidence outcome. Additionally, proof counsel cannot be speculative matter but be demonstrable reality. In sentencing context, considers totality judge determines probability judge have reached different outcome absent attorney’s deficient performance.” internal quotation marks omitted)). Although asserts should have orally presented contradict PSR’s indication he moderate risk establish some mitigating factors, does explain what evidence, contained PSR, available could been used by his rebut AP&P’s risk determination. ¶¶ (determining that prove his assistance claim did prejudiced most factors claims argued were presented PSR psychosexual evaluation). Furthermore, how counsel’s oral presentation those same mitigating factors were PSR would different sentence. Because was actions lack thereof sentencing, ineffective fails. Thus, affirm sentence. ¶14 Affirmed.
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Michele M. Christiansen, Judge
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¶15 WE CONCUR:
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Gregory K. Orme, Judge
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William Thorne Jr., Judge