State v. Alvarez-Delvalle , 2012 UT App 96 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20090915‐CA
)
v. ) FILED
) (March 29, 2012)
Jose Luis Alvarez‐Delvalle, )
) 2012 UT App 96Defendant and Appellant. )
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Second District, Farmington Department, 091700115
The Honorable Glen R. Dawson
Attorneys: Scott L. Wiggins, Salt Lake City, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee
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Before Judges Orme, Thorne, and Christiansen.
CHRISTIANSEN, Judge:
¶1 Defendant Jose Luis Alvarez‐Delvalle appeals his jury conviction for rape, see
Utah Code Ann. § 76‐5‐402 (2008), and his subsequent sentence. We affirm.
I. Substitution of Counsel
¶2 Defendant argues that the trial court violated his Sixth Amendment right to
counsel1 when it failed to adequately inquire about the reasons Defendant had
requested a change of counsel and when it applied the incorrect legal standard to
1. “The Sixth Amendment of the United States Constitution and Article 1, Section 12 of
the Utah Constitution guarantee an indigent defendant the right to appointed counsel.”
State v. Valencia, 2001 UT App 159, ¶ 12, 27 P.3d 573.
determine if good cause existed to allow Defendant new counsel. We review whether
the trial court’s refusal to appoint substitute counsel violated Defendant’s Sixth
Amendment right for correctness. See State v. Valencia, 2001 UT App 159, ¶ 12, 27 P.3d
573.
¶3 “When a defendant expresses dissatisfaction with appointed counsel, the trial
court has a duty to ‘make some reasonable non‐suggestive efforts to determine the
nature of a defendant’s complaints’ before deciding whether good cause for substitute
counsel exists . . . .” See id. ¶ 13 (quoting State v. Pursifell, 746 P.2d 270, 273 (Utah Ct.
App. 1987)). Before the trial court is constitutionally required to substitute defense
counsel, Defendant must establish that good cause exists for such a substitution. See
State v. Pando, 2005 UT App 384, ¶ 23, 122 P.3d 672 (“‘While an indigent defendant has a
right to have counsel appointed to represent him, he does not have a constitutional right
to a lawyer other than the one appointed, absent good cause.’” (quoting Pursifell, 746
P.2d at 272)), cert. denied, 132 P.3d 683 (Utah 2006); see also State v. Lovell, 1999 UT 40,
¶ 22, 984 P.2d 382 (establishing that when the defendant requests new counsel, the
defendant carries the burden of proving that good cause warrants the substitution of
counsel), cert. denied, 120 S. Ct. 806 (2000). A defendant can establish “[g]ood cause for
substitute counsel [by demonstrating a] ‘conflict of interest, a complete breakdown in
communication[,] or an irreconcilable conflict which leads to an apparently unjust
verdict.’” Pando, 2005 UT App 384, ¶ 12 (third alteration in original) (quoting Lovell,
1999 UT 40, ¶ 31). In addition to showing that the trial court improperly refused to
substitute counsel, a defendant must also establish that the court’s decision resulted in
prejudice to the defendant. See Lovell, 1999 UT 40, ¶ 35.
¶4 Given the facts of this case, we hold that the trial court did not violate
Defendant’s Sixth Amendment right because it properly inquired into Defendant’s
request for new counsel and Defendant simply did not carry his burden to establish
during the inquiry that a proper factual basis existed from which the trial court could
determine good cause.
¶5 On September 13, 2009, Defendant sent a letter to the trial court that stated, in
part,
I would like to fire my lawyer on the grounds of conflict of
interest. He does not have my best intentions in mind and I
would like a new lawyer. I don’t feel I can defend my case
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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 a month away, the trial court conducted a pretrial
conference on September 15, in which it considered Defendant’s letter. The trial court
began the discussion by properly explaining Defendant’s right to counsel and then
stated, “Your letter doesn’t make it clear to me why there is a conflict between you and
your attorney. Would you tell me that in as clear as way as you possibly can?”
Through an interpreter, Defendant responded, “I lost my faith in [my counsel] because
he never (unintelligible) anything good in my side. How am I going to go to trial with a
person that is not . . . good about me?”
¶7 The trial court then allowed defense counsel and the prosecutor to make
statements about the representation that had been provided to Defendant. Specifically,
defense counsel stated that he had discussed the facts of the case with Defendant, told
him what evidence would be presented at trial, and gave him the option to choose
between a plea bargain or proceeding to trial. The prosecutor stated, “My sense is that
the only disagreement in this matter is . . . [D]efendant’s refus[al] to acknowledge what
[defense counsel] believes is the potential outcome in this case based on the facts.” The
prosecutor also commented that he thought it was “appropriate for defense counsel to
tell his client what the likely odds are at trial if he chooses to go forward.”
¶8 After defense counsel and the prosecutor made their statements, the court asked
Defendant if there was “anything else [he] wish[ed] to tell” the court. Defendant stated,
“I just want to have a good representation. That’s all I want.” Following this exchange,
the court denied Defendant’s request because it did not “find that there [wa]s sufficient
conflict to grant a removal of” defense counsel.
¶9 On appeal, Defendant argues that “the trial court erred by not conducting a more
meaningful inquiry into Defendant’s allegations or complaints” and that if an
appropriate inquiry had been made, the court should have determined that a conflict of
interest existed. However, based upon the record before us, it appears the trial court
made a “reasonable non‐suggestive effort[] to determine the nature of . . . [D]efendant’s
complaints,” see State v. Valencia, 2001 UT App 159, ¶ 13, 27 P.3d 573. During the
discussion with the court regarding his complaints about his defense counsel,
Defendant simply did not carry his burden of establishing good cause when he failed to
20090915‐CA 3
assert any factual basis for his claim that a conflict of interest existed.2 See State v. Lovell,
1999 UT 40, ¶ 22, 984 P.2d 382 (discussing the requirements to establish good cause
based on a conflict of interest). Given the facts presented in this case, we hold that the
trial court conducted an adequate inquiry. Based on Defendant’s failure to establish
good cause, the trial court correctly denied Defendant’s request for new counsel.3
II. Ineffective Assistance of Counsel Claims
A. Presenting Critical Evidence at Trial
¶10 Defendant argues that defense counsel was ineffective because he failed to call
the victim’s mother to testify at trial. Defendant bases his entire claim on a statement
that the victim’s mother made to an investigator for the adult probation and parole
(AP&P) department that was included in the presentence investigation report (PSR)
given to the court in advance of Defendant’s sentencing hearing. Though Defendant
claims that this statement would have exculpated him if made at trial, he provides no
evidence that the victim’s mother made similar statements before trial or would have
testified similarly at trial.
¶11 Because Defendant claims that his counsel performed ineffectively, Defendant
must demonstrate, inter alia, “that [his] counsel’s performance was objectively
2. On appeal, Defendant also argues that his letter demonstrated other grounds for
good cause such as a complete breakdown in communication or an irreconcilable
conflict. However, Defendant did not provide any factual evidence that would
establish these grounds for good cause. See State v. Scales, 946 P.2d 377, 382 (Utah Ct.
App. 1997) (“To successfully show ‘good cause’ for rejecting court‐appointed counsel, a
defendant must meet a heavy burden. A defendant must do more than show that he or
she does not have a ‘meaningful relationship’ with his or her attorney. . . . Instead, to
establish ‘good cause’ . . . a defendant ‘must also establish that the animosity [between
the defendant and his or her attorney] resulted in such a deterioration of the attorney‐
client relationship that the right to the effective assistance of counsel was imperiled. . . .
To result in the denial of a defendant’s right to counsel, such animosity may not be
based solely on the defendant’s illegitimate complaints or subjective perception of
events.” (alteration in original) (citations omitted)).
3. Because we affirm on this basis, we do not reach Defendant’s argument that he was
prejudiced by the trial court’s denial of his request for new counsel.
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deficient.” See State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. To establish this,
“[D]efendant must overcome the ‘strong presumption that [his] trial counsel rendered
adequate assistance,’ by persuading the court that there was no ‘conceivable tactical
basis for counsel’s actions.’” Id. (second alteration in original) (citations and emphasis
omitted). Defendant’s brief does not point to any factual basis in the record on which
we can evaluate what investigation defense counsel conducted and whether defense
counsel made any tactical decisions regarding any possible testimony from the victim’s
mother. See generally Utah R. App. P. 23B(a) (“A party to an appeal in a criminal case
may move the court to remand the case to the trial court for entry of findings of fact,
necessary for the appellate court’s determination of a claim of ineffective assistance of
counsel.”).
¶12 Defendant also fails to establish that he was prejudiced by defense counsel’s
performance. See Clark, 2004 UT 25, ¶ 6 (requiring the defendant claiming ineffective
assistance of counsel to demonstrate, inter alia, “a reasonable probability . . . that but for
the deficient conduct defendant would have obtained a more favorable outcome at
trial”). Defendant ignores the physical evidence that supported the victim’s trial
testimony. Defendant also makes no attempt to analyze whether a statement such as
the one the victim’s mother made in the PSR would have been admissible at trial. See
generally Utah R. Evid. 403, 608(a). In sum, Defendant has not persuaded us that his
counsel performed deficiently or that he was prejudiced by his counsel’s performance.
B. Sentencing
¶13 Defendant also claims that his counsel performed ineffectively at sentencing by
failing to present mitigating evidence. Even if we were to assume that counsel’s failure
to orally present any mitigating factors to the sentencing court constituted deficient
performance, Defendant has not established that he was prejudiced by such deficient
performance, especially because the mitigating factors that he argues should have been
orally presented to the sentencing court were contained in the PSR. See generally State v.
Munguia, 2011 UT 5, ¶ 30, 253 P.3d 1082 (“‘To prove ineffective assistance of counsel,
[the defendant] must show: (1) that counsel’s performance was objectively deficient,
and (2) a reasonable probability exists that but for the deficient conduct [the defendant]
would have obtained a more favorable outcome at trial.’” (quoting Clark, 2004 UT 25,
¶ 6)); see also id. (“A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Additionally, proof of ineffective assistance of counsel
cannot be a speculative matter but must be a demonstrable reality. In the sentencing
context, this court considers the totality of the evidence before the judge and determines
20090915‐CA 5
if there is a reasonable probability the judge would have reached a different outcome
absent the attorney’s deficient performance.” (citations and internal quotation marks
omitted)). Although Defendant asserts that defense counsel should have orally
presented evidence to the court to contradict the PSR’s indication that he was a
moderate risk and to establish some mitigating factors, he does not explain what
evidence, other than that contained in the PSR, was available and could have been used
by his counsel to rebut AP&P’s risk determination. See id. ¶¶ 32, 35 (determining that
the defendant failed to prove his ineffective assistance of counsel claim because he did
not establish that he was prejudiced when most of the factors that the defendant claims
should have been argued by his counsel were presented in PSR and psychosexual
evaluation). Furthermore, Defendant does not establish how his counsel’s oral
presentation of those same mitigating factors that were presented in the PSR would
have resulted in a different sentence. Because Defendant did not establish that he was
prejudiced by defense counsel’s actions or lack thereof at sentencing, his ineffective
assistance of counsel claim fails. Thus, we affirm his 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 A. Thorne Jr., Judge
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