Hattrich v. State , 2019 UT App 142 ( 2019 )

2019 UT App 142THE UTAH COURT OF APPEALS
PAUL JOHN HATTRICH,
Appellant,
v.
STATE OF UTAH,
Appellee.
Opinion
No. 20170158-CA
Filed August 22, 2019
Sixth District Court, Richfield Department
The Honorable Marvin D. Bagley
No. 150600030
Elizabeth Hunt, Attorney for Appellant
Sean D. Reyes and Daniel W. Boyer,
Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and JILL M. POHLMAN
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Paul John Hattrich appeals from the district court’s
summary judgment in favor of the State and denial of his
petition for post-conviction relief. We affirm.
BACKGROUND
¶2 Hattrich occasionally invited a neighbor child (Victim)
over to do yard work, play video games, and take care of
Hattrich’s dogs. At some point, Hattrich began showing Victim
print, digital, and video pornography and later performed oral
sex on Victim. Eventually, he would perform oral sex on Victim
about once a week through the summer but less frequently
Hattrich v. State
during the school year. Hattrich told Victim that he had engaged
in sex acts with other children, including Victim Two and Victim
Three.
¶3 Between 1995 and 1999, Hattrich frequently engaged in
oral sex with Victim Two and had anal sex with him twice. The
abuse usually occurred at Hattrich’s home, and Hattrich once
videotaped the crime. Hattrich also gave Victim Two free access
to pornography.
¶4 When Victim Three was about ten or eleven, he and the
two other victims went to Hattrich’s house approximately two to
three times per week. Hattrich took all three boys hunting, let
them spend time at his house, and let them look at pornographic
movies and magazines in his home. When the boys visited,
Hattrich also sexually abused them.
¶5 The State charged Hattrich with thirty criminal acts
involving the three victims, including rape of a child, sodomy on
a child, aggravated sexual abuse of a child, sexual abuse of a
child, and dealing in material harmful to a minor. Before the
preliminary hearing, Hattrich filed three motions: (1) a motion to
change venue, (2) a motion to dismiss nine charges of
aggravated sexual abuse of a child, and (3) a motion to sever
some of the charged offenses for purposes of trial. 1 The trial
court 2 denied all three motions but did sever two charges to be
1. In his motion to sever, Hattrich asked the court to conduct
seven separate criminal trials, with each trial resolving between
two and eight of the charged offenses.
2. The present appeal stems from the district court’s summary
judgment ruling on Hattrich’s petition for post-conviction relief,
a matter that, though challenging the underlying criminal
convictions, is civil in nature. See Finlayson v. State, 2015 UT App
31, ¶ 17, 345 P.3d 1266 (observing that “a post-conviction
proceeding is ultimately civil in nature and does not implicate
(continued…)
20170158-CA 2 2019 UT App 142Hattrich v. State
tried separately—the charges alleging Hattrich’s dealing in
material harmful to a minor.
¶6 Following a preliminary hearing, the trial court bound
Hattrich over on twenty-seven separate counts. The State
subsequently amended the information to reflect these twenty-
seven charges—eliminating from the original information one
count dismissed at the preliminary hearing and removing the
two charges that had been severed.
¶7 Hattrich filed three additional motions after the
preliminary hearing: (1) a motion to dismiss the amended
information on multiplicity grounds or, in the alternative, to
reduce the counts; (2) a motion to quash the bindover on
eighteen of the charges; and (3) a motion to dismiss the amended
information. Hattrich’s trial counsel also prepared and filed a
witness list and exhibit list in anticipation of trial.
¶8 The day before trial was to commence, Hattrich pleaded
no contest to three charges of sodomy on a child, each a first-
degree felony. In exchange, the State agreed to dismiss the
remaining twenty-four charges and to recommend that
Hattrich’s sentence on each charge run concurrently to the
others. Hattrich believed that, by pleading no contest, he could
effectively avoid the potential twenty-five-years-to-life sentences
that would be imposed if he were convicted of the two child-
rape charges. Those charges were to be dismissed as part of the
plea agreement. Hattrich conditioned his no contest plea on
retaining his “right to appeal any issues which have arisen or
(…continued)
the same constitutional protections as do criminal prosecutions”
(quotation simplified)). To avoid any confusion, we refer to the
court presiding over Hattrich’s criminal case as the trial court
and refer to the court overseeing his post-conviction matter as
the district court. We note, however, that the same judge
presided over both matters and that no trial occurred.
20170158-CA 3 2019 UT App 142Hattrich v. State
been litigated in this case.” As part of his plea, Hattrich signed a
“Waiver of Rights by Defendant” (the Waiver) in which he
acknowledged that he read, understood, and agreed with the
provisions of the Waiver, including that he made his plea of no
contest of his “own free will and choice.” Hattrich also affirmed
that he understood that by pleading no contest, he was giving up
certain constitutional protections. During the plea hearing, the
trial court conducted a plea colloquy during which Hattrich
affirmed that he understood the terms of the plea agreement and
Waiver.
¶9 The trial court accepted Hattrich’s no contest pleas and
sentenced him to fifteen years to life in prison on each of the
three charges. Consistent with the State’s recommendation, the
court ordered the sentences to run concurrently. Hattrich
appealed his convictions, raising several issues, and this court
affirmed. See State v. Hattrich, 2013 UT App 177, 317 P.3d 433.
¶10 Hattrich subsequently filed a petition for post-conviction
relief, asserting three reasons his convictions should be vacated.
He first asserted that his no contest pleas were not knowing and
voluntary because he did not understand that his reserved right
of appeal was limited by the preservation and briefing
requirements associated with an appeal. Second, he contended
that the prosecution had breached the plea agreement by raising
preservation and inadequate-briefing challenges to Hattrich’s
direct appeal. Third, Hattrich alleged certain instances of
ineffective assistance by his trial and appellate counsel. 3 Hattrich
also filed a request for discovery relating to one of his ineffective
assistance claims, which the district court denied.
¶11 The State and Hattrich each filed motions for summary
judgment. After briefing and oral argument, the district court
granted the State’s motion and denied Hattrich’s motion.
3. Hattrich was represented by the same counsel in the trial court
and on appeal.
20170158-CA 4 2019 UT App 142Hattrich v. State
ISSUES AND STANDARDS OF REVIEW
¶12 Hattrich raises a number of issues on appeal. He first
argues that the district court erred in granting summary
judgment to the State with respect to Hattrich’s claims that he
should be permitted to withdraw his no contest pleas because
they were not knowingly and voluntarily entered and that the
State’s appellate counsel breached the plea agreement. He also
argues that the court erred in granting summary judgment to the
State on his various claims that he received ineffective assistance
of counsel in both pre-trial matters and on appeal. We review the
district court’s grant of summary judgment for correctness,
affording no deference to the district court. Garcia v. State, 2018
UT App 129, ¶ 8, 427 P.3d 1185. “We will affirm such a decision
when the record shows that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” Id. (quotation simplified); see also Utah R.
Civ. P. 56(a). “In making this assessment, we view the facts and
all reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party.” Ross v. State, 2012 UT 93,
¶ 18, 293 P.3d 345 (quotation simplified).
¶13 Hattrich further argues that the district court erred when
it denied his request for discovery in pursuing his post-
conviction petition. We review the district court’s discovery
decisions for an abuse of discretion. Menzies v. Galetka, 2006 UT
81, ¶ 59, 150 P.3d 480.
ANALYSIS
I. Hattrich’s Knowing and Voluntary Conditional No
Contest Pleas
¶14 Hattrich asserts that he did not knowingly and
voluntarily enter his conditional no contest pleas in which he
reserved the right to appeal. “A plea is not knowing and
voluntary when the record demonstrates that the accused does
20170158-CA 5 2019 UT App 142Hattrich v. State
not understand the nature of the constitutional protections that
he is waiving, or when he has such an incomplete understanding
of the charge that his plea cannot stand as an intelligent
admission of guilt.” State v. Alexander, 2012 UT 27, ¶ 16, 279 P.3d
371 (quotation simplified). Further, a court must permit a
defendant to withdraw a guilty plea when “the State made a
promise it did not or could not fulfill.” State v. Copeland, 765 P.2d
1266, 1276 (Utah 1988); accord State v. Norris, 2002 UT App 305,
¶ 10, 57 P.3d 238.
¶15 Here, after a thorough plea colloquy, the trial court
concluded that Hattrich understood the proposed waiver of trial
rights listed in the plea agreement and that he “voluntarily and
intentionally waived [these] constitutional rights.” Indeed,
Hattrich informed the trial court that he had read the agreement,
understood it, and signed it of his own volition. Moreover,
Hattrich acknowledged the factual basis for the plea and stated
that he understood the legal elements and potential punishment
associated with criminal charges to which he wished to plead no
contest. The trial court therefore accepted Hattrich’s no contest
pleas and proceeded to sentencing.
¶16 Hattrich’s primary argument 4 in support of his claim that
he did not knowingly and voluntarily enter the conditional plea
4. Hattrich additionally asserts that the plea agreement was not
properly incorporated into the record because the court did not
ask Hattrich whether he had read the agreement. See State v. Lehi,
2003 UT App 212, ¶ 9, 73 P.3d 985. There is no merit to this
assertion because it is clear from the record that the court
explicitly asked Hattrich, “Did you read the agreement before
you signed it?” And Hattrich answered, “Yes, I did, Your
Honor.”
Hattrich also asserts that he was improperly coerced to
plead because he mistakenly believed he could be subject to
rape-of-a-child charges if he did not, when in actuality those
charges should have been for the lesser offense of sodomy on a
(continued…)
20170158-CA 6 2019 UT App 142Hattrich v. State
agreement rests on his assertion that the agreement’s “plain
language purported to allow Hattrich to appeal ‘any issues
which have arisen or been litigated in this case,’ regardless of
whether the issue was preserved in the trial court or properly
presented on appeal,” despite this not being something the State
could deliver. See Copeland, 765 P.2d at 1276. Hattrich raised six
issues on direct appeal. See generally State v. Hattrich, 2013 UT
App 177, 317 P.3d 433. The State contested some of these claims
on the grounds that Hattrich failed to preserve them in the trial
court and that he did not adequately brief them on appeal.
Resolving Hattrich’s direct appeal, this court declined to
consider one of the claims 5 Hattrich raised both because it was
unpreserved and because “[Hattrich’s] plea agreement limits the
issues he may raise on appeal to those ‘which have arisen or
been litigated in this case.’” Id. ¶¶ 24, 46.
(…continued)
child. But Hattrich has provided no support for his repeated
assertion that these charges should have been reduced, as
discussed infra ¶¶ 37–38.
Finally, Hattrich asserts for the first time on appeal that he
mistakenly believed that the rape-of-a-child charges carried a
twenty-five-to-life sentence, when he actually would have been
subject to only a fifteen-to-life sentence under the version of the
Utah Code in effect at the time the offenses were committed.
Compare Utah Code Ann. § 76-5-402.1 (Michie 1996), with id.(LexisNexis 2017). However, this issue is not preserved, and
Hattrich has not asserted that it should be considered under an
exception to the preservation rule. We therefore do not consider
it further. See State v. King, 2006 UT 3, ¶ 13, 131 P.3d 202.
5. This court identified two issues that Hattrich had failed to
preserve in the district court but nevertheless resolved one of
those issues on the merits. See State v. Hattrich, 2013 UT App 177,
¶ 25, 317 P.3d 433.
20170158-CA 7 2019 UT App 142Hattrich v. State
¶17 Hattrich asserts that had he been aware that his appeal
would be limited by our preservation and briefing requirements,
he would not have entered the plea. He further asserts that the
plea agreement was illusory because the State purported to
eliminate those procedural requirements as part of the
consideration for the agreement, yet had no authority to do so,
see Utah R. App. P. 1(a) (“These rules govern the procedure
before the Supreme Court and the Court of Appeals of Utah in
all cases.” (emphasis added)); State v. Johnson, 2017 UT 76, ¶ 18,
416 P.3d 443 (observing that “parties are required to raise and
argue an issue in the trial court in such a way that the court has
an opportunity to rule on it” and the failure to do so “generally
precludes a party from arguing that issue in an appellate court,
absent a valid exception” (quotation simplified)); MacKay v.
Hardy, 973 P.2d 941, 947–48 (Utah 1998) (observing that the Utah
Rules of Appellate Procedure “set forth the requirements that
appellants and appellees must meet when submitting briefs
before [Utah’s appellate courts]” and that appellate courts have
consistently held “that we will not address issues not adequately
briefed”). He relatedly contends that the State breached the plea
agreement when it argued that he failed to preserve certain
issues in the trial court and failed to adequately brief certain
issues on appeal.
¶18 We apply contract principles when interpreting plea
agreements. State v. Davis, 2011 UT App 74, ¶ 3 n.2, 272 P.3d 745.
And we generally begin such a review by “looking first to the
plain language of a contract.” State v. Terrazas, 2014 UT App 229,
¶ 27, 336 P.3d 594 (quotation simplified). Here, the reservation of
Hattrich’s right to appeal in the plea agreement, in its entirety,
reads as follows: “These guilty pleas are conditional on
[Hattrich’s] right to appeal any issues which have arisen or been
litigated in this case.”
¶19 The language of the plea agreement is straightforward
and explicit. It says nothing about removing the otherwise
uniform expectations of preservation of issues for appeal or
the requirement that issues raised on appeal must be adequately
20170158-CA 8 2019 UT App 142Hattrich v. State
briefed to the appellate court. Hattrich asserts that he believed
this agreement afforded him the opportunity to challenge
on appeal—and receive a merits review of—any issue he
raised, regardless of how well it was briefed and even if it
was unpreserved and not argued under an exception to
the preservation rule. But any such belief would have
been unreasonable in light of the plain language of
the agreement, which contains nothing suggesting that Hattrich
would not be bound by the court’s standard procedural rules
in pursuing his appeal. In light of the clear and unambiguous
language of the agreement, Hattrich’s claim that he
was “genuinely and legitimately confused” about the benefit
he was to receive under the plea agreement is unpersuasive. 6 See
State v. Norris, 2002 UT App 305, ¶ 12, 57 P.3d 238 (quotation
simplified). Likewise, Hattrich cannot establish that the benefits
promised to him in the agreement were illusory, because
the agreement did not purport to grant him the right to avoid
the preservation rule or standard briefing requirements.
Accordingly, the district court correctly determined, as a
matter of law, that Hattrich was not entitled to withdraw
his plea.
¶20 Hattrich also contends that the district court erred
in determining that the State did not breach the plea agreement
by arguing in the direct appeal that Hattrich had failed
to preserve certain issues in the trial court and that he had failed
to adequately brief certain issues. Because we conclude that
the plea agreement did not purport to eliminate preservation
rules and adequate briefing requirements, Hattrich’s breach
argument fails as a matter of law.
6. Hattrich has asserted no basis for his subjective belief that the
agreement permitted him to raise unpreserved claims or avoid
rules of procedure apart from his flawed interpretation of the
“plain terms” of the plea agreement—for example, that he was
led to this belief by representations of the prosecutor or another
individual.
20170158-CA 9 2019 UT App 142Hattrich v. State
II. Ineffective Assistance of Counsel
¶21 Hattrich argues that the district court erred when it
rejected his claims of ineffective assistance of counsel and
granted the State’s motion for summary judgment. He points to
several instances in which trial and appellate counsel allegedly
performed deficiently. The district court granted summary
judgment to the State on each of these claims. We first address
those claims that are procedurally barred pursuant to the Post-
Conviction Remedies Act (the PCRA), then consider Hattrich’s
remaining claims.
A. The PCRA’s Procedural Bar
¶22 Hattrich asserted in his PCRA petition that his trial
counsel was ineffective in litigating pre-trial notice issues and a
motion regarding joinder of charges. Hattrich raised both of
these grounds in his original criminal appeal, although he did
not present them as claims of ineffective assistance of counsel.
See State v. Hattrich, 2013 UT App 177, ¶¶ 20–21, 36–44, 317 P.3d
433. The PCRA precludes relief “upon any ground that . . . was
raised or addressed at trial or on appeal.” Utah Code Ann. § 78B-
9-106(1)(b) (LexisNexis 2018). This procedural bar “applies to all
claims, including constitutional questions.” Johnson v. State, 2011
UT 59, ¶ 10, 267 P.3d 880 (quotation simplified). Even if a PCRA
claim is “framed somewhat differently,” a post-conviction claim
will be barred if it is “substantially similar” and “rest[s] on
arguments” used for a claim “raised at trial or on appeal.” Myers
v. State, 2004 UT 31, ¶¶ 14 & n.1, 18, 94 P.3d 211. We now
address two claims that we conclude are barred by the PCRA.
1. Pre-Trial Notice and Charging
¶23 Hattrich argues that his trial counsel performed
deficiently by failing to adequately challenge the State’s criminal
charging procedure and the pre-trial notice he was provided. In
his direct appeal, Hattrich contended that the various charging
documents “failed to provide adequate notice of the dates and
20170158-CA 10 2019 UT App 142Hattrich v. State
locations of his then-alleged crimes, thereby ‘wreak[ing] havoc
on [his] ability to defend himself.” Hattrich, 2013 UT App 177,
¶ 36. The “constantly moving targets in terms of dates, times,
and events,” he argued, “hampered his defense and violated his
due process rights.” Id. ¶ 40 (quotation simplified). He asserted
that it was the State’s burden to show both that its amended
charging documents did not charge additional or different
offenses and that the amendments did not prejudice Hattrich’s
substantial rights. See id. ¶ 38. Relying on our supreme court’s
ruling in Tillman v. Cook, 855 P.2d 211 (Utah 1993), this court
rejected Hattrich’s argument, determining that “even if an
amended information does create a new and additional offense,
reversal is only appropriate if the defendant can demonstrate
that his or her substantial rights are prejudiced as a result of the
amendment.” Hattrich, 2013 UT App 177, ¶¶ 38–39. The court
then went on to conclude that Hattrich had not established that
his substantial rights were violated because he was “sufficiently
apprised of the State’s evidence upon which” his charges were
based. See id. ¶¶ 39–41.
¶24 Hattrich contends that his appellate counsel did not
adequately advocate his position on appeal. 7 In assessing this
7. Hattrich also asserts that his appellate counsel was ineffective
for failing to ensure that the bill of particulars filed by the State
was included in the record on appeal, which resulted in this
court assuming that the bill was adequate. See id. ¶ 41. But this
court’s assessment of the bill of particulars ultimately did not
affect the outcome of the case, because we observed that “the
notice to which a defendant is constitutionally entitled may
come through one or all of three sources” and that the State
provided Hattrich “with all three forms of notice in this
instance.” Id. (quotation simplified). In addition to the bill of
particulars, we observed that “a review of both the Third
Amended Information and the section 77-14-1 demand response
confirms that the State gave [Hattrich] sufficiently precise
notification.” Id. ¶ 42 (quotation simplified).
20170158-CA 11 2019 UT App 142Hattrich v. State
argument in the context of the summary judgment, the district
court found that there was “little practical difference” between
Hattrich’s ineffective assistance claim and his appellate claim—
“[b]oth contend, at their core, that [Hattrich’s] due process rights
were violated, and both are precluded by a finding of adequate
notice.” In other words, Hattrich has pointed to no argument
that appellate counsel failed to make that would have altered
this court’s determination that his challenge to the charging
procedure was defeated by the adequate notice. Hattrich
essentially reargues the extent to which the amended
information created new and different offenses that subjected
him to increased punishment and whether he was substantially
prejudiced. But these arguments were previously resolved on
direct appeal. We therefore agree with the district court that this
claim is merely an attempt to re-litigate the same notice claims
that Hattrich raised on direct appeal. See Gardner v. Holden, 888
P.2d 608, 615 (Utah 1994). The claim is therefore procedurally
barred. Utah Code Ann. § 78B-9-106(1)(b) (“A person is not
eligible for relief under this chapter upon any ground that . . .
was raised or addressed at trial or on appeal . . . .”).
2. Motion to Sever
¶25 Hattrich asserts that certain of his criminal charges “were
not (1) part of the same conduct or otherwise connected in their
commission and were not (2) part of the same scheme or plan.”
See Utah Code Ann. § 77-8a-1(1) (LexisNexis Supp. 2018).
Consequently, he contends that these criminal charges were
improperly joined together in the single charging document and
should have been severed pursuant to Utah Code section 77-8a-
1(4)(a). Hattrich raised this argument in his direct appeal, and
unpersuaded, this court concluded, “Because the charges were
properly joined and because Defendant has failed to
demonstrate any prejudice, the trial court did not abuse its
discretion by denying Defendant’s motion to sever.” Hattrich,
2013 UT App 177, ¶ 21. In the instant PCRA petition, Hattrich
presents the exact same argument through the lens of an
ineffective assistance of counsel claim. Because this argument
20170158-CA 12 2019 UT App 142Hattrich v. State
was already raised and addressed in Hattrich’s direct appeal, 8
we conclude that the district court correctly granted summary
judgment to the State on this claim.
B. Remaining Claims of Ineffective Assistance of Counsel
¶26 To prevail on an ineffective assistance of counsel claim, a
defendant must establish that counsel’s performance was
objectively deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). “Because both prongs of the Strickland test must be met to
establish ineffective assistance of counsel, we need not always
address both prongs.” State v. Goode, 2012 UT App 285, ¶ 7 n.2,
288 P.3d 306.
1. Communication of a Plea Offer
¶27 Hattrich asserts in his PCRA petition that his trial counsel
performed deficiently by failing to relay to him information
about a favorable plea offer. He particularly asserts that while
counsel allegedly communicated an offer from the State for
Hattrich to plead guilty to one unspecified first-degree felony,
counsel did not tell him when that offer would expire. At that
point, Hattrich asserts, his counsel “left him in the jail to think
about it until after the offer expired.”
8. Although Hattrich asserts that he was prejudiced because
counsel did not adequately brief this issue on appeal, he has
made no attempt to show how more complete briefing would
have altered the outcome. As he observes, this court “looked
beyond the [allegedly] inadequate filings and independently
determined that the charges in [Hattrich’s] underlying case were
properly joined.” Without explaining how better briefing would
have been likely to alter this court’s decision on the merits, we
are hard-pressed to see how any inadequate briefing prejudiced
Hattrich.
20170158-CA 13 2019 UT App 142Hattrich v. State
¶28 This general type of claim—the alleged failure to
communicate a plea offer—is governed by Missouri v. Frye, 566
U.S. 134 (2012). In that case, Frye’s defense counsel failed to
communicate a favorable, written plea offer to him, and the offer
expired. Id. at 138–39. Subsequently, Frye agreed to a less
favorable plea offer. Id. at 139. The Supreme Court held that “as
a general rule, defense counsel has the duty to communicate
formal offers from the prosecution to accept a plea on terms and
conditions that may be favorable to the accused.” Id. at 145. To
succeed on a Frye claim then, Hattrich has the burden to show
(1) that trial counsel failed to communicate a formal offer, (2)
that the offer’s terms were more favorable than the later offer,
(3) that Hattrich likely would have accepted the earlier plea
offer, and (4) that the plea likely would have been entered
“without the prosecution canceling it or the trial court refusing
to accept it.” Id. at 145–48. We consider only the first and fourth
elements and conclude that the district court did not err when it
granted the State summary judgment on Hattrich’s Frye claim.
¶29 Here, Hattrich asserts that trial counsel communicated the
State’s offer that he plead guilty to one unspecified first-degree
felony. In support of his petition, however, Hattrich offered no
details about the timeline of this alleged offer, when the offer
was to expire, or even the felony offense the State’s offer
entailed. In the PCRA proceedings, the State proffered email
correspondence from the prosecutor in the underlying criminal
case. The prosecutor, after reviewing the extensive file, found
only one plea offer dated May 2009 in which the State sought
Hattrich’s guilty pleas to rape of a child and two counts of
sodomy on a child, all first-degree felonies. 9 The prosecutor also
indicated that he does not put deadlines on plea offers before
trial. Considering Hattrich’s non-specific allegations of an earlier
9. Presumably, this was not the offer Hattrich recalls, as it was
less favorable than the ultimate offer he agreed to, which
permitted him to plead no contest to three counts of sodomy on
a child without pleading to any of the child-rape charges.
20170158-CA 14 2019 UT App 142Hattrich v. State
offer, the district court concluded that Hattrich could not
establish a Frye claim. In particular, the court determined that
Hattrich had not demonstrated that the State’s plea offer was a
formal offer and concluded that neither the prosecution nor the
trial court would have prevented the offer from being accepted
or entered. See id. at 148.
¶30 Hattrich argued that Frye “requires attorneys to promptly
communicate and consult with their clients concerning all plea
offers.” Consequently, he contends that trial counsel performed
deficiently when counsel allowed the alleged plea offer to expire.
The district court concluded, and we agree, that Frye does not
impose such a broad requirement. The question before the
Supreme Court was “whether defense counsel has the duty to
communicate the terms of a formal offer to accept a plea on
terms and conditions that may result in a lesser sentence, a
conviction on lesser charges, or both.” Id. at 145. Indeed, the
Supreme Court expressed at least some concern regarding “late,
frivolous, or fabricated claims after a later, less advantageous
plea offer has been accepted” and suggested, as a protective
measure, that courts consider “a formal offer [to mean] that its
terms and its processing can be documented so that what took
place in the negotiation process becomes more clear if some later
inquiry turns on the conduct of earlier pretrial negotiations.” Id.
at 146.
¶31 Here, Hattrich produced no documented formal plea offer
matching the one he alleged had been presented to him. Rather,
at his request, the original prosecutor reviewed the entire file
and confirmed that there was no indication that any such offer
had been made. Accordingly, the district court correctly
concluded that Hattrich had not established that counsel
performed deficiently by failing to follow up with Hattrich
regarding the alleged plea offer.
¶32 The district court further concluded that Hattrich had not
established that the nondescript plea likely would have been
entered “without the prosecution canceling it or the trial court
20170158-CA 15 2019 UT App 142Hattrich v. State
refusing to accept it.” See id. at 147. The alleged plea offer,
resolving allegations of years of child sexual abuse perpetrated
against three different victims, entailed Hattrich pleading guilty
to one unspecified first-degree felony and the State presumably
dismissing the remaining twenty-six charges. Suggesting that the
plea was likely to be entered by the court, Hattrich asserts that
the criminal trial would have involved “evidentiary difficulties”
and “discomfort” and that the Board of Pardons has the
authority to “imprison people for life when necessary in any first
degree felony case.” We are not persuaded that these vague
statements, without more, establish a reasonable probability that
the alleged plea would have been approved by the court.
Because Hattrich did not establish deficient performance of
counsel, we discern no error in the district court’s decision to
grant summary judgment to the State.
2. Coercion to Enter the No Contest Plea
¶33 Hattrich asserts that he was “coerced” to enter into the
plea agreement by his trial counsel who was unprepared for
trial. Supporting his argument that counsel was not prepared for
trial, Hattrich pointed to trial counsel’s pre-trial witness list,
which omitted Hattrich’s brother and misspelled the name of
Hattrich’s sister. Hattrich further identified trial counsel’s failure
to obtain “airline tickets demonstrating when Hattrich’s mother
was staying with him for months at a time when the sexual
abuse was allegedly occurring in Hattrich’s home.” Lastly, he
suggested that the timing of the plea—entered the day before
trial—established trial counsel’s “readily apparent” lack of
preparation for trial.
¶34 Considering these facts, the district court determined that
Hattrich had failed to demonstrate either that trial counsel was
unprepared for trial or that, even if trial counsel had been more
prepared, Hattrich would have insisted on proceeding to trial
rather than entering the no contest pleas. On appeal, Hattrich
simply maintains that trial counsel’s “failure to subpoena
witnesses, incomplete witness list, [and] unfounded exhibit list
20170158-CA 16 2019 UT App 142Hattrich v. State
all sustain Hattrich’s sworn petition averring that trial counsel,
who was unprepared to try the case, coerced the pleas.”
¶35 Hattrich offers no persuasive argument that he was
coerced into pleading guilty, nor does he explain why the district
court’s decision was erroneous. Instead, he simply provides
unsupported, conclusory statements to that effect. For instance,
he reiterates his primary complaint that the plea agreement
“should have barred the prosecution from asserting waiver and
other technical means of avoiding appellate review of Hattrich’s
claims” and asserts that “[t]his confirms the illusory nature of
the agreement trial counsel advised and coerced Hattrich to
accept.”
¶36 Moreover, Hattrich does not confront the district court’s
determination that his “claim of coercion is refuted by the
statements he made during the [trial court’s] colloquy,” through
which statements Hattrich “affirmed he entered the parties’ plea
agreement of his own free will.” Accordingly, this argument is
unavailing.
3. Incorrect Charging
¶37 Hattrich contends that trial counsel performed deficiently
by not challenging two child-rape charges that he asserts should
have been charged as sodomy on a child. In doing so, he fails to
establish that the underlying facts could not support child-rape
charges. “[W]here there is no legal basis to support the argument
or action that the defendant claims trial counsel should have
taken, it is pointless to inquire whether the factual record
supports the defendant’s claim that counsel’s alleged failure
constituted ineffective assistance.” State v. Litherland, 2000 UT 76,
¶ 15 n.5, 12 P.3d 92; see also State v. Kelley, 2000 UT 41, ¶ 26, 1
P.3d 546 (“Failure to raise futile objections does not constitute
ineffective assistance of counsel.”).
¶38 The Utah Code states that “any touching, however slight,
is sufficient to constitute the relevant element of the offense” of
20170158-CA 17 2019 UT App 142Hattrich v. State
“rape of a child.” Utah Code Ann. § 76-5-407(b)(iv) (LexisNexis
2017). Hattrich does not address this provision or discuss why
his action of having anal sex twice with one victim could not
support these charges under the statute. To the district court,
Hattrich’s entire argument consisted of two bare assertions: (1)
that the definition of sexual intercourse in the child-rape statute
should be limited to “vaginal intercourse” and (2) that “specific
statutes control over more general ones.” With respect to the first
assertion, Hattrich relied on Pennsylvania case law and made no
attempt to explain why Utah’s child-rape statute should employ
such a definition. With respect to the second, he made no
attempt to either discuss the parameters of the cited principle or
apply it to the statutes at hand. The district court rejected this
discussion as inadequate to demonstrate that Hattrich’s
proposed challenge to the criminal charges would have been
successful if they had been raised in the underlying proceedings.
On appeal, Hattrich engages in even less discussion and simply
proceeds on the assumption that there was a legitimate basis for
counsel to have challenged the child-rape charges. Because no
such basis has been established, Hattrich cannot demonstrate
that his counsel performed deficiently.
4. Scope of the Search
¶39 Completing a search of Hattrich’s home, police
discovered a fictional manuscript written by Hattrich. The story
incorporates a pedophilic character who grooms and sexually
exploits young boys. Hattrich argues that trial counsel
performed deficiently by failing to move to suppress this
manuscript because this particular item of evidence was not
specifically described in the search warrant and fell outside the
scope of the warrant authorizing the search. Hattrich explained
to the district court that the manuscript, at least hypothetically,
“was powerful prejudicial evidence that would have been
devastating at trial, as it delved into the mind of the pedophilic
character, and undoubtedly would have led the jurors to convict
Hattrich out of subconscious prejudice and on a theory of
propensity.” In its motion for summary judgment, the State
20170158-CA 18 2019 UT App 142Hattrich v. State
suggested several possible reasons why Hattrich’s trial counsel
might not seek to suppress the manuscript while the parties
were engaged in plea negotiations.
¶40 In considering this claim of ineffectiveness, the district
court determined that Hattrich’s support for this claim contained
little more than “conclusory statements” and that Hattrich had
therefore failed to establish that counsel’s performance, even if
objectively deficient, was prejudicial. On appeal, Hattrich fares
no better. While he suggests that the State’s evidence “was
vulnerable to attack in multiple ways” and that he was
interested in going to trial, he does not explain why, under the
circumstances, counsel not filing a motion to suppress
constituted deficient performance. He does not address the
State’s suggestions that counsel’s decision may have been a
tactical one. See State v. Goode, 2012 UT App 285, ¶ 6, 288 P.3d
306 (stating that an appellate court reviewing a claim of
ineffective assistance of counsel employs “a strong presumption
that counsel was competent and effective, giving trial counsel
wide latitude in making tactical decisions, and we will not
question such decisions unless there is no reasonable basis
supporting them” (quotation simplified)). We accordingly affirm
the district court’s grant of summary judgment on this claim.
5. Warrantless Arrest
¶41 Hattrich contends that trial counsel provided ineffective
assistance by not challenging Hattrich’s warrantless arrest.
Hattrich raised this issue in his direct appeal. See State v. Hattrich,
2013 UT App 177, ¶ 11, 317 P.3d 433. But because the issue was
unpreserved in the trial court, and because the exceptional
circumstances exception to preservation did not apply, this court
declined to address the merits of Hattrich’s claim. Id. ¶ 46.
¶42 In his motion for summary judgment, Hattrich argued
that his trial counsel should have raised this issue in the trial
court. He contended that he was “prejudiced by counsel’s failure
to raise this issue in the trial court and by appellate counsel’s
20170158-CA 19 2019 UT App 142Hattrich v. State
failure to assert his right to raise the claim under the plea
bargain, or under the doctrine of ineffective assistance of trial
counsel.” The district court determined that Hattrich failed to
show, “with specific facts or adequate legal analysis,” either that
counsel’s performance was deficient or that the lack of a
challenge to the warrantless arrest was prejudicial to his defense.
¶43 The State observes, and we agree, that Hattrich again has
not demonstrated how a challenge to his warrantless arrest
would have been meritorious. Absent such a showing, Hattrich
cannot establish that either trial or appellate counsel’s
performance was deficient. See State v. Gallegos, 2018 UT App
192, ¶ 31, 437 P.3d 388 (“When challenging trial counsel’s failure
to make a motion, part of a defendant’s burden under the
deficient performance prong is to show that the motion would
have been successful had it been made.”), cert. granted, 437 P.3d
1248 (Utah 2019).
¶44 On appeal, Hattrich does not address the bases for the
district court’s conclusions. The result is to “shift the burden of
research and argument to the reviewing court,” which is not our
role. State v. Thomas, 961 P.2d 299, 305 (Utah 1998). We
accordingly affirm the district court on this claim.
6. Advising Hattrich to Plead No Contest
¶45 Hattrich contends that trial counsel performed deficiently
by advising him to plead no contest and to agree to the terms of
the plea agreement. The plea agreement, he argues, could not
bind the appellate court to ignore preservation and adequate
briefing requirements in his direct appeal. Because, he contends,
trial counsel “should not have advised Hattrich to enter into the
illegal plea bargain,” counsel’s performance was objectively
deficient. He relatedly argues that appellate counsel performed
deficiently “in failing to raise the prosecution’s breach of the plea
agreement on appeal.” In making these arguments, Hattrich
relies on the theory that, in his view, the terms of the no contest
plea agreement were illegal and illusory.
20170158-CA 20 2019 UT App 142Hattrich v. State
¶46 We have already concluded that the plea agreement
allowed Hattrich to appeal, in the ordinary course, issues that
were raised or litigated in his criminal case but that it did not
purport to excuse him from generally applicable preservation
and briefing requirements. See supra ¶ 19. Consequently,
Hattrich cannot establish that counsel was ineffective for
advising him to agree to the plea agreement’s terms. Likewise,
he cannot show that appellate counsel performed deficiently
when counsel did not assert that the State had breached the
agreement by arguing that Hattrich had failed to preserve
certain issues and failed to adequately brief certain issues. See
State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile
objections does not constitute ineffective assistance of counsel.”).
For this reason we affirm the district court’s grant of summary
judgment to the State.
7. Motion to Change Venue
¶47 Hattrich’s trial counsel filed a motion in the trial court
requesting a change of venue. See generally Utah R. Crim. P. 29(c)
(authorizing a party to request that the case be transferred
to another county “if a party believes that a fair and impartial
trial cannot be had in the court location or in the county
where the action is pending”). 10 He asserted that Hattrich is a
resident of a small community and that the victims “are
all former residents of the same community.” He argued that
the twenty-seven charges Hattrich faced, twenty-four of which
were first-degree felonies, suggested certain conviction “in a
small, rural area where everyone knows everyone else.”
In addition, counsel highlighted the egregiousness of the
charges, noted some publicity in local newspapers about
10. The change of venue provision in rule 29 of the Utah Rules of
Criminal Procedure has been amended since Hattrich’s trial
counsel filed his motion in 2010. We cite the current version,
however, because the provision’s changes are relatively minor
and because we do not engage in any analysis of the rule.
20170158-CA 21 2019 UT App 142Hattrich v. State
Hattrich’s case, and ultimately questioned whether the court
could seat a fair and impartial jury. The trial court denied the
motion, Hattrich raised this issue in his direct appeal, and this
court affirmed. See State v. Hattrich, 2013 UT App 177, ¶¶ 12–18,
317 P.3d 433.
¶48 Hattrich contends that his trial and appellate
counsel presented inaccurate facts supporting the motion to
change venue. He asserts that two of the victims were still
living in the same small town and sparsely populated county
as Hattrich and had not moved away and grown into adulthood
as his trial and appellate counsel suggested. He further asserts
that his counsel “should have argued well-established
law recognizing that when heinous crimes are committed in
small communities, the impact on the public consciousness is
greater and lasts longer, and the likelihood is that more people
will have been affected by the crimes.” See State v. James, 767 P.2d
549, 553–54 (Utah 1989) (“In a small town, a major crime is likely
to be embedded in the public consciousness with greater effect
and for a longer time than it would be in a large, metropolitan
area.”).
¶49 The State counters, and we agree, that Hattrich’s counsel
“litigated venue under the correct governing authority and gave
the trial and appellate courts ample sense of Hattrich’s close
contact with the ‘tight-knit’ community . . . , the seriousness of
his charges, and the publicity surrounding the charges.” Counsel
argued that the factors identified in James warranted a change in
venue. See id. at 552. Applying those factors to the facts of
Hattrich’s case, this court disagreed. Hattrich, 2013 UT App 177,
¶ 14.
¶50 It is certainly possible that Hattrich’s counsel could have
offered additional facts to support the change of venue motion
and in the brief on appeal, and perhaps even offered different
arguments on the point. However, Hattrich does not establish
that but for counsel’s failure to incorporate additional facts in the
motion, Hattrich would have rejected the plea agreement and
20170158-CA 22 2019 UT App 142Hattrich v. State
insisted on a trial. 11 Because he does not establish that he was
prejudiced by any error of counsel, his claim of ineffective
assistance of counsel is unsuccessful. See State v. Clark, 2004 UT
25, ¶ 6, 89 P.3d 162 (“To prove ineffective assistance of counsel,
defendant must show: (1) that counsel’s performance was
objectively deficient, and (2) a reasonable probability exists that
but for the deficient conduct defendant would have obtained a
more favorable outcome . . . .”). We accordingly affirm the
district court’s grant of summary judgment to the State on this
claim.
8. Preliminary Hearing Issues
¶51 Hattrich contends that trial counsel should have renewed
a motion to continue the preliminary hearing and should have
argued that Hattrich had a constitutional right to examine an
absent witness. The district court concluded that Hattrich’s latter
contention—his confrontation-clause argument—under the state
and federal constitutions was raised and disposed of in
Hattrich’s direct appeal. See Hattrich, 2013 UT App 177, ¶¶ 29–
32. Consequently, his confrontation-clause argument was
precluded under the PCRA. See Utah Code Ann. § 78B-9-
106(1)(b) (LexisNexis 2018). Hattrich does not address this aspect
of the district court’s decision.
¶52 As to Hattrich’s first contention—that counsel should
have renewed a motion to continue the preliminary hearing—
the district court concluded that he failed to establish either
deficient performance or prejudice. On appeal, Hattrich
generally asserts that “counsel’s deficient performance was
11. To the extent that Hattrich wishes to revisit our decision
affirming the trial court’s denial of the venue motion, that relief
is not available through the PCRA. See Utah Code Ann.
§ 78B‑9‑106(1)(b) (LexisNexis 2018) (“A person is not eligible for
relief under this chapter upon any ground that . . . was raised or
addressed at trial or on appeal.”).
20170158-CA 23 2019 UT App 142Hattrich v. State
procedurally prejudicial” and that appellate counsel “should
have raised these claims on direct appeal, utilizing [rule] 23B” of
the Utah Rules of Appellate Procedure. Without more, Hattrich
cannot carry his burden of persuasion. Although mentioning
prejudice, he does not establish it. He does not show, for
instance, that but for counsel’s failure to renew the motion to
continue, Hattrich “would have obtained a more favorable
outcome.” See Clark, 2004 UT 25, ¶ 6. We are therefore
unpersuaded.
III. The Motion for Discovery
¶53 Finally, Hattrich argues that the district court erred when
it denied his request for discovery. Rule 65C of the Utah Rules of
Civil Procedure governs petitions filed under the PCRA. See
generally Utah Code Ann. §§ 78B-9-101 to -405 (LexisNexis 2018).
Discovery in these proceedings is not automatic, but is
authorized “upon motion of a party and a determination that
there is good cause to believe that discovery is necessary to
provide a party with evidence that is likely to be admissible at
an evidentiary hearing.” Utah R. Civ. P. 65C(n)(1).
¶54 Both Hattrich and the State moved for summary
judgment on Hattrich’s petition for post-conviction relief, each
asserting that there were no genuine disputes as to any material
facts. See id. R. 56(a). As the briefing proceeded on his motion for
summary judgment, Hattrich filed a separate motion pursuant to
rule 65C(n) requesting permission to engage in discovery related
to his Frye claim. See supra Part II.B.1. Hattrich specifically
sought the details of the plea negotiations between trial counsel
and the prosecutor and the details of a plea offer that he alleged
trial counsel failed to fully communicate. Hattrich’s counsel
noted she did not believe these factual details were necessary to
state the Frye claim but requested the discovery nonetheless.
¶55 Importantly, while requesting authorization to engage in
discovery, Hattrich did not seek to continue the summary
judgment proceedings on the basis that he could not “present
20170158-CA 24 2019 UT App 142Hattrich v. State
facts essential to justify [his] opposition.” See Utah R. Civ. P.
56(d) (authorizing a court to defer consideration of a summary
judgment motion to allow further discovery necessary to justify
a nonmoving party’s opposition). Accordingly, we agree with
the State that under the circumstances, the district court did not
abuse its discretion in denying Hattrich’s request for discovery
under rule 65C(n).
CONCLUSION
¶56 The district court correctly granted summary judgment to
the State and denied Hattrich’s petition for post-conviction relief.
Hattrich knowingly and voluntarily entered into his no contest
pleas. The State did not breach the plea agreement by arguing in
Hattrich’s direct appeal that Hattrich had not preserved certain
issues in the trial court and that he had inadequately briefed
certain issues. Hattrich has not established that he received
constitutionally ineffective assistance of counsel. And the district
court did not exceed its discretion when it denied Hattrich’s
motion for discovery. Accordingly, we affirm.
20170158-CA 25 2019 UT App 142