State v. Elkface , 2023 UT App 24 ( 2023 )

2023 UT App 24THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
BEVERLY ANN ELKFACE,
Appellant.
Opinion
No. 20210550-CA
Filed March 9, 2023
Seventh District Court, Price Department
The Honorable Jeremiah Humes
No. 211700006
Wendy Brown, Attorney for Appellant
Sean D. Reyes and Natalie M. Edmundson,
Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 As part of a global plea agreement, Beverly Ann Elkface
entered guilty pleas in three criminal cases against her. A
presentence investigation report (PSI) was prepared and
submitted to the district court. At the sentencing hearing, the
court imposed prison sentences in each case consistent with the
upward departure recommendation in the PSI. Elkface now
appeals her sentences on the ground that her defense counsel
(Counsel) rendered ineffective assistance for failing to seek the
disqualification of the sentencing judge. For the reasons set forth
herein, we agree with Elkface and accordingly vacate her
sentences and remand the matter to the district court for
resentencing.
State v. Elkface
BACKGROUND
¶2 While Elkface was serving probation for two criminal cases
(the probation cases), the State filed five new criminal cases
against her. In March 2021, Elkface appeared before Judge Humes
for a hearing at which Judge Humes advised her that he “may be
disqualified from presiding in this matter, based on his former
office’s involvement in the case.” Judge Humes’s involvement
with Elkface began in 2018 when, prior to his appointment to the
bench, he served as one of the line prosecutors in the probation
cases.1 In this capacity, he actively participated in the proceedings
and sought to have Elkface’s probation revoked. To this end, he
filed numerous adversarial pleadings against Elkface—six in one
case alone—and appeared in court to argue that Elkface should be
held to be in violation of her probation and sanctioned. Elkface
was not advised of the full extent of the judge’s involvement in
the probation cases, however, and without any apparent
discussion with Counsel, she “waive[d] any conflict and agree[d]
to Judge Humes presiding.”
¶3 The following month, Elkface and the State appeared
before Judge Humes to present a “global resolution” for the seven
pending cases. Pursuant to the agreement, Elkface agreed to plead
guilty in three of the new cases, and the State agreed to dismiss
two of the new cases. Because Elkface had not yet completed
probation in the probation cases, both parties also agreed to
“track” the probation cases to the sentencing hearing, meaning
the court would review Elkface’s progress in those cases at the
sentencing hearing and would, at that hearing, make a
determination as to whether Elkface had violated her probation in
those cases.
1. Judge Humes also served as a prosecutor in at least two
additional cases against Elkface.
20210550-CA 2 2023 UT App 24State v. Elkface
¶4 Thereafter, Adult Probation and Parole (AP&P) prepared a
PSI for Elkface that included a sentencing matrix that was
consistent with the Utah Sentencing Guidelines, which placed
Elkface into the “presumptive probation” category and
recommended supervised probation and “0-90 days [of] jail with
a mid-point of 45 days.” Based on Elkface’s history—including
her previous violations in the probation cases (that Judge Humes
had helped litigate) and her “significant drug abuse problem”—
AP&P disagreed with the guidelines’ recommendation and
instead recommended that Elkface be denied probation and
sentenced to prison.
¶5 In August 2021, Elkface appeared before Judge Humes for
sentencing. Citing her “refusal to stay clean and stay out of
trouble,” the State requested that Elkface be sentenced to prison
consistent with AP&P’s recommendation. Conversely, Counsel
urged Judge Humes to follow the sentencing guidelines and place
Elkface on probation. In support, Counsel argued that “almost
all” Elkface’s probation violations were related to substance
abuse, which Elkface was working to address through both
treatment and therapy. Moreover, Elkface had a job, had
disassociated from individuals who were a bad influence on her,
and was “working very hard to stay out of trouble and to better
herself” because she was pregnant.
¶6 At the close of the hearing, Judge Humes imposed prison
sentences in each of the three cases to which Elkface pleaded
guilty. The sentences imposed were consistent with AP&P’s
recommendation. Judge Humes explained that although the cases
had been “difficult . . . to evaluate,” ultimately, Elkface’s inability
to succeed on probation in the probation cases indicated she
would “require more intensive supervision” to succeed. Then, at
the State’s request, Judge Humes closed the probation cases and
adjudicated them as unsuccessful.
20210550-CA 3 2023 UT App 24State v. Elkface
ISSUE AND STANDARD OF REVIEW
¶7 Elkface now appeals her prison sentences, arguing that
Counsel rendered constitutionally ineffective assistance by failing
to seek disqualification of Judge Humes.2 “When a claim of
ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Beckering, 2015
UT App 53, ¶ 18, 346 P.3d 672 (quotation simplified).
ANALYSIS
¶8 Elkface argues that Counsel was ineffective for “failing to
insist on [Judge Humes’s] disqualification” because Judge Humes
“previously prosecuted her in numerous cases, including in some
of the cases before the court at the sentencing hearing.” To prevail
on this claim, Elkface must show (1) that Counsel’s performance
2. Elkface also contends Counsel was ineffective for failing to
argue that Elkface’s pregnancy was a mitigating factor warranting
probation. At oral argument before this court, the State argued
that this issue is moot. According to the State, the main argument
Elkface raised in her briefs on this point concerns the dangers of
being incarcerated while pregnant. The State contends that
because Elkface has been paroled from prison and is no longer
pregnant, a new sentencing hearing would not provide Elkface
her requested relief inasmuch as she can no longer be sentenced
to prison while pregnant. We disagree with the State’s position
that this argument is moot. Although Elkface is no longer
pregnant, she is still on parole, and the difference between being
on parole and being on probation is significant in various ways,
including—in this case—the shorter time duration of the sentence
associated with probation. Nevertheless, we need not reach the
merits of this argument because we vacate Elkface’s sentences and
remand her case for resentencing on other grounds.
20210550-CA 4 2023 UT App 24State v. Elkface
was “deficient” and (2) that this “deficient performance
prejudiced the defense.” See Strickland v. Washington, 466 U.S. 668,
687 (1984).
¶9 Rule 2.11(A) of the Utah Code of Judicial Conduct3
provides that “[a] judge shall disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably be
questioned.” Utah Code Jud. Conduct R. 2.11(A). Circumstances
where this rule applies include, as relevant here, where the judge
has “a personal bias or prejudice concerning a party or a party’s
lawyer, or personal knowledge of facts that are in dispute in the
proceeding,” id. R. 2.11(A)(1), or where the judge “served as a
lawyer in the matter in controversy,” id. R. 2.11(A)(6)(a).4
¶10 A judge subject to disqualification, “other than for bias or
prejudice,” may ask the parties to waive disqualification. Id. R.
2.11(D). For the waiver to be valid, however, the judge must
(1) “disclose on the record the basis of the judge’s
3. “The Rules in this Code have been formulated to address the
ethical obligations of any person who serves a judicial function
and are premised upon the supposition that a uniform system of
ethical principles should apply to all those authorized to perform
judicial functions.” Utah Code Jud. Conduct, Applicability cmt. 1.
Full-time judges are subject to all provisions of the Code, whereas
distinct classes of part-time judges are subject to only some
provisions. Id. All judges in the State of Utah, however, are subject
to disqualification under rule 2.11.
4. We note that the comments to rule 2.11 make clear that “a judge
is disqualified whenever the judge’s impartiality might
reasonably be questioned, regardless of whether any of the
specific provisions of paragraphs (A)(1) through (6) apply.” Id. R.
2.11 cmt. 1. A previous appearance as an attorney in a matter
before the court constitutes a circumstance in which a judge’s
impartiality might reasonably be questioned.
20210550-CA 5 2023 UT App 24State v. Elkface
disqualification” and (2) “ask the parties and their lawyers to
consider, outside the presence of the judge . . . , whether to waive
disqualification.” Id. (emphasis added). Then, following the
required disclosure, if “the parties and lawyers agree, without
participation by the judge . . . , that the judge should not be
disqualified, the judge may participate in the proceeding.” Id.¶11 Applying rule 2.11 to the facts of this case, Elkface contends
that Judge Humes should have been disqualified under
provisions (A)(1) and (A)(6)(a) of the rule, and that it was
therefore unreasonable for Counsel not to either file a motion
requesting that Judge Humes disqualify himself or to insist that
Judge Humes follow the procedure in provision (D) to obtain a
valid waiver.5 We agree with Elkface on both fronts.
¶12 First, as the former prosecutor in multiple cases against
Elkface, it is readily apparent that Judge Humes was subject to
disqualification under provisions (A)(1) and (A)(6)(a) due to his
prior involvement with Elkface. Judge Humes had “personal
knowledge of facts . . . in dispute in the proceeding,” see id. R.
2.11(A)(1), in particular regarding the various ways in which
Elkface had allegedly violated her probation in the probation
cases, and he also “served as a lawyer in the matter in
controversy,” see id. R. 2.11(A)(6)(a). At the sentencing hearing,
both sides engaged in extensive discussion about Elkface’s
history, including her substance abuse issues, prior cases, and
5. As part of this argument, Elkface contends that not only was
Judge Humes subject to disqualification under rule 2.11(A)(1), but
his disqualification should have been mandatory and was not
waivable under rule 2.11(D). We need not decide on the merits,
however, whether the Code mandated Judge Humes’s
disqualification or whether the conflict was not actually waivable
because, at the very least, we agree with Elkface that Judge Humes
was subject to disqualification, and he did not follow the proper
procedure to waive disqualification.
20210550-CA 6 2023 UT App 24State v. Elkface
compliance with probation in previous cases. Judge Humes,
however, was already privy to some of this information. While
working as a prosecutor, he appeared in several of Elkface’s
matters, including the probation cases that were discussed at the
sentencing hearing and upon which he heavily relied in making
his sentencing decision. And in his capacity as a prosecutor, Judge
Humes personally sought to have Elkface’s probation revoked in
the probation cases, filing at least six adversarial pleadings
against Elkface in one case alone.
¶13 Second, because Judge Humes was subject to
disqualification, Counsel performed deficiently by failing to
either insist that Judge Humes disqualify himself or to insist that
the court obtain a valid waiver. In determining whether Counsel
performed deficiently, we examine whether, “considering all the
circumstances, counsel’s acts or omissions were objectively
unreasonable.” See State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350.
Here, that means we must ask whether Judge Humes’s
disqualification from the case “was sufficiently important under
the circumstances” that Counsel’s failure to insist on
disqualification “fell below an objective standard of
reasonableness.” See State v. Ray, 2020 UT 12, ¶ 36, 469 P.3d 871.
And under the circumstances here, we agree with Elkface that it
did.6
6. Citing this court’s recent decision in State v. Grover, 2022 UT
App 48, 509 P.3d 223, the State argues that “[r]easonable counsel”
could conclude that neither subsection (A)(1) nor subsection
(A)(6)(a) of rule 2.11 “compelled [Judge Humes’s]
disqualification” and therefore it is unlikely that a motion to
disqualify Judge Humes would have been granted. But Grover is
factually distinguishable.
In Grover, the defendant was sentenced by a judge who had
previously worked as the county attorney when the defendant
(continued…)
20210550-CA 7 2023 UT App 24State v. Elkface
was prosecuted by other prosecutors in that office for a different
offense. Id. ¶ 32. In imposing a sentence in the new case, the
sentencing judge took the defendant’s criminal history into
consideration, including his prior conviction. Id. The defendant
appealed his sentence, arguing, among other things, that the
sentencing judge was “required to recuse himself” under rule
2.11(A) of the Utah Code of Judicial Conduct because he served
as the county attorney when the defendant was prosecuted in the
earlier case. Id. The defendant did not preserve this specific
argument for appeal, however, and therefore was required to
argue that the sentencing judge “plainly erred by not recusing
himself sua sponte.” Id.
Here, Judge Humes was the actual prosecutor on multiple
cases against Elkface, some of which were still at issue in the
sentencing hearing. In that capacity, he filed several adversarial
pleadings against her and sought revocation of her probation.
This level of involvement stands in stark contrast with that of the
sentencing judge in Grover. There, the judge merely served as the
county attorney when the defendant was prosecuted years earlier
for an entirely different offense. The judge had no direct
involvement on the previous case.
And perhaps more importantly, Grover was decided under
the plain error doctrine, and the success of the defendant’s claim
therefore hinged on whether the sentencing judge “committed an
obvious error” in failing to recuse himself under rule 2.11(A). Id.
¶ 49 (quotation simplified). In concluding the sentencing judge
did not commit an obvious error, this court explained that an error
is obvious only if “the law governing the error is clear or plainly
settled.” Id. (quotation simplified). Consequently, because the
defendant “ha[d] not pointed to any law that clearly or plainly
establishes that rule 2.11(A) requires recusal if a sentencing judge
served as the county attorney when a defendant was prosecuted
for an entirely different offense,” he could not establish plain
error. Id. ¶ 50. This analysis is inapposite in this case, because the
(continued…)
20210550-CA 8 2023 UT App 24State v. Elkface
¶14 As an initial matter, the issue before Judge Humes was the
appropriate sentence to impose on Elkface in the three cases to
which she pleaded guilty. And in making this decision, the main
aggravating factor that Judge Humes considered was Elkface’s
prior performance in the probation cases. Where Judge Humes
was personally involved in the State’s effort to seek revocation of
Elkface’s probation in these cases, it was objectively unreasonable
for Counsel to conclude that Elkface would be better served by
Judge Humes continuing to preside over her case rather than a
new judge who had not been personally invested in seeking
revocation of her probation.
¶15 Alternatively, Counsel performed deficiently by failing to
request that Judge Humes follow the procedure set forth in rule
2.11(D) to obtain a valid waiver. Counsel’s failures in asking the
court to adhere to the waiver procedure are twofold. First,
Counsel did not ensure that Judge Humes adequately disclosed
the basis of his disqualification. The minute entry from the waiver
hearing indicates that Judge Humes informed Elkface that he
“may be disqualified from presiding in this matter” because of
“his former office’s involvement in the case.” This disclosure was
far from complete, however, as it did not inform Elkface that
Judge Humes had served as the prosecutor on the probation cases
or that he had personally filed multiple adversarial pleadings in
those probation matters. And Counsel should have been aware of
Judge Humes’s previous involvement in the probation cases,
given that Counsel was Elkface’s counsel of record in those cases.
Second, following Judge Humes’s disclosure, Counsel did not ask
that the parties be permitted to discuss, outside Judge Humes’s
question of whether Counsel was ineffective requires inquiry into
whether Counsel acted reasonably under the specific
circumstances of the case, and not whether there is settled law on
the subject. See State v. Silva, 2019 UT 36, ¶ 19, 456 P.3d 718 (stating
that counsel is not “categorically excused from failure to raise an
argument not supported by existing legal precedent”).
20210550-CA 9 2023 UT App 24State v. Elkface
presence, whether to waive disqualification. Instead, the record
merely states, “[Elkface] waives any conflict and agrees to Judge
Humes presiding over this matter. The State also waives the
conflict.” There is no indication whatsoever that Elkface was
given an adequate opportunity outside the judge’s presence to
consider the potential impact flowing from Judge Humes’s
previous dealings with her.
¶16 Having concluded that Counsel rendered deficient
performance, we next analyze whether that deficient performance
was prejudicial. “Strickland’s prejudice prong requires a court to
consider the totality of the evidence before the judge or jury and
then ask if the defendant has met the burden of showing that the
decision reached would reasonably likely have been different
absent the errors.” State v. Gallegos, 2020 UT 19, ¶ 33, 463 P.3d 641(quotation simplified). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. ¶ 63
(quotation simplified). Here, Elkface argues that had Judge
Humes been disqualified from the case and a new judge assigned,
“there is a reasonable likelihood that the factors weighing in favor
of probation would have won out.” We agree.
¶17 Under our state sentencing structure, trial judges have
exclusive discretionary authority to determine whether a
defendant will be sent to prison or to serve probation. “Hence, it
is absolutely essential that a judge be and remain impartial prior
to the commencement of sentencing proceedings when the
positions of the respective parties will be presented and
considered by the court.” Thompson v. State, 990 So. 2d 482, 491
(Fla. 2008). On the record before us, we acknowledge Elkface’s
point that, having served as a prosecutor on multiple cases against
her, including the probation cases, Judge Humes’s sentencing
decision was at least to some extent informed by his personal
knowledge about her. During the time Judge Humes served as the
prosecutor, Elkface faced problems complying with her
probation, struggled with substance abuse, and was charged with
20210550-CA 10 2023 UT App 24State v. Elkface
additional crimes. Based on human nature, it is hard to imagine
that any judge would have the ability to disregard a preconceived
negative view of Elkface’s past. Moreover, the evidence presented
at the sentencing hearing showed that Elkface had good reason to
argue for probation rather than a prison sentence. First, she was
pregnant and due to deliver within a few months of sentencing.
Second, the sentencing matrix recommended forty-five days in
jail followed by probation. Third, the evidence presented at the
sentencing hearing demonstrated that Elkface was making efforts
toward improving her behavior—she had made recent and
consistent efforts at recovery, she was employed, she had ended
detrimental personal relationships, and she had remained sober
since the latest charges against her. Thus, Elkface has
demonstrated she was prejudiced by Counsel’s deficient
performance because, considering the totality of the evidence,
there is a reasonable probability that a judge who was not familiar
with Elkface’s past would have sentenced her differently. Stated
another way, our confidence in the outcome of the sentencing
hearing is undermined by Counsel’s failure to seek
disqualification or at least require the judge to engage in the
process to obtain a valid waiver.
CONCLUSION
¶18 Counsel performed deficiently by failing to seek Judge
Humes’s disqualification from the case under rule 2.11 of the Utah
Code of Judicial Conduct, and this deficiency prejudiced Elkface
because Counsel’s failure undermines our confidence in the
outcome of the sentencing proceeding. Accordingly, we vacate
Elkface’s sentences and remand the matter for further
proceedings.
20210550-CA 11 2023 UT App 24