State v. Hurwitz , 2021 UT App 112 ( 2021 )

2021 UT App 112THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DYLAN HURWITZ,
Appellant.
Opinion
No. 20200657-CA
Filed October 28, 2021
Fourth District Court, Provo Department
The Honorable Thomas Low
No. 191403833
Emily Adams, Attorney for Appellant
Sean D. Reyes and Emily Sopp,
Attorneys for Appellee
JUDGE RYAN M. Harris authored this Opinion, in which JUDGES
GREGORY K. ORME and DAVID N. MORTENSEN concurred.
HARRIS, Judge:
{1 During the COVID-19 pandemic, Utah courts have been
required to conduct most of their hearings and proceedings
remotely, through online videoconferencing platforms. In this
case, the district court conducted Dylan Hurwitz’s sentencing
hearing via videoconference, with the participants dialing in
from several different locations. Hurwitz participated from the
county jail, where he was located in a room that did not lend
itself well to a clear audio connection. The central question in
this case is whether Hurwitz’s personal statement, offered
remotely from that room at the jail, could adequately be heard
by the district court and the other participants at the hearing.
State v. Hurwitz
{2 At the conclusion of the sentencing hearing, the district
court sentenced Hurwitz to prison on seven felonies —including
burglary and theft—to which he had pled guilty. Hurwitz now
appeals that sentence, claiming that he was not afforded an
adequate opportunity to allocute; in particular, he asserts that
his sentence was therefore illegal under rule 22(e) of the Utah
Rules of Criminal Procedure, and that his attorney rendered
ineffective assistance by not objecting to the poor audio quality
of his statement. After listening to the audio recording of the
sentencing hearing—which was made part of the appellate
record in this case—we conclude that Hurwitz’s statement was
sufficiently intelligible, and largely on that basis we reject
Hurwitz’s arguments and affirm his sentence.
BACKGROUND
13 Over the course of the summer of 2019, Hurwitz and a
friend broke into and stole from several local small businesses.
They were eventually caught, but not before they caused nearly
$200,000 worth of damage—both in terms of stolen items and
property damage—to the businesses. The State charged Hurwitz
with more than twenty crimes in five separate cases; the charges
ranged from aggravated burglary to criminal mischief. Hurwitz
entered into a plea agreement with the State: he agreed to plead
guilty to seven felonies—including three second-degree counts
of theft and three third-degree counts of burglary—and the State
agreed to dismiss the remaining charges. After Hurwitz entered
his pleas, the court scheduled a sentencing hearing.
14 Over the next month, Adult Probation and Parole (AP&P)
prepared a presentence report (PSR) for the court’s benefit at
sentencing. Included in the PSR was a personal statement from
Hurwitz, in which he expressed that he felt “terrible” about the
crimes he committed, that he was newly motivated to change his
life for the benefit of his fiancée and young daughter, and that he
wanted to remain out of custody and on probation so that he
20200657-CA 2 2021 UT App 112State v. Hurwitz
could begin to pay restitution to the burglary and theft victims.
AP&P recommended that Hurwitz be afforded the opportunity
for probation, rather than be sent to prison, contingent on
Hurwitz serving a short jail sentence and paying restitution.
{5 The sentencing hearing was not held in person because of
health concerns related to the worldwide COVID-19 pandemic.
Instead, the district court conducted the sentencing hearing over
an online videoconferencing platform. The court conducted the
hearing from chambers, and all the other participants joined the
hearing via video from other locations. Hurwitz participated in
the hearing from a room at the county jail. No live court reporter
was present; instead, the hearing was recorded through
videoconferencing software, and that recording could later be
used to create a transcript of the proceedings, if necessary.
16 At the beginning of the hearing, Hurwitz’s attorney
(Counsel) addressed the court, and asked it to follow AP&P’s
recommendation, emphasizing Hurwitz’s remorse and_ his
eagerness to get to work so that he could start paying restitution.
Counsel also directed the court’s attention to several letters that
had been submitted in support of Hurwitz, from family and
friends, attesting to Hurwitz’s character and willingness to make
the situation right. The court then heard statements from
Hurwitz’s mother, father, and fiancée, all of whom likewise
spoke of Hurwitz’s remorse, willingness to change, and
willingness to pay restitution. Hurwitz’s fiancée, in particular,
emphasized that Hurwitz was willing to change his ways due to
the recent birth of their infant daughter.
17 The State then addressed the court, and asked it to
sentence Hurwitz to prison. The State noted that Hurwitz had
not been successful on probation in the past, and argued that
Hurwitz was “not a good candidate for probation” and was a
danger to society. The State also directed the court’s attention to
impact statements that had been submitted by three of the
burglary victims.
20200657-CA 3 2021 UT App 112State v. Hurwitz
18 Up until that point in the sentencing hearing, the audio
quality of the videoconference appears to have been excellent,
with all participants able to hear one another; the official
transcript of the proceeding up to that point contains no
indication of any audio difficulties.
19 The court then provided Hurwitz with the opportunity to
speak on his own behalf. But due to the conditions in the room at
the jail where Hurwitz was located—including perhaps the
distance between Hurwitz and the microphone—Hurwitz’s
words were apparently more difficult to hear and understand
than the other participants’ had been. At the outset of Hurwitz’s
remarks, the court noted that Hurwitz’s voice was “echoey” and
asked Hurwitz to move closer to the microphone if possible.
Indeed, the certified court transcriber later noted in the
transcript that she “was unable to hear and understand
[Hurwitz] due to a very muffled record.” Apparently due to the
transcriber’s inability to understand Hurwitz’s words on the
recording, the official transcript of Hurwitz’s statement is
riddled with the notation “(inaudible).”' As a result, when one
reviews the transcript of Hurwitz’s statement, it is difficult to
make out even the general gist of what he said to the court.
{10 But despite the “echoey” nature of Hurwitz’s remarks,
neither the court nor Counsel interrupted Hurwitz’s statement
(at least not after the initial request to move closer to the
microphone) and no participant in the hearing made any
objection, in the moment, that they could not hear and
understand Hurwitz’s remarks. Indeed, in comments made
immediately after Hurwitz finished speaking, the court gave
some indication that it was able to understand Hurwitz’s
presentation, commenting to Hurwitz that “it’s good to see that
you acknowledge that you’ve compromised a lot of people.”
1. Attached to this opinion as Addendum A is a copy of the
official transcript of Hurwitz’s statement.
20200657-CA 4 2021 UT App 112State v. Hurwitz
{11 At the conclusion of the hearing, the court sentenced
Hurwitz to prison, with some (but not all) of the sentences to run
consecutively to the others. In addition, the court imposed a fine
and ordered Hurwitz to pay restitution. The court
acknowledged that Hurwitz was said to be “a devoted father”
and “very intelligent and very employable,” but in the court’s
view the “offenses were characterized by extreme depravity”
and “excessive property damage,” and the victims sustained
“substantial psychological injuries.” The court observed that
previous incarceration had not “had any deterrent effect on
[Hurwitz’s] behavior,” and offered its view that prison was the
only option left “to incapacitate [Hurwitz] and make a period of
time for the community when we're safe from his actions and
he’s no longer terrorizing local businesses.” The court explained
that, among other things, the sentence was intended to “make
sure that there was a very heavy consequence for future
violations of parole,” and to allow parole officials to keep
Hurwitz incarcerated for “decades” if necessary.
412 After Hurwitz appealed his sentence and noted the
unintelligible transcript, the parties agreed to supplement the
appellate record by including the raw audio recording. We note
the unusual nature of this stipulation: in nearly all instances, the
official appellate record of what happened at a court hearing is
the certified court transcriber’s transcript of the proceedings, not
the audio recording of the proceedings. See Utah R. App. P.
11(a). But now that the audio recording has been made part of
the appellate record by stipulation, we have taken the
opportunity to listen to that recording, and (as discussed below)
we are able to understand nearly everything Hurwitz said
during his sentencing statement.? He expressed remorse to the
2. Attached to this opinion as Addendum B is a copy of a
reconstituted transcript of Hurwitz’s statement, based on our
own review of the audio recording.
20200657-CA 5 2021 UT App 112State v. Hurwitz
court for his actions and apologized vigorously to the victims of
his crimes. He discussed his family, including his infant
daughter, and indicated a desire to do better by his fiancée and
daughter, as well as a desire to work to support them financially.
He informed the court that he had already secured steady
employment and that he was able to begin paying restitution. He
also asked the court for mercy and to be afforded the
opportunity of probation once again.
ISSUES AND STANDARDS OF REVIEW
{13 Hurwitz appeals his sentence, and raises two separate
challenges for our review. First, he asserts that his right of
allocution was violated, and contends that he is therefore
entitled to a correction of sentence pursuant to rule 22 of the
Utah Rules of Criminal Procedure. Whether a sentence is subject
to correction under rule 22 presents a question of law “which we
review for correctness, granting no particular deference to the
conclusions of the [district] court.” See State v. Kelson, 2015 UT
App 91, I 5, 348 P.3d 373 (quotation simplified). Second,
Hurwitz claims that Counsel rendered constitutionally
ineffective assistance when he did not ensure that Hurwitz’s
statement was intelligible to the court during sentencing.°
3. In addition to his two main challenges, Hurwitz has also filed
a motion, pursuant to rule 23B of the Utah Rules of Appellate
Procedure, asking us to remand the case to the district court for
further findings necessary to a determination of his ineffective
assistance of counsel claim, including potential findings that his
statement at the sentencing hearing was unintelligible and that
Counsel was aware of this fact. But because we determine, based
on the existing supplemented record, that Hurwitz’s statement
was not unintelligible, we can readily adjudicate Hurwitz’s
ineffective assistance claim without the necessity of remand, and
on that basis we deny Hurwitz’s rule 23B motion.
20200657-CA 6 2021 UT App 112State v. Hurwitz
“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.” Layton City v.
Carr, 2014 UT App 227, J 6, 336 P.3d 587 (quotation simplified).
ANALYSIS
q14 Hurwitz first asserts that he is entitled to relief under rule
22(e) of the Utah Rules of Criminal Procedure because “his
sentence was imposed in an illegal manner when he was not able
to speak in an intelligible manner at his sentencing hearing.” In
support of his argument, Hurwitz cites cases decided under a
previous version of rule 22(e). See, e.g., State v. Udy, 2012 UT App
244, J 26, 286 P.3d 345 (explaining that, under the former version
of the rule, if a defendant’s right to allocution had been denied,
the sentence “was imposed in an illegal manner and [could] be
challenged at any time” (quotation simplified)). But under the
current version of rule 22(e), Hurwitz’s argument fails.
{15 As an initial matter, we reject the argument, implied in
Hurwitz’s briefing, that the previous version of rule 22(e) applies
to his case. The current version of the rule went into effect in
2017, well before Hurwitz (in 2019) committed the burglaries
and thefts that form the basis for his prosecution here. Courts
apply the version of the rule that was in effect at the time of the
event or occurrence being regulated, see State v. Clark, 2011 UT
23, I 11, 251 P.3d 829, and—regardless whether that occurrence
is the underlying crime or the imposition of sentence—that
principle of law dictates that the post-2017 version of rule 22(e)
applies here, see State v. Wilkerson, 2020 UT App 160, I] 23-24,
478 P.3d 1048 (refusing to apply the previous version of rule
22(e) in a case in which all relevant events occurred after the
2017 amendment).
20200657-CA 7 2021 UT App 112State v. Hurwitz
{16 Prior to the 2017 amendment, subsection (e) of rule 22—
which rule sets forth procedures governing the sentencing of
criminal defendants—contained “sweeping” language that
allowed a court to “correct an illegal sentence, or a sentence
imposed in an illegal manner, at any time.” See State v. Candedo,
2010 UT 32, { 9, 232 P.3d 1008 (quotation simplified); see also
Utah R. Crim. P. 22(e) (2016). In 2017, however, subsection (e)
was amended to remove that sweeping language and to replace
it “with more limiting provisions authorizing a court to ‘correct a
sentence’ only when the ‘sentence imposed’ met any one of six
specific conditions.” See Wilkerson, 2020 UT App 160, {| 24
(quoting Utah R. Crim. P. 22(e)(1) (2018)). Hurwitz’s claim fails
under the new version of the rule because his claim does not
implicate any of the six conditions.+*
4. The State asserts that Hurwitz’s rule 22(e) claim fails for a
second reason: because Hurwitz did not file a motion invoking
that rule with the district court. Under the State’s interpretation,
the new version of the rule—as opposed to the pre-2017 version,
which was considered a “limited exception to the preservation
doctrine” that allowed “an appellate court to vacate an illegal
sentence even if the legality of the sentence was never raised in
proceedings below,” see State v. Houston, 2015 UT 40, {J 18-20,
353 P.3d 55 (quotation simplified)—requires the matter to be first
raised before the district court in order to be properly presented
for appellate review. Given the new rule’s incorporation of a
requirement for the filing of “a motion” within a certain time
frame, we think the State has raised an interesting issue that
would be worth exploring in an appropriate case. See Utah R.
Crim. P. 22(e)(3). As far as we are aware, no Utah appellate court
has yet—at least not in a published opinion—squarely addressed
whether the new version of rule 22(e), like its predecessor,
includes an exception to the customary preservation rules. We
need not address this issue here, however, because Hurwitz’s
(continued...)
20200657-CA 8 2021 UT App 112State v. Hurwitz
{17 Hurwitz makes no argument under five of the six
subsections set forth in rule 22(e)(1). But Hurwitz argues that his
sentence falls within the condition outlined in subsection
(e)(1)(F), which requires a court to correct a sentence if it “omits
a condition required by statute.” As Hurwitz sees it, that
subsection applies here, because rule 22 affords him “an
opportunity to make a statement” at the sentencing hearing,
which opportunity he asserts was denied him due to the audio
difficulties experienced at the hearing. See Utah R. Crim. P. 22(a).
{18 As we explain below, Hurwitz was not denied an
opportunity to make a statement to the court at the sentencing
hearing. See infra Part II. But even if he had been, that denial
would not have resulted in his actual sentence—imposed after
the sentencing hearing—omitting any condition required by
statute or rule. As we interpret subsection (e)(1)(F), that
provision concerns the substance of the punishments to which a
defendant is sentenced (e.g., jail or prison time, fines, restitution,
conditions of probation), and not the procedures observed by a
court during a sentencing hearing. Hurwitz makes no assertion
that any provision of his actual sentence—e.g., his prison term,
his fine, or his restitution amount—omits any condition required
by statute. A defendant whose right to allocution was impaired
may, in appropriate cases, be entitled to relief under rule 22(a),
but not under subsection (e)(1)(F), which has no application
here.
{19 On this basis, we reject Hurwitz’s request for correction of
sentence under rule 22(e).
(...continued)
rule 22(e) claim fails on another ground. See State v. Kitches, 2021
UT App 24, { 28, 484 P.3d 415 (explaining that, in the interest of
judicial economy, “if the merits of a claim can easily be resolved
in favor of the party asserting that the claim was not preserved, we
readily may opt to do so without addressing preservation”).
20200657-CA 9 2021 UT App 112State v. Hurwitz
Il
q20 Next, Hurwitz claims that Counsel rendered ineffective
assistance by failing to ensure that Hurwitz’s sentencing
statement was audible and intelligible. We reject this argument,
because our analysis of the record reveals that the court was able
to hear Hurwitz well enough, and that Counsel did not perform
deficiently by failing to flag the issue during the hearing.
{21 To prove ineffective assistance of counsel, Hurwitz must
demonstrate both that Counsel’s “performance was deficient,”
and that this deficient performance prejudiced him. See Strickland
v. Washington, 466 U.S. 668, 687, 694 (1984). “Because both
prongs of the Strickland test must be met to establish ineffective
assistance of counsel,” we need not address both prongs if a
defendant’s claim clearly fails on one of them. See State v.
Fleming, 2019 UT App 181, {1 9, 454 P.3d 862 (quotation
simplified); see also Strickland, 466 U.S. at 697 (stating that “there
is no reason for a court deciding an ineffective assistance claim
... to address both components of the inquiry if the defendant
makes an insufficient showing on one”). In this case, Hurwitz
cannot demonstrate that Counsel rendered deficient
performance, and we therefore limit our discussion largely to
that component of the inquiry.°®
(22 In assessing whether Counsel’s performance was
deficient, we apply “the deficiency standard announced in
Strickland” and ask whether Counsel’s actions “fell below an
objective standard of reasonableness.” See State v. Scott, 2020 UT
5. We note, however, that Hurwitz’s ineffective assistance claim
is just as infirm on the prejudice prong as it is on the deficient
performance prong. Because the court was able to hear
Hurwitz’s statement well enough, there is no reasonable
likelihood that an objection by Counsel would have changed the
outcome of the sentencing hearing.
20200657-CA 10 2021 UT App 112State v. Hurwitz
13, { 31, 462 P.3d 350 (quotation simplified), see also Archuleta v.
Galetka, 2011 UT 73, { 38, 267 P.3d 232 (“To prevail, a defendant
must show .. . that his counsel rendered a deficient performance
in’ some demonstrable manner,” and _ that counsel’s
“performance fell below an objective standard of reasonable
professional judgment.” (quotation simplified)). In evaluating an
attorney’s performance, we give that attorney “wide latitude in
making tactical decisions and will not question such decisions
unless there is no reasonable basis supporting them.” State v.
Crosby, 927 P.2d 638, 644 (Utah 1996). Thus, for Hurwitz to meet
his burden of demonstrating deficient performance, he must
show that Counsel acted in an objectively unreasonable manner
by failing to alert the court to potential audio problems with
Hurwitz’s statement.
123 If Hurwitz could show—perhaps with the aid of an
unreadable transcript, combined with other evidence—that the
statement he offered to the sentencing court was in fact
unintelligible, he might well be able to demonstrate that Counsel
performed deficiently by not flagging the issue during the
hearing. A defendant’s right to allocution “is both a
constitutional and statutory right,” see State v. Kelson, 2015 UT
App 91, {I 6, 348 P.3d 373 (quotation simplified), and that right
includes the opportunity to “make a statement” to the court at
sentencing, see Utah R. Crim. P. 22(a); see also State v. Wanosik,
2003 UT 46, { 19, 79 P.3d 937 (stating that “one purpose of the
right to allocute is to provide the defendant personally with an
opportunity to address the court”). We agree with Hurwitz that
a right to make a statement to the court would be rendered
meaningless if the right could be satisfied by the defendant
offering a statement that the court was unable to hear or
understand.
724 But that is not what happened here. Notwithstanding the
state of the transcript, Hurwitz’s statement was audible and
intelligible to the court, and we know this because the actual
audio recording of the sentencing hearing was made part of the
20200657-CA 11 2021 UT App 112State v. Hurwitz
appellate record by stipulation. We have listened to the
recording of Hurwitz’s statement, and have ascertained for
ourselves that Hurwitz’s words were nowhere near as
unintelligible as the original transcript makes them out to be.
Compare Addendum B, with Addendum A. While the quality of
the audio is not ideal, nearly all of Hurwitz’s words are audible
and intelligible. One can hear Hurwitz express remorse for his
actions, and apologize to the victims of his crimes. One can hear
his discussion of his family, especially his fiancée and infant
daughter, and one can hear him express his desire to do better
by them and support them emotionally and financially. One can
hear him inform the court of his desire to pay restitution, and
that he had already secured steady employment to facilitate
those payments. And one can hear Hurwitz ask the court for
mercy, and to be afforded one more opportunity for probation.
25 When one realizes that nearly all of Hurwitz’s words
were audible and intelligible, and that the message Hurwitz was
trying to convey to the court came through with sufficient
clarity, Counsel’s decision not to raise any objection to the
quality of the audio comes into focus. After listening to the
recording, we can certainly understand why a reasonable
attorney would feel no need to object. And this conclusion is
further supported by the district court’s own behavior. At the
outset of Hurwitz’s statement, the court noted the “echoey”
nature of Hurwitz’s audio, and invited Hurwitz to move closer
to the microphone, but gave no further indication that it could
not hear and understand the statement Hurwitz offered. Indeed,
after Hurwitz finished talking, the court made comments
indicating that it had been able to understand Hurwitz’s
presentation, telling Hurwitz that it was “good to see that you
acknowledge that you’ve compromised a lot of people.” A
reasonable attorney, after listening to Hurwitz’s statement and
the court’s post-statement comments, could very well have
determined that the court was able to hear Hurwitz’s statement
well enough and that no objection was necessary.
20200657-CA 12 2021 UT App 112State v. Hurwitz
q26 On this record—which includes the actual audio
recording of the sentencing hearing—Hurwitz cannot
demonstrate that Counsel performed deficiently by not objecting
to the intelligibility of Hurwitz’s sentencing statement.
Accordingly, Hurwitz cannot demonstrate that Counsel
rendered constitutionally ineffective assistance.
Il
127 Although we have disposed of both of Hurwitz’s
appellate arguments, we take this opportunity to comment on
some of the issues brought to the fore by the circumstances of
this case. This is one of the first “unintelligible transcript” cases
from the COVID-19 era to reach the appellate courts, but we
anticipate that it will not be the last. We therefore offer some
words of caution and advice to attorneys, courts, court staff, and
certified transcribers, in an effort to perhaps improve the quality
of transcripts before they reach us, and to perhaps lessen
procedural frustration in future similar cases.
128 We encourage courts, attorneys, and court staff to speak
up, in the moment, if they perceive any doubt about whether a
person addressing a court can adequately be heard. Such issues
are always easier to remedy if they are caught while the hearing
is still going on. Courts should get in the habit, if they are not
already, of periodically checking on the audio quality of ongoing
hearings. And attorneys and court staff should not hesitate to
raise such issues to the court, even at the risk of interrupting
another speaker, if they perceive a potential problem.
129 We also note the importance of providing certified
transcribers—who, as noted, in our system are usually not
present at the time the hearing occurs and are nearly always
asked to create a transcript, after the fact, from an audio
recording—with the highest quality recording possible. To the
extent there exist ways to improve the quality of the recordings
20200657-CA 13 2021 UT App 112State v. Hurwitz
ultimately provided to transcribers, we encourage exploration of
those avenues.
{30 Next, we emphasize to transcribers the duty to carefully
listen to audio recordings, more than once if necessary, to glean
from those recordings the maximum possible number of words.
We recognize that the audio quality of recordings—and even of
different witnesses within the same recording—will vary, and
we acknowledge that creating a transcript from an audio
recording is an inherently difficult and detailed task. We also
acknowledge the possibility that the quality of the audio
recording provided to the transcriber in this case was not as
good as the quality of the audio recording placed in the
appellate record. But we cannot overemphasize the importance
to our judicial system of having an accurate transcript of court
proceedings, including those proceedings that take place
remotely via videoconference.
31 Finally, we note the unusual nature of the procedure
invoked by the parties in this case. Ordinarily, the certified
transcript of court proceedings constitutes the official appellate
record of those proceedings. See Utah R. App. P. 11(a) (“The
original papers and exhibits filed in the trial court, including...
the transcript of proceedings, if any, . . . shall constitute the
record on appeal in all cases.”). It is a highly unusual step for the
actual audio recording of a court hearing to be made part of the
appellate record, whether by stipulation or otherwise. Our
appellate rules provide an avenue for parties to use in cases
where one party believes that the official transcript does not
accurately reflect the words spoken at a hearing. Those rules
state as follows:
If any difference arises as to whether the record
truly discloses what occurred in the trial court, the
difference shall be submitted to and settled by that
court and the record made to conform to the truth.
20200657-CA 14 2021 UT App 112State v. Hurwitz
Id. R. 11(h). That same subsection allows the appellate court to
answer “[ajll other questions as to the form and content of the
record,” and to grant motions to supplement the record. Id. But it
is ordinarily not our task to listen to audio recordings of trial
court proceedings and determine whether the content of those
recordings matches the official transcript of the proceeding
prepared by the certified transcriber. Such work is, by design
and by rule, to be done by trial courts, whose task it is to find
facts when those facts are called into dispute.
{32 Nevertheless, in this case we went ahead and listened to
the audio recording made available to us, and drew our own
conclusions about the intelligibility of the statement Hurwitz
made at the sentencing hearing. We did this for four reasons.
First, no party asked us to do otherwise; indeed, the parties
stipulated to the supplementation of the appellate record to
include the audio recording, thereby expressing a mutual desire
for us to listen to that recording and compare it to the transcript.
Second, the disputed portion of the transcript was relatively
short, comprising approximately three pages. Third, this case is
the first “unintelligible transcript” case to reach us in the
COVID-19 era, and we wished to issue some guidance for bench
and bar. Finally, and most importantly, the issue raised here was
whether Counsel rendered ineffective assistance, and to resolve
that issue we did not need to necessarily find facts regarding
exactly what Hurwitz said at the hearing; rather, we simply
needed to ascertain whether the recording was intelligible
enough for a reasonable attorney to have forgone an objection
under the circumstances.
433 Thus, this is an exceptional case. We caution attorneys
that, in most cases, we will be far less willing to listen to an
audio recording to resolve a dispute regarding the accuracy of
the transcript. Such matters are ordinarily to be resolved by trial
courts pursuant to rule 11(h).
20200657-CA 15 2021 UT App 112State v. Hurwitz
134 We do not know how long this pandemic will last, but in
any event we can envision our trial courts conducting at least
some hearings via videoconference for quite some time to come.
It is important that attorneys, courts, court staff, and certified
transcribers do all that they can to ensure accuracy and
intelligibility in audio recordings and transcripts, and for
attorneys to follow rule 11(h) when an accuracy issue arises.
CONCLUSION
435 We reject Hurwitz’s assertion that his sentence requires
correction under rule 22(e). And because the statement Hurwitz
made at the sentencing hearing was audible and intelligible,
Counsel did not render ineffective assistance by forgoing an
objection. We therefore affirm Hurwitz’s sentence.
20200657-CA 16 2021 UT App 112Addendum A
Hurwitz Sentencing Hearing
Original Transcript
(with redactions for privacy purposes)
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a good son and a good friend and try to be a good father and
still be dangerous to society. And he's demonstrated that over
the last 13 years in the history (inaudible).
So we'd ask the Court to deviate from the PSI and
order that he serve prison on these cases concurrent.
THE COURT: All right. Thank you, Mr. Kinnerley.
Mr. Parmley, do you want to say anything else before you turn
time over to your client?
MR. PARMLEY: Just, your Honor, that there was a gap
of a couple of years, looks like at least two years between
Mr. Hurwitz's release from federal custody and commission of
these new offenses. He did have a period of time of a couple
years where he was demonstrating that he can stay on the right
side of the law.
He made a terrible choice to get back with ||
WM who was his codefendant back in 2014 at that burglary
incident as well. If he cuts off that tie and that
communication, he knows that he's smart enough. He knows that
he's capable enough of earning a legitimate income to support
himself and his family. And that would be our request that he
be allowed the opportunity to do so and to work to make right
the economic harm that was caused.
With that, your Honor, we'll -- Mr. Hurwitz has a
statement he's prepared.
THE COURT: All right. Thank you. Mr. Hurwitz, now
COURT CERTIFIED DOCUMENT
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it's your chance to make your statement. Go ahead.
(The transcriber was unable to hear and understand
the defendant due to a very muffled record.)
THE DEFENDANT: Thanks, your Honor. (Inaudible)
(inaudible) (inaudible) (inaudible) (inaudible). Good morning,
your Honor. I'd like to start off by apologizing (inaudible)
(inaudible) (inaudible) (inaudible.)
THE COURT: You're cutting -- is there a way you can
get closer to the microphone?
THE DEFENDANT: Yeah, I can. Can you hear me?
THE COURT: It's not that you're cutting so much as
it's echoey. I'm going to mute my microphone and ask the
others to mute theirs and see if it helps, but it may be the
room you're in. Let's try again.
THE DEFENDANT: Okay. Can you hear me now? Good
morning, your Honor. I'd like to start off by apologizing
(inaudible) (inaudible) (inaudible) (inaudible) (inaudible).
This is not who I am and I have beat myself up every day
(inaudible) (inaudible) (inaudible) me away from my family and
our daughter who was only one month old when I was arrested
(inaudible) (inaudible).
Now she is (inaudible) (inaudible) (inaudible)
(inaudible) (inaudible) (inaudible) (inaudible) (inaudible)
(inaudible) (inaudible). (Inaudible) and I want (inaudible)
(inaudible) and I want (inaudible) (inaudible) (inaudible)
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(inaudible). I want to change (inaudible) (inaudible)
(inaudible) (inaudible) (inaudible). I did this because I was
scared (inaudible) that I didn't have enough (inaudible)
(inaudible).
(Inaudible) (inaudible) (inaudible) (inaudible).
(Inaudible) (inaudible) (inaudible) (inaudible) (inaudible). I
know where I went wrong and (inaudible) (inaudible) (inaudible)
(inaudible) (inaudible) (inaudible) (inaudible) (inaudible)
(inaudible). I am not the man I was one year ago (inaudible)
(inaudible) (inaudible) (inaudible). (Inaudible) (inaudible)
(inaudible). (Inaudible). I've secured employment (inaudible)
(inaudible) airport (inaudible) (inaudible) (inaudible) and as
well as Wyoming working for (inaudible) (inaudible) (inaudible)
(inaudible) (inaudible) (inaudible) (inaudible) (inaudible).
I also still (inaudible) (inaudible) (inaudible)
(inaudible). (Inaudible) (inaudible) (inaudible) (inaudible)
because I want to make things right (inaudible) (inaudible)
(inaudible) (inaudible). (Inaudible) (inaudible) (inaudible)
(inaudible) (inaudible) (inaudible) (inaudible) (inaudible)
(inaudible) (inaudible) (inaudible) Po and all of
their employees.
I just want them to know how sorry I am for
(inaudible) (inaudible) (inaudible) and I am taking all of the
rights steps and making (inaudible) (inaudible). I want
Po to know that I am (inaudible) (inaudible)
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(inaudible) (inaudible). (Inaudible) (inaudible) (inaudible).
Once I am released I am going to complete (inaudible), continue
to work hard, provide for my family, work towards a career,
stay away from negative (inaudible) (inaudible) (inaudible)
(inaudible).
(Inaudible) (inaudible) successful (inaudible) the
right way (inaudible) (inaudible). What I did was wrong and
embarrassing to myself, my family. This is not (inaudible).
The life I want is sitting at home (inaudible). I want to be a
great father, great husband and a respectful (inaudible)
person. Once again, I apologize for what my actions caused
(inaudible) (inaudible) (inaudible) (inaudible).
Please allow me one chance, your Honor, (inaudible)
(inaudible) (inaudible) get back to work (inaudible)
(inaudible) (inaudible) (inaudible) (inaudible), please, your
Honor. If I may just (inaudible) (inaudible). I really am
sorry for what I did. (Inaudible) (inaudible) my behavior.
Yeah, I do have (inaudible) (inaudible). (Inaudible)
(inaudible). I don't have an excuse (inaudible). (Inaudible)
(inaudible) (inaudible) (inaudible).
I have a daughter at home (inaudible). (Inaudible)
(inaudible) (inaudible) and I don't live this life anymore. I
want to be (inaudible) them. (Inaudible) sorry. (Inaudible)
and the victims in this case (inaudible) and just say sorry to
my family. I won't disappoint anybody again. (Inaudible)
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(inaudible). I have the work to pay back the restitution. I
want to change and I am changing. Please (inaudible) just one
more chance, just one chance to do (inaudible) (inaudible)
(inaudible). I'11l complete probation. I'11l show everybody
that I (inaudible) (inaudible). Thank you. (Inaudible)
(inaudible) .
THE COURT: All right. Thank you, Mr. Hurwitz, for
that statement.
THE DEFENDANT: Thank you.
THE COURT: I acknowledge you've been in jail fora
long time, eight months. And it's good to see that you
acknowledge that you've compromised a lot of people. It's
disappointing. I guess any business is vulnerable to some
extent, but these were all (inaudible) owned, small family kind
of businesses. This is really heartbreaking.
I'm going to make some findings from Form 6 on the
presentence report. The Court agrees with the probation writer
that -- sorry with the PSA writer that these crimes caused
substantial monetary loss. Sometimes damage to the building
and property was much worse than the cash actually obtained.
The Court finds from these victim impact statements
that these crimes caused substantial psychological injuries
that many individuals, employees involved required counseling.
Business owners that couldn't even conduct their business for a
period of time because of damage to their property.
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Addendum B
Hurwitz Sentencing Hearing
Reconstituted Transcript
(with redactions for privacy purposes)
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a good son and a good friend and try to be a good father and
still be dangerous to society. And he's demonstrated that over
the last 13 years in the history (inaudible).
So we'd ask the Court to deviate from the PSI and
order that he serve prison on these cases concurrent.
THE COURT: All right. Thank you, Mr. Kinnerley.
Mr. Parmley, do you want to say anything else before you turn
time over to your client?
MR. PARMLEY: Just, your Honor, that there was a gap
of a couple of years, looks like at least two years between
Mr. Hurwitz's release from federal custody and commission of
these new offenses. He did have a period of time of a couple
years where he was demonstrating that he can stay on the right
side of the law.
He made a terrible choice to get back with ZZ
WN «who was his codefendant back in 2014 at that burglary
incident as well. If he cuts off that tie and that
communication, he knows that he's smart enough. He knows that
he's capable enough of earning a legitimate income to support
himself and his family. And that would be our request that he
be allowed the opportunity to do so and to work to make right
the economic harm that was caused.
With that, your Honor, we'll -- Mr. Hurwitz has a
statement he's prepared.
THE COURT: All right. Thank you. Mr. Hurwitz, now
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it's your chance to make your statement. Go ahead.
(The transcriber was unable to hear and understand the
defendant due to a very muffled record.)
THE DEFENDANT:Thanks, your Honor. Um, I wrote, I was going to
speak on, about the (Inaudible) Good morning, your Honor.
I'd like to start off by apologizing (inaudible) everyone
else (inaudible) decisions and actions.
THE COURT: You're cutting -- is there a way you can
get closer to the microphone?
THE DEFENDANT: Yeah, I can. Can you hear me?
THE COURT: It's not that you're cutting so much as
it's echoey. I'm going to mute my microphone and ask the
others to mute theirs and see if it helps, but it may be the
room you're in. Let's try again.
THE DEFENDANT: Okay. Can you hear me now? Good
morning, your Honor. I'd like to start off by apologizing to the
court, (inaudible)and friends and family who have been affected by
my decisions and actions. This is not who I am and I have beat
myself up every day for the last 245 days (inaudible) my actions
have taken me away from my fiancee and our daughter who was only one
month old when I was arrested and sent to jail. Now she is smiling,
crawling and learning to talk and figure out the world while I have
sat here (inaudible) fiancee(inaudible) do all the work (inaudible)
by herself during this whole covid pandemic. I know what I did was
wrong, and I want to fix this mess and do better(inaudible)I want to
change this perception I've created about myself because of all this
because that is not who I am.
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I did this because I was scared and worried that I didn't
have enough (inaudible) .I didn't think the job I had
(inaudible) enough to provide for my family. I was stupid and
foolishly reached out for help in the wrong direction and
allowed poor choices to be followed by other poor choices. I
jeopardized my safety, freedom, while causing my fiancee and
our newborn to struggle for the past eight months alone.
I know where I went wrong and I know that that (inaudible)
(inaudible) (inaudible) (inaudible) (inaudible) (inaudible)
(inaudible). I am not the man I was one year ago and I'm going
to show everyone (inaudible) (inaudible). To start off my way
by applying for my release from here I've secured employment
here in Utah doing carpentry work at the airport making 3500
plus and as well as Wyoming working for Cyclone drilling three
weeks out of the month bringing home 4500 dollars to five plus
depending upon my work progression. I also still have web
design clients I may still be able to service in my spare
time. (Inaudible) of these jobs, even though it's not a lot, I
can start paying back (Inaudible) (inaudible) decisions
because I want to make things right and pay back every last
cent I took no matter how long it takes. Being in here for the
time I have been in here has give me time to think about how
my actions have affected =! a
Asad all of their employees.I just want them to
know how sorry I am for my behavior and poor choices andI am
taking all of the right steps and making them all whole again.
I want Po to know that I am
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already in the process of returning back(inaudible) what I took
and hopefully bring them peace of mind. Once I am released I am
going to complete (inaudible), continue to work hard, provide for
my family, work towards a career, stay away from negative peers
(inaudible) productive member of society. I plan on becoming a
successful (inaudible) the right way (inaudible) (inaudible).
What I did was wrong and embarrassing to myself, my family. This
is not the life I want to live. The life I want is sitting at
home waiting for me. I want to be a great father, great
husband and a respectful and trustworthy person. Once again, I
apologize for what my actions caused and I am willing to do
everything it takes to make it right (inaudible) (inaudible).
Please allow me one chance, your Honor, to go home to
my family, provide for my family(inaudible) (inaudible) get back
to work and start paying back restitution(inaudible) (inaudible)
(inaudible), please, your Honor. If I may just add a few more
things. I really am sorry for what I did.Um, there's no excuse
for my behavior. Yeah, I do have a bit of a past (inaudible) I
wasn't (inaudible)the best of kids. I don't have an excuse for
that. I was a knucklehead. I've grown every year. Yea, I've made
some mistakes but this is the last. I have a daughter at home
that I haven't seen. They've been struggling and I don't want to
live this life anymore. I want to work hard for them and just be
a good person. sorry. to you all, and the court, and the
victims in this case (inaudible) and just say sorry to my family.
I won't disappoint anybody again. I'm gonna be good.
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I have the work to pay back the restitution. I want to change
and I am changing. Please I'd ask just one more chance, just
one chance to do (inaudible) (inaudible) (inaudible). I'll
complete probation. I'11l show everybody that I can do it
(inaudible). Thank you. (Inaudible) listening to me
(inaudible) .
THE COURT: All right. Thank you, Mr. Hurwitz, for
that statement.
THE DEFENDANT: Thank you.
THE COURT: I acknowledge you've been in jail fora
long time, eight months. And it's good to see that you
acknowledge that you've compromised a lot of people. It's
disappointing. I guess any business is vulnerable to some
extent, but these were all (inaudible) owned, small family kind
of businesses. This is really heartbreaking.
I'm going to make some findings from Form 6 on the
presentence report. The Court agrees with the probation writer
that -- sorry with the PSA writer that these crimes caused
substantial monetary loss. Sometimes damage to the building
and property was much worse than the cash actually obtained.
The Court finds from these victim impact statements
that these crimes caused substantial psychological injuries
that many individuals, employees involved required counseling.
Business owners that couldn't even conduct their business for a
period of time because of damage to their property.
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