State v. Franco , 2012 UT App 153 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20100450‐CA
)
v. ) FILED
) (May 24, 2012)
Richard Paul Franco, )
) 2012 UT App 153Defendant and Appellant. )
‐‐‐‐‐
Third District, Salt Lake Department, 081906101
The Honorable Ann Boyden
Attorneys: Ronald Fujino, Salt Lake City, for Appellant
Mark L. Shurtleff and Andrew F. Peterson, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges McHugh, Orme, and Roth.
ROTH, Judge:
¶1 Richard Paul Franco makes two challenges to his conviction for forcible sexual
abuse. First, he contends that the trial court committed reversible error requiring
remand when it did not inquire into the need for substitution of counsel after Franco
expressed dissatisfaction with his attorney’s performance. Franco also claims that trial
counsel’s failure to present Franco’s desired theory of the case resulted in ineffective
assistance of counsel entitling him to a new trial. We affirm.
I. Duty to Inquire
¶2 Franco asserts that the trial court had a duty to inquire about the need for
substitute counsel once he complained in posttrial letters to the court about a conflict of
interest with his attorney. See generally State v. Pursifell, 746 P.2d 270, 273 (Utah Ct. App.
1987) (“[W]hen dissatisfaction is expressed, the court must make some reasonable, non‐
suggestive efforts to determine the nature of the defendant’s complaints and to apprise
itself of the facts necessary to determine whether the defendant’s relationship with his
or her appointed attorney has deteriorated.”). In particular, Franco contends that the
court failed to address his complaint that
[trial counsel] didn’t act accordingly in my trial by not
stating [to the jury] what I said to him during my trial in his
ear [regarding my theory of the case]. [Trial counsel and I]
have a conflict of interest . . . he has minimized or put my life
freedom(s) in je[opa]rdy opposite of what I required him to
do[.] I want a new la[wy]er.
¶3 According to Franco, the trial court’s failure to conduct an inquiry into the
substance of his complaints requires us to remand the issue for a determination of
whether good cause existed for substitution of counsel. In support of his position,
Franco directs us to State v. Vessey, 967 P.2d 960 (Utah Ct. App. 1998), in which the
defendant filed a pro se motion with the trial court three months before trial, requesting
the appointment of new counsel because his existing counsel “refused to prepare for
trial and . . . they had irreconcilable conflicts.” Id. at 961‐62. The trial court “summarily
denied [the] defendant’s motion for substitution of counsel, [and] the case proceeded to
trial, [where he] was convicted.” Id. at 961. We reversed, stating that “[b]y summarily
denying defendant’s motion [for substitution] . . . , the trial court put the defendant in
the position of choosing between proceeding to trial with counsel . . . or proceeding pro
se.” Id. at 964. Relying on our earlier decision in State v. Pursifell, 746 P.2d 270 (Utah Ct.
App. 1987), we observed that the better practice was to require the trial court to conduct
an inquiry into the basis for complaints about counsel’s performance before trial. See
967 P.2d at 962‐64. Such a pretrial inquiry best safeguards a defendant’s Sixth
Amendment right to counsel and promotes judicial efficiency by allowing a court to
consider whether there is an irreconcilable conflict or breakdown in communication that
necessitates substitution of counsel before a trial has occurred. See id. (noting that the
inquiry requirement creates an “incentive . . . for a trial court to conduct the appropriate
review in a timely manner,” which is critical because “timely judicial intervention at the
pretrial stage constitutes an effective mechanism for prevention of Sixth Amendment
deprivations and for the simultaneous preservation of the integrity of the adversary
trial process” (internal quotation marks omitted)); Pursifell, 746 P.2d at 274 (“When a
defendant is forced to stand trial with the assistance of an attorney with whom he has
become embroiled in an irreconcilable conflict, he is deprived of the effective assistance
of any counsel whatsoever and his Sixth Amendment right to counsel is violated.”
(internal quotation marks omitted)). Furthermore, a pretrial inquiry “reduces the
likelihood of a post conviction ineffective assistance claim” and “creates a record that
reviewing courts can rely upon when an ineffectiveness issue is raised on appeal.”
Vessey, 967 P.2d at 964.
20100450‐CA 2
¶4 The situation in Vessey, however, is different from Franco’s. Unlike the
defendant in Vessey, Franco did not alert the trial court to any concerns about his
counsel’s representation prior to trial. See id. at 961‐62 (reviewing a failure to inquire
where the court was notified of the defendant’s complaint three months before trial); see
also Pursifell, 746 P.2d at 272 (reviewing the defendant’s claim that the trial court failed
to adequately inquire where “[o]n the morning of the first day of trial, the defendant
informed the court that he did not want to proceed with . . . counsel”). Indeed, it was
not until five months after his July 2009 trial and conviction, on December 24, 2009, that
Franco first sent a letter to the court expressing dissatisfaction with trial counsel’s
performance at trial. Between Franco’s December 24 letter and his sentencing on May 3,
2010, Franco sent the court seven more letters, all expressing nearly identical complaints
about counsel’s presentation of the case at trial.
¶5 Franco nevertheless contends that the remedy established by Vessey‐‐automatic
remand to the trial court for consideration of whether there had been an actual pretrial
conflict between counsel and the defendant requiring substitution‐‐should apply under
the circumstances presented in this case. See Vessey, 967 P.2d at 964. The remedy of
automatic remand was adopted in Vessey, however, because “timely judicial
intervention at the pretrial stage constitutes an effective mechanism for the prevention
of Sixth Amendment deprivations and for the simultaneous preservation of the
integrity of the adversary trial process.” Id. (internal quotation marks omitted).
Treating the failure to inquire pretrial as per se reversible error creates an “incentive . . .
for a trial court to conduct the appropriate review in a timely manner.” Id. The remedy
of automatic remand does not have the same prophylactic effect in cases such as this,
where the complaint is made after the fact and any prejudicial impact on the trial has
already occurred.1 When a defendant’s complaints about counsel’s trial performance
are disclosed after the trial has ended, his or her remedy lies in an appeal challenging
the effectiveness of counsel’s assistance. Cf. Pursifell, 746 P.2d at 275 (“Unsuccessful
motions for substitution of counsel are typically followed by the claim that defendant
received ineffective assistance of counsel at trial.”). Franco has done so here as an
alternative argument on appeal. For these reasons, we find the Vessey rule inapplicable
to this case and decline to remand for a posttrial inquiry into whether there was good
cause to substitute appointed counsel.2
1. While Franco expressed dissatisfaction with counsel several months prior to
sentencing, he does not challenge on appeal counsel’s performance at sentencing.
2. While a posttrial failure to inquire does not justify remand, there are significant
benefits to be gained from a trial court’s inquiry into the basis for a posttrial complaint
(continued...)
20100450‐CA 3
II. Ineffective Assistance of Counsel
¶6 We now turn to Franco’s claim of ineffective assistance of counsel.3 A claim of
ineffective assistance at trial “presents a question of law, which we review for
correctness.” State v. Walker, 2010 UT App 157, ¶ 13, 235 P.3d 766. To prevail on an
ineffectiveness claim, a defendant must show both “(1) that counsel’s performance was
2. (...continued)
about inadequate representation at trial. For instance, considering the claim may
contribute to judicial economy to the extent that the trial court may be able to address or
resolve a defendant’s concerns, thus reducing the likelihood of an appeal based on
ineffective assistance of counsel. In addition, such an inquiry may provide a helpful
record in the event of such an appeal.
3. Franco first raised the ineffective assistance claim in the trial court through
complaints in his letters, and accordingly, the judge made some effort to address
Franco’s concerns. At sentencing, the trial judge indicated that she had read Franco’s
letters but did not believe that counsel had been ineffective. The judge explained,
You haven’t raised [ineffective assistance] today. I have
been carefully watching the representation that has occurred
and have addressed my concerns with extensive competency
evaluations, and I am finding on the record that everything
that I have observed in [c]ourt is consistent with [trial
counsel] trying to do everything he can in dealing with you.
And when there have been some concerns, they have been
raised through the competency process which has addressed
the concerns that we have about whether or not [counsel]
has been following your directions or if you’ve been able to
fully communicate with him. Those sort of concerns I have
chosen to address with the competency evaluations, and the
doctors have told me that their opinion is . . . that you are
able to communicate sufficiently . . . .
The judge did not further elaborate on the basis for her conclusions that there had not
been a breakdown in communication and that counsel had generally provided effective
assistance. Nevertheless, the parties agree that this court has “everything in the record
necessary to review [Franco’s] complaints regarding trial counsel’s effectiveness” and
that remand under rule 23B of the Utah Rules of Appellate Procedure is unnecessary to
aid our decisionmaking on appeal. See generally Utah Rule App. P. 23B (allowing for
remand to the trial court to make additional findings as necessary for a determination of
a claim of ineffective assistance of counsel).
20100450‐CA 4
objectively deficient, and (2) [that] a reasonable probability exists that but for the
deficient conduct defendant would have obtained a more favorable outcome at trial.”
State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
¶7 Under the deficient performance prong, Franco must show that his “‘counsel’s
representation fell below an objective standard of reasonableness.’” Nicholls v. State,
2009 UT 12, ¶ 37, 203 P.3d 976 (quoting Strickland v. Washington, 466 U.S. 668, 688
(1984)). “‘This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’”
Id. (quoting Strickland, 466 U.S. at 688). To make such a showing, a defendant “must
overcome the strong presumption that [his] trial counsel rendered adequate assistance,
by persuading the court that there was no conceivable tactical basis for counsel’s
actions.” Clark, 2004 UT 25, ¶ 6 (alteration in original) (emphasis, citation, and internal
quotation marks omitted). Moreover, appellate courts will not “second‐guess trial
counsel’s legitimate strategic choices.” State v. Mahi, 2005 UT App 494, ¶ 20, 125 P.3d
103 (internal quotation marks omitted); see also State v. Tennyson, 850 P.2d 461, 468 (Utah
Ct. App. 1993) (stating that to reject an ineffective assistance claim, “we need only
articulate some plausible strategic explanation for counsel’s behavior”). “Decisions as
to what witnesses to call, what objections to make, and by and large, what defenses to
interpose, are generally left to the professional judgment of counsel.” State v. Wood, 648
P.2d 71, 91 (Utah 1982). Thus, Franco “must identify counsel’s specific acts or omissions
that ‘fall outside the wide range of professionally competent assistance.’” State v.
Classon, 935 P.2d 524, 532 (Utah Ct. App. 1997) (quoting State v. Frame, 723 P.2d 401, 405
(Utah 1986)).
¶8 In this regard, ineffectiveness cannot be established simply by the fact that the
attorney chose not to follow the trial advice of the defendant he represented. To the
contrary, the Sixth Amendment right to counsel is based on the common‐sense notion
that those accused of a crime are at a distinct disadvantage in planning and carrying out
an effective defense, one that requires navigating a path through a complex landscape
of laws, rules, and evidence where the stakes are very high. The concept of effective
assistance must therefore contemplate the primacy of counsel’s judgment, based on
education, training, and experience, over that of his client. See Wood, 648 P.2d at 91
(“Trial tactics lie within the prerogative of counsel and may not be dictated by his [or
her] client. Decisions as to what witnesses to call, what objections to make, and by and
large, what defenses to interpose, are generally left to the professional judgment of
counsel.”). And therefore a claim that counsel’s performance was deficient cannot be
based on a decision not to follow his client’s instructions; rather, a defendant must still
establish that his “‘counsel’s representation fell below an objective standard of
reasonableness.’” Nicholls, 2009 UT 12, ¶ 37 (quoting Strickland, 466 U.S. at 688). See
generally State v. Pursifell, 746 P.2d 270, 272 (Utah Ct. App. 1987) (“While an indigent
20100450‐CA 5
defendant has a right to have counsel appointed to represent him, he does not have a
constitutional right to a lawyer other than the one appointed, absent good cause.”
(citation omitted)).
¶9 Franco has failed to meet this burden. Franco claims that trial counsel was
deficient because he did not present Franco’s own theory of the case to the jury.
According to Franco’s theory, the victim fabricated the allegations of sexual abuse after
her attempt to extort money from him by threatening to send him back to prison failed.
Franco, however, has not identified any evidence, other than his own testimony, that he
may have presented to support this theory. At trial, Franco chose not to take the stand,
and he does not assert that he was precluded from doing so. Even if his counsel had
advised Franco not to testify at trial, something he does not allege, such advice would
have reflected a reasonable trial strategy, given that Franco’s taking the stand involved
a substantial risk of the State impeaching him with evidence of prior convictions. See
State v. Gilbert, 2005 UT App 432U, para. 3 (mem.) (“[F]ailure to testify could be
considered sound trial strategy because by not testifying, [the defendant] was shielded
under Utah Rule of Evidence 609 from the possibility of prejudicial impeachment with
his prior convictions.”).
¶10 Absent Franco’s testimony or other relevant evidence, trial counsel could have
developed Franco’s extortion theory only through cross‐examination of the victim.
Franco has not overcome the presumption that counsel’s decision not to raise the
extortion theory‐‐a “blame the victim” approach that carried the risk of provoking juror
antipathy toward Franco‐‐was sound trial strategy. See generally Classon, 935 P.2d at 532(“[A] defendant must overcome our presumption that, when viewing the circumstances
of the case as of the time of counsel’s conduct, counsel’s challenged action or omission
was sound trial strategy.”). Franco’s counsel instead took a more context‐based and less
risky approach to undercutting the weight of the victim’s testimony by questioning her
about the poor lighting in the bedroom that might have impeded her ability to identify
Franco as her assailant, her proximity to others in the house who might have been
alerted to her plight had she made any noise, and her delay in seeking help, a line of
questioning that focused strongly on circumstances suggesting the victim’s lack of
credibility, rather than accusing her of extortion. A decision by counsel that reasonably
weighs the risks and benefits of available strategic approaches before choosing one as
preferable to others cannot support a claim that counsel was deficient in either strategy
or performance, even if the approach did not lead to the desired result. See State v. Ott,
2010 UT 1, ¶ 34, 247 P.3d 344 (“[W]henever there is a legitimate exercise of professional
judgment in the choice of trial strategy, the fact that it did not produce the expected
result does not constitute ineffectiveness of counsel.”). And failure to establish deficient
performance defeats a claim for ineffective assistance of counsel. See State v. Welborn,
20100450‐CA 6
2012 UT App 5, ¶ 5, 268 P.3d 881 (“A defendant has not established ineffective
assistance if he fails to demonstrate that both elements have been met.”).
¶11 Accordingly, Franco’s conviction is affirmed.
____________________________________
Stephen L. Roth, Judge
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¶12 WE CONCUR:
____________________________________
Carolyn B. McHugh,
Presiding Judge
____________________________________
Gregory K. Orme, Judge
20100450‐CA 7