State v. Norton , 798 Utah Adv. Rep. 22 ( 2015 )

2015 UT App 263THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
DAVID ANDREW NORTON,
Defendant and Appellant.
Opinion
No. 20140029-CA
Filed October 29, 2015
Third District Court, West Jordan Department
The Honorable Mark S. Kouris
No. 121401244
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Ryan D. Tenney, Attorneys
for Appellee
JUDGE JAMES Z. DAVIS authored this Opinion, in which
JUDGES GREGORY K. ORME and STEPHEN L. ROTH concurred.
DAVIS, Judge:
¶1 David Andrew Norton appeals from the district court’s
entry of consecutive sentences. Norton argues that he received
ineffective assistance of counsel during sentencing and that but
for his counsel’s deficient performance, the court would not have
imposed consecutive sentences. In support of his argument,
Norton asks us to remand the case under rule 23B of the Utah
Rules of Appellate Procedure. We deny Norton’s request for a
rule 23B remand and affirm the district court’s sentencing
decision.
State v. Norton
BACKGROUND
¶2 Norton pleaded guilty to two counts of sexual abuse of a
child and one count of attempted disarming of a police officer,
each a second degree felony. At the sentencing hearing, Norton’s
counsel requested probation with substance abuse and sex
offender treatment, arguing that Norton’s criminal behavior
“was borne out of his substance abuse.” The district court
rejected counsel’s assertion that Norton’s substance abuse “has
anything to do with” the charges against him and stated, “I deal
with literally hundreds of drug addicted people every week, I
operate a drug court. Because a person is addicted to heroin or
cocaine doesn’t cause them to sexual[ly] molest [a child] on a
number of occasions.” Accordingly, the district court sentenced
Norton to three indeterminate terms of one to fifteen years and
ordered the sentences to run consecutively. Norton appeals,
arguing that his counsel rendered ineffective assistance during
sentencing.
ISSUES AND STANDARDS OF REVIEW
¶3 As an initial matter, Norton seeks a rule 23B remand to
supplement the record with evidence he claims is necessary for
this court’s review of his ineffective assistance of counsel claim.
“A remand under rule 23B will . . . be granted [only] ‘upon a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.’” State v. Lee, 2014 UT App 4, ¶ 5,
318 P.3d 1164 (quoting Utah R. App. P. 23B(a)).
¶4 Norton also argues that his counsel’s representation
during sentencing was deficient in several ways. “An ineffective
assistance of counsel claim raised for the first time on appeal
presents a question of law.” Id. ¶ 6 (citation and internal
quotation marks omitted).
20140029-CA 2 2015 UT App 263State v. Norton
ANALYSIS
I. A Rule 23B Remand Is Not Warranted.
¶5 Norton seeks a rule 23B remand to supplement the record
with a Forensic Psychological Examination Summary (FPES)
prepared by a licensed clinical social worker and a Psychosexual
Evaluation (PE) prepared by a psychologist. He asserts that these
two reports “provide critical information concerning [his]
history, character, and rehabilitative needs” and should have
been presented to the district court prior to sentencing.
¶6 Rule 23B of the Utah Rules of Appellate Procedure
“provides a mechanism for criminal defendants to supplement
the record with facts that are necessary for a finding of
ineffective assistance of counsel” where the inadequacy of the
record on appeal is a result of the ineffective assistance alleged.
State v. Griffin, 2015 UT 18, ¶ 17. “There are four basic
requirements for obtaining a 23B remand. First, the motion must
be supported by affidavits setting forth” facts that are not
“contained in the existing record.” State v. Johnston, 2000 UT App
290, ¶¶ 8–9, 13 P.3d 175 (per curiam), overruled in part by Griffin,
2015 UT 18, ¶¶ 19, 27. “Second, the defendant must provide
allegations of fact that are not speculative.” Griffin, 2015 UT 18,
¶ 19. “Third, the allegations must show deficient performance”
by counsel. Johnston, 2000 UT App 290, ¶ 12. And fourth, “the
affidavits supporting the motion must also allege facts that show
the claimed prejudice suffered by the appellant as a result of the
claimed deficient performance.” Id. ¶ 13 (citation and internal
quotation marks omitted); see also Griffin, 2015 UT 18, ¶ 20 (“The
third and fourth elements of the Johnston test come from the
rule’s mandate that the alleged facts could support a
determination that counsel was ineffective.” (citation and
internal quotation marks omitted)).
¶7 “It stands to reason that if the defendant could not meet
the test for ineffective assistance of counsel, even if his new
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factual allegations were true, there is no reason to remand the
case, and we should deny the [rule 23B] motion.” Griffin, 2015
UT 18, ¶ 20. To succeed on an ineffective assistance of counsel
claim, a defendant must “establish that his counsel rendered a
deficient performance in some demonstrable manner, which
performance fell below an objective standard of reasonable
professional judgment.” Id. ¶ 15 (citation and internal quotation
marks omitted). The defendant must also “show that counsel’s
performance prejudiced [him], meaning that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. (citation and internal quotation marks omitted).
A. The Forensic Psychological Examination Summary
¶8 We consider the reports on which Norton bases his rule
23B motion, the FPES and PE, “solely to determine the propriety
of remanding [his] ineffective assistance of counsel claim[] for
[an] evidentiary hearing[].” See State v. Bredehoft, 966 P.2d 285,
290 (Utah Ct. App. 1998). Norton alleges that his counsel was
aware of the FPES and its contents; Norton found the FPES in his
counsel’s file. Therefore, he argues, his counsel’s failure to
present the FPES prior to sentencing was deficient and
prejudicial. The FPES does contain some information that may
have been helpful to Norton. For instance, the FPES indicates
that Norton does not have a history of sexual abuse, and it states,
“It would be reasonable to assume that if [Norton] could receive
sexual offender therapy, supervision from the pre-trial program,
be required to do drug testing, and avoid unsupervised contact
with minors, then [his] danger to the community could be
reduced” to “a low to moderate probability of risk.” The FPES
concludes that Norton should receive supervised release.
¶9 Much of this information, however, is already in the
record, albeit absent the same professional imprimatur of the
FPES. The presentence investigation report (PSI) indicates that
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Norton needs substance abuse treatment and that he does not
have a history of sexual abuse. And several character-reference
letters submitted by Norton’s family and friends suggest that
Norton is not a danger to the community and can be
rehabilitated.
¶10 Additionally, the FPES contains some information that is
unfavorable to Norton’s argument for lenient sentencing. The
FPES describes Norton as having “impulsive sexual urges,”
“compulsive sexual behavior,” and a “fixation” on the victim,
and it indicates that Norton’s sexual urges “will likely continue
unless [he] receives treatment in a structured treatment
program.” In light of this unfavorable information and the fact
that most of the favorable information in the FPES is largely
duplicative, counsel’s decision to withhold the report at
sentencing was a reasoned and sound strategy. See Griffin, 2015
UT 18, ¶ 21 (“[W]e indulge in the strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance; that is the defendant must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” (citation and
internal quotation marks omitted)). Because counsel did not
perform deficiently by withholding the FPES, counsel did not
render ineffective assistance in this regard. See Archuleta v.
Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 (recognizing that a court
reviewing an ineffective assistance claim does not need to
address both deficiency and prejudice if it determines that the
defendant has made “an insufficient showing on one” (citation
and internal quotation marks omitted)). We therefore deny
Norton’s request for a rule 23B remand on the FPES issue. See
Griffin, 2015 UT 18, ¶ 20.
B. The Psychosexual Evaluation
¶11 We also deny Norton’s request for a rule 23B remand with
regard to the PE based on a lack of prejudice. Unlike the FPES,
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the PE was obtained by Norton’s appellate counsel. The PE
indicates that Norton is generally not aggressive, has a stable
work history, presents a low risk of committing another sex
offense, and feels shame and regret for his criminal actions.
However, this information is also contained in the PSI and the
character-reference letters and was stated by Norton during
allocution.
¶12 The PE also explains that Norton “may” have an
untreated “cyclic emotional disturbance” that was “likely
exacerbated” by his substance abuse and cessation, and that
Norton’s substance abuse and cessation also “probably
contributed” to his criminal behavior. However, this argument is
couched in speculative language—i.e., “may,” “likely,” and
“probably”—and the district court already expressly rejected the
notion that Norton’s substance abuse was a cause for leniency. It
is unlikely that this speculation over a possible “emotional
disturbance” would have been sufficient to persuade the district
court otherwise.
¶13 Furthermore, the PE contains a significant amount of
negative information. It describes Norton as minimizing his
responsibility for sexually abusing the victim and attributing the
abuse to his “feeling sexually deprived” after separating from
his wife, his communication problems with his wife, and other
problems in his family. The PE also describes Norton as
explaining that “he would not have committed a sex offense had
[the victim] not been curious and interested in sex,” that he
“‘wasn’t interested in forcing anything,’” and that he “was
careful to ask [the victim] about performing oral sex on him,
rationalizing that ‘maybe she want[ed] to.’” The PE concluded
that Norton “does not have sufficient motivation to be able to
successfully complete a sex offender treatment program,” that
his “prognosis for a good outcome is questionable,” and that his
“likelihood of success in the community seems mixed.”
20140029-CA 6 2015 UT App 263State v. Norton
¶14 Likewise, during the sentencing hearing, the district court
expressed concern that Norton minimized his responsibility for
his crimes. The evidence before the court that supported this
concern included the PSI and Norton’s statements during
allocution. The PSI quoted Norton as having described the
sexual abuse as “‘accidental’” and the behavior underlying the
disarming an officer charge as “‘not intentional.’” And during
allocution, Norton explained that he only “cupped over [the
victim’s] private area, her genitalia, there was no rubbing, there
was no insertion, there was no suggestion of any of that”; that
“there was no overt action”; that he does not remember
requesting oral sex from the victim; and that the “facts are
skewed and misrepresented as presented by the victim’s
mother.” Given the court’s concerns that Norton had not taken
“any responsibility” for his actions, it is unlikely that the court
would have considered the PE, with its description of additional
ways in which Norton rationalized his behavior and deflected
blame, as helpful to Norton’s request for leniency, simply
because it also suggests that Norton’s substance abuse and
cessation “probably contributed” to his criminal behavior and
“likely exacerbated” an untreated emotional disturbance he
“may” have. Accordingly, counsel’s failure to obtain the PE and
present it to the district court before sentencing did not prejudice
Norton. See State v. Griffin, 2015 UT 18, ¶¶ 15, 21. Because
Norton cannot “meet the test for ineffective assistance of
counsel, even if his new factual allegations were true, there is no
reason to remand the case” under rule 23B. See id. ¶ 20. We
therefore deny Norton’s rule 23B motion in its entirety.
II. Norton’s Counsel Was Not Ineffective.
¶15 Norton relies on the contents of his rule 23B filings to
support the ineffective assistance arguments in his appellate
brief. As stated above, “[w]e consider affidavits supporting Rule
23B motions solely to determine the propriety of remanding
ineffective assistance of counsel claims for evidentiary hearings.”
20140029-CA 7 2015 UT App 263State v. Norton
See State v. Bredehoft, 966 P.2d 285, 290 (Utah Ct. App. 1998). The
FPES, PE, and accompanying affidavits are therefore not a part
of the record before this court, and “we do not consider new
evidence on appeal.” See id. (citation and internal quotation
marks omitted). Moreover, based on our analysis of Norton’s
rule 23B motion, even if we were to consider his rule 23B filings,
we would reach the same conclusion—that he has not
demonstrated that his counsel was ineffective.
¶16 Aside from the arguments in Norton’s brief that rely on
his rule 23B affidavits, Norton argues that counsel performed
deficiently by failing to properly argue against the imposition of
consecutive sentences. He asserts that counsel failed to
investigate his personal “history, character, and rehabilitative
needs” and failed to consult with a mental health professional.
As a result, he argues, the district court ordered consecutive
sentences without having the requisite evidence before it.
¶17 As indicated above, to succeed on an ineffective assistance
of counsel claim, a defendant must demonstrate that his counsel
performed deficiently and that counsel’s deficient performance
prejudiced him. Griffin, 2015 UT 18, ¶ 15; see also Archuleta v.
Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 (noting that failure to
satisfy one prong of the ineffective assistance test is fatal to a
defendant’s claim). To demonstrate deficient performance, 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.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (alteration in
original) (emphasis, citations, and internal quotation marks
omitted). “The court give[s] trial counsel wide latitude in
making tactical decisions and will not question such decisions
unless there is no reasonable basis supporting them.” Id.(alteration in original) (citation and internal quotation marks
omitted).
20140029-CA 8 2015 UT App 263State v. Norton
¶18 First, we note that by Norton’s own admission, his
counsel did, in fact, have access to a report from a licensed
clinical social worker prior to sentencing—Norton indicated that
he obtained the FPES from his attorney’s files. Additionally,
counsel obtained and submitted to the court seven favorable
character-reference letters from members of Norton’s family,
church, and community that described Norton as an intelligent,
religious, motivated, affable person. The letters attributed
Norton’s criminal behavior to his substance abuse and expressed
optimism regarding Norton’s ability to turn his life around if
granted leniency. The PSI also contained information pertaining
to Norton’s personal life, living situation, education, finances,
employment history, criminal history, and substance-abuse
history. Accordingly, we reject Norton’s assertion that counsel
failed to investigate his “history, character, and rehabilitative
needs” or to consult with a mental health professional. 1
¶19 Next, we consider whether counsel’s failure to submit the
FPES amounted to deficient performance. We do so without
considering the substance of the FPES, as that document is not in
the record on appeal. Instead, we evaluate whether counsel had
a reasonable strategic basis for not submitting that document.
Here, we can safely assume that counsel may not have
considered the FPES sufficiently favorable, relying instead on the
favorable letters and Norton’s well-written statement of remorse
1. Counsel’s failure to seek out another mental health
professional and, e.g., obtain a psychosexual evaluation,
particularly if the first mental health professional’s report is less
than stellar, does not amount to deficient performance. Cf. State
v. Munguia, 2011 UT 5, ¶ 33, 253 P.3d 1082 (rejecting an
ineffectiveness argument based on counsel’s failure to obtain an
additional psychosexual evaluation and noting that the results of
any additional evaluation were purely speculative and could
have been unfavorable).
20140029-CA 9 2015 UT App 263State v. Norton
that he read during allocution to persuade the court to be
lenient. This information stressed Norton’s remorse, portrayed
him as a driven person who has the skills and desire to turn his
life around, and demonstrated the strength of his personal
support system. That the court ultimately did not see the
evidence that way, however, does not render counsel’s
performance deficient.
¶20 Because “a rational basis for counsel’s performance can be
articulated, [the court] will assume counsel acted competently.”
See State v. Bryant, 965 P.2d 539, 542–43 (Utah Ct. App. 1998)
(alteration in original) (citation and internal quotation marks
omitted). Accordingly, Norton has not demonstrated that his
counsel rendered ineffective assistance during sentencing. 2
CONCLUSION
¶21 We deny Norton’s motion for a rule 23B remand and
affirm the district court’s sentencing decision.
2. Norton also suggests that the district court “illegal[ly]
stack[ed] three 1–15 [year] sentences” under Utah Code section
76-3-401(6)(a). See Utah Code Ann. § 76-3-401(6)(a) (LexisNexis
2012). “If a court imposes consecutive sentences, the aggregate
maximum of all sentences imposed may not exceed 30 years
imprisonment.” Id. We reject this argument and note that this
Utah Code section explicitly states, “This section may not be
construed to restrict the number or length of individual
consecutive sentences that may be imposed or to affect the
validity of any sentence so imposed, but only to limit the length
of sentences actually served under the commitments.” See id.
§ 76-3-401(10).
20140029-CA 10 2015 UT App 263