Jackson v. State , 794 Utah Adv. Rep. 54 ( 2015 )

2015 UT App 217_________________________________________________________
THE UTAH COURT OF APPEALS
MARTIN RAY JACKSON,
Petitioner and Appellant,
v.
STATE OF UTAH,
Respondent and Appellee.
Opinion
No. 20130957-CA
Filed August 27, 2015
Third District Court, West Jordan Department
The Honorable Terry L. Christiansen
No. 120411054
Robb Jones, Attorney for Appellant
Sean D. Reyes and Andrew F. Peterson, Attorneys
for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which
JUDGES JAMES Z. DAVIS and JOHN A. PEARCE concurred.
TOOMEY, Judge:
¶1 Martin Ray Jackson appeals from the dismissal of his
petition seeking post-conviction relief from his conviction for
unlawful sexual conduct, a third-degree felony. His petition
contended he was deprived of his constitutional right to effective
assistance of counsel because his trial counsel failed to raise a
statute-of-limitations defense. But Jackson has not shown on
appeal that his counsel’s performance fell below an objective
standard of reasonableness, and we therefore affirm the district
court’s decision to grant the State’s motion for summary
judgment and to dismiss Jackson’s petition.
Jackson v. State
BACKGROUND
¶2 In March 2008, the State charged Jackson with rape, a
first-degree felony, based on allegations that in June 2003, when
he was forty-three years old, he had sexual intercourse with his
seventeen-year-old stepdaughter (Stepdaughter).1 In December
2008, the State amended the information to add an alternative,
and lesser, charge of unlawful sexual conduct with a sixteen- or
seventeen-year-old, a third-degree felony. Although the statute
of limitations for unlawful sexual conduct expired before the
State added the alternative charge, Jackson did not raise any
challenges to it and waived his right to a preliminary hearing on
it.2
¶3 At trial, the jury was instructed on the rape charge and on
the alternative charge of unlawful sexual conduct. Jackson did
not testify. Jackson argued throughout trial Stepdaughter was
not credible, and maintained the allegations against him were
false. Consistent with this, Jackson did not argue in the
alternative for conviction on the lesser charge of unlawful sexual
conduct.
¶4 The jury ultimately acquitted Jackson of rape but
convicted him of unlawful sexual conduct. After trial, Jackson
filed a motion to arrest judgment, arguing that the statute of
limitations barred the unlawful-sexual-conduct charge. The
1. The State notes that using the word ‚Stepdaughter‛ does not
accurately describe Jackson’s legal relationship to the victim. The
precise nature of this relationship is not material to our analysis,
and this court’s opinion on his direct appeal referred to the
victim as ‚Stepdaughter.‛ Thus, this opinion will continue to
employ that term for simplicity.
2. Jackson did have a preliminary hearing on the rape charge.
20130957-CA 2 2015 UT App 217Jackson v. State
court denied the motion, reasoning that unlawful sexual conduct
was a lesser included offense of rape and because the statute of
limitations for rape had not yet expired, Jackson’s prosecution
for unlawful sexual conduct was not barred. See Utah Code Ann.
§ 76-1-305 (LexisNexis 2012) (‚Whenever a defendant is charged
with an offense for which the period of limitations has not run
and the defendant should be found guilty of a lesser offense for
which the period of limitations has run, the finding of the lesser
and included offense against which the statute of limitations has
run shall not be a bar to punishment for the lesser offense.‛).
¶5 On direct appeal, this court affirmed Jackson’s conviction
for unlawful sexual conduct, albeit on a different ground. State v.
Jackson, 2011 UT App 318, ¶ 1, 263 P.3d 540. We determined that
unlawful sexual conduct is not a lesser included offense of rape
and ‚the time for prosecuting Jackson for Unlawful Sexual
Conduct cannot be extended by the longer statute of limitations
applicable to the prosecution of rape.‛ Id. ¶ 15. Notwithstanding
this error, we refused to reverse the conviction, holding that
Jackson forfeited the statute-of-limitations defense when he
failed to raise it before the jury convicted him of unlawful sexual
conduct. Id. ¶¶ 34–35.
¶6 Next, Jackson filed a petition for relief pursuant to the
Post-Conviction Remedies Act (PCRA), claiming he was
deprived of his constitutional right to effective assistance of
counsel when his trial counsel failed to timely assert the statute-
of-limitations defense to the unlawful-sexual-conduct charge.
¶7 The State moved for summary judgment, arguing that
Jackson did not establish that his counsel failed to discover the
statute-of-limitations defense or that she could have had no
legitimate strategic reason for forfeiting it. The State also
asserted that Jackson failed to show a reasonable probability he
would have received a more favorable result if counsel had
performed differently.
20130957-CA 3 2015 UT App 217Jackson v. State
¶8 Jackson responded that his counsel’s failure to investigate
and to raise the statute-of-limitations defense until after trial was
not a conscious, strategic decision, and her performance
therefore fell below the range of reasonable professional
assistance. Further, he was prejudiced because there was ‚no
question that the charge he was convicted of would have been
dismissed‛ had trial counsel raised the defense.
¶9 The district court granted summary judgment and
dismissed Jackson’s petition, ruling that he had not
demonstrated prejudice as required by Strickland v. Washington,
466 U.S. 668 (1984).3 Specifically, the court considered ‚whether
[Jackson had] established a genuine issue of material fact that
there is a reasonable probability that, but for his counsel’s failure
to recognize and timely assert his statute of limitations defense
to unlawful sexual conduct, the outcome of the trial would have
been different.‛ It reasoned that by allowing ‚the unlawful
sexual conduct charge [to] go to the jury despite the fact that the
statute of limitations had expired, [Jackson] received the benefit
of a conviction of a lesser crime.‛ Further, the court determined
that the jury would have convicted Jackson of rape if the lesser
charge had been dismissed. As a result, it concluded there was
no reasonable probability of an acquittal even if counsel had
recognized and timely asserted Jackson’s statute-of-limitations
defense.
¶10 The district court’s decision relied heavily on this court’s
dicta in the decision resolving Jackson’s direct appeal. State v.
3. In his petition, Jackson also argued that his appellate counsel
was ineffective for failing to assert his ineffective-assistance-of-
trial-counsel claim on direct appeal. Because the district court
determined that this second claim depended upon the success of
Jackson’s first claim for relief, it dismissed Jackson’s second
claim after dismissing his first.
20130957-CA 4 2015 UT App 217Jackson v. State
Jackson, 2011 UT App 318, 263 P.3d 540. In holding that he
waived his statute-of-limitations defense at trial, this court
cautioned that Jackson would face a ‚heavy burden to establish
counsel’s ineffectiveness.‛ Id. ¶ 32.
[W]here some charges are time-barred and some
are not, as in this case, it is appropriate to consider
whether the defendant obtained a tactical
advantage by failing to raise the limitations
defense at trial. If the evidence is strong and the
risk of conviction on the greater offense with
higher penalties is likely, the defendant might
consciously refrain from asserting a statute of
limitations defense to a charge with lesser
penalties. If the jury has no other option, conviction
of the greater charge may be almost certain. By
allowing the lesser charge to go to the jury despite
the fact that the statute of limitations has expired,
the defendant may receive the benefit of a
conviction on a lesser crime.
Id. (footnotes omitted). Jackson now appeals from the district
court’s entry of summary judgment and its dismissal of his
PCRA petition.
ISSUE AND STANDARD OF REVIEW
¶11 ‚We review an appeal from an order dismissing or
denying a petition for post-conviction relief for correctness
without deference to the lower court’s conclusions of law.‛ Ross
v. State, 2012 UT 93, ¶ 18, 293 P.3d 345 (citation and internal
quotation marks omitted). ‚Similarly, we review a grant of
summary judgment for correctness, granting no deference to the
*lower+ court.‛ Id. (alteration in original) (citation and internal
quotation marks omitted). We will affirm such a decision ‚when
the record shows that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
20130957-CA 5 2015 UT App 217Jackson v. State
matter of law.‛ Id. (citation and internal quotation marks
omitted); see also Utah R. Civ. P. 56(c). In conducting our
analysis, ‚we view the facts and all reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.‛
Ross, 2012 UT 93, ¶ 18 (citation and internal quotation marks
omitted).
ANALYSIS
¶12 On appeal, Jackson argues that his counsel’s ‚failure to
identify and timely assert the statute of limitations‛ defense to
the lesser charge was ‚not tactical‛ and ‚fell below the range of
reasonable professional assistance.‛ Further, her decision ‚could
not have been strategic because she was unaware that the statute
of limitations on unlawful sexual conduct had expired until after
trial.‛ The State counters that ‚Jackson failed to demonstrate . . .
that *counsel’s+ decision to offer the jury a lower but time barred
charge fell below an objective standard of reasonableness.‛
According to the State, ‚counsel’s forfeiture of the statute of
limitations defense was an objectively sound trial strategy—
whether counsel knew it or not.‛ Jackson responds that the
question is not whether the strategy was reasonable, but whether
counsel’s failure to identify and examine a defense was
reasonable. We conclude that Jackson has not demonstrated
deficiency in his trial counsel’s performance.
¶13 In the context of a summary judgment motion in a PCRA
proceeding premised on a claim of ineffective assistance of
counsel, Jackson ‚bears the burden of proving his underlying
legal claims of ineffective assistance of counsel.‛ See Menzies v.
State, 2014 UT 40, ¶ 81, 344 P.3d 581. When the State files its
motion for summary judgment, it ‚bears the initial burden of
showing that it is entitled to judgment and that there is no
genuine issue of material fact that would preclude summary
judgment in [its+ favor.‛ Id. (alteration in original) (citation and
internal quotation marks omitted). ‚Once the State makes that
20130957-CA 6 2015 UT App 217Jackson v. State
showing, the burden of proof then shifts to [Jackson,] the
nonmoving party . . . .‛ See id. Because Jackson bears the burden
of proving ineffective assistance, he ‚cannot rest on *his+
allegations alone‛ but instead ‚must set forth specific facts
showing that there is a genuine issue for trial.‛ Id. (alteration in
original) (citations and internal quotation marks omitted).
¶14 Under the PCRA, a criminal defendant may obtain relief if
he establishes he received ineffective assistance of counsel.4 Utah
Code Ann. § 78B-9-104(1)(d) (LexisNexis 2012). To prevail on
such a claim, Jackson must meet his burden under Strickland v.
Washington, 466 U.S. 668 (1984), which requires a defendant to
show (1) ‚counsel’s performance was deficient‛ and (2) ‚the
deficient performance prejudiced the defense.‛ Id. at 687.
¶15 ‚A satisfactory showing of both parts of the Strickland test
is required for the defendant to prevail.‛ Menzies, 2014 UT 40,
¶ 78. ‚As a result, it is not necessary for us to address both
components of the inquiry if we determine that a defendant has
made an insufficient showing on one.‛ Id. (citation and internal
quotation marks omitted). Because Jackson has failed to
demonstrate deficient performance, we do not address the
prejudice prong.5
4. Although Jackson may not raise an ineffective-assistance-of-
trial-counsel claim under the PCRA without also demonstrating
that his appellate attorney was deficient, because Jackson’s trial
counsel also represented him on direct appeal, we may examine
his claim that she rendered constitutionally ineffective
assistance. See Johnson v. State, 2011 UT 59, ¶ 11, 267 P.3d 880.
5. Although the district court’s grant of summary judgment
relied on its conclusion that Jackson failed to show prejudice
stemming from his counsel’s performance, we may affirm on
‚any legal ground or theory apparent on the record.‛ Bailey v.
(continued...)
20130957-CA 7 2015 UT App 217Jackson v. State
¶16 Our court ‚must indulge in a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.‛ Strickland, 466 U.S. at 689. To overcome
this presumption, Jackson must demonstrate that counsel’s
‚representation fell below an objective standard of
reasonableness‛ under ‚prevailing professional norms‛ and was
not part of a ‚sound trial strategy.‛ See id. at 688–89 (citation and
internal quotation marks omitted). Given the ‚strong
presumption of competence, we need not come to a conclusion
that counsel, in fact, had a specific strategy in mind.‛ State v.
Tennyson, 850 P.2d 461, 468 (Utah Ct. App. 1993) (citing
Strickland, 466 U.S. at 689). ‚Instead, we need only articulate
some plausible strategic explanation for counsel’s behavior.‛ Id.This ‚calls for an inquiry into the objective reasonableness of
counsel’s performance, not counsel’s subjective state of mind.‛
Harrington v. Richter, 562 U.S. 86, 109–10 (2011) (citing Strickland,
466 U.S. at 688).
¶17 Jackson has not overcome the strong presumption that his
trial counsel’s waiver of the statute-of-limitations defense might
be considered sound trial strategy. His affidavit merely alleges
that his attorney did not discuss the statute-of-limitations issue
with him before trial, did not inform him that she made a
strategic decision about proceeding with the unlawful-sexual-
(…continued)
Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158 (citation and internal
quotation marks omitted); see also Butterfield v. Cook, 817 P.2d
333, 338 (Utah Ct. App. 1991) (declining to reach the issue of
whether counsel performed deficiently and instead affirming on
the alternative basis that counsel’s performance was not
prejudicial).
20130957-CA 8 2015 UT App 217Jackson v. State
conduct charge, and was unaware of the possibility.6 This is not
enough to rebut the ‚presumption that, under the circumstances,
the challenged action might be considered sound trial strategy.‛
See Strickland, 466 U.S. at 687–88 (citation and internal quotation
marks omitted). Accordingly, we consider whether such a
tactical decision would fall within the ‚wide range of reasonable
professional assistance.‛ See id. at 689.
¶18 In some instances, reasonable trial counsel may decide her
client would benefit from submitting to the jury an instruction
on a time-barred lesser charge. ‚*I+t has long been recognized
that [an instruction on a lesser offense] can . . . be beneficial to
the defendant because it affords the jury a less drastic alternative
than the choice between conviction of the offense charged and
acquittal.‛ Beck v. Alabama, 447 U.S. 625, 633 (1980). As our
supreme court has acknowledged, ‚the availability of the ‘third
option’—the choice of conviction of a lesser offense rather than
conviction of the greater or acquittal—gives the defendant the
benefit of the reasonable doubt standard.‛ State v. Baker, 671 P.2d
152, 157 (Utah 1983). But the absence of a lesser-offense
instruction and the presence of an ‚all-or-nothing choice‛ may
‚increase[] the risk that the jury will convict . . . to avoid setting
the defendant free.‛ Spaziano v. Florida, 468 U.S. 447, 455 (1984).
On Jackson’s direct appeal, this court recognized the potential
benefits of an instruction on a time-barred lesser offense. State v.
Jackson, 2011 UT App 318, ¶ 32, 263 P.3d 540. This court also
acknowledged the possibility that a defendant like Jackson
might consciously refrain from asserting a statute-of-limitations
defense to a charge with lesser penalties where the evidence is
6. Jackson’s affidavit was required to ‚set forth . . . facts as would
be admissible in evidence,‛ but much of it relies on inadmissible
hearsay and was not ‚made on personal knowledge,‛ as the rule
requires. Utah R. Civ. P. 56(e).
20130957-CA 9 2015 UT App 217Jackson v. State
strong and the risk of conviction on a greater offense with higher
penalties is likely.7 Id.
¶19 On this appeal, Jackson asks us to review trial counsel’s
performance subjectively. But our consideration of counsel’s
performance does not depend on ‚counsel’s subjective state of
mind.‛ Harrington, 562 U.S. at 109–10 (citing Strickland, 466 U.S.
at 688). Rather, we focus on the ‚objective reasonableness of
counsel’s performance.‛ Id. (citing Strickland, 466 U.S. at 688).
Under the circumstances of this case, professionally competent
trial counsel may have reasonably chosen to forgo raising a
statute-of-limitations defense to the lesser charge of unlawful
sexual conduct. Had she raised the defense, the court likely
would have dismissed the alternative charge and the jury would
have been left with the choice of convicting Jackson of first-
degree-felony rape or acquitting him entirely. Objectively,
counsel could have reasonably concluded that faced with an all-
or-nothing choice, there was a greater likelihood the jury would
convict Jackson of the more serious charge. And reasonable
counsel may well have decided that the risk of conviction on the
time-barred lesser charge was worth it given the reduced risk of
a conviction on the greater charge.8 Because waiving the statute-
7. In a similar vein, this court generally affords deference to
defense counsel’s decision to request or not request a lesser-
included-offense instruction in recognition that ‚counsel is in the
best position to gauge the defendant’s likelihood of defeating a
charge outright and to weigh the possibility that acquittal is not
in the cards but that a jury might be satisfied with a conviction
on a lesser charge.‛ State v. Binkerd, 2013 UT App 216, ¶ 31, 310
P.3d 755.
8. In fact, Jackson’s counsel likely recognized the advantages of a
lesser offense being submitted to the jury. After the jury posed a
question to the court during its deliberations regarding consent,
(continued...)
20130957-CA 10 2015 UT App 217Jackson v. State
of-limitations defense in this context would constitute a sound
trial strategy, we conclude Jackson’s trial counsel’s performance
was not objectively deficient.
CONCLUSION
¶20 Jackson has not demonstrated that his counsel’s
performance fell below an objective standard of reasonableness,
and we therefore conclude his ineffective-assistance-of-counsel
claim fails. As a consequence, we affirm the district court’s grant
of summary judgment and dismissal of Jackson’s PCRA petition.
(…continued)
counsel affirmatively requested an additional jury instruction on
another lesser offense—incest—even though, like the crime of
unlawful sexual conduct, the statute of limitations had expired.
This request also reflected a reasonable strategic choice.
20130957-CA 11 2015 UT App 217