Hamblin v. State , 788 Utah Adv. Rep. 22 ( 2015 )

2015 UT App 144_________________________________________________________
THE UTAH COURT OF APPEALS
JASON TYLER HAMBLIN,
Petitioner and Appellant,
v.
STATE OF UTAH,
Respondent and Appellee.
Memorandum Decision
No. 20130415-CA
Filed June 4, 2015
Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 120901750
Andrew Parnes and Brent A. Gold, Attorneys
for Appellant
Sean D. Reyes and Andrew F. Peterson, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and JOHN A.
PEARCE concurred.
CHRISTIANSEN, Judge:
¶1 Jason Tyler Hamblin appeals from the district court’s ruling
on his petition for postconviction relief. Hamblin argues that his
trial counsel and appellate counsel rendered constitutionally
ineffective assistance. We conclude that Hamblin’s claims of trial
counsel’s ineffectiveness are procedurally barred and that he has
failed to demonstrate that appellate counsel was constitutionally
ineffective. We therefore affirm.
Hamblin v. State
¶2 Hamblin was accused of sexually abusing a minor who
temporarily lived with him at his stepmother’s house.1 The victim
accused Hamblin of a number of sexual offenses against her,
including several instances of object rape. The State charged
Hamblin with multiple sexual-abuse offenses against the victim,
including one count of object rape. The probable cause statement
filed in support of the information included an averment that
Hamblin had abused the victim by placing a lightbulb in her
rectum. Before the preliminary hearing, however, the State
amended the information to remove the reference to the lightbulb
and to change the object-rape charges to two counts based on an
averment that Hamblin had abused the victim with two other
objects. At the preliminary hearing, the victim testified to the two
instances of object rape alleged in the amended information. When
asked if Hamblin had abused her with “other objects other than
those two,” the victim denied that Hamblin had abused her with
any other objects. The victim also testified that she had been
sexually abused by her brother (Brother).
¶3 At trial, defense counsel planned to attack the victim’s
credibility by highlighting the inconsistency between her initial
accusations and her preliminary-hearing testimony regarding
whether Hamblin abused her with a lightbulb. Defense counsel
sought to persuade the jury that the victim “had attributed acts of
sexual abuse to the Defendant that had been committed by
[Brother]” and thereby undermine the accuracy and reliability of
her testimony. On cross-examination, defense counsel confronted
the victim with the inconsistency between her initial accusation
against Hamblin and her preliminary-hearing testimony. Defense
counsel highlighted the victim’s detailed description of the abuse
she had related involving Hamblin and the lightbulb and asked the
1. This decision recounts only those details of the offenses and
proceedings necessary to understand the issues on appeal. Further
background information is contained in our decision affirming
Hamblin’s convictions on direct appeal. See generally State v.
Hamblin, 2010 UT App 239, 239 P.3d 300.
20130415-CA 2 2015 UT App 144Hamblin v. State
victim to explain why she had initially accused Hamblin of abuse
that she now attributed to Brother. The victim conceded that she
was “confused for a long time” regarding who had abused her and
that “it got all kind of jumbled up” but that she now knew Brother,
not Hamblin, had abused her with the lightbulb.
¶4 Defense counsel argued in closing that all of the instances of
abuse the victim testified to had been committed by Brother and
not by Hamblin. The jury convicted Hamblin of one count of rape
of a child, one count of sodomy on a child, and two counts of
sexual abuse of a child but acquitted Hamblin of the remaining four
charges, including both charges of object rape.
¶5 Hamblin moved for a new trial, arguing that the prosecution
had failed to disclose that the victim had recanted her accusation
that Hamblin abused her with a lightbulb and that the
nondisclosure was a Brady violation.2 State v. Hamblin, 2010 UT App
239, ¶ 10, 239 P.3d 300. The district court denied Hamblin’s motion,
and he appealed. Id. This court affirmed, concluding that if any
Brady violation had occurred, Hamblin was not prejudiced, because
defense counsel had effectively used the evidence to his advantage
once it came to light at trial. Id. ¶ 17. This court observed that
defense counsel had effectively impeached the victim by
highlighting the discrepancy between her initial accusations and
trial testimony:
The victim’s credibility was very much at issue
throughout the entire trial, and the evidence of the
victim’s recantation and Brother’s admission to
abusing her with a light bulb came out in a way that
was quite helpful to Hamblin. Disclosure of the
recantation midtrial bolstered the defense’s claim
2. Brady v. Maryland establishes that the prosecution must disclose
to the defendant before trial any “evidence favorable to an
accused” if that evidence is “material either to guilt or to
punishment.” 373 U.S. 83, 87 (1963).
20130415-CA 3 2015 UT App 144Hamblin v. State
that the victim could not really remember who
assaulted her and that, over time, she would come to
realize that, as typified by the light bulb episode, all
the assaults were perpetrated by Brother. Further,
Hamblin’s trial counsel was able to utilize this
evidence to effectively attack the victim’s credibility
by questioning her regarding the discrepancies in her
original and subsequent allegations. Indeed, Hamblin
was ultimately acquitted on four of the counts
against him, including all object-rape counts.
Id.
¶6 Thereafter, Hamblin filed the present petition in the district
court for relief under the Post-Conviction Remedies Act (the
PCRA). He argued, among other things, that trial counsel rendered
ineffective assistance by failing to “investigate or request discovery
about the significant change in [the victim’s] testimony” and for
recommending that Hamblin proceed to trial with a strategy of
impeaching the victim with her inconsistent statements rather than
accepting a plea agreement or seeking a mistrial.3 Hamblin also
argued that counsel for his direct appeal rendered ineffective
assistance by failing to “raise the issues of violations of [Hamblin’s]
Sixth Amendment rights” in a motion under rule 23B of the Utah
Rules of Appellate Procedure and thereby obtain an evidentiary
hearing that Hamblin asserts would have led to a reversal of his
convictions. The district court denied Hamblin’s first claim as
procedurally barred and granted summary judgment to the State
on his remaining claims. Hamblin appeals.
¶7 “We review an appeal from an order dismissing or denying
a petition for post-conviction relief for correctness without
3. Hamblin raised other claims of trial counsel’s ineffectiveness in
his PCRA petition, but he has not challenged on appeal the district
court’s rulings on those claims. We therefore do not discuss them
further.
20130415-CA 4 2015 UT App 144Hamblin v. State
deference to the lower court’s conclusions of law.” Taylor v. State,
2012 UT 5, ¶ 8, 270 P.3d 471 (citation and internal quotation marks
omitted).
I. Ineffective Assistance of Trial Counsel
¶8 Hamblin argues that two of the district court’s rulings
regarding trial counsel’s performance are erroneous. First, he
argues that the district court erred in concluding that his failure-to-
investigate claim was procedurally barred. Second, he argues that
the district court erred in determining that trial counsel did not
perform deficiently by advising Hamblin to reject a plea offer and
proceed to trial with a strategy of impeaching the victim. Because
we conclude that both of Hamblin’s claims that trial counsel
rendered ineffective assistance are procedurally barred, we affirm
the district court’s denial of relief.
¶9 Generally, a claim is barred under the PCRA if it “was raised
or addressed at trial or on appeal” or “could have been but was not
raised at trial or on appeal.” Utah Code Ann. § 78B-9-106(1)(b), (c)
(LexisNexis Supp. 2011). Where a claim that trial counsel was
ineffective “could have been but was not raised” on appeal, that
claim is barred under the PCRA, and we may consider only
whether appellate counsel was constitutionally ineffective for
failing to raise the claim on appeal. Ross v. State, 2012 UT 93,
¶¶ 24–25, 293 P.3d 345 (citation and internal quotation marks
omitted).
¶10 We conclude that both of Hamblin’s claims of ineffective
assistance of trial counsel could have been but were not raised on
appeal and are therefore barred. Hamblin was represented by new
counsel on direct appeal who could have raised these claims that
trial counsel was constitutionally ineffective. Hamblin has
identified no evidentiary or legal bases for these claims that were
unavailable to appellate counsel at the time of his appeal or
otherwise demonstrated that these claims could not have been
brought on appeal. We are therefore precluded from directly
20130415-CA 5 2015 UT App 144Hamblin v. State
assessing the merits of Hamblin’s claims that trial counsel was
ineffective. Id.II. Ineffective Assistance of Appellate Counsel
¶11 Nevertheless, Hamblin may obtain relief under the PCRA if
he demonstrates that appellate counsel’s failure to argue trial
counsel’s ineffectiveness was itself ineffective assistance of counsel.
Id. ¶ 24; see also Utah Code Ann. § 78B-9-106(4). Because Hamblin’s
“claim that his appellate counsel was ineffective is intertwined with
and dependent upon his claim that his trial counsel was
ineffective,” we must “examine the merits of the claim of ineffective
assistance of trial counsel” to determine if appellate counsel
rendered ineffective assistance. Ross, 2012 UT 93, ¶ 25 (citation and
internal quotation marks omitted). However, “we may examine the
merits of that claim ‘only to the extent required to address’ the
ineffective assistance of appellate counsel claim.” Id. (quoting Utah
Code Ann. § 78B-9-106(4) (LexisNexis 2012)).
¶12 “The standard for evaluating whether appellate counsel is
ineffective is the same Strickland standard used to determine
whether trial counsel is ineffective.” Kell v. State, 2008 UT 62, ¶ 42,
194 P.3d 913. To succeed on a claim of ineffective assistance of
counsel, a defendant must show both “that counsel’s performance
was deficient” and “that the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “To
show that appellate counsel was ineffective in failing to raise a
claim, the petitioner must show that the issue [was] obvious from
the trial record and . . . probably would have resulted in reversal on
appeal.” Kell, 2008 UT 62, ¶ 42 (alteration and omission in original)
(citation and internal quotation marks omitted). “Finally, when
making a claim under the PCRA, the petitioner bears the burden of
establishing ineffective assistance of appellate counsel.” Ross, 2012
UT 93, ¶ 24.
¶13 Hamblin first argues that appellate counsel should have
raised a claim that trial counsel was ineffective for failing to
20130415-CA 6 2015 UT App 144Hamblin v. State
discover that “long before trial, [the victim] corrected the initial
incorrect statement that [Hamblin] abused her with a light bulb”
and for failing to investigate the victim’s change in testimony.
Hamblin argues that had appellate counsel “properly investigated
and obtained trial counsel’s file,” appellate counsel would have
discovered this claim.
¶14 However, even if we assume appellate counsel performed
deficiently in failing to investigate and raise this claim, Hamblin
has not shown that he was prejudiced by appellate counsel’s
performance, because he has not shown that raising the claim
“probably would have resulted in reversal on appeal.” Kell, 2008
UT 62, ¶ 42 (citation and internal quotation marks omitted).
Indeed, Hamblin does not even assert that a reversal on appeal was
likely if appellate counsel had raised this claim, let alone explained
why. Accordingly, Hamblin has failed to carry his burden of
establishing that appellate counsel was ineffective for failing to
raise this claim. See Ross v. State, 2012 UT 93, ¶ 24, 293 P.3d 345.
¶15 Next, Hamblin argues that appellate counsel rendered
ineffective assistance by failing to claim that trial counsel was
ineffective for recommending Hamblin proceed to trial rather than
accept a plea bargain. To determine whether appellate counsel’s
decision not to raise this claim prejudiced Hamblin, we must
evaluate trial counsel’s actions to determine if the claim “probably
would have resulted in reversal on appeal,” Kell, 2008 UT 62, ¶ 42
(citation and internal quotation marks omitted). Because we
conclude that Hamblin has failed to demonstrate that trial counsel
was constitutionally ineffective, he was not prejudiced by appellate
counsel’s decision not to raise this claim on appeal.
¶16 To demonstrate that trial counsel performed deficiently,
Hamblin “must overcome the presumption that, under the
circumstances, the challenged action might be considered sound
trial strategy.” Strickland, 466 U.S. at 689 (citation and internal
quotation marks omitted). We therefore must determine if “a
rational basis for counsel’s performance can be articulated,” and if
20130415-CA 7 2015 UT App 144Hamblin v. State
so, we will “assume counsel acted competently.” State v. Lucero,
2014 UT 15, ¶ 43, 328 P.3d 841 (citation and internal quotation
marks omitted). To “eliminate the distorting effects of hindsight,”
we “evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689.
¶17 During trial, as a result of certain errors that are not before
us in this matter, the trial court offered to declare a mistrial and the
State offered Hamblin a plea deal. According to Hamblin, trial
counsel advised him to reject the offers because counsel “liked the
jury” and believed that, once he cross-examined the victim and
highlighted the inconsistencies in her testimony, the jury would
acquit Hamblin on all charges. Hamblin argues that trial counsel’s
strategy was fatally flawed because the victim was prepared to deal
with the inconsistencies in her testimony and that trial counsel
should have recognized that “his defense strategy had been
discredited by the [S]tate prior to trial.” Hamblin asserts that trial
counsel’s decision to go forward with this strategy was not “based
on proper investigation to support a strategic decision” because
trial counsel either “overlooked” or “negligently failed to take into
account this information.”
¶18 However, at the time of trial, defense counsel knew that the
State had struck the lightbulb-abuse charge from the information,
that the victim had not testified to the lightbulb abuse at the
preliminary hearing, and that the victim had, in fact, testified at the
preliminary hearing that she had not been abused by Hamblin with
any objects other than those included in the information.
Accordingly, trial counsel would have known that the victim was
unlikely to testify that Hamblin had abused her with a lightbulb
and no further investigation was necessary to determine whether
to proceed with the impeachment strategy.
¶19 Moreover, we are not convinced that trial counsel’s strategy
of impeaching the State’s key witness with her inconsistent
testimony regarding who had abused her was objectively deficient.
The State presented no physical evidence linking Hamblin to the
20130415-CA 8 2015 UT App 144Hamblin v. State
crimes, and the only direct evidence of his involvement came from
the victim’s testimony. Accordingly, it was not objectively
unreasonable for trial counsel to recommend seeking a full
acquittal by undermining the victim’s credibility. Indeed, Hamblin
was acquitted of all of the object-rape charges—those charges most
directly impacted by trial counsel’s impeachment of the victim.
That trial counsel’s strategy was not as effective as he had hoped
does not render it objectively unreasonable. Rather, given what
trial counsel knew at the time, and because that knowledge of the
victim’s likely testimony was adequate to assess the viability of an
impeachment strategy, we conclude that trial counsel did not
perform deficiently by recommending Hamblin proceed to trial on
a strategy of impeachment rather than taking the plea. Because a
claim that trial counsel was ineffective in this regard would not
have likely resulted in a reversal on appeal, Hamblin was not
prejudiced by appellate counsel’s failure to raise it. Kell v. State,
2008 UT 62, ¶ 42, 194 P.3d 913.
¶20 Finally, Hamblin argues that appellate counsel’s failure to
raise the issues of trial counsel’s ineffectiveness in a rule 23B
motion is a stand-alone basis for reversal of his convictions. Rule
23B permits a party to an appeal in a criminal case to move the
appellate court for a temporary remand to the district court for the
entry of factual findings necessary to resolve a claim of ineffective
assistance of counsel. Utah R. App. P. 23B(a). However, Hamblin
“cannot meet his burden [to show ineffective assistance of counsel]
by merely pointing out what counsel did not do; he must bring
forth the evidence that would have been available in the absence of
counsel’s deficient performance.” State v. Lee, 2014 UT App 4, ¶ 12,
318 P.3d 1164.
¶21 Hamblin has not identified the evidence he believes
appellate counsel should have sought to enter into the record
under rule 23B. Because it is “improper to remand a claim under
rule 23B for a fishing expedition,” Hamblin has not demonstrated
that a rule 23B motion by appellate counsel would have been well
taken. See State v. Griffin, 2015 UT 18, ¶ 19 (citation and internal
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quotation marks omitted). Accordingly, Hamblin has not
demonstrated that he was prejudiced by his appellate counsel’s
decision not to file such a motion.
¶22 Affirmed.
20130415-CA 10 2015 UT App 144