State v. Abelon , 2016 Utah App. LEXIS 23 ( 2016 )

2016 UT App 22THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
MICHAEL PIYAPATANA ABELON,
Appellant.
Opinion
No. 20140508-CA
Filed February 4, 2016
Second District Court, Farmington Department
The Honorable David M. Connors
No. 131700855
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Mark C. Field, Attorneys
for Appellee
JUSTICE JOHN A. PEARCE authored this Opinion, in which JUDGES
GREGORY K. ORME and STEPHEN L. ROTH concurred.1
PEARCE, Justice:
¶1 Michael Piyapatana Abelon appeals his convictions on six
counts of sexual exploitation of a minor, each a second degree
felony. We affirm Abelon’s convictions and sentence but remand
the case to the district court for further proceedings to resolve
Abelon’s objections to his presentence investigation report under
Utah Code section 77-18-1(6)(a).
1. Justice John A. Pearce began his work on this case as a
member of the Utah Court of Appeals. He became a member of
the Utah Supreme Court thereafter and completed his work on
the case sitting by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 3-108(3).
State v. Abelon
BACKGROUND
¶2 The State charged Abelon after the Internet Crimes
Against Children Task Force (ICAC) discovered videos and
images of child pornography on Abelon’s laptop computer and
hard drive. ICAC investigators found sexually explicit images of
children on each device. The laptop also contained six
pornographic videos depicting children. Investigators were
unable to access the files on a second laptop they had seized
from Abelon’s apartment because of an encryption program on
the computer. After Abelon was charged, the district court
appointed a public defender to serve as Abelon’s counsel.
¶3 As his case worked its way towards trial, Abelon
complained to the district court multiple times about his
appointed counsel. About eight months before trial, Abelon
asked the district court to appoint him a new attorney. Abelon
alleged that his counsel was not doing enough to prepare his
defense and that counsel was not communicating with him to his
satisfaction. According to Abelon, he had lost confidence in his
counsel and a conflict of interest therefore existed. At a hearing
on Abelon’s complaints, appointed counsel detailed his efforts to
communicate with Abelon and to prepare his defense. The
district court ruled that it had ‚not heard anything that rises to
the level of an actual conflict that would allow [the court] to
change counsel.‛
¶4 Two weeks later, Abelon again sought replacement
counsel. Abelon again asserted a loss of trust and confidence in
his counsel and alleged that his attorney was not adequately
communicating with him. At a hearing, counsel again outlined
his efforts to the district court. Counsel’s supervisor at the public
defender’s office also testified, expressing his opinions that
Abelon’s dissatisfaction with his counsel’s performance did not
rise to the level of a conflict of interest and that Abelon’s counsel
had ‚done the things *he+ should have done by this point [in the
20140508-CA 2 2016 UT App 22State v. Abelon
proceedings].‛ The supervisor also expressed a willingness to
meet with Abelon to discuss his concerns. The district court
again declined to replace Abelon’s counsel.
¶5 Six months later, at a pretrial hearing, Abelon yet again
expressed dissatisfaction with his counsel, claiming the existence
of ‚an atmosphere of mistrust, distrust, and just basically
irreconcilable differences.‛ He complained that his counsel was
not prepared and had failed to follow through on various
requests that Abelon had made. The district court again told
Abelon that the grounds he raised did not warrant substituting
counsel, and the court expressed its confidence that Abelon’s
counsel could provide a zealous defense. Abelon’s counsel also
placed on the record an extensive list of his efforts in preparing
Abelon’s defense, and he assured the court that he was fully
prepared for trial.
¶6 Two weeks later, at the final pretrial hearing, the court
informed counsel for both parties that Abelon had filed a
handwritten document in the district court entitled, ‚Writ of
Certiorari.‛ In the document, Abelon requested a stay of
proceedings, a review of the transcript for ineffective assistance
of counsel and judicial bias, the appointment of new counsel
from outside the public defender’s office, and disqualification of
the district court judge. The district court treated the pleading as
a motion to replace Abelon’s appointed counsel.
¶7 The district court reminded Abelon that it had recently
declined his previous request for new appointed counsel and
inquired, ‚Is there anything else that’s come up new since the
last time we talked regarding your relationship with *counsel+?‛
Abelon responded that they were ‚the same issues‛ but again
asserted that those ongoing issues warranted the appointment of
new counsel. The district court then heard from Abelon’s
counsel, who reiterated an extensive list of his trial preparations
and expressed his opinion that Abelon’s motion was a stall
20140508-CA 3 2016 UT App 22State v. Abelon
tactic. The district court allowed Abelon to respond to his
counsel’s statement. Abelon stated,
It’s very misleading from what *counsel+ has been
saying. I’ve requested things, they have not been
done. If you want specifics then that would require
me to specify our talks I believe that are
confidential. But if you wish for me to name
specific things that I have been requesting then the
prosecution would have that advantage that I think
would be unfair.
The district court again denied Abelon’s motion for appointment
of new counsel and informed Abelon that his choices remained
to proceed with his existing counsel, to retain private counsel, or
to represent himself. The district court explained, ‚*T+here is not
a fourth option to go forward with a different public defender.
We’ve had that discussion at least twice now, nothing new has
come up in that regard and so I would simply deny that request
again.‛ In light of the options available to him, Abelon stated
that he was ‚forced‛ to have existing counsel continue to
represent him.
¶8 Abelon’s case proceeded to a jury trial, at which Abelon
was represented by his originally appointed counsel. At trial, the
parties stipulated that the six videos found on Abelon’s laptop
constituted child pornography. Abelon’s primary defense
argument was that the State could not prove that Abelon had
viewed the child pornography. The State’s witnesses conceded
on cross-examination that they did not know who was sitting at
the computer when the files containing child pornography were
viewed. Nevertheless, the jury convicted Abelon as charged.
¶9 At Abelon’s sentencing, the district court inquired if there
were any corrections to be made to the presentence investigation
report (PSR). Abelon and his counsel alleged that there were
20140508-CA 4 2016 UT App 22State v. Abelon
multiple inaccuracies in the PSR. Abelon summarizes these
alleged inaccuracies in his appellate brief, stating that the PSR
(1) inaccurately reflects the number of videos
located by the authorities upon seizing and
examining the items retrieved from his residence,
(2) inappropriately requests the court to ‚order
[Abelon] to pay all accrued back child support‛,
(3) inaccurately reflects that authorities found
videos and photographs on *Abelon’s+ computers
of a sexual nature involving *Abelon’s+ children,
(4) inaccurately indicates that investigators
discovered files of child pornography ‚locked with
sophisticated encryption codes and passwords‛,
(5) inaccurately states that [Abelon] ‚refused to
cooperate with police and providing them with
these passwords‛, (6) inaccurately indicates the
name and content of a file by stating, ‚Another
example was a file titled; *‘+beautiful 8 yr old girl
blow job.AVI.*’+‛, which is actually a registry
entry, (7) inaccurately refers to a CD being
discovered, ‚containing a 31 page story about
incest‛, which incorrectly reflects the content of the
CD and that it is illegal, (8) inaccurately indicates
that the video depicted his children in a sexual
nature, (9) inaccurately reflects that [Abelon] kept
his ‚children isolated in the home and frequently
would not allow them to go outside to play with
other children‛, (10) inaccurately reflects that one
of *Abelon’s+ children was a victim awarded some
sort of a claim, and (11) inaccurately indicates that
*Abelon+ ‚failed to disclose he owes $25,574.13 in
back child support‛.
(Footnotes and citations omitted.) The State conceded at
sentencing that Abelon had ‚some points about the factual
20140508-CA 5 2016 UT App 22State v. Abelon
statements‛ and urged the court to ‚disregard anything in *the
PSR+ that *was+ not consistent with what *the court+ saw at trial.‛
However, the district court never made express findings on the
accuracy and relevance of the alleged inaccuracies that Abelon
had challenged.
¶10 The district court sentenced Abelon to six concurrent
prison terms of one to fifteen years. The court suspended those
terms of imprisonment, placed Abelon on thirty-six months of
probation, and ordered him to serve 365 days in jail with credit
for 275 of the 362 days he had already served. The district court
also imposed a $1,000 fine and ordered restitution to be held
open for twelve months. Abelon appeals.
ISSUES AND STANDARDS OF REVIEW
¶11 Abelon raises three issues on appeal. First, Abelon argues
that the district court erred when it failed to reasonably inquire
into his dissatisfaction with his appointed counsel. ‚We review
[w]hether a trial court should have inquired further into a
defendant’s dissatisfaction with counsel . . . for an abuse of
discretion.‛ State v. Waterfield, 2014 UT App 67, ¶ 10, 322 P.3d
1194 (alteration and omission in original) (citation and internal
quotation marks omitted). Second, Abelon argues that the
district court erred by failing to resolve his objections to the PSR
as required by Utah Code section 77-18-1(6)(a). Whether the
district court complied with its legal duties under section 77-18-
1(6)(a) ‚is a question of law that we review for correctness.‛ State
v. Veteto, 2000 UT 62, ¶ 13, 6 P.3d 1133. Finally, Abelon argues
that his trial counsel provided him with ineffective assistance by
failing to affirmatively ask the district court to make findings
under section 77-18-1(6)(a). ‚An ineffective assistance of counsel
claim raised for the first time on appeal presents a question of
law.‛ State v. Ott, 2010 UT 1, ¶ 22, 247 P.3d 344 (citation and
internal quotation marks omitted).
20140508-CA 6 2016 UT App 22State v. Abelon
ANALYSIS
I. Abelon’s Request for Substitute Counsel
¶12 Abelon first argues that the district court failed to conduct
an adequate inquiry into his expressed dissatisfaction with his
appointed counsel. We have held that when a defendant
expresses dissatisfaction with his or her appointed counsel, the
district court has an ‚affirmative obligation to investigate‛ the
reasons for the defendant’s dissatisfaction. Waterfield, 2014 UT
App 67, ¶ 11; see also 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
to the point that sound discretion requires
substitution or even to such an extent that his or
her Sixth Amendment right to counsel would be
violated but for substitution.
Pursifell, 746 P.2d at 273. In evaluating a defendant’s complaints,
‚the court must balance the potential for last minute delay and
the propensity for manipulation of the system against the
competing concern about the likely inability of indigent
defendants to articulate and communicate their dissatisfaction in
a setting which most laypersons find quite intimidating.‛ Id.¶13 As stated above, the district court addressed Abelon’s
dissatisfaction with counsel on four separate occasions. See supra
¶¶ 3–7. On appeal, Abelon challenges only the district court’s
handling of his final request for substitution of counsel. He
asserts that the district court denied his final motion for
20140508-CA 7 2016 UT App 22State v. Abelon
substitution of counsel ‚[w]ithout inquiry,‛ relying solely on the
grounds upon which the court had denied his previous requests.
¶14 We disagree with Abelon’s characterization of what
transpired below. Having addressed Abelon’s complaints about
his appointed counsel on three previous occasions, the district
court asked Abelon, ‚Is there anything else that’s come up new
since the last time we talked regarding your relationship with
*appointed counsel+?‛ Abelon admitted that his latest request
was based on ‚the same issues‛ as his previous requests.2
¶15 The district court then allowed Abelon to reiterate his
complaints about his counsel’s performance. Abelon told the
court, ‚I’ve asked *counsel+ for several things to be done and
they have not been done.‛ Abelon complained that his counsel
had not given him information he had requested and had not
‚pursued the things [Abelon had] requested regarding [his]
case,‛ resulting in delays and the likelihood of Abelon going to
trial without the requested actions having been taken.
¶16 In response, Abelon’s counsel pointed out that Abelon
was ‚just talking in generalities.‛ Abelon’s counsel also
provided a lengthy list of his trial preparations and attempts to
satisfy Abelon’s requests. Counsel’s statements echoed those that
both he and his supervisor had made in response to Abelon’s
2. If the district court properly handled the prior requests with
adequate inquiries into Abelon’s dissatisfaction, it follows that
the district court adequately investigated Abelon’s final request
by assuring itself that Abelon was not raising any new
complaints that the district court had not already rejected as
grounds for substituting counsel. Abelon does not challenge the
district court’s handling of his first three requests for new
appointed counsel, and we presume that the district court did, in
fact, properly handle those prior requests.
20140508-CA 8 2016 UT App 22State v. Abelon
previous complaints. The district court then invited Abelon to
have ‚the final word,‛ whereupon Abelon repeated, ‚I’ve
requested things, they have not been done.‛ Abelon then
informed the court that he could not provide further detail
without divulging confidential attorney–client matters.
¶17 We cannot say that the district court abused its discretion
in declining to conduct further inquiry into Abelon’s
dissatisfaction. The district court had explored Abelon’s
complaints in addressing his three prior requests for new
counsel, and Abelon admitted to the court that his fourth request
was based on ‚the same issues‛ he had previously raised. Under
the circumstances, the district court apprised ‚itself of the facts
necessary to determine whether the defendant’s relationship
with his or her appointed attorney [had] deteriorated to the
point that sound discretion require[d] substitution.‛ See State v.
Pursifell, 746 P.2d 270, 273 (Utah Ct. App. 1987). We therefore
reject Abelon’s argument that the district court erred by failing
to adequately inquire into his dissatisfaction with his appointed
counsel.3
3. Abelon also suggests that, even without the benefit of further
inquiry by the district court, his complaints demonstrated ‚that
his dissatisfaction with appointed trial counsel rose to a
constitutional level, requiring the appointment of substitute
counsel.‛ However, Abelon has failed to establish that the
generalized complaints he asserted to the district court entitled
him to new counsel as a matter of law. See State v. Waterfield,
2014 UT App 67, ¶ 10, 322 P.3d 1194 (‚*W+e determine as a
matter of law whether a trial court’s refusal to appoint substitute
counsel violated a defendant’s Sixth Amendment right to
counsel.‛).
20140508-CA 9 2016 UT App 22State v. Abelon
II. Abelon’s Objections to the PSR
¶18 Abelon’s remaining arguments pertain to objections that
he raised at sentencing regarding alleged inaccuracies in the
PSR. Abelon argues that the district court failed to resolve his
objections with ‚specific findings on the record,‛ as required by
Utah Code section 77-18-1(6)(a). See State v. Veteto, 2000 UT 62,
¶ 15, 6 P.3d 1133; see also Utah Code Ann. § 77-18-1(6)(a)
(LexisNexis Supp. 2015). Abelon also claims that his counsel
provided him with ineffective assistance by failing to request
specific findings. We conclude that the district court erred by
failing to resolve Abelon’s objections on the record, as required
by section 77-18-1(6)(a).
¶19 Utah Code section 77-18-1(6)(a) provides,
The department shall provide the [PSR] to the
defendant’s attorney, or the defendant if not
represented by counsel, the prosecutor, and the
court for review, three working days prior to
sentencing. Any alleged inaccuracies in the [PSR],
which have not been resolved by the parties and
the department prior to sentencing, shall be
brought to the attention of the sentencing judge,
and the judge may grant an additional 10 working
days to resolve the alleged inaccuracies of the
report with the department. If after 10 working
days the inaccuracies cannot be resolved, the court
shall make a determination of relevance and
accuracy on the record.
Utah Code Ann. § 77-18-1(6)(a). Thus, when a defendant
disagrees with the accuracy of items contained in a PSR, he or
she may bring those objections to the attention of the sentencing
judge. Once a defendant alleges to the district court that a PSR
contains unresolved ‚factual inaccuracies,‛ the court ‚must do
three things: first, consider the objection raised; second, make
20140508-CA 10 2016 UT App 22State v. Abelon
findings on the record regarding the accuracy of the information
at issue; and third, determine on the record the relevance of that
information as it relates to sentencing.‛ State v. Monroe, 2015 UT
App 48, ¶ 6, 345 P.3d 755.
¶20 We agree with Abelon that the district court failed to
make findings on the record as section 77-18-1(6)(a) requires.
Although the district court appears to have considered Abelon’s
objections, ‚it fell short on its second and third obligations when
it failed to indicate on the record its determinations of accuracy
and relevance.‛ See id. We have held that such findings must be
made on the record because the PSR ‚may be utilized in future
settings, such as parole hearings.‛ State v. Waterfield, 2011 UT
App 27, ¶ 11, 248 P.3d 57. We therefore remand this matter to
the district court ‚with instructions that it expressly resolve
*Abelon’s+ objections in full compliance with section 77-18-
1(6)(a).‛4 See State v. Jaeger, 1999 UT 1, ¶ 45, 973 P.2d 404.
¶21 Abelon additionally argues that the district court’s
noncompliance with Utah Code section 77-18-1(6)(a)—which
Abelon alleges resulted from his counsel’s ineffective
assistance—entitles him to resentencing. However, Abelon’s
request for resentencing is limited to his general assertion that
the district court sentenced him based on ‚incomplete,
inaccurate, and misleading information.‛ Although the district
court did not make the required factual findings, we see no basis
to conclude that Abelon’s sentence was materially affected by
the matters that Abelon challenged in his objections. This is
particularly so in light of the State’s request at sentencing that
the district court ignore anything in the PSR that was not
4. Because the need for remand is apparent on the record of this
case, we decline to address whether Abelon might be entitled to
the same remedy based on his allegation that he received
ineffective assistance of counsel.
20140508-CA 11 2016 UT App 22State v. Abelon
consistent with the evidence at trial. In short, ‚*w+e are not
convinced that the district court’s failure to resolve *Abelon’s+
objections requires reversal and resentencing.‛5 See Monroe, 2015
UT App 48, ¶ 8. Nevertheless, on remand, ‚*i+f resolution of the
objections affects the *district+ court’s view of the appropriate
sentence, the [district] court may then revise the sentence
accordingly.‛ See State v. Maroney, 2004 UT App 206, ¶ 31, 94
P.3d 295; accord State v. Reddish, 2006 UT App 376U, para. 4 (per
curiam) (‚Allowing the district court to revisit the sentences after
resolving the alleged inaccuracies in the [PSR] gives appropriate
deference to the district court’s sentencing function.‛).
CONCLUSION
¶22 We conclude that under the circumstances presented by
Abelon’s fourth request for substitution of appointed counsel,
the district court adequately inquired into Abelon’s
dissatisfaction with his appointed counsel. We therefore affirm
Abelon’s convictions. However, we also conclude that the
district court erred when it failed to make the statutorily
required findings to resolve Abelon’s objections to the PSR. We
remand the matter to the district court for resolution of Abelon’s
objections ‚in full compliance with *Utah Code+ section 77-18-
1(6)(a).‛ See State v. Jaeger, 1999 UT 1, ¶ 45, 973 P.2d 404.
5. We are similarly not convinced that Abelon is entitled to
resentencing based on his argument that his counsel provided
him with ineffective assistance.
20140508-CA 12 2016 UT App 22