State v. Rinehart ( 2018 )

2018 UT App 87THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
SHILOH D. RINEHART,
Appellant.
Per Curiam Opinion
No. 20170185-CA
Filed May 10, 2018
Fourth District Court, Provo Department
The Honorable Samuel D. McVey
No. 151403129
Emily Adams, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
Before JUDGES GREGORY K. ORME, MICHELE M. CHRISTIANSEN, and
KATE A. TOOMEY.
PER CURIAM:
¶1 Shiloh D. Rinehart appeals the restitution order entered
following her conviction of burglary, a third degree felony.
Rinehart raises two issues on appeal, both of which rely on
evidence found outside the record. Therefore, Rinehart also filed
a motion seeking a remand under rule 23B of the Utah Rules of
Appellate Procedure. We deny the motion for remand and
affirm the restitution order.
¶2 “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. Hand, 2016 UT App 26, ¶ 2,
367 P.3d 1052 (quotation simplified). To demonstrate ineffective
State v. Rinehart
assistance, a defendant must demonstrate “that counsel’s
performance was deficient, in that it fell below an objective
standard of reasonable professional judgment,” and “that
counsel’s deficient performance was prejudicial—i.e., that it
affected the outcome of the case.” Id. (quoting State v. Litherland,
2000 UT 76, ¶ 19, 12 P.3d 92). “It stands to reason that if the
defendant could not meet the test for ineffective assistance of
counsel, even if [the] new factual allegations were true, there is
no reason to remand the case, and we should deny the [rule 23B]
motion.” State v. Griffin, 2015 UT 18, ¶ 20; see also State v.
Heywood, 2015 UT App 191, ¶ 40, 357 P.3d 565 (stating that an
appellate court considers affidavits supporting rule 23B motions
“solely to determine the propriety of remanding ineffective
assistance of counsel claims for evidentiary hearings” (quotation
simplified)). Because we conclude that the facts alleged in the
rule 23B motion, even if true, could not support a determination
that counsel was ineffective, we deny Rinehart’s motion and
affirm the restitution award.
¶3 Rinehart first claims that counsel was ineffective in failing
to investigate and introduce evidence to support Rinehart’s
claim that items she pawned on the day of the burglary were her
own property and testimony of a potentially helpful witness.
Rinehart also claims that trial counsel was ineffective in failing to
present evidence related to Rinehart’s ability to pay restitution
by introducing evidence related to her health conditions.
¶4 Rinehart pleaded guilty to the burglary of the victim’s
(Victim) home, resulting in reduction of the level of the burglary
offense and dismissal of another charge. At a restitution hearing,
Rinehart testified that she took nothing from Victim’s home after
she was discovered by Victim’s daughter and climbed out of a
window to escape in a vehicle. Victim testified for the State at the
restitution hearing, and the State provided a multiple-page
exhibit. This exhibit included (1) a list compiled by Victim listing
jewelry, coins, and sports memorabilia with estimated values;
(2) a receipt from Xtreme Pawn listing several items pawned by
Rinehart on the day of the burglary; and (3) a text from Platinum
20170185-CA 2 2018 UT App 87State v. Rinehart
Sports listing values on some sports cards. The pawn receipt
indicated that Rinehart pawned five pieces of jewelry, including
“L’s BLK Hills Gold Single, not a [pair] .8 grams earrings.” The
receipt stated the “date made” as November 6, 2015, and the
“time made” as “09:56.” In response to the pawn receipt,
Rinehart claimed that the items were actually her own property
and that she had pawned the items prior to the time she
burglarized Victim’s home.
¶5 At the conclusion of the restitution hearing, the district
court found Victim’s testimony credible and Rinehart’s
testimony not credible. The court did not believe Rinehart’s
testimony that she did not take anything from Victim’s home.
The district court noted that Rinehart had a significant history of
crimes involving dishonesty. It also observed that Victim was
able to “match up two of the items of jewelry with other earrings
she already had with their mate” and “on that basis the Court
would find Ms. Rinehart’s testimony incredible.”
¶6 Rinehart asserts trial counsel should have presented
evidence showing “that Ms. Rinehart actually did pawn her
items two hours before the burglary occurred.” Appellate
counsel’s affidavit in support of the rule 23B motion attaches
items obtained in discovery, including “a screenshot of
[Victim’s] cell phone showing text messages that Rinehart sent
her on November 6, 201[5] at 12:29 pm, 12:47 pm, and 12:52 pm
and a photograph taken from a neighbor’s security camera
showing a blue Ford Explorer driving away from [Victim’s]
home at 12:59 pm on November 6, 2015.” Counsel attests that
those documents established the time of the burglary. Appellate
counsel further attests that she called Xtreme Pawn—where
Rinehart pawned some items on November 6, 2015—and spoke
to an employee who has worked there since 2012. The employee
stated that the store was only open from 9 am to 6 pm on
weekdays in 2015. The affidavit does not indicate that the
employee possessed any direct knowledge of the transaction
with Rinehart or purported to vouch for the accuracy of the
receipt’s time stamp. Still, Rinehart speculates that the 9:56 time
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indicated on the pawn receipt could only mean 9:56 am, thus
supporting Rinehart’s claim that she pawned her own items
because the transaction must have occurred before the burglary
of Victim’s home. Rinehart points to the times on her text
messages intended to lure Victim out of her home and the date
and time stamp on a surveillance video showing Rinehart
escaping Victim’s home to establish that the burglary occurred
around noon. The latter materials were not introduced into
evidence, but they were provided in discovery. 1
¶7 Appellate counsel’s affidavit does not contain information
to support the accuracy of the time indicated on the pawn
receipt. Even assuming that it is accurate, this must be viewed in
light of Victim’s identification of the items in the possession of
the pawn shop as her property. The listed items included a
single earring from a set of earrings taken, while its mate
remained in Victim’s possession. Even assuming that the proof
of the pawn shop hours and the time of the burglary would
bolster Rinehart’s credibility, the allegation that the pawn shop
receipt shows that Rinehart pawned her own items hours before
the burglary remains speculative. The State also notes that
Rinehart was in Victim’s home on the day prior to the burglary
and might have had the opportunity to take the items then.
¶8 At the restitution hearing, trial counsel presented
Rinehart’s testimony that the pawned items were her own
property and that the transaction at the pawn shop occurred
before the burglary. The district court rejected this claim as not
credible. A remand to introduce evidence of the time line for the
burglary and the alleged time of the pawn transaction would be
based upon speculation, especially when weighed against
Victim’s identification of the pawned items as her property.
Introduction of the evidence is more likely to raise questions
about how Rinehart came to be in possession of Victim’s
1. Because Rinehart pleaded guilty to burglary, the district court
received evidence only at the restitution hearing.
20170185-CA 4 2018 UT App 87State v. Rinehart
property. As such, the rule 23B motion seeking a remand is not
based upon nonspeculative facts that would demonstrate
deficient performance or resulting prejudice.
¶9 Furthermore, Victim testified about an encounter with a
person at a local business who, upon learning her name, said
that he may have a bag of sports memorabilia belonging to her.
She also testified that a woman in possession of one of her rings
had told her that she was given the ring by Rinehart’s father.
Rinehart’s claim that the restitution award was principally based
upon her criminal history and the pawn receipt is incorrect.
Other evidence supported a determination that Rinehart’s
testimony that she took nothing in the burglary was not credible.
¶10 Rinehart also claims that her trial counsel “failed to
investigate a witness who saw [Victim] attempting to sell the
items that she reported stolen.” Rinehart’s affidavit says that she
told trial counsel about the potential witness and that counsel
either said that the testimony would not be helpful because the
potential witness would not be credible or that he was unable to
find the witness. Trial counsel’s affidavit states that he
remembers being told about the witness, but he does not recall
getting a name or other contact information.
¶11 Rinehart argues that if trial counsel had introduced the
testimony of the potential witness, that information would serve
to damage Victim’s credibility. She provides an affidavit of a
private investigator stating that he was able to contact someone
claiming to be the witness identified by Rinehart. That person
texted that Victim “stopped by after [Rinehart] went to jail with
a bunch of jewelry and old coins trying to sell them to me and
Rodger“ and that “she had a huge bag full. . . it was probably a
day or two after [Rinehart] went to jail.” Even assuming that the
statements are true, they are insufficient to demonstrate that the
items allegedly offered to the potential witness were the same
items that Victim claimed were taken from her home. Thus, the
allegations are speculative. Furthermore, there is no evidence
that Rinehart provided enough contact information to allow trial
20170185-CA 5 2018 UT App 87State v. Rinehart
counsel to locate this witness. Rinehart also stated that her trial
counsel expressed doubt that the testimony of someone Rinehart
met in jail would be helpful, demonstrating that counsel
strategically evaluated the potential testimony.
¶12 Finally, Rinehart asserts that counsel did not present
evidence about her background that might have persuaded the
district court that she was unable to pay the amount of
restitution ordered due to chronic health problems. Rinehart’s
affidavit represents that she has an eye condition that she
characterizes as debilitating, and for that reason, she could not
produce enough income to pay restitution. Rinehart herself
stated at the restitution hearing that the district court judge was
familiar with her and her history from her frequent court
appearances. The transcript reflects that the district court
considered Rinehart’s age, her impending parole date, and her
ability to work for at least thirty more years. The court stated, “I
believe in that time she would be able to pay off the amount of
restitution.” Therefore, the court set the court-ordered restitution
in the amount of $67,710. “She could, even if she paid $2000 a
year, she would be able to pay most of this off and she could
easily do that if she elects to get a regular job which she’s
capable of doing.” Based upon the district court’s determination
that Rinehart was capable of employment, trial counsel did not
perform deficiently in failing to present this additional
information and in focusing his efforts on trying to obtain a
lower restitution award.
¶13 Because we deny the motion for a remand pursuant to
rule 23B, and because the arguments on appeal are based upon
evidence that would be added to the record on a remand, there
are no remaining claims regarding the restitution award based
on the record before this court. Accordingly, we affirm.
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