State v. Sagal , 444 P.3d 572 ( 2019 )

2019 UT App 95THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
MIGUEL A. SAGAL,
Appellant.
Opinion
No. 20131170-CA
Filed June 6, 2019
Second District Court, Farmington Department
The Honorable David M. Connors
No. 111701832
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES DAVID N. MORTENSEN and DIANA HAGEN
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Miguel A. Sagal appeals his convictions on six counts of
unlawful sexual activity with a minor. We affirm.
BACKGROUND
¶2 Sagal was charged with six third-degree felony counts of
unlawful sexual activity with a minor as a result of having
sexual intercourse with two minor females in 2010 and 2011.
Sagal pleaded not guilty to the charges.
State v. Sagal
¶3 Although a jury trial was initially scheduled, Sagal’s
counsel filed a Request for Bench Trial shortly before trial. In the
Request for Bench Trial, counsel stated that he had advised Sagal
“of his right to seek trial by jury and all the rights attendant to
such a choice, as well as the rights that he would be waiving by
opting for a bench trial.” On the day of trial, the trial court
questioned counsel regarding Sagal’s waiver of his right to a jury
trial. The judge stated, “I would just like to have on record that
you’ve had discussion with your client about his . . . right to a
jury trial and that he has knowingly and intentionally agreed to
go forward in a trial . . . without a jury.” Counsel responded, “I
have discussed at length with Mr. Sagal, his right to a jury trial,
the rights that he will be waiving should he elect to forgo his
right to a jury trial and have it tried to the bench.”
¶4 Both victims testified at trial. The first victim, K.G.,
testified that she had sex with Sagal a number of times when she
was fourteen years old and he was eighteen years old. After K.G.
broke up with Sagal, he began contacting her friend, M.P. M.P.
had sex with Sagal three times in the summer of 2011, when she
was fourteen years old and he was nineteen years old. On
several occasions prior to trial, both victims had denied having
sex with Sagal.
¶5 After hearing the evidence, the trial court convicted Sagal
of all charges, finding both victims to be credible witnesses and
determining that other witnesses corroborated their testimony.
The trial court later amended the verdict by reducing the three
counts relating to K.G. to class B misdemeanors because Sagal
was slightly less than four years older than K.G.
¶6 Following trial, Sagal’s mother sought mitigating
testimony to undermine the victims’ credibility. She obtained an
affidavit from a witness, L.S., who stated that M.P. admitted to
her that she had lied at trial about having sex with Sagal. When
counsel learned of this first potential witness, L.S., he withdrew
as Sagal’s attorney because Sagal had previously admitted to
20131170-CA 2 2019 UT App 95State v. Sagal
counsel that he had engaged in sex with M.P. and counsel felt he
could therefore not ethically pursue any investigation into the
witness’s statements. Following counsel’s withdrawal, Sagal’s
mother obtained an affidavit from a second witness, K.P., who
also stated that M.P. had confessed to her that she had lied about
having sex with Sagal.
¶7 Sagal appealed his convictions. First, he asserted that the
trial court committed plain error by failing to conduct an
adequate colloquy to ensure that he had been fully informed of
the rights he was waiving by electing a bench trial rather than a
jury trial. Second, Sagal asserted that he received ineffective
assistance of counsel because counsel did not fully inform him of
the rights he was waiving and did not adequately investigate the
two potentially exonerating witnesses or move for a new trial.
¶8 This court remanded the case to the trial court pursuant to
rule 23B of the Utah Rules of Appellate Procedure, directing the
trial court
to make all findings of fact and enter all
conclusions of law necessary to resolve:
(1) whether counsel performed deficiently in
advising [Sagal] about his right to a jury trial;
(2) whether [Sagal] was prejudiced by counsel’s
deficient performance, if any;
(3) whether counsel performed deficiently in not
investigating [L.S.] and [K.P.] and for not moving
for a new trial based on his investigation; and
(4) whether [Sagal] was prejudiced by counsel’s
deficient performance, if any.
¶9 At the rule 23B hearing, Sagal and his former counsel
provided contradictory testimony regarding when counsel
20131170-CA 3 2019 UT App 95State v. Sagal
discussed the bench trial with Sagal and what counsel told him
concerning his right to a jury trial. Counsel testified that he
“notified [Sagal] of his right to have a jury of impartial
individuals who would hear the evidence against him and
ultimately decide his guilt or innocence”; that he “told [Sagal]
that the Court would instruct the jury of [his] right to remain
silent and that the jury could not interpret [Sagal’s] silence as an
admission of guilt”; and that he “advised [Sagal] that the Court
would instruct the jury on proof beyond a reasonable doubt and
the presumption of innocence.” “He stated that he told [Sagal]
that the decision to seek a bench or a jury trial was [his], but that
he recommended that [Sagal] elect a bench trial” because counsel
was concerned that “a jury would hold [Sagal’s] refusal to testify
against him” and that “[Sagal] might not have the benefit of a
truly impartial jury because of his Hispanic heritage.”
¶10 Sagal testified that he did not know anything about the
waiver until after counsel had already filed the Request for
Bench Trial. He also testified that “[h]e did not know that juries
needed to reach unanimous decisions to convict him, or that he
would be able to participate in picking the jury. Had he known
these things, he asserted he would not have waived his right to a
jury trial.”
¶11 Determining that Sagal lacked credibility, the trial court
“accept[ed counsel’s] testimony regarding the events
surrounding [Sagal’s] waiver of his right to a jury trial.” Having
heard both individuals’ testimony, the trial court found “that
[Sagal’s] claim that he would not have waived the jury trial had
he known that the jury was required to reach a unanimous
decision and that he would have been able to participate in the
selection of the jurors lacks credibility and is contradicted by his
own testimony.” The trial court determined that Sagal’s own
testimony at the rule 23B hearing that he completely trusted his
counsel, that he had no prior experience with the criminal justice
system, and that he had been taught not to question his elders
suggested “that [Sagal] was likely to have agreed with
20131170-CA 4 2019 UT App 95State v. Sagal
[counsel’s] advice to waive the jury trial regardless of whether
[counsel] thoroughly explained every right associated with a
jury trial.”
¶12 Having assessed the testimony of both Sagal and counsel,
the trial court determined that while counsel “could have more
thoroughly explained the rights associated with a jury trial to
[Sagal], his advice to seek a bench trial was sound trial strategy.”
The court further determined that Sagal could not show
prejudice, because he had “failed to demonstrate that a jury trial
would have yielded a more favorable result” and because “even
if [counsel] had thoroughly and exhaustively explained all of the
rights associated with a jury trial, given [Sagal’s] trust in
[counsel], [Sagal] would have still waived his right to a jury trial
to proceed with the bench trial.”
¶13 The court also heard testimony regarding the affidavits
from L.S. and K.P. L.S. signed her affidavit on January 29, 2013,
asserting that M.P. had confided in her that she had falsely
testified about having sex with Sagal. Sagal’s mother testified
that she gave L.S.’s affidavit to counsel before her son’s
sentencing, that counsel read the affidavit, and that counsel told
her he would present it at sentencing. She claimed that when this
did not occur, she confronted counsel and he told her that he
would present the affidavit on appeal.
¶14 Counsel testified that he did not learn of the potential
new witnesses until approximately three months after
sentencing. When counsel learned of them, he withdrew as
counsel to give Sagal the opportunity to obtain a new attorney to
pursue the witnesses because counsel did not feel he could
ethically present the witnesses to the court due to the fact that
Sagal had admitted to him that he had sex with M.P. In a letter to
Sagal, counsel advised him “to carefully consider whether to
volunteer that he had sex with M.P. to his new attorney” and
instructed him that “the next course of action would be to
identify the friend claiming that M.P. recanted her testimony.”
20131170-CA 5 2019 UT App 95State v. Sagal
Counsel also testified that he did not see L.S.’s affidavit until
after he withdrew from the case.
¶15 The court determined that Sagal’s mother’s testimony was
not credible because counsel would not have advised Sagal in
his letter to identify the witness if he already knew who the
witness was, because it was unlikely that counsel “would have
suggested that he could present on appeal a document that had
never been previously offered into evidence,” and because
Sagal’s mother did not mention the allegations when she
addressed the court at her son’s sentencing.
¶16 Additionally, during the rule 23B hearing, both L.S. and
K.P. disavowed their affidavits. The court made the following
findings regarding L.S.:
[L.S.] testified that she knew M.P., but did not
know [Sagal] when he reached out to her through
Facebook for help in his case. [Sagal] had set up a
meeting for [his] mother and a notary public to
meet with [L.S.] while she was at [school]. [L.S.]
testified that she did not have any information
about [Sagal’s] case, nor did she provide any
information to [Sagal]. When [Sagal’s] mother and
the notary arrived at [the school], [L.S.] testified
they did not let her see the contents of the affidavit.
She testified she did not read the affidavit and did
not know its contents, but she admitted she signed
the affidavit. Both [Sagal’s] mother and the notary,
however, testified that they made sure [L.S.] read
the contents of the document before signing it.
[L.S.] was fifteen years old when she signed the
affidavit.
Sagal was unable to effectively cross-examine L.S. at the rule 23B
hearing because he first delayed questioning her, then she failed
to appear for a subsequent hearing. She eventually appeared via
20131170-CA 6 2019 UT App 95State v. Sagal
FaceTime, claiming that she was in Mexico. She then invoked her
constitutional right against self-incrimination and refused to
answer additional questions. However, the trial court observed
that Sagal provided no evidence to corroborate the claims in
L.S.’s affidavit, even those that should have been corroborated
fairly easily, such as whether L.S. and M.P. are cousins.
¶17 K.P. likewise testified that she did not read her affidavit
before signing it and that she believed “that she was merely
signing an affidavit of [Sagal’s] good character.” K.P. testified
“that she had never met M.P., she never communicated with
M.P., M.P. never disclosed to her that M.P.’s testimony during
[Sagal’s] trial was false, and she did not know [L.S.].” She also
testified that her name was spelled wrong in the affidavit.
Additionally, due to the fact that the affidavit was signed after
counsel withdrew from the case, Sagal’s rule 23B counsel
“acknowledged in open court that [Sagal] did not have a claim of
ineffective assistance of counsel regarding [trial counsel’s] failure
to investigate [K.P.’s] claims.”
¶18 The court concluded that Sagal’s trial counsel did not
perform deficiently by failing to investigate L.S.’s and K.P.’s
testimonies. As to K.P., the court determined that the testimony
was not relevant to the claim, because her affidavit was signed
after trial counsel withdrew. As to L.S., the court determined
that counsel “did not have a duty to investigate claims that he
knew were false” as a result of Sagal admitting to him that he
had sex with M.P. The court further determined that Sagal could
not have been prejudiced by any failure to investigate L.S.
because she recanted her testimony and because she was not a
credible witness.
ISSUES AND STANDARDS OF REVIEW
¶19 Sagal first argues that the trial court’s failure to conduct a
colloquy with him regarding the specific rights he was waiving
20131170-CA 7 2019 UT App 95State v. Sagal
by electing a bench trial constituted plain error and requires
reversal.
To obtain appellate relief from an alleged error that
was not properly objected to, the appellant must
show the following: (i) An error exists; (ii) the error
should have been obvious to the trial court; and
(iii) the error is harmful, i.e., absent the error, there
is a reasonable likelihood of a more favorable
outcome for the appellant, or phrased differently,
our confidence in the verdict is undermined.
State v. Casey, 2003 UT 55, ¶ 41, 82 P.3d 1106 (quotation
simplified).
¶20 Sagal further argues that he received ineffective assistance
of counsel because his trial counsel failed to fully inform him of
the rights he was waiving and because counsel failed to
adequately investigate L.S.’s and K.P.’s potential testimonies.
These claims were reviewed by the trial court on rule 23B
remand. “We review the 23B court’s factual findings for clear
error and its legal conclusions for correctness.” State v. Kozlov,
2012 UT App 114, ¶ 30, 276 P.3d 1207.
ANALYSIS
I. The Court Did Not Commit Plain Error by Failing to Conduct
a Colloquy Regarding Sagal’s Waiver of His Right to a Jury Trial.
¶21 Sagal asserts that the trial court committed plain error by
failing to conduct a colloquy informing him of the rights he was
waiving by electing a bench trial and confirming that he
understood those rights. Although colloquies are “encourage[d]”
because they may “help judges ascertain whether” a defendant’s
waiver is knowing, intelligent, and voluntary; help “ensur[e] the
validity of a waiver”; and “allow for efficient and informed
20131170-CA 8 2019 UT App 95State v. Sagal
appellate review,” State v. Hassan, 2004 UT 99, ¶ 18, 108 P.3d 695,
colloquies are ultimately “‘a matter of prudence,’ rather than
constitutional mandate,” id. ¶ 15 (quoting United States v.
Rodriguez, 888 F.2d 519, 527 (7th Cir. 1989)); see also State v. Bhag
Singh, 2011 UT App 396, ¶ 14, 267 P.3d 281 (explaining that a
colloquy is not mandated for a defendant’s waiver of a jury trial
to be knowing, voluntary, and intelligent). Trial courts are
“under no obligation to provide an exhaustive explanation of all
the consequences of a jury waiver.” Hassan, 2004 UT 99, ¶ 17.
Rather, whether there is “an intelligent, competent, self-
protecting waiver of jury trial by an accused must depend upon
the unique circumstances of each case.” Adams v. United States,
317 U.S. 269, 278 (1942). We thus “look to the totality of the
circumstances to determine whether a defendant validly waived
his right to a jury trial.” Hassan, 2004 UT 99, ¶ 14. 1
¶22 “[U]nder a totality of the circumstances analysis, a
defendant can validly waive a right to a jury trial even in the
absence of a colloquy if other factors indicate that he knowingly,
intelligently, and voluntarily waived the right.” Id. ¶ 18. Here,
prior to trial and while Sagal was present, counsel represented to
the court, “I have discussed at length with Mr. Sagal, his right to
a jury trial, the rights that he will be waiving should he elect to
forgo his right to a jury trial and have it tried to the bench.”
Sagal raised no objection to this representation. Even assuming
that counsel’s representation was false, we can reverse on
grounds of plain error only where that error should have been
1. Although we discern no reversible error in this case, we
strongly encourage trial courts to engage in a meaningful
colloquy directly with defendants when the right to a jury trial is
waived. At least “‘as a matter of prudence,’” trial courts should
confirm that the defendant has understood and agrees with
counsel’s representations regarding any such waiver. See State v.
Hassan, 2004 UT 99, ¶ 15, 108 P.3d 695 (quoting United States v.
Rodriguez, 888 F.2d 519, 527 (7th Cir. 1989)).
20131170-CA 9 2019 UT App 95State v. Sagal
obvious to the court. Given counsel’s representation and Sagal’s
acquiescence, we cannot say that it would have been obvious to
the court that Sagal’s waiver was not knowing, intelligent, and
voluntary. See State v. Garteiz, 688 P.2d 487, 488 (Utah 1984) 2 (per
curiam) (upholding a waiver of jury trial by a non-native, non-
English-speaker where counsel represented that he had
discussed the defendant’s right’s with him and the court
conducted a four-question colloquy but did not thoroughly
discuss all the rights being waived); Bhag Singh, 2011 UT App
396, ¶ 14 (holding that under circumstances where a non-
English-speaking defendant “had an interpreter while he
consulted with his attorney about waiving his right to a jury trial
and his attorney requested the bench trial in [the defendant’s]
presence” the trial court did not plainly err in failing to conduct
a colloquy and that the defendant failed to establish that his
waiver was not knowing, voluntary, and intelligent).
¶23 Sagal nevertheless asserts that under the circumstances of
this case it was plain error for the trial court not to conduct a
colloquy in light of his youth, inexperience, and foreign birth.
While our supreme court has suggested that such a colloquy
2. Sagal points to Justice Durham’s special concurrence in
Garteiz, in which she “urge[d] trial courts to undertake a careful
explanation of the nature of the right to a jury trial before
accepting a defendant’s waiver thereof.” State v. Garteiz, 688 P.2d
487, 489 (Utah 1984) (per curiam) (Durham, J., concurring
specially). This encouragement was repeated by the Hassan court
when it encouraged “our judges, particularly in the
circumstances [where a defendant has limited comprehension of
English], to conduct a colloquy before granting a waiver.”
Hassan, 2004 UT 99, ¶ 18. However, as Justice Durham
acknowledged in her concurrence, a lesser examination
“comports with current law and standards.” See Garteiz, 688 P.2d
at 488 (Durham, J., concurring specially). This remains the case,
as discussed above.
20131170-CA 10 2019 UT App 95State v. Sagal
may be more important “in ensuring the validity of a waiver
when a defendant has limited comprehension of the English
language,” such a colloquy is still not mandated. See Hassan,
2004 UT 99, ¶ 18. And we see no facts in the record here to
indicate that Sagal actually had a limited comprehension of the
English language. Although his first language is Spanish, he has
lived in the United States since he was six years old, he did not
use an interpreter at trial, he graduated from a Utah high school,
and he works as a retail manager—all of which indicate that his
grasp of the English language is not limited. In any event, this
court has previously upheld waivers under similar
circumstances, even where the defendant’s comprehension of
English was actually limited. See Bhag Singh, 2011 UT App 396,
¶ 14. Sagal’s age and inexperience likewise do not mandate a
colloquy. Presumably, many defendants who come before the
courts of this state are inexperienced with the criminal justice
system. Further and relatedly, Utah law presumes that “[a]
minor 14 years of age and older is . . . capable of intelligently
comprehending and waiving the minor’s right to counsel.” Utah
R. Juv. P. 26(e). In short, none of the specific circumstances of
this case were such that the trial court should have determined
that a full colloquy was obviously necessary in order to ensure
that Sagal’s waiver of his right to a jury trial was knowing,
voluntary, and intelligent.
¶24 Further, Sagal has failed to establish that he suffered any
prejudice as a result of the court’s failure to conduct a colloquy.
Sagal’s prejudice argument largely rests on his assertion that the
denial of a jury trial is structural error with respect to which
prejudice is presumed. See State v. Cruz, 2005 UT 45, ¶ 17, 122
P.3d 543 (“Structural errors are flaws in the framework within
which the trial proceeds, rather than simply an error in the trial
process itself.” (quotation simplified)); State v. Calvert, 2017 UT
App 212, ¶ 52, 407 P.3d 1098 (“The denial of the right to a jury
trial is . . . structural error.”). The State counters that
unpreserved claims of structural error are nevertheless subject to
20131170-CA 11 2019 UT App 95State v. Sagal
plain error review, including the requirement that the defendant
demonstrate prejudice. 3
¶25 Sagal’s claims regarding whether he effectively waived
his right to a jury trial were unpreserved and were therefore
raised on grounds of plain error and ineffective assistance of
counsel on appeal. Our supreme court, in State v. Bond, 2015 UT
88, 361 P.3d 104, extensively analyzed the question of whether
unpreserved claims can be subject to heightened review
standards such as the harmless beyond a reasonable doubt
standard applicable to various federal constitutional errors and
the presumed prejudice standard applicable to structural errors.
See id. ¶¶ 36–47. The court concluded that “unpreserved federal
constitutional claims are not subject to a heightened review
standard.” Id. ¶ 44. The court emphasized the importance of
giving the trial court the first opportunity to rule on an issue. See
id. ¶ 45. The court also pointed out the fact that ineffective
assistance claims, which inherently concern an important
constitutional right, always require proof of prejudice: “It would
make little sense to require a defendant to prove prejudice under
the circumstances of ineffective assistance and yet relieve him of
that duty for other constitutional errors that could more easily
have been raised during the trial.” Id. ¶ 46. The court therefore
concluded that the plain error test—including its prejudice
prong—is applicable to alleged structural errors raised for the
first time on appeal. See id. ¶¶ 36–47; see also State v. Malaga, 2006
UT App 103, ¶ 11, 132 P.3d 703 (holding that with respect to an
3. The State also argues that the acceptance of a waiver that is
not knowing, voluntary, and intelligent does not amount to a
structural error, asserting that there is a distinction between the
erroneous acceptance of a waiver and the complete denial of the
right to a jury trial. We need not reach this question, however,
because we agree with the State that a defendant must prove
prejudice even with respect to alleged structural errors when the
defendant’s challenge is unpreserved.
20131170-CA 12 2019 UT App 95State v. Sagal
unpreserved claim raised on grounds of ineffective assistance of
counsel, alleged structural errors do not alleviate the defendant’s
burden to demonstrate prejudice).
¶26 Sagal asserts generally that “[t]he error in this case
was . . . prejudicial because of the conflicting evidence” and that
“a reasonable likelihood exists that the jury would have reached
a more favorable verdict.” This generalized assertion falls far
short of demonstrating “a reasonable likelihood of a more
favorable outcome for the appellant” or undermining our
confidence in the verdict. See State v. Casey, 2003 UT 55, ¶ 41, 82
P.3d 1106 (quotation simplified). As discussed below, the trial
court, in considering prejudice in the ineffective assistance
context on remand, determined, first, that Sagal had failed to
demonstrate that a more favorable outcome was likely with a
jury trial and, second, that as a result of his trust in his counsel,
Sagal would still have waived a jury trial even if he had more
fully understood his rights. We agree with the trial court’s
assessment, and Sagal’s conclusory argument does nothing to
convince us otherwise.
¶27 Because the trial court was not required to conduct a
colloquy with Sagal regarding his right to a jury trial as a matter
of course, and because the need for such a colloquy was not
obvious under the totality of the circumstances presented here,
the court did not plainly err in failing to conduct a colloquy.
Further, Sagal has failed to demonstrate prejudice as required by
the standard of review for plain error. Thus, we reject Sagal’s
plain error argument.
II. Counsel’s Failure to More Fully Inform Sagal Regarding the
Rights He Was Waiving by Electing a Bench Trial Did Not Rise
to the Level of Ineffective Assistance of Counsel.
¶28 Sagal next asserts that his convictions should be reversed
on the ground the he received ineffective assistance of counsel
due to his counsel’s failure to inform him thoroughly of every
20131170-CA 13 2019 UT App 95State v. Sagal
right he was waiving by electing a bench trial in lieu of a jury
trial. Sagal maintains that his counsel’s failure to advise him
specifically “that a jury trial conviction would require a
unanimous decision of all the jurors in contrast to the judge
alone determining his guilt or innocence” and that he “had the
right to assist in selecting a jury” constituted ineffective
assistance. Sagal asserts that in considering the totality of the
circumstances—in particular, his youth and inexperience, his
unfamiliarity with the criminal justice system, the fact that
English is his second language, and his implicit trust of trial
counsel due to his cultural background—counsel’s failures
rendered his waiver not knowing, voluntary, and intelligent and
that counsel’s incomplete advice regarding his rights therefore
constituted ineffective assistance of counsel.
¶29 The rule 23B court determined that advising Sagal to
waive his right to a jury trial was a legitimate tactical decision.
However, Sagal points out that his argument does not concern
whether counsel performed deficiently by advising him to waive
the jury trial; rather, he asserts that counsel performed
deficiently by failing to fully advise him of the rights he would
be waiving should he forgo the jury trial. He asserts that “there
is a lack of any conceivable tactical basis for counsel’s actions of
failing to thoroughly advise Sagal of the rights associated with
the constitutional right to a jury trial prior to seeking a waiver.”
¶30 Sagal cannot demonstrate that he was prejudiced by
counsel’s failure to fully inform him of the rights he was
waiving. As the trial court pointed out in its findings, there were
numerous tactical reasons for counsel to advise Sagal to forgo a
jury trial in favor of a bench trial. Criminal defendants rely on
the expertise of their attorneys to assess the pros and cons of a
jury trial. Where trial counsel, having weighed various strategies
and considered all the rights a defendant would be waiving, has
advised a client that the risks of a jury trial outweigh the
benefits, the likelihood that a thorough listing of the rights
waived would result in the defendant going against counsel’s
20131170-CA 14 2019 UT App 95State v. Sagal
advice is small. Indeed, the trial court on remand found that this
was the case with Sagal. The trial court observed, “[Sagal]
testified that because he was taught not to question his elders
and that he had no experience with criminal law, he ‘completely
trusted’ [trial counsel].” The court further found, “[E]ven if
[counsel] had thoroughly and exhaustively explained all of the
rights associated with a jury trial, given [Sagal’s] trust in
[counsel], [he] would have still waived his right to a jury trial to
proceed with the bench trial.” The court further determined that
“[Sagal] has failed to demonstrate that a jury trial would have
yielded a more favorable result.”
¶31 Sagal has not challenged the trial court’s findings on
appeal but, instead, reasserts his argument that this court must
presume prejudice because the failure of trial counsel to inform
Sagal of his rights was structural error. As we have previously
rejected this argument, we accept the trial court’s findings that
Sagal would have elected a bench trial even if he had been fully
informed of the rights he was waiving. See State v. Kozlov, 2012
UT App 114, ¶ 30, 276 P.3d 1207 (“We review the 23B court’s
factual findings for clear error . . . .”). Accordingly, we agree
with the trial court that Sagal has failed to demonstrate
prejudice.
III. Sagal Has Abandoned His Claim of Ineffective Assistance
Relating to the Failure to Investigate L.S.’s and K.P.’s
Testimonies.
¶32 On appeal, Sagal initially asserted that counsel’s failure to
investigate L.S. and K.P. as potential witnesses constituted
ineffective assistance of counsel. Following rule 23B remand,
both parties were asked to file supplemental briefs addressing
the court’s ruling. Sagal’s supplemental brief addressed only his
argument regarding whether trial counsel’s failure to fully
inform him of his rights constituted ineffective assistance.
Sagal’s brief did not further address his claims regarding the
investigation of L.S. and K.P.
20131170-CA 15 2019 UT App 95State v. Sagal
¶33 “Issues not briefed by an appellant are deemed waived
and abandoned.” Langeland v. Monarch Motors, Inc., 952 P.2d
1058, 1062 n.5 (Utah 1998) (quotation simplified). Sagal conceded
in the rule 23B proceedings that counsel was not ineffective for
failing to investigate K.P., because her affidavit was procured
after counsel withdrew. In his supplemental brief, he does not
dispute the trial court’s ruling that he could not establish
ineffective assistance with respect to L.S.’s affidavit. Further, he
did not dispute the State’s assertion that he had abandoned this
claim. Therefore, we do not further address Sagal’s ineffective
assistance arguments with respect to counsel’s alleged failure to
investigate.
CONCLUSION
¶34 Sagal has failed to establish that the trial court’s failure to
conduct a colloquy regarding the rights he was waiving in
forgoing a jury trial constituted plain error. He has also failed to
establish that counsel’s failure to more fully inform him of those
rights constituted ineffective assistance of counsel. Finally, we
do not address his ineffective assistance argument regarding
counsel’s alleged failure to investigate because Sagal abandoned
this argument following the rule 23B remand. Accordingly, we
affirm Sagal’s convictions.
20131170-CA 16 2019 UT App 95