State v. Daniels , 770 Utah Adv. Rep. 11 ( 2014 )

2014 UT App 230_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
CHARLY BO DANIELS,
Defendant and Appellant.
Memorandum Decision
No. 20130570-CA
Filed October 2, 2014
Second District Court, Ogden Department
The Honorable W. Brent West
No. 131900220
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES STEPHEN L. ROTH and MICHELE M.
CHRISTIANSEN concurred.
ORME, Judge:
¶1 Defendant Charly Bo Daniels pled guilty to burglary and
possession or use of a controlled substance, both third degree
felonies. After a restitution hearing, the trial court denied
Defendant’s request for probation and instead imposed a prison
sentence. Defendant appeals, arguing that the trial court
erroneously used unreliable information in determining
Defendant’s sentence. We affirm.
¶2 The owners of an office building were shocked to discover
that copper-hunting thieves had destroyed their building. Water
State v. Daniels
poured through the ceiling where the thieves had ripped out wires
and conduits, ruining the walls and ceiling tiles. After surveying
the destruction, the owners knew they could not sell the building
as they had originally planned. Defendant was one of the thieves
who had raided the building, and he later admitted to stealing
copper wiring from the main power box and walls and to taking
copper tubing from a furnace. He was arrested and pled guilty to
one count of burglary and one count of possession or use of a
controlled substance.
¶3 During the sentencing hearing, Defendant’s trial counsel
objected to the building owners’ claims that Defendant’s actions
resulted in $21,500 in damages. Trial counsel admitted that this
estimate might be correct, but he insisted that there was no
evidence to support it. The trial court sentenced Defendant to
concurrent terms of zero to five years in prison for both felonies but
stayed the sentence until it could hold a restitution hearing to more
accurately determine the amount of the damages. The trial judge
stated:
Well, I’ll be candid, it makes a difference to me . . . . I
want to hear from the victims and I want to hear
what the restitution figure is actually going [to]
be. . . .
If, in fact, the damage is not that high and he
has finally awakened and smelled the roses and
turned his life around, I’ll consider lifting the stay
and putting him on probation. But I want more
information.
¶4 At the restitution hearing, the building owners calculated
their damages to be “quite a bit more” than their original estimate
of $21,500. Defendant admitted that he was “absolutely
responsible” for a total of $15,800, but he stipulated to $30,000 in
restitution because it was impossible to separate the damage
Defendant had caused from the damage other copper thieves may
20130570-CA 2 2014 UT App 230State v. Daniels
have caused. The trial court then said, “Were you folks not
listening to me when we set the restitution hearing? I said if the
restitution was in excess of $20,000, I was seriously considering
prison.”1
¶5 Defendant’s trial counsel argued that there was a distinction
between the stipulated restitution amount that Defendant was
willing to accept to resolve the matter and the amount of damages
for which Defendant was admitting actual responsibility. The
implication, apparently, was that the trial court should base its
sentencing decision on the $15,800 damage figure and not on the
stipulated $30,000 restitution figure.
¶6 After discussing other matters and hearing from one of the
building owners, the trial court decided to impose the prison
sentence it had previously set but then stayed. In doing so, the trial
court did not mention either specific figure. Instead, the trial court
recited Defendant’s significant criminal history, spanning from
1989 to the present, and concluded, “I just don’t see a difference or
a change in the behavior.”
¶7 Without explaining why nearly $16,000 in burglary-related
damage would warrant only probation, albeit with jail time, while
a figure of $30,000 would warrant prison, Defendant now argues
that the trial court erroneously based its decision to impose the
prison sentence on an unreliable damage estimate. He asks us to
overturn the sentence on that basis. We decline to do so. “A
sentence will not be overturned on appeal unless the trial court has
abused its discretion, failed to consider all legally relevant factors,
or imposed a sentence that exceeds legally prescribed limits.” State
v. Nuttall, 861 P.2d 454, 456 (Utah Ct. App. 1993). We will conclude
1. The $20,000 figure does not appear in the record of the
sentencing hearing. Based on the context, however, it is likely that
the trial court was referring to the building owners’ initial $21,500
damage estimate and was simply rounding down for convenience.
20130570-CA 3 2014 UT App 230State v. Daniels
that a trial court has abused its discretion in sentencing only if no
reasonable person could adopt the view of the trial court. See id.¶8 Although the trial court stated previously that the amount
of damages would influence its ultimate sentencing decision, it did
not guarantee a specific result. Instead, far from relying on the
damage estimate in reaching its sentencing decision, the trial court
discussed only Defendant’s extensive criminal record in lifting the
stay and imposing the prison sentence it had previously
announced. Defendant’s criminal history and the trial court’s
determination that Defendant had not changed his behavior are a
sufficient basis to support the sentence imposed by the trial court.
Additional factors, such as whether Defendant was responsible for
damages in excess of a certain monetary value, are ultimately
irrelevant in this appeal because we readily conclude that a
reasonable person could adopt the view of the trial court based
solely on the reasons stated at the time it imposed the sentence.
Therefore, the trial court did not abuse its discretion in imposing
Defendant’s sentence.
¶9 Defendant also argues that his trial counsel was ineffective
for failing to withdraw the stipulation to $30,000 in
restitution—about double the figure for which Defendant admitted
being “absolutely responsible”—when it was clear that the trial
court might use that information as a basis to impose the prison
sentence.2 To show constitutionally ineffective assistance of
counsel, Defendant must prove that his trial counsel’s
“representation fell below an objective standard of
reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984),
and that he was prejudiced thereby, see id. at 687. If a “defendant
2. The State urges us not to consider this issue, arguing that it was
inadequately briefed because it was placed in a footnote. We
disagree with the State and readily conclude that Defendant’s
treatment of this issue contained “reasoned analysis based upon
relevant legal authority.” Smith v. Smith, 1999 UT App 370, ¶ 8, 995
P.2d 14. See Utah R. App. P. 24(a)(9).
20130570-CA 4 2014 UT App 230State v. Daniels
has failed to prove that his counsel had no conceivable tactical basis
for his actions,” then we will not consider trial counsel’s
performance to be constitutionally deficient. See State v. Clark, 2004
UT 25, ¶ 7, 89 P.3d 162 (emphasis added) (internal quotation marks
omitted).
¶10 Here, Defendant argues that, under the circumstances, the
$30,000 stipulation “had no conceivable beneficial value” to
Defendant and therefore amounted to ineffective assistance of
counsel. We disagree. Considering the building owners’ revised
damage estimate that was “quite a bit more” than originally
thought, and considering the extensive nature of the damage to the
building, trial counsel might very reasonably have concluded that
his client risked restitution liability in excess of $30,000. Or counsel
may have thought that it might play well for Defendant to accept
a restitution award in excess of the damages for which he admitted
he was “absolutely responsible.” Either rationale supplies a
“conceivable tactical basis” for trial counsel to stipulate to that
amount. See id. When the trial court reminded trial counsel that
damages in excess of $20,000 would prompt it to seriously consider
imposing the prison sentence, trial counsel appropriately argued
that there was a difference between his client’s personal liability,
which Defendant acknowledged to be $15,800, and his client’s
restitution obligation, stipulated at $30,000. Whether the trial court
ultimately accepted this reasoning is irrelevant to whether trial
counsel had a conceivable tactical basis for this approach. Because
we conclude that trial counsel had a conceivable tactical basis for
his approach, we cannot conclude that he was ineffective in this
regard.
¶11 Because the trial court did not abuse its discretion in
sentencing Defendant, and because Defendant’s trial counsel was
not constitutionally ineffective, we decline to overturn the sentence
imposed by the trial court.
¶12 Affirmed.
20130570-CA 5 2014 UT App 230