State v. Grover , 2022 UT App 48 ( 2022 )

2022 UT App 48THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ALVIE JARED GROVER,
Appellant.
Opinion
No. 20200187-CA
Filed April 7, 2022
Fifth District Court, St. George Department
The Honorable Eric A. Ludlow
No. 171501618
Nicolas D. Turner, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.
TENNEY, Judge:
¶1 Over the course of a few hours on a single summer day in
2017, Alvie Grover punched a man in the face, stole and crashed
two vehicles, led police on a high-speed chase, shot a police dog,
and was shot several times by pursuing police officers.
¶2 Grover survived his injuries, and he was charged with a
host of crimes stemming from these events. He ultimately pled
guilty to a few of the charges as part of a plea agreement. The
judge ordered the sentences to run consecutively.
¶3 Grover now appeals, raising three main arguments. First,
Grover argues that the judge should have recused himself based
on the judge’s prior work as the county attorney. Second, Grover
argues that the judge erred at sentencing by not considering a
State v. Grover
pro se letter that Grover had submitted before sentencing. And
third, Grover argues that the judge should have considered
additional information that Grover had submitted to Adult
Probation & Parole (AP&P) in advance of sentencing. Grover
also raises ineffective assistance of counsel claims relating to
these arguments.
¶4 We disagree with Grover on all fronts. We accordingly
affirm.
BACKGROUND
Grover’s Crime Spree, Charges, and Plea
¶5 On August 29, 2017, St. George Police received reports of
a man throwing rocks at business windows. Officers responded
and swept the area, looking for someone who fit the suspect’s
description.
¶6 While officers were doing so, they were flagged down by
a man at a gas station. This man told officers that he had
approached a person who was rummaging through his truck,
but that he had backed down when the person threatened to
shoot him. He said that the person then punched him in the face
and stole his truck. The man told officers that there was an “AR-
15 type rifle” in his truck when it was stolen.
¶7 At the same time, other officers responded to a report of a
different stolen vehicle in a nearby area. When they arrived at
the scene of that theft, they found the first stolen truck, crashed
into a nearby trailer.
¶8 Dispatch then started receiving calls about a “vehicle
driving erratically at a high rate of speed.” When officers located
and began pursuing this vehicle, they determined that it was the
second stolen vehicle. They also learned from the second
vehicle’s owner that there was a handgun in the vehicle’s center
console.
20200187-CA 2 2022 UT App 48State v. Grover
¶9 During the pursuit, the vehicle crashed into a field behind
a residential complex in Santa Clara, Utah. By this point, officers
considered the driver to be “armed and dangerous.”
¶10 When officers approached the now-stopped vehicle, one
of the officers recognized the driver as Alvie Grover. That officer
began speaking with Grover, hoping to talk him into
surrendering. But Grover refused to surrender. Instead, he began
opening and closing the door repeatedly while “yelling and
swearing belligerently.”
¶11 In the meantime, a K9 officer arrived with Tess, his K9
partner. Prompted by Grover’s aggressive and erratic behavior,
the K9 handler “deployed” Tess to “take control of” Grover.
After Tess jumped into the vehicle, officers heard a gunshot
followed by a yelp. Tess retreated to the back of the stolen
vehicle, and officers then fired at Grover.
¶12 Grover was hit 19 times. After officers secured the scene
and “began lifesaving measures,” Grover was taken to a nearby
hospital to receive treatment. Grover survived his wounds, and
he was later booked into jail. As for Tess, she was life flighted to
Las Vegas for specialty treatment. Tess survived, but she had to
retire early because of her injuries.
¶13 Grover was charged with eight crimes stemming from
these events: aggravated robbery, theft of a firearm, possession
of a dangerous weapon by a restricted person, theft of property
(operable motor vehicle), criminal mischief, injuring or
interfering with a police service animal, failure to respond to an
officer’s signal to stop, and reckless driving.
¶14 Grover was assigned court-appointed counsel (Counsel),
and he later accepted a plea agreement. In his agreement, Grover
pled guilty to two counts of theft of an operable motor vehicle
(both second degree felonies), one count of criminal mischief (a
second degree felony), and one count of injuring or interfering
with a police service animal (a third degree felony). At the plea
20200187-CA 3 2022 UT App 48State v. Grover
hearing, the district court ordered AP&P to prepare a
presentence investigation report (PSI) and submit it to the court
before the sentencing hearing.
Sentencing
¶15 Grover submitted two documents in advance of
sentencing that are relevant to this appeal.
¶16 First, after AP&P submitted the PSI, Grover sent a pro se
letter to the court (Pro Se Letter).1 In this letter, Grover made a
number of claims about the AP&P investigator who had
prepared the PSI. For example, Grover accused her of having a
conflict of interest because, in addition to working for AP&P, the
investigator also allegedly worked for the sheriff’s office that
employed Tess and Tess’s handler. Grover also claimed that the
investigator had guarded him in the hospital and had
improperly asked him “all kinds of questions” about his criminal
history. Grover further claimed that the investigator had told
him multiple times that he “totally deserve[d] to be gun shot.”
¶17 In the Pro Se Letter, Grover also claimed that the
investigator had made several errors and omissions in the PSI.
He claimed that she had given him “an extra 5 points” on his
criminal history score and that “given a little time [he] could
supply the documentation that would lower [his] criminal
history.” Grover described the investigator’s explanation of his
offenses as being “pulp fiction at best.” And Grover disagreed
with how the investigator identified the crimes to which he had
pled guilty.
1. Grover had previously sent at least three other pro se letters to
the court. In the first two letters, Grover claimed that Counsel
was not communicating with him and asked for “a court date”
so that he could “argue” for a new court-appointed attorney. In a
third letter, Grover described his medical treatment and the pain
his wounds were causing him.
20200187-CA 4 2022 UT App 48State v. Grover
¶18 Second, at the outset of the sentencing hearing the
following month, Counsel informed the court that Grover had
submitted a 35-page packet (the Supplemental Documents) to
AP&P that included Grover’s medical records and “his version
of things.” But when Counsel expressed uncertainty about
whether the Supplemental Documents had been forwarded to
the court, the court responded that it had “not seen” them.
Counsel then argued that Grover had a “right” to have the court
consider them. When Counsel said that he wasn’t sure if the
court wanted to “continue the matter again,” the court
responded, “I don’t.”
¶19 Turning to his sentencing arguments, Counsel asked the
court to order concurrent sentences, not consecutive sentences.
Among others, Counsel pointed out that Grover’s “last felony
offense before this incident was 1997, 22 years ago. Before that
his prior felony was 35 years ago in 1984.”
¶20 Grover made a statement in allocution. He started off by
thanking Counsel “for his efforts” and praising Counsel for
doing “an excellent job.” Grover then talked about the
Supplemental Documents, telling the court that those documents
explained “all these different theories and why it transpired and
everything like that.” Grover also described his injuries, and he
acknowledged that what had happened was “completely [his]
fault.”
¶21 When Grover was done, the K9 handler gave a statement
“on behalf of” Tess. He explained how Grover’s bullet had gone
through Tess’s jaw and into her neck, where it is still lodged. He
also described how she survived only because a specialist was
able to “manipulate the bone structure in her neck and put the
bones back in place.” He said that Tess should have worked for
“probably five more years” but had to retire early, and he said
that she “suffers” because she doesn’t understand why she can’t
go to work with him. The K9 handler further described the event
from his perspective. He explained how he still struggled
20200187-CA 5 2022 UT App 48State v. Grover
emotionally and mentally because shooting somebody was not
something he “ever wanted to do in [his] career.”
¶22 The prosecutor then asked the court to order consecutive
sentences. He emphasized that Grover had stolen two vehicles,
led officers on a high-speed chase, and “forced the officers to use
deadly force.”
¶23 After both sides concluded, the court sentenced Grover to
three prison terms of one-to-fifteen years for the second degree
felonies. For the third degree felony, the court sentenced Grover
to a prison term of up to five years. The court ordered all of the
sentences to run consecutively.
¶24 Explaining this decision, the court said that this was “not
even a close case.” The court said it thought the sentencing
decision was an “easy” one because Grover had committed a
“heinous” crime and had a criminal history that went “back
almost 40 years.” When describing Grover’s criminal history, the
court referenced a “sex offense in 1987.”2
¶25 The court also listed several aggravating factors that
influenced its sentencing decision, including “substantial
monetary loss,” “substantial physical or psychological injury to
the victim,” the harm to Tess “characterized by extreme cruelty
or depravity,” the fact that “the offense involved two or more
victims,” and the fact that Grover is “a repeat offender.”
¶26 Grover timely appealed.
2. From the record, it appears that the court’s reference to a
“1987” sex offense was a misstatement. Grover’s prior conviction
for forcible sex abuse—which Counsel had previously
acknowledged—was entered in 1997, not 1987.
20200187-CA 6 2022 UT App 48State v. Grover
ISSUES AND STANDARDS OF REVIEW
¶27 Grover raises a number of issues on appeal. They
essentially fall into three categories.
¶28 First, Grover argues that the sentencing judge plainly
erred by not recusing himself sua sponte. Relatedly and
alternatively, Grover argues that Counsel was ineffective for not
filing a recusal motion.
¶29 Second, Grover argues that the district court plainly erred
by not considering the Pro Se Letter. Relatedly and alternatively,
Grover argues that Counsel was ineffective for not making the
arguments contained in the Pro Se Letter.
¶30 Third, Grover takes issue with how the district court and
Counsel addressed the Supplemental Documents. Specifically,
he argues that (i) AP&P was legally required to attach those
documents to the PSI, (ii) the court abused its discretion by not
continuing the sentencing hearing so that it could review the
Supplemental Documents, (iii) Counsel was ineffective for
“improperly remain[ing] silent” when the court declined to
continue Grover’s sentencing, and (iv) Counsel was ineffective
for not otherwise ensuring that the court reviewed the
documents.
¶31 To succeed on his plain error claim, Grover must “show
the existence of a harmful error that should have been obvious to
the district court.” State v. Waterfield, 2014 UT App 67, ¶ 18, 322
P.3d 1194 (quotation simplified). On the ineffective assistance
claims, because those are “raised for the first time on appeal,
there is no lower court ruling to review and we must decide
whether [Grover] was deprived of the effective assistance of
counsel as a matter of law.” Layton City v. Carr, 2014 UT App
227, ¶ 6, 336 P.3d 587 (quotation simplified). Finally, “this court
reviews decisions involving continuances of sentencing only for
abuse of discretion.” State v. Sharp, 2021 UT App 90, ¶ 23, 498
P.3d 9 (quotation simplified).
20200187-CA 7 2022 UT App 48State v. Grover
ANALYSIS
I. Recusal
¶32 Grover was sentenced by Judge Eric Ludlow. On appeal,
Grover argues that Judge Ludlow was required to recuse himself
because he was the Washington County Attorney in 1997 when
Grover was prosecuted by that office and because Judge Ludlow
then relied on that conviction as part of his justification for the
sentence in this case.3 Grover acknowledges that he did not raise
this issue below, so he argues that Judge Ludlow plainly erred
by not recusing himself sua sponte. See State v. Van Huizen, 2019
UT 01, ¶ 19, 435 P.3d 202 (holding that claims of judicial bias are
“not immune from preservation rules”); State v. Johnson, 2017 UT
76, ¶ 19, 416 P.3d 443 (explaining that plain error is an exception
to the preservation requirement).
¶33 To show plain error, Grover “must establish that (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.” Van Huizen, 2019 UT 01, ¶ 30 (quotation simplified).
“For an error to be obvious to the trial court, the law governing
the error must be clear or plainly settled.” Id. (quotation
simplified); see also State v. Marquina, 2020 UT 66, ¶ 30, 478 P.3d
37 (“An error is obvious if from a review of the record, the
appellate court is led to the conclusion that given the
3. The State does not contest Grover’s assertion that
Judge Ludlow was the Washington County Attorney
when Grover was prosecuted in 1997, and we have no reason to
do so either. See Judges’ Biographies, Utah Courts,
https://www.utcourts.gov/judgesbios/showGallery.asp?ct_type=
D&dist=5 [https://perma.cc/JJB8-75RU] (stating that Judge
Ludlow was the Washington County Attorney from 1991
through 2003).
20200187-CA 8 2022 UT App 48State v. Grover
circumstances, the trial court should have been aware that an
error was being committed at the time.” (Quotation simplified.)).
A. Applicable Law
¶34 As an initial matter, the parties disagree about what
source of law controls this issue. Grover argues that his
conviction must be reversed if Judge Ludlow was required to
recuse under either the Due Process Clause of the Fourteenth
Amendment or rule 2.11(A) of the Utah Code of Judicial
Conduct. By contrast, the State argues that the judicial conduct
rules alone are not enough to entitle Grover to relief, but that “a
violation of the Due Process Clause” “is required for reversal.”
¶35 The parties’ arguments largely turn on competing
interpretations of State v. Munguia, 2011 UT 5, 253 P.3d 1082. As
the State points out, the supreme court there concluded that
“even if [the defendant] were to show” that the trial judge had
“engaged in conduct worthy of sanctions under the Code of
Judicial Conduct, he would still need to show that the conduct
violated his constitutional rights in such a way that merits
reversal of his sentence.” Id. ¶ 16. Taken at face value, this
passage does suggest that reversal of a conviction on appeal is
only warranted if the judge’s conduct violated the constitutional
standard.
¶36 But that’s not the only plausible way to read this passage.
The defendant in Munguia argued that the trial judge was
required to recuse himself under the “state and federal
constitutions.” Id. ¶ 15. And yet in his brief, the defendant did
“not further develop what kind of judicial conduct might
constitute a violation of his due process rights.” Id. ¶ 16. Instead,
he “discusse[d] when recusal is appropriate under the Utah
Code of Judicial Conduct and Rules of Professional Conduct.” Id.
From this, the supreme court held that the defendant’s
arguments had “incorrectly equate[d] judicial conduct that
would violate a criminal defendant’s constitutional rights with
judicial conduct that might lead to sanctions for a judge.” Id.
20200187-CA 9 2022 UT App 48State v. Grover
And given this, the passage the State relies on here was arguably
faulting the defendant in Munguia for insufficiently supporting
the constitutional argument that he had chosen to make—i.e., for
incorrectly assuming that the constitutional and canonical
standards were coterminous.4
¶37 Yet there’s at least some reason to believe that a party can
obtain reversal of a judgment based on a violation of rule 2.11(A)
alone. The “provisions of the Code of Judicial Conduct . . . have
legal force.” American Rural Cellular, Inc. v. Systems Commc'n
Corp., 939 P.2d 185, 195 n.12 (Utah Ct. App. 1997). And rule
2.11(A) in particular uses the mandatory “shall” when
describing a judge’s obligation to “disqualify himself or herself
in any proceeding in which the judge’s impartiality might
reasonably be questioned.” Utah Code Jud. Conduct R. 2.11(A);
see also Cheek v. Clay Bulloch Constr. Inc., 2016 UT App 227, ¶ 25,
387 P.3d 611 (holding that recusal can be “required under
provisions of the Code of Judicial Conduct”).
¶38 Although judges are obligated to recuse if their
impartiality might reasonably be questioned, the question here
concerns the next step—whether an appellate court can reverse a
judgment after the fact based on a judge’s failure to recuse when
required by this rule. In Regional Sales Agency, Inc. v. Reichert, 830
P.2d 252, 254–58 (Utah 1992), the supreme court vacated one of
our decisions after concluding that one of the judges who sat on
the panel should have recused herself under the then-existing
rule 3(C)(1)(d) of the Utah Code of Judicial Conduct, which
likewise turned on whether the judge’s “impartiality might
reasonably be questioned.” Notably, the supreme court never
mentioned any separate violation of any constitutional standard,
instead reversing solely because of the rule violation. Id. at 257
n.7. And the court did so even though two dissenting justices
argued that the judicial rules “do not have force of law” and
4. Unlike the defendant in Munguia, Grover separately requested
relief under both sources of authority.
20200187-CA 10 2022 UT App 48State v. Grover
cannot, alone, support the reversal of a decision. Id. at 260
(Howe, A.C.J., dissenting).5 Further, in a more recent decision
that postdates Munguia, the supreme court rejected a criminal
defendant’s challenge to his conviction that was based on an
alleged violation of “rule 2.11 of the Utah Code of Judicial
Conduct” (which is the same rule that Grover relies on here).
Van Huizen, 2019 UT 01, ¶ 12. The supreme court did not assert
that the judicial conduct rules cannot provide the basis for
vacating a conviction on appeal. Instead, the court analyzed the
claim on its own terms, ultimately rejecting the assertion that the
judge’s participation in the case had violated “the plain language
of rule 2.11.” Id. ¶ 31; see also id. ¶ 37.
¶39 We’re accordingly left with some apparent tension in the
cases about the appropriate remedy for a violation of the judicial
conduct rules—i.e., whether a party can obtain reversal on
appeal based on a violation of these rules alone. But we
ultimately need not resolve this tension in this case. Even if
Grover is correct that a party can obtain reversal based on either
a rule violation or a violation of the constitutional standard,
Grover has not shown that either standard was violated here.
B. Due Process Clause
¶40 We first consider Grover’s claim that the Due Process
Clause plainly required Judge Ludlow to recuse himself based
on his past position as the Washington County Attorney when
Grover was prosecuted by that office. In our view, the Due
Process Clause didn’t plainly require recusal in this
circumstance.
¶41 “Due process guarantees an absence of actual bias on the
part of the judge.” Williams v. Pennsylvania, 579 U.S. 1, 8 (2016)
5. Regional Sales Agency was later limited on other grounds that
are not relevant to the question before us. See In re Inquiry
Concerning a Judge, 2003 UT 35, ¶¶ 12–15, 81 P.3d 758.
20200187-CA 11 2022 UT App 48State v. Grover
(quotation simplified). In Williams, the Supreme Court held that
“there is an impermissible risk of actual bias when a judge
earlier had significant, personal involvement as a prosecutor in a
critical decision regarding the defendant’s case.” Id. (emphases
added). In that case, for example, a district attorney had
approved the decision to seek the death penalty against a
defendant. Id. at 4. When that district attorney was later elevated
to the state supreme court, he voted to deny that same prisoner
relief from execution in that same case. Id. The Supreme Court
held that this created “an impermissible risk of actual bias.” Id.
at 8, 11–14.
¶42 The circumstances here are far different. Judge Ludlow’s
alleged prior involvement was not in the same case that is now
at issue. Rather, Judge Ludlow was the county attorney when
Grover was previously prosecuted, but that prosecution was for
a separate offense entirely. In addition, even with respect to that
earlier case, Grover points to nothing showing that Judge
Ludlow had any “significant, personal involvement” in it at all.
Id. at 8.
¶43 Even so, Grover points out that Judge Ludlow relied on
that prior prosecution as part of his criminal history
considerations when sentencing Grover in this case. But Grover
points to no authority, and we’re aware of none, that establishes
that it is a due process violation for a judge to rely on a past
conviction during sentencing if that conviction was obtained
during the judge’s prior tenure as the county attorney. This
precedential gap matters because, again, plain error requires
obviousness, and obviousness requires that the “law governing
the error must be clear or plainly settled.” Van Huizen, 2019 UT
01, ¶ 30 (quotation simplified). Our courts have thus held that
“an error is not obvious if there is no settled appellate law to
guide the trial court.” State v. Roman, 2015 UT App 183, ¶ 9, 356
P.3d 185 (quotation simplified).
¶44 Absent such authority, we cannot conclude that Judge
Ludlow “should have been aware that an error was being
20200187-CA 12 2022 UT App 48State v. Grover
committed at the time,” Marquina, 2020 UT 66, ¶ 30 (quotation
simplified), let alone that there was even any error at all. Given
this, Grover’s claim that there was an obvious due process
violation fails.
C. Utah Code of Judicial Conduct Rule 2.11(A)
¶45 Grover next argues that Judge Ludlow was plainly
required to recuse himself under rule 2.11(A) of the Utah Code
of Judicial Conduct. We conclude that recusal was not plainly
required under this rule.
¶46 Rule 2.11(A) states that a “judge shall disqualify himself
or herself in any proceeding in which the judge’s impartiality
might reasonably be questioned.” Utah Code Jud. Conduct R.
2.11(A). It then provides “an illustrative, but not exhaustive, list
of disqualifying circumstances.” Blackmore v. L & D Dev. Inc.,
2016 UT App 198, ¶ 27, 382 P.3d 655.
¶47 None of the listed examples are directly implicated here.
The closest is rule 2.11(A)(6)(b), which applies when the judge
“served in governmental employment, and in such capacity
participated personally and substantially as a lawyer or public
official concerning the proceeding.” Utah Code Jud. Conduct R.
2.11(A)(6)(b) (emphases added). But unlike the scenario
contemplated by that rule, Judge Ludlow was not involved in
“the proceeding” at issue in this case; rather, he’s alleged to have
been involved in an entirely separate past prosecution. And even
on that front, Grover again points to nothing showing that Judge
Ludlow participated “personally and substantially” in that prior
case. Rule 2.11(A)(6)(b) is therefore inapplicable.
¶48 Moreover, many of the other examples listed in rule
2.11(A) likewise contemplate scenarios where the judge has an
interest or involvement in the current case. See, e.g., Utah Code
Jud. Conduct R. 2.11(A)(6)(a) (stating that a judge “shall
disqualify himself” if he “served as a lawyer in the matter in
controversy”). Grover himself thus appropriately admits that his
20200187-CA 13 2022 UT App 48State v. Grover
situation “does not fit squarely into the list of circumstances
contained in Rule 2.11(A).”
¶49 Grover nevertheless points out that the examples listed in
rule 2.11(A) are not exhaustive. Fair enough. But again, to
demonstrate plain error, Grover must demonstrate that Judge
Ludlow committed an obvious error, and an error can only be
obvious if “the law governing the error” is “clear or plainly
settled.” Van Huizen, 2019 UT 01, ¶ 30 (quotation simplified).
¶50 Grover has not pointed to any law that clearly or plainly
establishes that rule 2.11(A) requires recusal if a sentencing
judge served as the county attorney when a defendant was
prosecuted for an entirely different offense. Instead, he only
claims that his scenario is “similar” to those listed in rule 2.11(A).
¶51 We have some doubt about whether any of the listed
examples are in fact similar. But in any event, they’re not similar
enough to have obviously established that Judge Ludlow was
required to recuse himself. Indeed, Grover himself
acknowledges that, “[i]n other states, it has been held that a
judge previously prosecuting a defendant in a different matter is
insufficient grounds for recusal.” And from our review of the
cases, this concession is warranted—other courts have
commonly rejected recusal claims raised under similar rules in
similar situations. See, e.g., Brown v. State, 424 S.W.3d 288, 292
(Ark. 2012) (“[A] judge need not recuse because that judge had
previously prosecuted the defendant for a separate crime that
was to be used for sentence-enhancement purposes.”); Leverette
v. State, 732 S.E.2d 255, 257 (Ga. 2012) (“However, the fact that a
judge in the judge’s previous capacity as district attorney
prosecuted the defendant on another charge not currently
pending before the judge, is not, standing alone, a ground for
disqualification.” (Emphasis in original.)); see also State v.
Connolly, 930 So. 2d 951, 954 (La. 2006); State v. Marden, 673 A.2d
1304, 1308 (Me. 1996); Commonwealth v. O’Shea, 567 A.2d 1023,
1034 (Pa. 1989); Smith v. State, 357 S.W.3d 322, 340–41 (Tenn.
2011).
20200187-CA 14 2022 UT App 48State v. Grover
¶52 Given the lack of an applicable Utah rule, as well as the
weight of authority from other states rejecting the same kind of
claim that Grover now makes, we conclude that Grover has not
established that Judge Ludlow made an obvious error by not
recusing himself. See Van Huizen, 2019 UT 01, ¶ 37. His claim
thus fails.6
II. Pro Se Letter
¶53 Grover next argues that the district court erred by not
considering the Pro Se Letter, wherein Grover detailed his
disagreements with the PSI. Relatedly and alternatively, Grover
argues that Counsel was ineffective for not raising the objections
Grover made in the Pro Se Letter at sentencing. We address each
argument in turn.
A. The district court was not required to consider the Pro Se
Letter.
¶54 Grover first argues that the district court was required to
consider his Pro Se Letter under Utah Code section 77-18-1(6)(a).
We disagree.
¶55 A defendant is “not entitled to a hybrid representation” in
a criminal case. State v. Finlayson, 2014 UT App 282, ¶ 21 n.10,
362 P.3d 926 (quotation simplified). Hybrid representation is
disfavored because it “creates confusion as to who is the
ultimate decision-maker.” State v. Hackett, 172 N.E.3d 75, 78
(Ohio 2020). This confusion “may lead to ethical concerns for
6. In his brief, Grover also argues that Counsel “was ineffective
for failing to file a recusal motion on Grover’s behalf.” But in
light of our resolution above, Grover’s related ineffective
assistance claim necessarily fails. See State v. Munguia, 2011 UT 5,
¶ 19, 253 P.3d 1082 (“Because Judge Kouris was not required to
recuse himself, Mr. Munguia’s counsel was also not ineffective
when she did not request recusal.”).
20200187-CA 15 2022 UT App 48State v. Grover
counsel if there is disagreement over trial strategy,” and it also
“presents courtroom-management challenges for the trial
judge.” Id.¶56 As a result, “when a defendant is represented by counsel,
he generally has no authority to file pro se motions, and the
court should not consider them.” Finlayson, 2014 UT App 282,
¶ 21 n.10 (quotation simplified). “The only exception to this rule
is that a defendant may file a pro se motion to disqualify his
appointed counsel.” State v. Hall, 2013 UT App 4, ¶ 27 n.8, 294
P.3d 632. But in other scenarios, a court does not err when it
declines to consider the pro se filings of a defendant who is
represented by counsel. See, e.g., State v. Navarro, 2010 UT App
302, ¶¶ 3–4, 243 P.3d 519.
¶57 Here, Grover was represented by Counsel when he sent
the Pro Se Letter. As a result, he was not entitled to hybrid
representation, and the court was not required to consider the
Pro Se Letter.7
7. We understand Grover’s argument to be that the court was
required to consider the Pro Se Letter as a formal challenge to
the PSI under the procedures set forth in the controlling statute.
This is why we have concluded that a represented defendant
must make such a challenge through counsel.
Even when represented by counsel, however, a defendant
does, of course, have the right to “personally” address the court
in allocution before sentencing. State v. Kelson, 2015 UT App 91,
¶ 7, 348 P.3d 373. But Grover has not argued in his brief that this
letter should have been considered a form of written allocution,
let alone that the allocution right allows a defendant to bypass
the ordinary prohibition on hybrid representation with respect
to pre-sentencing motions. In any event, even if Grover has
impliedly made such an argument, our supreme court has held
that “so long as the [sentencing] hearing was held in [the]
defendant’s presence and [the] defendant had an opportunity to
(continued…)
20200187-CA 16 2022 UT App 48State v. Grover
B. Counsel was not ineffective for not raising the arguments
Grover made in the Pro Se Letter.
¶58 Grover next argues that Counsel was constitutionally
ineffective for not raising the arguments that Grover made in the
Pro Se Letter. We conclude otherwise.
¶59 To succeed on this claim, Grover must show two things.
First, he “must show that counsel’s performance was deficient.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). This requires
him to establish “that counsel’s representation fell below an
objective standard of reasonableness.” Id. at 688. Second, Grover
“must show that the deficient performance prejudiced” him. Id.
at 687. This requires Grover to establish “that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. Further, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, . . . that course should be followed.”
Id. at 697; see also Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182(“Because failure to establish either prong of the test is fatal to an
ineffective assistance of counsel claim, we are free to address
[the defendant’s] claims under either prong.”). Here, we
conclude that Grover’s claim fails for lack of prejudice.
¶60 Grover’s Pro Se Letter advanced two key claims: first, that
the PSI had misstated Grover’s criminal history; and second, that
the investigator who prepared the PSI had a conflict of interest
and harbored personal bias against him.
(…continued)
speak,” the allocution right has been satisfied. State v. Rodrigues,
2009 UT 62, ¶ 40, 218 P.3d 610 (quotation simplified); accord State
v. Tingey, 2014 UT App 228, ¶ 9, 336 P.3d 608. As noted, Grover
personally appeared at sentencing and actively spoke to the
court. Any such claim would therefore fail.
20200187-CA 17 2022 UT App 48State v. Grover
¶61 In his brief, however, Grover does not identify any
particular error regarding his criminal history, so we have no
basis for concluding that there was prejudice in this regard.
¶62 And while it does appear that Counsel did not bring the
alleged conflict of interest by the AP&P investigator to the
court’s attention at sentencing, we see no probability that doing
so would have changed the court’s sentencing decision.
¶63 By the time of sentencing, the facts of this case were
largely undisputed. The court was informed that Grover had
stolen two vehicles, led police on a high-speed chase, refused to
surrender, shot a police dog, and been shot himself. Grover does
not dispute any of this on appeal.
¶64 Both before and at sentencing, Grover had the
opportunity to provide any additional details about these events
and ask for leniency. The PSI, for example, included Grover’s
statement that he felt remorseful. Then, at sentencing, Grover
allocuted. And when he did, Grover personally explained what
happened during the events in question, told the court about the
injuries he suffered, and, critically, again expressed remorse. He
said that the officers who were “forced” to shoot him were the
“most victimized” by the situation and that the shooting was
“completely [his] fault.” Grover’s Counsel also made arguments
on Grover’s behalf at sentencing, expressing his view that
Grover had “sober[ed] up” and was “start[ing] to realize . . . the
consequences of his actions,” as well as arguing that concurrent
sentences were sufficient because Grover would still “do extra
time for each Count.”
¶65 But the court heard contrary information and arguments
too. The PSI included the investigator’s observation that Grover
“showed little to no emotion or empathy toward the situation or
the victims involved,” as well as her claim that Grover
“argue[d]” with her when she told him that AP&P would be
recommending prison and not probation. At sentencing, the
court heard from the K9 handler, who described both his own
20200187-CA 18 2022 UT App 48State v. Grover
struggles stemming from the incident and the pain and suffering
of the police dog that Grover shot. And the court heard
arguments from the prosecutor, who emphasized the nature of
the crime and the harm they caused.
¶66 Having considered all this, the court expressed its view
that this was “not even a close case” and that the sentencing
decision before it was an “easy” one. The court based this on the
“heinous” nature of these offenses, which included “substantial
monetary loss,” the “substantial physical or psychological injury
to the victim,” and the harm to the police dog. It also based this
on Grover’s undisputed criminal history.
¶67 From all this, we don’t believe that there’s any reasonable
probability that Grover’s sentence would have been different if
Counsel had informed the court of Grover’s complaints about
either his criminal history or the AP&P investigator’s alleged
conflict of interest. Grover’s ineffective assistance claim therefore
fails for lack of prejudice.
III. Supplemental Documents
¶68 Grover makes a number of claims relating to the
Supplemental Documents—i.e., the 35-page packet that he
allegedly submitted to AP&P before the sentencing hearing.8
¶69 First, Grover claims that AP&P was required to attach the
Supplemental Documents to the PSI. But Grover points to no
authority establishing that AP&P is required to attach a
defendant’s submissions to the PSI. And to the apparent
8. This packet is not currently in the record, and Grover has not
asked for a remand to allow the court to supplement the record
to make findings about what was in it. See Utah R. App. P. 23B
(allowing a defendant to move “to remand for findings
necessary to determination of ineffective assistance of counsel
claim”).
20200187-CA 19 2022 UT App 48State v. Grover
contrary, the statutory provision that details what a “presentence
investigation report shall include” does not require AP&P to
attach any submissions from the defendant. See Utah Code Ann.
§ 77-18-1(5)(b) (LexisNexis 2017).
¶70 Second, Grover claims he was “denied the opportunity to
present evidence concerning the appropriate sentence” because
the court did not grant him a continuance of the sentencing
hearing to allow it to review the Supplemental Documents.
¶71 But a “district court’s decision regarding whether to
continue a matter is generally reviewed for abuse of discretion.”
State v. Sharp, 2021 UT App 90, ¶ 22, 498 P.3d 9. Here, Grover
received the PSI at least three weeks before sentencing. Once he
did, he would have seen that the Supplemental Documents were
not attached, thereby giving him time to submit them to the
court through Counsel before sentencing. He did not, so we see
no abuse of discretion in the court’s decision not to continue the
hearing when this was brought to the court’s attention at
sentencing.
¶72 Third and relatedly, Grover argues that Counsel was
ineffective for “improperly remain[ing] silent” when the court
declined to continue the sentencing hearing to allow it to review
the Supplemental Documents. Though somewhat unclear, we
understand this to be an argument that Counsel should have
objected more forcefully to the court’s decision not to continue
the matter.
¶73 But the Constitution does not require counsel to request a
continuance when counsel “could have reasonably concluded
that the trial court would not continue the proceedings.” State v.
Gunter, 2013 UT App 140, ¶ 35, 304 P.3d 866; see also State v. Kelly,
2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objections
does not constitute ineffective assistance of counsel.”). Here,
Counsel did tacitly broach the subject of a possible continuance.
But when he did, the court said that it did not want to continue
sentencing. From this alone, Counsel had a reasonable basis for
20200187-CA 20 2022 UT App 48State v. Grover
not pushing the matter further. See Gunter, 2013 UT App 140,
¶ 35.
¶74 In any event, Grover has also failed to establish that there
is a reasonable probability that “the result of the proceeding
would have been different” if Counsel had more forcefully asked
for a continuance. Strickland, 466 U.S. at 694. As explained, the
court allowed both Grover and Counsel to speak at sentencing.
Grover took that opportunity, and when he did, he personally
informed the court about the nature of his injuries and accepted
responsibility for his crimes—which are the very things he
claims to have done in the Supplemental Documents. We
accordingly see no basis for concluding that Grover would have
received “a more favorable sentence” if Counsel had performed
differently in this regard (or, instead, if the court somehow
abused its discretion by not granting a continuance in the first
instance). Sharp, 2021 UT App 90, ¶ 45.
¶75 Finally, Grover argues that Counsel was ineffective for
not ensuring that the court “admitted or reviewed” the
Supplemental Documents—presumably by submitting them
himself.
¶76 Like all defendants who “raise[] a claim that trial counsel
was ineffective,” Grover “bears the burden of assuring that the
record is adequate,” and any “ambiguities or deficiencies” in the
record “will be construed in favor of a finding that counsel
performed effectively.” State v. Litherland, 2000 UT 76, ¶¶ 16–17,
12 P.3d 92. As noted, those Supplemental Documents are not in
our record. We must therefore construe the record’s inadequacy
“in favor of a finding that counsel performed effectively.” Id.
¶ 17. And without the Supplemental Documents, we also cannot
conclude “that there is a reasonable probability that” Grover’s
sentence “would have been different.” Strickland, 466 U.S. at 694;
see also State v. Littlejohn, 2021 UT App 73, ¶ 37, 496 P.3d 726. In
any event, for the additional reasons explained above, it appears
that the court was apprised of the arguments Grover wished to
make, and yet it still based its decision on the largely
20200187-CA 21 2022 UT App 48State v. Grover
uncontroverted details regarding Grover’s crimes, their impact,
and Grover’s criminal history.
¶77 For all these reasons, Grover has not shown any reversible
error with regard to the Supplemental Documents.
CONCLUSION
¶78 Grover has not established that Judge Ludlow plainly
erred by not recusing himself, nor has he shown that Counsel
was ineffective for failing to file a recusal motion. Because
Grover was represented by Counsel, the court was not required
to consider the Pro Se Letter, and we see no basis for concluding
that Grover was prejudiced by any failure by Counsel to
advance the arguments contained therein. Finally, we see no
reversible error with respect to either the court’s decisions
regarding, or Counsel’s handling of, the Supplemental
Documents.
¶79 Affirmed.
20200187-CA 22 2022 UT App 48