State v. Allen

2015 UT App 163THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
DAVID JAMES ALLEN,
Defendant and Appellant.
Memorandum Decision
No. 20130405-CA
Filed June 25, 2015
Second District Court, Farmington Department
The Honorable Michael G. Allphin
No. 121700011
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes, Ryan D. Tenney, and Deborah L.
Bulkeley, Attorneys for Appellee
JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
which JUDGES MICHELE M. CHRISTIANSEN and JOHN A. PEARCE
concurred.
TOOMEY, Judge:
¶1 David James Allen appeals his sentence, arguing that his
trial counsel rendered ineffective assistance by not asserting that
Allen had mental-health issues as a defense for his probation
violation. We affirm.
¶2 On February 6, 2012, Allen pled guilty to one count of
attempted distribution of a controlled substance, a third-degree
felony. As part of the plea agreement, the State agreed to
recommend the reduction of Allen’s offense to a class A
misdemeanor upon his successful completion of probation. Before
sentencing, Allen moved to withdraw his guilty plea, claiming he
was “under a great deal of mental *anxiety+ and stress” when he
State v. Allen
pled guilty. The trial court denied Allen’s motion and ordered
Adult Probation and Parole (AP&P) to prepare a presentence
investigation report. In the report, AP&P recommended that
Allen be “sentenced to serve 0–5 years in the Utah State Prison,
suspended upon successful completion of formal probation.”
AP&P also suggested, as a special condition to probation, that
Allen complete a mental health evaluation because Allen
“reported being diagnosed with bipolar disorder, but did not
provide any specific information regarding when he was
diagnosed or his current status.” At sentencing, the court adopted
AP&P’s recommendations.
¶3 Between sentencing and February 28, 2013, AP&P filed two
probation-violation reports. In each report, AP&P noted Allen’s
failure to participate in counseling or treatment. In the February
2013 report, an AP&P agent opined that “Allen suffers from
multiple mental health disorders and he must undergo an
evaluation in order to be successful.” Accordingly, AP&P
recommended that Allen’s probation be “revoked and terminated
as unsuccessful with the service of 180 days jail.”
¶4 At a subsequent hearing, Allen admitted to violating the
terms of his probation and his trial counsel asked the court to
follow AP&P’s recommendations, stating, “I think there’s some
serious mental health issues. Unless [Allen is] absolutely
supervised and medicated I think these are the kind of things that
you’re going to run into.” On March 18, 2013, the court accepted
trial counsel’s and AP&P’s recommendation, revoked and
terminated Allen’s probation as “unsuccessful,” and ordered
Allen to serve 180 days in jail.1 Allen appealed before he was
released from jail on July 26, 2013.2
1. It is unclear whether the trial court effectively ordered a new
sentence or restarted Allen’s probation by requiring him to “serve
180 days in the Davis County Jail” to close out this case. Utah case
law indicates that trial courts have “the authority to execute only
(continued…)
20130405-CA 2 2015 UT App 163State v. Allen
¶5 Allen, represented by new counsel on appeal, contends
that his trial counsel rendered ineffective assistance by “failing to
affirmatively request that the sentencing court consider *Allen’s+
(…continued)
the previously imposed sentence.” See State v. Anderson, 2009 UT
13, ¶ 9, 203 P.3d 990. But see Utah Code Ann. § 77-18-1(12)(e)(iii)
(LexisNexis Supp. 2014) (“If probation is revoked, the defendant
shall be sentenced or the sentence previously imposed shall be
executed.”). Because neither party disputes the classification
of Allen’s jail term—whether it is a condition of probation or a
renewed sentence—we do not address the matter.
2. The State argues that because Allen was released from jail on
July 26, 2013, his appeal is moot. In his reply brief, Allen contends
his appeal is not moot because his conviction still affects his
rights. “An appeal is moot if during the pendency of the appeal
circumstances change so that the controversy is eliminated,
thereby rendering the relief requested impossible or of no legal
effect.” Utah Transit Auth. v. Local 382 of the Amalgamated Transit
Union, 2012 UT 75, ¶ 14, 289 P.3d 582 (citation and internal
quotation marks omitted). But, “*w+here collateral legal
consequences may result from an adverse decision, courts have
generally held an issue not moot and rendered a decision on the
merits.” Barnett v. Adams, 2012 UT App 6, ¶ 7, 273 P.3d 378(citation and internal quotation marks omitted); see also Duran v.
Morris, 635 P.2d 43, 45 (Utah 1981) (recognizing that in criminal
cases a petitioner’s release from custody renders a case moot only
if there is no possibility of any collateral legal consequences, such
as the petitioner’s inability to vote or the use of the conviction as a
factor in determining sentencing in a future trial). We are not
convinced that Allen faces no collateral legal consequences as a
result of his felony conviction and revoked probation terms.
Accordingly, we reach the issues underlying Allen’s appeal. See
Barnett, 2012 UT App 6, ¶ 4.
20130405-CA 3 2015 UT App 163State v. Allen
mental illnesses as a defense to the probation violation.”3 He
suggests that if the court had properly evaluated his mental
illnesses, it would have sent Allen to a treatment program as part
of a new probation term, instead of jail. Allen further argues that
with proper treatment he would have successfully completed
probation which would have resulted in the reduction of his
third-degree-felony conviction to a class A misdemeanor. “When
a claim of ineffective assistance of counsel is raised for the first
time on appeal, there is no lower court ruling to review and we
must decide whether [the] defendant 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 (alteration in original)
(citation and internal quotation marks omitted).
3. Allen also argues that his trial counsel erred because counsel
should have invoked statutes governing verdicts and pleas of
“guilty with a mental illness” that would require the court to
evaluate his mental illness and consider his mental illness at
sentencing. See Utah Code Ann. §§ 77-16a-103, -104 (LexisNexis
2012). This argument is misplaced. Allen pled guilty in the
ordinary sense and does not challenge the court’s denial of his
motion to withdraw his guilty plea. Moreover, pursuant to Utah
law, if the court finds by clear and convincing evidence that the
defendant has a mental illness, “the court shall impose any
sentence that could be imposed under law upon a defendant who
does not have a mental illness and who is convicted of the same
offense.” Id. § 77-16a-104(3) (providing the court the discretion to
place defendant in custody, order probation, or commit the
defendant to the department of human services if by clear and
convincing evidence the defendant’s illness poses an immediate
risk). Allen therefore fails to demonstrate how trial counsel’s
alleged errors prejudiced his defense because he has not shown
how a “guilty with a mental illness” plea would have changed the
outcome.
20130405-CA 4 2015 UT App 163State v. Allen
¶6 To establish that his trial counsel rendered ineffective
assistance, Allen must demonstrate (1) that his “counsel’s
performance was deficient” and (2) “that the deficient
performance prejudiced the defense.” See Strickland v. Washington,
466 U.S. 668, 687 (1984). To demonstrate that his counsel’s
performance was deficient, Allen “must show that counsel’s
representation fell below an objective standard of
reasonableness.” Id. at 689. This requires the defendant to
overcome the “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id.
¶7 Allen has not established that his trial counsel rendered
ineffective assistance, because even if we were to find that
his counsel’s performance was deficient, Allen has not
demonstrated that the deficient performance prejudiced his
defense. “To establish the prejudice element of an ineffective
assistance of counsel claim, the defendant must show that a
reasonable probability exists that, but for counsel’s error, the
result would have been different.” Carr, 2014 UT App 227, ¶ 12
(citation and internal quotation marks omitted). Allen argues,
“But for counsel’s unprofessional and unreasonable failure to
request that the sentencing court consider *Allen’s+ mental
illnesses as a defense or mitigating circumstance to the probation
violation at sentencing, the result at sentencing would have been
different.” Allen offers no evidence that a mental health
professional or doctor has diagnosed him with a mental illness.
Instead, to support his assumption that he suffers from mental
illness, Allen solely relies on (1) the AP&P agent’s opinion that
“Mr. Allen suffers from multiple mental health disorders and he
must undergo an evaluation in order to be successful” and (2) his
trial counsel’s comment to the court that Allen has serious mental
issues and needs to be supervised and medicated to be successful.
¶8 Even if we were to assume that trial counsel’s and AP&P’s
opinion were enough to establish that Allen has a mental illness,
“it is not enough to show that the alleged errors had some
conceivable effect on the outcome[,] . . . [Allen] must show that a
reasonable probability exists that . . . the result would have been
20130405-CA 5 2015 UT App 163State v. Allen
different.” See State v. Millard, 2010 UT App 355, ¶ 18, 246 P.3d 151(citation and internal quotation marks omitted). Instead of
explaining how the court’s consideration of his mental illnesses
would likely have resulted in anything other than jail time, Allen
merely asserts that “the court—more likely than not—would have
duly allowed [Allen] the opportunity to obtain a mental health
evaluation and thus seek appropriate treatment for his mental
illnesses” if it knew the extent of Allen’s mental illnesses. Nothing
in Allen’s argument supports the assertion that with a better
understanding of Allen’s mental health issues, the court would
have made a different decision. Indeed, Allen fails to take into
account that the court considered his mental health in sentencing
and allowed him the opportunity to obtain a mental health
evaluation when it required Allen to seek a mental health
evaluation and treatment as a condition of his probation. But,
even with this contingency, Allen did not obtain a mental health
evaluation or receive treatment of any kind. Moreover, Allen
reportedly violated the terms of his probation in other ways at
least twice in the first year of his term. Without demonstrating
that some circumstance exists that creates a reasonable probability
the outcome would have been different, any alleged error by
Allen’s trial counsel is harmless. See Carr, 2014 UT App 227, ¶ 12.
¶9 We therefore affirm.
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