State v. Calata

2022 UT App 127THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
MAXIMO GABRIEL CALATA,
Appellant.
Opinion
No. 20200145-CA
Filed November 17, 2022
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 171908445
Emily Adams and Freyja Johnson, Attorneys
for Appellant, assisted by law students Jared Erekson
and Jonathan Mena*
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee, assisted by law student Jessica Holzer*
JUSTICE JILL M. POHLMAN authored this Opinion, in which JUDGES
GREGORY K. ORME and RYAN D. TENNEY concurred.1
POHLMAN, Justice:
¶1 Two Utah Highway Patrol troopers pulled over Maximo
Gabriel Calata after a license plate check revealed the plate on the
*
See Utah R. Jud. Admin. 14-807 (governing law student practice
in the courts of Utah).
1. Justice Jill M. Pohlman began her work on this case as a member
of the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
id. R. 3-108(4).
State v. Calata
car Calata was driving had been reported as stolen. As the
troopers approached Calata, he fled the scene in the car, leading
the troopers on a high-speed chase for nearly twenty blocks.
Eventually, after Calata’s car slowed, both troopers employed a
pursuit intervention technique (PIT maneuver), causing Calata’s
car to come to a stop. Calata was arrested, and he later pled guilty
to failure to stop at command of police. As part of his sentence,
the district court ordered Calata to pay restitution for damages
sustained by the troopers’ patrol cars in ending the chase.
¶2 Calata appeals, arguing that the district court erred when
it refused to calculate court-ordered restitution and that his
defense counsel provided constitutionally ineffective assistance in
the restitution proceedings. We reject his claims of ineffective
assistance of counsel, but we reverse and remand for the district
court to determine court-ordered restitution.
BACKGROUND2
¶3 On July 13, 2017, a Utah Highway Patrol trooper
(Trooper 1) ran a license plate check on a damaged car he
observed at a gas station. Calata was the driver of that car. The
check revealed that the license plate had been reported stolen, so
Trooper 1 followed the car as it left the gas station. After another
Utah Highway Patrol trooper (Trooper 2) arrived as backup, the
troopers pulled Calata over. The troopers exited their patrol cars
“to conduct a felony stop,” but as they approached Calata, he
drove away. The troopers pursued Calata as he “weaved in and
out of traffic on I-15,” reaching speeds between 100 and 105 miles
2. Because Calata pled guilty to failure to stop at command of
police, there was no trial and so we recite the facts consistent with
the district court’s factual findings made in support of
its restitution order. Like the parties, we also draw background
facts from the information, as well as from the restitution hearing
transcript.
20200145-CA 2 2022 UT App 127State v. Calata
per hour. The pursuit ended when both troopers performed PIT
maneuvers.
¶4 Trooper 1 later explained that a PIT maneuver is a
technique used to “rotate the vehicle” an officer is “in pursuit of
in an attempt to get [the vehicle] to stop.” The Utah Department
of Public Safety has policies and procedures that apply to police
pursuit and PIT maneuvers. According to one such policy, an
officer is “required to request permission” to perform a PIT
maneuver when traveling “over 45 miles per hour.” Here, when
it appeared that Calata was slowing and was going to exit the
freeway, the troopers executed PIT maneuvers in an effort to end
the pursuit.
¶5 The troopers testified that they were going 40–50 miles per
hour when Trooper 1 executed the first PIT maneuver by using
his patrol car to contact the rear passenger side of Calata’s car,
which caused Calata’s car to come to a rest after rotating 360
degrees and skidding toward the freeway off-ramp. As Trooper 2
“was pulling up on” Calata’s car to box it in from behind, he
noticed that its brake lights were off and that it “began rolling
towards the . . . [freeway] off ramp.” Trooper 2 then performed a
second PIT maneuver, also striking the rear passenger side of
Calata’s car to “prevent it from moving and fleeing again.” The
PIT maneuvers damaged both troopers’ vehicles but successfully
stopped Calata.
¶6 Calata was arrested and later pled guilty to failure to stop
at command of police, a third-degree felony. As part of the plea
agreement, the State recommended no prison time provided that
Calata commit no new violations, obtain his presentence
investigation report, and appear at his sentencing hearing. But
when Calata failed to appear for his mandatory sentencing
hearing, he was arrested and sentenced to an indeterminate
prison term not to exceed five years.
¶7 After sentencing, the State moved for an order of
restitution, arguing that Calata was liable for the cost of repairing
20200145-CA 3 2022 UT App 127State v. Calata
the troopers’ patrol cars. Calata requested a restitution hearing, at
which the district court asked for briefing on whether Calata’s
actions proximately caused the damage to the troopers’ vehicles.
Calata argued that the State’s request for restitution should be
denied because he was not the proximate cause of the damage. He
asserted that the troopers’ PIT maneuvers violated Utah
Department of Public Safety policies and procedures and, as a
result, their actions were a “superseding cause that relieve[d]
[him] of liability for the damage to the patrol vehicles.”
¶8 The district court disagreed. It first addressed whether the
troopers’ actions were foreseeable “to a reasonable person in Mr.
Calata’s circumstances.” It found that even if the troopers “might
have violated the policies in one way or another,” their actions
were foreseeable because they were working “to protect the
community from the dangers posed by [Calata’s] vehicle,” which
was traveling “105 miles an hour down the freeway.” The court
further explained that “a reasonable person would foresee that
the [troopers] might initiate a collision in order to stop [Calata]
from continuing with a high speed flight,” regardless of what the
Utah Department of Public Safety policies and procedures
provide.
¶9 The court also addressed whether the restitution statute
required it to determine complete restitution and court-ordered
restitution. The court explained it did not need to determine
court-ordered restitution because the statute “only contemplates
the determination of court ordered restitution in the event the
defendant is placed on probation.” Calata objected, arguing that
the restitution statute requires the district court to consider both
complete restitution and court-ordered restitution. But the court
ruled that it was obligated only “to make a finding of complete
restitution” because Calata was in prison, not on probation.
¶10 The court then granted the State’s motion for restitution
and ordered Calata to pay $3,071.01—an amount to which both
parties stipulated.
20200145-CA 4 2022 UT App 127State v. Calata
¶11 Calata now appeals.
ISSUES AND STANDARDS OF REVIEW
¶12 Calata first argues that the district court erred in declining
to determine court-ordered restitution. “We will not disturb a
district court’s restitution determination unless the court exceeds
the authority prescribed by law or abuses its discretion.” State v.
Ogden, 2018 UT 8, ¶ 25, 416 P.3d 1132 (cleaned up). “We review a
district court’s interpretation of restitution statutes for
correctness.” State v. Hedgcock, 2019 UT App 93, ¶ 11, 443 P.3d
1288 (cleaned up).
¶13 Second, Calata raises two claims of ineffective assistance of
counsel. “A claim of ineffective assistance of counsel raised for the
first time on appeal presents a question of law . . . .” State v.
Tapusoa, 2020 UT App 92, ¶ 9, 467 P.3d 912 (cleaned up).
ANALYSIS
I. Court-ordered Restitution
¶14 Calata contends that the district court erred when, over his
objection, it refused to calculate court-ordered restitution. Calata
argues that “this determination is mandatory” under the plain
language of the Crime Victims Restitution Act (the Restitution
Act)3 and the caselaw interpreting it.
¶15 “Complete restitution and court-ordered restitution are
distinct concepts.” State v. Grant, 2021 UT App 104, ¶ 56, 499 P.3d
3. Calata asserts that the 2017 version of the Restitution Act—in
effect at the time of his charged conduct—applies in this case.
Although the State asserts that the 2020 version of the Restitution
Act controls, it acknowledges that as between the 2017 and 2020
(continued…)
20200145-CA 5 2022 UT App 127State v. Calata
176. Complete restitution is the restitution “necessary to
compensate a victim for all losses caused by the defendant.” Id.(cleaned up). Court-ordered restitution, in contrast, is the
restitution the court “orders the defendant to pay as a part of the
criminal sentence.” Id. (cleaned up). It is “a subset of complete
restitution” and accounts for, among other things, the defendant’s
ability to pay.4 Id. (cleaned up).
¶16 Although the district court calculated complete restitution,
the court did not calculate court-ordered restitution, concluding
that the Restitution Act “only contemplates the determination of
court ordered restitution in the event the defendant is placed on
probation.” Stated another way, the court reasoned that because
court-ordered restitution is “essentially . . . a condition of
probation,” it need not determine court-ordered restitution when,
as here, “the defendant is committed to prison.”
¶17 The State agrees with Calata that this was error and
warrants remand to the district court for a determination of court-
ordered restitution. At the time of Calata’s restitution hearing, the
Restitution Act explained that “[i]n determining restitution, the
court shall determine complete restitution and court-ordered
versions, “the text of the relevant provisions is the same.” Given
the State’s acknowledgment that any differences in the Restitution
Act are immaterial to the issues raised on appeal, we assume
without deciding that the 2017 version of the Restitution Act
applies.
4. The distinction between complete restitution and court-ordered
restitution “no longer exists in current law.” State v. Blake, 2022 UT
App 104, ¶ 7 n.2, 517 P.3d 414; see also Utah Code Ann. § 77-38b-
205(1)(a)(i) (LexisNexis Supp. 2022) (“[T]he court shall order a
defendant, as part of the sentence imposed under Section 76-3-
201, to pay restitution to all victims . . . for the entire amount of
pecuniary damages that are proximately caused to each victim by
the criminal conduct of the defendant,” or, in the case of a plea
agreement, “in accordance with the terms of” that agreement.).
20200145-CA 6 2022 UT App 127State v. Calata
restitution.” Utah Code Ann. § 77-38a-302(2) (LexisNexis 2017).
Our appellate courts have interpreted this language as “a clear
directive that district courts are to make two separate restitution
determinations, one for complete restitution and a second for
court-ordered restitution.” State v. Laycock, 2009 UT 53, ¶ 20, 214
P.3d 104; see also State v. Ogden, 2018 UT 8, ¶ 26, 416 P.3d 1132(same); Grant, 2021 UT App 104, ¶ 57 (collecting cases). Based on
this governing law and the State’s concession of error, we reverse
the court’s ruling, and we remand with instructions for the court
to determine court-ordered restitution under the factors set forth
in the Restitution Act.
II. Ineffective Assistance of Counsel Claims
¶18 Calata contends that defense counsel rendered
constitutionally ineffective assistance in two ways. First, Calata
asserts that defense counsel was ineffective in failing to request
that the court apportion the fault of Calata and the troopers in
assessing Calata’s restitution liability, arguing that “the district
court should apportion fault in restitution proceedings if
requested to do so.” Second, Calata asserts that defense counsel
was ineffective in failing to argue to the district court “that the
Restitution Act impermissibly infringed” on Calata’s
“constitutional right to have a jury determine the damages giving
rise to a civil judgment,” as well as on Calata’s “due process rights
to the procedural safeguards and remedies in a civil action.” We
disagree with Calata.
¶19 To establish ineffective assistance of counsel, a defendant
must meet the two-part test of Strickland v. Washington, 466 U.S.
668 (1984). The defendant must show, first, that counsel’s
performance was deficient in that it “fell below an objective
standard of reasonableness” under prevailing professional
norms, id. at 687–88, and, second, that “the deficient performance
prejudiced the defense,” id. at 687. It is well established that we
need not “address both components of the inquiry if we
determine that a defendant has made an insufficient showing on
one.” Archuleta v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 (cleaned
20200145-CA 7 2022 UT App 127State v. Calata
up). Here, we resolve and reject both of Calata’s ineffective
assistance claims on the deficient-performance component of
Strickland.
¶20 To establish deficient performance, a defendant must show
that “counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687. Counsel’s challenged
conduct is judged “on the facts of the particular case, viewed as of
the time of counsel’s conduct.” Id. at 690. Although attorneys are
not “categorially excused from failure to raise an argument not
supported by existing legal precedent,” State v. Silva, 2019 UT 36,
¶ 19, 456 P.3d 718, “it is not the case that attorneys must raise
every conceivable objection in order to render constitutionally
effective assistance,” State v. Samora, 2021 UT App 29, ¶ 44, 484
P.3d 1206, cert. granted, 497 P.3d 828 (Utah 2021). Rather, attorneys
are entitled to “pick [their] battles,” and “[w]e must view a
decision to not object in context and determine whether correcting
the error was sufficiently important under the circumstances that
failure to do so was objectively unreasonable—i.e., a battle that
competent counsel would have fought.” State v. Ray, 2020 UT 12,
¶ 32, 469 P.3d 871. Additionally, “the failure of counsel to make
motions or objections which would be futile if raised does not
constitute ineffective assistance.” State v. Karren, 2018 UT App 226,
¶ 31, 438 P.3d 18 (cleaned up).
¶21 We are also mindful that “‘judicial scrutiny of counsel’s
performance is highly deferential’ and includes a strong
presumption that counsel ‘rendered adequate assistance and
made all significant decisions in the exercise of reasonable
professional judgment.’” State v. Reigelsperger, 2017 UT App 101,
¶ 92, 400 P.3d 1127 (cleaned up) (quoting Strickland, 466 U.S. at689–90). Indeed, “[t]he proper measure of attorney performance
remains simply reasonableness under prevailing professional
norms.” Strickland, 466 U.S. at 688; accord Silva, 2019 UT 36, ¶ 20;
State v. Jones, 2020 UT App 31, ¶ 44, 462 P.3d 372.
20200145-CA 8 2022 UT App 127State v. Calata
¶22 We now examine Calata’s two claims of ineffective
assistance in turn.
A. Apportionment of Fault
¶23 Calata asserts that defense counsel was ineffective “in
failing to request apportionment of fault” between Calata and the
troopers. In Calata’s view, both the “Restitution Act and the Utah
Liability Reform Act (LRA) demonstrate that the district court
should apportion fault in restitution proceedings if requested to
do so.”5 Because defense counsel did not argue that the court
should apportion damages in the restitution proceedings, Calata
contends his counsel’s performance fell below an objective level
of reasonableness, which, in turn, prejudiced him.
¶24 In support, Calata first argues that “[t]he Restitution Act
and case law interpreting it . . . demonstrate that the causation
language of the Restitution Act should be interpreted to require
apportionment as part of the causation analysis.” The Restitution
Act “requires courts to order restitution when a defendant enters
into a plea disposition or is convicted of criminal activity that has
resulted in pecuniary damages.” State v. Ogden, 2018 UT 8, ¶ 26,
416 P.3d 1132 (cleaned up); Utah Code Ann. § 77-38a-302(1)
(LexisNexis 2017). Calata argues that “Utah’s appellate courts
have long recognized the legislature’s intent to incorporate civil
standards into the Restitution Act.”
¶25 Specifically, Calata points to State v. Laycock, 2009 UT 53,
214 P.3d 104, in which the Utah Supreme Court held “that issues
5. The LRA “delineates the apportionment of comparative fault in
civil actions.” State v. Grant, 2021 UT App 104, ¶ 30, 499 P.3d 176.
It provides that the “fact finder may, and when requested by a
party shall, allocate the percentage or proportion of fault
attributable to each person seeking recovery, to each defendant,
to any person immune from suit, and to any other [non-
parties] . . . for whom there is a factual and legal basis to allocate
fault.” Utah Code Ann. § 78B-5-818(4)(a) (LexisNexis 2018).
20200145-CA 9 2022 UT App 127State v. Calata
of comparative negligence may be relevant in determining
restitution.” Id. ¶ 27. Calata then turns to State v. Ogden, which
addressed causation in the Restitution Act. 2018 UT 8, ¶¶ 26–48.
There, the supreme court explained that the Restitution Act
addresses causation in two provisions. Id. ¶ 32. First, “[t]he statute
allows the district court to enter an order when a defendant enters
into a plea disposition or is convicted of criminal activity that has
resulted in pecuniary damages.” Id. (cleaned up). And second, “the
district court awards complete restitution to compensate a victim
for all losses caused by the defendant.” Id. (cleaned up). The
relevant language the court analyzed was “resulted in” and
“caused by.” See id. (cleaned up). After examining the Restitution
Act’s “structure,” the court concluded “that the Legislature
intended that the same causation standard apply in a restitution
hearing that would apply in a parallel civil action.” Id. ¶ 38. That
is, a proximate cause standard. Id. ¶ 39.
¶26 From this analysis, Calata extrapolates that “[u]nder the
language and structure of the Restitution Act, ‘caused by’ and
‘resulted in’ also requires apportionment.” While he concedes that
“Laycock and Ogden did not decide the question of whether
apportionment applies in restitution proceedings,” Calata
contends that “the analysis in these cases dictates that the same
apportionment standards that would apply in a parallel civil
action apply in restitution proceedings, just as the same causation
standard that applies in a parallel civil action applies to restitution
proceedings.”
¶27 Next, Calata contends that “the plain language of the LRA
demonstrates that a defendant is entitled to apportionment when
requested in restitution proceedings.” Under the LRA, “[t]he fact
finder may, and when requested by a party shall, allocate the
percentage or proportion of fault attributable to each person
seeking recovery, to each defendant, to any person immune from
suit, and to any other person identified under Subsection 78B-5-
821(4) for whom there is a factual and legal basis to allocate fault.”
Utah Code Ann. § 78B-5-818(4)(a) (LexisNexis 2018).
20200145-CA 10 2022 UT App 127State v. Calata
¶28 Calata argues that the LRA applies to restitution
proceedings because its definition of “fault” “encompasses
criminal acts.” The LRA defines “fault” as “any actionable breach
of legal duty, act, or omission proximately causing or contributing
to injury or damages sustained by a person seeking recovery,
including negligence in all its degrees, comparative negligence,
assumption of risk, strict liability, breach of express or implied
warranty of a product, products liability, and misuse,
modification, or abuse of a product.” Id. § 78B-5-817(2). Relying
on Graves v. North Eastern Services, Inc., 2015 UT 28, 345 P.3d 619,
Calata proffers that “[a]ny breach of duty, act, or omission counts
as fault so long as it is proximately connected to injury or
damages.” Id. ¶ 49. Because “a criminal act qualifies both as a
‘breach of legal duty’ and an ‘act’ proximately causing the injury
or damages,” Calata reasons that his “criminal act constitutes
‘fault’ under the LRA and is therefore subject to apportionment.”
¶29 And finally, Calata asserts that the LRA would have
required fault to be apportioned between him and the troopers
had his counsel requested it. The LRA provides that “[a] person
immune from suit may not be named as a defendant, but fault
may be allocated to a person immune from suit solely for the
purpose of accurately determining the fault of the person seeking
recovery and all defendants.” Utah Code Ann. § 78B-5-821(2)
(LexisNexis 2018). Here, Calata argues that although the troopers
are immune from suit, he was “entitled to have fault allocated
between him . . . and the troopers” because their “acts” also fall
under the LRA’s “fault” definition. Specifically, Calata contends
that “the troopers’ acts in intentionally driving their vehicles into
[his] car fall under the broad and categorical definition of fault, as
an intentional tort, any intentional act, and indeed, any act that
proximately causes or contributes to injury or damages—that is,
the damage to their vehicles.” (Cleaned up.) Calata also contends
that “there is proximate cause between the troopers’ acts because
their driving maneuvers were a but-for cause of the damage to
their vehicles, and it was foreseeable that their vehicles would
incur damage as a result of their maneuvers.”
20200145-CA 11 2022 UT App 127State v. Calata
¶30 In Calata’s view, his arguments are “well-founded on
established caselaw and statutory language,” and it was
objectively unreasonable for his counsel “not to argue the
apportionment issue to the district court.” Although Calata has
presented a thoughtful argument in support of his claim that “a
defendant is entitled to apportionment when requested in
restitution proceedings,” we do not share his view that it was
objectively unreasonable for defense counsel not to make these
arguments.
¶31 First, the legal argument Calata weaves together from
various sources is a difficult one. See State v. Grant, 2021 UT App
104, ¶ 27 & n.9, 499 P.3d 176 (stating that resolving “whether
comparative fault principles apply to restitution proceedings”
“would be difficult”). Utah appellate courts have not addressed
whether the causation language in the Restitution Act should be
interpreted to allow apportioning fault or whether the LRA
applies in this context. See Ogden, 2018 UT 8, ¶ 32 n.7 (“We do not
decide whether the [LRA] has any place in restitution proceedings
because Ogden did not preserve the argument below.”); Grant,
2021 UT App 104, ¶ 27 (“[W]e assume, without deciding, that
comparative fault principles apply to restitution proceedings.”).
It is also not expressly provided in the statute that the LRA applies
in this context, nor is there authority that indicates it does.
¶32 Further, the authority on which Calata relies would have
to be extended to reach the result for which Calata advocates. For
example, Laycock is a negligent homicide case in which the court
held “that issues of comparative negligence may be relevant in
determining restitution.” Laycock, 2009 UT 53, ¶¶ 25, 27 (emphasis
added). Not only did our supreme court stop short of saying
issues of comparative negligence are relevant in determining
restitution, but whether the court would have made the same
observation in a case involving an intentional crime, like failure to
20200145-CA 12 2022 UT App 127State v. Calata
stop at command of police,6 is questionable. And while the
supreme court in Ogden concluded that the legislature “intended
that the same causation standard apply in a restitution hearing
that would apply in a parallel civil action,” 2018 UT 8, ¶ 38, it did
not hint that the apportionment standard should likewise be
imported into the Restitution Act’s causation analysis.
¶33 Given the lack of clarity in the law and the difficulty
defense counsel would have faced in advocating for the
application of the apportionment standard in restitution
proceedings, we are unpersuaded that it was unreasonable for
defense counsel to not make the argument Calata now crafts on
appeal. While it is true that we do not “judge an attorney’s
performance based only on settled law,” Silva, 2019 UT 36, ¶ 19,
we agree with the State that without a clear basis in the statutory
language and given the lack of legal precedent, defense counsel’s
performance here did not fall below an objective standard of
reasonableness, see Jones, 2020 UT App 31, ¶¶ 46–47 (explaining
that counsel could reasonably conclude there was no legal
problem to correct and that “such a conclusion is particularly
reasonable given that no Utah appellate court has squarely
addressed” the relevant legal issue).
¶34 Further, even if defense counsel believed she could succeed
in persuading the court to extend the law to apply apportionment
principles in restitution hearings, it would not have been
unreasonable for counsel to conclude that arguing that the
troopers were at fault would have been a futile effort. See Karren,
2018 UT App 226, ¶ 31 (“[T]he failure of counsel to make motions
or objections which would be futile if raised does not constitute
ineffective assistance.” (cleaned up)).
¶35 The LRA provides that “[a] person immune from suit may
not be named as a defendant, but fault may be allocated to a
6. See State v. Bird, 2015 UT 7, ¶ 23, 345 P.3d 1141 (stating that “the
failure-to-respond offense . . . implicates an intentional mens
rea”).
20200145-CA 13 2022 UT App 127State v. Calata
person immune from suit solely for the purpose of accurately
determining the fault of the person seeking recovery and all
defendants.” Utah Code Ann. § 78B-5-821(2) (LexisNexis 2018)
(emphases added). As relevant here, fault is defined in the LRA
as “any actionable breach of legal duty, act, or omission
proximately causing or contributing to injury or damages
sustained by a person seeking recovery.” Id. § 78B-5-817(2)
(emphasis added). Thus, to apportion fault to the troopers,
defense counsel would have had to show that they were at “fault”
by first establishing that their conduct was “actionable.” See id.
Although Calata argues that at least one of the troopers’ PIT
maneuvers violated the Utah Department of Public Safety policies
and procedures, he has not undertaken the analysis to
demonstrate that either trooper’s conduct was “actionable”7 and
therefore constituted fault under the LRA that could be
apportioned. Without additional analysis on this point, it is not
apparent to us that either trooper’s conduct fell under the LRA,
and thus Calata has not shown that it was unreasonable for
defense counsel to harbor similar doubt.
¶36 Finally, even if fault could legally be apportioned to the
troopers, it would not have been unreasonable for defense counsel
7. In Graves v. North Eastern Services, Inc., 2015 UT 28, 345 P.3d 619,
in reaching its conclusion that the definition of fault in the LRA
encompasses “intentionally tortious activity,” the Utah Supreme
Court observed that the “core definition is broad and categorical.”
Id. ¶ 49. Quoting the statute, the court stated that the definition of
fault “extends to ‘any actionable breach of legal duty, act or
omission proximately causing or contributing to injury or
damages.’” Id. (quoting Utah Code Ann. § 78B-5-817(2)). Two
sentences later, the court then emphasized, “Any breach of duty,
act, or omission counts as fault so long as it is proximately
connected to injury or damages.” Id. In making the latter
statement, the court omitted the word “actionable,” but we do not
read that omission as intentional or meaningful. After all, the
word “actionable” is part of the LRA’s definition of fault as the
supreme court acknowledged. See id.
20200145-CA 14 2022 UT App 127State v. Calata
to conclude that seeking apportionment would be futile under the
circumstances. Assuming the LRA applies to the Restitution Act
and that at least one trooper was at fault for the damages incurred
by the patrol cars, the district court could not have apportioned
fault to them unless their “combined percentage or proportion of
fault” was “40% or more.” See id. § 78B-5-819(2)(b). In other words,
if the troopers’ combined percentage or proportion of fault was
less than 40%, the court would have been statutorily obligated to
“reduce that percentage or proportion of fault to zero and
reallocate that percentage or proportion of fault to the other
parties . . . for whom there is a factual and legal basis to allocate
fault.” See id. § 78B-5-819(2)(a).
¶37 Here, defense counsel could have reasonably concluded
that the district court would not find that the troopers’ combined
percentage or proportion of fault equaled 40% or more. After all,
it was Calata who fled from the troopers and engaged in a high-
speed chase that posed a danger to the public. And the troopers
performed their PIT maneuvers only after Calata had slowed
down but still demonstrated an intent to flee. Given these facts,
reasonable counsel could conclude that undertaking the
considerable effort to convince the court that apportionment
should be considered in setting restitution would ultimately be a
futile effort because the court was unlikely to apportion more than
40% of the damages to the troopers. See Karren, 2018 UT App 226,
¶ 31.
¶38 In sum, because defense counsel would have faced
significant hurdles in attempting to persuade the district court to
apportion damages between Calata and the troopers in setting
restitution, we conclude that it was not objectively unreasonable
for counsel not to raise apportionment arguments related to the
Restitution Act and LRA before the district court. Therefore,
Calata has not established ineffective assistance of counsel. See
Archuleta, 2011 UT 73, ¶ 41.
20200145-CA 15 2022 UT App 127State v. Calata
B. Constitutional Arguments
¶39 Last, Calata contends that defense counsel was ineffective
in failing to argue to the district court that the Restitution Act
impermissibly infringes on his constitutional right to have a jury
determine the damages forming the basis of a civil judgment and
“also infringes on the due process rights he would have had in a
civil jury trial,” which includes “the right to have apportionment
for fault . . . like he would have had in a civil court.” Thus, in
Calata’s view, the Restitution Act is unconstitutional, and defense
counsel acted deficiently in not making such an argument to the
district court. He also claims that he was prejudiced as a result.
¶40 Article I, Section 10 of the Utah Constitution “guarantees
the right of jury trial in civil cases.” Simler v. Chilel, 2016 UT 23,
¶ 10, 379 P.3d 1195 (cleaned up); see also Utah Const. art. I, § 10
(“A jury in civil cases shall be waived unless demanded.”). The
Restitution Act defines the “pecuniary damages” resulting from
criminal activity that are part of a restitution order. “‘Pecuniary
damages’” means, in part, “all demonstrable economic injury,
whether or not yet incurred, including those which a person could
recover in a civil action arising out of the facts or events constituting
the defendant’s criminal activities.” Utah Code Ann. § 77-38a-
102(6) (LexisNexis 2017) (emphasis added). And an order of
complete restitution ultimately will be entered “on the civil
judgment docket.” Id. § 77-38a-401(1). Consequently, “even
though the restitution proceeding takes place as part of a criminal
proceeding, the end result is a civil judgment that a victim is
entitled to enforce.” Ogden, 2018 UT 8, ¶ 38. Calata derives from
this and other authority that the Utah Constitution’s right to a jury
trial in civil cases entitles him to have a jury determine the
damages for purposes of a restitution order.
¶41 Calata further argues that defense counsel should have
raised these constitutional arguments because counsel should
have been aware of a footnote in Ogden in which the defendant
there contended that the Restitution Act is unconstitutional
because it denied him “due process by preventing him access to
20200145-CA 16 2022 UT App 127State v. Calata
the procedural remedies he would have had in civil court.” Id.¶ 24 n.3 (cleaned up). Although the supreme court concluded that
the “due process argument [was] unpreserved and decline[d] to
review [the defendant’s] ineffective assistance of counsel
argument because it [was] inadequately briefed,” id., Calata
asserts that “Ogden would have alerted reasonable counsel to the
importance of considering constitutionality issues in regard to the
LRA in restitution proceedings.”
¶42 Once again, Calata presents interesting arguments. But we
need not definitively determine whether the Restitution Act is in
fact unconstitutional in the ways Calata claims. See State v. Huey,
2022 UT App 94, ¶¶ 48, 53, 516 P.3d 345; State v. Squires, 2019 UT
App 113, ¶ 32 n.7, 446 P.3d 581. Instead, because Calata did not
preserve these arguments in the district court, our obligation is
limited to assessing whether it was “objectively unreasonable” for
defense counsel not to raise these constitutional objections. See
Ray, 2020 UT 12, ¶ 32. We conclude that it was not.
¶43 Not only has no Utah appellate court addressed whether
criminal defendants have a right to jury trial on damages in
restitution proceedings, but on the facts of this case, it would not
have been unreasonable for defense counsel to conclude that
Calata had little to gain from making these constitutional
arguments. See Strickland, 466 U.S. at 690 (judging counsel’s
challenged conduct “on the facts of the particular case”). Even if
defense counsel ultimately could have persuaded the district
court that a jury should determine the damages for which Calata
was liable, counsel could have reasonably decided that a jury was
unlikely to be sympathetic toward Calata or to find that the
troopers were at fault. See State v. Gallegos, 2020 UT 19, ¶ 34, 463
P.3d 641 (“We give wide latitude to trial counsel to make tactical
decisions and will not question such decisions unless there is no
reasonable basis supporting them.” (cleaned up)). Indeed, Calata
fled from the troopers and endangered the public by leading a
high-speed chase that ended only when the troopers executed PIT
maneuvers. Under the circumstances, counsel could have
reasonably concluded that a jury would not be receptive to
20200145-CA 17 2022 UT App 127State v. Calata
Calata’s efforts to minimize his own fault for these events and
ensuing damage and thus Calata was better off (or at least no
worse off) arguing his case to the judge. Thus, defense counsel did
not act deficiently under Strickland, and Calata’s claim for
ineffective assistance of counsel fails. See Archuleta, 2011 UT 73,
¶ 41.
CONCLUSION
¶44 We reject Calata’s two claims of ineffective assistance of
counsel and affirm the district court’s order of complete
restitution. But we conclude that the court erred when it declined
to determine court-ordered restitution. Accordingly, we affirm in
part, reverse in part, and remand for the district court to
determine court-ordered restitution in accordance with the
Restitution Act.
20200145-CA 18 2022 UT App 127