Opinion
Case No. 20000481-CA.
FILED May 23, 2002. (Not For Official Publication)
Fifth District, Cedar City Department, The Honorable J. Philip Eves.
Roy L. Glasper, Paskenta, California, Appellant Pro Se.
Mark L. Shurtleff and Erin Riley, Salt Lake City, for Appellee.
Before Judges Bench, Greenwood, and Orme.
MEMORANDUM DECISION
Roy Lee Glasper (Appellant) appeals the trial court's order dismissing his petition for post-conviction relief. Appellant argues that he was deprived of the effective assistance of counsel at trial and on direct appeal. We affirm.
"The standard of review is settled. `In considering an appeal from a dismissal of a petition for a writ of habeas corpus, no deference is accorded the lower court's conclusions of law that underlie the dismissal of the petition. We review those for correctness.'" Pascual v. Carver, 876 P.2d 364, 366 (Utah 1994) (citations omitted). "[W]e will set aside the district court's findings of fact only if they are clearly erroneous." Seel v. Van Der Veur, 971 P.2d 924, 926 (Utah 1998).
First, Appellant argues that his trial counsel was ineffective because he failed to interview or call Detective Orton as a witness. The trial court held an evidentiary hearing on trial counsel's decision not to interview Detective Orton or call him as a witness at trial. However, Appellant did not provide this court with a transcript of the evidentiary hearing. See Rudolph v. Galetka, 2002 UT 7,¶ 8, 43 P.3d 467 (stating appellant has the responsibility to support allegations with adequate record).
Based on the evidentiary hearing, the trial court determined that "Detective Orton's testimony would not have been helpful" to Appellant. Because this court lacks any evidence to the contrary, we defer to the trial court's findings. See State v. Blubaugh, 904 P.2d 688, 699 (Utah Ct.App. 1995) (stating that we must "assume the regularity of the proceeding below when appellant fails to provide" a transcript of evidentiary hearing (citation omitted)).
Second, Appellant argues that his trial counsel was ineffective because he was unprepared for trial. Specifically, Appellant argues that his trial counsel failed to obtain copies of witness statements, police reports, or interviews with witnesses that would have shown that they made contradictory statements. Again, because the transcript of the evidentiary hearing was not included as part of the record, this court is unable to review Appellant's claims. See id.
Third, Appellant argues that his trial counsel was ineffective for failing to identify and call the unidentified Caucasian couple as witnesses. For Appellant to establish an ineffective assistance of counsel claim, Appellant must demonstrate that (1) "counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgment[,]" and (2) "counsel's deficient performance was prejudicial — i.e., that it affected the outcome of the case." State v. Litherland, 2000 UT 76,¶ 19, 12 P.3d 92.
Reviewing Appellant's claim, the trial court found,
The identity of the couple was never obtained. They left the scene while the police and the Deseret Industries employees were busy trying to apprehend the [Appellant] and his niece. There is no description of them or their vehicle. No one connected with the case has any information about where they might live. No one knows if their testimony would have hurt or helped the [Appellant]. . . . Certainly counsel was within his discretion to decline to pursue unknown and unidentified witnesses, especially when there was no way of knowing what they might say. Such an approach might well have developed damaging evidence which the prosecution and police had not unearthed.
Given these findings, Appellant fails to show how his trial counsel's performance was deficient or how Appellant was prejudiced. "It would have made little sense for counsel to spend valuable trial preparation time tracking down speculation. . . ." State v. Strain, 885 P.2d 810, 818 (Utah Ct.App. 1994). Hence, Appellant has failed to show how trial counsel's performance "fell below an objective standard of reasonableness" by his trial counsel's decision not to investigate and secure this unidentified couple as witnesses. Id. at 814.
Fourth, Appellant argues that his trial counsel called him to testify, compelling him to present evidence against himself, which resulted in his conviction for Burglary. Appellant claims that his convictions for both Theft and Burglary violate double jeopardy. Additionally, Appellant argues that the trial court abused its discretion by not considering the conflicting testimony of the witnesses in its determination of guilt.
Appellant made these arguments on direct appeal, but stated the issues in terms of the trial court's error for imposing two sentences for both Burglary and Theft because they were part of a single criminal episode and there was insufficient evidence to convict. In a Memorandum Decision, this court rejected Appellant's claim of error for being sentenced for both Theft and Burglary. Appellant's double jeopardy argument is essentially the same. Appellant argues that because he admitted committing Theft, the conviction for Burglary constituted double jeopardy because he is being punished twice for the same crime. "A claim of ineffective assistance of counsel may not . . . be used simply to relitigate `under a different guise' an issue already disposed of on direct appeal." Gardner v. Holden, 888 P.2d 608, 615 (Utah 1994) (citation omitted).
Similarly, this court on direct appeal rejected Appellant's challenges to the sufficiency of the evidence, because he failed to marshal the evidence or demonstrate how the evidence failed to support the trial result. Because Appellant's argument concerning the trial court's abuse of discretion is really one addressing the sufficiency of the evidence, we will not review this claim. See Pascual, 876 P.2d at 366 ("[I]ssues that were `fully and fairly adjudicated' on direct appeal cannot properly be relitigated in a post-conviction relief proceeding." (Citations omitted.)).
Next, Appellant argues that his appellate counsel was ineffective because he admitted Appellant's guilt of Theft in his appellate brief and failed to timely notify Appellant of this court's decision regarding his direct appeal. Appellant's arguments are without merit. Appellant admitted to the facts amounting to Theft at trial when he testified that he picked up the bank bag, unzipped it and saw that there was money inside. Appellant testified that he then put the bank bag in his pants and left the store. In addition, Appellant admitted in an interview with Detective Orton that he took the money bag. Therefore, appellate counsel's concession of a fact admitted by Appellant at trial and in a police interview, simply does not demonstrate ineffective assistance of counsel.
Finally, Appellant argues that appellate counsel was ineffective for failing to mail him the memorandum decision regarding his direct appeal in a timely manner. However, Appellant filed for an enlargement of time to file his petition for writ of certiorari, and the enlargement was granted. Because Appellant was not denied his right to petition for certiorari, he suffered no prejudice from his appellate counsel's untimely notification.
We affirm the trial court's dismissal of Appellant's petition for post-conviction relief.
Appellant also asserts without argument that he received ineffective assistance of counsel when his trial counsel advised him to waive his right to a jury trial. Appellant failed to demonstrate he was denied a fair trial. Therefore, this claim is without merit. See State v. Coonce, 2001 UT App 355,¶ 16, 36 P.3d 533 (rejecting ineffective assistance claim because defendant failed to demonstrate that he was denied a fair trial). In addition, Appellant claims the trial court erred and his trial counsel was ineffective for failing to reduce his felony Theft charge to a misdemeanor because he could not have realized any value on the endorsed checks stolen. Again, Appellant's argument is without merit. See State v. Pacheco, 636 P.2d 489, 490 (Utah 1981) ("[T]he face value of the checks, whether endorsed or not, is prima facie evidence of the value that determines the degree and penalty relevant in a theft case.").
WE CONCUR: Russell W. Bench, Judge, and Gregory K. Orme, Judge.