Opinion
Case No. 20020509-CA.
Filed July 25, 2003. (Not For Official Publication)
Appeal from the Eighth District, Duchesne Department, The Honorable A. Lynn Payne.
The Honorable John R. Anderson
Julie George, Salt Lake City, for Appellant.
Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee.
Before Judges Bench, Davis, and Greenwood.
MEMORANDUM DECISION
Claiming ineffective assistance of counsel, Sidney Scott Minor (Defendant) appeals the prison sentence of zero to five years imposed by the trial court for violations of Utah Code Ann. §§ 58-37-8 (2002), 58-37a-5 (2002), and 41-6-44 (1998). To prevail on a claim of ineffective assistance of counsel, Defendant must establish both prongs of theStrickland test, showing "`that counsel's representation fell below an objective standard of reasonableness,'" State v. Tennyson, 850 P.2d 461, 465 (Utah Ct.App. 1993) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064 (1984)), and that his right to a fair trial was prejudiced. See Strickland, 466 U.S. at 692, 104 S.Ct. at 2067; see also State v. Tyler, 850 P.2d 1250, 1254 (Utah 1993) (stating "defendant has the burden of meeting both parts of [the Strickland] test"). Because Defendant cannot satisfy the first prong of the Strickland test, we affirm.
In assessing a claim of ineffective assistance of counsel, the measure of attorney performance is "simply reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. In addition, "this court will not second-guess trial counsel's legitimate strategic choices, however flawed these choices might appear in retrospect." Tennyson, 850 P.2d at 465; see also Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Defendant argues that the mitigating factors in this case support probation instead of prison and that counsel was deficient in failing to bring them to the court's attention. Defendant also argues that counsel's failure to correct errors in his presentence report damaged his case. However, contrary to Defendant's claims, his counsel presented valid arguments in his defense. Rather than attempting a point-by-point refutation of the circumstances leading to Defendant's arrest and conviction, it appears trial counsel instead made a "strategic choice,"Strickland, 466 U.S. at 681, 104 S.Ct. at 2061, to focus on persuading the trial court that Defendant's seemingly unrepentant attitude was the result of a misunderstanding and to emphasize his history of helping his parents. Moreover, the trial court considered Defendant's arguments regarding his relationship with his parents and his seeming lack of cooperation with Adult Probation and Parole. In spite of these considerations, the trial court sentenced Defendant to prison instead of probation based on Defendant's long history of drug and DUI convictions.
Defendant is unable to overcome the strong presumption that trial counsel's actions fell "within the wide range of reasonable professional assistance" and that "under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164 (1955)). Furthermore, this court has stated that it "will not second-guess trial counsel's legitimate use of judgment." Layton City v. Noon, 736 P.2d 1035, 1040 (Utah Ct.App. 1987); see also State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993) ("[I]f the challenged act or omission might be considered sound trial strategy, we will not find that it demonstrates inadequacy of counsel."). Thus, we affirm.
We decline to consider the prejudice prong of the Strickland test because Defendant fails to establish the first prong of the test.
WE CONCUR: Russell W. Bench, Judge, and James Z. Davis, Judge.