State of Utah v. Zambito

MEMORANDUM DECISION
(Not For Official Publication)

State of Utah,
Plaintiff and Appellee,

v.

Francis Joseph Zambito,
Defendant and Appellant.

Case No. 971654-CA

F I L E D
(November 5, 1998)

-----

Third District, Coalville Department
The Honorable Pat B. Brian

Attorneys:
Julie George McPherson, Salt Lake City, for Appellant
Jan Graham and Joanne C. Slotnik, Salt Lake City, for Appellee

-----

Before Judges Davis, Jackson, and Orme.

JACKSON, Judge:

Defendant Francis Joseph Zambito appeals his conviction for theft, a third degree felony, arguing that a pre-sentencing psychological evaluation--performed in July, 1996, some 14 months after his trial--demonstrates that he was incompetent to stand trial in May, 1995. Defendant contends that his attorney's failure to raise his competence as an issue at trial was ineffective assistance of counsel. He argues in the alternative that the trial court's failure to raise Defendant's competence was plain error. Based on our review of the record, we must deny Defendant's claims and affirm his conviction.

To prove a claim of ineffective assistance of counsel, defendant has the burden of satisfying both parts of the test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), and adopted by this court, see State v. Templin, 805 P.2d 182, 185-86 (Utah 1990). In this case, Defendant has failed to satisfy either prong of the Strickland test. First, Defendant has failed to "'identify the acts or omissions' which, under the circumstances, 'show that counsel's representation fell below an objective standard of reasonableness.'" Id. (citations omitted). Because the record is silent on Defendant's mental state at the time of trial, we cannot evaluate the reasonableness of counsel's failure to raise Defendant's competency as an issue. Second, Defendant has failed to show that his counsel's alleged "'deficient performance prejudiced the defense.'" Id. at 186 (quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064).

As to Defendant's claim that the trial court's failure to order a competency hearing sua sponte was plain error, there is no indication in the record that Defendant's statements or behavior at trial, or at any time before trial, would lead the trial court to doubt Defendant's competence. "No observable, objective facts . . . raised a reasonable doubt as to defendant's competence. . . . [Thus,] the trial judge did not err in not holding a competency hearing. " State v. Young, 780 P.2d 1233, 1238 (Utah 1989).

We affirm.
 

_____________________________
Norman H. Jackson, Judge

-----

WE CONCUR:
 

______________________________
James Z. Davis, Presiding Judge
 

______________________________
Gregory K. Orme, Judge