State of Utah, v. Blanchard

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Kent William Blanchard,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981044-CA

F I L E D
April 29, 1999
  1999 UT App 140 -----

Second District, Farmington Department
The Honorable Jon M. Memmott

Attorneys:
Scott L. Wiggins, Salt Lake City, for Appellant
Jan Graham and Catherine M. Johnson, Salt Lake City, for Appellee

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Before Judges Wilkins, Greenwood, and Davis.

WILKINS, Presiding Judge:

Defendant, Kent W. Blanchard, appeals from a restitution order requiring him to pay $882.00 as part of his sentence for theft, a third degree felony, in violation of Utah Code Ann. § 76-6-404 (1995). We affirm.

A. RESTITUTION

First, defendant maintains that the trial court's failure to conduct a separate restitution hearing pursuant to Utah Code Ann. § 76-3-201(4)(e) denied him of procedural due process.

This section provides that (e) If the defendant objects to the imposition, amount, or distribution of the restitution, the court shall at the time of sentencing allow the defendant a full hearing on the issue. Utah Code Ann. § 76-3-201(4)(e) (Supp. 1998) (emphasis added).

The Utah Supreme Court has interpreted this section to "require[] that after restitution is ordered and after an inmate objects to the order, the . . . [court] must hold a 'full hearing' on the inmate's objections." Monson v. Carver, 928 P.2d 1017, 1029 (Utah 1996). However, if a defendant fails to object to the imposition, amount or distribution of the restitution ordered, or fails to request a hearing on the matter, he waives his right to challenge the restitution order. See State v. Snyder, 747 P.2d 417, 421 (Utah 1987).

Defendant insists that he properly objected to the court's restitution order. He points to the following statements at  sentencing, among others: [Defendant]: [Mr. Howard] should not be entitled to earn profit on the side jobs where I did all the labor myself. If he's only out thirteen hundred and something dollars in materials and labor, as you're claiming, then my $500 should be subtracted from that and the difference [$882] should be paid to him.
. . . .
I figure I owe him about $500. That was stated in the original phone conversation. We do not regard this statement, or others identified by defendant, as adequate to raise an objection to the court's restitution order. The claimed objection was not made with sufficient specificity to alert the trial court to the nature of the objection. See State v. Rangel, 866 P.2d 607, 611 (Utah Ct. App. 1993) (requiring timely and specific objection to preserve issue for appeal). At most, the cited statements reflect defendant's request that the court immediately determine restitution and also show defendant's assistance in calculating the restitution, which formula the court ultimately adopted in making its order. We therefore conclude that defendant waived his right to challenge the court's restitution order, and also hold that the circumstances of this case do not constitute plain error in that defendant's objection was necessary for the court to be obligated to hold the additional full hearing on restitution. Since the objection was not made in a manner that could have alerted the trial court, there is no error, plain or otherwise. As such, we reject defendant's due process claim.

B. INEFFECTIVE ASSISTANCE OF COUNSEL

Second, defendant argues that his trial counsel's failure to timely object to the restitution order and to formally request a separate restitution hearing denied him of his Sixth Amendment right to effective assistance of counsel. To be successful in this argument, defendant must affirmatively prove that his "counsel's performance was deficient in that it 'fell below an objective standard of reasonableness,' and that the deficient performance prejudiced the outcome of the trial." State v. Garrett, 849 P.2d 578, 579 (Utah Ct. App. 1993) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984)). A defendant must prove both prongs of the Strickland test, see Parsons v. Barnes, 871 P.2d 516, 522 (Utah 1994); failure to do so precludes the necessity to consider the other. "Additionally, [t]o prevail on a claim of ineffective assistance . . . [defendant] must demonstrate that counsel's actions were not conscious trial strategy, and that there was a lack of any conceivable tactical basis for counsel's actions." State v. Haga, 954 P.2d 1284, 1289 (Utah Ct. App. 1998) (citation and internal quotations omitted). Further, if we can dispose of an ineffective assistance claim on the ground of lack of sufficient prejudice, we follow that course. See Parsons, 871 P.2d at 523.

Defendant has failed to meet the prejudice prong of the Strickland test. He cannot satisfy this burden by merely stating that "[b]ut for counsel's deficient performance of failing to object, there would likely have been a different determination as to the amount of court-ordered restitution." Rather, to show prejudice, he must "proffer sufficient evidence to support 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 522 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). Defendant's failure to proffer such evidence requires us to reject his argument.

Affirmed.
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge -----

WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge