American Fork v. Denney

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American Fork City,
Plaintiff and Appellee,

v.

Jason E. Denney,
Defendant and Appellant.

AMENDED MEMORANDUM DECISION1
(Not For Official Publication)

Case No. 990045-CA

F I L E D
July 15, 1999
  1999 UT App 224 -----

Fourth District, American Fork Department
The Honorable Joseph I. Dimick

Attorneys:
Jason E. Denney, Orem, Appellant Pro Se
James "Tucker" Hansen and Bruce R. Murdock, American Fork, for Appellee

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Before Judges Wilkins, Davis, and Orme.

PER CURIAM:

Appellant Jason E. Denney appeals from his conviction of driving on a denied license, a class C misdemeanor, and failure to stop at a stop sign, an infraction. This case is before the court on a sua sponte motion for summary disposition. We affirm.

A defendant does not have a right to a pretrial conference. Instead, the decision whether to hold a pretrial conference is within the discretion of the trial court. See Utah R. Crim. P. 13(a). Given the relatively straight-forward issues in this case, we conclude the trial court did not err by foregoing a pretrial conference.

Denney's claim he was improperly denied court-appointed counsel is also without merit. Denney claims he initially retained private counsel, but his counsel became incapacitated and he became indigent by the time of trial. "When a defendant is charged with a misdemeanor crime, counsel is not necessarily guaranteed." Layton City v. Longcrier, 943 P.2d 655, 658 (Utah Ct. App.), cert. denied, 953 P.2d 449 (Utah 1997), cert. denied, ____ U.S. ____, 118 S. Ct 1811 (1998). In Scott v. Illinois, 440 U.S. 367, 99 S. Ct 1158, 59 L. Ed. 2d 383 (1979), the United States

Supreme Court adopted "actual imprisonment as the line defining the constitutional right to appointment of counsel." 440 U.S. at 373, 99 S. Ct at 1162. "Thus, Scott establishes an after-the-fact test that requires a reviewing court to find an uncounselled misdemeanor conviction constitutional when the defendant was not sentenced to jail." Longcrier, 943 P.2d at 658. Denney was not sentenced to a jail term or a suspended jail term. Because Denney was not incarcerated, no constitutional right to counsel is implicated in this case. See State in re W.B.J., 966 P.2d 295 (Utah Ct. App. 1998).

Denney's remaining claims are also without merit. In reviewing a challenge to the sufficiency of the evidence at a bench trial, we will not set aside the verdict unless it is "clearly erroneous" or the result is against the clear weight of the evidence, or we otherwise reach a definite and firm conviction that a mistake has been made. State v. Walker, 743 P.2d 191, 193 (Utah 1987). Denney conceded he did not have a valid driver's license at the time of the traffic stop, but offered testimony that he did not fail to stop at the stop sign. Denney failed to sustain his burden on appeal to marshal the evidence supporting the verdict and demonstrate that notwithstanding the evidence, the verdict is clearly erroneous. See State v. Moore, 802 P.2d 732, 738-39 (Utah Ct. App. 1990). Based upon our review of the transcript, we conclude the evidence was sufficient to support the verdict.

Denney requests this court to consider evidence of the status of his Nevada driver's license at the time of the Utah citation. The evidence was not presented to the district court. An appellate court will not consider evidence that is offered for the first time on appeal. Otteson v. State, 945 P.2d 170, 171 (Utah Ct. App. 1997)(per curiam). Finally, the claim of judicial bias was not preserved for consideration on appeal by a timely motion under Utah R. Crim. P. 29(c) and will not be considered for the first time on appeal. Wade v. Stangl, 869 P.2d 9,11 (Utah Ct. App. 1994).

Accordingly, we affirm the judgment.
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 

______________________________
James Z. Davis, Judge
 
 

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Gregory K. Orme, Judge

1. This Amended Memorandum Decision replaces the Memorandum Decision in Case No. 990045-CA issued on June 24, 1999. The listing of Judge Greenwood and Judge Jackson as panel members was in error. Judge Wilkins and Judge Orme are now correctly identified.