State of Utah v. Provence

State of Utah v. Provence

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

John K. Provence,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 981353-CA

F I L E D

(January 28, 1999)

1999 UT App 022

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Second District, Ogden Department

The Honorable Robert L. Newey

Attorneys: Maurice Richards and Randine Salerno, Ogden, for Appellant

Jan Graham and Norman E. Plate, Salt Lake City, for

Appellee

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Before Judges Greenwood, Davis, and Jackson.

PER CURIAM:

¶1 Appellant appeals from a final judgment of conviction for possession of a controlled substance, a third degree felony, and violation of the Clandestine Drug Lab Act, a first degree felony, alleging he was denied his constitutional right to effective assistance of counsel because trial counsel failed to object to a jury instruction that allegedly conflicted with the bindover court's ruling. We affirm.

¶2 When a claim of ineffective assistance of counsel is raised for the first time on appeal, we resolve the issue as a matter of law. State v. Strain, 885 P.2d 810, 814 (Utah Ct. App. 1994). To prevail on a claim of ineffective assistance of counsel, the appellant bears the burden of showing that trial counsel's performance fell outside a wide range of professionally competent assistance, and that a reasonable probability exists that, but for counsel's unprofessional errors, the result would have been different. State v. Hovater, 914 P.2d 37, 39 (Utah 1996); State v. Speer, 750 P.2d 186, 191 (Utah 1988). In the case at hand, appellant fails to meet his burden.

¶3 Pursuant to Utah Code Ann. § 58-37d-4(a) & (b) (1998), a person is guilty of a second degree felony if he knowingly or intentionally possesses a controlled substance precursor with the intent to engage in a clandestine lab operation or possesses laboratory equipment or supplies with the intent to engage in a clandestine laboratory operation. The crime is elevated to a first degree felony if it is proven that the intended lab operation was for the production of cocaine base or methamphetamine base. Utah Code Ann. § 58-37d-5(g) (Supp. 1998).

¶4 Appellant asserts that his trial counsel was ineffective because he failed to object to a jury instruction which set forth the element required for conviction of a first degree felony. Appellant, relying solely on an erroneous docket entry, argues that the bindover court did not find probable cause that the clandestine drug lab operation was for the production of methamphetamine base, and, therefore, that the first degree felony charge was improperly submitted to the jury.

¶5 It is clear from a review of the record on appeal that the bindover order included a finding of probable cause on the element that elevates appellant's criminal act from a second degree felony to a first degree felony, i.e., that the drug lab was for the production of methamphetamine base. Thus, the bindover court bound appellant over under all of the elements necessary to convict under Utah Code Ann. §§ 58-37d-4 & -5 (1998 & Supp. 1998). The elements of the bindover order and sections 58-37d-4 & -5 were accurately reflected in the jury instructions and trial testimony. Thus, the trial court properly conducted the trial and properly instructed the jury. Any objections thereto by trial counsel would have been futile, and, thus, any failure to object cannot support a claim of ineffective assistance of counsel. See Hovater, 914 P.2d at 44 (failure of counsel to make objections which would be futile if raised does not constitute ineffective assistance) (citation omitted).

¶6 Accordingly, we affirm appellant's conviction.

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Pamela T. Greenwood,

Associate Presiding Judge

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James Z. Davis, Judge

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Norman H. Jackson, Judge