State of Utah v. Carpenter

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State of Utah,
Plaintiff and Appellee,

v.

Randolph Carpenter,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990494-CA

F I L E D
July 13, 2000 2000 UT App 219 -----

Second District, Ogden Department
The Honorable Michael J. Glasmann

Attorneys:
Maurice Richards, Ogden, for Appellant
Jan Graham and Catherine M. Johnson, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Billings.

PER CURIAM:

Randolph Carpenter entered a conditional guilty plea to one count of Illegal Possession of a Controlled Substance, a second degree felony, in violation of Utah Code Ann. § 58-37-8 (Supp. 1999). The guilty plea was conditioned upon the right to appeal from the denial of a motion to suppress. Carpenter claims on appeal that he received ineffective assistance of counsel and the trial court erred in denying the motion to suppress.

To succeed on an ineffectiveness of counsel claim, an appellant must show not only that counsel's performance was deficient, but that the claimed deficiency prejudiced the defendant. See, e.g., State v. Seel, 827 P.2d 954, 958 (Utah Ct. App. 1992). Carpenter asserts no additional arguments that counsel should have raised, and fails to demonstrate that "but for the [alleged] deficient representation, there is a 'reasonable probability' that the result would have been different." State v. Hall, 946 P.2d 712, 719 (Utah Ct. App. 1997), cert. denied, 953 P.2d 449 (Utah 1998).

Carpenter also challenges the denial of the motion to suppress evidence obtained in the search. "We review factual findings underlying the denial of a motion to suppress evidence under a 'clearly erroneous' standard, and review the trial court's conclusions of law based thereon for correctness." State v. Jackson, 873 P.2d 1166, 1166-67 (Utah Ct. App. 1994). Carpenter does not challenge the ruling that the cocaine was properly seized.(1) Instead, he apparently argues that Agent Jensen's testimony that the black box was in defendant's possession should be suppressed. In the context of the motion to suppress, Jensen's testimony was relevant only to the court's ruling that Carpenter had standing to contest the search of the black box. The testimony supported the standing ruling. Because Carpenter makes no argument that the search itself was improper, this appeal from the denial of the motion to suppress is without support.

To the extent that the claims regarding Agent Jensen's testimony are construed as a challenge to the finding that Carpenter was in possession of the box, we conclude that the finding was supported by the evidence and was not clearly erroneous. The claim that the testimony of the officers was in conflict is also without merit. The State correctly notes that the "fact that Agent Burnett did not see defendant with the black box in his hand merely reflects the fact that Agent Jensen was the only officer focused on defendant." Although the testimony regarding possession of the box would have supported the State's case at trial, that fact is irrelevant to this appeal from denial of the motion to suppress.

We affirm the denial of the motion to suppress.
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 

______________________________
Russell W. Bench, Judge
 

______________________________
Judith M. Billings, Judge

1. The trial court concluded that "[t]he search warrant permitted the officers to search any object that could possibly contain cocaine or paraphernalia" and "[t]he box fell within the scope of the search warrant."