State of Utah v. Garrett

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Richard A. Garrett,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990284-CA

F I L E D
July 13, 2000
  2000 UT App 221 -----

Third District, Salt Lake Department
The Honorable William B. Bohling

Attorneys:
Kristine M. Rogers, Salt Lake City, for Appellant
Jan Graham and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Greenwood, Billings, and Davis.

GREENWOOD, Presiding Judge:

Defendant appeals from his conviction pursuant to a conditional plea of guilty to two counts of attempted sexual abuse of a child, Third degree felonies in violation of Utah Code Ann. § 76-5-404.1 (1999). Defendant claims that the trial court deprived him of the effective assistance of counsel by denying his motion for a continuance sought to conduct further investigation. We affirm.

"The decision to grant or deny a continuance lies within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of that discretion." State v. Horton, 848 P.2d 708, 714 (Utah Ct. App.), cert. denied, 857 P.2d 448 (Utah 1993). When moving for a continuance, the moving party must show that denial of the motion will prevent the party from obtaining material and admissible evidence, that any additional witnesses it seeks can be produced within a reasonable time, and that it has exercised due diligence in preparing for the case before requesting the continuance. Id. Further, defendant "must show that [he] was materially prejudiced by the court's denial of the continuance or that the trial result would have been different had the continuance been granted." State v. Oliver, 820 P.2d 474, 476 (Utah Ct. App. 1991), cert. denied, 843 P.2d 516 (Utah 1992).

Defendant requested a continuance the day before trial in order to further investigate three potential defense witnesses: Shawn, Chris Nelson, and Harry Hadley. Defendant indicated that he did not know Shawn's surname, nor how to locate Nelson. Defendant explained that Shawn and Hadley could testify that defendant did not make the hole in the bathroom floor that he allegedly used to spy on the victim. Also, defendant asserted that Nelson could testify that the victim never liked defendant and wanted to end the relationship between her mother and defendant. Defendant did not supply the court with affidavits or any form of proof other than his assertions that the proposed witnesses would in fact testify as he represented.

Defendant failed to show that either all of the additional witnesses would provide material evidence or the witnesses could appear within a reasonable time. Because the State argued it would not present evidence defendant made the hole in the bathroom floor, the testimony of Shawn and Hadley was not relevant or material. Only Nelson's testimony regarding the relationship between defendant and the victim might meet the materiality requirement, as Nelson's testimony may have contradicted the victim's testimony and impacted her credibility. See State v. Templin, 805 P.2d 182, 188 (Utah 1990) (discussing testimony contradicting rape victim's testimony in ineffective assistance of counsel context). However, even if This court were to assume that Nelson would testify as defendant represented and that his testimony was material, defendant admitted that he had not been in contact with Nelson for a number of years and did not know how to locate him. Therefore, the trial court had no assurance that Nelson could be produced as a witness within a reasonable time.

Defendant also failed to demonstrate that he exercised due diligence before requesting the continuance. See Oliver, 820 P.2d at 476-77 (explaining due diligence requirement). Defense counsel was appointed to represent defendant only one week after he was charged, and was present at all phases of the case. Further, the case had been continued twice previously, the first time at defendant's request in order to research issues and interview witnesses. At the pretrial conference, held approximately two weeks before the trial date, defendant indicated that he would be ready for trial on the set date. Finally, defendant made his motion to continue only one day before the scheduled trial date. We therefore conclude that the trial court acted within its discretion in denying defendant's motion to continue.

Defendant contends that the trial court's denial of his motion for a continuance deprived him of effective assistance of counsel because his counsel, in failing to investigate potential defense witnesses, was not adequately prepared to defend him.(1) When an ineffective assistance of counsel claim is raised for the first time on appeal, we resolve the issue as a matter of law. See State v. Strain, 885 P.2d 810, 814 (Utah Ct. App. 1994).

In order to prevail on an ineffective assistance of counsel claim, defendant must prove both that his "counsel's performance was deficient," and "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). "To show prejudice under the second component of the test, a defendant 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.'" Parsons v. Barnes, 871 P.2d 516, 522 (Utah), cert. denied, 513 U.S. 966, 115 S. Ct. 431 (1994) (citations omitted). Defendant "cannot meet the prejudice prong of the Strickland test simply by identifying unexplored avenues of investigation. Rather, he must demonstrate a reasonable probability that further investigation would have yielded sufficient information to alter the outcome." Id. at 523-24.

We conclude that defendant failed to prove that he was prejudiced by his counsel's failure to adequately investigate the availability of prospective defense witnesses. Defendant did not present the trial court with any affidavits or other evidence that Nelson could testify as defendant represented. Further, defendant indicated that he had not spoken to Nelson for several years and did not know how to locate him. Even if Nelson testified as defendant represented, his testimony would not relate directly to the alleged sexual abuse and would likely have a small impact given the fact that he is a former employee and friend of defendant. Thus, we conclude that Nelson's proffered testimony was not "sufficient information to alter the outcome" of the proceedings against defendant. Id. Accordingly, we affirm.
 
 
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 
 

______________________________
James Z. Davis, Judge

1. Defendant repeatedly asserts that because his counsel could not provide effective assistance he was forced to accept a plea bargain; however, he does not assert on appeal that defense counsel provided ineffective assistance in advising him to accept the plea bargain. Nor does defendant raise any issue challenging his guilty pleas on appeal. Further, defendant benefitted from a very favorable plea bargain, and stated on the record that he was doing so knowingly and voluntarily. See State v. Marvin, 964 P.2d 313, 317 (Utah 1998) (rejecting ineffective assistance claim based on guilty plea in part because defendant received benefit by pleading guilty).