Haskie v. State of Utah

----ooOoo----

John Lee Haskie,
Petitioner and Appellant,

v.

State of Utah,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981834-CA

F I L E D
May 4, 2000

2000 UT App 125 -----

Fifth District, St. George Department
The Honorable G. Rand Beacham

Attorneys:
Michael D. Esplin, Provo, for Appellant

-----

Before Judges Bench, Billings, and Orme.

BENCH, Judge:

In his appeal from an order of summary dismissal of his petition for post-conviction relief, Haskie first contends that the trial court erred at the sentencing hearing by considering testimony from people who were not "victims" within the definition of the statute. See Utah Code Ann. § 77-38-2(9)(a) (1999). We are convinced that the habeas court properly determined that no error occurred in this case because the trial court, at sentencing, is not limited to considering testimony from only those people considered to be victims under the statute, but may consider "'any and all information that reasonably may bear on the proper sentence.'" State v. Sweat, 722 P.2d 746 (Utah 1986) (citation omitted).(1)

Haskie next contends that his due process and equal protection rights were violated when the trial court denied him "an opportunity to present evidence and witnesses at the sentencing hearing on September 25, 1997." However, the hearing on September 25, 1997 was not a sentencing hearing, but rather a hearing to review the sentence already imposed. Sentencing occurred on September 18, 1997, and Haskie had the same opportunity as the State to present evidence and witnesses. After the State presented its evidence at sentencing, the trial court asked if there was anything Haskie "would like to say in response." Haskie declined and asked that it be submitted on the recommendation of Adult Probation and Parole. Thus, the habeas court properly determined that Haskie "had the same opportunity as the prosecution to invite witnesses to attend and testify, but he apparently chose not to do so," and thus, his due process and equal protection rights were not violated.

Haskie finally contends that his trial counsel was ineffective in: (1) failing to call witnesses at the sentencing hearing on September 18, 1997; and (2) failing to object to the non-victim witnesses testifying at sentencing.(2) To prevail on an ineffective assistance of counsel claim, Haskie "'must show, first, that his counsel rendered a deficient performance in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment and, second, that counsel's performance prejudiced the defendant.'" Parsons v. Barnes, 871 P.2d 516, 521 (Utah 1994) (citation omitted). Assuming for purposes of this appeal that trial counsel was deficient in not calling witnesses at sentencing, we determine that the habeas court properly rejected the ineffective assistance of counsel claim because Haskie did nothing to demonstrate that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984). The trial court imposed a sentence of zero-to-five years imprisonment on the homicide conviction. Haskie offered no evidence demonstrating that his sentence would have been more lenient but for counsel's deficient performance. "In the absence of this evidence, we cannot find that the outcome of the sentencing hearing would have been different if defense counsel [had presented witnesses at sentencing]." Parsons, 871 P.2d at 526. Therefore, Haskie's ineffective assistance of counsel claim also fails.

Accordingly, we affirm.
 
 
 
 

______________________________
Russell W. Bench, Judge ----- WE CONCUR:
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge

1. Restrictions such as those referred to in Haskie's brief were previously placed on evidence presented at sentencing proceedings for capital felonies. See State v. Carter, 888 P.2d 629, 652-53 (Utah 1995). Aside from the fact that this case does not involve a capital felony, those restrictions were explicitly lifted by statute in 1995. See Utah Code Ann. § 76-3-207(2)(a)(iii) (Supp. 1996).

2. As we have already determined the trial court did not err by allowing the evidence now complained of at sentencing, we need not address Haskie's argument that his counsel was ineffective by not objecting to that evidence. See Codianna v. Morris, 660 P.2d 1101, 1109 (Utah 1983) (stating that "'the failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance'") (citation omitted).