State of Utah v. Vessey, II

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Rodney A. Vessey, II,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990519-CA

F I L E D
July 13, 2000 2000 UT App 220 -----

Fifth District, St. George Department
The Honorable James L. Shumate

Attorneys:
Rodney A. Vessey, Monticello, Appellant Pro Se
Jan Graham and Marian Decker, Salt Lake City, for Appellee

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Before Judges Bench, Billings, and Orme.

BILLINGS, Judge:

Defendant was convicted of rape of a child, a first degree felony, in violation of Utah Code Ann. § 76-5-402.1 (1995). Defendant requested substitute counsel. However, the trial court denied the motion without a hearing. Subsequently, Defendant was convicted as charged and sentenced to 15 years to life in prison.

Defendant appealed to this court, claiming that the trial court erred by refusing to grant Defendant a hearing on his assertions of ineffective assistance of counsel. This court agreed, and remanded the case to the trial court to hold an evidentiary hearing to determine if defendant's complaints about his appointed counsel justified the appointment of substitute counsel. If so, the trial court should grant defendant a new trial. However, if the court determines defendant's request for substitution of counsel was unfounded, the judgment of conviction would stand as entered. State v. Vessey, 967 P.2d 960, 964 (Utah Ct. App. 1998).

On remand, the trial court limited its investigation to the period between February 3, 1995, the day counsel was appointed to represent Defendant, and February 16, 1995, the day Defendant requested a substitution of counsel. After conducting this limited evidentiary hearing, the trial court found as a matter of law that Defendant had "failed to show any conflict of interest, a any [sic] breakdown in communication, or any irreconcilable conflict which led to an apparent unjust verdict, or any other good cause that would require appointment of new counsel." Therefore, the trial court affirmed the original denial for substitute counsel and affirmed Defendant's conviction as originally entered.

Defendant first argues that the trial court erred in limiting its inquiry to the period between February 3 and February 16, 1995. Instead, Defendant argues that the trial court should have considered evidence of events that occurred after February 16, 1995 (such as counsel's allegedly inadequate preparation for trial), when deciding whether or not to grant Defendant's motion for substitution of counsel. We disagree.

In Vessey, this court held that "the [trial] court erred in failing to determine if defendant's complaints about his appointed counsel justified the appointment of substitute counsel." Id. at 966. We therefore remanded for a determination whether this error was reversible. Evidence generated after February 16, 1995, is irrelevant to whether Defendant would have been successful had a hearing been held on that day on his motion for substitute counsel. See Vessey, 967 P.2d 960, 964 ("Only the trial court can conduct a full evidentiary hearing to explore the substantiality of defendant's allegations without reference to subsequent developments and later-acquired knowledge."). Therefore, the trial court did not err when it refused on remand to consider any evidence of events subsequent to February 16, 1995.

Defendant next attempts to relitigate his claim of ineffective assistance of trial counsel. However, in Vessey, we concluded that facts on the record did not support Defendant's ineffective assistance of counsel claim, and that Defendant failed to "allege[] specific facts outside the record to support his claim." Id. at 965. Thus Defendant's claim was adjudicated in Defendant's first appeal to this court, and Defendant is not entitled to relitigate the issue on this second appeal. See Thurston v. Box Elder County, 892 P.2d 1034, 1037-1038 (Utah 1995).

We therefore affirm.
 
 
 
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 
 

______________________________
Gregory K. Orme, Judge