State of Utah v. Hanney

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State of Utah,
Plaintiff and Appellee,

v.

Dana Kim Hanney,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000398-CA

F I L E D
March 1, 2001
  2001 UT App 58  -----

Second District, Ogden Department
The Honorable Roger S. Dutson

Attorneys:
Maurice Richards and Jerald N. Engstrom, Ogden, for Appellant
Mark L. Shurtleff and Jeffrey T. Colemere, Salt Lake City, for Appellee

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Before Judges Greenwood, Billings, and Orme.

PER CURIAM:

Dana Hanney contends she received ineffective assistance of counsel because counsel was assigned to defend her two days before trial and had inadequate time to prepare. To establish ineffective assistance, Hanney must show that her counsel "rendered deficient performance which fell below an objective standard of reasonable professional judgment" and that "counsel's deficient performance prejudiced [her]." State v. Chacon, 962 P.2d 48, 50 (Utah 1998). However, such a claim will be reviewed on appeal only if the "record is adequate to permit decision of the issue." State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991).

Although Randall Marshall did not appear in court with Hanney before trial, there is no evidence to suggest that he was appointed two days before trial or that he was inadequately prepared for trial. First, the case was not complicated. Second, Marshall had the benefit of work done by Hanney's other attorneys, did not ask for a continuance, and said he was prepared to proceed when asked by the trial court. Third, Hanney did not want any more continuances and had written letters to the trial court complaining about delays.

Furthermore, Hanney has not shown that her trial counsel's performance prejudiced her. See State v. Gallegos, 967 P.2d 973, 976 (Utah Ct. App. 1998) (to bring a successful ineffective assistance of counsel claim, defendant must show that deficient performance prejudiced outcome of trial.) The evidence against Hanney was compelling. A witness testified that she saw Hanney drop a make-up bag in the bushes which police recovered and in which they found methamphetamine and drug paraphernalia. Hanney's contention that she was unaware of a baggie of methamphetamine under her breast was implausible as was the explanation that her boyfriend put it there without her knowledge. In convicting Hanney of both drug offenses, the jury must have rejected Hanney's explanations and we must defer to the jury. See State v. Blubaugh, 904 P.2d 688, 694-95 (Utah Ct. App. 1995) ("It is within the province of the jury to judge the credibility of the testimony [and] assign weight to the evidence."). Also, there appears to have been no basis upon which counsel could have filed a motion to suppress and no support for Hanney's contention that the police officers testified differently at trial than at the preliminary hearing.

"Proof of ineffective assistance of counsel cannot be a speculative matter but must be a demonstrable reality." Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993). Accordingly, Hanney's convictions are affirmed.
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge