State of Utah v. Hawley

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State of Utah,
Plaintiff and Appellee,

v.

Natasha Hawley,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000738-CA

F I L E D
October 4, 2001 2001 UT App 284 -----

Seventh District, Moab Department
The Honorable Lyle R. Anderson

Attorneys:
Edward K. Brass, Salt Lake City, for Appellant
Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee

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Before Judges Greenwood, Jackson, and Davis.

DAVIS, Judge:

First, Defendant Natasha Hawley argues that it was error to deny her motion to recuse the trial judge as untimely. Hawley's basis for the motion was that she was an attorney that regularly appeared before the judge. A judge's decision regarding a motion for recusal is a question of law reviewed for correctness. SeeState v. Alonzo, 973 P.2d 975, 979 (Utah 1998). The trial judge reviewed the motion and referred it to another judge pursuant to Rule 29(c) of the Utah Rules of Criminal Procedure. Rule 29(c)(3)(A) instructs a reviewing judge to assign another judge if he finds the motion is "timely filed, filed in good faith and legally sufficient." Id. Thus, filing the motion in a timely fashion is a predicate to assigning another judge. Furthermore, Rule 29(c)(3)(C) specifically states that "[t]he reviewing judge may deny a motion not filed in a timely manner." Charges were filed against Hawley, and the trial judge was assigned, on January 28, 2000. Hawley's counsel filed a notice of appearance on February 15, 2000, but Hawley did not file her motion until April 11, 2000. Hawley was aware, or should have been aware, of the grounds for her motion well in advance of twenty days before April 11. The reviewing judge acted properly in denying the motion as untimely.

Hawley also claims that failing to file the motion in a timely fashion was ineffective assistance of counsel. We decline to consider this claim because Hawley is represented on appeal by the same attorney that represented her at trial. See State v. Litherland, 2000 UT 76,¶9, 12 P.3d 92.

Hawley next argues that the court erred in admitting evidence of her refusal to take a chemical test after her arrest for driving under the influence (DUI). Hawley argues that only if there has been full compliance with Utah Code Ann. § 41-6-44.10 (Supp. 1999), including an administrative hearing where the hearing officer rules that there was a refusal, can evidence of the refusal later be introduced at a criminal trial pursuant to section 41-6-44.10(8). Hawley contends that the court erred in its interpretation of the statute. This is a question of law that is reviewed for correctness. See Rushton v. Salt Lake County, 1999 UT 36,¶36, 977 P.2d 1201. Hawley bases her argument on the words "under this section," found in section 41-6-44.10(8), which she contends indicate that all of the procedures included in the entirety of section 41-6-44.10 must be complied with or the evidence of the refusal cannot be admitted. Hawley claims that because the hearing officer did not rule that she had refused, the refusal was thus inadmissible. The trial court ruled that the phrase "under this section" simply served to modify "test," that the test had to be one administered under section 41-6-44.10, and that the fact that a person refused to take the test was admissible "regardless of what the administrative determination was." The broad language of section 41-6-44.10(8) ("any additional test"; "any refusal"; "any civil or criminal action or proceeding") (emphasis added), supports this reading. It is the fact of the refusal that is made admissible by section 41-6-44.10(8) not the administrative determination. We disagree with Hawley's interpretation of the statutory language and the legislative intent.

Finally, Hawley argues that the evidence was insufficient to enhance her conviction to a third degree felony. Although Hawley raises this as a sufficiency of the evidence argument, it really is a challenge to the use of her prior convictions for other alcohol related driving offenses to enhance the DUI sentence. Hawley makes much of the fact that a Colorado conviction was submitted by the State along with two Utah convictions for alcohol related driving incidents. She claims the Colorado conviction cannot be relied on to enhance her DUI sentence. We do not reach this argument because the two prior Utah convictions were sufficient to meet the requirements of the statute. See Utah Code Ann. § 41-6-44(6)(a) (Supp. 1999) (third conviction within six years is a third degree felony).

Hawley goes on to challenge the two prior Utah convictions on the ground that the guilty pleas entered in those two cases were defective because the courts did not comply with all the requirements of section 41-6-44(9). Even if we assume that a statutory violation would invalidate these pleas, Hawley has failed to meet her burden in attacking these prior convictions. The court relied on signed judgments issued by courts of this state. The court is entitled to rely on these judgments; they carry a presumption of regularity. See State v. Triptow, 770 P.2d 146, 149 (Utah 1989). At sentencing, Hawley presented no evidence of any irregularity; she merely argued that her sentence could not be enhanced to a third degree felony because the State failed to affirmatively prove that the trial courts complied with section 41-6-44(9) when they accepted the pleas in the prior convictions. Hawley misstates the relative burdens regarding the enhancement evidence. Once the State satisfied its burden of proving the fact of the prior convictions, it was then up to Hawley to come forth with some evidence that called the validity of the judgments into doubt. See Triptow, 770 P.2d at 148-49; State v. Branch, 743 P.2d 1187, 1192-93 (Utah 1987). These judgments appear valid on their face, and Hawley offered no evidence to show otherwise. Thus, Hawley failed to meet her burden, and the DUI conviction was properly enhanced to a third degree felony.

Affirmed.
 
 

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James Z. Davis, Judge -----

WE CONCUR:
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge