State of Utah v. Martinez

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State of Utah,
Plaintiff and Appellee,

v.

Nathan Daniel Martinez,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000345-CA

F I L E D
July 12, 2001 2001 UT App 221 -----

Second District, Ogden Department
The Honorable Michael D. Lyon

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

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Before Judges Bench, Davis, and Thorne.

DAVIS, Judge:

Defendant Nathan Martinez claims that he received ineffective assistance of counsel.

To bring a successful ineffective assistance of counsel claim, first, a defendant must show that trial counsel's performance was deficient in that it fell below an objective standard of reasonableness, and [second], that the deficient performance prejudiced the outcome of the trial. . . . 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.

State v. Silva, 2000 UT App 292,¶22, 13 P.3d 604 (internal quotations and citations omitted); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

Defendant claims that trial counsel was ineffective because counsel did not call Leo Ornelas or Veronica Palomo and did not put on any evidence. However, Detective Chad Ledford testified that Veronica Palomo was unavailable and that he had made several attempts to locate her. Also, the substance of the testimony Defendant claims these two witnesses would have given was admitted through other witnesses. Finally, the evidence that Defendant wished to have admitted by calling these witnesses--that he was initially invited into the apartment--is not a sufficient defense to aggravated burglary. See State v. Bradley, 752 P.2d 874, 876 (Utah 1985) (holding defendant guilty of aggravated burglary despite being invited into victims' home). Thus, Defendant's claim fails.

Affirmed.
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

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William A. Thorne, Jr., Judge