State of Utah v. Thompson

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State of Utah,
Plaintiff and Appellee,

v.

Valerie D. Thompson,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000135-CA

F I L E D
June 7, 2001 2001 UT App 186 -----

Seventh District Juvenile, Castle Dale Department
The Honorable Scott N. Johansen

Attorneys:
Michael D. Esplin, Provo, for Appellant
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

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Before Judges Greenwood, Bench, and Davis.

DAVIS, Judge:

First, Defendant Valerie Thompson argues that the trial court committed plain error by requiring her trial proceed concurrently with the hearing on her daughter E.T.'s truancy violations. To succeed on this claim, Thompson has the burden of showing "(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined." State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993) (footnote omitted). Here, Thompson claims that it was error for her trial on charges of violating Utah Code Ann. § 53A-11-101(3)(b) (2000) (the Compulsory Education Laws) to be "joined" with that of her daughter's truancy violations. However, here, the two proceedings were not "joined." Instead, the court merely received testimony on both matters simultaneously, and the cases were kept separate for argument and for disposition. Furthermore, the trial court asked defense counsel whether he had any objection to this procedure, and defense counsel did not. Thus, the trial court did not commit plain error.

Next, Thompson argues the trial court erred by not investigating whether counsel had a conflict of interest by representing both Thompson and E.T. Thompson concedes in her brief that counsel did not bring up the issue of conflict at the time of trial. "Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry." Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S. Ct. 1708, 1717 (1980). In Cuyler, the Supreme Court further held that "the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance." Id. at 350. Here, Thompson does not show any actual conflict that adversely affected her lawyer's performance, nor does she show she suffered any prejudice due to her lawyer's dual role. Thus, this argument fails.

Thompson next argues that she was deprived of her Sixth Amendment right to effective assistance of counsel because trial counsel did not request a recess to advise Thompson and her daughter of potential conflicts, was not sure what proceedings were taking place, and did not feel prepared to proceed. To prevail on an ineffective assistance of counsel claim, "a defendant 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); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Here, Thompson fails to show that her trial counsel's performance "fell below an objective standard of reasonable professional judgment." Parsons, 871 P.2d at 521. Counsel came to court prepared to begin Thompson's criminal trial, and he was aware of the background of both cases. His failure to request a recess to discuss conflict of interest concerns does not rise to the level of ineffective assistance of counsel, especially when there were two separate proceedings, and the parties did not have conflicting defenses. Thus, Thompson did not identify any acts or omissions that fall outside the wide range of professional judgment, and she fails to meet Strickland's first prong. See Strickland, 466 U.S. at 687.

Finally, Thompson argues that the notice sent to her did not comply with the requirements of the Compulsory Education Law, see Utah Code Ann. § 53A-11-101(3)(b) (2000), and that the evidence indicated that Thompson did comply with the request in the accompanying letter. Thompson complains that the notice sent to her was from the school principal and not the local school board or school district. However, the notice sent by a school principal was adequate under the Compulsory Education Law as he is clearly an agent of the school board for purposes relevant here. See Utah Code Ann. § 53A-11-103(1)(a) (2000) (requiring local school board or school district to address truancy problems including efforts by school authorities). In addition, the excessive absence citations and the letter requiring Thompson to come in for mediation were written on Emery County School District stationary. Finally, the first two excessive absence citations, which were sent to Thompson by registered mail, notified her that failure to assist the school in securing regular attendance of her child is a class B misdemeanor and, these mailings fulfilled the remaining requirements of section 53A-1-103.

As for whether the evidence indicated that Thompson complied with the request, this court "will not reverse the findings of fact of a trial court sitting without a jury unless they are '"against the clear weight of the evidence."'" MacKay v. Hardy, 896 P.2d 626, 629 (Utah 1995) (citations omitted). Here, testimony showed that Thompson did not comply with the request, and therefore the findings are not against the clear weight of the evidence.

Affirmed.
 
 

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

WE CONCUR:
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

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Russell W. Bench, Judge