Bluff v. State

Bluff v. State

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

Ferosa Bluff,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040700-CA
 

F I L E D
(October 28, 2004)
 

2004 UT App 383

 

-----

Third District, Salt Lake Department

The Honorable J. Dennis Frederick

Attorneys: Ferosa Bluff, Appellant Pro Se

Mark L. Shurtleff and Erin Riley, Salt Lake City, for Appellee

-----

Before Judges Bench, Davis, and Orme.

PER CURIAM:

Ferosa Bluff appeals the trial court's dismissal of her petition for post-conviction relief. This is before the court on its own motion for summary disposition.

In her petition, Bluff alleged that she received ineffective assistance of counsel at trial and that the State withheld evidence favorable to her. Among other things, she alleged her counsel was ineffective for failing to hire a medical expert and for failing to put on evidence of a family history of blood disorders. She alleged that the prosecution withheld medical reports showing no testing was done for blood disorders, showing no retinal bleeding, and showing no fractures. The overall import of these alleged errors was that Bluff was unable to present evidence at trial that would suggest that her daughter's death was not caused by intentionally inflicted injuries.

In response to Bluff's petition, the State filed a motion to dismiss. The State argued that Bluff could not assert issues disputing her daughter's cause of death, or at least could not establish prejudice, because she had conceded on her direct appeal that the cause of death was nonaccidental injury. Bluff did not file a responsive pleading, nor did she amend her petition to include claims of ineffective assistance of counsel on appeal. The trial court dismissed Bluff's petition, finding that she had conceded the cause of death and was thus precluded from challenging it in a post-conviction petition.

On appeal, Bluff asserts for the first time that she received ineffective assistance of counsel on her direct appeal because there can be no strategic rationale for conceding the cause of death. She asserts that her appellate counsel erred and acted against her interests in making the concession.

"It is a well-established rule that a defendant who fails to bring an issue before the trial court is generally barred from raising it for the first time on appeal." State v. Irwin, 924 P.2d 5, 7 (Utah Ct. App. 1996). Bluff did not raise the issue of ineffective assistance of her appellate counsel before the trial court, even though she had the opportunity to do so in a responsive pleading to the State's motion to dismiss, if not in her initial petition. As a result, she is barred from raising it here. See id.

Even if the issue of appellate counsel's performance were properly before this court, Bluff has not met her burden to show ineffective assistance of counsel. To show ineffective assistance of counsel, Bluff must show that counsel's performance fell below an objective standard of reasonable professional judgment and that counsel's performance prejudiced her. See Carter v. Galetka, 2001 UT 96,¶31, 44 P.3d 626. To satisfy the first prong of the test, Bluff must overcome the "strong presumption that under the circumstances, the challenged action might be considered sound [appellate] strategy." Id. at ¶40 (quotations and citation omitted).

In her direct appeal brief, Bluff stated that "Bluff agrees that Rebecca was her child, that she had care and custody of Rebecca, that Rebecca's death was caused by knowingly inflicted serious physical injuries, and that someone touched her buttocks or genitalia with the intent to cause substantial bodily pain." In addition to that concession, Bluff acknowledged multiple times that Rebecca's cause of death was nonaccidental injury. Arguing for charges to be merged, Bluff stated "because Rebecca Bluff's death was so directly causally related with child abuse, child abuse constitutes a lesser offense which merges with the homicide." In challenging the admissibility of photos, Bluff acknowledged that "the State had overwhelming evidence to prove that Rebecca's injuries were not accidental or the result of a fall, and wherein the most helpful evidence concerning the injuries was the expert testimony establishing that the injuries were intentionally inflicted pattern injuries." Arguing against the admissibility of a videotape showing consensual acts between adults, Bluff asserted the tape was "not admissible to prove intent or knowledge, because Rebecca's injuries were necessarily inflicted in a knowing and intentional fashion."

Bluff asserts there can be no strategic reason for conceding on direct appeal that her daughter's death was caused by intentionally inflicted injuries. However, her direct appeal brief demonstrates a clear choice and reasonable strategy in attacking issues on direct appeal. The primary concession was made in arguing that the State had failed to show that Bluff participated in or permitted any of the injuries. Bluff argued the State did not present sufficient evidence to show that she was the one who inflicted the injuries or that she had any control over Fedorowicz to prevent him from inflicting injury. Bluff was essentially highlighting Fedorowicz's control and authority over both her and her daughter and trying to distance herself from any responsibility.

The other concessions were likewise made to advance Bluff's interests. Bluff contested the admission of photographs of her daughter's body and a videotape of sadomasochistic activities involving Bluff and Fedorowicz. In acknowledging that the injuries were intentionally inflicted, Bluff argued that neither the photos nor the video had any probative value because the cause of injury was not disputed, and thus the evidence should be excluded because of its prejudicial nature. Similarly, to argue that the child abuse charges should be merged into the homicide charge, Bluff had to acknowledge that the injuries were intentional. Therefore, conceding that the cause of death was nonaccidental injury was a reasonable strategic choice to advance a legal argument in Bluff's interest, and does not constitute ineffective assistance of counsel.

Accordingly, the dismissal of Bluff's petition is affirmed.

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

James Z. Davis, Judge

-----

I CONCUR IN THE RESULT:

______________________________

Gregory K. Orme, Judge