State v. Mallow

State v. Mallow

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

Jean Mallow,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030867-CA
 

F I L E D
(November 18, 2004)
 

2004 UT App 432

 

-----

Seventh District, Moab Department

The Honorable Lyle R. Anderson

Attorneys: Tom Jones, Salt Lake City, for Appellant

Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Jackson, and Thorne.

PER CURIAM:

    Jean Mallow appeals her conviction by a jury on one count of distribution of a controlled substance.

    Mallow makes three claims on appeal. First, she asserts that her conviction should be reversed because her trial counsel had a conflict of interest. Second, she argues that the trial court inappropriately used an out-of-state presentence investigation report. Finally, she asserts that the evidence was insufficient to convict. All three claims fail.

    Mallow argues that her trial attorney had a conflict of interest that prejudiced her trial as a matter of law. She asserts that her trial counsel also represented the State's key witness in the Grand County case for which the witness was given a lenient recommendation in exchange for being a confidential informant. A defendant has a Sixth Amendment right to conflict-free representation. See State v. Lovell, 1999 UT 40,¶22, 984 P.2d 382. To show a violation of this right, a defendant must establish both that his or her attorney "had an actual conflict of interest, and that the conflict adversely affected [the attorney's] performance." Id. To establish an actual conflict of interest, Mallow must show that her trial attorney "had to make choices that would advance [the witness's] interests to the detriment of [Mallow's]." Id.

    Mallow has not established the fact she alleges, that her counsel also represented the State's witness in the case leading the witness to become a confidential informant. Nor has Mallow pointed to any decision her trial counsel had to make that advanced the witness's interest at the expense of Mallow to establish an actual conflict. Mallow's trial attorney vigorously attacked the witness's credibility and motive on cross-examination, and presented additional evidence to diminish her credibility. Mallow points to nothing that indicates a subpar or suspect performance at trial, but simply asserts that a nonestablished conflict prejudiced her. However, "[t]here is no violation where the conflict is irrelevant or merely hypothetical." State v. Webb, 790 P.2d 65, 75 (Utah Ct. App. 1990).

    Mallow also asserts that the trial court should have requested a presentence report to be prepared in Utah and erred in relying on a recent presentence report from Colorado. A presentence report by a Utah entity is not mandatory. Under Utah Code section 77-18-1(5), a trial court may request a presentence report to be prepared, or it may obtain information from other sources. See Utah Code Ann. § 77-18-1(5)(a) (2003). A presentence report or other information must be provided to defendant at least three days before sentencing for defendant's review. See id. § 77-18-1(6)(a). A defendant must challenge any inaccuracies at sentencing or such challenges will be waived. See id. § 77-18-1(6).

    The key concern is that a sentence be based on reliable and accurate information. "[D]ue process requires criminal proceedings including sentencing to be based upon accurate and reasonably reliable information." State v. Weeks, 2000 UT App 273,¶8, 12 P.3d 110. "Fundamental principles of procedural fairness in sentencing require that a defendant have the right to examine and challenge the accuracy and reliability of the factual information upon which [her] sentence is based." State v. Gomez, 887 P.2d 853, 855 (Utah 1994). Procedural fairness is satisfied when a defendant is given the opportunity to review and challenge the information upon which the court based its sentence. See Weeks, 2000 UT App 273 at ¶8.

    The trial court used a Colorado presentence report prepared only four months before Mallow's sentencing in the Utah case. The report had been disclosed to Mallow at the close of her trial one week before sentencing. At the sentencing hearing, Mallow had the opportunity to challenge the report. Her counsel noted for the court new developments in Mallow's life, such as full-time employment and stable housing with her family. Thus, procedural fairness was met because Mallow was provided the information relied upon by the trial court and had the opportunity to challenge and correct any inaccuracies in the information.

    Finally, Mallow asserts the evidence was insufficient to support her conviction. A defendant challenging the sufficiency of the evidence "must marshal all of the evidence in support of the [verdict] and then demonstrate that the evidence, including all reasonable inferences drawn therefrom, is insufficient to support the [verdict] against an attack." State v. Larsen, 2000 UT App 106,¶11, 999 P.2d 1252 (quotations and citation omitted). Mallow has not marshaled the evidence, and thus has failed to meet her obligation. Her failure to marshal the evidence and show that it could not support the verdict allows this court to affirm the verdict based on her failure alone. See State v. Widdison, 2001 UT 60,¶61, 28 P.3d 1278.

Accordingly, Mallow's conviction and sentence are affirmed.

______________________________

Pamela T. Greenwood, Judge

______________________________

Norman H. Jackson, Judge

______________________________

William A. Thorne Jr., Judge