Ogden City v. Ford

Ogden City v. Ford

IN THE UTAH COURT OF APPEALS
 

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Ogden City,

Plaintiff and Appellee,

v.

Christopher M. Ford,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040674-CA
 

F I L E D
(January 13, 2005)
 

2005 UT App 16

 

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Second District, Ogden Department

The Honorable Pamela G. Heffernan

Attorneys: Christopher M. Ford, Ogden, Appellant Pro Se

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Before Judges Billings, Greenwood, and Thorne.

PER CURIAM:

    Christopher M. Ford appeals his conviction of simple assault, an infraction. This case is before the court on a sua sponte motion for summary dismissal on the basis that no final judgment had been entered or, in the alternative, for summary affirmance because the appeal presents no substantial question for appellate review. See Utah R. App P. 10.

    Based upon a review of the district court record, we conclude that the district court entered a final, appealable judgment on July 30, 2004, and Ford filed a timely notice of appeal. Accordingly, we consider only the sua sponte motion for summary affirmance. Ford claims that he was denied his constitutional rights to a jury trial and to effective assistance of counsel, and challenges the sufficiency of the evidence to support the bench verdict.

    There is no entitlement to a jury in the trial of an infraction. See Utah R. Crim. P. 17(d) ("No jury shall be allowed in the trial of an infraction."); Utah Code Ann. § 77-1-6(2)(e) (2003) ("No person shall be convicted unless by verdict of a jury, or upon a plea of guilty or no contest, or upon a judgment of a court when trial by jury has been waived or, in case of an infraction, upon a judgment by a magistrate."). The charge in the original and amended information was identical, but the charge was reduced from a misdemeanor to an infraction that could not result in a jail sentence. Because "the right to a jury trial is triggered by the type of punishment a defendant faces," once the charging information was amended to an infraction, Ford "faced no possibility of jail time and thus had no right to a jury trial." West Valley City v. McDonald, 948 P.2d 371, 374 (Utah Ct. App. 1997). To the extent Ford claims his trial counsel was ineffective by failing to object to the discharge of the jury, the claim is without merit. Because Ford no longer had a right to a jury trial, any objection would have been futile and no prejudice resulted from failure to object.

    The remaining ineffectiveness claims concern counsel's performance during the bench trial, and cannot be reviewed without a transcript.(1) Similarly, Ford's challenge to the sufficiency of the evidence to support the bench verdict and related claims alleging prosecutorial misconduct cannot be reviewed without a transcript. "In the absence of an adequate record on appeal, we address the issues raised and presume the correctness of the disposition made by the trial court." State v. Rawlings, 829 P.2d 150, 152-53 (Utah Ct. App. 1992).

    Accordingly, we affirm the conviction.

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Judith M. Billings,

Presiding Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge

1. Although Ford filed a transcript request, the reporter has advised the court that the transcript was not prepared due to lack of payment. Because Ford did not face imprisonment as a possible sentence, he was no longer entitled to appointed counsel or a transcript at public expense. See West Valley City v. McDonald, 948 P.2d 371, 374 (Utah Ct. App. 1997) ("[I]f a trial court decides before trial not to impose jail time, the defendant has no right to appointed counsel.").