State v. Thomas

State v. Thomas

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Steve Howard Thomas,

Defendant and Appellant.

  MEMORANDUM DECISION
(Not For Official Publication

 Case No. 20030409-CA

  F I L E D
(March 31, 2005)
 

2005 UT App 152

 

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Fifth District, Beaver Department

The Honorable J. Philip Eves

Attorneys: Randall C. Allen, Cedar City, for Appellant

Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, and Leo G. Kanell, Beaver, for Appellee

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Before Judges Billings, Bench, and Orme.

PER CURIAM:

    Defendant Steve Howard Thomas appeals his jury conviction for multiple felonies. Defendant asserts the district court erred when it denied in part his motion to suppress certain statements he made to police officers. We affirm.

    Defendant's claim is inadequately briefed. "It is well established that a reviewing court will not address arguments that are not adequately briefed." State v. Thomas, 961 P.2d 299, 305 (Utah 1998). In deciding whether an argument has been adequately briefed, "we look to . . . rule 24(a)(9) of the Utah Rules of Appellate Procedure [, which] states that the argument in the appellant's brief 'shall contain the contentions and reasons of the appellant with respect to the issues presented . . . with citations to the authorities, statutes and parts of the record relied on." Spencer v. Pleasant View City, 2003 UT App 379,¶20, 80 P.3d 546 (alterations in original) (quoting Utah R. App. P. 24(a)(9)). Briefs must contain reasoned analysis based upon relevant legal authority. See Utah R. App. P. 24(a)(9); Thomas, 961 P.2d at 304-05. "This court is not a depository in which the appealing party may dump the burden of argument and research." Thomas, 961 P.2d at 305. Briefs that are not in compliance with rule 24 may be disregarded or stricken sua sponte by the court. See Utah R. App. P. 24(j); see also Smith v. Smith, 1999 UT App 370,¶8, 995 P.2d 14.

    Defendant's brief purports to present a single argument, barely one page in length and supported by a sole legal authority, that the district court "erred by not addressing whether the Defendant invoked his right to counsel in deciding the motion to suppress." However, it is clear from the Memorandum Opinion entered by the district court that it addressed this specific argument:

At the time [Defendant] made the statements to Deputy Black, to his mother, to officers at the jail, and to the victims, he knew that he had the right to remain silent and to have the advice of an attorney, but he chose to talk about the case voluntarily. His motion to suppress seems motivated by regret about his decision in view of the dire consequences that he is facing.

Thus, Defendant's argument that the district court failed to address this basis for suppression is groundless.

    Moreover, Defendant cites no case law in support of his underlying claim regarding invocation of the right to counsel. There is no reasoned analysis or factual development relating to this claim. Defendant has thus improperly "dump[ed] the burden of argument and research" on this court. Thomas, 961 P.2d at 305.

    Because of the inadequacy of Defendant's brief, we affirm the judgment below.

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Judith M. Billings,

Presiding Judge

______________________________

Russell W. Bench,

Associate Presiding Judge

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ORME, Judge (dissenting):

    I respectfully dissent. Defendant is entitled to the effective assistance of counsel in this first appeal of right in a criminal case. Obviously he has not received it if the brief filed falls so far short of our rule on briefing that we cannot even treat the merits of the appeal. Rather than have Defendant bear the onus of counsel's dereliction of duty, it seems to me that we should instead strike the brief and require that a brief in compliance with the rule be filed. Of course we should simultaneously require that counsel not charge or collect any fee for the unacceptable brief.

    In so urging, I recognize that in many, many cases we have done exactly what my colleagues believe is appropriate in this case. In at least a handful of other cases, however, we have taken measured steps to ensure our rule is complied with and that the promise of effective assistance by appellate counsel is not a meaningless one. See, e.g., Ogden City v. Stites, 2002 UT App 357, 58 P.3d 865 (mem.) (discharging counsel and remanding for appointment of new counsel and filing of new brief where inadequate brief was stricken and counsel was given additional time to file proper brief but brief eventually filed was "wholly inadequate"); State v. Spinks, No. 20010985-CA (Utah Ct. App. May 7, 2002) (order striking brief) (striking brief and requiring proper brief to be filed within thirty days); State v. Steiger, No. 981895-CA (Utah Ct. App. Dec. 8, 2000) (order discharging counsel) (discharging counsel who failed to file amended or supplemental brief to cure deficiencies in brief filed by predecessor counsel and remanding "for the prompt appointment of new counsel for appellant, which counsel . . . shall be directed to review the record and confer with appellant and file a new brief on behalf of appellant").

    I recognize that consistently proceeding in the manner I propose will entail new burdens and changed expectations--but only in the short term. Once the word is out that this court will not abide a level of representation below that mandated by the United States Constitution and will require repeated rebriefing until counsel succeeds in filing a brief that is sufficient to be considered by the court--and that all of counsel's work on the inadequate briefs will be free of charge--I suspect we will no longer routinely see briefs in criminal cases that are not in compliance with the terms of our rules and the mandate of the Constitution.

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Gregory K. Orme, Judge