State v. Timsanico

State v. Timsanico

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

Gerald Timsanico,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020969-CA
 

F I L E D
(April 7, 2005)
 

2005 UT App 158

 

-----

First District, Brigham City Department

The Honorable Ben H. Hadfield

Attorneys: Justin C. Bond, Brigham City, for Appellant

Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, and Stephen R. Hadfield, Brigham City, for Appellee

-----

Before Judges Billings, Bench, and Orme.

PER CURIAM:

    Gerald Timsanico appeals his convictions of rape of a child and aggravated sexual abuse of a child. We affirm.

    Timsanico argues that his trial counsel rendered ineffective assistance. To demonstrate ineffective assistance of counsel

a defendant must (i) identify specific acts or omissions by counsel that fall below the standard of reasonable professional assistance when considered at the time of the act or omission and under all the attendant circumstances, and (ii) demonstrate that counsel's error prejudiced the defendant, i.e., that but for the error, there is a reasonable probability that the verdict would have been more favorable to the defendant.

State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993); see also Strickland v. Washington, 466 U.S. 668, 687 (1984).

    Regarding Timsanico's argument that trial counsel failed to provide an adequate defense, Timsanico has provided no record evidence to support the argument that an expert witness would have testified that Timsanico was impotent, or that the witness would have been available. "Where the record appears inadequate in any fashion, ambiguities or deficiencies resulting therefrom simply will be construed in favor of a finding that counsel performed effectively." State v. Litherland, 2000 UT 76,¶17, 12 P.3d 92. Rather than rely on evidence of record, Timsanico's claims regarding ineffectiveness rest on mere speculation. "On many occasions, this court has reiterated that proof of ineffective assistance of counsel cannot be a speculative matter but must be a demonstrable reality." Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993). Therefore, Timsanico's argument fails.

    In addition, Timsanico fails to "demonstrate that counsel's error prejudiced [him]." Dunn, 850 P.2d at 1225. To the contrary, Timsanico argues:

[B]ut for the deficient performance, the outcome of the trial may have been different, it is very difficult to argue what the impact may or may not have been due to the fact the evidence was never investigated and there is no way to determine its relevance.

Aside from these extremely general and conclusory statements, Timsanico "has not proffered any record evidence which undermines our confidence in [his] conviction." State v. Arguelles, 921 P.2d 439, 441 (Utah 1996); see also Fernandez, 870 P.2d at 877. There is no showing how, "but for the error, there [would be] a reasonable probability that the verdict would have been more favorable to the defendant." Dunn, 850 P.2d at 1225. Rather, Timsanico asks this court to overturn a jury decision based upon evidence that may not exist, and "asks this court to speculate on the effect of its absence from his trial, which we cannot do." Fernandez, 870 P.2d at 877; see also Arguelles, 921 P.2d at 441 (stating speculative claims "cannot substitute for proof of prejudice"). Thus, Timsanico's ineffectiveness claim also fails "because he has not shown that he was prejudiced by trial counsel's performance." State v. Medina Juarez, 2001 UT 79,¶15, 34 P.3d 187.

    Respecting Timsanico's hearsay argument, he does not specifically set forth the statements at issue and provides no relevant facts for review. Moreover, Timsanico cites almost no legal authority and provides no meaningful analysis. Briefs that are not in compliance with rule 24 of the Utah Rules of Appellate Procedure 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. Because this argument is inadequately briefed and fails to follow the requirements of rule 24(a)(9) of the Utah Rules of Appellate Procedure, we cannot consider it. See State v. Shepherd, 1999 UT App 305,¶27, 989 P.2d 503 ("Rule 24(a)(9) requires not just bald citation to authority but development of that authority and reasoned analysis based on that authority."); see also State v. Thomas, 961 P.2d 299, 305 (Utah 1998) ("This court is not a depository in which the appealing party may dump the burden of argument and research.").

    We conclude that Timsanico's ineffective assistance of counsel claim fails. Accordingly, the district court's judgment is affirmed.

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Russell W. Bench,

Associate Presiding Judge

-----

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, and having once already stricken Defendant's brief and permitted counsel a second chance to file an adequate brief, it seems to me that we should strike the brief and remand for the appointment of new counsel. See 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"). Of course, we should simultaneously require that current counsel not charge or collect any fee for the unacceptable brief.

______________________________

Gregory K. Orme, Judge