State of Utah v. Gallegos

----ooOoo----

State of Utah
Plaintiff and Appellee,

v.

Michael A. Gallegos,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981828-CA

F I L E D
August 19, 1999
  1999 UT App 242 -----

Second District, Ogden Department
The Honorable Stanton M. Taylor

Attorneys:
Maurice Richards, Ogden, for Appellant
Jan Graham and Christine Soltis, Salt Lake City, for Appellee

-----

Before Judges Billings, Davis, and Jackson.

PER CURIAM:

Gallegos pleaded guilty to four third degree felonies and to one class A misdemeanor in exchange for the dismissal of other charges against him. He now appeals his convictions and sentences.

Gallegos is correct in asserting that he was improperly charged and sentenced twice for the same offense in Second District Court case no. 981903560 and case no. 981903565. However, that error has been corrected. On February 8, 1999, the trial court dismissed case no. 981903565 after concluding it was duplicative of case no. 981903560.

Contrary to Gallegos's assertions, the evidence suggests that he was given the opportunity to review his presentence report. His original sentencing hearing was delayed at his counsel's request so that written objections to the original presentence report could be filed. The report was amended as a result of these objections. At sentencing, Gallegos's counsel discussed other claimed errors in the report with the trial judge. In doing so counsel indicated that he had thoroughly reviewed the report with Gallegos--"I've gone through it with him in detail." Moreover, Gallegos has not shown how any alleged error in the revised presentence report impacted his sentence. The trial court did not mention the report in sentencing Gallegos, sentenced Gallegos well within applicable guidelines, and sentenced Gallegos concurrently rather than consecutively.

Finally, the record does not support Gallegos's assertion that his counsel was ineffective. "[A]ppellate review of counsel's performance must be highly deferential; otherwise the 'distorting effects of hindsight' would produce too great a temptation for courts to second-guess trial counsel's performance on the basis of an inanimate record." State v. Tennyson, 850 P.2d 462, 466 (Utah Ct. App. 1993) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984)). We cannot conclude that "counsel's performance fell below an objective standard of reasonableness" or that but for counsel's performance, the result would have been different. Id. at 465. Counsel was involved in Gallegos's decision to plead guilty to some charges in exchange for the dismissal of others, and in the plea colloquy, Gallegos stated that his plea was voluntary and not the result of coercion by his attorney. The trial court concluded that Gallegos had "entered into the negotiation intelligently and upon advice of competent counsel." We are unable to find any evidence in the record to the contrary.

Accordingly, the trial court is affirmed.
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 

______________________________
James Z. Davis, Judge
 
 
 

______________________________
Norman H. Jackson, Judge