State of Utah, v. Stanley

State of Utah,
Plaintiff and Appellee,

v.

Patrick Stanley,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981126-CA

F I L E D
(February 25, 1999)

1999 UT App 057 -----

Fourth District, Provo Department
The Honorable Lynn W. Davis

Attorneys:
Margaret P. Lindsay, Salt Lake City, for Appellant
Jan Graham and Christine F. Soltis, Salt Lake City,for Appellee

-----

Before Judges Bench, Billings, and Orme.

PER CURIAM:

This appeal is before the court on a motion for remand pursuant to Utah R. App. P. 23B.

Appellant Patrick Stanley was convicted by a jury of Distribution of Methamphetamine in a Drug-free Zone and Possession/Use of Methamphetamine in a Drug-free Zone. Utah R. App. P. 23B allows a party to seek a remand of a criminal case "for entry of findings of fact necessary for the appellate court's determination of a claim of ineffective assistance of counsel." "The motion shall be available only upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective." Utah R. App. P. 23B(a). In addition, "[t]he motion shall include or be accompanied by affidavits alleging facts not fully appearing in the record on appeal that show the claimed deficient performance of the attorney" and "also allege facts that show the claimed prejudice suffered by the appellant as a result of the claimed deficient performance." Utah R. App. P. 23B(b). In order to obtain a remand under Rule 23B, Stanley must allege specific facts that show both the claimed deficient performance and the prejudice resulting therefrom. See State v. Garrett, 849 P.2d 578, 581 (Utah Ct. App. 1993), cert. denied, 860 P.2d 943 (Utah 1993).

Stanley claims his counsel failed to measure the actual distance between the motel where the buy occurred and the high school and McDonald's playground. He attests that after trial, a friend measured the distance and informed him that it was less than the 1,000 feet required to establish the motel's location in a drug-free zone. He contends he was prejudiced because his conviction would not have been enhanced if counsel had challenged testimony that the motel was located in a drug-free zone. To demonstrate defense counsel's failure to challenge the testimony was deficient performance, Stanley must allege nonspeculative facts that, if proven, would show testimony about the location of the motel in a drug-free zone was erroneous. Instead, he alleges only that an unidentified person, using an unspecified method, measured the distance differently. In State v. Vigh, 871 P.2d 1030 (Utah Ct. App. 1994), this court stated the proper measurement under the statute is not the most "direct non-trespassory pedestrian route," but is a "straight line" measured as the "crow flies." Id. at 1035. In the absence of an allegation of specific, nonspeculative facts to be proven on remand that would demonstrate the motel was not located in a drug-free zone, Stanley is not entitled to a remand on this claim.

Stanley also claims his trial counsel was ineffective in failing to adequately explore the criminal history of the informant. The transcript reflects that counsel examined the informant outside the presence of the jury and obtained a ruling on the admissibility of this evidence. The ruling precluded examination about the offenses, but allowed examination about the witness's erroneous statement that she had not been convicted of a misdemeanor. The record establishes the steps defense counsel took to determine the witness's criminal history and obtain a ruling on admissibility. Stanley has not alleged facts demonstrating any further criminal history, except an unsupported allegation that she "had numerous criminal convictions." Accordingly, Stanley has not alleged sufficient nonspeculative facts to support a remand under Rule 23B.

Stanley next claims the officer who testified at trial was convicted of theft between the time of Stanley's conviction and his sentencing. The State demonstrates this claim is factually incorrect. The charge and conviction occurred several months after Stanley's sentencing. Accordingly, trial counsel could not have made a timely motion for new trial on that basis.

Based upon the foregoing, the motion for temporary remand pursuant to Utah R. App. P. 23B is denied.
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Judith M. Billings, Judge
 
 

______________________________
Gregory K. Orme, Judge