Tippett v. Vanderveur

----ooOoo----

Wayne S. Tippett,
Plaintiff and Appellant,

v.

Fred Vanderveur,
Defendant and Appellee.

MEMORANDUM DECISION
(Not for Official Publication)

Case No. 990178-CA

F I L E D
May 18, 2000
  2000 UT App 147 -----

Eighth District, Vernal Department
The Honorable John R. Anderson

Attorneys:
Julie George, Salt Lake City, for Appellant
Jan Graham and Scott Keith Wilson, Salt Lake City, for Appellee

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Before Judges Bench, Billings, and Orme.

BILLINGS, Judge:

Wayne S. Tippett appeals the trial court's denial of his petition for post-conviction relief. We affirm.

To prevail on a claim of ineffective assistance of counsel, Tippett "must show that his counsel's representation fell below an objective standard of reasonable conduct" and that he was prejudiced thereby. Bruner v. Carver, 920 P.2d 1153, 1157 (Utah Ct. App. 1996) (citations omitted).(1)

The trial court, after an evidentiary hearing, concluded that Tippett's appellate counsel did not labor under a conflict of interest. Supporting that conclusion, the trial court found that counsel communicated regularly and effectively with Tippett, and that their communications were commensurate with those required of counsel practicing in the area of criminal appeals. The trial court further found that there was no evidence to sustain a finding of conflict of interest apart from counsel's statement that the trip from his office in Vernal to the prison in which Tippett was incarcerated was extremely long and somewhat burdensome. These findings support the conclusion that counsel did not labor under a conflict of interest, and Tippett does not attack these findings on appeal. Accordingly, we assume that the findings are adequately supported by evidence in the record, seeState v. Larsen, 828 P.2d 487, 490 (Utah Ct. App. 1992), and affirm the trial court on this issue.(2)

Tippett argues his appellate counsel was ineffective for failing to petition the court of appeals for a rehearing and for failing to inform Tippett when the court of appeals filed its memorandum decision disposing of his appeal. Tippett maintains he was prejudiced because he lost the opportunity to argue that, before entering his guilty plea, he was not informed that the firearm enhancement penalty could be imposed consecutively. However, Tippett was informed of the consecutive nature of the firearm enhancement when the sentencing court stated that a first degree felony "carries with it a firearm enhancement penalty of not less than one or up to five years on top of that." (Emphasis added.) Tippett therefore suffered no prejudice by not having the opportunity to make this argument on rehearing.

Tippett argues his appellate counsel was ineffective for failing to argue that the charging documents contain jurisdictional defects because they fail to allege specific facts and fail to identify known victims. Instead, counsel briefed the issue as one of notice. Tippett's jurisdictional argument is based on case law now superseded by statute. The jurisdictional requirement that charging documents include the names of victims, if known, was statutory in origin. Compare Utah Code Ann. § 105-11-1 (1943) (requiring that victim be named if known) and State v. Topham, 41 Utah 39, 123 P. 888, 889 (1912) (requiring that information or indictment contain "certain or specific" averments of fact) with Utah R. Crim. P. 4 ("Such things as time, place, means, intent, manner, value and ownership need not be alleged unless necessary to charge the offense.") and State v. Bell, 770 P.2d 100, 104-05 (Utah 1988) ("[A]n information or indictment is legally sufficient even if it consists of nothing more than an extremely summary statement of the charge that would not provide the accused with sufficient particulars to prepare an adequate defense."). Accordingly, we cannot say that counsel's tactical decision to argue that the charging documents failed to provide notice fell below an objective standard of reasonable conduct for appellate counsel.

Tippett argues that counsel's advocacy was ineffective because counsel did not raise and brief all nonfrivolous issues on appeal. The issues that Tippett claims were inadequately presented on appeal all relate to the trial court's compliance with Rule 11 of the Utah Rules of Criminal Procedure. Tippett argues the trial court failed to establish the factual basis required to accept his guilty plea and incorrectly informed him of the minimum and maximum sentences under his plea. However, these issues were raised by counsel in Tippett's revised Brief of Appellant. This court considered Tippett's arguments, decided in favor of Tippett on one issue, and concluded that Tippett's other assignments of error lacked merit. See State v. Tippett, No. 950280-CA (Utah Ct. App. Oct. 3, 1996). For the foregoing reasons, we cannot say that Tippett's appellate counsel was ineffective. We therefore affirm.(3)
 
 
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge

1. Tippett filed his motion to withdraw his guilty plea pro se, then sought appointment of counsel on appeal. The supreme court remanded to the trial court for a determination of whether Tippett was entitled to counsel, and the trial court appointed appellate counsel. As a threshold matter, the State argues that Tippett's ineffective assistance of counsel claim fails because Tippett had no constitutional right to counsel on a petition for post-conviction relief, and therefore had no right to counsel on appeal. However, Tippett's motion was a motion to withdraw his guilty plea and the trial court appointed counsel on appeal. The record before this court does not reveal the grounds on which the trial court based its decision to appoint counsel; we therefore lack the information required to address the State's argument. In any event, we need not reach this constitutional issue because we conclude that the representation Tippett received on appeal met the standard for effective assistance of counsel.

2. Even if we were to consider the merits of Tippett's claim, we would affirm. Tippett makes a number of factual assertions in his brief, arguing that Williams "virtually ignored" his case spending "the vast majority" of his time on his private clients. Even assuming that evidence in the record supports these assertions of fact--and we do not think that it does--they are contrary to the trial court's findings. Likewise, Tippett's assertion that Williams's overall performance on appeal was "poor" is refuted by the fact that Williams prevailed on Tippett's behalf before this court, obtaining a reduction in Tippett's sentence.

3. We commend counsel for Tippett for her professional and exhaustive briefing and argument in this matter.