State of Utah v. Hammond

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Brad Hammond,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010915-CA

F I L E D
October 3, 2002 2002 UT App 316 -----

Third District, Tooele Department
The Honorable David S. Young

Attorneys:
Julie George, Salt Lake City, for Appellant
Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee -----

Before Judges Bench, Greenwood, and Thorne.

BENCH, Judge:

"A sentence will not be overturned on appeal unless the trial court has abused its discretion, failed to consider all legally relevant factors, or imposed a sentence that exceeds legally prescribed limits." State v. Nuttall, 861 P.2d 454, 456 (Utah Ct. App. 1993). We "find abuse only if it can be said that no reasonable [person] would take the view adopted by the trial court." State v. Gerrard, 584 P.2d 885, 887 (Utah 1978).

Defendant argues that the trial court abused its discretion by imposing consecutive sentences. Defendant claims the trial court "punished" him for refusing to participate in a diagnostic evaluation and that the trial court failed to consider relevant factors that may have led to concurrent sentences instead of consecutive sentences. We disagree.

Our review of the record indicates that the trial court considered and weighed relevant factors in imposing consecutive sentences. The trial court explicitly stated that it had reviewed the presentence investigation report, which contained Defendant's history and rehabilitative recommendations, prior to sentencing. Furthermore, the trial court specifically noted reasons why consecutive sentences were appropriate at the subsequent clarification hearing held at Defendant's request. The trial court did not abuse its discretion by ordering Defendant to serve consecutive sentences. Such sentences are within legally prescribed limits and a "reasonable [person] . . . [could] take the view adopted by the trial court." Id.

Defendant next argues that his trial counsel was ineffective for failing to raise mitigating factors, argue for alternatives to consecutive sentences, and argue for concurrent sentences. "To prevail on a claim of ineffective assistance of counsel, [Defendant] must show that (1) trial counsel's performance was objectively deficient and (2) there exists a reasonable probability that absent the deficient conduct, the outcome would likely have been more favorable to [Defendant]." State v. Mecham, 2000 UT App 247,¶21, 9 P.3d 777.

During sentencing, the court ordered Defendant to undergo a diagnostic evaluation. Defendant refused and insisted on being sentenced immediately. The court followed Defendant's request by ordering consecutive sentences. Defendant, by his own affirmative action, precluded access to information that he now argues his attorney failed to present to the trial court. Such a failure resulted from Defendant's strategy and does not indicate ineffectiveness of counsel. See Parson v. Barnes, 871 P.2d 516, 524 (Utah 1994) ("[W]henever there is 'a legitimate exercise of professional judgment in the choice of trial strategy, the fact that it did not produce the expected result does not constitute ineffectiveness of counsel.'" (Citation omitted.)). Therefore, Defendant's ineffective assistance of counsel claim fails.

Accordingly, we conclude that the trial court did not abuse its discretion in sentencing Defendant. We affirm.
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 

______________________________
Pamela T. Greenwood, Judge
 
 

______________________________
William A. Thorne Jr., Judge