State of Utah, v. Moreno-Montano

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State of Utah, v. Moreno-Montano IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Marcos Moreno-Montano,
Defendant and Appellant..

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010500-CA

F I L E D
May 9, 2002 2002 UT App 152 -----


Third District, Salt Lake Department
The Honorable Roger A. Livingston

Attorneys:
Catherine E. Lilly and John D. O'Connell Jr., Salt Lake City, for Appellant
Mark L. Shurtleff and Christine Soltis, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Orme.

DAVIS, Judge:

In order to prevail on his claim that the trial court committed reversible error in failing to strike juror 13 for cause, Defendant must demonstrate prejudice. See State v. Wach, 2001 UT 35,¶24, 24 P.3d 948 (citing State v. Menzies, 889 P.2d 393 (Utah 1994)). Even if the trial court erred in refusing to strike juror 13 for cause, Defendant must "show that a member of the actual jury that sat was partial or incompetent." Id.

Defendant claims he was prejudiced because he had to use a peremptory challenge to remove juror 13, and therefore he was unable to remove juror 10. On appeal, Defendant argues juror 10 should have been struck for cause and that, as a result of juror 10 sitting on the jury that convicted him, he is entitled to a new trial. Defendant's argument fails because he not only failed to challenge juror 10 for cause, he conceded that juror 10 was not "up to the level of challenge for cause." Not only has Defendant failed to carry his burden under Wach to demonstrate that juror 10 was "partial or incompetent," id., he conceded at trial that the very member of the jury he now challenges was fit to serve on the panel. Thus, even if it was error for the trial court to refuse to remove juror 13 for cause, and even if Defendant did not waive this issue by failing to challenge juror 10 for cause, Defendant has failed to satisfy the prejudice prong of the Wach test. See id. at ¶¶36-43.

Although Defendant states in his brief that he was sentenced to consecutive prison terms, the State points out that while the judgment reflects consecutive sentences, the transcript from the sentencing hearing and the pre-sentence investigation report both indicate concurrent sentences were intended. The State concedes that, in the event of an affirmance, "the case should be remanded to the trial court for clarification of the discrepancy." Although the default position is that sentences run concurrently, trial courts retain the discretion to impose consecutive sentences in appropriate circumstances. See Utah Code Ann. § 76-3-401(1) (1999). Therefore, we remand to the trial court for resolution of the sentencing issue; we otherwise affirm.
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Gregory K. Orme, Judge

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