State of Utah v. Ray

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Jack Leland Ray,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20001027-CA

F I L E D
December 5, 2002 2002 UT App 408 -----

Fifth District, St. George Department
The Honorable James L. Shumate

Attorneys:
Ricky D. Bonewell, St. George, for Appellant
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee -----

Before Judges Davis, Greenwood, and Orme.

DAVIS, Judge:

Even if we had jurisdiction to decide the issue, see State v. Reyes, 2002 UT 13,¶3, 40 P.3d 630, Appellant Jack Leland Ray's claim that the trial court failed to strictly comply with rule 11 of the Utah Rules of Criminal Procedure would fail. "Strict compliance . . . does not mandate a particular script or rote recitation of the rights listed" and "does not require a specific method of communicating the rights enumerated by rule 11." State v. Visser, 2000 UT 88,¶¶11, 13, 22 P.3d 1242. We have previously held that "the trial court is not required to cover every element of [r]ule 11 during the colloquy so long as the record reflects that the defendant was made aware of every right." State v. Tarnawiecki, 2000 UT App 186,¶8, 5 P.3d 1222. Thus, numerous methods of communication can be used to satisfy rule 11. See Visser, 2000 UT 88 at ¶13; see also James v. Galetka, 965 P.2d 567, 573 (Utah Ct. App. 1998) ("A written affidavit may be used by the court to satisfy the [r]ule 11 requirements for taking a guilty plea."); State v. Penman, 964 P.2d 1157, 1160 (Utah Ct. App. 1998) (noting that compliance may be satisfied through multiple means reflected in the record, including contents of a written affidavit).

Ray concedes that information concerning his right to appeal was included in the plea affidavit. Ray placed his initials next to the pertinent paragraph, which was included in the plea affidavit for each case, as well as signed the affidavit. In addition, the trial court informed Ray that he was giving up "all those rights that have been set forth on the record and in the plea agreements." Also, the trial court asked whether there was any reason not to accept the pleas in each of Ray's cases. Ray responded, "No, Your Honor." Therefore, Ray was sufficiently apprised of his limited right to appeal in accordance with rule 11(e). See Utah R. Crim. P. 11(e)(8).

Ray next argues that his due process rights under the Utah Constitution were violated because he was not provided the opportunity to present argument in support of his motions to withdraw the no contest pleas. Ray's brief on this issue does not satisfy the requirements of rule 24(a)(9) of the Utah Rules of Appellate Procedure and we could forego reaching the merits of this issue on that basis. See State v. Thomas, 961 P.2d 299, 305 (Utah 1998). However, we readily conclude that no due process violation occurred. Ray does not explain why not having an opportunity to argue the motion to withdraw his pleas, whether or not timely filed, violates his due process guarantees, nor does he challenge as unconstitutional the existing thirty-day limitation for filing a request to withdraw a plea of no contest as provided in Utah Code Ann. § 77-13-6(2)(b) (1999) and its case law interpretations. Furthermore, because the motions were untimely at the time of sentencing,(1) as well as at the time of "reinstatement," Ray cannot identify any error on behalf of the trial court that would have interfered with his due process rights. Therefore, his claim fails.

Next, Ray contends that he was denied the effective assistance of counsel on the basis of (1) his defense attorney failing to waive a possible conflict of interest in open court, and (2) the level of animosity between Ray and his attorney.(2) To succeed on an ineffective assistance of counsel claim, a defendant "must show that counsel's performance was deficient" and that "the deficient performance prejudiced the defense" in that the result of the proceedings would have been different but for counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984).

First, Ray does not identify a cognizable conflict of interest that either affected his counsel's performance or affected the outcome of the proceedings. He merely asserts that a potential conflict existed because trial counsel represented his sister in an unrelated matter in juvenile court. To succeed on an ineffective assistance of counsel claim as a result of a conflict of interest, a defendant "must show that 'an actual conflict of interest adversely affected his lawyer's performance.'" State v. Taylor, 947 P.2d 681, 686 (Utah 1997) (emphasis added) (citation omitted). "[H]ypothetical or speculative conflicts will not suffice to establish a violation." State v. Humphrey, 793 P.2d 918, 923 (Utah Ct. App. 1990).

Ray does not provide any evidence that an actual conflict existed, and we are left to speculate as to whether a conflict is, in fact, present. Thus, we determine trial counsel was not ineffective.

Second, Ray has not demonstrated that animosity between Ray and his counsel affected his counsel's performance or prejudiced his defense. "The fact that a defendant does not get along with his attorney does not, standing alone, establish a denial of the effective assistance of counsel." Gardner v. Holden, 888 P.2d 608, 622 (Utah 1994).

Ray again relies on speculation in asserting that his attorney refused to do what was asked of him. He fails to specify any evidence in the record showing that any level of animosity between Ray and his counsel affected counsel's performance. In fact, at sentencing, the trial court asked Ray about his dissatisfaction with counsel, and Ray responded that any difficulties had been resolved. Ray has not shown that trial counsel's performance was deficient or that his defense was prejudiced.

Accordingly, we affirm.
 
 

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

WE CONCUR:
 
 

______________________________
Pamela T. Greenwood, Judge
 
 

______________________________
Gregory K. Orme, Judge

1. According to the law in effect at the time of the entry of Ray's pleas of no contest on May 17, 2000, as well as at the time of sentencing on October 25, 2000, the thirty-day limitation for withdrawing a plea ran from the date of the plea colloquy. See State v. Price, 837 P.2d 578, 582 (Utah Ct. App. 1992), overruled in part by State v. Ostler, 2001 UT 68, 31 P.3d 528.

2. Additional grounds are asserted in correspondence from Ray, but our review is limited to issues which have been properly briefed. See Utah R. App. P. 24(a)(9); State v. Dunn, 850 P.2d 1201, 1220 n.17 (Utah 1993) (considering issue waived if not raised in briefs to the court). In addition, this court received a motion for new counsel from Ray on November 18, 2002. Because the substantive conclusions in our decision are unaffected by Ray's motion, consideration of the motion is not necessary. Moreover, Ray fails to specify in his motion or in previous letters to this court how his appellate counsel has prejudiced his appeal. Therefore, the motion is denied.