State of Utah, v. Skidmore

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Corine Skidmore,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000719-CA

F I L E D
February 22, 2002 2002 UT App 51 -----

First District, Logan Department
The Honorable Thomas Willmore

Attorneys:
D. Bruce Oliver, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeffrey T. Colemere, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Davis.

JACKSON, Presiding Judge:

Defendant challenges the trial court's denial of her motion to reduce her sentence from a first degree felony to a second degree felony pursuant to Utah Code Ann. § 76-3-402 (1999),(1) arguing her sentence was inherently unfair. Next, Defendant challenges her sentence and her conviction on the basis of ineffective assistance of counsel. We affirm.

We "'will set aside a sentence imposed by the trial court if the sentence represents an abuse of discretion[; or]' . . . when it is inherently unfair or clearly excessive." State v. Woodland, 945 P.2d 665, 671 (Utah 1997) (citations omitted).

Defendant argues that her sentence is inherently unfair because (1) the trial court's alleged failure to send a promised letter to the parole board violated her due process rights because the parole board was not provided with certain mitigating factors; (2) had Defendant resided other than within 1000 feet of a school, she would likely have only been convicted of a second degree felony; (3) she was found in possession of only 19.8 grams of methamphetamine; and (4) she was not found operating a clandestine lab and the officers did not "seize precursors from her home."

However, Defendant "'fails to cite relevant legal authority or provide any meaningful analysis regarding'" either her challenge to the trial court's denial of her section 76-3-402 motion or her challenge to the fairness of her sentence. In re S.A., 2001 UT App 308,¶23, 37 P.3d 1172 (quoting State v. Shepherd, 1999 UT App 305,¶27, 989 P.2d 503). "'[A] reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research.'" State v. Bishop, 753 P.2d 439, 450 (Utah 1988) (alteration in original) (citation omitted). Thus, we decline to address either of these arguments. See Utah R. App. P. 24; In re S.A., 2001 UT App 308 at ¶23.

Next, Defendant challenges her sentence and her conviction on the basis of ineffective assistance of counsel.

"Ineffective-assistance-of-counsel claims present a mixed question of law and fact." We review questions of law for correctness, granting no deference to the trial court's conclusions. However, when reviewing questions of fact, we defer to the trial court's findings and do not set them aside unless clearly erroneous.

State v. Visser, 2001 UT App 215,¶8, 31 P.3d 584 (citations omitted). "To prevail on a claim of ineffective assistance of counsel, defendant must establish [both prongs of the Strickland(2) test] (1) that [her] trial counsel's performance was 'deficient,' and (2) that [she] was 'prejudiced' by the ineffective assistance." Id. "If a defendant fails to establish either of the two parts of the Strickland test, counsel's assistance was constitutionally sufficient, and we need not address the other part of the test." State v. Medina-Juarez, 2001 UT 79,¶14, 34 P.3d 187.

Defendant fails to demonstrate any prejudice. She indicates a variety of instances in which her trial counsel assisted her in an allegedly ineffective manner, and suggests that "[b]ut for the errors of counsel, [Defendant] remains incarcerated at the Utah State Prison." However, "beyond [her] general and conclusory statements . . ., [she] has not proffered any record evidence which undermines our confidence in [her] conviction"--especially given the strength of the evidence against her--or in the fairness of her sentence. State v. Arguelles, 921 P.2d 439, 441 (Utah 1996); see also Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993). Thus, "[D]efendant's ineffectiveness claim[s] fail[] because [she] has not shown that [she] was prejudiced by trial counsel's performance." Medina-Juarez, 2001 UT 79 at ¶15.

Affirmed.(3)
 
 

______________________________
Norman H. Jackson,
Presiding Judge -----

WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
James Z. Davis, Judge

1. Because the trial court stated that it would "write a letter to the parole board and . . . point out to them certain things" and that it would "encourage them to look at various programs that may be available as far as an early release into a halfway house [or] treatment center," Defendant attempts to re-characterize the trial court's denial of her motion. She argues that the trial court committed reversible error by deferring her section 76-3-402 reduction motion to the Board of Pardons. However, Defendant mischaracterizes the trial court's ruling. The trial court clearly denied her motion when it sentenced her to five years to life in the Utah State Prison. Indeed, Defendant states in her opening brief that "the court was asked again about a reduction and the court denied the same." Thus, Defendant's challenge on appeal is to the trial court's denial of her section 76-3-402 motion.

2. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

3. In light of this decision, we also deny Defendant's motion to reconsider our January 16, 2002 order denying her Rule 23B motion to remand.