State of Utah v. Barto

State v. Barto

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Benjamin Barto,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20010948-CA
 

F I L E D

(February 27, 2003)
 

2003 UT App 54

 

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Eighth District, Roosevelt Department

The Honorable A. Lynn Payne

Attorneys: Julie George, Salt Lake City, for Appellant

Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

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Before Judges Jackson, Greenwood, and Orme.

JACKSON, Presiding Judge:

Barto appeals from a conviction of aggravated assault, a second degree felony, in violation of Utah Code Ann. § 76-5-103 (1999). We affirm.

Barto argues ineffective assistance of counsel based on trial counsel's failure to exclude witnesses from the courtroom and to raise intoxication as a mitigating factor.(1) To establish ineffective assistance of counsel, a defendant must show that trial counsel "'rendered deficient performance [that] fell below an objective standard of reasonable professional judgment' and that 'counsel's performance prejudiced'" the defendant. State v. Maestas, 1999 UT 32,¶20, 984 P.2d 376 (citations omitted); see also Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). We review ineffective assistance of counsel claims raised for the first time on appeal as a matter of law. See Maestas, 1999 UT 32 at ¶20.

We cannot say Barto's trial counsel was ineffective for failing to exclude witnesses from the courtroom because Barto does not demonstrate deficient performance. Barto's trial counsel may well have made a strategic decision to permit the witnesses to stay. For instance, Barto's counsel knew that the prosecution's witnesses would testify first, and he might have felt that exposure to their stories would help the defense witnesses counter the evidence against Barto. See State v. Kingston, 2002 UT App 103,¶8, 46 P.3d 761 (stating '"if the challenged act or omission might be considered sound trial strategy, we will not find that it demonstrates inadequacy of counsel"' (citation omitted)).

Similarly, we cannot say Barto's trial counsel was ineffective for failing to raise intoxication as a mitigating factor. The defense of voluntary intoxication was inconsistent with Barto's testimony. Barto testified he accidentally released his beer glass when he turned to swing at someone grabbing his shoulder, not that he was too drunk to know what he was doing or that he acted recklessly or negligently. Accordingly, trial counsel did not perform deficiently by deciding to forego the defense. See Kingston, 2002 UT App 103 at ¶11 (concluding trial counsel's decision to forego a "factually unsupportable" defense did not amount to ineffective assistance of counsel).

Barto also argues the trial court abused its discretion at sentencing by finding him guilty of both second and third degree aggravated assault and then sentencing him for the second degree offense.(2) The imposition of a sentence is within the discretion of the trial court. See State v. Schweitzer, 943 P.2d 649, 651 (Utah Ct. App. 1997). We will reverse only if the sentence was imposed without regard to "legally relevant factors" or in an "inherently unfair" manner, or if the sentence was "clearly excessive" or exceeded the "limits prescribed by law." Id.

The trial court had discretion to convict Barto of the higher degree offense. See State v. Gibbons, 779 P.2d 1133, 1137 (Utah 1989) (affirming denial of defendant's motion to be sentenced a degree lower). Since Barto has not shown that the sentence imposed was beyond the limits prescribed by law, inherently unfair, clearly excessive, or otherwise imposed without consideration of all legally relevant factors, we find no abuse of discretion. See Schweitzer, 943 P.2d at 651.

Accordingly, we conclude that Barto's trial counsel was not ineffective as a matter of law and affirm the trial court's sentence.

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Norman H. Jackson,

Presiding Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge

1. Barto also argues ineffective assistance of counsel because his trial counsel did not seek a jury trial, provide the judge with a sentencing alternative other than prison, or subpoena additional witnesses. We decline to address the first two issues because Barto's brief cites no legal authority, statutes, or portions of the record, and therefore these issues are inadequately briefed. See Utah R. App. P. 24(a)(9); Smith v. Smith, 1999 UT App 370,¶8, 995 P.2d 14 (stating that "[a]n issue is inadequately briefed when 'the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court'" (citation omitted)). We decline to address the third issue because it is merely speculative. Nothing in the record identifies other witnesses who might have had favorable testimony to offer or what they might have said. See State v. Vessey, 967 P.2d 960, 965 n.5 (Utah Ct. App. 1998) (refusing to find ineffective assistance of counsel where defendant did not identify uncalled witnesses or identify specific testimony that might have helped his case).

2. In addition, Barto claims the evidence was insufficient to support a conviction for second degree felony assault. We decline to address this issue, however, because Barto did not properly marshal the evidence when he merely recounted his version of the offense. See West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991).