State v. Wyman

2013 UT App 93
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

DUANE KYLE WYMAN,

Defendant and Appellant.

Memorandum Decision
No. 20120293‐CA
Filed April 18, 2013

Third District, Tooele Department
The Honorable Robert Adkins
No. 111300137

John Pace, Attorney for Appellant
John E. Swallow and Mark C. Field, Attorneys for Appellee

JUDGE CAROLYN B. MCHUGH authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME
and MICHELE M. CHRISTIANSEN concurred.

McHUGH, Judge:

¶1 Duane Kyle Wyman appeals from his convictions of theft,
a third degree felony, see Utah Code Ann. § 76‐6‐404 (LexisNexis
2012) (elements); id. § 76‐6‐412(b) (penalties), and criminal mischief,
a third degree felony, see id. § 76‐6‐106(2)(c).1 We affirm.

1. Because there have been no substantive changes to the relevant
sections of the Utah Code, we cite the current version of the code
for the reader’s convenience.
State v. Wyman

¶2 In 2011, Wyman took several hundred pounds of brass
sprinkler heads from the irrigation equipment on a number of
alfalfa farms and sold them to a recycling company for scrap value.
On March 17, 2011, the State filed an information against Wyman
(the First Case), charging him with theft and criminal mischief.
Wyman and the State later reached a plea agreement in which
Wyman agreed to plead guilty to theft as a third degree felony and
to pay restitution. In exchange, the State agreed to dismiss the
criminal mischief charge and to recommend that Wyman serve no
jail time. During the change of plea hearing on May 10, 2011, the
district court explained to Wyman that a third degree felony is
punishable by a fine and an indeterminate prison term of zero to
five years. The district court then ordered Adult Probation and
Parole (AP&P) to prepare a presentence report. In the resulting
report, AP&P recommended, among other things, that Wyman pay
restitution and be placed on probation for a period of thirty‐six
months.

¶3 While awaiting sentencing in the First Case, Wyman used an
ax to disconnect a neighbor’s sprinkler pipe and then removed the
attached sprinkler heads. As a result, on July 11, 2011, the State
filed two additional charges of criminal mischief and theft against
Wyman (the Second Case). Later, the State agreed to dismiss the
theft charge in the Second Case in exchange for Wyman’s guilty
plea to criminal mischief. The district court entered the plea and
advised Wyman that a third degree felony is punishable by a fine
and incarceration for an indeterminate term of zero to five years.
In addition, the district court asked Wyman whether he understood
that “because there are two cases, that the [c]ourt can impose
consecutive sentences and if the [c]ourt did that, the maximum
period of time that you could be required to serve at the Utah State
Prison on these two cases would be ten years[?]” Wyman
responded affirmatively. The district court then scheduled a
sentencing hearing and ordered another presentence report. In that
second report, AP&P recommended that Wyman be committed to
the Utah State Prison.

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State v. Wyman

¶4 At the sentencing hearing for both cases, a Tooele County
attorney (Prosecutor), who had not appeared at prior hearings,
represented the State.2 Prosecutor requested that Wyman be sent
directly to prison, and he urged the court to consider consecutive
sentences. The district court sentenced Wyman to prison for an
indeterminate term of zero to five years for theft in the First Case,
and imposed an identical sentence for criminal mischief in the
Second Case. The court also ordered that the two sentences would
run consecutively. Wyman filed a timely appeal.

¶5 Wyman argues that he received constitutionally deficient
assistance of counsel at his sentencing hearing when his defense
counsel failed to object to Prosecutor’s participation at the
sentencing hearing because Prosecutor and his father are alfalfa
farmers and members of the community harmed by Wyman’s acts.
“An ineffective assistance of counsel claim raised for the first time
on appeal presents a question of law,” which we review for
correctness. State v. Ott, 2010 UT 1, ¶ 16, 247 P.3d 344 (citation and
internal quotation marks omitted).

¶6 The Sixth Amendment to the United States Constitution
guarantees a criminal defendant’s right to effective assistance of
counsel. See Strickland v. Washington, 466 U.S. 668, 684–86 (1984). In
order to show that he was deprived of his right to effective
assistance of counsel, Wyman must establish “(1) ‘that counsel’s
performance was so deficient as to fall below an objective standard
of reasonableness’ and (2) ‘that but for counsel’s deficient
performance there is a reasonable probability that the outcome of
the trial would have been different.’” See State v. King, 2012 UT App
203, ¶ 13, 283 P.3d 980 (quoting State v. Hales, 2007 UT 14, ¶ 68, 152
P.3d 321). “Failure to satisfy either component of this test is fatal to

2. There is some indication in the record that Prosecutor was
involved in these cases before sentencing because defense counsel
mentioned him by first name at the change of plea hearing in the
First Case.

20120293‐CA 3 2013 UT App 93
State v. Wyman

an ineffective assistance of counsel claim.” Id. (citation and internal
quotation marks omitted). Defense counsel’s performance is
“presumed to be part of a sound trial strategy . . . within the wide
range of reasonable professional assistance.” Id. ¶ 14 (omission in
original) (citation and internal quotation marks omitted). This
presumption of effective assistance of counsel “may be overcome
only if there is a lack of any conceivable tactical basis for counsel’s
actions.” Id. (citation and internal quotation marks omitted).

¶7 Wyman contends that his defense counsel was ineffective
because he should have objected to Prosecutor’s participation at the
sentencing hearing on the ground that Prosecutor had a conflict of
interest. Wyman claims that because Prosecutor and his father are
alfalfa farmers and members of the community harmed by
Wyman’s acts, Prosecutor should not have represented the State in
this matter. Wyman further claims that Prosecutor advocated in
favor of consecutive sentences due to his personal interests.

¶8 We first consider whether an actual conflict of interest
existed that might give rise to a valid objection to Prosecutor’s
participation in the sentencing hearing. Wyman’s conflict of
interest claim focuses on two statements Prosecutor made during
the sentencing hearing. The portion of the relevant colloquy is as
follows:

[PROSECUTOR]: The restitution that’s been
requested compensates them for the parts to put the
sprinklers back together. What it doesn’t begin to
compensate them for is the inconvenience of having
the stuff broken and not working when it should be
working. The sun only shines so many days, we only
have so many growing days in a season here in the State
of Utah . . . .

....

20120293‐CA 4 2013 UT App 93
State v. Wyman

THE COURT: [Prosecutor], the restitution that’s set
out in the pre‐sentence report on [p]age 2, does that
include all of the restitution that is owed on the
second case . . . ?

[PROSECUTOR]: Yes. And the new case, your
Honor, actually, the—owner went and had—had a
friend do the repairs and I think he took—he took
from existing parts that he had and he declined to
submit any information as to what he thinks he
should be compensated. He said it—it’s hard to
figure out the value, I—I fixed it with stuff that I had.
So he hasn’t submitted anything. So what you’ve got,
your Honor, I believe to be complete.

(Emphasis added.) In Wyman’s view, Prosecutor’s use of the
pronoun “we” in explaining that “we only have so many growing
days in a season here” reveals that Prosecutor is an alfalfa farmer,3

3. Wyman also asks us to take judicial notice pursuant to rule 201
of the Utah Rules of Evidence of the fact that Prosecutor’s father is
president of a statewide organization of farmers and ranchers and
that the father is a cattle and alfalfa producer. We decline to do so.
See Finlayson v. Finlayson, 874 P.2d 843, 847 (Utah Ct. App. 1994)
(“Judicial notice is taken on appeal only where there is a
compelling countervailing principle to be served. . . . Further,
mandatory judicial notice is limited to the trial court.” (citations
and internal quotation marks omitted)). But see Utah R. Evid. 201
advisory committee’s note (“Subdivision (c) is discretionary, but
subdivision (d) requires the court to take judicial notice if
requested by a party and if supplied with the necessary
information to make a determination of whether to take judicial
notice.”). Even if we did take judicial notice of this fact, it would
not alter our analysis because it would not establish that Prosecutor
could not represent the State in this matter. See State v. Balfour, 2008
(continued...)

20120293‐CA 5 2013 UT App 93
State v. Wyman

and that Prosecutor considered himself among the injured farmers.
Wyman also interprets Prosecutor’s statement that “I fixed it with
stuff that I had” as an admission that Prosecutor himself helped the
farmer whose sprinkler heads were stolen in the second incident,
thereby making Prosecutor a victim who suffered a direct loss
caused by Wyman’s actions. The State argues that Wyman’s
assertion of a conflict is not supported by the record.

¶9 We agree with the State that there is no direct evidence that
supports Wyman’s speculation that Prosecutor is an alfalfa farmer.
Moreover, such an inference cannot be supported by Wyman’s
strained interpretation of these passages of the transcript. With
respect to Prosecutor’s first statement, the more appropriate
interpretation is that Prosecutor was speaking in generalities and
used the pronoun “we” to refer to all citizens of Utah, not
specifically to himself as an alfalfa farmer. In the second quote, it
is clear from reading Prosecutor’s statements as a whole that
Prosecutor was paraphrasing what the injured farmer had told him
about the cost of repairs. Prosecutor begins his sentence with “he
said,” referring to the farmer, and then uses the pronoun “I” while
quoting the farmer. When read carefully, the statement does not
suggest that Prosecutor repaired the farmer’s irrigation system.
Instead, Prosecutor is simply repeating the farmer’s report that the
farmer fixed the damage to his own irrigation system.

¶10 Accordingly, there is no record evidence that Prosecutor had
a conflict of interest. As a result, defense counsel would have had
no reason to object to Prosecutor’s involvement in the sentencing

3. (...continued)
UT App 410, ¶ 33, 198 P.3d 471 (“In Utah, a conflict of interest
exists when counsel [may] . . . make choices advancing other
interests to the detriment of his client.” (alteration and omission in
original) (citation and internal quotation marks omitted)).
Prosecutor’s sentencing recommendations were not contrary to the
State’s interests.

20120293‐CA 6 2013 UT App 93
State v. Wyman

hearing. “[T]he failure of counsel to make motions or objections
which would be futile if raised does not constitute ineffective
assistance.” State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52 (alteration
in original) (citation and internal quotation marks omitted).
Likewise, defense counsel’s failure to make such an objection did
not fall below an acceptable level of performance. See State v. Kelley,
2000 UT 41, ¶ 26, 1 P.3d 546; Whittle, 1999 UT 96, ¶ 34.

¶11 Wyman also asserts that he was prejudiced by his attorney’s
failure to object to Prosecutor’s conflict of interest because the
district court imposed consecutive prison sentences only upon
Prosecutor’s urging.4 However, we have concluded that defense
counsel was not ineffective on this ground. Thus, we need not
address whether the outcome, i.e., the district court’s choice of
sentence, might have been different had defense counsel objected
to Prosecutor’s participation in the matter.5 See State v. King, 2012
UT App 203, ¶ 13, 283 P.3d 980 (noting that in order “[t]o prove a
claim of ineffective assistance, the defendant must show” both
defective performance and prejudice).

4. Wyman does not allege that the district court imposed an illegal
sentence on appeal.

5. Wyman asserts that Prosecutor sought “a sentence harsher than
that recommended by AP&P.” However, we agree with the State
that AP&P’s recommendations did not address whether the
sentences for the First Case and the Second Case should run
concurrently or consecutively. In addition, “[w]hile sentencing
courts take into account all the relevant circumstances, a trial court
is not bound by the sentencing recommendations of [AP&P] or by
the requests of the parties . . . . Moreover, the recommendations of
the prosecutor or any other party are not binding upon the court.”
State v. Moreau, 2011 UT App 109, ¶ 11, 255 P.3d 689 (second
alteration in original) (citation and internal quotation marks
omitted).

20120293‐CA 7 2013 UT App 93
State v. Wyman

¶12 Because no evidence indicates that an actual conflict of
interest existed, defense counsel did not perform deficiently when
he did not object to the participation of Prosecutor. Accordingly,
we reject Wyman’s claim of ineffective assistance of counsel.

¶13 Affirmed.

20120293‐CA 8 2013 UT App 93