State v. Goodrich

2016 UT App 72

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ROBERT FRANK GOODRICH,
Appellant.

Opinion
No. 20140708-CA
Filed April 14, 2016

Second District Court, Farmington Department
The Honorable Robert J. Dale
No. 091701314

Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee

SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in
which JUDGES J. FREDERIC VOROS JR. and KATE A. TOOMEY
concurred.1

GREENWOOD, Senior Judge:

¶1 Defendant Robert Frank Goodrich appeals the district
court’s revocation of his probation and the reinstatement of his
original sentence, after he admitted to two probation violations.
His appeal rests on claims of ineffective assistance of counsel,
plain error by the district court, and cumulative error. We affirm.

1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
State v. Goodrich

BACKGROUND

¶2 Defendant pled guilty to two second-degree felony counts
of Sexual Abuse of a Child. See Utah Code Ann. § 76-5-404.1
(LexisNexis Supp. 2015).2 The district court sentenced him to two
consecutive indeterminate prison terms of one to fifteen years.
The district court suspended the prison terms and imposed a
365-day jail sentence with release to the Northern Utah
Community Correctional Center (NUCCC). Defendant was
placed on thirty-six months of probation, to be supervised by
Adult Probation and Parole (AP&P). After Defendant was
released from jail, and after he completed the NUCCC program,
he moved to Oregon for work. The Marion County Sheriff’s
Office in Salem, Oregon, supervised Defendant’s probation
there.

¶3 In March 2013, less than a year after Defendant moved to
Oregon, AP&P filed a probation violation report in Utah alleging
four violations. Defendant was prepared to admit to two of the
violations, which were originally described in the report as
‚possess*ing+ sexual stimulus material electronically on a laptop
in his possession‛ and leaving ‚the State of Oregon on two
occasions either by deviating from his travel permit or without
permission.‛ During the district court hearing in Utah on the
order to show cause, defense counsel requested that the first
allegation be amended to say that Defendant viewed, rather than
possessed, sexual stimulus material. He further requested that
the second allegation be amended to indicate that Defendant
‚was not truthful regarding leaving the State of Oregon.‛
Neither the State nor AP&P had any objections to the

2. ‚For ease of reference, we cite the current version of the
statute and note that there have been no alterations since
defendant’s conviction that would affect this appeal.‛ State v.
Roth, 2001 UT 103 ¶ 8 n.1, 37 P.3d 1099.

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State v. Goodrich

amendments; Defendant then admitted to the two amended
allegations.

¶4 Defendant told the district court, ‚I’d certainly love to
explain myself,‛ which the court allowed. He alleged that his
probation officer in Oregon ‚kept making just rude statements to
[him] . . . and . . . threatening *him+ each month.‛ Defendant
claimed that, after being denied his requests for a new probation
officer and to return to Utah, he decided his only option was to
pretend to violate probation. He explained, ‚And so I felt I was
backed into a corner, your Honor, and the only thing I could do
was just fabricate information that would then give me a
probation violation and get me back to Utah.‛

¶5 ‚*B+ased on *Defendant’s+ admitted probation violation
. . . and having looked carefully at [his] records and the
background and what[] occurred,‛ the district court
‚terminate*d+ *Defendant’s+ probation unsuccessfully.‛ AP&P
recommended that the district court impose Defendant’s original
prison sentence, and the court followed that recommendation.
Defendant now appeals.

ISSUES AND STANDARDS OF REVIEW

¶6 With the benefit of new counsel on appeal, Defendant
argues that his trial counsel3 ‚deprived [him] of his
constitutional right to the effective assistance of counsel in the
revocation proceedings . . . by failing to investigate and present
critical evidence rebutting and mitigating the probation violation
allegations.‛ Defendant also alleges that trial counsel was

3. Although there was no trial in this case, we use the term ‚trial
counsel‛ for simplicity throughout this opinion to refer to the
attorney who represented Defendant at the order to show cause
hearing and whose performance Defendant now contends was
constitutionally deficient.

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State v. Goodrich

ineffective when he violated the duty of loyalty. ‚A claim of
ineffective assistance of counsel, when raised on appeal for the
first time, presents a question of law.‛ State v. Legg, 2014 UT App
80, ¶ 9, 324 P.3d 656. ‚Questions of law are reviewed for
correctness.‛ State v. Petersen, 810 P.2d 421, 424 (Utah 1991).

¶7 Defendant also contends the district court failed to ensure
that he receive timely and adequate notice of, and an
opportunity to be heard on, the alleged probation violations.
Because this issue was not properly preserved for review on
appeal, Defendant raises this claim under the plain-error
doctrine, which requires him to establish that (1) an error exists,
(2) the error should have been obvious to the district court, and
(3) the error was harmful. See State v. Dunn, 850 P.2d 1201, 1208–
09 (Utah 1993).

¶8 Finally, Defendant claims that the cumulative effect of the
above alleged errors necessitates reversal. ‚Under the
cumulative error doctrine, we apply the standard of review
applicable to each underlying claim or error.‛ State v. Davis, 2013
UT App 228, ¶ 16, 311 P.3d 538 (citation and internal quotation
marks omitted). ‚*W+e will reverse only if the cumulative effect
of the several errors undermines our confidence . . . that a fair
trial was had.‛ Dunn, 850 P.2d at 1229 (omission in original)
(citation and internal quotation marks omitted).

ANALYSIS

I. Ineffective Assistance of Counsel

¶9 Defendant first alleges that trial counsel’s performance
was constitutionally deficient because he failed to investigate
and present mitigating evidence. ‚To succeed on his ineffective-
assistance claim, Defendant is required to prove ‘that counsel’s
representation fell below an objective standard of
reasonableness’ and ‘that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the

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State v. Goodrich

proceeding would have been different.’‛ State v. Potter, 2015 UT
App 257, ¶ 7, 361 P.3d 152 (quoting Strickland v. Washington, 466
U.S. 668, 687–88, 694 (1984)). ‚Because failure to establish either
prong of the test is fatal to an ineffective assistance of counsel
claim, we are free to address *Defendant’s+ claims under either
prong.‛ Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182. We
therefore first consider whether trial counsel’s alleged failure to
investigate prejudiced Defendant.

¶10 According to Defendant, trial counsel should have
obtained ‚a copy of the probation supervision documentation
from Oregon.‛ He claims that these documents demonstrate the
violation of his right to due process and that he did not violate
the terms of his probation.4 To succeed on this claim, Defendant
‚bears the burden of proving that counsel’s errors actually had
an adverse effect on the defense and that there is a reasonable
probability that, but for counsel’s . . . errors, the result of the
proceeding would have been different.‛ State v. Ott, 2010 UT 1,
¶ 40, 247 P.3d 344 (omission in original) (citation and internal
quotation marks omitted). This is a burden Defendant has not
successfully met.

¶11 Any error in trial counsel’s failure to obtain the Oregon
documents did not prejudice Defendant because he admitted to

4. Defendant has filed a rule 23B motion to supplement the
record on appeal with these documents. See Utah R. App. P. 23B.
Because we conclude that Defendant cannot show prejudice, see
infra ¶¶ 11–14, it is immaterial whether trial counsel performed
deficiently by not obtaining these documents. And because
having these documents as part of the record would therefore
not affect the outcome on appeal, we deny Defendant’s 23B
motion. See State v. Potter, 2015 UT App 257, ¶ 6 n.1, 361 P.3d 152
(denying a 23B motion where the defendant’s ‚ineffective-
assistance claim would fail for lack of prejudice, even assuming
defense counsel performed deficiently‛).

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State v. Goodrich

the violations that led to the probation revocation. Cf. State v.
Brady, 2013 UT App 102, ¶ 10, 300 P.3d 778 (rejecting a due
process challenge where the defendant had admitted to violating
probation). In Brady, we considered a due process challenge
where the defendant ‚admitted to violating his probation by
failing to pay anything toward the restitution, but described his
efforts to find a job and his overwhelming financial obligations
in an effort to mitigate the impact of his violation.‛ Id. ¶ 3. There,
we ‚fail*ed+ to see how this amounted to a violation of Brady’s
due process rights, especially where he admitted to violating his
probation and the trial court considered his mitigating
testimony.‛ Id. ¶ 10 (emphasis added); see also State v. Waterfield,
2011 UT App 27, ¶ 2, 248 P.3d 57 (‚Once Defendant admitted to
probation violations, the district court had discretion to restart
his probation[.]‛).

¶12 In the present case, the Oregon documents would not
have affected the outcome. If, as Defendant contends, the
documents would have established that he had fabricated the
probation violations, such an explanation was already before the
district court. Defendant began his statement to the court by
offering mitigating evidence: he graduated from the NUCCC,
‚completed ten months of after care,‛ and ‚completed 34
months of probation.‛5 He then explained the claimed

5. We briefly note that this approach appears to be a sound
strategy employed by trial counsel, which cuts against any
argument that trial counsel performed deficiently. It appears that
trial counsel planned to focus on mitigating evidence in helping
Defendant avoid probation revocation. And, when Defendant
began his statement to the court, this was also his focus. But
Defendant appears to have veered off topic by describing his
disagreements with the Oregon probation officer and the
‚decision *Defendant+ made that *he+ wasn’t going to complete
[his] probation with this probation officer*.+‛ Trial counsel then
tried to refocus the discussion on mitigating factors, such as the
(continued<)

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fabrication: ‚I felt I was backed into a corner, your Honor, and
the only thing I could do was just fabricate information that
would then give me a probation violation and get me back to
Utah.‛

¶13 Perhaps counterintuitively, if the Oregon documents had
indeed supported Defendant’s assertion that he had used the
probation violations as a way to return to Utah, this would have
reinforced the district court’s decision to revoke probation. In
announcing its order, the district court admonished,

The concerns I have is, these are serious matters.
You—you have been convicted of serious matters
and to indicate to the Court, for instance, that you
violated your probation intentionally so that you
could be here is not, as far as the Court is
concerned, mitigating in the least; in fact, it’s
aggravating.

Any Oregon documents supporting Defendant’s claim on
this point could not have benefited him. The district court
would have likely determined that, like his proffered
explanation of his conduct, such evidence demonstrated
aggravating circumstances.

(<continued)
fact that Defendant ‚did, in fact, complete the *sex offender+
program in May of last year and there [were] no significant
problems reported while he was at the [NUCCC] program; in
other words, he did well enough to complete the program and
did so . . . successfully. And there were no issues at all reported
while he was in Utah . . . .‛ This strategy of focusing on
mitigation regardless of what information might have been
available in the Oregon documents was sound and reasonable.
This alone allows us to conclude that trial counsel did not
perform deficiently by not obtaining documents from Oregon.

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State v. Goodrich

¶14 Finally, Defendant’s statement to the district court was
inherently inconsistent. He both explained why he should
receive leniency for violating probation and claimed that he did
not, in fact, violate the terms of his probation. This came after
Defendant’s admission: ‚With these changes [to the allegations],
I admit to them.‛ Thus, Defendant alone provided the district
court with confusing and contradictory information regarding
his actions. The Oregon documents might have supported one
part or another of Defendant’s statement, but they also
necessarily would have contradicted part of Defendant’s
statement. Furthermore, the court would still have had before it
the one most straightforward and uncomplicated piece of
evidence it received—Defendant’s admission. And it was this
admission that the court relied on in revoking probation. Indeed,
the district court explicitly concluded, ‚Mr. Goodrich, based on
your admitted probation violation . . . I am going to in fact,
terminate your probation unsuccessfully.‛ We therefore
conclude that the Oregon documents would not have changed
the outcome of the probation revocation proceedings and so, on
this point, Defendant’s ineffective-assistance claim fails.

¶15 Defendant’s second allegation—that he received
ineffective assistance when trial counsel violated the duty of
loyalty—is equally unsustainable. Quite simply, Defendant has
failed to establish ‚that defense counsel actually labored under a
conflict of interest.‛ See State v. Martinez, 2013 UT App 39, ¶ 29,
297 P.3d 653.

¶16 Defendant claims that trial counsel violated his duty of
loyalty in taking ‚a position directly contrary to Defendant’s
interest‛ by requesting amendments to the probation violation
allegations. See supra ¶ 3. It is true that, ‚*a+t a minimum, an
attorney’s duty of loyalty to his or her client requires the
attorney to refrain from acting as an advocate against the client.‛
State v. Holland, 876 P.2d 357, 359–60 (Utah 1994). But Defendant
fails to establish how trial counsel violated his duty of loyalty
and advocated against him by requesting the amendments.

20140708-CA 8 2016 UT App 72
State v. Goodrich

¶17 To begin with, trial counsel likely concluded that
amending the violations as requested would lessen Defendant’s
culpability. The amendments indicated that Defendant viewed,
rather than possessed, sexual stimulus material. And rather than
explicitly admit to leaving the state, the amended allegation
allowed Defendant to admit only to being untruthful about
leaving the state. So rather than taking a position adverse to
Defendant, trial counsel actually took steps to reduce the
seriousness of the allegations against him.

¶18 Additionally, Defendant’s own behavior at the hearing
indicates that he wanted the allegations amended. The district
court directly asked Defendant if he admitted to the alleged
probation violations, and Defendant’s response was conditioned
upon the amendments: ‚With these changes, I admit to them.‛ In
other words, trial counsel’s actions in requesting the
amendments directly served Defendant’s interests, and the
changes were consistent with what Defendant personally told
the court.

¶19 From all that appears on the record, Defendant wanted
the changes made and conditioned his admitting to the
allegations on those changes. It is thus difficult to see how
complying with Defendant’s wishes can be construed as a
violation of the duty of loyalty. Because trial counsel did not
violate the duty of loyalty, his assistance was not constitutionally
deficient. See Martinez, 2013 UT App 39, ¶ 29.

II. Adequacy of Notice

¶20 Defendant next argues that the district court failed ‚to
ensure that Defendant had been provided with timely and
adequate notice and an opportunity to be heard on the probation
violation allegations.‛ In probation revocation proceedings,
‚notice of the claimed violations‛ is required to ensure that
defendants receive ‚the minimum requirements of due process.‛
See State v. Orr, 2005 UT 92, ¶ 20, 127 P.3d 1213 (citation and

20140708-CA 9 2016 UT App 72
State v. Goodrich

internal quotation marks omitted). The failure to provide such
notice only constitutes reversible error when lack of notice is
prejudicial to the defendant. Cf. State v. Cowdell, 626 P.2d 487, 489
(Utah 1981).

¶21 We review this particular challenge for plain error,
because Defendant failed to preserve the issue for appeal. Thus,
for Defendant to succeed on this claim, he must demonstrate that
(1) an error exists, (2) the error should have been obvious to the
district court, and (3) the error was harmful. See State v. Holgate,
2000 UT 74, ¶ 13, 10 P.3d 346.

¶22 To begin with, we are not persuaded that Defendant
lacked proper notice of the revocation proceedings. Indeed,
Defendant’s brief lacks any analysis regarding whether an error
exists and instead jumps straight to the obviousness of the
presupposed error. Regardless, even if we were to assume for
purposes of this decision that an error did occur and that such
error should have been obvious to the district court, we cannot
conclude that Defendant was prejudiced by any lack of notice.

¶23 Defendant appeared at the order to show cause hearing,
which indicates that even if he were not properly served with
notice, as he briefly suggests, he had actual notice of the time
and place of the proceedings. Furthermore, at the proceeding the
district court verified that Defendant had notice and an
understanding of the allegations against him. It asked, ‚I want to
make sure that you’ve read carefully the affidavit and the
allegations that are in it. Have you done that?‛ Defendant
answered that he had.6 Defendant then spoke to the district court

6. Defendant points out that before he answered the district
court, trial counsel specified, ‚We’re only talking about 3 and 4.
Mr. Goodrich viewed.‛ The allegations that were numbered 3
and 4 are the two allegations to which Defendant admitted. We
fail to see how this clarification by trial counsel affects our
(continued<)

20140708-CA 10 2016 UT App 72
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about those allegations and gave his explanation for his
behavior. See supra ¶ 12.

¶24 Regardless of whether there was any error by the district
court in providing Defendant notice, we are confident that the
outcome of the proceedings was not affected. Defendant was
present. He was aware of the allegations against him. And he
defended himself against those allegations. Accordingly, because
any alleged error was not harmful, there is no cause for reversal.
See Brinkerhoff v. Schwendiman, 790 P.2d 587, 589 (Utah Ct. App.
1990) (citing cases for the proposition that deficient notice is not
prejudicial if the party appears and participates in the hearing).

III. Cumulative Error

¶25 Defendant’s final argument is that the doctrine of
cumulative error requires reversal of the district court’s decision
to revoke probation. See State v. Perea, 2013 UT 68, ¶ 97, 322 P.3d
624 (explaining the cumulative-error doctrine and its
applicability when ‚the cumulative effect of the several errors
undermines‛ our confidence in the outcome of the proceedings
below (citation and internal quotation marks omitted)). ‚In
assessing a claim of cumulative error, we consider all the
identified errors, as well as any errors we assume may have
occurred.‛ State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993).

¶26 In the instant case, we have identified no errors, but we
did assume error for purposes of examining whether Defendant
had suffered prejudice from trial counsel’s failure to obtain the
Oregon documents and in the purportedly deficient notice
provided Defendant. But even considering these assumed errors

(<continued)
analysis. If anything, it supports a conclusion that Defendant
was focused on and aware of the allegations that he eventually
admitted.

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together, as we are required to do in evaluating a claim of
cumulative error, there is no need for reversal. This is not a case
where ‚the cumulative effect of the several errors undermines
our confidence‛ in the probation revocation proceedings. See id.
(citation and internal quotation marks omitted). Defendant’s
cumulative-error claim therefore fails.

CONCLUSION

¶27 Defendant appeared at the order to show cause hearing
and willingly admitted to two probation violations. These facts
drive our decision, because even if trial counsel performed
deficiently by not obtaining certain documents, and even if
Defendant did not receive adequate notice, Defendant cannot
demonstrate prejudice. Similarly, because there was no prejudice
to Defendant, his cumulative-error claim also fails.

¶28 Affirmed.

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