State v. King

2018 UT App 190

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JOSHUA ROBERT KING,
Appellant.

Opinion
No. 20170186-CA
Filed October 4, 2018

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 161901267

Diana Pierson and Sarah J. Carlquist, Attorneys
for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
concurred.

HARRIS, Judge:

¶1 The district court ordered Joshua Robert King to pay
restitution for damages he caused to a home in the course of
burglarizing it. The court’s restitution order was entered without
objection. King, however, asserts that his counsel abandoned
him after sentencing, and that he was either completely
unrepresented or ineffectively represented during the restitution
phase. We agree, and therefore vacate the restitution order and
remand for further proceedings.
State v. King

BACKGROUND

¶2 Late one evening, while heavily intoxicated, King
attempted to forcibly enter a stranger’s home. The homeowner
confronted King and was able to push him out of the doorway,
preventing him from entering the home. During the struggle,
King fell down, his shoe came off, and the shoe broke one of the
home’s windows. The police later arrived and arrested King, and
as they did so, he kicked and spat at them.

¶3 At the time, King was on parole related to previous
offenses, and promptly contacted his parole officers to inform
them of the arrest. King had exhibited relatively good behavior
while on parole—at least up to that point—and King’s parole
officers did not immediately seek to have him recommitted to
prison. King posted bail, and soon took steps to repair the
damaged window, and offered to pay for any additional damage
he may have caused.

¶4 Four months after his arrest, the State charged King with
one count of aggravated burglary, two counts of propelling a
bodily substance at a correctional or peace officer, and one count
of assault against a peace officer. King retained private counsel,
who eventually negotiated a plea agreement with the State in
which King agreed to plead guilty to one count of burglary, a
third-degree felony, and one count of propelling a bodily
substance at a correctional or peace officer, a class A
misdemeanor. In the plea statement, King admitted that he
“tried to enter into a place [without] permission and caused
damage.” During his sentencing hearing, members of King’s
family spoke, expressing their support for King, explaining his
lifelong struggle with alcohol, and detailing the many admirable
character traits he possesses when not intoxicated. King spoke as
well, and expressed remorse, telling the district court that,
because he felt obligated to do so, he had already gone back to
the home and fixed the window. Later in the hearing, King’s

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State v. King

attorney also mentioned that King had fixed the window, and
the State never contradicted this account. The homeowner was
not present at sentencing and had not given a statement.

¶5 At the conclusion of the sentencing hearing, the district
court sentenced King to prison on the felony count and to a year
in jail on the misdemeanor count, but ordered his terms of
incarceration to run concurrently with each other, as well as with
the sentence he was serving for his previous offense. At the
prosecution’s request, the district court also ordered King to pay
“full and complete restitution,” although the court left open the
issue of the restitution amount.

¶6 Three weeks after the sentencing hearing, and before the
State’s deadline to seek a specific restitution amount, King’s
counsel filed a Notice of Withdrawal, stating that “[c]ounsel’s
scope of representation . . . has been fulfilled.” That notice was
unaccompanied by a motion or a proposed order; the district
court did not sign any order authorizing counsel’s withdrawal.

¶7 Four days later, the State filed a Motion for Order of
Restitution with the district court, requesting “complete and
court ordered restitution in the amount of $400.00.” This motion
was served on King’s counsel, but not on King himself. The
motion was very brief, and neither the motion nor the
accompanying order contained any documentation—or even
any indication—as to what the $400 was intended to cover. No
opposition or objection to the State’s specific restitution request
was ever filed. A few weeks later, the district court signed the
State’s apparently unopposed restitution order.

¶8 King learned of the restitution order a few weeks later,
when he received a letter from the district attorney’s office
informing him that he “owe[d] money.” King then sent multiple
letters to the prosecutor and the court complaining about the
restitution award, and the court set the matter for hearing.

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State v. King

¶9 At the hearing, King appeared without an attorney, and
objected to the restitution award on the ground that “[t]he only
thing that got broke was a window and it got fixed.” The court
asked King if he was still represented by counsel, and King
answered that he was not. The prosecutor also believed King to
be unrepresented, stating “the defendant’s attorney, he
withdrew.” The court explained that it had signed the restitution
order without holding a hearing because the order was
unopposed. The court noted that King’s attorney had filed a
notice of withdrawal, but observed that “there wasn’t an order
filed that I could grant or deny the notice of withdrawal.” After
realizing that King may need replacement counsel, the court
declined to take any further action at that hearing other than
appointing a public defender to represent King in any future
proceedings, including any appeal.

ISSUES AND STANDARDS OF REVIEW

¶10 King now appeals the restitution order, and asks us to
consider two alternative arguments. First, King contends that he
was denied the right to counsel because he was in fact
unrepresented during restitution proceedings. Whether a
defendant has the right to counsel during a particular phase of
criminal proceedings is a constitutional issue that presents a
question of law that we review for correctness. State v. Cabrera,
2007 UT App 194, ¶ 7, 163 P.3d 707.

¶11 Second, and in the alternative, King contends that, even if
he was still represented during the restitution proceedings, his
counsel provided ineffective assistance by failing to object to the
State’s motion for restitution. “A claim of ineffective assistance
of counsel raised for the first time on appeal presents a question
of law, which we consider de novo.” State v. Courtney, 2017 UT
App 172, ¶ 20, 424 P.3d 198 (quotation simplified).

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State v. King

ANALYSIS

¶12 We find King’s second argument persuasive, and
therefore do not reach the merits of his first argument. We agree
with King that he was entitled to counsel during restitution
proceedings in this case, see State v. Cabrera, 2007 UT App 194,
¶ 14, 163 P3d 707 (holding that criminal defendants have the
right to counsel at restitution hearings “when restitution is
ordered as part of a sentence that also includes actual or
suspended jail time”), and for the purposes of this appeal, we
assume—without deciding—that he did in fact have an attorney
during the restitution proceedings that occurred in this case. 1 But
even if King technically still had an attorney during the
restitution proceedings, we agree with King that his attorney
performed in a constitutionally ineffective manner by failing to
object to the State’s proposed restitution order.

1. The parties agree that King’s attorney failed to comply with
applicable rules governing attorney withdrawal from
representation in criminal cases. See Utah R. Crim. P. 36 (“[A]n
attorney may not withdraw as counsel of record in criminal
cases without the approval of the court.”). Because the attorney
failed to properly withdraw, he remained King’s counsel of
record through the restitution proceedings. We acknowledge,
however, that the constitutional right to counsel “cannot be
satisfied by mere formal appointment.” United States v. Cronic,
466 U.S. 648, 655 (1984) (quotation simplified); see also United
States v. Collins, 430 F.3d 1260, 1264–66 (10th Cir. 2005) (holding
that, where an attorney appeared at a hearing but, due to a
pending motion to withdraw, “remained silent” and refused to
advocate on his client’s behalf, the client was effectively
unrepresented for Sixth Amendment purposes). We need not
delve deeper into this question, however, because we are
persuaded that, even if King technically had a lawyer during the
restitution proceedings, that attorney was ineffective.

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State v. King

¶13 “[T]he right to counsel is the right to the effective
assistance of counsel.” United States v. Cronic, 466 U.S. 648, 654
(1984) (quotation simplified). A defendant has a right to the
effective assistance of counsel, regardless of whether defendant’s
counsel is a public defender or a privately-retained lawyer. See
Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980). “To succeed on a
claim of ineffective assistance of counsel, a defendant must show
both ‘that counsel’s performance was deficient’ and ‘that the
deficient performance prejudiced the defense.’” State v. Galindo,
2017 UT App 117, ¶ 7, 402 P.3d 8 (quoting Strickland v.
Washington, 466 U.S. 668, 687 (1984)).

¶14 To show deficient performance, “a defendant must
identify specific acts or omissions demonstrating that counsel’s
representation failed to meet an objective standard of
reasonableness.” State v. Montoya, 2004 UT 5, ¶ 24, 84 P.3d 1183
(quotation simplified). This standard does not guarantee an
error-free trial. See Cronic, 466 U.S. at 656 (stating that the Sixth
Amendment is not violated “even if defense counsel may have
made demonstrable errors”). Indeed, “we indulge a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance,” and the defendant “must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
State v. Hales, 2007 UT 14, ¶ 70, 152 P.3d 321 (quotation
simplified).

¶15 Failing to object to or oppose a motion is not, in and of
itself, deficient performance, especially when an objection would
be futile. See State v. Bragg, 2013 UT App 282, ¶ 20, 317 P.3d 452
(holding that a failure to object to the admission of evidence
“that was clearly allowed” was not deficient performance); State
v. Gunter, 2013 UT App 140, ¶ 35, 304 P.3d 866 (stating that
“[t]here is no requirement that counsel engage in futile acts”).
However, when there is no strategic reason for doing so and
when the objection stands a reasonable chance of success, failing

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State v. King

to object to a motion can constitute deficient performance. See,
e.g., State v. Milligan, 2012 UT App 47, ¶ 17, 287 P.3d 1 (finding
deficient performance when counsel failed to object to the
court’s sentencing decision in a situation where there was “a
reasonable probability that the trial court would have reached a
different conclusion” had counsel objected).

¶16 In this case, there is no indication that counsel had any
strategic reason for failing to object to the State’s restitution
request. The State posits that counsel may have been worried
that an objection would result in a restitution order of more than
$400, and that, given the relatively small amount requested,
counsel made a tactical decision not to object. But nothing in the
record supports this supposition, and the record contains
numerous indications to the contrary. First and most notably,
counsel filed a notice of withdrawal a few days before the State’s
restitution request and then failed to appear at the follow-up
hearing, indicating that counsel’s failure to object was not
tactical but, rather, the result of counsel’s belief that he was no
longer representing King. Second, both counsel and King himself
made statements, on the record, indicating that the only damage
to the home that they were aware of was the broken window,
and that King had already voluntarily repaired all of that
damage prior to sentencing. Indeed, there is no evidence
anywhere in the record—not even in the State’s restitution
request—that King caused any other damage to the home.
Finally, in King’s statements to the court at the review hearing,
he avers that his attorney never contacted him to discuss the
restitution request. On this record, we conclude that King has
overcome the “strong presumption” that counsel’s conduct was
reasonable. See Hales, 2007 UT 14, ¶ 70.

¶17 To establish prejudice, “[t]he defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694; see also State v. Garcia,

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State v. King

2017 UT 53, ¶ 42, 424 P.3d 171. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. We are persuaded that, in this case,
there is a reasonable probability that the district court would not
have entered the State’s restitution order if counsel had objected.
As noted, both King and his counsel represented at sentencing
that King had repaired the broken window, and there is no
indication in the record that these representations were untrue.
Moreover, there was no indication in the State’s restitution
paperwork—or anywhere else in the record—that its request
was intended to cover anything other than the one broken
window. Under these circumstances, our confidence in the
accuracy of the restitution order is sufficiently undermined.

CONCLUSION

¶18 Assuming that King had an attorney at all during the
restitution proceedings that occurred in this case, that attorney
provided King with constitutionally ineffective assistance.
Accordingly, we vacate the district court’s restitution order, and
remand this case for further proceedings regarding restitution.

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