State v. Feldmiller

2013 UT App 275
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
WILLIAM ROBERT FELDMILLER,
Defendant and Appellant.
Per Curiam Decision
No. 20120862-CA
Filed November 21, 2013
Eighth District Court, Vernal Department
The Honorable Edwin T. Peterson
No. 111800060
Daniel S. Sam and Ryan B. Evershed, Attorneys
for Appellant
John E. Swallow and Ryan D. Tenney, Attorneys
for Appellee
Before JUDGES GREGORY K. ORME, JAMES Z. DAVIS, and
CAROLYN B. MCHUGH.
PER CURIAM:
¶1 William Robert Feldmiller appeals his conviction of murder.
We affirm.
¶2 Feldmiller asserts that he received ineffective assistance of
counsel due to counsel’s failure to seek a special mitigation
instruction under Utah Code section 76-5-205.5. To show ineffective
assistance of counsel, Feldmiller must demonstrate that his trial
counsel performed deficiently and that he was prejudiced by the
deficient performance. See Strickland v. Washington, 466 U.S. 668,
689 (1984). In regard to the deficient performance prong, a strong

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20120862-CA 2 2013 UT App 275
presumption exists that trial “counsel’s conduct falls within the
wide range of reasonable professional assistance.” Id. Thus, to
overcome this presumption Feldmiller bears the burden of
demonstrating that “there was no conceivable tactical basis for
counsel’s action.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162
(emphasis in original) (citation and internal quotation marks
omitted). Feldmiller fails to meet this burden.
¶3 Feldmiller was charged with murder. Before trial, Feldmiller
requested that lesser included offense instructions be given
concerning manslaughter and negligent homicide. He also
requested a self-defense instruction, which the district court
allowed. During a mid-trial discussion, the district court agreed to
submit the reckless manslaughter instruction; however, the district
court determined that there was insufficient evidence to present the
jury with an instruction on negligent homicide. After being
informed of this decision, Feldmiller’s counsel requested time to
speak with Feldmiller. Following that conference, Feldmiller’s
counsel stated that Feldmiller opposed the submission of the
manslaughter instruction. Counsel explained that he did not want
the instruction if the court refused to provide an instruction for
negligent homicide because the instructions were a “package
together.” Counsel’s closing arguments on behalf of Feldmiller
revealed that the reason behind this decision was to support an “all
or nothing” strategy. Cf. State v. Dyer, 671 P.2d 142, 145 (Utah 1983)
(recognizing the use of an “all or nothing” defense). Specifically,
counsel argued that while Feldmiller may have done something
wrong, he could not be convicted of murder because he did not
have the requisite intent. Counsel further noted that the intent
element of murder differed from lesser offenses, and that those
lesser offenses were not “on the table.”
¶4 These arguments reflect that Feldmiller’s counsel’s strategic
reason for rejecting the manslaughter instruction and for not
requesting the special mitigation instruction was to pursue the all
or nothing defense. This court has previously recognized the
validity of the strategy. See id.; see also State v. Valdez, 432 P.2d 53,

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20120862-CA 3 2013 UT App 275
54 (Utah 1967). Recently, in State v. Campos, we rejected another
defendant’s similar argument that counsel provided ineffective
assistance of counsel by failing to request a special mitigation
instruction. See State v. Campos, 2013 UT App 213, ¶ 36, 309 P.3d
1160. In Campos, counsel elected not to pursue a special mitigation
instruction based on extreme emotional distress because he decided
to pursue the theory of self-defense, which could have led to a
complete acquittal. We determined that counsel did not act
unreasonably or ineffectively in deciding to pursue one theory
instead of another, especially when the two theories were arguably
inconsistent. See id. Here, counsel believed that the State had
overcharged Feldmiller and could not meet its burden of proving
the requisite intent of murder. Accordingly, Feldmiller’s counsel,
after consulting with Feldmiller, elected to pursue a strategy that
would not allow the jury to convict on a lesser charge. Because of
the wide latitude counsel is given in making strategic decisions at
trial, we cannot conclude that counsel acted unreasonably in
pursuing such a strategy. Therefore, Feldmiller fails to demonstrate
that his trial counsel was ineffective.
¶5 Feldmiller next argues that the district court erred by failing
to submit an instruction to the jury sua sponte for special
mitigation based on extreme emotional distress. See Utah Code
Ann. § 76-5-205.5 (LexisNexis 2012). Feldmiller acknowledges that
the issue was not preserved in the district court. Accordingly, he
asserts that the district court committed plain error by failing to
provide the instruction to the jury. “To prevail under plain error
review, a defendant must demonstrate that ‘[1] an error exists;
[2] the error should have been obvious to the trial court; and [3] the
error is harmful, i.e., absent the error, there is a reasonable
likelihood of a more favorable outcome.’” State v. Ross, 2007 UT 89,
¶ 17, 174 P.3d 628 (quoting State v. Lee, 2006 UT 5, ¶ 26, 128 P.3d
1179). However, plain error review is inappropriate when it
resulted from the appellant’s strategic decision. See State v. McNeil,
2013 UT App 134, ¶ 13, 302 P.3d 844 (“Plain error review is
inappropriate when the error was invited by the appellant or
resulted from the appellant’s strategic decision.”). Thus, if trial

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20120862-CA 4 2013 UT App 275
counsel’s strategic decisions were “conscious and did not amount
to ineffective assistance of counsel, this Court should refuse to
consider the merits of the trial court’s ruling.” State v. Bullock, 791
P.2d 155, 159 (Utah 1989).
¶6 As detailed above, Feldmiller’s counsel’s decision to reject
a manslaughter instruction and pursue an all or nothing defense
constituted a legitimate trial strategy. It was not within the district
court’s province to question that trial strategy or force Feldmiller
and his counsel to pursue a trial strategy they did not wish to
pursue. Accordingly, because the alleged error resulted from
Feldmiller’s strategic decision, we do not review for plain error the
district court’s decision not to submit a special mitigation
instruction to the jury.
¶7 Affirmed.