State v. Nuzman

2015 UT App 258
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JUSTIN NUZMAN ,
Appellant.
Memorandum Decision
No. 20140121-CA
Filed October 16, 2015
Second District Court, Farmington Department
The Honorable Glen R. Dawson
No. 131700806
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Brett J. DelPorto, Attorneys
for Appellee
JUDGE K ATE A. TOOMEY authored this Memorandum Decision, in
which JUDGES S TEPHEN L. R OTH and JOHN A. P EARCE concurred.
TOOMEY, Judge:
¶1 	Justin Nuzman appeals his sentence, arguing that his trial
counsel rendered ineffective assistance by not asserting that
Nuzman’s mental health issues were a defense or a mitigating
circumstance prior to the court imposing sentence. We affirm.
¶2 	On October 29, 2013, Nuzman pled guilty to burglary, a
second-degree felony; theft, a third-degree felony; and unlawful
possession of a financial transaction card, a third-degree felony.
As part of Nuzman’s plea negotiations, the State agreed to refer
his Davis County case to Salt Lake County for screening to
determine his eligibility for Salt Lake County’s mental health
court. The State also agreed to reduce the degree of offense of
some of his charges if Nuzman successfully completed mental

State v. Nuzman
20140121-CA 	2 	2015 UT App 258
health 	court. 	In 	his 	plea 	affidavit, 	Nuzman 	stipulated 	to
exercising “unlawful control over the property of another” and
to having “two prior theft convictions.” He also acknowledged
that the maximum sentence for each crime might be imposed
and that a denial of his mental health court request would not be
a “valid reason to seek a withdrawal” of his guilty pleas.
¶3 	The trial court entered Nuzman’s guilty plea and agreed
to refer him to mental health court. The parties agreed that
Nuzman would remain incarcerated until his transfer to mental
health court.
¶4 	One 	month 	later, 	Nuzman’s 	case 	had 	not 	yet 	been
transferred to mental health court. His counsel informed the trial
court that Nuzman was “incredibly concerned about being in
jail” 	and 	about 	“not 	getting 	the 	appropriate 	mental 	health
treatment.” The State acknowledged Nuzman’s mental health
needs and informed the court that Nuzman had the “appropriate
diagnosis” from Valley Mental Health to be accepted into mental
health court but explained that referral to mental health court
took 	time, 	especially 	considering 	that 	the 	transfer 	required
authorization from both the Davis County District Attorney and
the Salt Lake County District Attorney. Nuzman’s counsel then
requested that Nuzman be released pending the referral so that
he could receive mental health treatment not available in jail. She
explained that Nuzman could be released to “go right back in at
Valley” as he “was a wonderful participant before” “with a good
therapeutic relationship with his providers.” The court denied
the request, but indicated that it would “probably” release
Nuzman if the State did not resolve the transfer issue soon.
¶5 	One week later, Nuzman still had not been approved for
mental health court and his counsel again requested that he be
released so he could receive mental health treatment. The State
told the court it needed another week to determine whether Salt
Lake County would accept Nuzman into mental health court.

State v. Nuzman
20140121-CA 	3 	2015 UT App 258
The 	court 	acknowledged 	the 	State’s 	request 	and, 	after
independently investigating the process, informed the parties
that it was not unusual for mental health court screening to take
nearly six weeks. The State stipulated to releasing Nuzman in
the interim but indicated it would like to have a review hearing
two or three weeks later. The court set the review hearing for
two 	weeks 	later, 	December 	10. 	Nuzman 	interjected, 	“Your
Honor, I have court and sentencing in Las Vegas on the 3rd.”
Nuzman’s counsel and the State each indicated that they were
not 	aware 	of 	Nuzman’s 	pending 	sentencing 	in 	Nevada. 	In
response, the State asserted, “Judge, I can tell you right now he’s
not getting into Salt Lake’s mental health court program. I’m
confident. With that piece of information that [Nuzman] shared
with us about a pending case down in Nevada, . . . my guess is
that the Salt Lake DA’s going to say no.” Nuzman’s counsel
responded that she wanted to “undo the plea” if Nuzman’s
pending Nevada case would deny him admission in mental
health court.
¶6 	Later the same day, the State informed the court that it
had 	confirmed 	Nuzman’s 	Nevada 	conviction 	and 	pending
sentencing. 	The 	State 	also 	contacted 	the 	Salt 	Lake 	County
District Attorney to update him on Nuzman’s case. The District
Attorney refused to accept Nuzman into the Salt Lake County
mental 	health 	court 	program 	until 	the 	Nevada 	case 	was
resolved. 	The 	State 	then 	withdrew 	its 	agreement 	to 	refer
Nuzman’s case to Salt Lake County for mental health court. The
State also withdrew its stipulation to release Nuzman. The
prosecutor stated, “[B]ut for [Nuzman’s] candor we wouldn’t be
aware of the Nevada case as I stand here today. So I give him
credit for that. But it does cause me pause for concern that we
have a situation where . . . he’s got a pending sentence in
Nevada that may or may not end up being a felony.”
¶7 	Concerned that Nuzman would 	not have the benefit
for which he had bargained, Nuzman’s trial counsel asked the

State v. Nuzman
20140121-CA 	4 	2015 UT App 258
court to withdraw Nuzman’s current plea, to enter new pleas of
a lesser degree, and to agree to a presentence investigation
report. She then emphasized that “mental health issues are a big
concern” 	in 	his 	case. 	The 	State 	disagreed 	with 	Nuzman’s
counsel’s suggestion, stating, “[T]here is language in [the plea
agreement] that if he doesn’t get into mental health court in Salt
Lake, that doesn’t invalidate the plea. That’s not a basis to
withdraw 	the 	plea.” 	The 	State 	then 	changed 	its 	position,
stipulating to Nuzman’s release. Nuzman’s trial counsel asked
that Nuzman be offered probation, proposing that the State
lower 	the 	degree 	of 	Nuzman’s 	offenses 	upon 	successful
completion 	of 	probation. 	The 	court 	granted 	the 	stipulated
request for release. But in response, the State explained that
Nuzman’s 	“performance 	between 	now 	[until 	sentencing]”
would 	likely 	“weigh 	heavily” 	on 	their 	sentencing
recommendations and their willingness to lower the degree of
his offenses.
¶8 	At the sentencing hearing, Nuzman’s counsel explained
that after his release from jail, Nuzman had received therapy
and 	medication 	from 	Valley 	Mental 	Health 	and 	had 	been
“successful as long as . . . he was on his medicine.” She reiterated
that if Nuzman had not been honest, the State would not have
been aware of his Nevada case. She again asked the court to
impose probation rather than a prison term so Nuzman could
continue to participate in mental health treatment. The court
ultimately 	sentenced 	Nuzman 	to 	one 	one-to-fifteen 	years
indeterminate 	prison 	term 	and 	two 	zero-to-five 	years
indeterminate 	prison 	terms. 	It 	ordered 	those 	terms 	to 	run
concurrently and suggested that, at an appropriate time, the
parole board release Nuzman to Northern Utah Community
Correctional Center to participate in its treatment program.
Nuzman now appeals his sentence.
¶9 	Represented 	by 	new 	counsel 	on 	appeal, 	Nuzman
contends that his trial counsel rendered ineffective assistance by

State v. Nuzman
20140121-CA 	5 	2015 UT App 258
failing to pursue mental health treatment and by failing to assert
his mental health problems as a defense or as a mitigating
circumstance 	at 	sentencing. 	“When 	a 	claim 	of 	ineffective
assistance of counsel is raised for the first time on appeal, there is
no lower court ruling to review and we must decide whether
[the] 	defendant 	was 	deprived 	of 	the 	effective 	assistance 	of
counsel as a matter of law.” Layton City v. Carr, 2014 UT App
227, ¶ 6, 336 P.3d 587 (alteration in original) (citation and
internal quotation marks omitted).
¶10 	To establish that his trial counsel rendered ineffective
assistance, Nuzman must demonstrate (1) that his “counsel’s
performance 	was 	deficient” 	and 	(2) 	“that 	the 	deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984). To show that his counsel’s performance
was 	deficient, 	Nuzman 	“must 	show 	that 	counsel’s
representation 	fell 	below 	an 	objective 	standard 	of
reasonableness.” Id. at 688. Then, even if Nuzman overcomes the
“strong presumption that counsel’s conduct falls within the wide
range 	of 	reasonable 	professional 	assistance,” 	he 	must 	still
demonstrate prejudice. Id. at 689, 692.
¶11 	Although Nuzman acknowledges that trial counsel, “both
prior to and at sentencing,” recognized his serious mental health
issues and his need for medication and supervision, he argues
that his trial counsel’s failure to “specifically request that the
sentencing 	court 	consider 	[Nuzman’s] 	mental 	illnesses 	as 	a
defense or mitigating circumstance at sentencing” “fell below an
objective standard of reasonable professional judgment.”
¶12 	This argument is not persuasive in view of his trial
counsel’s 	persistent 	focus 	on 	Nuzman’s 	mental 	health 	in
virtually every encounter with the trial court. Nuzman concedes
that trial counsel “represented to the court on more than one
occasion that [Nuzman] . . . was ‘incredibly concerned’ about
being in jail and not getting proper mental health treatment.”

State v. Nuzman
20140121-CA 	6 	2015 UT App 258
But, in addition to that, at every phase of the proceedings in this
case, trial counsel raised the issue of Nuzman’s mental illness.
She asked the court to transfer the case to Salt Lake County so
Nuzman could participate in mental health court. Alternatively,
she asked that the court release Nuzman to participate in mental
health 	treatment 	not 	otherwise 	available 	in 	jail. 	Later, 	trial
counsel encouraged the court to allow Nuzman to complete
probation instead of serving a prison sentence so he could
continue 	to 	receive 	treatment 	from 	Valley 	Mental 	Health.
Furthermore, 	trial 	counsel 	emphasized 	how 	much 	Nuzman
improved after effective treatment and receiving medication. She
even attempted to withdraw Nuzman’s guilty pleas but could
not 	because 	his 	plea 	agreement 	contained 	language 	that
prevented him from doing so. Under these circumstances, we
cannot say trial counsel’s performance fell below an objective
level of reasonableness.
¶13 	Because 	Nuzman 	has 	not 	overcome 	the 	strong
presumption that his trial counsel’s performance was “within
the wide range of reasonable professional assistance,” we do not
address the prejudice element of his ineffective assistance of
counsel claim. See Strickland, 466 U.S. at 689. We therefore
conclude 	that 	Nuzman 	has 	failed 	to 	demonstrate 	that 	he
received 	ineffective 	assistance 	from 	his 	trial 	counsel.
Accordingly, we affirm.