State v. King

2018 UT App 190
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JOSHUA R OBERT K ING,
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 R YAN M. HARRIS authored this Opinion, in which J UDGES
M ICHELE M. C HRISTIANSEN F ORSTER and DIANA HAGEN
concurred.
HARRIS, Judge:
The district court ordered Joshua Robert King to pay	¶1
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
20170186-CA 	2 	2018 UT App 190
BACKGROUND
Late 	one 	evening, 	while 	heavily 	intoxicated, 	King	¶2
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.
At the time, King was on parole related to previous	¶3
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.
Four months after his arrest, the State charged King with	¶4
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

State v. King
20170186-CA 	3 	2018 UT App 190
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.
At the conclusion of the sentencing hearing, the district	¶5
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.
Three weeks after the sentencing hearing, and before the	¶6
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.
Four days later, the State filed a Motion for Order of	¶7
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.
King learned of the restitution order a few weeks later,	¶8
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.

State v. King
20170186-CA 	4 	2018 UT App 190
At the hearing, King appeared without an attorney, and	¶9
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
King now appeals the restitution order, and asks us to	¶10
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.
Second, and in the alternative, King contends that, even if	¶11
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).

State v. King
20170186-CA 	5 	2018 UT App 190
ANALYSIS
We 	find 	King’s 	second 	argument 	persuasive, 	and	¶12
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.

State v. King
20170186-CA 	6 	2018 UT App 190
“[T]he 	right 	to 	counsel 	is 	the 	right 	to 	the 	effective	¶13
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)).
To 	show 	deficient 	performance, 	“a 	defendant 	must	¶14
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).
Failing to object to or oppose a motion is not, in and of	¶15
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

State v. King
20170186-CA 	7 	2018 UT App 190
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).
In this case, there is no indication that counsel had any	¶16
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.
To establish prejudice, “[t]he defendant must show that	¶17
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,

State v. King
20170186-CA 	8 	2018 UT App 190
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
Assuming that King had an attorney at all during the	¶18
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.