State v. Kucharski

IN THE UTAH COURT OF APPEALS

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State of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20100283‐CA
)
v. ) FILED
) (February 24, 2012)
Eddie G. Kucharski, )
) 2012 UT App 50
Defendant and Appellant. )

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Second District, Farmington Department, 041701630
The Honorable Thomas L. Kay

Attorneys: Scott L. Wiggins, Salt Lake City, for Appellant
Mark L. Shurtleff and Ryan D. Tenney, Salt Lake City, for Appellee

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Before Judges McHugh, Davis, and Thorne.

DAVIS, Judge:

¶1 Eddie G. Kucharski appeals his sentence of zero to five years in prison for
communications fraud, arguing that his counsel rendered ineffective assistance by
failing to move for disqualification of the sentencing judge. We affirm.

¶2 In State v. Kucharski, 2009 UT App 295U (mem.) (per curiam), we remanded this
case to give the trial court an opportunity to make findings regarding alleged
inaccuracies in the pre‐sentence investigation report (PSI) and to “revise the sentence as
[the trial court] deems appropriate.” See id. para. 5. On remand, the trial court made
several corrections to the PSI and rejected several other proposed corrections.1
However, the trial court clarified that the “critical” issue that impacted the previous
sentence was Kucharski’s “established instances of repetitive criminal conduct and
continued criminal behavior.” The trial court explained that inaccuracies in the PSI
“would [therefore] not . . . change the sentence that [the trial court] gave him to go to
zero to five years in prison.” Because the trial judge expressed reliance on his “history”
with Kucharski in reaching the sentencing decision, Kucharski alleges that the trial
judge was biased and prejudiced against him and that his counsel should have moved
to have the trial judge disqualified.

¶3 “An ineffective assistance of counsel claim raised for the first time on appeal
presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. In order to
establish ineffective assistance of counsel, Kucharski must demonstrate (1) that his
counsel performed deficiently, i.e., that counsel’s performance “fell below an objective
standard of reasonableness,” and (2) that he was prejudiced by his counsel’s deficient
performance. See Strickland v. Washington, 466 U.S. 668, 687‐88, 691‐92 (1984).

¶4 Rule 2.11 of the Utah Code of Judicial Conduct lists a number of circumstances
under which a judge is expected to disqualify himself or herself. See Utah Code Jud.
Conduct 2.11(A). The fact that a judge has formed an opinion regarding a particular
defendant based on proceedings occurring in front of the judge is not a ground for
disqualification listed in that Code. In fact, our supreme court has explained that “the
bias or prejudice [requiring disqualification] must usually stem from an extrajudicial
source, not from occurrences in the proceedings before the judge.” State v. Munguia,
2011 UT 5, ¶ 17, 253 P.3d 1082 (emphasis and internal quotation marks omitted). But see
Liteky v. United States, 510 U.S. 540, 554‐55 (1994) (explaining that the extrajudicial
source doctrine is more of an “‘extrajudicial source’ factor,” as it is neither a necessary
nor sufficient condition for disqualification of a judge based on bias or prejudice
(emphasis omitted)).

¶5 “Not all unfavorable disposition towards an individual (or his case) is properly
described by [the] terms [‘bias’ and ‘prejudice’]” because, as used in the context of
judicial disqualification, those terms “connote a favorable or unfavorable disposition or
opinion that is somehow wrongful or inappropriate, either because it is undeserved, or

1
Kucharski does not challenge the trial court’s rejection of any of his proposed
corrections on appeal.

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because it rests upon knowledge that the subject ought not to possess . . . , or because it
is excessive in degree.” Liteky, 510 U.S. at 550.

[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings, or [on the basis] of prior proceedings, do not
constitute a basis for a bias or partiality motion unless they
display a deep‐seated favoritism or antagonism that would
make fair judgment impossible. Thus, judicial remarks
during the course of a trial that are critical or disapproving
of, or even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge.

Id. at 555.

¶6 The statements that Kucharski alleges indicate bias refer to the trial judge’s
previous experiences with Kucharski in court. The trial court explained that its
previous ruling had not relied on any of the errors in the PSI but was based on
Kucharski’s “history” with the trial court, which indicated that he had committed
similar crimes on multiple occasions. The trial court explained, “[Kucharski] deserved
to go to prison because of the continued behavior. Probation hadn’t changed him in the
past under supervised probation, and he continued to commit crimes.” It was not
inappropriate for the trial judge to rely on what he had learned about Kucharski by
dealing with him in the current and prior proceedings, or to make a judgment based on
those dealings about Kucharski’s ability to receive correction through probation.
Indeed, such judgment may be “necessary to completion of the judge’s task.” See id. at
551 (“‘If the judge did not form judgments of the actors in those court‐house dramas
called trials, he could never render decisions.’” (quoting In re J.P. Linahan, Inc., 138 F.2d
650, 654 (2d Cir. 1943))).

¶7 Furthermore, contrary to Kucharski’s suggestion, the trial court’s statement that
the sentence would be the same regardless of inaccuracies in the PSI does not suggest
that the trial court was biased or prejudiced against Kucharski. This statement merely
indicates that the trial court’s sentence was based primarily on other factors, namely
Kucharski’s history of recidivism, rather than the portions of the PSI challenged by
Kucharski. Such an exercise of the trial court’s discretion is not indicative of bias or
prejudice. See generally State v. Carson, 597 P.2d 862, 864‐65 (Utah 1979) (explaining that
“the [sentencing] judge may determine the extent to which conclusions in the [PSI]
should be accorded weight in the pronouncement of the sentence,” that “the sentencing

20100283‐CA 3
judge’s discretion in sentencing may be based on several sources of information,” and
that the defendant’s background is significant in determining the appropriate sentence).

¶8 Because the trial judge’s statements do not indicate bias or prejudice, any motion
to disqualify would have been futile, see generally State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d
546 (“Failure to raise futile objections does not constitute ineffective assistance of
counsel.”), and perhaps even in bad faith, see generally Utah R. Crim. P. 29(c)(1)(A)
(providing that a party who files a motion to disqualify a judge must include with the
motion “a certificate that the motion is filed in good faith” and “an affidavit stating facts
sufficient to show bias or prejudice, or conflict of interest”). Accordingly, Kucharski’s
counsel did not perform deficiently by failing to file a motion to disqualify.

¶9 We conclude that Kucharski has failed to establish the deficient performance
prong of the ineffective assistance analysis.2 We therefore affirm Kucharski’s sentence.

____________________________________
James Z. Davis, Judge

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¶10 WE CONCUR:

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Carolyn B. McHugh,
Presiding Judge

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William A. Thorne Jr., Judge

2
Because Kucharski has failed to demonstrate that his counsel performed
deficiently, we need not consider the prejudice prong of the ineffective assistance
analysis. See generally State v. Diaz, 2002 UT App 288, ¶ 38, 55 P.3d 1131 (“Failure to
satisfy either prong [of the ineffective assistance of counsel test] will result in our
concluding that counsel’s behavior was not ineffective.”).

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