State v. Hare

2015 UT App 179

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
NATHAN HARE,
Defendant and Appellant.

Opinion
No. 20120701-CA
Filed July 23, 2015

Sixth District Court, Manti Department
The Honorable Marvin D. Bagley
No. 111600043

Aaron P. Dodd, Attorney for Appellant
Sean D. Reyes and Andrew F. Peterson, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES J. FREDERIC VOROS JR. and STEPHEN L. ROTH
concurred.

CHRISTIANSEN, Judge:

¶1 Nathan Hare sold marijuana three times to a confidential
informant working for the police. Hare was charged with three
counts of distributing a controlled substance in a drug-free zone.
At Hare’s request, his case was tried as a bench trial, and the
judge found him guilty on all counts. On appeal, he argues that
the trial court erred by allowing him to waive his right to a jury
trial and by failing to schedule his trial within thirty days upon
Hare’s request. He also argues that his trial counsel rendered
ineffective assistance in a number of ways.

¶2 We conclude that Hare has failed to demonstrate
reversible error on the part of the trial court and has failed to
State v. Hare

show that trial counsel was constitutionally ineffective. We
therefore affirm Hare’s convictions.

BACKGROUND

¶3 In April 2011, Hare sold marijuana to a confidential
informant on three different occasions. Before each controlled
buy, the police searched the confidential informant, provided
him the buy money, and gave him a recording device. Each time,
the informant returned with marijuana and identified Hare as
the seller. Hare was arrested shortly after the third controlled
buy.

¶4 Hare’s preliminary hearing was continued multiple times
and was ultimately held in July 2011. The trial court bound the
case over for trial, and Hare requested an arraignment that same
day, pleading not guilty to the charges. A pretrial conference
was scheduled for August. Hare failed to appear at the pretrial
conference, and the trial court issued a warrant for his arrest.
Hare was arrested shortly thereafter and charged with new
crimes that are not the subject of this appeal. After holding a
status conference, the trial court scheduled a second arraignment
for November 9, 2011.1

¶5 At the November 9 hearing, Hare indicated that he
believed the hearing was a pretrial conference and that he hoped
for ‚a speedy trial within this month . . . if that’s possible.‛ Hare
then requested a bench trial, and the trial court, after conducting
a colloquy, accepted Hare’s waiver of a jury trial. After counsel
for both sides agreed that a single day would be sufficient for the

1. The trial court appears to have been confused about the status
of the case, as Hare had already been arraigned on these charges.
The precise nature of the hearing does not, however, affect our
analysis.

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State v. Hare

trial, the trial court directed the clerk to ‚find the first one-day
available.‛ When the trial court advised Hare that the trial date
was ‚probably already into February,‛ Hare asked if there was
‚no way to arrange a sooner date?‛ The trial court asked the
clerk for an earlier date but ultimately presented Hare with a
choice of February 6 or 7. Hare stated, ‚Either day would be just
fine,‛ and his counsel agreed. The trial court set the trial for
February 7, 2012, and Hare did not object. At the conclusion of
trial, the court found Hare guilty on all counts. Hare appeals.

ISSUES AND STANDARDS OF REVIEW

¶6 Hare first contends that the trial court erred in accepting
his waiver of a jury trial. In evaluating whether the trial court
properly accepted a defendant’s waiver of a constitutional
protection, we review the procedures and legal standard applied
by the trial court for correctness, but we defer to the trial court
on the factual questions of whether the defendant understood
the rights being waived and made an informed decision to waive
them. See State v. Candland, 2013 UT 55, ¶¶ 9–10, 309 P.3d 230
(reviewing guilty plea); State v. Gallegos, 2007 UT App 185, ¶ 7,
163 P.3d 692 (reviewing waiver of right to counsel).

¶7 Hare next contends that the trial court failed to
adequately inquire into whether ‚the business of the court‛
allowed his trial to be scheduled within thirty days of the
November 9 hearing. ‚A trial judge is given a great deal of
latitude in determining the most fair and efficient manner to
conduct court business.‛ Morton v. Continental Baking Co., 938
P.2d 271, 275 (Utah 1997). We therefore review for an abuse of
discretion the trial court’s determinations regarding the
administration of its docket. State v. Rhinehart, 2006 UT App
517, ¶ 9, 153 P.3d 830.

¶8 Last, Hare contends that trial counsel rendered ineffective
assistance by failing to listen to the recordings from the

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State v. Hare

confidential informant, failing to properly cross-examine the
State’s witnesses, and failing to discuss with Hare the benefits of
a jury trial. ‚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) (quoting State v. Tennyson, 850 P.2d 461,
466 (Utah Ct. App. 1993)).2

ANALYSIS

I. The Trial Court Did Not Plainly Err in Accepting Hare’s
Waiver of his Right to a Jury Trial.

¶9 Hare first argues that the trial court did not ensure that he
knowingly and intelligently waived his right to a jury trial and
that the trial court therefore plainly erred in accepting that
waiver. To prevail on a claim of plain error, the appellant must
show obvious, prejudicial error. State v. Dunn, 850 P.2d 1201,
1208–09 (Utah 1993). Hare has failed to do so.

¶10 We conclude that Hare’s claim of plain error fails because
he has not demonstrated that he was prejudiced by the trial
court’s acceptance of his jury trial waiver. To demonstrate that
the trial court’s error was prejudicial, Hare must show that
‚there is a reasonable likelihood of a more favorable outcome‛
for him absent the error. Id. at 1208.

2. We granted Hare’s motion for a remand under rule 23B of the
Utah Rules of Appellate Procedure to develop the factual record
supporting his claim that trial counsel failed to discuss with him
his right to a jury trial or his waiver of that right. We denied the
motion as to his other claims of ineffective assistance.

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State v. Hare

¶11 Hare asserts only that the error was harmful ‚because the
case was tried to a single trier of fact, instead of eight different
people.‛ However, this assertion merely describes the difference
between a bench trial and a jury trial without showing how or
why Hare would have received a more favorable result from a
jury trial. Moreover, Hare does not even assert that he would
have selected a jury trial if the trial court had, for instance,
conducted a more searching colloquy to ensure that Hare fully
understood the ramifications of his waiver. Cf. Layton City v.
Carr, 2014 UT App 227, ¶ 22, 336 P.3d 587 (concluding that the
appellant had not demonstrated prejudice in an ineffective-
assistance claim where the appellant did not ‚allege or argue
that he would have selected a jury trial‛ or that he was ‚likely to
have received a more favorable result from a jury‛).

¶12 In spite of his failure to show actual prejudice, Hare
argues that we should presume the trial court’s action
prejudiced him because ‚trial counsel utterly failed to represent
or advise him at this stage of the proceedings, the same as if trial
counsel was not even present.‛ In making this argument, Hare
relies on cases establishing that courts have ‚uniformly found
constitutional error without any showing of prejudice when
counsel was either totally absent, or prevented from assisting the
accused during a critical stage of the proceeding.‛ United States
v. Cronic, 466 U.S. 648, 659 n.25 (1984). Hare contends that trial
counsel did not ‚advi[se] Hare regarding the fundamental
importance to a criminal defendant of the jury trial‛ or ‚ensure
that Hare’s waiver was knowing and intelligent.‛ Thus,
according to Hare, ‚[f]or all practical purposes, trial counsel was
absent when Hare waived his right to a trial by jury.‛

¶13 We first note that the rule from Cronic appears to relieve a
defendant only of the obligation to show prejudice only with
respect to a claim that he was deprived of the effective assistance
of counsel by his attorney’s absence. See id. at 658–59 & n.25.
Despite Hare’s argument to the contrary, this rule does not
appear to relieve him from showing prejudice for any trial court

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State v. Hare

errors committed in counsel’s absence. However, because we
conclude that Hare’s trial counsel was not absent, we need not
decide whether such an absence would relieve Hare of the
obligation to demonstrate that the trial court’s acceptance of his
waiver was prejudicial.

¶14 As Hare acknowledges, his trial counsel was present at
the hearing when he requested a bench trial, not ‚totally absent.‛
See id. at 659 n.25. And the record demonstrates that counsel was
not prevented from assisting Hare when he waived his right to a
jury trial. Indeed, counsel interceded to ensure that Hare waived
no more than intended: When Hare was asked if he wanted a
jury trial, he responded, ‚I would like to represent myself in the
case of a bench trial.‛ His trial counsel then asked, ‚You don’t
want to represent yourself, do you?‛ Hare responded, ‚No,‛ but
he reiterated that he wanted a bench trial. Trial counsel’s
participation in these proceedings makes clear that counsel was
neither absent nor prevented from assisting Hare, and we
therefore reject Hare’s ‚constructive absence‛ theory.
Accordingly, we will not presume that Hare was prejudiced by
the trial court’s acceptance of his waiver. We therefore conclude
that Hare’s failure to demonstrate prejudice is fatal to his claim.
See State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).3

3. In his final reply brief—replying to the State’s response to
Hare’s supplemental brief after the rule 23B remand—Hare
argues for the first time that prejudice should also be presumed
because an ‚invalid [jury trial] waiver constitutes structural
error‛ irrespective of counsel’s presence at the hearing.
Generally, ‚we decline to consider arguments raised for the first
time in reply briefs.‛ Tillman v. State, 2012 UT App 289, ¶ 9 n.5,
288 P.3d 318. Thus, we do not address this novel claim raised for
the first time in Hare’s reply brief.

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State v. Hare

II. Hare Invited Any Error in the Setting of the Trial Date.

¶15 Next, Hare argues that the trial court erred in not setting
his trial date within thirty days of the November 9 hearing. Utah
law provides that a defendant is ‚entitled to a trial within 30
days after arraignment if unable to post bail and if the business
of the court permits.‛ Utah Code Ann. § 77-1-6(1)(h) (LexisNexis
2008). Hare argues that the trial court violated this statute by not
conducting an adequate inquiry into whether the business of the
court would permit an earlier trial setting than the February 7
date ultimately set by the court. We conclude that Hare invited
any error the trial court may have committed.

¶16 Under the doctrine of invited error, we will not review an
asserted error where the defendant or counsel, ‚either by
statement or act, affirmatively represented to the [trial] court
that he or she had no objection to the [proceedings].‛ State v.
Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171 (alterations in original)
(citation and internal quotation marks omitted). Hare initially
asked for ‚a speedy trial within this month . . . if that’s possible.‛
After Hare waived his right to a jury trial, the trial court and
counsel agreed that one day would be sufficient for the trial. The
trial court then discussed the scheduling with the defendant:

COURT: All right, I’ll ask the clerk to find us the
first one-day available. We’re probably already into
February, Mr. Hare.
HARE: All the way to February? There’s no way to
arrange a sooner date?
COURT: Umm, I’ll ask the clerk if there’s a sooner
date and we’ll see if it’s available for the counsel.
HARE: Okay, thank you.
CLERK: (Inaudible).
DEFENSE COUNSEL: I won’t be available.
COURT: We have February 6th or 7th, Mr. Hare.
HARE: Either day would be just fine.
DEFENSE COUNSEL: Either is fine with me.

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State v. Hare

With Hare’s and his counsel’s approval, the trial court scheduled
the trial for February 7, 2012. Hare and his counsel affirmatively
represented to the trial court that Hare had no objection to the
scheduling of his trial on February 7. We therefore decline to
further address Hare’s claim that he was deprived of his
statutory right to a trial within thirty days of arraignment.

III. Hare’s Trial Counsel Was Not Constitutionally Ineffective.

¶17 Last, Hare argues that his trial counsel rendered
ineffective assistance by failing to utilize the audio recordings
from the controlled buys, failing to properly cross-examine the
State’s witnesses, and failing to inform Hare of the benefits of a
jury trial. 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.‛ Strickland v. Washington, 466 U.S. 668,
687 (1984). To establish that counsel’s performance was deficient,
a defendant ‚must show that counsel’s representation fell below
an objective standard of reasonableness.‛ Id. at 688. This
showing requires the defendant to ‚overcome the presumption
that, under the circumstances, the challenged action might be
considered sound trial strategy.‛ Id. at 689 (citation and internal
quotation marks omitted); see also State v. Larrabee, 2013 UT 70,
¶ 19, 321 P.3d 1136. To establish the prejudice prong of an
ineffective-assistance-of-counsel claim, the ‚defendant must
show that a reasonable probability exists that, but for counsel’s
error, the result would have been different.‛ State v. Millard, 2010
UT App 355, ¶ 18, 246 P.3d 151 (citation and internal quotation
marks omitted). ‚In the event it is ‘easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice,’ we will do so without analyzing whether counsel’s
performance was professionally unreasonable.‛ Archuleta v.
Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 (quoting Strickland, 466
U.S. at 697).

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State v. Hare

A. Audio Recordings of the Controlled Buys

¶18 Hare first asserts that trial counsel was ineffective for
failing to make use of the audio recordings of the controlled
buys: ‚If they supported the State’s case, then trial counsel failed
to advise Hare to take a deal. If they did not support the State’s
case, trial counsel failed to obtain the recordings or failed to use
the recordings in Hare’s behalf.‛ Hare claims that ‚[t]rial
counsel’s deficient performance clearly prejudiced Hare since
the outcome would have been different had trial counsel taken a
few minutes to listen to the recordings.‛

¶19 Hare’s argument that he was prejudiced merely recites
the standard for prejudice without actually demonstrating how
or why the outcome of his trial would have been different if trial
counsel had used the recordings. Hare has not explained how
the recordings would have altered the outcome of the trial if
introduced, aside from his equivocal claim that the recordings
‚would either support or destroy [the confidential informant’s]
credibility.‛ And, as we previously ruled in denying that portion
of Hare’s rule 23B motion seeking to include these recordings in
the record, ‚to the extent that the recordings of the transactions
are intelligible, they are inculpatory.‛ We are therefore not
persuaded that Hare was prejudiced by his counsel’s failure to
employ the recordings at trial.

¶20 Hare’s argument that counsel should have advised him
to accept a plea deal in light of the recordings’ contents also does
not establish prejudice. While a defendant can suffer prejudice
from ‚loss of the plea opportunity,‛ to demonstrate prejudice on
such a theory Hare must show, among other things, that a plea
offer was available that would have provided him a more
favorable result and that he would have taken that offer if trial
counsel had advised him of the contents of the recordings. See
Lafler v. Cooper, 132 S. Ct. 1376, 1385–87 (2012). Hare has failed to
make any such showing, and therefore cannot demonstrate that

20120701-CA 9 2015 UT App 179
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he was prejudiced by his trial counsel’s failure to advise him to
take a plea in light of the recordings’ contents.

B. Failure to Impeach State Witnesses

¶21 Hare next claims that trial counsel ‚failed to cross-
examine the State’s witnesses with their own prior testimony
which contradicted their testimony at trial.‛ ‚It is well
established that trial tactics and strategies are within counsel’s
prerogative and are generally left to counsel’s professional
judgment.‛ Fernandez v. Cook, 870 P.2d 870, 876 (Utah 1993).
‚Accordingly, we will not question strategic decisions unless
there is no reasonable basis for the decision.‛ Id. (citation and
internal quotation marks omitted).

¶22 Hare identifies three inconsistencies in the testimonies of
the investigating detectives that he claims defense counsel
should have explored in cross-examination. First, a detective
testified at the preliminary hearing that during the second
controlled buy, the informant had entered an apartment with
Hare for ‚maybe five, seven minutes,‛ but the detective testified
at trial that the informant was in the apartment for ‚[a] minute
or—he wasn’t in there very long.‛ Second, one of the detectives
testified at the preliminary hearing that part of the third
controlled buy had occurred at Hare’s home, but the detective
testified at trial that the transaction had occurred at the same
apartment complex where the second controlled buy had
occurred. Last, the affidavit for Hare’s arrest indicated that
during the third controlled buy, Hare was a passenger in a car
when the confidential informant met him, but both detectives
testified at trial that Hare was driving the car.

¶23 While we agree that Hare has identified some
inconsistencies in the detectives’ testimonies, we are not
convinced that trial counsel’s failure to explore these
inconsistencies through cross-examination constituted deficient
performance. To overcome the ‚strong presumption‛ that

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State v. Hare

counsel performed adequately, Hare must show that there is ‚no
conceivable tactical basis for counsel’s actions.‛ State v. Clark,
2004 UT 25, ¶ 6, 89 P.3d 162 (emphasis omitted) (citation and
internal quotation marks omitted). However, given the minor
and immaterial nature of these inconsistencies to the question of
Hare’s guilt, we conclude that trial counsel could have
reasonably elected not to pursue these inconsistencies at trial.
Because the State’s case was strongly supported by the
testimony of the confidential informant, it is difficult to see how
attacking the credibility of the detectives on such minor
inconsistencies was likely to help Hare in any meaningful way.
Thus, there is a conceivable tactical basis for defense counsel’s
decision not to cross-examine the detectives on these
inconsistencies, and we conclude that trial counsel did not
perform deficiently.

C. Failure to Adequately Advise Hare on his Right to a Jury
Trial

¶24 Finally, Hare asserts that trial counsel failed to adequately
advise him of his right to a jury trial. On rule 23B remand, the
trial court found that Hare had failed to present any evidence
that he was prejudiced by trial counsel’s performance in this
regard. Hare has neither challenged this finding nor otherwise
attempted to show that he was prejudiced by counsel’s
performance.

¶25 Instead, Hare argues that he need not show prejudice
because counsel’s deficient performance resulted in a structural
error, relieving him of the obligation to demonstrate prejudice.
However, the Supreme Court has held that ‚ineffectiveness
claims alleging a deficiency in attorney performance are subject
to a general requirement that the defendant affirmatively prove
prejudice.‛ Strickland v. Washington, 466 U.S. 668, 693 (1984). And
Utah appellate courts have declined to relieve a defendant of his
burden to show prejudice under Strickland even where the
defendant claims that his counsel’s deficient performance has

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State v. Hare

resulted in a structural error. See, e.g., State v. Arguelles, 921 P.2d
439, 442 (Utah 1996); State v. Malaga, 2006 UT App 103, ¶ 11, 132
P.3d 703. Hare has made no persuasive showing that his case is
different from Malaga or Arguelles. We therefore conclude that
Hare was required to demonstrate prejudice here and failed to
do so.

CONCLUSION

¶26 Hare has not demonstrated that the trial court erred either
in accepting his waiver of a jury trial or in failing to set his case
for trial within thirty days of Hare’s request. Neither has Hare
demonstrated that his trial counsel rendered ineffective
assistance. We therefore affirm Hare’s convictions.

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