State v. Hararah

2023 UT App 77

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
HOUSTON RAEFAT HARARAH,
Appellant.

Opinion
No. 20220276-CA
Filed July 20, 2023

Eighth District Court, Vernal Department
The Honorable Edwin T. Peterson
The Honorable Gregory M. Lamb
No. 201800299

Nicolas C. Wilde and Trevor J. Lee,
Attorneys for Appellant
Tegan M. Troutner and Rachelle Shumway,
Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 Houston Raefat Hararah was charged with assault for
throwing a potted plant at his then-girlfriend. He waived his right
to a preliminary hearing and proceeded to trial, following which
he was convicted. He now contends that he was coerced into
waiving his right to a preliminary hearing because the district
court 1 stated, at various points in the proceedings, that it would

1. Relevant here, Judge Peterson presided over the July 2020
hearing, the August 2020 hearing, and the September 2020
hearing. Judge Lamb presided over the jury trial and the
(continued…)
State v. Hararah

not permit Hararah to accept any plea deal if he chose to have a
preliminary hearing. But the record indicates that Hararah
rejected the State’s “best offer” and independently decided to
waive the preliminary hearing and proceed to trial, so we cannot
agree that the court forced his waiver. Hararah also asserts that
his defense counsel (Counsel 2) provided ineffective assistance for
not objecting to the court’s allegedly problematic statements, as
well as for telling the jury, during opening statements at trial, that
they would not hear that Hararah had punched the victim, when
the victim went on to testify that he did so. We do not agree that
his counsel performed deficiently in either respect, so we affirm.

BACKGROUND

¶2 After police responded to an argument between Hararah
and his then-girlfriend, Hararah was charged with assault, with a
domestic violence enhancement. The Information alleged that
Hararah “threw a potted plant at his girlfriend[,] striking her in
the face and causing a cut above her eye.” As a result, the district
court issued a no-contact order against Hararah. At a hearing to
review the no-contact order, held in July 2020, the following
exchange took place between Hararah, the district court, and
Counsel:

Counsel: Judge, do you want to keep [the next
hearing] on the 28th? I think that at
this point, I’ve discussed a plea with
Mr. Hararah and it looks like we’re

sentencing hearing. To distinguish the actions of each judge, we
use “district court” when discussing Judge Peterson’s actions and
“trial court” when discussing Judge Lamb’s actions.

2. Hararah was represented by two attorneys. There is no need to
identify the actions of each, so we refer to them both as Counsel.

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State v. Hararah

probably going to be setting it for a
preliminary hearing.

District Well, let’s go ahead and . . . take it on
Court: the 28th and see—Mr. Hararah, do
you understand if you go to
preliminary hearing, you’re going to
trial on the original charges? I won’t
allow a plea negotiation after that.

Hararah: Yes, Your Honor.

District Okay. Well, you think long and hard
Court: on that and I’ll talk to you on the 28th.
Thank you.

¶3 The minutes for the next hearing, held in August 2020,
indicate that “[t]he defendant request[ed] a Preliminary Hearing”
and that “the [c]ourt set[] this matter for Preliminary Hearing.”

¶4 In court on the date set for the preliminary hearing, in
September 2020, Counsel said, “I’ve had a chance to speak with
Mr. Hararah, [and] he’s willing to waive his right to a preliminary
hearing and we can set the case for trial—for the next step.” Then
the following exchange took place:

District So you talked to [Counsel] about what
Court: a preliminary hearing is[,] right?

Hararah: Yes.

District Okay. And you are, in fact, willing to
Court: waive your rights to a preliminary
hearing and allow the matter to be
bound over; is that correct?

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State v. Hararah

Hararah: Yes.

District Very good. I will go ahead and allow
Court: the waiver[;] I’ll bind the matter over.
How long do you think you need to
have discussions, [Counsel]?

Counsel: Your Honor, I think that the best offer
has been made and Mr. Hararah has
had a chance to discuss it, and I think
we’re just going to need to figure out
when we can get it on for a trial as
soon as possible in front of a jury.

Later in the hearing, the district court added,

District [W]e will have a trial as soon as
Court: possible. And seeing as we did not go
to prelim, we could still have
discussions regarding, you know,
some other outcome to the . . .
litigation.

¶5 The case eventually went to trial, and during opening
statements, Counsel said to the jury, “You will not hear any
testimony about [Hararah] punching [the alleged victim] . . . .
[Y]ou’ll hear . . . that the only item that he had to protect himself
from [a] taser [the alleged victim held] was the plant that was on
the floor. And he picked it up and he threw it so that he could get
out . . . .”

¶6 But when the victim testified, she stated that Hararah had
hit her through a pillow. She testified that the pair had been
drinking and started arguing when “[a] verbal argument turned
into a physical [one].” She said, “I had tried knocking over his
drink. I knew the conversation wasn’t ending anywhere. He
ended up on top of me hitting me.” She described how she tried

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State v. Hararah

to leave the room but “was hit in the face” with “a pillow and his
fist.” She clarified that “he was punching [her] and hitting [her]
through the pillow.”

¶7 Later in the trial and outside the presence of the jury,
Counsel objected to “the uncharged misconduct that we’ve now
heard about for the first time today, which is this witness . . . now
saying that she was punched in the face by Mr. Hararah prior to
the throwing of the plant.” Counsel asserted, “That is nowhere in
the State’s discovery. It is not in the officer’s report, it isn’t
anywhere in the body cam. And so what we are now entertaining
is the fact that these jurors can . . . believe that the bruising on her
face comes from those punches rather than from the plant.”
Counsel explained why this was problematic: “We don’t have the
ability to bring in a rebuttal expert to say, ‘Hey, do you think these
bruis[es] came from punching or . . . from a plant?’ So, I maintain
that [this] is prejudicial.” The trial court responded, “I’ve
previously ruled during the course of the trial that I would allow
the testimony as long as it was consecutive to the day . . . in
question [and] I would allow testimony from . . . the witness about
the arguing and the conduct that happened during that date in
question.”

¶8 The State went on to call the deputy who had arrested
Hararah. On cross-examination, he testified that “[t]he only
assault [he] was aware of was the plant being thrown,” and he
agreed that if the victim had “mentioned being punched in the
face, [he] would have put that in [his] report.” In closing
arguments, Counsel portrayed the victim as an unreliable witness
based on the inconsistencies between her previous accounts of
what happened and her trial testimony.

¶9 Ultimately, the jury found Hararah guilty of domestic
violence-related assault. Hararah now appeals.

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State v. Hararah

ISSUES AND STANDARDS OF REVIEW

¶10 Hararah presents two issues on appeal. First, he asserts
that the district court erred “when it coerced [him] into waiving
his right to a preliminary hearing by threatening to not allow him
to accept a plea bargain from the State if he exercised his
fundamental right to a preliminary hearing.” He argues that this
error “violated Article I, Section 13 and Article V, Section 1 of the
Utah Constitution; Utah Rules of Criminal Procedure 7(e) and
11(i); and our adversarial system of justice.” Hararah admits that
this “issue was not preserved,” but he claims that “either the
exceptional circumstances exception or the plain error exception
applies here.”

¶11 Second, Hararah asserts that Counsel provided ineffective
assistance in two respects: (1) by “fail[ing] to object to the district
court coercing [Hararah] into waiving his fundamental right to a
preliminary hearing” and (2) by telling the jury “during opening
statements that the jury would not hear any testimony about the
alleged victim being punched.” “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 [the appellate court] must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Reid, 2018 UT
App 146, ¶ 17, 427 P.3d 1261 (cleaned up), cert. denied, 432 P.3d
1225 (Utah 2018).

ANALYSIS

I. Preliminary Hearing Waiver

¶12 Hararah argues that the district court “violated [his] rights
. . . when it—by threatening to prevent him from accepting a plea
deal from the State—forced him to waive his right to a
preliminary hearing.” Hararah acknowledges that he did not
object or otherwise preserve this argument. He argues that either

20220276-CA 6 2023 UT App 77
State v. Hararah

the plain error exception or the exceptional circumstances
exception applies. But Hararah cannot prevail under either
theory.

A. Plain Error

¶13 To show plain error, “a defendant must establish that (i) an
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful, i.e., absent the error, there is a
reasonable likelihood of a more favorable outcome for the
appellant, or phrased differently, our confidence in the verdict is
undermined.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346
(cleaned up).

¶14 We first address Hararah’s argument that the district court
erred by “coercing” or “forcing” him to waive his right to the
preliminary hearing. Hararah takes issue with the district court’s
statement made at the July 2020 hearing: “Mr. Hararah, do you
understand if you go to preliminary hearing, you’re going to trial
on the original charges? I won’t allow a plea negotiation after
that.” The advisability of this comment 3 is immaterial here

3. Rule 11 of the Utah Rules of Criminal Procedure indicates that
while judges have discretion to “decide[] that final disposition
should not be in conformity with [a] plea agreement” and to
therefore diverge from the plea agreement, Utah R. Crim. P.
11(i)(3), as well as to reject a plea recommendation that involves
“a plea to a lesser included offense” or “the dismissal of other
charges,” id. R. 11(h)(1), they may “not participate in plea discussions
prior to any plea agreement being made by the prosecuting attorney,” id.
R. 11(i)(1) (emphasis added).
A judge plays a critical “role as an impartial, neutral
official.” State v. Beck, 2007 UT 60, ¶ 24, 165 P.3d 1225. We
condemn any improper insertion by a trial court into the plea-
bargaining process that compromises this position.
(continued…)

20220276-CA 7 2023 UT App 77
State v. Hararah

because the record indicates that Hararah chose to waive his right
to a preliminary hearing for reasons unrelated to the district
court’s statement. In other words, the record is clear that the court
did not, in fact, force or coerce Hararah to waive the preliminary
hearing because he made an independent choice to waive it.

¶15 At the outset of the September 2020 hearing, Counsel said,
“I’ve had a chance to speak with Mr. Hararah, [and] he’s willing
to waive his right to a preliminary hearing and we can set the case
for trial—for the next step.” Critically, Counsel also said during
that hearing that “the best offer has been made and Mr. Hararah
has had a chance to discuss it, and I think we’re just going to need
to figure out when we can get [the case set] for a trial as soon as
possible in front of a jury.”

Specifically, we are troubled by the possibility that a court
may condition the permissibility of plea bargaining on waiver of
a preliminary hearing. The right to a preliminary hearing is
enshrined in our state constitution, and it cannot be so lightly
tossed aside. See Utah Const. art. I, § 13; State v. Schmidt, 2015 UT
65, ¶ 17, 356 P.3d 1204; State v. Hernandez, 2011 UT 70, ¶ 29, 268
P.3d 822. A court (as opposed to a prosecutor) must not treat the
preliminary hearing as a bargaining chip—for calendar
management or otherwise—as the court is not permitted to
participate in the bargaining process between the State and the
defendant. See Utah R. Crim. P. 11(i)(1).
But we need not decide whether the court participated in
plea negotiations here because—on this record—the court did not
enforce any alleged restrictions—temporal or otherwise—related
to the plea-bargaining process between Hararah and the State. As
we explain below, Hararah independently waived his right to a
preliminary hearing and declined the State’s plea offer. Still, we
urge courts to be mindful of their limited role related to the plea-
bargaining process.

20220276-CA 8 2023 UT App 77
State v. Hararah

¶16 We make much of the fact that Hararah waived his
preliminary hearing in the same hearing in which he expressed
his rejection of the State’s “best” plea offer. This shows that
Hararah’s waiver was not based on the possibility of future
bargaining or a fear that he would not be able to accept a plea deal
if he had a preliminary hearing. Counsel did not indicate that
Hararah anticipated any plea bargain better than the one the State
had offered—as the plea bargain offered was already the “best
offer” possible; instead, Counsel represented that Hararah had
considered the offer and had decided to proceed to trial rather
than accept the offered bargain. And Counsel did not mention the
idea that the preliminary hearing was being waived to keep open
the prospect of a future plea deal.

¶17 Hararah fails to provide us with any evidence supporting
a belief that his independent desire to proceed to trial—after
rejecting the State’s “best offer”—was not what drove his decision
to waive his right to a preliminary hearing. If Hararah had
represented in any way that he was forgoing the preliminary
hearing because he was planning to accept a plea deal or wanted
to keep his options open, the case before us would be quite
different. But instead, the record demonstrates that Hararah was
forgoing the preliminary hearing after having fully considered
and rejected the State’s best offer and with the goal of going to
trial as soon as possible. Accordingly, Hararah has not shown that
any error took place, because there is no indication that the district
court’s comment had any effect on Hararah’s actions.

¶18 Similarly, the district court’s post-waiver statement that
“seeing as we did not go to prelim, we could still have discussions
regarding, you know, some other outcome to the . . . litigation”
had no bearing on Hararah’s decision to waive his right to a
preliminary hearing. At that point, Hararah had already made his
decision to forgo the preliminary hearing, and he had also already
rejected the State’s best plea offer.

20220276-CA 9 2023 UT App 77
State v. Hararah

¶19 Furthermore, even if we assume that the district court’s
comments alone—rather than Hararah’s counterfactual claimed
reliance on them—constituted error, Hararah has not met his
burden on plain error review to show prejudice. The record shows
that Hararah would have taken the same course of action whether
or not the district court made the comments at issue. The same
facts discussed above indicate that even if the statements had
never been uttered, Hararah would have been presented with and
rejected the State’s “best offer” and would have wanted to move
as quickly as possible toward trial, including waiving his
preliminary hearing. Accordingly, Hararah’s claim on this point
fails. 4

¶20 Moreover, even if “an error exist[ed]” that “should have
been obvious to the [district] court,” Holgate, 2000 UT 74, ¶ 13
(cleaned up), any such error was cured by Hararah’s conviction

4. This reality sinks another of Hararah’s arguments. Hararah
asserts that we “should hold that unpreserved, palpably
erroneous, uninvited state [c]onstitutional violations caused by
district courts that have abandoned their neutral role should be
subjected to the heightened beyond-a-reasonable-doubt
standard.” “For certain federal constitutional errors[,] we evaluate
prejudice for whether the error was harmless beyond a reasonable
doubt.” State v. Duran, 2011 UT App 254, ¶ 13, 262 P.3d 468
(cleaned up). While Hararah “acknowledges that whether the
[heightened] standard applies to state constitutional claims is
unresolved in Utah” (emphasis in original), he invites us to apply
it here. We find no occasion to address this issue because we have
concluded that there was no error. But, even if there was
constitutional error and even if we applied the heightened
standard, we would have no trouble concluding that “the error
was harmless beyond a reasonable doubt,” see id. (cleaned up),
because Hararah’s plans were not impacted in any way by the
district court’s statements and no other outcome would have been
reached if the district court had not made the statements.

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State v. Hararah

by a jury, see State v. Aleh, 2015 UT App 195, ¶¶ 13–18, 357 P.3d
12, cert. denied, 366 P.3d 1213 (Utah 2016). In Aleh, a defendant
“contend[ed] that the trial court erred in denying his motion to
withdraw the waiver of his right to a preliminary hearing.” Id.
¶ 13. This court determined that because the “sole purpose” of a
preliminary hearing is “determining whether probable cause
exists,” “an error at the preliminary stage is cured if the defendant
is later convicted beyond a reasonable doubt.” Id. ¶¶ 14–15
(cleaned up). And “[t]his is so even when the error consists of a
complete deprivation of a preliminary hearing.” Id. ¶ 16. 5
“Because conviction beyond a reasonable doubt cures any flaw in
a preliminary hearing—including the complete deprivation of a

5. Hararah asserts that “the Aleh decision incorrectly held” that
State v. Jensen, 136 P.2d 949 (Utah 1943), was overruled. In State v.
Aleh, 2015 UT App 195, 357 P.3d 12, this court stated, “To the
extent that Jensen stands for the proposition that a conviction does
not cure any error in the preliminary hearing, including the
complete deprivation of a preliminary hearing, we conclude that
the more recent precedent on which we rely implicitly overruled
Jensen on this point.” Id. ¶ 18 n.2. Hararah argues that this ruling
“misreads all four of the Utah Supreme Court decisions upon
which it relies.” But because Aleh states that a “conviction beyond
a reasonable doubt cures any flaw in a preliminary hearing—
including the complete deprivation of a preliminary hearing,” id.
¶ 18, adopting Hararah’s view to the contrary would require us
to overturn Aleh. Hararah has not asked us to do so, and we are
bound by the Aleh court’s interpretation of Jensen and subsequent
cases. See Doyle v. Lehi City, 2012 UT App 342, ¶ 27, 291 P.3d 853
(“We are bound by the United States Supreme Court, the Utah
Supreme Court, and our own precedent under stare decisis
principles.”). Hararah further claims that the present case is
distinguishable such that the holding of Aleh does not apply. We
disagree. The broad and unequivocal language of Aleh applies
here, and Hararah’s conviction by a jury cured any error involved
in the waiver of his preliminary hearing.

20220276-CA 11 2023 UT App 77
State v. Hararah

preliminary hearing—it necessarily cures any error the [district]
court may have made in accepting a defendant’s waiver of the
right to a preliminary hearing.” Id. ¶ 18. 6 “Accordingly,
[Hararah’s] conviction of all charges beyond a reasonable doubt
cured any possible error attending his waiver of a preliminary
hearing.” See id.

¶21 Ultimately, Hararah’s argument of plain error fails.

B. Exceptional Circumstances Doctrine

¶22 We apply the exceptional circumstances doctrine “to reach
an unpreserved issue where a rare procedural anomaly has either
prevented an appellant from preserving an issue or excuses a
failure to do so.” State v. Johnson, 2017 UT 76, ¶ 29, 416 P.3d 443
(cleaned up). Hararah argues that “[b]ecause it is procedurally
uncommon in Utah to have a district court force a criminal
defendant to waive his constitutional right to a preliminary
hearing, a rare procedural anomaly occurred.”

¶23 But the claimed procedural anomaly did not actually
occur. Hararah’s argument points to the presumed effect of the
district court’s statements (namely, “forc[ing]” Hararah “to waive
his constitutional right to a preliminary hearing”) rather than the

6. We are mindful that applying Aleh limits our ability to conduct
a meaningful review of a circumstance where a court adopts a
practice of conditioning the permissibility of plea negotiations on
the waiver of a preliminary hearing. A defendant who relied on
such a restriction would either be acquitted, and would thus not
file an appeal, or be convicted, and Aleh would operate to cure the
error. See Aleh, 2015 UT App 195, ¶ 18. Therefore, the issue may
evade appellate review. Accordingly, we recognize that a petition
for interlocutory appeal may be the appropriate vehicle for
seeking review of such a practice, and we invite defendants who
wish to challenge any such practice to avail themselves of this
avenue for appellate review.

20220276-CA 12 2023 UT App 77
State v. Hararah

mere occurrence of the statements as the “rare procedural
anomaly.” But as we have explained, Hararah was not forced into
waiving his right to a preliminary hearing, because he chose to
waive that right for reasons independent from the district court’s
comments. The absence of an actual “rare procedural anomaly”
alone defeats Hararah’s argument as to the applicability of the
exceptional circumstances doctrine, but this is not all.

¶24 Even if we assume that the district court’s statements
constituted a “rare procedural anomaly,” Hararah would need to
show that they “either prevented [him] from preserving an issue
or excuse[d] a failure to do so.” See id. Hararah does not attempt
to explain what prevented him from objecting to the district
court’s statements and thereby preserving the issue. In reality,
there was nothing preventing him from doing so. Hararah could
have objected when the district court made the first statement at
the July 2020 hearing. But this is not a case where a defendant had
only one opportunity to object to an alleged error. Hararah could
have taken time to review the issue and objected during the
August 2020 hearing. Or he could have objected after the district
court’s follow-up comment at the September 2020 hearing.
Furthermore, before trial, Hararah could have filed a motion to
withdraw his waiver. On this record, Hararah had time and
multiple opportunities to object or preserve this issue, and he did
not do so.

¶25 Moreover, we are not convinced that Hararah’s failure to
preserve the issue is excusable. While we recognize the
fundamental nature of the preliminary hearing and we protect
defendants’ constitutional rights to preliminary hearings, we also
recognize that a defendant has the constitutionally guaranteed
right to waive the preliminary hearing. See Utah Const. art. I, § 13
(protecting the right to a preliminary hearing “unless the
examination be waived by the accused with the consent of the
State”); see also, e.g., Hafen v. State, 2011 UT App 85, ¶¶ 3–4, 249
P.3d 1006 (per curiam) (“[The defendant] filed his petition

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State v. Hararah

asserting that he was deprived of his preliminary hearing. . . . The
petition was inconsistent with and [superseded] by [the
defendant’s] waiver. [The defendant] was not deprived of any
right to a preliminary hearing.” (cleaned up)). Waiving a
preliminary hearing may have negative implications, but this
reality does not invalidate a qualifying waiver. See State v. Bragg,
2013 UT App 282, ¶ 40, 317 P.3d 452 (“[The defendant] waived his
right to a preliminary hearing, [forgoing] one opportunity to
explore the exact nature of the charges against him and resolve
any confusion about what those charges entailed.”). While
Hararah may, in retrospect, have benefitted from taking the
opportunity to develop the victim’s testimony at the preliminary
hearing, this does not invalidate his waiver. And his regrets do
not excuse his failure to preserve this issue. Therefore, the
exceptional circumstances doctrine does not apply.

II. Ineffective Assistance

¶26 Hararah also asserts that Counsel provided ineffective
assistance by failing to object to the district court’s comments
discussed above and by informing the jury in opening statements
that it would not hear that Hararah had punched the victim.

¶27 “To prevail on a claim of ineffective assistance of counsel,
[a defendant] must demonstrate that (1) [the defendant’s]
counsel’s performance was deficient in that it fell below an
objective standard of reasonableness and (2) the deficient
performance prejudiced the defense.” State v. Streeper, 2022 UT
App 147, ¶ 34, 523 P.3d 710 (cleaned up), cert. denied, 527 P.3d 1106
(Utah 2023); see also Strickland v. Washington, 466 U.S. 668, 687
(1984). The first prong of this test “requires showing that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. “[T]he defendant must show that
counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688.

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State v. Hararah

¶28 The second prong “requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id. at 687. “When a defendant challenges
a conviction, the question is whether there is a reasonable
probability that, absent the errors, the factfinder would have had
a reasonable doubt respecting guilt.” Id. at 695. “Because failure
to establish either prong of the test is fatal to an ineffective
assistance of counsel claim, we are free to address [a defendant’s]
claims under either prong.” Honie v. State, 2014 UT 19, ¶ 31, 342
P.3d 182.

¶29 We can easily dismiss Hararah’s first assertion of
ineffective assistance. As discussed above, Hararah did not
provide any evidence that he intended to accept a plea deal and
that he based his waiver of the right to a preliminary hearing on
such a plan. 7 Counsel was aware of Hararah’s feelings toward the
choice between pleading or going to trial and stated repeatedly
that Hararah was not interested in pleading guilty or accepting a
plea bargain. Accordingly, Hararah has not persuaded us that any
comments from the district court related to plea negotiations
would have affected his plans at all, so Counsel acted reasonably
in choosing not to object to such comments. In other words, the
district court’s comments bore no impact on Hararah’s actions, so
there was no tactical reason for Counsel to act as Hararah
retroactively desires. “In evaluating trial counsel’s performance,

7. Under the Utah Rules of Appellate Procedure, “[a] party to an
appeal in a criminal case may move the court to remand the case
to the trial court for entry of findings of fact, necessary for the
appellate court’s determination of a claim of ineffective assistance
of counsel.” Utah R. App. P. 23B(a). Hararah has not filed such a
motion seeking to supplement the record with any additional
evidence of why he waived his preliminary hearing. Therefore,
we look only to the evidence contained in the record, which does
not present an alternative reason for Hararah’s waiver apart from
his desire to quickly proceed to trial.

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State v. Hararah

we give trial counsel wide latitude in making tactical decisions
and will not question such decisions unless there is no reasonable
basis supporting them.” State v. Liti, 2015 UT App 186, ¶ 18, 355
P.3d 1078 (cleaned up). Here Counsel acted in line with Hararah’s
clear desire to proceed toward trial.

¶30 Additionally, for the same reasons described above, we are
convinced that Hararah was not prejudiced by this alleged
deficiency in performance. Hararah asserts that “[t]here is a
reasonable likelihood that if [he] had been allowed to exercise his
right to a preliminary hearing,” his case would have ended
differently. But Hararah was able to exercise his right to a
preliminary hearing. We have already explained why the district
court’s alleged carrot—permitting Hararah the possibility of
accepting a plea deal—was no carrot at all based on his express
refusal of the State’s “best offer” and his desire to proceed to trial.
Hararah’s claim might have some foundation if he had proceeded
with a preliminary hearing and the court had, in fact, restricted
his ability to negotiate a plea deal or even if he had accepted a plea
bargain after waiving the preliminary hearing. But given that he
clearly and consistently conveyed his desire to go to trial, that he
was offered the “best” plea deal and refused it, and that his
conviction by a jury at trial was in no way influenced by the
district court’s earlier comments on waiving the preliminary
hearing, we are not persuaded that the outcome would have been
any different if Counsel had objected. See Strickland, 466 U.S. at
695. Therefore, Hararah cannot show ineffective assistance on this
point.

¶31 Hararah’s second allegation of ineffective assistance is also
unavailing. Hararah asserts that Counsel performed deficiently
by saying in opening statements that the jury would “not hear any
testimony about [Hararah] punching [the alleged victim],” when
the victim went on to testify that Hararah had, in fact, hit her
through a pillow. Hararah argues that Counsel should not have
made such a promise without first “lock[ing] in” the victim’s

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State v. Hararah

testimony during a preliminary hearing. But, as discussed above,
Hararah waived the preliminary hearing of his own free will. And
it is clear that neither side was aware the victim would testify that
Hararah hit her, because the deputy testified that he did not know
of any assault other than Hararah throwing the plant.
Accordingly, we do not fault Counsel for making a statement in
line with all the known facts, and we conclude that Counsel’s
actions are not nearly “so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687.

¶32 Furthermore, Hararah was not prejudiced by this allegedly
deficient performance. Counsel was able to paint the victim as an
unreliable witness based on the inconsistencies between her
previous accounts of what happened and her trial testimony. And
Counsel elicited testimony from the State’s own witness that there
were no allegations of punching prior to trial. Accordingly,
Hararah was in a strong position to counter the State’s case, and
the jury still found him guilty of assault. From this, we see no
support for “a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.”
Id. at 695.

CONCLUSION

¶33 Hararah’s claim that the district court coerced him into
waiving his preliminary hearing is not supported by the record,
so the exceptional circumstances doctrine does not apply and the
court also did not plainly err. Additionally, Hararah’s assertion of
ineffective assistance of counsel fails. Therefore, we affirm
Hararah’s conviction.

20220276-CA 17 2023 UT App 77