Zaragoza v. State

2017 UT App 215
THE UTAH COURT OF APPEALS
JONATHAN ERIC Z ARAGOZA,
Appellant,
v.
S TATE OF U TAH ,
Appellee.
Opinion
No. 20160212-CA
Filed November 24, 2017
Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 130906346
Jonathan Eric Zaragoza, Appellant Pro Se
Sean D. Reyes and Erin Riley, Attorneys for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which J UDGES
JILL M. POHLMAN and DIANA H AGEN concurred.
HARRIS, Judge:
¶1 	In 2010, a jury convicted Jonathan Eric Zaragoza of one
count of aggravated assault, one count of domestic violence in
the presence of a child, and one count of aggravated kidnapping.
This court affirmed Zaragoza’s convictions on direct appeal.
Thereafter, Zaragoza filed a petition for post-conviction relief,
setting 	forth 	several 	reasons 	why 	he 	believed 	he 	had 	not
received 	a 	fair 	trial. 	The 	district 	court 	resolved 	the 	post-
conviction case by granting the State’s motion for summary
judgment, and Zaragoza now appeals. We affirm.

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BACKGROUND
¶2 	Zaragoza, his wife (Wife), Wife’s daughter (Daughter),
and one of Zaragoza’s friends (Friend) were staying at a motel in
Salt Lake City, and had been there for several days.1 One night,
Zaragoza left the motel in Wife’s car. Friend started “calling
around” and discovered that Zaragoza was at a different hotel
with another person. Wife and Friend went over to the other
hotel, retrieved Wife’s car, and returned to the motel. Wife “took
her car . . . so [Zaragoza] couldn’t take the car and leave her
without one.” Once Wife and Friend returned, Wife “packed up
[Zaragoza’s] belongings and was going to tell him that she was
done[,] . . . and she was going to throw him out.” After Wife
packed up Zaragoza’s belongings, she returned to the other
hotel, gave Zaragoza his belongings, and told him, “I want a
divorce and I’m leaving.” Afterwards, Wife drove away and
“hid the car” because she did not want Zaragoza “to come back
and take the car.” Wife and Friend made their way back to the
motel, and Wife, Friend, and Daughter fell asleep.
¶3 	A while later, Zaragoza came back to the motel and “was
upset” and “yelling at them.” Wife took Daughter to the front
desk, and asked the front desk clerk to call the police. When the
1. As discussed in greater detail below, prior to trial Wife
invoked the spousal testimonial privilege and informed the
court that she would not testify for the State. However, Wife
gave two statements to police about the incident, the first just
after the incident, and the second at a later date while she was
staying at a women’s shelter. The trial court allowed the State to
introduce both of these statements into evidence. At trial, the
State’s case consisted primarily of Wife’s two statements, as
explained 	through 	the 	police 	officers 	who 	interviewed 	her.
Many of the quotations included here come from Wife’s two
statements.

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Police arrived, Wife and Daughter went back to the room. At
that point, Wife “was under the impression that [Zaragoza had]
been taken into custody [be]cause he didn’t come back to the
room.”
¶4 	The 	following 	morning, 	Zaragoza 	“came 	back 	to 	the
[m]otel room[,] and he was furious with [Wife].” Upon entering
the room, Zaragoza “punched [Wife] in the nose . . . causing her
nose to bleed, after which he punched her in the nose again and
then in the side of the head.” He also “punched her in the
stomach which doubled her over and sent her to the ground . . .
at which point he picked up a baseball bat.” Bat in hand,
Zaragoza struck Wife “in the leg . . . several times.” In addition
to hitting Wife in the leg, Zaragoza “would hold the bat in the
middle of [Wife’s] head and then yell at her and then hit her on
the top of the head” with the bat. This ordeal lasted, according to
Wife, for “two to three hours.” Friend and Daughter were in the
room the entire time.
¶5 	After a while, Zaragoza “told [Wife] to take off her clothes
and get in the shower and clean up.” After Wife had taken her
clothes off, Zaragoza “punched her in the stomach . . . and in her
private spot.” Wife showered and told Zaragoza where she had
parked the car. Zaragoza finally left the room, at which point
Wife 	and 	Daughter 	went 	to 	the 	motel 	office 	for 	help. 	An
ambulance arrived and Wife was later treated at a hospital for
her injuries.
¶6 	After investigation, the State charged Zaragoza with one
count of aggravated assault causing serious bodily injury, one
count of domestic violence in the presence of a child, and one
count of aggravated kidnapping.
¶7 	Before 	trial, 	the 	court 	entered 	a 	no-contact 	order
prohibiting Zaragoza from communicating with Wife. Despite
the order, and after its issuance, Zaragoza made 276 phone calls
to Wife from the jail. Also before trial, Wife invoked the spousal

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testimonial privilege and informed the court that she would not
testify against Zaragoza. In response, the State asked the trial
court,2 pursuant to the forfeiture-by-wrongdoing doctrine, to
admit two statements Wife had previously made to police. After
holding a hearing, the trial court determined that Zaragoza,
through his 276 phone calls and other means, had “engaged in
witness tampering 	to 	attempt to induce” 	Wife 	to 	withhold
testimony. Accordingly, the trial court concluded that Zaragoza
had intentionally made Wife unavailable to testify through his
own 	wrongful 	actions, 	and 	therefore 	the 	forfeiture-by-
wrongdoing doctrine applied. Thus, the court allowed the State
to introduce Wife’s two out-of-court statements describing the
incident.
¶8 	At the close of the State’s case-in-chief, defense counsel
moved to dismiss the aggravated kidnapping charge, arguing
that the charge merged with the aggravated assault charge. The
trial court took the matter under advisement and later denied
the motion, explaining that “the crime of aggravated assault is in
a different category” than the crime of aggravated kidnapping
“because there is no detention that is necessarily incidental to the
crime of aggravated assault.”
¶9 	During the defense’s case, counsel asked Wife to testify in
Zaragoza’s defense. She agreed to do so, and testified generally
that Zaragoza did not lock her in the motel room or otherwise
physically restrain her from leaving the motel room. She added
that she did not sustain any injuries that caused a protracted loss
of bodily function.
2. We use the term “trial court” to refer to the court that presided
over Zaragoza’s original criminal trial, and we use the term
“district court” to describe the court that presided over the post-
conviction case.

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¶10 	After hearing the evidence, the jury convicted Zaragoza of
aggravated 	kidnapping, 	aggravated 	assault 	involving 	bodily
injury (a lesser included offense of aggravated assault causing
serious bodily injury), and domestic violence in the presence of a
child. 	Zaragoza 	appealed 	his 	convictions, 	and 	this 	court
affirmed. See State v. Zaragoza, 2012 UT App 268, ¶ 10, 287 P.3d
510. In that direct appeal, Zaragoza argued, first, that the trial
court should have “instruct[ed] the jury on the lesser-included
relationship 	between 	aggravated 	assault 	and 	aggravated
kidnapping.” Id. ¶ 4. And second, he argued that the trial court
should not have admitted Wife’s out-of-court statements. Id. ¶ 7.
We rejected those arguments, explaining that Zaragoza did not
preserve his first argument, id. ¶ 6, and that the forfeiture-by-
wrongdoing doctrine applied to Wife’s out-of-court statements,
id. ¶ 9.3
¶11 	After 	this 	court 	affirmed 	Zaragoza’s 	convictions, 	he
petitioned for post-conviction relief. In his petition, Zaragoza
argued, first, that the prosecutor had been improperly permitted
to “testify about phone calls, letter[s] referred to in phone calls,
and prior bad acts and pending charges not yet adjudicated.” He
also alleged he was denied effective assistance of counsel when
trial 	counsel: 	(1) 	called 	Wife 	to 	testify 	against 	his 	wishes,
(2) failed 	to 	independently 	investigate 	and 	pursue 	an 	alibi
defense, (3) failed to properly argue for a lesser included offense
instruction on the aggravated kidnapping charge, and (4) failed
to object to the “prosecutor’s testimony” regarding the jail phone
calls between Zaragoza and Wife while the case was pending. In
addition to his claims that his trial counsel was ineffective,
3. We also noted that “even if there had been any error in
admitting Wife’s out-of-court statements[,] it was cured when
Wife 	subsequently 	testified” 	and 	was 	subject 	to 	cross-
examination. State v. Zaragoza, 2012 UT App 268, ¶ 9, 287 P.3d
510.

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Zaragoza also asserted in his petition that his appellate attorneys
on direct appeal were ineffective for: (a) failing to “raise and
thoroughly 	investigate” 	whether 	trial 	counsel 	had 	been
constitutionally ineffective, (b) failing to file a writ of certiorari in
the Utah Supreme Court, and (c) failing to argue that Zaragoza’s
right to a speedy trial had been violated.
¶12 	After 	filing 	his 	post-conviction 	petition, 	Zaragoza
requested that the district court appoint an attorney to represent
him in the post-conviction case. The district court denied the
request, explaining that “[t]here does not appear to be anything
unusually complex or difficult about the issues in this case, and
the appointment of counsel is not warranted.” Zaragoza then
moved for reconsideration. The district court denied Zaragoza’s
request, 	again 	explaining 	that 	“the 	issues 	presented 	in 	the
Petition are not complex and the petitioner appears to be fully
capable 	of 	presenting 	his 	claims 	in 	a 	clear 	and 	articulate
manner.”
¶13 	The 	State 	moved 	for 	summary 	judgment 	on 	all 	of
Zaragoza’s claims for post-conviction relief. The district court
granted the motion, and Zaragoza now appeals.
ISSUES AND STANDARDS OF REVIEW
¶14 	First, Zaragoza contends that the district court should
have 	appointed 	an 	attorney 	to 	assist 	him 	with 	his 	post-
conviction claims. We review the district court’s denial of a
motion to appoint counsel under the Post-Conviction Remedies
Act (the PCRA) for an abuse of discretion. Ross v. State, 2012 UT
93, ¶ 57, 293 P.3d 345. “An appellate court will find an abuse of
discretion only if it can be said that no reasonable person could
adopt the view of the [district] court.” State v. Atkinson, 2017 UT
App 83, ¶ 8, 397 P.3d 874 (citation and internal quotation marks
omitted) (discussing abuse of discretion in the context of a
sentencing decision).

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¶15 	Next, Zaragoza argues that the district court should not
have granted the State’s motion for summary judgment on his
substantive claims for relief under the PCRA. A district court
correctly grants summary judgment “if the moving party shows
that there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Utah R.
Civ. P. 56(a). “We review an appeal from an order dismissing or
denying a petition for post-conviction relief for correctness . . . .”
Ross, 2012 UT 93, ¶ 18 (citation and internal quotation marks
omitted). 	Likewise, 	we 	review 	a 	district 	court’s 	summary
judgment ruling for correctness. Id.
ANALYSIS
I. Zaragoza’s Request for Appointment of Post-Conviction
Counsel
¶16 	Zaragoza first argues that the district court erred by
denying his motion to appoint counsel. We disagree.
¶17 	Under 	the 	express 	terms 	of 	the 	governing 	statute, 	a
district court enjoys wide latitude regarding whether to appoint
counsel in a post-conviction case. The PCRA itself states that
“the court may, upon the request of an indigent petitioner,
appoint counsel on a pro bono basis to represent the petitioner in
the post-conviction court or on post-conviction appeal.” Utah
Code Ann. § 78B-9-109(1) (LexisNexis 2012) (emphasis added);
see also Utah R. Civ. P. 65C(j) (same). The next subsection of the
PCRA instructs district courts that, “[i]n determining whether to
appoint counsel, the court shall consider” two separate factors:
“(a) 	whether 	the 	petition 	or 	the 	appeal 	contains 	factual
allegations 	that 	will 	require 	an 	evidentiary 	hearing; 	and
(b) whether the petition involves complicated issues of law or
fact 	that 	require 	the 	assistance 	of 	counsel 	for 	proper
adjudication.” Utah Code Ann. § 78B-9-109(2) (emphasis added).
Accordingly, a district court enjoys wide discretion over the

Zaragoza v. State
20160212-CA 	8 	2017 UT App 215
ultimate decision about whether to appoint pro bono counsel in
post-conviction cases, as long as the district court, in arriving at
its decision, considers the factors that the statute requires it to
consider.4 	Indeed, 	in 	this 	context, 	our 	supreme 	court 	has
instructed that a district court abuses its discretion “only if its
decision was beyond the limits of reasonability,” an event which
occurs 	when 	the 	district 	court 	has 	taken 	actions 	that 	are
“inherently unfair” or that “no reasonable person would take.”
Ross, 2012 UT 93, ¶ 57 (citation and internal quotation marks
omitted).
¶18 	Here, the district court properly considered both statutory
factors. In announcing its decision, the district court concluded
that the petition “implicate[d] issues of law that [could] be
determined from the record,” and that therefore no evidentiary
hearing was required. In addition, the district court stated that
“[t]here does not appear to be anything unusually complex or
difficult about the issues in this case.” Based on its consideration
of 	these 	two 	statutorily-mandated 	factors, 	the 	district 	court
concluded that “the appointment of counsel is not warranted.”
¶19 	This analysis was entirely appropriate. The district court
considered the factors it was required to consider by statute.
And we perceive nothing about the district court’s decision that
suggests 	it 	was 	“beyond 	the 	limits 	of 	reasonability” 	or
“inherently unfair.” See Id. Under the governing statute, the
ultimate decision about whether to appoint counsel rests with
the 	district 	court, 	and 	we 	will 	not 	ordinarily 	disturb 	that
4. This conclusion is not only required by the statute’s plain
language, it is also consistent with the well-settled principle that
“there is no constitutionally or statutorily guaranteed right to
counsel when defendants elect to pursue collateral attacks on
their convictions.” State v. Litherland, 2000 UT 76, ¶ 13 n.4, 12
P.3d 92 (citations omitted).

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decision. In sum, we cannot conclude on this record that the
district court abused its discretion in denying Zaragoza’s request
to appoint pro bono counsel.
II. The State’s Motion for Summary Judgment
¶20 	Next, Zaragoza argues that the district court should not
have 	granted 	the 	State’s 	summary 	judgment 	motion.
Specifically, he asserts that the district court should not have
disposed of all of his post-conviction arguments as a matter of
law on summary judgment. We conclude that the district court
properly granted the State’s motion for summary judgment, and
appropriately dismissed all of Zaragoza’s arguments as a matter
of law.
¶21 	Zaragoza’s arguments can be summarized as follows.
First, he argues that the trial court should not have let the
prosecutor “testify” at trial. Second, he argues that his appellate
attorneys were ineffective for failing to argue on direct appeal
that 	his 	trial 	counsel 	was 	ineffective 	for 	several 	reasons,
including calling Wife to testify, not investigating a possible alibi
defense, and not requesting jury instructions for lesser included
offenses. Third, he asserts that his appellate attorneys were
ineffective in their own right for failing to file a writ of certiorari
in 	the 	Utah 	Supreme 	Court, 	and 	for 	failing 	to 	argue 	that
Zaragoza’s speedy trial rights had been violated. We address
each of these arguments in turn.
A. 	The Prosecutor’s “Testimony”
¶22 	Zaragoza first argues that the prosecutor was improperly
“allowed to testify about the 27[6] phone calls, letters that were
sent while [Zaragoza] was in jail, prior bad acts[,] and about
charges pending but not adjudicated.” This argument fails for
two independent reasons.

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20160212-CA 	10 	2017 UT App 215
¶23 	First, a litigant is barred from raising any matter in a post-
conviction relief petition that “was raised or addressed at trial or
on appeal” or that “could have been but was not raised at trial or
on appeal.” Utah Code Ann. § 78B-9-106(1)(b)–(c) (LexisNexis
2012). Zaragoza’s argument is not couched in terms of ineffective
assistance of counsel, and it is an argument that could have
easily been raised at trial or on direct appeal. Zaragoza failed to
do so. Accordingly, Zaragoza is statutorily barred from raising it
now.
¶24 	Second, even if we could consider the merits of this claim,
it would fail for the simple reason that the prosecutor did not
actually testify. Certainly, the attorney for the State gave an
opening 	statement 	and 	made 	a 	closing 	argument. 	The
prosecutor, 	in 	cross-examining 	witnesses, 	sometimes 	asked
leading questions, a practice that is allowed under applicable
rules. See Utah R. Evid. 611(c)(1) (stating that “[o]rdinarily, the
court should allow leading questions . . . on cross examination”).
But none of this activity constitutes “testifying.”
¶25 	Accordingly, the district court properly granted summary
judgment on this claim.5
5. In addition, Zaragoza lodges two additional arguments that
merit only brief mention. Specifically, he contends that the
aggravated kidnapping charge should have merged into the
aggravated assault charge, and that the post-conviction judge
should not have handled the case. He raised the first argument
(merger) with the original trial court, but did not raise that
argument on direct appeal. And he has never before raised the
second argument (disqualification of the post-conviction judge)
at any point prior to this appeal. Neither of these arguments is
couched in terms of the ineffectiveness of either his trial counsel
or his appellate attorneys. We therefore decline to address these
arguments. See Utah Code Ann. § 78B-9-106(1)(c) (LexisNexis
(continued…)

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B. 	Zaragoza’s Claims for Ineffective Assistance of Counsel
¶26 	The remainder of Zaragoza’s claims assert, to one degree
or 	another, 	that 	Zaragoza’s 	appellate 	attorneys6 	rendered
ineffective assistance to him. We conclude that his appellate
attorneys were not constitutionally 	ineffective, and that the
district court therefore properly entered summary judgment in
favor of the State on these claims.
¶27 	“In all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defence.” U.S.
Const. amend. VI. This constitutional right includes not just the
right to assistance of counsel, but also the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686
(…continued)
2012) (stating that a litigant cannot raise an issue in a post-
conviction relief case that “could have been but was not raised at
trial or on appeal”); see also Winward v. State, 2012 UT 85, ¶ 11,
293 P.3d 259 (declining to address argument in post-conviction
case raised for the first time on appeal).
6. Zaragoza also attempts to argue that his trial counsel was
ineffective, for the same reasons that he claims his appellate
attorneys were 	ineffective. 	However, 	Zaragoza 	is precluded
from raising those arguments here, because he could have raised
those claims during his direct appeal. See Utah Code Ann. § 78B-
9-106(1)(b)–(c) (stating that a defendant is not eligible for post-
conviction relief upon any ground that was or could have been
raised at trial or on appeal). In assessing Zaragoza’s claims for
ineffective assistance of his appellate attorneys, however, we will
be required to at least partially examine the performance of
Zaragoza’s trial counsel, at least insofar as Zaragoza claims that
his appellate attorneys were ineffective for not raising claims
that his trial counsel was ineffective.

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20160212-CA 	12 	2017 UT App 215
(1984). 	In 	order 	to 	demonstrate 	that 	his 	attorneys 	were
constitutionally ineffective, Zaragoza must establish, first, that
“counsel’s performance was deficient.” Landry v. State, 2016 UT
App 164, ¶ 23, 380 P.3d 25 (citation and internal quotation marks
omitted). Second, he must show that “the deficient performance
prejudiced the defense.” Id. (citation and 	internal quotation
marks 	omitted). 	The 	same 	standards 	apply 	to 	claims 	for
ineffective assistance of appellate counsel as apply to claims for
ineffective assistance of trial counsel. See Lafferty v. State, 2007 UT
73, ¶ 39, 175 P.3d 530.
¶28 	In evaluating an attorney’s performance, “we recognize
the variety of circumstances faced by defense counsel and the
range of legitimate decisions regarding how best to represent a
criminal defendant.” Archuleta v. Galetka, 2011 UT 73, ¶ 39, 267
P.3d 	232 	(brackets, 	citation, 	and 	internal 	quotation 	marks
omitted). 	Thus, 	a 	petitioner 	“must 	overcome 	the 	strong
presumption that trial counsel rendered adequate assistance and
exercised reasonable professional judgment.” Id. (citation and
internal quotation marks omitted).
¶29 	To prevail on a claim of ineffective assistance of appellate
counsel, a defendant “must show that the issue was obvious
from the trial record and . . . probably would have resulted in
reversal 	on 	appeal.” 	Lafferty, 	2007 	UT 	73, 	¶ 	39 	(ellipsis 	in
original) 	(brackets, 	citation, 	and 	internal 	quotation 	marks
omitted). “‘[T]he Sixth Amendment does not require an attorney
to 	raise 	every 	nonfrivolous 	issue 	on 	appeal . . . . 	[C]ounsel
frequently will “winnow out” weaker claims in order to focus
effectively on those more likely to prevail.’” Ross, 2012 UT 93,
¶ 45 (second alteration in original) (citation omitted).
1. 	Wife’s Testimony at Trial
¶30 	First, 	Zaragoza 	argues 	that 	he 	received 	ineffective
assistance on appeal when his appellate attorneys failed to argue
that his trial counsel was ineffective for calling Wife “to testify as

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20160212-CA 	13 	2017 UT App 215
a defense witness contrary to [Zaragoza’s] wishes.” He takes
particular issue with his trial attorney’s decision, because he
claims that the State could “easily manipulate [Wife’s] testimony
sufficient to establish” the State’s case. We disagree.
¶31 	Zaragoza’s argument fails to account for the fact that,
even before Wife testified in person, the State had already
successfully introduced Wife’s out-of-court statements, pursuant
to the forfeiture-by-wrongdoing doctrine, through the two police
officers who had interviewed her. The State introduced those
statements in a way that precluded any cross-examination of
Wife. The only way defense counsel could cross-examine Wife
on her statements was to call Wife to the stand. We agree with
the 	district 	court’s 	observation 	that 	calling 	Wife 	to 	testify
allowed 	the 	defense 	to 	“challenge 	the 	reliability 	of 	Wife’s
statements, the severity of the harm to [her], and assert that [she]
was not physically restrained.” There were therefore plausible
tactical reasons for counsel to call Wife to testify, and in the
context of ineffective assistance claims we do not second-guess
tactical decisions by counsel. See State v. Clark, 2004 UT 25, ¶ 6,
89 P.3d 162 (stating that “[t]he court give[s] trial counsel wide
latitude in making tactical decisions and will not question such
decisions unless there is no reasonable basis supporting them”
(citation and internal quotation marks omitted)); see also State v.
Larrabee, 2013 UT 70, ¶ 19, 321 P.3d 1136 (explaining that a
petitioner must overcome a presumption of reasonableness and
if counsel makes a strategic choice after a thorough investigation,
“then 	that 	choice 	is 	‘virtually 	unchallengeable’” 	(quoting
Strickland, 466 U.S. at 690–91)).
¶32 	Therefore, 	Zaragoza’s 	appellate 	attorneys 	were 	not
ineffective 	for 	failing 	to 	argue 	that 	his 	trial 	counsel 	was
ineffective for electing to call Wife as a witness. The district court
properly granted summary judgment on this ground.

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2. 	“Alibi” Defense
¶33 	Zaragoza next argues that his appellate attorneys were
ineffective for failing to argue, on direct appeal, that his trial
counsel was ineffective for failing to “independently investigate
alibi information, interview [and call] alibi witnesses[,]” and for
failing to “introduce exculpatory alibi evidence in defense of the
[aggravated] kidnapping charge.” In his petition, he specifically
argued that trial counsel should have obtained surveillance
camera footage that would have established that he “could not
have been present” at the motel “for [the] complete [two] hour
duration during [the] assault.”7 In our view, trial counsel’s
alleged 	failure 	to 	investigate 	alibi 	information 	was 	not
constitutionally ineffective representation, because the State was
not required to prove, for any of the crimes with which Zaragoza
was charged, that Zaragoza was present at the motel for any
specific length of time, and certainly not for the entire time that
Wife claimed he was there.
¶34 	As noted above, Zaragoza was charged with three crimes:
aggravated 	assault 	causing 	serious 	bodily 	injury, 	domestic
violence in the presence of a child, and aggravated kidnapping.
None 	of 	these 	crimes 	require 	the 	State 	to 	prove 	that 	the
defendant was present for any specific length of time. There is
no temporal requirement for aggravated assault; indeed, an
assault can happen very quickly. See Utah Code Ann. § 76-5-102,
103 (LexisNexis Supp. 2017). Likewise, there is no temporal
requirement for the commission of domestic violence in the
presence of a child, a crime which can also happen very quickly.
See 	id. 	§ 	76-5-109.1(2) 	(LexisNexis 	2012). 	With 	regard 	to
aggravated 	kidnapping, 	“[a]n 	actor 	commits 	aggravated
kidnapping if the actor, in the course of committing unlawful
7. Wife testified that Zaragoza came to the motel around 9:00
a.m. or 10:00 a.m. and left just before noon.

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20160212-CA 	15 	2017 UT App 215
detention or kidnapping,” uses a “dangerous weapon” or “acts
with intent” to commit one of several enumerated actions. See id.
§ 	76-5-302(1) 	(LexisNexis 	Supp. 	2017). 	There 	is 	no 	specific
temporal requirement for unlawful detention. See id. § 76-5-
304(1) (LexisNexis 2012). As for kidnapping, there are several
alternative definitions of the crime, only one of which has any
temporal requirement; that alternative definition requires the
defendant to have “detain[ed] or restrain[ed] the victim for any
substantial period of time.” See id. § 76-5-301(1)(a) (LexisNexis
2012); see also State v. Wilder, 2016 UT App 210, ¶ 20, 387 P.3d 512
(explaining 	that 	“the 	kidnapping 	alternative 	under 	the
aggravated 	kidnapping 	statute 	may 	require 	detain[ing] 	or
restrain[ing] the victim for [a] substantial period of time, [but]
the 	unlawful 	detention 	alternative 	does 	not” 	(citation 	and
internal quotation marks omitted)). Given the elements of the
crimes for which he was charged, the State was not required to
prove that Zaragoza was at the motel for any specific length of
time, and certainly not for two hours.
¶35 	Importantly, Zaragoza does not claim that he was never
at the motel on the morning in question, and therefore does not
argue that the surveillance video footage would show that he
was never at the motel on the morning in question. Indeed, at
trial, Zaragoza did not deny committing an assault upon Wife at
the motel that morning. Instead, he claims only that he was not
at the motel for the entire two- or three-hour time span that Wife
claimed he was there, and that the surveillance video would
support that contention. But even if we assume that to be true,
the 	surveillance 	video 	would 	not 	have 	significantly 	aided
Zaragoza’s trial defense. All of the crimes with which Zaragoza
was charged could have been committed fairly quickly, and
none required Zaragoza to be present for any specific length of
time. Therefore, even if trial counsel had obtained surveillance
video showing Zaragoza was not present at the motel for the
entire time Wife claimed he was there, a jury could still have

Zaragoza v. State
20160212-CA 	16 	2017 UT App 215
convicted him of aggravated assault, domestic violence in the
presence of a child, and aggravated kidnapping.
¶36 	Certainly, 	evidence 	tending 	to 	show 	that 	Wife’s
recollection of events was not completely accurate may have had
some value to Zaragoza’s case, in that it may have allowed
Zaragoza to more effectively challenge Wife’s credibility. But the
surveillance video evidence would not have had appreciable
value beyond that. Trial attorneys must often make difficult
decisions 	about 	which 	matters 	to 	spend 	time, 	energy, 	and
resources 	on, 	and 	which 	matters 	to 	let 	go. 	Given 	the
unlikelihood that investigating the motel video footage would
have materially assisted Zaragoza’s case, trial counsel was not
constitutionally ineffective for making the decision to spend his
resources elsewhere. See Burke v. State, 2015 UT App 1, ¶¶ 23, 25,
26, 342 P.3d 299 (concluding that the accused had not received
ineffective assistance of counsel merely due to counsel’s failure
to investigate a potential alibi, because “the possible alibi could
only 	have 	exonerated 	[the 	defendant] 	for 	acts 	committed”
during “the last hour of a nearly seven-hour period”), cert.
denied, 352 P.3d 106 (Utah 2015), and cert. denied, 136 S. Ct. 266
(2015). Accordingly, Zaragoza’s appellate attorneys were not
constitutionally ineffective for failing to argue, on direct appeal,
that 	his 	trial 	counsel 	was 	ineffective 	for 	allegedly 	not
investigating this “alibi” defense. The district court properly
granted summary judgment on this ground.8
8. Zaragoza also contends that his trial counsel was ineffective
for failing to request a bill of particulars on the aggravated
kidnapping charge, which he contends would have forced the
State to elect between a “kidnapping” or “unlawful detention”
theory 	on 	the 	aggravated 	kidnapping 	charge. 	A 	bill 	of
particulars would not, however, have forced the prosecution to
elect to proceed under a “kidnapping” or “unlawful detention”
theory. “A defendant is entitled to a bill of particulars ‘only
(continued…)

Zaragoza v. State
20160212-CA 	17 	2017 UT App 215
3. 	Lesser Included Offenses
¶37 	Zaragoza additionally asserts that his appellate attorneys
were ineffective for not arguing, on direct appeal, that his trial
counsel was ineffective for failing to request jury instructions for
kidnapping and unlawful detention as lesser included offenses
of aggravated kidnapping. We disagree.
¶38 	A 	defendant 	is 	entitled 	to 	a 	lesser 	included 	offense
instruction when the “charged offense and the lesser included
offense have overlapping statutory elements” and “the evidence
provides a rational basis for a verdict acquitting the defendant of
the offense charged and convicting him on the [lesser] included
offense.” State v. Powell, 2007 UT 9, ¶ 24, 154 P.3d 788 (citation
and internal quotation marks omitted). In determining whether
to give a lesser included offense instruction, a trial court does not
weigh the evidence, but instead determines if there is a rational
basis for a jury to acquit on the greater offense while convicting
on the lesser offense. Id.
¶39 	Here, 	the 	first 	part 	of 	the 	inquiry 	is 	met: 	unlawful
detention 	and 	kidnapping 	overlap 	with 	the 	elements 	of
aggravated 	kidnapping. 	See 	Utah 	Code 	Ann. 	§ 	76-5-306.
However, in this case, the record suggests no rational basis for a
verdict 	acquitting 	Zaragoza 	of 	aggravated 	kidnapping 	and
convicting 	him 	of 	one 	of 	the 	lesser 	offenses. 	One 	crucial
(…continued)
when the information or indictment is constitutionally deficient
by reason of its failure to inform of the nature and cause of the
offense charged.’” State v. Bernards, 2007 UT App 238, ¶ 15, 166
P.3d 626 (quoting State v. Allen, 839 P.2d 291, 298 (Utah 1992)). A
bill of particulars would have given Zaragoza notice of the
charges—which he already had—but it would not have forced
the prosecution to elect a particular theory.

Zaragoza v. State
20160212-CA 	18 	2017 UT App 215
difference between aggravated kidnapping and a lesser offense
is 	the 	use 	of 	a 	dangerous 	weapon. 	See 	id. 	§ 	76-5-302(1)(a)
(defining aggravated kidnapping as, among other things, the
commission of either “unlawful detention or kidnapping” while
using “a dangerous weapon”). The evidence at trial showed—
overwhelmingly—that Zaragoza used a baseball bat when he
assaulted Wife. Indeed, at trial Zaragoza conceded the point:
defense counsel stated during closing argument that “there’s
really no dispute that [Wife] was assaulted with a bat.” There
was simply no evidence presented at trial demonstrating that
Zaragoza committed kidnapping or unlawful detention, but not
aggravated kidnapping. Thus, there was no “rational basis” for a
jury to convict him of either kidnapping or unlawful detention,
but acquit him of aggravated kidnapping. He was therefore not
entitled to lesser included offense instructions. See, e.g., Powell,
2007 UT 9, ¶ 28 (explaining that the defendant was not entitled
to lesser included offense instruction of aggravated assault when
“[t]he State’s evidence overwhelmingly demonstrated that [the
defendant attacked the victim] with the specific intent to kill”
and therefore there was no rational basis for acquitting the
defendant of the charged crime, attempted murder).
¶40 	Because Zaragoza was not entitled to lesser included
offense instructions on the aggravated kidnapping charge, his
trial counsel was not ineffective for failing to argue for the lesser
included instructions. Therefore, Zaragoza’s appellate attorneys
were not ineffective for failing to argue that his trial counsel was
ineffective. 	The 	district 	court 	therefore 	properly 	granted
summary judgment on this issue.
4. 	Writ of Certiorari in the Utah Supreme Court
¶41 	Next, Zaragoza claims he was denied effective assistance
of 	counsel 	because 	his 	appellate 	attorneys, 	after 	this 	court
affirmed Zaragoza’s convictions on direct appeal, did not seek
review before the Utah Supreme Court. However, the Utah

Zaragoza v. State
20160212-CA 	19 	2017 UT App 215
Supreme Court’s review is discretionary. See Utah Code Ann.
§ 78A-3-102(5) (LexisNexis 2012). This claim therefore fails for
the simple reason that there is no constitutional right to counsel
on discretionary appeals. See Ross v. Moffit, 417 U.S. 600, 610
(1974) 	(explaining 	that 	a 	defendant 	does 	not 	have 	a
constitutional right to counsel for the purpose of mounting a
“discretionary appeal to the State Supreme Court”). It follows,
then, that there is no right to effective assistance of counsel in
asking 	an 	appellate 	court 	to 	accept 	a 	discretionary 	appeal.
Wainwright v. Torna, 455 U.S. 586, 587–88 (1982) (per curiam)
(explaining 	that 	because 	a 	defendant 	does 	not 	have 	a
constitutional 	right 	to 	review 	on 	discretionary 	appeals, 	a
petitioner cannot be deprived of effective assistance of counsel
by counsel’s failure to seek discretionary review). Therefore, the
district court properly granted summary judgment on this claim.
5. 	Speedy Trial
¶42 	Next, Zaragoza argues that his appellate attorneys should
have argued on direct appeal that his speedy trial rights had
been violated. We are unpersuaded.
¶43 	To determine whether a defendant’s speedy trial rights
have been violated, we consider the “[l]ength of the delay, the
reason for the delay, the defendant’s assertion of his right, and
prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530
(1972). However, a review of all four factors is only necessary
when a delay is presumptively prejudicial. Id. To trigger a Barker
analysis necessitating the evaluation of all four factors, Zaragoza
“must allege that the interval between accusation and trial has
crossed the threshold dividing ordinary from presumptively
prejudicial delay . . . since, by definition, [a defendant] cannot
complain that the government has denied him a speedy trial if it
has, in fact, prosecuted [the] case with customary promptness.”
Doggett v. United States, 505 U.S. 647, 651–52 (1992) (citation and
internal quotation marks omitted).

Zaragoza v. State
20160212-CA 	20 	2017 UT App 215
¶44 	Here, the State charged Zaragoza on June 23, 2009, and
trial 	took 	place 	on 	June 	7, 	2010. 	It 	does 	not 	strike 	us 	as
presumptively dilatory for a first-degree felony case to be tried
in approximately one year. In this case, moreover, the fact that
the case was not tried sooner is a matter that cannot fairly be laid
entirely at the feet of the State. Indeed, Zaragoza requested
several continuances. The trial court noted in its minute entry for
one of the requests that “Defendant is having difficulty with
representation 	by 	the 	whole 	[Legal 	Defender’s 	Association]
Office” and that Zaragoza was “[b]eing completely difficult with
any representation.” Thus, Zaragoza appears to have caused at
least some of the delay of which he now complains.
¶45 	We agree with the district court’s conclusion that “[t]he
length of delay in this case is not unreasonable and is not
presumptively prejudicial.” See, e.g., State v. Willett, 909 P.2d 218,
225 (Utah 1995) (holding that a delay of 345 days did not violate
a defendant’s speedy trial rights when “[t]he length of the delay
was not disproportionate to the complexity of the case,” and the
defendant 	“caused 	delays 	by 	requesting 	continuances 	for
discovery and to file motions”). Therefore, Zaragoza’s appellate
attorneys were not ineffective for failing to raise this argument
on direct appeal, and the district court properly granted the
State’s motion for summary judgment on this claim.
CONCLUSION
¶46 	The district court did not abuse its discretion in denying
Zaragoza’s requests for appointment of post-conviction counsel,
and the district court correctly granted the State’s motion for
summary judgment.
¶47 	Affirmed.