State v. Perez

2026 UT App 92

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JOSEPH MANUEL PEREZ,
Appellant.

Opinion
No. 20240962-CA
Filed June 11, 2026

Second District Court, Ogden Department
The Honorable Reuben J. Renstrom
No. 231903111

Emily Adams, Freyja Johnson, Brittany A. Urness,
and Melissa J. Townsend, Attorneys for Appellant
Derek E. Brown and Jason Greene,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and AMY J. OLIVER
concurred.

ORME, Judge:

¶1 Joseph Manuel Perez was convicted of aggravated
burglary, aggravated assault, and destruction of property after he
disrupted a party by kicking down his neighbors’ door and
pointing what turned out to be a BB gun at them. On appeal, Perez
argues his trial counsel (Counsel) provided ineffective assistance
in failing to request for-cause removal of several allegedly biased
jurors. He also argues the trial court failed to resolve what he
views as an inaccuracy in the presentence investigation report (the
PSI). We disagree with Perez’s claims and affirm.
State v. Perez

BACKGROUND 1

The Incident

¶2 Perez lived above an apartment occupied by a neighbor
(Neighbor), Neighbor’s girlfriend (Girlfriend), and their children.
One day, Perez asked Neighbor to “hold” his backpack for him
while he went to see a friend. Neighbor did not look inside, but
he knew that Perez “carrie[d] his weapon” and alcohol in the
backpack, so Neighbor “put it away” for him.

¶3 Later that day, Neighbor and Girlfriend hosted a gathering
in their apartment that Perez attended. But after “a pretty
intoxicated” Perez became “very aggressive,” “took out his
magazine and went to [get] his gun,” Girlfriend “took the clip
away from him” and asked him to leave. Neighbor and Girlfriend
put the magazine in the backpack, which remained where
Neighbor had stored it.

¶4 Perez left the apartment, and Neighbor deadbolted the
door behind him. But five minutes later, Perez came back; kicked
down the door, breaking it off its hinges; and pointed a different
gun—what looked like “a black pistol”—at Girlfriend and her
sister. Neighbor, who was standing near the door, tackled Perez,
“put him on the ground,” and “beat him up until he wasn’t a
threat,” leaving Perez with serious injuries. During the scuffle,
Neighbor disarmed Perez, and Girlfriend’s sister grabbed the
gun. It turned out to be a BB gun.

¶5 Police responded to the scene and recovered the BB gun.
They also later recovered Perez’s backpack and found a firearm
inside. An officer (Officer) interviewed Perez at the hospital

1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Suhail, 2023 UT App 15, n.1, 525 P.3d 550 (quotation simplified),
cert. denied, 531 P.3d 730 (Utah 2023).

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State v. Perez

where he was being treated for his injuries. Officer’s body camera
captured this interview. In the footage, Perez admitted that the BB
gun had been at his apartment “for a long time,” but when Officer
asked if the BB gun belonged to him, he said, “I don’t know” and,
“It’s just there.” When Officer asked whether the BB gun
“belong[ed] to everybody,” Perez answered, “Pretty much.” He
maintained that he did not know who bought the BB gun and
said, “Nobody touches it. It’s just in the . . . hall drawer.” When
Officer asked Perez who had the BB gun first that night, Perez
responded, “Well, if it was at my house, I had it first. Then
somebody else took it from me, right?”

¶6 Perez was charged with aggravated burglary, two counts
of aggravated assault, and destruction of property related to his
breaking down the door and brandishing the BB gun. 2 For the
firearm found in the backpack, Perez was charged in a separate
case with possession of a firearm by a restricted person. A
consolidated preliminary hearing was held for both cases. As
relevant here, Neighbor testified at the hearing that Perez was
“known to have weapons” and that he “carrie[d] his weapon” in
his backpack. Neighbor stated that he had seen Perez “multiple
times” with a specific gun. Perez was bound over on all charges.

Jury Selection

¶7 During jury selection at the start of trial in this case, the
court asked the prospective jurors whether any of them would
“have any difficulty affording Mr. Perez his trial rights and
understand[ing] that he is innocent until proven guilty beyond a
reasonable doubt.” The court explained, “In other words, is there
anybody here who is just—if somebody gets charged, they’re
guilty, or is everybody here willing to afford him his right to . . .
be recognized as innocent unless and if the State can prove
otherwise?” No jurors indicated an unwillingness to do so. The
court then asked, “Is there any other reason known likely only

2. Perez was charged with an additional count of aggravated
assault that was later dismissed.

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State v. Perez

unto you as to why you would not be impartial in this case?”
Again, no jurors raised their hands.

¶8 Counsel then addressed the jury pool stating,

[W]e have in our justice system . . . the presumption
of innocence. So Mr. Perez has been charged with a
. . . crime, and he is sitting here at my counsel table
with me, and we can say in our heads that that . . .
doesn’t bother us at all. I want you to kind of go
deeper than that.

Do you have any thought—if you have any
thought, just an inkling of the fact that he was
charged, he must have done something wrong, raise
your hand.

Two potential jurors raised their hands. Counsel then asked,
“Anyone else? It’s okay. We’re . . . here for biases.” An
unidentified person asked Counsel, “[Y]ou’re clarifying if—he
must’ve done something wrong, not he must be guilty.” Counsel
answered, “Correct. He must’ve done something wrong to be
sitting here.” Several prospective jurors raised their hands in
response, including Juror 11 and Juror 12.

¶9 Counsel went on, stating,

So you will hear, and I’m sure all of you know
because we’ve all—we either listen to crime
podcasts or—or watch, you know, CSIs . . . . So we
all know that a defendant or somebody accused of a
crime has the right to remain silent. They also have
the right to not testify, should they so choose. That’s
a constitutional right. Right? But, oftentimes, what
we have found is that when a . . . jury leaves the trial,
they think, “Man, it really would’ve changed my

20240962-CA 4 2026 UT App 92
State v. Perez

mind if I had heard from the defendant—I’d heard
from the accused.”

So I’m kind of asking you to do something
crazy with me, and that is to pretend you are picked
for the jury, and then step back and say, “It really
would have changed how I thought about things if
I had heard from the accused.” Raise your hand.

Several more prospective jurors raised their hands in response,
including Juror 3, Juror 11, and Juror 22. Counsel did not clarify
these responses.

¶10 Later, the prosecutor explained,

For those that indicated simply because he was
charged, he must have done something wrong, the
judge will instruct you that simply the fact that he
was charged is not something that you can account
for in your deliberation. He will tell you, you can’t
use that in making your decision.

The prosecutor then asked, “Is there anybody that could not
follow that instruction? If you could not follow that instruction
from the judge, please raise your hand.” No hands were raised.
The prosecutor went on,

Again, kind of as to that last question, if the
defendant chooses not to testify, some of you had a
feeling that he probably should testify. If the judge
tells you he has the constitutional right not to testify
and that you cannot take that into account in your
deliberation, could all of you follow that
instruction? Is there anyone that could not follow
that instruction? Please raise your hand.

Again, no hands were raised.

20240962-CA 5 2026 UT App 92
State v. Perez

¶11 The court then asked Counsel if she wanted to follow up
on any responses to the questions asked so far. She declined. But
Counsel questioned a different prospective juror about his
indication in the jury questionnaire that he had been a victim of
assault. And at a sidebar conference, Counsel raised concerns
about another prospective juror who had allegedly made gestures
toward Perez in the courtroom. The court questioned this juror,
and Counsel then moved to “strike the whole jury pool,”
apparently thinking the entire venire was tainted by the court’s
inquiry about the alleged gestures. The court denied this motion.
The jury that was eventually impaneled included Juror 3, Juror 11,
and Juror 12, with Juror 22 seated as an alternate.

Trial and Sentencing

¶12 During trial, Neighbor, Girlfriend, Officer, and other law
enforcement witnesses testified about the incident. During
Officer’s testimony, the State played several portions of the body
camera footage of Perez’s hospital interview. Officer also read
portions from a transcript he had prepared of the interview. The
jury found Perez guilty of aggravated burglary, one of the
aggravated assault counts, and destruction of property. He was
acquitted on the remaining aggravated assault charge.

¶13 Prior to sentencing, Adult Probation and Parole (AP&P)
prepared the PSI, which indicated that Perez had “declined to
submit the presentence report questionnaire.” But the PSI also
noted that Perez “advocates for a sentence including alcohol
abuse treatment, supervised probation, restitution,” and further
education.

¶14 At the sentencing hearing, Counsel moved for a
continuance based on the PSI’s statement that Perez had declined
to submit the questionnaire. Counsel argued that Perez’s
responses to the questionnaire would have given “at least some
context to the Court,” and without them, the PSI was “not a full
recommendation.” The State suggested that Perez could make
any statements he would have made in the questionnaire at the

20240962-CA 6 2026 UT App 92
State v. Perez

hearing. The court asked Counsel, “[I]s the concern that AP&P’s
recommendations would be different if he would’ve [completed
the questionnaire]?” Counsel said, “Maybe. I don’t know. I can’t
speak for AP&P.” But she reiterated her belief that answering the
questionnaire “could potentially change some of the
recommendations” in the PSI.

¶15 The court laid out its “severalfold” thoughts. First, the
court stated it wanted to try to contact the AP&P agent who
prepared the PSI to see if he could clarify the statement regarding
the questionnaire. Next, the court explained, “If a defendant
chooses not to participate in [the questionnaire], that’s fine,” and,
“That means they’ll . . . just have less say in this recommendation.”
And the court assured the parties, “I don’t live and die by these
things,” and “I vary from them all the time.” The court also
recognized that AP&P’s “recommendation was not based upon
[Perez’s] lack of participation as much” as “the guidelines [that]
were indicating imprisonment.” And the court said that it was
“putting less and less value into things that may be missing . . . in
these reports” from AP&P. Thus, the court expressed its
“intention . . . to go forward” with sentencing.

¶16 Counsel argued again that without the questionnaire, the
PSI did not include “mitigating circumstances” that could have
affected AP&P’s sentencing recommendation. The court then
stated it was “totally baffled” by the PSI’s statement that Perez
“advocates for a sentence including alcohol abuse treatment,
supervised probation, restitution,” and further education, and
asked, “How does he advocate for anything if he didn’t fill out the
[questionnaire]?” The court unsuccessfully tried to reach AP&P
over the phone to answer that question and then asked the parties
to “walk . . . through how these presentencing investigations go.”
Counsel told the court that Perez had participated in an interview
and that the questionnaire would have added to Perez’s “version
of events” and “mitigating circumstances.” Perez himself told the
court he had filled out the questionnaire and mailed it from jail.
The court then asked Counsel, “Do you believe that AP&P’s really
going to change their recommendation?” Counsel answered, “I

20240962-CA 7 2026 UT App 92
State v. Perez

just don’t feel that I have any basis, nor does anyone, to answer
that question of whether there would be a different
recommendation.”

¶17 The court denied Counsel’s motion to continue sentencing
and proceeded to sentence Perez according to AP&P and the
State’s recommendations. Perez appeals.

ISSUES AND STANDARDS OF REVIEW

¶18 Perez argues Counsel provided ineffective assistance in
failing to have the allegedly biased jurors stricken for cause.
“When an ineffective assistance claim is raised for the first time
on appeal, it presents a question of law.” State v. Cortez-Izarraraz,
2025 UT App 116, ¶ 22, 575 P.3d 1240 (quotation simplified).

¶19 Perez also argues that the trial court should not have
sentenced him without first resolving the “alleged inaccuracy”
about the questionnaire in the PSI. “Whether the trial court
properly complied with a legal duty to resolve on the record the
accuracy of contested information in sentencing reports is a
question of law that we review for correctness.” State v. Samulski,
2016 UT App 226, ¶ 9, 387 P.3d 595 (quotation simplified), cert.
denied, 390 P.3d 725 (Utah 2017). 3

ANALYSIS

I. Jury Selection

¶20 “The Sixth Amendment guarantees a criminal defendant
the right to effective assistance of counsel” and “to an unbiased

3. The parties suggest a correctness standard of review, but their
arguments also address whether the court’s failure “to resolve an
inaccuracy in the PSI” was an abuse of discretion. Because the
substance of Perez’s argument focuses on the court’s failure to
resolve the inaccuracy, we apply the correctness standard.

20240962-CA 8 2026 UT App 92
State v. Perez

and impartial jury.” State v. King, 2008 UT 54, ¶ 15, 190 P.3d 1283.
“Among the most essential responsibilities of defense counsel is
to protect his or her client’s constitutional right to a fair and
impartial jury by using voir dire to identify and ferret out jurors
who are biased against the defense.” State v. Courtney, 2017 UT
App 62, ¶ 10, 415 P.3d 604 (quotation simplified). Perez argues
that Counsel abdicated this responsibility in allowing several
allegedly biased jurors to be impaneled.

¶21 In particular, Perez points to the following:

• Juror 11 and Juror 12 raised their hands in
response to Counsel asking, “Do you have
any . . . thought, just an inkling of the fact that
he was charged, he must have done
something wrong, raise your hand,” and
then telling the jurors to speak up if they
believed Perez “must’ve done something
wrong to be sitting here.”

• Juror 3 and Juror 11 raised their hands in
response to Counsel stating, “So I’m kind of
asking you to do something crazy with me,
and that is to pretend you are picked for the
jury, and then step back and say, ‘It really
would have changed how I thought about
things if I had heard from the accused.’”

Perez argues that Counsel’s failure to challenge Juror 3, Juror 11,
and Juror 12 based on these responses amounted to ineffective
assistance. 4 We disagree.

4. We do not analyze Perez’s claim regarding Juror 22, who sat
only as an alternate and did not participate in the jury’s
deliberation.

20240962-CA 9 2026 UT App 92
State v. Perez

¶22 “With respect to any ineffectiveness claim, a defendant
must first demonstrate that counsel’s performance was deficient,
in that it fell below an objective standard of reasonable
professional judgment.” State v. Litherland, 2000 UT 76, ¶ 19, 12
P.3d 92. “Second, the defendant must show that counsel’s
deficient performance was prejudicial—i.e., that it affected the
outcome of the case.” Id.

¶23 “While proving ineffective assistance of counsel is never
particularly easy, in the jury selection context a defendant’s task
is even more daunting than usual.” State v. Carrera, 2022 UT App
100, ¶ 52, 517 P.3d 440 (quotation simplified), cert. denied, 525 P.3d
1264 (Utah 2023). “Counsel is given an especially wide berth” in
selecting a jury. State v. Marquina, 2018 UT App 219, ¶ 37, 437 P.3d
628 (quotation simplified), aff’d, 2020 UT 66, 478 P.3d 37. “There
are a multitude of inherently subjective factors typically
constituting the sum and substance of an attorney’s judgments
about prospective jurors.” Litherland, 2000 UT 76, ¶ 21. And “[a]n
attorney’s decisions regarding jury selection may even appear
counterintuitive, particularly when viewed from the perspective
of a bare transcript on appeal.” Id. ¶ 22. “For instance, an attorney
may make a reasoned judgment that a prospective juror’s
consciousness of, and concern for, his or her own potential bias
actually provides a more sure foundation for confidence in that
juror’s reasoning processes,” and the “attorney may even sense
that the prospective juror is likely to ‘overcompensate’ by
assigning more weight or credibility to testimony that tends to
oppose the juror’s own potential bias.” Id. “In short, a trial
attorney’s decisions during jury selection legitimately may be
based on little more than personal preference.” Id. ¶ 23.

¶24 “Because jury selection is more art than science,” and
“because trial counsel’s jury selection decisions are so inherently
subjective,” appellate courts “make two distinct presumptions
when trial counsel does not object to, or remove, a particular
juror.” Id. ¶¶ 20, 21, 24 (quotation simplified). First, failure to do
so “is presumed to be the product of a conscious choice or
preference”—even when the decision is “manifested by nothing

20240962-CA 10 2026 UT App 92
State v. Perez

more than silence in many circumstances.” Id. ¶ 20. Second, “trial
counsel’s presumably conscious and strategic choice to refrain
from removing a particular juror is further presumed to constitute
effective representation.” Id.

¶25 But a defendant may rebut this “presumption of
effectiveness” by showing

(1) that defense counsel was so inattentive or
indifferent during the jury selection process that the
failure to remove a prospective juror was not the
product of a conscious choice or preference; (2) that
a prospective juror expressed bias so strong or
unequivocal that no plausible countervailing
subjective preference could justify failure to remove
that juror; or (3) that there is some other specific
evidence clearly demonstrating that counsel’s
choice was not plausibly justifiable.

Id. ¶ 25 (footnote omitted). Perez does not make any such showing
here.

¶26 First, we cannot say that Counsel was “so inattentive or
indifferent during the jury selection process that the failure to
remove” Juror 3, Juror 11, and Juror 12 “was not the product of a
conscious choice or preference.” Id. 5 In addition to posing
questions to which these jurors raised their hands, see supra
¶¶ 8-9, Counsel expressed her concern about a different

5. The State suggests that our Supreme Court’s decision in State v.
Gallegos, 2020 UT 19, 463 P.3d 641, abrogated this element of a
defendant’s burden to rebut the presumption of effectiveness.
Gallegos held that “trial counsel’s subjective reasoning is not the
critical component of the” ineffective assistance inquiry and thus
not “the standard by which her actions are judged.” Id. ¶ 47. But
we do not see this as an abrogation of the necessity to show that
counsel was inattentive per the analysis the Court laid out in State
v. Litherland, 2000 UT 76, ¶ 25, 12 P.3d 92.

20240962-CA 11 2026 UT App 92
State v. Perez

prospective juror who allegedly made gestures toward Perez in
the courtroom and after the court questioned him, moved to
“strike the whole jury pool.” And Counsel inquired into yet
another prospective juror’s indication on his questionnaire that he
had been a victim of assault. See generally State v. Williams, 2025
UT App 118, ¶ 31, 576 P.3d 1142 (concluding that counsel’s
participation “in three bench conferences during jury selection”
and “a for-cause challenge to a different potential juror” showed
“active[] participat[ion] in the jury selection process”), cert. denied,
581 P.3d 554 (Utah 2025).

¶27 Nor can we say that these jurors expressed such “strong or
unequivocal” bias “that no plausible countervailing subjective
preference could justify” Counsel’s decision not to challenge
them. Litherland, 2000 UT 76, ¶ 25. Juror 3, Juror 11, and Juror 12
did not voluntarily or repeatedly affirm that they would be unable
to remain unbiased because of their personal background. See
State v. Bunton, 2026 UT App 59, ¶¶ 15–16; Carrera, 2022 UT App
100, ¶ 54. Rather, they simply raised their hands or responded
with silence. On the cold record before us, we do “not have the
benefit of observing” their “demeanor, personality, or interaction
with others.” Carter v. Galetka, 2001 UT 96, ¶ 41, 44 P.3d 626. “For
all we know,” these jurors were “the most attentive juror[s], or the
only one[s] who glanced disparagingly at the prosecution or
sympathetically toward the defendant.” Litherland, 2000 UT 76,
¶ 24 (quotation simplified). But we do know that, while they may
have indicated some bias in response to Counsel’s initial
questions, these jurors’ subsequent responses to the prosecutor’s
follow-up questions reaffirmed their ability to remain impartial.

¶28 After Juror 11 and Juror 12 indicated that they thought
Perez “must’ve done something wrong to be sitting” in court, the
prosecutor reminded the jurors, “the judge will instruct you that
simply the fact that he was charged is not something that you can
account for in your deliberation” and that “you can’t use that in
making your decision.” The prosecutor then asked, “Is there
anybody that could not follow that instruction?” No prospective
jurors indicated they could not. Then, after Juror 3 and Juror 12

20240962-CA 12 2026 UT App 92
State v. Perez

indicated that hearing directly from Perez would likely affect
“how [they] thought about things,” the prosecutor clarified, “If
the judge tells you he has the constitutional right not to testify and
that you cannot take that into account in your deliberation, could
all of you follow that instruction?” No prospective jurors
indicated an inability to do so.

¶29 Sequence matters here. After receiving clarifications, the
prospective jurors indicated “that they believed that they had the
ability to set aside their stated bias and use their best judgment.”
See State v. Arriaga, 2012 UT App 295, ¶ 16, 288 P.3d 588, cert.
denied, 298 P.3d 69 (Utah 2013). True, “it is not enough if a juror
believes that he or she can be impartial and fair.” Bunton, 2026 UT
App 59, ¶ 18 (quotation simplified). And “a statement from a juror
expressing an intention to be fair and impartial loses much of its
meaning in light of other testimony and facts which suggest a
bias.” Id. (quotation simplified). See State v. Taylor, 2025 UT App
14, ¶ 27, 564 P.3d 962 (concluding that a juror’s “self-assessment”
of her ability to follow instructions and “render a fair and
impartial verdict” was “questionable in the face of her continued
responses indicating she would give more weight to the
testimony of law enforcement witnesses”). But there is no other
indication of bias from these jurors after the prosecutor’s
clarification. To the contrary, “[t]here is little reason to doubt”
their self-assessments, as the jury eventually acquitted Perez on
one of the aggravated assault charges against him. See Arriaga,
2012 UT App 295, ¶ 16.

¶30 Thus, we conclude that these three jurors did not exhibit
bias so “strong or unequivocal” that Counsel’s only option was to
challenge them for cause. Cf. Bunton, 2026 UT App 59, ¶¶ 16–21
(concluding that “the glaring issue” of a juror’s “unabashed and
forthright” “self-professed bias” was unrebutted by the
prosecutor’s “persuading” and “suggestive questioning”).

¶31 And finally, we see no “other specific evidence clearly
demonstrating” that Counsel’s actions were “not plausibly
justifiable.” Litherland, 2000 UT 76, ¶ 25. Counsel “could have

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exercised many subjective strategic judgments to arrive at the
conclusion that” the three jurors “would be more favorably
disposed to [Perez] in comparison to other prospective jurors.” Id.
¶ 28. “Written records give us only shadows for measuring the
quality of such efforts.” Id. ¶ 24 (quotation simplified). And on
this record, we cannot say that Counsel’s actions were otherwise
unjustifiable.

¶32 In sum, Perez has not rebutted the presumption that
Counsel’s actions amounted to “objectively reasonable
representation,” and his ineffective assistance claim therefore
fails. Id. ¶ 29. See id. (recognizing that “[w]here the first prong” of
the ineffective-assistance test “is met, we need not address the
second prong relating to prejudice”). 6

6. Perez also argues Counsel was ineffective in failing to introduce
portions of his hospital interview with Officer that were not
shown to the jury. He argues that statements he made therein
showed that Neighbor and Girlfriend knew that the gun he
pointed at them was a BB gun and not a real firearm, casting doubt
on whether the elements of aggravated assault were met. Perez
has filed a motion for remand under rule 23B of the Utah Rules of
Appellate Procedure to develop the record in support of this
claim. See Utah R. App. P. 23B(a). But “if the defendant could not
meet the test for ineffective assistance of counsel, even if his or her
new factual allegations were true, there is no reason to remand
the case, and we should deny the motion.” State v. Griffin, 2015 UT
18, ¶ 20, 441 P.3 1166 (quotation simplified). Here, Perez has not
convinced us that Counsel’s decision not to introduce other
portions of the interview amounted to deficient performance. The
statements in the transcript Perez attached to his motion are not
as exculpatory as he urges. And it was reasonable for Counsel to
be concerned about the risk that introducing such statements
would prompt the State to introduce evidence of Perez’s
possession of a real firearm on the same day. Because Perez
cannot show that Counsel performed deficiently in this regard,
(continued…)

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II. The PSI

¶33 Perez argues the trial court failed to resolve the PSI’s
allegedly inaccurate statement that he “declined to submit the
presentence report questionnaire,” and he asserts that he should
be afforded a remand to allow the court to do so. We are not
persuaded.

¶34 Under the Utah Code, “If there is an alleged inaccuracy in
the presentence investigation report that is not resolved . . . before
sentencing . . . the alleged inaccuracy shall be brought to the
attention of the court at sentencing” and “the court may grant an
additional 10 working days . . . to allow the parties . . . to resolve”
it. Utah Code Ann. § 77-18-103(5)(a)(i) (LexisNexis Supp. 2025). 7
But “[i]f the court does not grant additional time . . . or the alleged
inaccuracy cannot be resolved after 10 working days, and if the
court finds that there is an inaccuracy in the presentence
investigation report, the court shall . . . enter a written finding as
to the relevance and accuracy of the challenged portion” and
“provide the written finding to the [Utah Department of
Corrections] or the law enforcement agency” involved. Id.
§ 77-18-103(5)(a)(ii) (emphasis added). In other words, there must
be an inaccuracy necessitating that the sentencing court enter
written findings.

¶35 Here, the court discussed the allegedly inaccurate
statement at some length at the sentencing hearing, though it
ultimately denied Perez’s request for a continuance and
proceeded to sentence him without making explicit findings
about the statement. We may infer that the court found that the
statement was not inaccurate. See State v. Samul, 2018 UT App 177,

this ineffective-assistance claim cannot succeed, and we deny the
motion for remand.

7. We cite the current version of the statute for convenience, as it
is identical to the version in effect at the time of Perez’s
sentencing.

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State v. Perez

¶ 21, 436 P.3d 298 (“As a general rule we will uphold the
sentencing court even if it failed to make findings on the record
whenever it would be reasonable to assume that the court actually
made such findings.”) (quotation simplified), cert. denied, 432 P.3d
1233 (Utah 2018). It would be reasonable for the court to assume,
based on Perez’s assertions at sentencing, that both parties were
right in a sense—Perez believed he had properly mailed the
questionnaire back to AP&P from jail but AP&P never received it.
But without first finding that the statement in the PSI was
inaccurate, the court was not required to make further written
findings.

¶36 Moreover, Perez does not argue on appeal that the
outcome of his sentence would have been different had the court
made explicit findings regarding the accuracy of the contested
statement. And we fail to see how he could. At sentencing, the
court specifically stated that it did not “live and die by” AP&P’s
recommendations and it varied “from them all the time.” The
court also noted that the sentencing recommendation in the PSI
was not affected by whether Perez returned the questionnaire to
AP&P but rather on his “criminal history and other factors.” And
in sentencing Perez, the court relied on the severity of the incident
as well as his past parole status—not on Perez’s failure to return
the questionnaire to AP&P.

¶37 In sum, we see no error in the court’s handling of the PSI.

CONCLUSION

¶38 Counsel was not ineffective in choosing not to seek
removal of allegedly biased prospective jurors. And the trial court
did not err when it did not make written findings regarding the
alleged inaccuracy in the PSI. Accordingly, we affirm Perez’s
convictions and sentence.

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