Opinion
Case No. 20060105-CA.
Filed September 13, 2007. NOT FOR OFFICIAL PUBLICATION.
Appeal from the Second District, Farmington Department, 051701274, The Honorable Michael G. Allphin.
Attorneys: Scott L. Wiggins, Salt Lake City, for Appellant.
Mark L. Shurtleff and Erin Riley, Salt Lake City, for Appellee.
Before Judges Bench, Greenwood, and McHugh.
MEMORANDUM DECISION
Defendant argues that his trial counsel rendered ineffective assistance because he failed to point out alleged inaccuracies in Defendant's presentence investigation report (PSI) and he did not request that the trial court utilize its fact finding function to resolve the alleged inaccuracies. To establish ineffective assistance of counsel, Defendant must show that "(1) counsel's performance was deficient below an objective standard of reasonable professional judgment, and (2) counsel's performance prejudiced . . . [D]efendant."State v. Martinez, 2001 UT 12, ¶ 16, 26 P.3d 203. "Failure to satisfy either prong will result in our concluding that counsel's behavior was not ineffective." State v. Ardon-Aguirre, 2007 UT App 27, ¶ 2 (internal quotation marks omitted). In this instance, Defendant does not establish ineffectiveness because he does not demonstrate deficient performance at sentencing. See State v. Templin, 805 P.2d 182, 186 (Utah 1990) (stating that a defendant must "`identify the acts or omissions' which, under the circumstances, `show that counsel's representation fell below an objective standard of reasonableness.'" (footnote omitted) (quotingStrickland v. Washington, 466 U.S. 668, 690 (1984))). Defendant's first argument is that his trial counsel performed deficiently because he failed to correct statements in the PSI, which represented that Defendant violated the terms of his probation by being in the presence of children. This claim is not persuasive because Defendant corrected any possible misunderstanding when he explained to the trial court that his probation only precluded unsupervised contact with children. Moreover, Defendant does not dispute that he was at a waterpark, a place where children congregate.
Defendant also takes issue with a statement in the PSI that Defendant lied to his probation officer; however, Defendant does not provide specifics of the alleged lie and he also does not attempt to disprove the alleged lie. Therefore, we decline to further address this allegation.
Next, Defendant alleges that trial counsel erred because he neglected to argue various mitigating circumstances at sentencing or inform the trial court about favorable therapist reports. Again, Defendant does not establish error because even though trial counsel did not explicitly urge the trial court to consider these items, they were before the trial court in Defendant's PSI, and we therefore assume that the trial court considered them. See State v. Schweitzer, 943 P.2d 649, 652 (Utah Ct.App. 1997).
Defendant also claims that trial counsel erred when he failed to correct the assertion that Defendant had viewed child pornography on a regular basis. However, Defendant admitted to viewing child pornography at least four to five times since being in Utah and the State discovered a suitcase that belonged to Defendant and contained a substantial amount of pornography that "played on the young look of the nude females."
Defendant's last claim of ineffectiveness is that trial counsel performed deficiently because he did not request that the trial court resolve claimed inaccuracies in the PSI. This claim fails because the trial court is only obligated to take such action after Defendant raises objections concerning the PSI. Utah Code section 77-18-1 states that "[a]ny alleged inaccuracies in the [PSI], which have not been resolved by the parties . . . shall be brought to the attention of the sentencing judge. . . . If . . . the inaccuracies cannot be resolved, the court shall make a determination of relevance and accuracy on the record." Utah Code Ann. § 77-18-1(6)(a) (2003) (emphasis added). At sentencing, trial counsel stated that he had reviewed the PSI with Defendant and "there were no corrections." Moreover, as previously explained, there were no inaccuracies in the PSI. Therefore, the trial court had no reason to conduct an evidentiary hearing, and trial counsel was not ineffective for failing to request the same. See State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52 ("The failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance." (alterations and internal quotation marks omitted)).
Defendant also asserts that it was error for trial counsel to neglect to inform the court of the inaccuracies of polygraph tests. However, the fact that Defendant repeated statements at a later time that he had made during polygraph testing negates Defendant's argument.
Finally, Defendant asserts that the trial court committed plain error by failing to hold an evidentiary hearing sua sponte to resolve the PSI's alleged inaccuracies. We disagree. Utah Code section 77-18-1 states that "[i]f a party fails to challenge the accuracy of the [PSI]at the time of sentencing, that matter shall be considered to be waived." Utah Code Ann. § 77-18-1(6) (b) (emphasis added). Consequently, when trial counsel stated that he had reviewed the PSI with Defendant and "there were no errors" in the PSI, he statutorily waived any objections to the document, see id., and the trial court did not err by failing to act on its own accord.
Affirmed.
WE CONCUR: Russell W. Bench, Presiding Judge, Carolyn B. McHugh, Judge,