Hamblin v. State
| Citation | 2015 UT App 144,352 P.3d 144 |
| Decision Date | 04 June 2015 |
| Docket Number | No. 20130415–CA.,20130415–CA. |
| Parties | Jason Tyler HAMBLIN, Petitioner and Appellant, v. STATE of Utah, Respondent and Appellee. |
| Court | Court of Appeals of Utah |
Andrew Parnes and Brent A. Gold, for Appellant.
Sean D. Reyes and Andrew F. Peterson, Salt Lake City, for Appellee.
Memorandum Decision
¶ 1 Jason Tyler Hamblin appeals from the district court's ruling on his petition for postconviction relief. Hamblin argues that his trial counsel and appellate counsel rendered constitutionally ineffective assistance. We conclude that Hamblin's claims of trial counsel's ineffectiveness are procedurally barred and that he has failed to demonstrate that appellate counsel was constitutionally ineffective. We therefore affirm.
¶ 2 Hamblin was accused of sexually abusing a minor who temporarily lived with him at his stepmother's house.1 The victim accused Hamblin of a number of sexual offenses against her, including several instances of object rape. The State charged Hamblin with multiple sexual-abuse offenses against the victim, including one count of object rape. The probable cause statement filed in support of the information included an averment that Hamblin had abused the victim by placing a lightbulb in her rectum. Before the preliminary hearing, however, the State amended the information to remove the reference to the lightbulb and to change the object-rape charges to two counts based on an averment that Hamblin had abused the victim with two other objects. At the preliminary hearing, the victim testified to the two instances of object rape alleged in the amended information. When asked if Hamblin had abused her with “other objects other than those two,” the victim denied that Hamblin had abused her with any other objects. The victim also testified that she had been sexually abused by her brother (Brother).
¶ 3 At trial, defense counsel planned to attack the victim's credibility by highlighting the inconsistency between her initial accusations and her preliminary-hearing testimony regarding whether Hamblin abused her with a lightbulb. Defense counsel sought to persuade the jury that the victim “had attributed acts of sexual abuse to the Defendant that had been committed by [Brother]” and thereby undermine the accuracy and reliability of her testimony. On cross-examination, defense counsel confronted the victim with the inconsistency between her initial accusation against Hamblin and her preliminary-hearing testimony. Defense counsel highlighted the victim's detailed description of the abuse she had related involving Hamblin and the lightbulb and asked the victim to explain why she had initially accused Hamblin of abuse that she now attributed to Brother. The victim conceded that she was “confused for a long time” regarding who had abused her and that “it got all kind of jumbled up” but that she now knew Brother, not Hamblin, had abused her with the lightbulb.
¶ 4 Defense counsel argued in closing that all of the instances of abuse the victim testified to had been committed by Brother and not by Hamblin. The jury convicted Hamblin of one count of rape of a child, one count of sodomy on a child, and two counts of sexual abuse of a child but acquitted Hamblin of the remaining four charges, including both charges of object rape.
¶ 5 Hamblin moved for a new trial, arguing that the prosecution had failed to disclose that the victim had recanted her accusation that Hamblin abused her with a lightbulb and that the nondisclosure was a Brady violation.2 State v. Hamblin, 2010 UT App 239, ¶ 10, 239 P.3d 300. The district court denied Hamblin's motion, and he appealed. Id. This court affirmed, concluding that if any Brady violation had occurred, Hamblin was not prejudiced, because defense counsel had effectively used the evidence to his advantage once it came to light at trial. Id. ¶ 17. This court observed that defense counsel had effectively impeached the victim by highlighting the discrepancy between her initial accusations and trial testimony:
¶ 6 Thereafter, Hamblin filed the present petition in the district court for relief under the Post–Conviction Remedies Act (the PCRA). He argued, among other things, that trial counsel rendered ineffective assistance by failing to “investigate or request discovery about the significant change in [the victim's] testimony” and for recommending that Hamblin proceed to trial with a strategy of impeaching the victim with her inconsistent statements rather than accepting a plea agreement or seeking a mistrial.3 Hamblin also argued that counsel for his direct appeal rendered ineffective assistance by failing to “raise the issues of violations of [Hamblin's] Sixth Amendment rights” in a motion under rule 23B of the Utah Rules of Appellate Procedure and thereby obtain an evidentiary hearing that Hamblin asserts would have led to a reversal of his convictions. The district court denied Hamblin's first claim as procedurally barred and granted summary judgment to the State on his remaining claims. Hamblin appeals.
¶ 7 “We review an appeal from an order dismissing or denying a petition for post-conviction relief for correctness without deference to the lower court's conclusions of law.” Taylor v. State, 2012 UT 5, ¶ 8, 270 P.3d 471 (citation and internal quotation marks omitted).
¶ 8 Hamblin argues that two of the district court's rulings regarding trial counsel's performance are erroneous. First, he argues that the district court erred in concluding that his failure-to-investigate claim was procedurally barred. Second, he argues that the district court erred in determining that trial counsel did not perform deficiently by advising Hamblin to reject a plea offer and proceed to trial with a strategy of impeaching the victim. Because we conclude that both of Hamblin's claims that trial counsel rendered ineffective assistance are procedurally barred, we affirm the district court's denial of relief.
¶ 9 Generally, a claim is barred under the PCRA if it “was raised or addressed at trial or on appeal” or “could have been but was not raised at trial or on appeal.” Utah Code Ann. § 78B–9–106(1)(b), (c) (LexisNexis Supp.2011). Where a claim that trial counsel was ineffective “could have been but was not raised” on appeal, that claim is barred under the PCRA, and we may consider only whether appellate counsel was constitutionally ineffective for failing to raise the claim on appeal. Ross v. State, 2012 UT 93, ¶¶ 24–25, 293 P.3d 345 (citation and internal quotation marks omitted).
¶ 10 We conclude that both of Hamblin's claims of ineffective assistance of trial counsel could have been but were not raised on appeal and are therefore barred. Hamblin was represented by new counsel on direct appeal who could have raised these claims that trial counsel was constitutionally ineffective. Hamblin has identified no evidentiary or legal bases for these claims that were unavailable to appellate counsel at the time of his appeal or otherwise demonstrated that these claims could not have been brought on appeal. We are therefore precluded from directly assessing the merits of Hamblin's claims that trial counsel was ineffective. Id.
¶ 11 Nevertheless, Hamblin may obtain relief under the PCRA if he demonstrates that appellate counsel's failure to argue trial counsel's ineffectiveness was itself ineffective assistance of counsel. Id. ¶ 24; see also Utah Code Ann. § 78B–9–106(4). Because Hamblin's “claim that his appellate counsel was ineffective is intertwined with and dependent upon his claim that his trial counsel was ineffective,” we must “examine the merits of the claim of ineffective assistance of trial counsel” to determine if appellate counsel rendered ineffective assistance. Ross, 2012 UT 93, ¶ 25, 293 P.3d 345 (citation and internal quotation marks omitted). However, “we may examine the merits of that claim ‘only to the extent required to address' the ineffective assistance of appellate counsel claim.” Id. (quoting Utah Code Ann. § 78B–9–106(4) (LexisNexis 2012)).
¶ 12 “The standard for evaluating whether appellate counsel is ineffective is the same Strickland standard used to determine whether trial counsel is ineffective.” Kell v. State, 2008 UT 62, ¶ 42, 194 P.3d 913. To succeed on a claim of ineffective assistance of counsel, a defendant must show both “that counsel's performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “To show that appellate counsel was ineffective in failing to raise a claim, the petitioner must show that the issue [was] obvious from the trial record and ... probably would have resulted in reversal on appeal.” Kell, 2008 UT 62, ¶ 42, 194 P.3d 913 () (citation and internal quotation marks omitted). “Finally, when making a claim under the PCRA, the petitioner bears the burden of establishing ineffective...
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...was ineffective at trial and that Appellate Counsel was ineffective for failing to raise Trial Counsel’s ineffectiveness. See Hamblin v. State , 2015 UT App 144, ¶ 11, 352 P.3d 144 (explaining that "we must examine the merits of the claim of ineffective assistance of trial counsel to determ......
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