Modes v. State

• Docket Number: 20220225-CA
• Decision Date: 21 September 2023
• Citation: 537 P.3d 265
• Parties: Frank Val MODES, Appellant, v. STATE of Utah, Appellee.
• Court: Utah Court of Appeals

537 P.3d 265

Frank Val MODES, Appellant,

v.STATE of Utah, Appellee.

No. 20220225-CA

Court of Appeals of Utah.

Filed September 21, 2023

Stephen D. Spencer, Salt Lake City, Attorney for Appellant

Sean D. Reyes and Mark C. Field, Salt Lake City, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen Forster and John D. Luthy concurred.

Opinion

HARRIS, Judge:

¶1 Several years ago, Frank Val Modes was convicted, after a trial, of aggravated sexual abuse of a child, and we affirmed that conviction on direct appeal.SeeState v. Modes , 2020 UT App 136, 475 P.3d 153.More recently, Modes filed a petition for postconviction relief, asserting that his trial attorneys rendered constitutionally ineffective assistance.But Modes did not allege, in his petition, that his appellate attorneys rendered ineffective assistance during the direct appeal.The district court dismissed Modes's petition, concluding that all of Modes's post-conviction claims either were or could have been raised during the direct appeal, and were therefore procedurally barred under Utah's Post-Conviction Remedies Act (PCRA).Modes appeals the order of dismissal, and we affirm.

BACKGROUND

The Underlying Criminal Case

¶2 In 2016, Modes was charged with aggravated sexual abuse of a child.This charge arose from allegations made by Modes's niece (Niece) that when she was younger than five years old, Modes sexually abused her while she attended daycare at his house.As part of its initial investigation, law enforcement interviewed Niece twice at the Children's Justice Center (CJC).

¶3 During a pretrial conference in the criminal case, Modes waived his right to a jury trial and elected to proceed with a bench trial.At trial, the State called several witnesses to support its case-in-chief, including Niece and Modes's ex-wife (Wife).¹During her testimony, Niece repeated her allegations that Modes had abused her while she was in daycare.These allegations, however, were not the first of this nature to be made against Modes.In 2003, Modes pled "no contest" to sexual battery.That criminal charge stemmed from allegations made by another individual (Prior Victim) that Modes had sexually abused her when she was a young child attending daycare at his house.Because this previous charge involved an act of child molestation, the trial court allowed the State—in accordance with rule 404(c) of the Utah Rules of Evidence —to introduce evidence of Modes's earlier conviction; in particular, the State called Prior Victim to testify at trial, and she described for the court some of the underlying facts that supported Modes's earlier sexual battery conviction.After the State rested its case, Modes testified in his own defense and denied any sexual contact with Niece.

¶4 At the conclusion of the bench trial, the court found Modes guilty.In its findings, the court specifically noted that it found the testimonies of Niece, Wife, and Prior Victim to be credible and that it found Modes's testimony—that he was never inappropriate with Niece and that he was never alone with the children at the daycare—not credible.The court later ordered Modes to serve a prison sentence of fifteen years to life.

¶5 Thereafter, Modes appealed his conviction, asserting that the trial court"erred in admitting the details of Modes's prior acts of child molestation, including testimony of Prior Victim, pursuant to rule 404(c) of the Utah Rules of Evidence."State v. Modes , 2020 UT App 136, ¶ 11, 475 P.3d 153.In addition, Modes claimed that his trial counsel"performed deficiently by (1) failing to object to the admission of Prior Victim's testimony, (2) failing to cross-examine Prior Victim, and (3) not calling an expert witness on the issue of early childhood memory recovery."Id.¶ 12.We rejected Modes's arguments, concluding that the court did not err in admitting the testimony of Prior Victim and that Modes had not shown ineffective assistance.Id.¶ 30.We found Modes's ineffective assistance arguments unpersuasive in part because the appellate record did not support the claims and because Modes's appellate counsel had not filed any motion, pursuant to rule 23B of the Utah Rules of Appellate Procedure, to supplement the record.Id.¶¶ 12 n.4, 28 n.9.

The Petition for Post-Conviction Relief

¶6 A few weeks after we issued our opinion in Modes's direct appeal, Modes filed a petition for post-conviction relief.In that petition, Modes asserts that his trial counsel rendered constitutionally ineffective assistance, in fifteen particulars, by:

(1) not requesting a jury trial;

(2) not properly advising Modes about his constitutional right to be tried by a jury;

(3) not informing Modes of the strategic reasons for having a jury trial;

(4) not objecting to evidence of "prior bad acts";

(5) not "cross-examining a witness";²

(6) not enlisting "the assistance of an expert witness on the subject of witness memory" despite having discussed with Modes a plan to retain such an expert;

(7) not moving "for a bill of particulars with which to establish a timeline for the relevant events to effectively establish an alibi";

(8) not presenting "any character evidence of [Modes] in [his] defense or call[ing] any character witnesses"; (9) not calling "any witness in [Modes's] behalf other than" Modes himself;

(10) not presenting evidence of certain threats Wife was alleged to have made against Modes and attempting to impeach Wife "on the basis of such threats";

(11) not presenting evidence that Niece did not initially identify Modes as the perpetrator in her CJC interview;

(12) not subpoenaing a record of Niece's interview at the CJC;

(13) not subpoenaing recordings of Wife's 2015 interviews with police;

(14) not cross-examining Wife on the substance of her police interviews; and

(15) not investigating or cross-examining any witness on the alleged fact that Niece's stepsister once accused Niece's father of sexually assaulting her.

But while Modes asserted fifteen claims of ineffective assistance of trialcounsel, he did not assert any claims of ineffective assistance of appellatecounsel.

¶7The State moved to dismiss Modes's petition on the grounds that Modes's specific claims are procedurally barred under the terms of the PCRA, which forbids litigants from bringing claims, in a petition for post-conviction relief, that either actually were "raised or addressed" at trial or on direct appeal, or "could have been but [were] not raised" at trial or on direct appeal.SeeUtah Code § 78B-9-106(1)(b), (c).In the State's view, all of Modes's claims either were, or could have been, raised on direct appeal.The district court agreed with the State and accordingly dismissed Modes's petition.

ISSUE AND STANDARD OF REVIEW

¶8 Modes appeals the district court's dismissal of his petition."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."Archuleta v. State , 2020 UT 62, ¶ 20, 472 P.3d 950(quotation simplified).

ANALYSIS

¶9Petitions for post-conviction relief are—for the most part³ —governed by the PCRA and by rule 65C of the Utah Rules of Civil Procedure.SeeUtah Code § 78B-9-102(1)(a)(noting that the PCRA"establishes the sole remedy for any person who challenges a conviction or sentence for a criminal offense and who has exhausted all other legal remedies");Utah R. Civ. P. 65C(a)(stating that the PCRA"sets forth the manner and extent to which a person may challenge the legality of a criminal conviction and sentence after the conviction and sentence have been affirmed in a direct appeal").The PCRA contains certain procedural bars that dictate whether, when, and how post-conviction claims may be brought, and our rules mandate that, before entertaining the merits of any PCRA claims, courts"shall first clearly and expressly determine whether" any of the statutory procedural bars preclude the claims.SeeUtah R. Civ. P. 65(C)(b).In particular, and as applicable here, the PCRA bars claims that either were "raised or addressed" at trial or on direct appeal, or "could have been ... raised" but were not raised at trial or on direct appeal.SeeUtah Code § 78B-9-106(1)(b), (c).In this case, the district court concluded that all the claims Modes brought in his PCRA petition either were raised, or could have been raised, on direct appeal, and were therefore precluded by the terms of the PCRA.Modes challenges that determination here on appeal, but we reject that challenge because the court's determination was correct.

¶10 First, the district court correctly concluded that five of the fifteen claims Modes raises in his PCRA petition—claims 4, 5, 6, 8, and 9—actually were raised during his direct appeal.Two of those claims concern the manner in which trial counsel objected (or failed to object) to evidence of prior bad acts, and trial counsel's failure to cross-examine a witness, presumably Prior Victim.⁴One of those claims addresses trial counsel's decision not to call an expert witness to testify about early childhood memory.And the remaining two claims are related to trial counsel's decisions not to present any character evidence in Modes's defense or to call any witnesses on Modes's behalf other than Modes himself.These issues were all raised and addressed—at least in some fashion—on appeal.SeeState v. Modes , 2020 UT App 136, ¶¶ 12, 25 & n.4, 475 P.3d 153(addressing, and rejecting, claims that trial counsel was ineffective for "(1) failing to object to the admission of Prior Victim's testimony, (2) failing to cross-examine Prior Victim, and (3) not calling an expert witness in the issue of early childhood memory recovery," and rejecting in a footnote—as insufficiently developed—the claim that trial counsel failed to "call any witnesses or provide any evidence" during the defense's case-in-chief).It is immaterial that we disposed of some of these claims in a footnote...