Ross v. State

• Citation: 724 Utah Adv. Rep. 57,293 P.3d 345
• Decision Date: 21 December 2012
• Docket Number: No. 20090894.,20090894.
• Parties: Trovon Donta ROSS, Petitioner and Appellant, v. STATE of Utah, Respondent and Appellee.
• Court: Supreme Court of Utah

293 P.3d 345

724 Utah Adv. Rep. 57

Trovon Donta ROSS, Petitioner and Appellant,

v.STATE of Utah, Respondent and Appellee.

No. 20090894.

Supreme Court of Utah.

Dec. 21, 2012.

Mark L. Shurtleff, Att'y Gen., Laura B. Dupaix, Christopher D. Ballard, Asst. Att'ys Gen., Salt Lake City, for appellee.

Sanna–Rae Taylor, Salt Lake City, for appellant.

Chief Justice DURRANT, opinion of the Court:

INTRODUCTION

¶ 1 Trovon Donta Ross was convicted of aggravated murder and attempted aggravated murder in 2004. Following a direct appeal, he filed a pro se petition seeking relief under the Post–Conviction Remedies Act (PCRA) on the grounds that his trial counsel was ineffective for failing to raise the defense of extreme emotional distress and that his appellate counsel was ineffective for failing to raise a claim of ineffective assistance of counsel on direct appeal. He also twice requested that the court appoint counsel to represent him in post-conviction proceedings.

¶ 2 The court denied Mr. Ross's requests for counsel as premature. Further, it ultimately granted the State's motion for summary judgment, determining that Mr. Ross had not met his burden of establishing ineffective assistance of appellate counsel and that his ineffective assistance of trial counsel claim was procedurally barred. On appeal, Mr. Ross argues that the post-conviction court erred in granting the State's motion for summary judgment and in denying his requests for counsel.

¶ 3 We conclude that disputed issues of material fact preclude summary judgment on Mr. Ross's claim that his appellate counsel was ineffective. And because we cannot determine whether appellate counsel was ineffective, we cannot determine whether Mr. Ross's claim regarding trial counsel is procedurally barred by the PCRA. Accordingly, we reverse the court's grant of summary judgment on both of his ineffective assistance of counsel claims and remand this case for an evidentiary hearing. Finally, althoughwe conclude that the court did not abuse its discretion in denying Mr. Ross's initial requests for counsel, because he has established that his claims are sufficiently complex, we anticipate that, on remand, a renewed motion to appoint counsel would be well founded.

BACKGROUND

¶ 4 Mr. Ross met Annie Christensen in late 2000 or early 2001, and developed a romantic relationship with her. In the early morning of June 30, 2003, Mr. Ross went to Ms. Christensen's home. When he arrived, Ms. Christensen answered the door wearing a top and shorts, and let Mr. Ross into her home. He waited in the front room while she went to her bedroom to get James May, who appeared wearing only pajama bottoms. Mr. Ross then began questioning Ms. Christensen, asking her to tell Mr. May when she last had sex with Mr. Ross. When Ms. Christensen did not respond, Mr. Ross pulled out a gun from his waistband and again questioned her. Ms. Christensen still refused to answer and begged Mr. Ross to leave.

¶ 5 At trial, Mr. May testified that, at that point, “the mood changed a little bit where like at first when he came in he was asking questions, and then once he pulled out the gun, the situation became a lot more intense.” When Ms. Christensen still refused to respond to Mr. Ross, he turned to Mr. May and said, “I can't let her hurt you like she hurt me.” He then pointed his gun at Ms. Christensen, grabbed her arm, and pushed her past Mr. May towards the bedroom, where he fired three shots, killing her.

¶ 6 In the meantime, fearing for his safety and intending to get help, Mr. May left the apartment, went into the garage, and got into his car. After a moment, he saw Mr. Ross in the doorway leading to the garage. Unable to start the car, Mr. May jumped out of the car and began running away. Mr. Ross fired six shots at Mr. May, one of which passed through Mr. May's right arm and into his chest. Mr. May continued running, eventually flagging down a passing motorist who called the police.

¶ 7 As Mr. Ross fled the scene, he called Ms. Christensen's father. Mr. Ross told him, “I just shot and killed your daughter ... and I'm on my way to your home to finish the job.” Neighbors who heard the gunshots called the police and reported seeing Mr. Ross's white van leaving Ms. Christensen's home. Responding police officers chased Mr. Ross's van at high speeds for several miles. During the chase, Mr. Ross threw his gun out of the window. He also called and left a voicemail for his boss, acknowledging that he had shot Ms. Christensen and reporting that he was going to kill himself.

¶ 8 In November 2004, Mr. Ross was tried for the aggravated murder of Ms. Christensen and the attempted aggravated murder of Mr. May. At trial, he conceded his participation in the crimes and instead focused his defense on persuading the jury that he was not guilty of aggravated murder. After closing arguments, Mr. Ross's counsel requested an in-chambers conference. During this in-chambers conference, trial counsel stated, “There was no manslaughter defense raised based on any extreme emotional disturbance because of—because of evidentiary problems as are known to Mr. Ross and myself.” Following extended remarks by trial counsel, the district court judge asked Mr. Ross, “[I]s that, in fact, the conversation and the strategy that you and [trial counsel] have decided on in this case?” Mr. Ross replied, “Yes, your honor.” From the remarks made during the in-chambers conference, the post-conviction court concluded that “the trial record conclusively demonstrates that the petitioner's trial counsel's decision not to raise the ‘extreme emotional distress' affirmative defense was not only strategic but was specifically agreed to by the petitioner,” such that it was appropriate to grant summary judgment to the State on this issue.

¶ 9 Ultimately, the jury convicted Mr. Ross of both aggravated murder and attempted aggravated murder. In exchange for the State's recommendation that he be sentenced to life without parole on the aggravated murder conviction, Mr. Ross agreed to waive his right to a jury in the penalty phase. The trial court sentenced Mr. Ross to life without parole for the aggravated murder and a concurrentprison term of five years to life for the attempted aggravated murder.

¶ 10 In 2007, new counsel represented Mr. Ross on direct appeal. Mr. Ross claimed on appeal that (1) Utah's death penalty statute was unconstitutionally vague, (2) his aggravated murder and attempted aggravated murder convictions should merge, (3) he was prejudiced by the impaneling of an anonymous jury, and (4) the prosecutor committed misconduct.¹ We agreed that his attempted aggravated murder conviction should merge with his aggravated murder conviction, but rejected the remainder of his claims.² Accordingly, we affirmed his conviction for aggravated murder and vacated the conviction for attempted aggravated murder.³

¶ 11 On October 24, 2008, Mr. Ross filed a pro se petition for post-conviction relief (Petition). In the Petition, he argued that both his trial counsel and his appellate counsel had been ineffective. Specifically, he argued that his trial counsel was ineffective for failing to raise the defense of extreme emotional distress, and that his appellate counsel was ineffective for failing to raise an ineffective assistance of counsel claim on direct appeal. In the Petition, Mr. Ross also requested an evidentiary hearing to examine witnesses and evidence in support of his claims. Additionally, at that time, Mr. Ross filed a motion requesting the appointment of pro bono counsel to assist him in the post-conviction proceedings.

¶ 12 The Petition indicates that both Mr. Ross and Ms. Christensen “were sexually active with other partners” during their two-year relationship and that Mr. Ross knew that Ms. Christensen was dating other men, including Mr. May. But the Petition also states that Mr. Ross was deeply in love with Ms. Christensen, considering her to be “the love of his life,” and believing that she was “his intended wife.” Further, Mr. Ross indicates in the Petition that, a few days before the murder, Mr. Ross and Ms. Christensen had engaged in sexual relations and had promised each other that they would be in a committed relationship. Additionally, Mr. Ross states that, on the morning of the murder, he noticed that he had missed a call from Ms. Christensen. Mr. Ross explains that he became concerned when she did not answer his attempts to return her call, because “this pattern had occurred” on two previous occasions, when she had called him seeking help and did not answer his return calls because she had been beaten by a former boyfriend. Thus, he claims that he went to her home fearing for her safety.

¶ 13 The post-conviction court determined that Mr. Ross's Petition did not provide a sufficient factual basis to support his claims and granted him leave to file an amended petition. Mr. Ross subsequently filed a memorandum supporting his Petition and asking the court to reconsider the Petition. The memorandum included further details regarding his claims and added a claim that his appellate counsel was ineffective for failing to argue on direct appeal that trial counsel was ineffective for foregoing an extreme emotional distress defense. When he submitted his memorandum, Mr. Ross also filed a second motion for the appointment of counsel.

¶ 14 The post-conviction court treated Mr. Ross's memorandum as an amendment of his original Petition. After reviewing the amended petition, the court dismissed as frivolous all of his claims except for his “claims of ineffective assistance of trial and appellate counsel pertaining to the failure of counsel to raise the affirmative defense” of extreme emotional distress. The court then ordered the State to respond to Mr. Ross's two remaining claims.

¶ 15 The court also denied Mr. Ross's motions for the appointment of counsel as premature. Specifically, the court reasoned that because the State had not yet...