Salt Lake City v. Grotepas, 930311-CA

• Decision Date: 29 April 1994
• Docket Number: No. 930311-CA,930311-CA
• Parties: 91 Ed. Law Rep. 384 SALT LAKE CITY, Plaintiff and Appellee, v. Calvin GROTEPAS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 136

874 P.2d 136

91 Ed. Law Rep. 384

SALT LAKE CITY, Plaintiff and Appellee, v. Calvin GROTEPAS, Defendant and Appellant.

No. 930311-CA.

Court of Appeals of Utah.

April 29, 1994.

Certiorari Granted Sept. 21, 1994.

Robert Breeze (Argued), Salt Lake City, for defendant and appellant.

Todd Godfrey (Argued), Asst. City Prosecutor, Salt Lake City, for plaintiff and appellee.

Before BENCH, BILLINGS and GREENWOOD, JJ.

OPINION

GREENWOOD, Judge:

Defendant, Calvin Heber Grotepas, appeals from his conviction of criminal trespass in violation of Salt Lake City Code § 11.36.130 (1990). Defendant contends that the conviction entered by the trial court was the result of ineffective assistance of counsel. Because we conclude that trial counsel's performance was objectively deficient and that there is a reasonable probability the outcome might have been more favorable to defendant absent the deficient performance, we reverse and remand for a new trial. ¹

BACKGROUND

In early 1993, defendant was enrolled as a student at the Salt Lake Art Center School (Art Center School). On March 23, 1993, Mr. Gatmeyer, director of the Salt Lake Art Center (Center), informed defendant that he would no longer be accepted as a student. Defendant apparently was dismissed because he would not adhere to certain rules of the Art Center School. Defendant told Mr. Gatmeyer that he could not be kept from participating and refused to accept a refund of his tuition. Again on March 24, 1993, Mr. Gatmeyer told defendant he could neither attend classes nor enter the Art Center School.

On April 1, 1993, Mr. Gatmeyer observed defendant approaching the Art Center School. Mr. Gatmeyer and three police officers met defendant just outside the building. Defendant indicated that it was his intention to enter the school. At that point, the police officers informed defendant that if he insisted on entering he would be arrested for trespass. In response, defendant stated that he wanted to be arrested and then entered the building. The police officers arrested defendant and cited him for trespass, for which he was later convicted after a bench trial.

The essence of defense counsel's argument at trial was that because the Center is a government-owned and supported building and defendant had paid tuition to attend class at the Art Center School, defendant could not be found to have criminally trespassed. Counsel also attempted to establish some sort of prejudice against defendant by Art Center School officials. The trial record reveals that defense counsel neither raised the statutory defense to criminal trespass found at Utah Code Ann. § 76-6-206(4) (1990) ² nor introduced any evidence to establish that defendant met the requirements of the statutory defense. Defendant was convicted of criminal trespass, fined fifty dollars, and placed on probation for six months. On appeal, defendant claims he was denied the effective assistance of counsel because his counsel failed to assert the statutory defense.

ANALYSIS

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established a two-prong test for evaluating ineffective assistance of counsel claims brought under the Sixth Amendment to the United States Constitution. Id. at 687, 104 S.Ct. at 2064; accord State v. Templin, 805 P.2d 182, 186 (Utah 1990); State v. Snyder, 860 P.2d 351, 354 (Utah App.1993). To establish an ineffective assistance of counsel claim, defendant must show, first, that counsel rendered a deficient performance that fell below an objective standard of reasonable professional judgment, and second, that counsel's deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; accord Templin, 805 P.2d at 186; Snyder, 860 P.2d at 354. In making a showing that counsel rendered a deficient performance, the burden is on defendant to demonstrate that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064; accord Templin, 805 P.2d at 186; Snyder, 860 P.2d at 354. To establish that counsel's alleged deficiency was sufficiently prejudicial, defendant must affirmatively demonstrate that there is a "reasonable probability" that, but for counsel's errors, the result would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; accord Templin, 805 P.2d at 186-87.

"Ordinarily, such a claim [of ineffective assistance of counsel] may only be raised through a collateral attack in habeas corpus proceedings because 'the trial record is insufficient to allow the claim to be determined' on direct appeal." State v. Garrett, 849 P.2d 578, 580 (Utah App.) (quoting State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991)), cert. denied, 860 P.2d 943 (Utah 1993). However, if the ineffective assistance of counsel claim is first raised on direct appeal and defendant's appellate counsel was not also trial counsel, as in the case before us, we may consider the issue "only if the record is adequate to permit a decision." Id. If we address the claim based on the record "we must decide whether defendant was deprived of the effective assistance of counsel as a matter of law." State v. Tennyson, 850 P.2d 461, 466 (Utah App.1993). Nonetheless, our review of trial "counsel's performance must be highly deferential; otherwise, the 'distorting effects of hindsight' " would lead us to engage in second-guessing. Id.

Defendant's Claim

Defendant asserts that he received ineffective assistance of counsel because his counsel failed to inform the trial court of or raise in any way the statutory defense to criminal trespass contained in Utah Code Ann. § 76-6-206(4) (1990). That section states in relevant part that it is a defense to criminal trespass if "(a) property was open to the public when the actor entered or remained; and (b) the actor's conduct did not substantially interfere with the owner's use of the property." Id.

In State v. Moritzsky, 771 P.2d 688 (Utah App.1989), the defendant made a similar claim that his trial counsel had failed to cite to possibly exculpatory statutory provisions. The defendant appealed after a jury convicted him of aggravated assault, claiming that his trial counsel's failure to request a "defense of habitation" jury instruction according to the amended statute constituted ineffective assistance of counsel. The court observed that trial counsel's action could not be attributed to conceivable trial tactics, but instead was the result of an oversight of statutory language, as counsel evidently cited an earlier version of the statute and missed the amendment contained in the Code's "pocket-part." Id. at 692. Therefore, the court held Moritzsky had established the first prong of the Strickland test as counsel's performance was objectively deficient. In addition, because an appropriate defense of habitation instruction was necessary to insure that the defendant received a fair trial, the court determined that the defendant was likely prejudiced by counsel's mistake and remanded for a new trial. Id. at 693.

Similarly, in this case, trial counsel clearly overlooked applicable statutory language, rather than deliberately choosing not to argue it. As in Moritzsky, we can discern no tactical explanation for trial counsel's failure to raise the statutory defense to criminal trespass. ³ As a result, we conclude that trial counsel's performance was outside the wide range of professionally competent assistance and was therefore objectively deficient as a matter of law. ⁴

Having established the first prong of the Strickland test, we now consider whether trial counsel's deficient performance prejudiced defendant, namely whether "a reasonable probability exists that the ... verdict would have been more favorable to defendant" had counsel asserted the statutory defense. Id. at 692; accord Templin, 805 P.2d at 186-87. At trial, defense counsel attempted to establish that the Art Center School was owned by a governmental entity and argued that defendant could not be found guilty of criminal trespass on public property. Testimony indicated that the building housing the Art Center School was owned by Salt Lake County and that the Center itself was a private, non-profit corporation financed by donations from foundations, individuals, and federal funds received by the Center as a sub-grantee of the state. The trial court apparently concluded that public property status did not preclude the possibility of criminal trespass. Evidence was not adduced, however, as to the specifics of the statutory defense: Whether the Art Center School was "open to the public," ⁵ and whether defendant's conduct "substantially interfere[d] with the owner's use of the property." See Utah Code Ann. § 76-6-206(4) (1990). Based on our review of the record, we conclude that there is a reasonable probability that defendant might have been acquitted had defense counsel argued the defense to criminal trespass contained in section 76-6-206(4) and presented evidence in support of that theory.

CONCLUSION

The failure of defendant's trial counsel to assert the relevant statutory defense to criminal trespass was both objectively deficient and prejudicial. Defendant therefore was denied his right to effective assistance of counsel as guaranteed under the Sixth Amendment to the United States Constitution. Accordingly, we reverse and remand for a new trial.

BILLINGS, J., concurs.

BENCH, Judge (dissenting):

I respectfully dissent from the main opinion's treatment of defendant's ineffective assistance of counsel claim. Because the record is inadequate to decide the question, we are prohibited from reaching the merits of the claim. State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991); State v. Garrett, 849 P.2d 578, 580 (Utah App.), cert. denied, 860 P.2d 943 (Utah 1993). Stare decisis compels us to follow this precedent. See State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993)....