State v. Calata, 20200145-CA

CourtCourt of Appeals of Utah
Writing for the CourtPOHLMAN, JUSTICE
Citation2022 UT App 127
PartiesState of Utah, Appellee, v. Maximo Gabriel Calata, Appellant.
Docket Number20200145-CA
Decision Date17 November 2022

2022 UT App 127

State of Utah, Appellee,

Maximo Gabriel Calata, Appellant.

No. 20200145-CA

Court of Appeals of Utah

November 17, 2022

Third District Court, Salt Lake Department The Honorable James T. Blanch No. 171908445

Emily Adams and Freyja Johnson, Attorneys for Appellant, assisted by law students Jared Erekson and Jonathan Mena [*]

Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee, assisted by law student Jessica Holzer[*]

Justice Jill M. Pohlman authored this Opinion, in which Judges Gregory K. Orme and Ryan D. Tenney concurred. [1]


¶1 Two Utah Highway Patrol troopers pulled over Maximo Gabriel Calata after a license plate check revealed the plate on the


car Calata was driving had been reported as stolen. As the troopers approached Calata, he fled the scene in the car, leading the troopers on a high-speed chase for nearly twenty blocks. Eventually, after Calata's car slowed, both troopers employed a pursuit intervention technique (PIT maneuver), causing Calata's car to come to a stop. Calata was arrested, and he later pled guilty to failure to stop at command of police. As part of his sentence, the district court ordered Calata to pay restitution for damages sustained by the troopers' patrol cars in ending the chase.

¶2 Calata appeals, arguing that the district court erred when it refused to calculate court-ordered restitution and that his defense counsel provided constitutionally ineffective assistance in the restitution proceedings. We reject his claims of ineffective assistance of counsel, but we reverse and remand for the district court to determine court-ordered restitution.


¶3 On July 13, 2017, a Utah Highway Patrol trooper (Trooper 1) ran a license plate check on a damaged car he observed at a gas station. Calata was the driver of that car. The check revealed that the license plate had been reported stolen, so Trooper 1 followed the car as it left the gas station. After another Utah Highway Patrol trooper (Trooper 2) arrived as backup, the troopers pulled Calata over. The troopers exited their patrol cars "to conduct a felony stop," but as they approached Calata, he drove away. The troopers pursued Calata as he "weaved in and out of traffic on I-15," reaching speeds between 100 and 105 miles


per hour. The pursuit ended when both troopers performed PIT maneuvers.

¶4 Trooper 1 later explained that a PIT maneuver is a technique used to "rotate the vehicle" an officer is "in pursuit of in an attempt to get [the vehicle] to stop." The Utah Department of Public Safety has policies and procedures that apply to police pursuit and PIT maneuvers. According to one such policy, an officer is "required to request permission" to perform a PIT maneuver when traveling "over 45 miles per hour." Here, when it appeared that Calata was slowing and was going to exit the freeway, the troopers executed PIT maneuvers in an effort to end the pursuit.

¶5 The troopers testified that they were going 40-50 miles per hour when Trooper 1 executed the first PIT maneuver by using his patrol car to contact the rear passenger side of Calata's car, which caused Calata's car to come to a rest after rotating 360 degrees and skidding toward the freeway off-ramp. As Trooper 2 "was pulling up on" Calata's car to box it in from behind, he noticed that its brake lights were off and that it "began rolling towards the . . . [freeway] off ramp." Trooper 2 then performed a second PIT maneuver, also striking the rear passenger side of Calata's car to "prevent it from moving and fleeing again." The PIT maneuvers damaged both troopers' vehicles but successfully stopped Calata.

¶6 Calata was arrested and later pled guilty to failure to stop at command of police, a third-degree felony. As part of the plea agreement, the State recommended no prison time provided that Calata commit no new violations, obtain his presentence investigation report, and appear at his sentencing hearing. But when Calata failed to appear for his mandatory sentencing hearing, he was arrested and sentenced to an indeterminate prison term not to exceed five years.

¶7 After sentencing, the State moved for an order of restitution, arguing that Calata was liable for the cost of repairing


the troopers' patrol cars. Calata requested a restitution hearing, at which the district court asked for briefing on whether Calata's actions proximately caused the damage to the troopers' vehicles. Calata argued that the State's request for restitution should be denied because he was not the proximate cause of the damage. He asserted that the troopers' PIT maneuvers violated Utah Department of Public Safety policies and procedures and, as a result, their actions were a "superseding cause that relieve[d] [him] of liability for the damage to the patrol vehicles."

¶8 The district court disagreed. It first addressed whether the troopers' actions were foreseeable "to a reasonable person in Mr. Calata's circumstances." It found that even if the troopers "might have violated the policies in one way or another," their actions were foreseeable because they were working "to protect the community from the dangers posed by [Calata's] vehicle," which was traveling "105 miles an hour down the freeway." The court further explained that "a reasonable person would foresee that the [troopers] might initiate a collision in order to stop [Calata] from continuing with a high speed flight," regardless of what the Utah Department of Public Safety policies and procedures provide.

¶9 The court also addressed whether the restitution statute required it to determine complete restitution and court-ordered restitution. The court explained it did not need to determine court-ordered restitution because the statute "only contemplates the determination of court ordered restitution in the event the defendant is placed on probation." Calata objected, arguing that the restitution statute requires the district court to consider both complete restitution and court-ordered restitution. But the court ruled that it was obligated only "to make a finding of complete restitution" because Calata was in prison, not on probation.

¶10 The court then granted the State's motion for restitution and ordered Calata to pay $3,071.01-an amount to which both parties stipulated.


¶11 Calata now appeals.


¶12 Calata first argues that the district court erred in declining to determine court-ordered restitution. "We will not disturb a district court's restitution determination unless the court exceeds the authority prescribed by law or abuses its discretion." State v. Ogden, 2018 UT 8, ¶ 25, 416 P.3d 1132 (cleaned up). "We review a district court's interpretation of restitution statutes for correctness." State v. Hedgcock, 2019 UT App 93, ¶ 11, 443 P.3d 1288 (cleaned up).

¶13 Second, Calata raises two claims of ineffective assistance of counsel. "A claim of ineffective assistance of counsel raised for the first time on appeal presents a question of law . . . ." State v. Tapusoa, 2020 UT App 92, ¶ 9, 467 P.3d 912 (cleaned up).


I. Court-ordered Restitution

¶14 Calata contends that the district court erred when, over his objection, it refused to calculate court-ordered restitution. Calata argues that "this determination is mandatory" under the plain language of the Crime Victims Restitution Act (the Restitution Act)[3] and the caselaw interpreting it.

¶15 "Complete restitution and court-ordered restitution are distinct concepts." State v. Grant, 2021 UT App 104, ¶ 56, 499 P.3d 176.


Complete restitution is the restitution "necessary to compensate a victim for all losses caused by the defendant." Id. (cleaned up). Court-ordered restitution, in contrast, is the restitution the court "orders the defendant to pay as a part of the criminal sentence." Id. (cleaned up). It is "a subset of complete restitution" and accounts for, among other things, the defendant's ability to pay.[4] Id. (cleaned up).

¶16 Although the district court calculated complete restitution, the court did not calculate court-ordered restitution, concluding that the Restitution Act "only contemplates the determination of court ordered restitution in the event the defendant is placed on probation." Stated another way, the court reasoned that because court-ordered restitution is "essentially . . . a condition of probation," it need not determine court-ordered restitution when, as here, "the defendant is committed to prison."

¶17 The State agrees with Calata that this was error and warrants remand to the district court for a determination of court-ordered restitution. At the time of Calata's restitution hearing, the Restitution Act explained that "[i]n determining restitution, the court shall determine complete restitution and court-ordered


restitution." Utah Code Ann. § 77-38a-302(2) (LexisNexis 2017). Our appellate courts have interpreted this language as "a clear directive that district courts are to make two separate restitution determinations, one for complete restitution and a second for court-ordered restitution." State v. Laycock, 2009 UT 53, ¶ 20, 214 P.3d 104; see also State v. Ogden, 2018 UT 8, ¶ 26, 416 P.3d 1132 (same); Grant, 2021 UT App 104, ¶ 57 (collecting cases). Based on this governing law and the State's concession of error, we reverse the court's ruling, and we remand with instructions for the court to determine court-ordered restitution under the factors set forth in the Restitution Act.

II. Ineffective Assistance of Counsel Claims

¶18 Calata contends that defense counsel rendered constitutionally ineffective assistance in two ways. First, Calata asserts that defense counsel was ineffective in failing to request that the court apportion the fault of Calata and the troopers in assessing Calata's restitution liability, arguing that "the district court should apportion...

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