State v. Elkface
| Docket Number | 20210550-CA |
| Decision Date | 09 March 2023 |
| Parties | State of Utah, Appellee, v. Beverly Ann Elkface, Appellant. |
| Court | Utah Court of Appeals |
Seventh District Court, Price Department The Honorable Jeremiah Humes No. 211700006
Wendy Brown, Attorney for Appellant
Sean D. Reyes and Natalie M. Edmundson, Attorneys for Appellee
¶1 As part of a global plea agreement, Beverly Ann Elkface entered guilty pleas in three criminal cases against her. A presentence investigation report (PSI) was prepared and submitted to the district court. At the sentencing hearing the court imposed prison sentences in each case consistent with the upward departure recommendation in the PSI. Elkface now appeals her sentences on the ground that her defense counsel (Counsel) rendered ineffective assistance for failing to seek the disqualification of the sentencing judge. For the reasons set forth herein, we agree with Elkface and accordingly vacate her sentences and remand the matter to the district court for resentencing.
¶2 While Elkface was serving probation for two criminal cases (the probation cases), the State filed five new criminal cases against her. In March 2021, Elkface appeared before Judge Humes for a hearing at which Judge Humes advised her that he "may be disqualified from presiding in this matter, based on his former office's involvement in the case." Judge Humes's involvement with Elkface began in 2018 when, prior to his appointment to the bench, he served as one of the line prosecutors in the probation cases.[1] In this capacity, he actively participated in the proceedings and sought to have Elkface's probation revoked. To this end, he filed numerous adversarial pleadings against Elkface-six in one case alone-and appeared in court to argue that Elkface should be held to be in violation of her probation and sanctioned. Elkface was not advised of the full extent of the judge's involvement in the probation cases, however, and without any apparent discussion with Counsel, she "waive[d] any conflict and agree[d] to Judge Humes presiding."
¶3 The following month, Elkface and the State appeared before Judge Humes to present a "global resolution" for the seven pending cases. Pursuant to the agreement, Elkface agreed to plead guilty in three of the new cases, and the State agreed to dismiss two of the new cases. Because Elkface had not yet completed probation in the probation cases, both parties also agreed to "track" the probation cases to the sentencing hearing, meaning the court would review Elkface's progress in those cases at the sentencing hearing and would, at that hearing, make a determination as to whether Elkface had violated her probation in those cases.
¶4 Thereafter, Adult Probation and Parole (AP&P) prepared a PSI for Elkface that included a sentencing matrix that was consistent with the Utah Sentencing Guidelines, which placed Elkface into the "presumptive probation" category and recommended supervised probation and "0-90 days [of] jail with a mid-point of 45 days." Based on Elkface's history-including her previous violations in the probation cases (that Judge Humes had helped litigate) and her "significant drug abuse problem"- AP&P disagreed with the guidelines' recommendation and instead recommended that Elkface be denied probation and sentenced to prison.
¶5 In August 2021, Elkface appeared before Judge Humes for sentencing. Citing her "refusal to stay clean and stay out of trouble," the State requested that Elkface be sentenced to prison consistent with AP&P's recommendation. Conversely, Counsel urged Judge Humes to follow the sentencing guidelines and place Elkface on probation. In support, Counsel argued that "almost all" Elkface's probation violations were related to substance abuse, which Elkface was working to address through both treatment and therapy. Moreover, Elkface had a job, had disassociated from individuals who were a bad influence on her, and was "working very hard to stay out of trouble and to better herself" because she was pregnant.
¶6 At the close of the hearing, Judge Humes imposed prison sentences in each of the three cases to which Elkface pleaded guilty. The sentences imposed were consistent with AP&P's recommendation. Judge Humes explained that although the cases had been "difficult . . . to evaluate," ultimately, Elkface's inability to succeed on probation in the probation cases indicated she would "require more intensive supervision" to succeed. Then, at the State's request, Judge Humes closed the probation cases and adjudicated them as unsuccessful.
¶7 Elkface now appeals her prison sentences, arguing that Counsel rendered constitutionally ineffective assistance by failing to seek disqualification of Judge Humes.[2] "When a claim of ineffective assistance of counsel is raised for the first time on appeal there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v Beckering, 2015 UT App 53, ¶ 18, 346 P.3d 672 (quotation simplified).
¶8 Elkface argues that Counsel was ineffective for "failing to insist on [Judge Humes's] disqualification" because Judge Humes "previously prosecuted her in numerous cases, including in some of the cases before the court at the sentencing hearing." To prevail on this claim, Elkface must show (1) that Counsel's performance was "deficient" and (2) that this "deficient performance prejudiced the defense." See Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶9 Rule 2.11(A) of the Utah Code of Judicial Conduct[3] provides that "[a] judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned." Utah Code Jud. Conduct R. 2.11(A). Circumstances where this rule applies include, as relevant here, where the judge has "a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding," id. R. 2.11(A)(1), or where the judge "served as a lawyer in the matter in controversy," id. R. 2.11(A)(6)(a).[4]
¶10 A judge subject to disqualification, "other than for bias or prejudice," may ask the parties to waive disqualification. Id. R. 2.11(D). For the waiver to be valid, however, the judge must (1) "disclose on the record the basis of the judge's disqualification" and (2) "ask the parties and their lawyers to consider, outside the presence of the judge . . ., whether to waive disqualification." Id. (emphasis added). Then, following the required disclosure, if "the parties and lawyers agree, without participation by the judge . . ., that the judge should not be disqualified, the judge may participate in the proceeding." Id.
¶11 Applying rule 2.11 to the facts of this case, Elkface contends that Judge Humes should have been disqualified under provisions (A)(1) and (A)(6)(a) of the rule, and that it was therefore unreasonable for Counsel not to either file a motion requesting that Judge Humes disqualify himself or to insist that Judge Humes follow the procedure in provision (D) to obtain a valid waiver.[5] We agree with Elkface on both fronts.
¶12 First, as the former prosecutor in multiple cases against Elkface, it is readily apparent that Judge Humes was subject to disqualification under provisions (A)(1) and (A)(6)(a) due to his prior involvement with Elkface. Judge Humes had "personal knowledge of facts . . . in dispute in the proceeding," see id. R. 2.11(A)(1), in particular regarding the various ways in which Elkface had allegedly violated her probation in the probation cases, and he also "served as a lawyer in the matter in controversy," see id. R. 2.11(A)(6)(a). At the sentencing hearing, both sides engaged in extensive discussion about Elkface's history, including her substance abuse issues, prior cases, and compliance with probation in previous cases. Judge Humes, however, was already privy to some of this information. While working as a prosecutor, he appeared in several of Elkface's matters, including the probation cases that were discussed at the sentencing hearing and upon which he heavily relied in making his sentencing decision. And in his capacity as a prosecutor, Judge Humes personally sought to have Elkface's probation revoked in the probation cases, filing at least six adversarial pleadings against Elkface in one case alone.
¶13 Second, because Judge Humes was subject to disqualification Counsel performed deficiently by failing to either insist that Judge Humes disqualify himself or to insist that the court obtain a valid waiver. In determining whether Counsel performed deficiently, we examine whether, "considering all the circumstances, counsel's acts or omissions were objectively unreasonable." See State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. Here, that means we must ask whether Judge Humes's disqualification from the case "was sufficiently important under the circumstances" that Counsel's failure to insist on disqualification "fell below an objective standard of reasonableness." See State v. Ray, 2020 UT 12, ¶ 36, 469 P.3d 871. And under the circumstances here, we agree with Elkface that it did.[6] ¶14 As an initial matter, the issue before Judge Humes was the appropriate sentence to impose on Elkface in the three cases to which she pleaded guilty. And in making this decision, the main aggravating factor that Judge Humes considered was Elkface's prior performance in the probation cases. Where Judge Humes was personally involved in the State's effort to seek revocation of Elkface's probation in ...
To continue reading
Request your trial