State v. Franco

Decision Date19 July 2012
Docket NumberNo. 20100450–CA.,20100450–CA.
Citation713 Utah Adv. Rep. 34,2012 UT App 200,283 P.3d 1004
PartiesSTATE of Utah, Plaintiff and Appellee, v. Richard Paul FRANCO, Defendant and Appellant.
CourtUtah Court of Appeals

OPINION TEXT STARTS HERE

Ronald Fujino, Salt Lake City, for Appellant.

Mark L. Shurtleff and Andrew F. Peterson, Salt Lake City, for Appellee.

Before Judges McHUGH, ORME, and ROTH.

AMENDED MEMORANDUM DECISION 1

ROTH, Judge:

¶ 1 Richard Paul Franco makes two challenges to his conviction for forcible sexual abuse. First, he contends that the trial court committed reversible error requiring remand when it did not inquire into the need for substitution of counsel after Franco expressed dissatisfaction with his attorney's performance. Franco also claims that trial counsel's failure to present Franco's desired theory of the case resulted in ineffective assistance of counsel entitling him to a new trial. We affirm.

I. Duty to Inquire

¶ 2 Franco asserts that the trial court had a duty to inquire about the need for substitute counsel once he complained in posttrial letters to the court about a conflict of interest with his attorney. See generally State v. Pursifell, 746 P.2d 270, 273 (Utah Ct.App.1987) ([W]hen dissatisfaction is expressed, the court must make some reasonable, non-suggestive efforts to determine the nature of the defendant's complaints and to apprise itself of the facts necessary to determine whether the defendant's relationship with his or her appointed attorney has deteriorated.”). In particular, Franco contends that the court failed to address his complaint that

[trial counsel] didn't act accordingly in my trial by not stating [to the jury] what I said to him during my trial in his ear [regarding my theory of the case]. [Trial counsel and I] have a conflict of interest ... he has minimized or put my life freedom(s) in je[opa]rdy opposite of what I required him to do[.] I want a new la[wy]er.

¶ 3 According to Franco, the trial court's failure to conduct an inquiry into the substance of his complaints requires us to remand the issue for a determination of whether good cause existed for substitution of counsel. In support of his position, Franco directs us to State v. Vessey, 967 P.2d 960 (Utah Ct.App.1998), in which the defendant filed a pro se motion with the trial court three months before trial, requesting the appointment of new counsel because his existing counsel “refused to prepare for trial and ... they had irreconcilable conflicts.” Id. at 961–62. The trial court “summarily denied [the] defendant's motion for substitution of counsel, [and] the case proceeded to trial, [where he] was convicted.” Id. at 961. We reversed, stating that [b]y summarily denying defendant's motion [for substitution] ..., the trial court put the defendant in the position of choosing between proceeding to trial with counsel ... or proceeding pro se.” Id. at 964. Relying on our earlier decision in State v. Pursifell, 746 P.2d 270 (Utah Ct.App.1987), we observed that the better practice was to require the trial court to conduct an inquiry into the basis for complaints about counsel's performance before trial. See967 P.2d at 962–64. Such a pretrial inquiry best safeguards a defendant's Sixth Amendment right to counsel and promotes judicial efficiency by allowing a court to consider whether there is an irreconcilable conflict or breakdown in communication that necessitates substitution of counsel before a trial has occurred. See id. (noting that the inquiry requirement creates an “incentive ... for a trial court to conduct the appropriate review in a timely manner,” which is critical because “timely judicial intervention at the pretrial stage constitutes an effective mechanism for prevention of Sixth Amendment deprivations and for the simultaneous preservation of the integrity of the adversary trial process” (internal quotation marks omitted)); Pursifell, 746 P.2d at 274 (“When a defendant is forced to stand trial with the assistance of an attorney with whom he has become embroiled in an irreconcilable conflict, he is deprived of the effective assistance of any counsel whatsoever and his Sixth Amendment right to counsel is violated.” (internal quotation marks omitted)). Furthermore, a pretrial inquiry “reduces the likelihood of a post conviction ineffective assistance claim” and “creates a record that reviewing courts can rely upon when an ineffectiveness issue is raised on appeal.” Vessey, 967 P.2d at 964.

¶ 4 The situation in Vessey, however, is different from Franco's. Unlike the defendant in Vessey, Franco did not alert the trial court to any concerns about his counsel's representation prior to trial. See id. at 961–62 (reviewing a failure to inquire where the court was notified of the defendant's complaint three months before trial); see also Pursifell, 746 P.2d at 272 (reviewing the defendant's claim that the trial court failed to adequately inquire where [o]n the morning of the first day of trial, the defendant informed the court that he did not want to proceed with ... counsel). Indeed, it was not until five months after his July 2009 trial and conviction, on December 24, 2009, that Franco first sent a letter to the court expressing dissatisfaction with trial counsel's performance at trial. Between Franco's December 24 letter and his sentencing on May 3, 2010, Franco sent the court seven more letters, all expressing nearly identical complaints about counsel's presentation of the case at trial.

¶ 5 Franco nevertheless contends that the remedy established by Vessey—remand to the trial court for consideration of whether there had been an actual pretrial conflict between counsel and the defendant requiring substitution—should apply under the circumstances presented in this case. See Vessey, 967 P.2d at 964. The remedy of remand was adopted in Vessey, however, because “timely judicial intervention at the pretrial stage constitutes an effective mechanism for the prevention of Sixth Amendment deprivations and for the simultaneous preservation of the integrity of the adversary trial process.” Id. (internal quotation marks omitted). Treating the failure to inquire pretrial as per se error creates an “incentive ... for a trial court to conduct the appropriate review in a timely manner.” Id. The remedy of remand does not have the same prophylactic effect in cases such as this, where the complaint is made after the fact and any prejudicial impact on the trial has already occurred.2 When a defendant's complaints about counsel's trial performance are disclosed after the trial has ended, his or her remedy lies in an appeal challenging the effectiveness of counsel's assistance. Cf. Pursifell, 746 P.2d at 275 (“Unsuccessful motions for substitution of counsel are typically followed by the claim that defendant received ineffective assistance of counsel at trial.”). Franco has done so here as an alternative argument on appeal. For these reasons, we find the Vessey rule inapplicable to this case and decline to remand for a posttrial inquiry into whether there was good cause to substitute appointed counsel.3

II. Ineffective Assistance of Counsel

¶ 6 We now turn to Franco's claim of ineffective assistance of counsel. 4 A claim of ineffective assistance at trial “presents a question of law, which we review for correctness.” State v. Walker, 2010 UT App 157, ¶ 13, 235 P.3d 766. To prevail on an ineffectiveness claim, a defendant must show both (1) that counsel's performance was objectively deficient, and (2) [that] a reasonable probability exists that but for the deficient conduct defendant would have obtained a more favorable outcome at trial.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.

¶ 7 Under the deficient performance prong, Franco must show that his counsel's representation fell below an objective standard of reasonableness.’ Nicholls v. State, 2009 UT 12, ¶ 37, 203 P.3d 976 (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). ‘This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.’ Id. (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). To make such a showing, a defendant “must overcome the strong presumption that [his] trial counsel rendered adequate assistance, by persuading the court that there was no conceivable tactical basis for counsel's actions.” Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (alteration in original) (emphasis, citation, and internal quotation marks omitted). Moreover, appellate courts will not “second-guess trial counsel's legitimate strategic choices.” State v. Mahi, 2005 UT App 494, ¶ 20, 125 P.3d 103 (internal quotation marks omitted); see also State v. Tennyson, 850 P.2d 461, 468 (Utah Ct.App.1993) (stating that to reject an ineffective assistance claim, we need only articulate some plausible strategic explanation for counsel's behavior”). “Decisions as to what witnesses to call, what objections to make, and by and large, what defenses to interpose, are generally left to the professional judgment of counsel.” State v. Wood, 648 P.2d 71, 91 (Utah 1982). Thus, Franco “must identify counsel's specific acts or omissions that ‘fall outside the wide range of professionally competent assistance.’ State v. Classon, 935 P.2d 524, 532 (Utah Ct.App.1997) (quoting State v. Frame, 723 P.2d 401, 405 (Utah 1986)).

¶ 8 In this regard, ineffectiveness cannot be established simply by the fact that the attorney chose not to follow the trial advice of the defendant he represented. To the contrary, the Sixth Amendment right to counsel is based on the common-sense notion that those accused of a crime are at a distinct disadvantage in planning and carrying out an effective defense, one that requires navigating a path through a complex landscape of laws, rules, and evidence where the stakes are very high. The concept of effective assistance must therefore contemplate the primacy of counsel...

To continue reading

Request your trial
14 cases
  • McCloud v. State
    • United States
    • Utah Court of Appeals
    • March 14, 2019
    ...legitimate considerations, Trial Counsel made a reasonable "judgment call" against consulting experts in McCloud’s case. See State v. Franco , 2012 UT App 200, ¶ 8, 283 P.3d 1004 (explaining that "[t]he concept of effective assistance must ... contemplate the primacy of counsel’s judgment, ......
  • State v. Curtis
    • United States
    • Utah Court of Appeals
    • August 6, 2014
    ...objections to make, and by and large, what defenses to interpose, are generally left to the professional judgment of counsel.’ ” State v. Franco, 2012 UT App 200, ¶ 7, 283 P.3d 1004 (quoting State v. Wood, 648 P.2d 71, 91 (Utah 1982)). ¶ 34 To prove prejudice, a defendant must show that his......
  • State v. Curtis
    • United States
    • Utah Court of Appeals
    • December 5, 2013
    ...objections to make, and by and large, what defenses to interpose, are generally left to the professional judgment of counsel.'" State v. Franco, 2012 UT App 200, ¶ 7, 283 P.3d 1004 (quoting State v. Wood, 648 P.2d 71, 91 (Utah 1982)).¶34 To prove prejudice, a defendant must show that his tr......
  • State v. Lee
    • United States
    • Utah Court of Appeals
    • January 9, 2014
    ...a witness. In evaluating whether counsel was deficient, we will not “second-guess trial counsel's legitimate strategic choices,” State v. Franco, 2012 UT App 200, ¶ 7, 283 P.3d 1004 (citations and internal quotation marks omitted). Rather, if there is a “conceivable tactical basis for couns......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT