State v. Grover

• Citation: 509 P.3d 223
• Decision Date: 07 April 2022
• Docket Number: 20200187-CA
• Parties: STATE of Utah, Appellee, v. Alvie Jared GROVER, Appellant.
• Court: Court of Appeals of Utah

509 P.3d 223

STATE of Utah, Appellee,

v.Alvie Jared GROVER, Appellant.

No. 20200187-CA

Court of Appeals of Utah.

Filed April 7, 2022

Nicolas D. Turner, Attorney for Appellant

Sean D. Reyes and Jeffrey S. Gray, Salt Lake City, Attorneys for Appellee

Judge Ryan D. Tenney authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.

Opinion

TENNEY, Judge:

¶1 Over the course of a few hours on a single summer day in 2017, Alvie Grover punched a man in the face, stole and crashed two vehicles, led police on a high-speed chase, shot a police dog, and was shot several times by pursuing police officers.

¶2 Grover survived his injuries, and he was charged with a host of crimes stemming from these events. He ultimately pled guilty to a few of the charges as part of a plea agreement. The judge ordered the sentences to run consecutively.

¶3 Grover now appeals, raising three main arguments. First, Grover argues that the judge should have recused himself based on the judge's prior work as the county attorney. Second, Grover argues that the judge erred at sentencing by not considering a pro se letter that Grover had submitted before sentencing. And third, Grover argues that the judge should have considered additional information that Grover had submitted to Adult Probation & Parole (AP & P) in advance of sentencing. Grover also raises ineffective assistance of counsel claims relating to these arguments.

¶4 We disagree with Grover on all fronts. We accordingly affirm.

BACKGROUND

Grover's Crime Spree, Charges, and Plea

¶5 On August 29, 2017, St. George Police received reports of a man throwing rocks at business windows. Officers responded and swept the area, looking for someone who fit the suspect's description.

¶6 While officers were doing so, they were flagged down by a man at a gas station. This man told officers that he had approached a person who was rummaging through his truck, but that he had backed down when the person threatened to shoot him. He said that the person then punched him in the face and stole his truck. The man told officers that there was an "AR-15 type rifle" in his truck when it was stolen.

¶7 At the same time, other officers responded to a report of a different stolen vehicle in a nearby area. When they arrived at the scene of that theft, they found the first stolen truck, crashed into a nearby trailer.

¶8 Dispatch then started receiving calls about a "vehicle driving erratically at a high rate of speed." When officers located and began pursuing this vehicle, they determined that it was the second stolen vehicle. They also learned from the second vehicle's owner that there was a handgun in the vehicle's center console.

¶9 During the pursuit, the vehicle crashed into a field behind a residential complex in Santa Clara, Utah. By this point, officers considered the driver to be "armed and dangerous."

¶10 When officers approached the now-stopped vehicle, one of the officers recognized the driver as Alvie Grover. That officer began speaking with Grover, hoping to talk him into surrendering. But Grover refused to surrender. Instead, he began opening and closing the door repeatedly while "yelling and swearing belligerently."

¶11 In the meantime, a K9 officer arrived with Tess, his K9 partner. Prompted by Grover's aggressive and erratic behavior, the K9 handler "deployed" Tess to "take control of" Grover. After Tess jumped into the vehicle, officers heard a gunshot followed by a yelp. Tess retreated to the back of the stolen vehicle, and officers then fired at Grover.

¶12 Grover was hit 19 times. After officers secured the scene and "began lifesaving measures," Grover was taken to a nearby hospital to receive treatment. Grover survived his wounds, and he was later booked into jail. As for Tess, she was life flighted to Las Vegas for specialty treatment. Tess survived, but she had to retire early because of her injuries.

¶13 Grover was charged with eight crimes stemming from these events: aggravated robbery, theft of a firearm, possession of a dangerous weapon by a restricted person, theft of property (operable motor vehicle), criminal mischief, injuring or interfering with a police service animal, failure to respond to an officer's signal to stop, and reckless driving.

¶14 Grover was assigned court-appointed counsel (Counsel), and he later accepted a plea agreement. In his agreement, Grover pled guilty to two counts of theft of an operable motor vehicle (both second degree felonies), one count of criminal mischief (a second degree felony), and one count of injuring or interfering with a police service animal (a third degree felony). At the plea hearing, the district court ordered AP & P to prepare a presentence investigation report (PSI) and submit it to the court before the sentencing hearing.

Sentencing

¶15 Grover submitted two documents in advance of sentencing that are relevant to this appeal.

¶16 First, after AP & P submitted the PSI, Grover sent a pro se letter to the court (Pro Se Letter).¹ In this letter, Grover made a number of claims about the AP & P investigator who had prepared the PSI. For example, Grover accused her of having a conflict of interest because, in addition to working for AP & P, the investigator also allegedly worked for the sheriff's office that employed Tess and Tess's handler. Grover also claimed that the investigator had guarded him in the hospital and had improperly asked him "all kinds of questions" about his criminal history. Grover further claimed that the investigator had told him multiple times that he "totally deserve[d] to be gun shot."

¶17 In the Pro Se Letter, Grover also claimed that the investigator had made several errors and omissions in the PSI. He claimed that she had given him "an extra 5 points" on his criminal history score and that "given a little time [he] could supply the documentation that would lower [his] criminal history." Grover described the investigator's explanation of his offenses as being "pulp fiction at best." And Grover disagreed with how the investigator identified the crimes to which he had pled guilty.

¶18 Second, at the outset of the sentencing hearing the following month, Counsel informed the court that Grover had submitted a 35-page packet (the Supplemental Documents) to AP & P that included Grover's medical records and "his version of things." But when Counsel expressed uncertainty about whether the Supplemental Documents had been forwarded to the court, the court responded that it had "not seen" them. Counsel then argued that Grover had a "right" to have the court consider them. When Counsel said that he wasn't sure if the court wanted to "continue the matter again," the court responded, "I don't."

¶19 Turning to his sentencing arguments, Counsel asked the court to order concurrent sentences, not consecutive sentences. Among others, Counsel pointed out that Grover's "last felony offense before this incident was 1997, 22 years ago. Before that his prior felony was 35 years ago in 1984."

¶20 Grover made a statement in allocution. He started off by thanking Counsel "for his efforts" and praising Counsel for doing "an excellent job." Grover then talked about the Supplemental Documents, telling the court that those documents explained "all these different theories and why it transpired and everything like that." Grover also described his injuries, and he acknowledged that what had happened was "completely [his] fault."

¶21 When Grover was done, the K9 handler gave a statement "on behalf of" Tess. He explained how Grover's bullet had gone through Tess's jaw and into her neck, where it is still lodged. He also described how she survived only because a specialist was able to "manipulate the bone structure in her neck and put the bones back in place." He said that Tess should have worked for "probably five more years" but had to retire early, and he said that she "suffers" because she doesn't understand why she can't go to work with him. The K9 handler further described the event from his perspective. He explained how he still struggled emotionally and mentally because shooting somebody was not something he "ever wanted to do in [his] career."

¶22 The prosecutor then asked the court to order consecutive sentences. He emphasized that Grover had stolen two vehicles, led officers on a high-speed chase, and "forced the officers to use deadly force."

¶23 After both sides concluded, the court sentenced Grover to three prison terms of one-to-fifteen years for the second degree felonies. For the third degree felony, the court sentenced Grover to a prison term of up to five years. The court ordered all of the sentences to run consecutively.

¶24 Explaining this decision, the court said that this was "not even a close case." The court said it thought the sentencing decision was an "easy" one because Grover had committed a "heinous" crime and had a criminal history that went "back almost 40 years." When describing Grover's criminal history, the court referenced a "sex offense in 1987."²

¶25 The court also listed several aggravating factors that influenced its sentencing decision, including "substantial monetary loss," "substantial physical or psychological injury to the victim," the harm to Tess "characterized by extreme cruelty or depravity," the fact that "the offense involved two or more victims," and the fact that Grover is "a repeat offender."

¶26 Grover timely appealed.

ISSUES AND STANDARDS OF REVIEW

¶27 Grover raises a number of issues on appeal. They essentially fall into three categories.

¶28 First, Grover argues that the sentencing judge plainly erred by not recusing himself sua sponte. Relatedly and alternatively, Grover argues that Counsel was ineffective for not filing a recusal motion.

¶29 Second, Grover argues that the district court plainly erred by not considering the Pro Se Letter. Relatedly and alternatively, Grover argues that Counsel was ineffective for not making the arguments contained in the Pro Se Letter.

¶30 Third, Grover takes issue with...