State v. Sessions

• Decision Date: 27 September 2012
• Docket Number: No. 20110046–CA.,20110046–CA.
• Citation: 2012 UT App 273,718 Utah Adv. Rep. 98,287 P.3d 497
• Parties: STATE of Utah, Plaintiff and Appellee, v. Ronnie Cyril SESSIONS, Defendant and Appellant.
• Court: Utah Court of Appeals

287 P.3d 497

718 Utah Adv. Rep. 98

2012 UT App 273

STATE of Utah, Plaintiff and Appellee,

v.Ronnie Cyril SESSIONS, Defendant and Appellant.

No. 20110046–CA.

Court of Appeals of Utah.

Sept. 27, 2012.

Brittany D. Enniss, Salt Lake City, for Appellant.

Mark L. Shurtleff and Ryan D. Tenney, Salt Lake City, for Appellee.

Before Judges McHUGH, VOROS, and ROTH.

OPINION

McHUGH, Judge:

¶ 1 Ronnie Cyril Sessions appeals his convictions for one count of aggravated sexual assault, a first degree felony, seeUtah Code Ann. § 76–5–405 (2008) (current version at id. (Supp.2012)), and two counts of domestic violence in the presence of a child, class B misdemeanors, see id. § 76–5–109.1(2)(c) (2008) (current version at id. (Supp.2012)).¹ On appeal, Sessions argues that his counsel performed ineffectively by using the defense's peremptory challenges in a discriminatory manner, being unable to articulate a nondiscriminatory reason for striking two of the jurors, and then failing to object to the trial court's remedy, which Sessions claims was unconstitutional. Next, he argues that trial counsel was ineffective in failing to move for a mistrial in response to the trial court's reference to a future appeal in the presence of the jury. Last, Sessions claims that the trial court imposed an improper sentence. We affirm.

BACKGROUND

¶ 2 The charges in this case arise out of Sessions's violent attack on his wife (Wife) in the presence of their four-year-old daughter. On March 31, 2009, during an argument, Sessions “ripped all [Wife's] clothes off” and “plunged his hand into [her] vagina.” Sessions then “just started hitting [Wife] and raping [her] with his fist.” Wife's adult son heard her screams and found her alone and “naked” on the floor with “blood coming down the side of her leg where her vagina is.”

¶ 3 The State charged Sessions with one count of aggravated sexual assault and two counts of domestic violence in the presence of a child. On August 27, 2010, the parties began the process of selecting the jury. During voir dire, the trial judge asked, “Have any of you ever served on a jury involving a criminal matter?” Juror 19 responded that she had served as a juror on an assault case fifteen or twenty years previously and that the defendant in that case was found guilty. Later, Juror 19 informed the court that her niece had been sexually assaulted. In response, the trial court asked her, “Would you be able to set [your niece's sexual assault] aside ... and render a true and correct verdict in this case?” Juror 19 responded, “Yes.” Neither party requested any further questions of Juror 19 or challenged her for cause.

¶ 4 Also during voir dire, the trial court asked the venire, “Do any of you feel that the testimony of someone working in law enforcement is more or less believable than anybody else?” Juror 23 raised her hand, but the court did not ask any further questions regarding this issue. Later, Juror 23 indicated that she had seen pretrial publicity, but that she could be fair and impartial despite that exposure. Neither party requested any further questions of Juror 23 or challenged her for cause.

¶ 5 Over the course of voir dire, the trial court struck eighteen potential jurors for cause. The attorneys then passed the remaining twenty-one potential jurors for cause, including Jurors 19 and 23. At this point, the trial court gave the parties an opportunity to exercise their peremptory challenges. The State struck four men and one woman, and Sessions struck five women including Jurors 19 and 23. The State objected to Sessions's use of his peremptory challenges, claiming that he had exercised them in a discriminatory fashion. At that point, the trial court asked Sessions whether he realized that he did “not have the ability to strike people based upon their gender.” Counsel answered, “I did not do that.”

¶ 6 Based on its conclusion that the use of the defense's peremptory challenges to eliminate five women established a prima facie constitutional violation, the trial court asked trial counsel to articulate a gender-neutral explanation for each strike. Trial counsel provided an acceptable explanation for striking all of the jurors except for Jurors 19 and 23. With respect to Juror 19, the most detail about his reasoning that counsel could remember was that “something she said” had bothered him and he struck her based on a “gut feeling.” Trial counsel also could not recall his reasons for striking Juror 23. Because he was unable to provide a legitimate nondiscriminatory reason for striking Jurors 19 and 23, the trial court determined that trial counsel had exercised the defense's peremptory challenges in a discriminatory fashion.

¶ 7 As a result, the court informed the State that it would “entertain a motion for a mistrial ... or for alternative relief.” The State did not seek a mistrial; instead, it suggested that the trial court reseat Jurors 19 and 23. The trial court then stated that it was “concerned, because, frankly, when you first came up here, you indicated that you did not know that you could not strike women just because they were females, correct?” Trial counsel responded, “Correct.” At that point, the trial court adopted the State's suggestion and reseated the jurors. Trial counsel did not object to the remedy selected or request that the peremptory challenges he had used on Jurors 19 and 23 be reinstated. Both attorneys then passed the jury for cause and the trial proceeded to verdict. The jury, which included Jurors 19 and 23, convicted Sessions on all counts.

¶ 8 Prior to sentencing, Adult Probation and Parole (AP & P) prepared a Presentence Investigation Report (the PSI), indicating that Sessions could be sentenced to indeterminate terms of six years to life, ten years to life, or fifteen years to life for aggravated sexual assault. The PSI stated that “the court shall order the term of 15 years to life ... unless aggravating or mitigating circumstances justify departures.” AP & P stated that Sessions was in the “Mandatory Imprisonment Sanction category” and recommended “lengthy incarceration.” Prior to sentencing, the statute in effect at the time of the crime and referenced in the PSI was amended, adding a fourth sentencing option of three years to life in certain circumstances.

¶ 9 At the beginning of the sentencing hearing, the trial court stated that it had read the PSI. The parties then discussed the appropriate sentencing range for aggravated sexual assault. Sessions's counsel asked the trial court to impose a sentence of three years to life, the most lenient sentence permitted under the amended statute. In contrast, the State requested that Sessions receive the maximum sentence under both statutes of fifteen years to life. The State also argued that three years to life was “not even a possibility.” The trial court indicated that “the only reduction [it was] contemplating [was] to 10 years ... based on [Sessions's] lack of any criminal history,” a sentence available under either version of the statute. At the end of the hearing, the trial court sentenced Sessions to ten years to life for aggravated sexual assault and to time served for the counts of domestic violence in the presence of a child. Sessions appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 10 Sessions first argues that he received ineffective assistance when trial counsel used all of the defense's peremptory challenges on women, did not know that he could be asked to provide a nondiscriminatory reason for doing so, and could not recall the information provided by these jurors during voir dire. Second, Sessions argues that the trial court erred by reinstating Jurors 19 and 23 without returning the two peremptory challenges the defense had used to strike them. Sessions also argues that trial counsel was ineffective by failing to object or move for a mistrial in response. Third, Sessions argues that the trial court erred when it referred to the future appeal of the case in the presence of the jury, and that counsel was ineffective in failing to move for a mistrial in response. Finally, Sessions argues that the trial court erred in sentencing him under the prior version of the statute, that trial counsel was ineffective by failing to alert the trial court to its sentencing options, and that the sentence imposed was illegal.

¶ 11 All of Sessions's claims are unpreserved and are raised for the first time on appeal. Ineffective assistance of counsel claims raised for the first time on appeal are issues of law that we review for correctness. See State v. Person, 2006 UT App 288, ¶ 9, 140 P.3d 584. We review the claimed errors of the trial court under the doctrine of plain error. See State v. Cram, 2002 UT 37, ¶ 9, 46 P.3d 230 (stating that unpreserved claims may not be raised on appeal, “ ‘unless a defendant can demonstrate that “exceptional circumstances” exist or “plain error” occurred.’ ” (quoting State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346)).

ANALYSIS

I. Jury Selection Issues

¶ 12 We first consider Sessions's claims that trial counsel was ineffective for not successfully striking Jurors 19 and 23 and for failing to seek reinstatement of his rejected peremptory challenges. We also consider Sessions's claim that the failure to return the two peremptory strikes constituted plain error. Before we begin our analysis, we address Sessions's burden on appeal.

A. Ineffective Assistance of Counsel and Plain Error

¶ 13 Sessions admits that his jury selection claims are raised for the first time on appeal. As a general rule, a party may not raise issues on appeal that were not brought to the attention of the trial court. See Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. However,there are three exceptions to this preservation rule.

When a party fails to preserve an issue for appeal, we will address the issue only if (1) the appellant establishes that the district court committed “plain error,” (2) “exceptional circumstances” exist, or (3) in some...