Opinion
Case No. 20020800-CA.
Filed April 1, 2004. (Not For Official Publication).
Appeal from the Eighth District, Duchesne Department, The Honorable A. Lynn Payne.
Julie George, Salt Lake City, for Appellant.
Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee.
Before Judges Billings, Davis, and Greenwood.
MEMORANDUM DECISION
David Ricketts (Defendant) appeals the trial court's sentencing order, alleging plain error and ineffective assistance of counsel.
Defendant argues that the trial court committed plain error "by `let[ting] the failure of the defense attorney go by uncorrected.'" Because we do not hold that counsel's conduct was ineffective underStrickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), we necessarily rule that the trial court did not commit plain error in sentencing Defendant to prison.
In reviewing counsel's performance, we look to the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). See State v. Kelley, 2000 UT 41, ¶ 25, 1 P.3d 546. Under Strickland, Defendant must first show that counsel's performance was "deficient . . . in some demonstrable manner, which performance fell below an objective standard of reasonable professional judgment and, second, that counsel's performance prejudiced [Defendant]." Carter v. Galetka, 2001 UT 96, ¶ 31, 44 P.3d 626; see also Kelley, 2000 UT 41 at ¶ 25. "Failure to satisfy either prong will result in our concluding that counsel's behavior was not ineffective." State v. Diaz, 2002 UT App 288, ¶ 38, 55 P.3d 1131. Because we conclude that counsel's performance was not deficient, we do not reach the prejudice prong of Strickland. See State v. Mecham, 2000 UT App 247, ¶ 21, 9 P.3d 777 ("`[B]ecause a defendant has the burden of meeting both parts of the Strickland test, it is unnecessary for this court to apply both parts where our inquiry reveals that one of its parts is not satisfied.'" (alteration in original) (quoting State v. Marvin, 964 P.2d 313, 315 (Utah 1998))).
To prove counsel's performance fell below an objective standard of reasonableness, Defendant "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 446 U.S. at 689, 104 S.Ct. at 2065 (quotations and citations omitted). Therefore, "[i]n examining trial counsel's performance, `[w]e "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]"'"Diaz, 2002 UT App 288 at ¶ 39 (second alteration in original) (citations omitted).
Defendant asserts that his trial counsel failed to (1) listen to or request the court to play a tape containing threats made by Defendant to kill Agent Draper and allow Defendant to explain the threats; and (2) obtain additional mitigating evidence, including any favorable reports from the Wyoming probation department. Addressing the first prong ofStrickland, we conclude that trial counsel's conduct was "well within the range of professionally reasonable judgements." Strickland, 466 U.S. at 699, 104 S.Ct. at 2070. First, accepting Agent Draper's testimony regarding the contents of the tape without listening or requesting the court to listen to it was acceptable trial strategy. Playing the tape may have been more prejudicial to Defendant than beneficial because it may have "reemphasized the threats . . . in [a] more dramatic fashion." Moreover, the court gave Defendant an opportunity to respond to the allegations of threats on the tape and Defendant apologized and attempted to give an explanation. We hold that counsel's decision to accept Agent Draper's testimony regarding contents of the tape acceptable trial strategy.
Second, counsel's decision not to provide additional mitigating evidence was not per se ineffective assistance of counsel. See Carter, 2002 UT 96 at ¶¶ 33-34 (finding counsel's performance did not fall below a standard of reasonable conduct because counsel "presented a substantial amount of mitigation evidence. . . . [Moreover, the defendant] had not shown what additional evidence was available to present to the jury").
Defendant's counsel provided a substantial amount of mitigating evidence on his behalf, including letters from family members, fellow WYSTAR patients, WYSTAR, and the WYSTAR Discharge Summary. As to the report from the Wyoming probation department, Defendant presented no evidence that such report existed. Counsel requested and the trial court granted a continuance to obtain the Wyoming report. Further, if the report existed, there is no evidence as to what the report contained. Therefore, we hold that counsel's performance was not deficient. Accordingly, we affirm.
WE CONCUR: James Z. Davis, Judge and Pamela T. Greenwood, Judge.