Opinion
Case No. 20040237-CA.
Filed June 30, 2005. (Not For Official Publication).
Appeal from the Fifth District, St. George Department, 031500641, The Honorable G. Rand Beacham.
Margaret P. Lindsay, Orem, for Appellant.
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.
Before Judges Billings, Greenwood, and Jackson.
MEMORANDUM DECISION
Defendant Orrin Bruce Wallace appeals his conviction of assault by a prisoner, a third degree felony, in violation of Utah Code section 76-5-102.5. See Utah Code Ann. § 76-5-102.5 (2003). We affirm.
Defendant argues his trial counsel was ineffective by failing to file or pursue Defendant's claim that the State was selectively prosecuting him on the basis of his race.
Actually, Defendant's accusations are better characterized as selective plea bargaining. According to Defendant's affidavits, both of the fellow inmates to whom Defendant compared himself were prosecuted, but were offered plea deals by the State.
To prevail on an ineffective assistance of counsel claim, "`a defendant must show (1) that counsel's performance was so deficient as to fall below an objective standard of reasonableness and (2) that but for counsel's deficient performance there is a reasonable probability that the outcome of the trial would have been different.'"
Myers v. State, 2004 UT 31, ¶ 20, 94 P.3d 211 (quotingWickham v. Galetka, 2002 UT 72, ¶ 19, 61 P.3d 978) (additional citation omitted); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). "In making this evaluation, the court must `indulge in the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Myers, 2004 UT 31 at ¶ 20 (quoting State v. Templin, 805 P.2d 182, 186 (Utah 1990)) (additional quotations and citations omitted).
First, the performance of Defendant's trial counsel was not "below an objective standard of reasonableness." Id. For instance, Defendant's trial counsel apparently advised Defendant that his selective-prosecution claim did not square with her trial strategy. Counsel's failure to raise a claim may be presumptively sound trial strategy. See State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993) (noting an act that "might be considered sound trial strategy" does not demonstrate inadequacy of counsel); see also Myers, 2004 UT 31 at ¶ 20 (presuming trial counsel's action was "sound trial strategy" (quotations and citations omitted)). In addition, Defendant's pro se motion explicitly stated that he was pursuing the selective-prosecution action "without the assistance of counsel."
Moreover, Defendant was not prejudiced by his trial counsel's failure to pursue the selective-prosecution claim. Indeed, the trial court, affording procedural leniency to Defendant, allowed Defendant to file his first motion and affidavit at the conclusion of his trial, notwithstanding the State's objection. Nonetheless, the trial court chose not to rule on either of Defendant's motions. Further, the trial court did not err by not considering Defendant's motions or allowing Defendant further discovery because, as presented, those motions were insufficient.
Indeed, the United States Supreme Court has opined on the heavy burden of such a claim:
A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. Our cases delineating the necessary elements to prove a claim of selective prosecution have taken great pains to explain that the standard is a demanding one. These cases afford a background presumption that the showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims.
United States v. Armstrong, 517 U.S. 456, 463-64 (1996) (internal quotations and citation omitted).
This court also addressed selective-prosecution claims inState v. Geer, 765 P.2d 1 (Utah Ct.App. 1988). In Geer, we noted, "Prosecutors are given broad discretion in determining whether to prosecute." Id. at 3 (citing Wayte v. United States, 470 U.S. 598, 607 (1985)). "As long as the prosecutor has probable cause to believe that an offense has been committed, the decision regarding whether to prosecute `generally rests entirely in [the prosecutor's] discretion.'" Id. (alteration in original) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). "Although selective prosecution claims are assessed according to `ordinary equal protection standards,' the decision to prosecute may not be `deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.'" Id. (quoting Wayte, 470 U.S. at 608). As here, "a defendant who seeks discovery on a claim of selective prosecution must show some evidence of both discriminatory effect and discriminatory intent." United States v. Bass, 536 U.S. 862, 863 (2002). To show discriminatory effect, "the defendant must make a `credible showing' that `similarly situated individuals of a different race were not prosecuted.'" Id. (quoting Armstrong, 517 U.S. at 465, 470).
Here, Defendant's only evidence of the prosecutor's alleged deliberate racial bias consisted of his two affidavits, the first of which did not identify the race of Defendant's example of a similarly situated inmate. In light of the small sample size — two other inmates — and self-serving nature of Defendant's affidavits, the trial court did not find Defendant's evidence credible. Indeed, Defendant's self-serving affidavits are insufficient to overcome the presumption that the prosecutor acted without bias. See United States v. Peete, 919 F.2d 1168, 1176 (6th Cir. 1990) (upholding district court's conclusion that the defendant's self-serving affidavit and an affidavit from his counsel did not support his selective-prosecution claim);cf. State v. Gutierrez, 2003 UT App 95, ¶ 10, 68 P.3d 1035 (ruling a self-serving "affidavit, by itself, is insufficient to invalidate a prior conviction").
Because we determine that Defendant's selective-prosecution claim is without merit, Defendant's trial counsel's failure to pursue it did not prejudice Defendant. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 ("Failure to raise futile objections does not constitute ineffective assistance of counsel."); see also Truesdale v. Moore, 142 F.3d 749, 755 (4th Cir. 1998) ("It was not constitutionally ineffective assistance for [the defendant's] resentencing counsel not to pursue futile claims."). Under such a conclusion, Defendant's ineffective assistance of counsel claim fails.
Accordingly, we affirm the trial court's ruling.
Judith M. Billings, Presiding Judge and Norman H. Jackson, Judge, concur.