2021 UT App 3

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

GARY JAMIESON,

Appellant.

Amended Opinion1

No. 20150863-CA

Filed January 7, 2021

First District Court, Logan Department

The Honorable Brandon J. Maynard

No. 121101017

Emily Adams and Freyja Johnson, Attorneys

for Appellant

Sean D. Reyes, Jeanne B. Inouye, and Karen A. 

Klucznik, Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and 

DAVID N. MORTENSEN concurred.

 

1. This Amended Opinion replaces the Opinion in Case No. 

20150863-CA, issued on December 29, 2017. After our previous 

opinion issued, the State petitioned the Utah Supreme Court for 

certiorari review of this court’s ruling regarding Jamieson’s 

ineffective assistance of counsel claim; the supreme court 

“provisionally granted” the petition, but stayed proceedings 

pending the outcome of State v. Ray, 2020 UT 12, 469 P.3d 871, 

and State v. Scott, 2020 UT 13, 462 P.3d 350. Following issuance of 

its opinions in those cases, the supreme court issued an order 

remanding this case back to this court “for further proceedings 

in light of the opinions in Ray and Scott.” After reviewing Ray

and Scott, as well as supplemental briefing submitted by the 

parties, we issue this Amended Opinion.
State v. Jamieson

20150863-CA 2 2021 UT App 3

HARRIS, Judge:

¶1 Gary Jamieson downloaded, without authorization, over 

1,400 of his boss’s emails and disseminated them to outside 

parties. He later pled guilty to one count of “computer crimes,” a 

class A misdemeanor. See Utah Code Ann. § 76-6-703(1) 

(LexisNexis 2017). The State sought restitution on behalf of his 

employer (Company), the victim of the crime. After holding a 

hearing, the district court calculated complete restitution in the 

amount of $120,378.27, a figure representing, in large part, the 

estimated value of the time Company officials spent dealing 

with the aftereffects of the email download.

¶2 Jamieson appeals from the restitution order, and asks us 

to consider two arguments.2 First, he argues that the district 

court improperly included in its restitution figure at least some 

amount for time spent by Company employees while 

participating in the criminal case (e.g., attending hearings). 

Jamieson did not raise this argument below, but contends that 

the district court plainly erred by including any such amounts in 

 

2. In his briefing on appeal, Jamieson raised a third argument: 

that his counsel was ineffective for failing to move to withdraw 

Jamieson’s guilty plea after the court had already sentenced him. 

In connection with this argument, Jamieson filed a motion for 

remand, pursuant to rule 23B of the Utah Rules of Appellate 

Procedure, asking this court to remand the case to the district 

court for additional factual findings on the issue. However, 

while this case was pending, the Utah Supreme Court issued its 

decision in State v. Rettig, 2017 UT 83, 416 P.3d 520, in which the 

court upheld the constitutionality of Utah’s plea withdrawal 

statute. Id. ¶ 13. That statute requires that “[a] request to 

withdraw a plea of guilty . . . be made by motion before sentence 

is announced.” Utah Code Ann. § 77-13-6(2)(b) (LexisNexis 

2017). In light of the supreme court’s decision in Rettig and the 

statute’s plain mandate, Jamieson has since withdrawn this third 

argument as well as his related rule 23B motion.
State v. Jamieson

20150863-CA 3 2021 UT App 3

its calculation. Second, Jamieson asserts that he received 

ineffective assistance of counsel because his attorney failed to 

take issue with the Company CEO’s claim that he had devoted 

553 hours to dealing with the email download.

¶3 We find Jamieson’s arguments persuasive. Accordingly, 

we vacate the restitution order and remand the case to the 

district court for a new restitution hearing.

BACKGROUND

¶4 Jamieson was employed by Company as its chief 

engineer. In May 2011, Jamieson contacted another Company

employee and requested access to the Company Chief Executive 

Officer’s (the CEO) emails. At that time, the CEO was out of the 

country and was not reachable by phone. The employee gave 

Jamieson “remote access to [the CEO’s] computer, bypassing the 

firewall, other network protections and password controls,” 

thereby allowing Jamieson direct access to the CEO’s computer. 

Jamieson had full access to the CEO’s computer for about twenty 

minutes, and in that time period Jamieson printed out several 

hard copy files and downloaded many of the CEO’s emails onto 

a thumb drive. In this fashion, Jamieson obtained “at least” 1,400 

emails comprising some 2,000 printed pages. The emails were 

“very confidential” and included information regarding 

employee compensation, pending business deals, plans to hire a

competitor’s employees, and communications with other 

industry professionals.

¶5 Later, believing that Company was involved in illegal 

activity, Jamieson told the CEO that “I have your email[s], 

they’re very damning, I’m going to take you down.” Jamieson

disseminated the emails to a federal government agency, federal 

law enforcement officials, and a local news organization. 

Company eventually fired Jamieson.

¶6 The State charged Jamieson with one felony count of 

“computer crimes.” See Utah Code Ann. § 76-6-703(1)
State v. Jamieson

20150863-CA 4 2021 UT App 3

(LexisNexis 2017).

3 At a preliminary hearing before a magistrate, 

the CEO was asked how much time he had spent “dealing with 

the fallout from [Jamieson’s] disclosures,” and he responded that 

he had not kept time records, and “wish[ed] [he] could recall 

that.” He gave an “estimate,” however, stating that “on average” 

he had spent “an hour a day . . . over a two-year period.” He 

acknowledged that a lot of the time he spent “was a rehash and 

trying to reconstruct what brought this whole thing on,” and 

attempting to “rehears[e] and re-rehears[e] the sequence of 

events that led to this.” The magistrate bound the case over for 

trial and, after plea negotiations, Jamieson pled guilty to one 

count of “computer crimes” as a class A misdemeanor.

¶7 After Jamieson pled guilty, the State sought a total of 

$164,609.77 in restitution. The bulk of this request consisted of 

time spent by the CEO. Indeed, the State asserted that the CEO 

had spent “553 hours (at minimum) . . . reviewing printed 

emails, meeting with local [and federal] counsel, police 

investigators, [and] staff,” and that the value of the CEO’s time 

totaled $110,600. The State also sought $7,500 for time spent by 

three other Company employees, including its vice-president.

¶8 The restitution hearing was scheduled and postponed 

several times. The hearing was finally held in September 20154

and, at the hearing, the district court posed direct questions 

about the 553 hours that the CEO claimed to have spent, asking 

Company counsel to “[h]elp me understand the 553 hours.”

Company counsel proffered the testimony of the CEO and vicepresident as follows:

 

3. The State also charged Jamieson with theft. On Jamieson’s 

motion, the district court severed the theft charge from the other 

charges, and Jamieson later pled guilty to the theft charge in a 

separate case. That case is not at issue in this appeal.

4. The district court held the sentencing hearing and restitution 

hearing on the same day.
State v. Jamieson

20150863-CA 5 2021 UT App 3

[T]he time that they had spent would probably fall 

into one of two pots. The time that was directly 

related to mitigating the damages and time that 

they’d spent dealing with the criminal process in 

general. Because we’ve been in court three or four 

times for this restitution hearing to be continued. 

So I asked them to allocate that . . . . What they 

responded to me was—their initial reaction was 

about 75 percent of [their time] fell into the former 

pot and about 25 percent in the latter.

The CEO also stated that he “wished he would have kept better 

records related to the time he spent on those [charges].”

¶9 The court invited Jamieson’s attorney to ask questions of 

the Company employees. Jamieson’s attorney asked one specific 

question—whether the vice-president was a salaried employee—

but otherwise declined to examine the Company employees 

whose time was at issue. Specifically, counsel did not take the 

opportunity to question the CEO about his claim that he had 

devoted 553 hours to this case.

¶10 A few weeks after the restitution hearing, the district 

court issued a written decision calculating “complete restitution” 

at $120,378.27, a figure that was comprised almost entirely of 

Company employees’ time. The court excluded attorney fees 

from the calculation, but did not make any attempt to separate 

and exclude Company employees’ time spent attending to the 

criminal proceedings. The court credited the CEO with spending 

553 hours on the matter, and calculated the value of the CEO’s 

time at $110,600, exactly as the State requested. Likewise, the 

court granted the State’s request, in its entirety, regarding the 

other employees’ time, valuing that time at $7,500. After taking 

Jamieson’s finances into account, the court ordered Jamieson to 

pay $90,000, acknowledging that “the complete restitution in this 

case is larger than the [c]ourt-ordered restitution.”
State v. Jamieson

20150863-CA 6 2021 UT App 3

¶11 In addition to the restitution order, the district court 

sentenced Jamieson to a term of 365 days in jail, with 335 days 

suspended. The court also imposed a probationary term of 

thirty-six months on Jamieson, with the payment of courtordered restitution as one of the conditions of probation.

ISSUES AND STANDARDS OF REVIEW

¶12 Neither of the arguments Jamieson raises on appeal were 

preserved in the district court. “When a party fails to raise and 

argue an issue in the [district] court, it has failed to preserve the 

issue, and an appellate court will not typically reach that issue 

absent a valid exception to preservation.” State v. Johnson, 2017 

UT 76, ¶ 15, 416 P.3d 443. Jamieson asks us to consider his 

arguments on appeal under the plain error and ineffective 

assistance of counsel exceptions to the preservation requirement. 

See id. ¶ 19 (noting that plain error and ineffective assistance of 

counsel are exceptions to the preservation rule).

¶13 Jamieson first argues that the district court plainly erred 

by including in its restitution calculation monetary damages for 

time the CEO and vice-president spent related to the criminal 

litigation. Even where an issue is preserved below, “a reviewing 

court will not disturb a district court’s [restitution] 

determination unless the court exceeds the authority prescribed 

by law or abuses its discretion.” State v. Laycock, 2009 UT 53, 

¶ 10, 214 P.3d 104. To the extent that the district court made legal 

determinations in connection with its restitution analysis, we 

review those legal determinations for correctness. See State v. 

Brooks, 908 P.2d 856, 858–59 (Utah 1995) (“The standard of 

review for a simple legal interpretation of a rule or statute is 

correctness.”). To prevail under the plain error standard, 

Jamieson must demonstrate that (1) an error exists; (2) the error 

should have been obvious to the district court; and (3) the error 

harmed him, “i.e., absent the error, there is a reasonable 

likelihood of a more favorable outcome for the appellant.” State 

v. Bond, 2015 UT 88, ¶ 15, 361 P.3d 104 (quotation simplified).
State v. Jamieson

20150863-CA 7 2021 UT App 3

¶14 Second, Jamieson argues that his trial attorney was 

constitutionally ineffective for failing to challenge the amount of 

time the CEO allegedly spent addressing the aftereffects of the 

email download. A claim for ineffective assistance of counsel 

raised for the first time on appeal presents a question of law,

which we review for correctness. State v. Kozlov, 2012 UT App 

114, ¶ 28, 276 P.3d 1207.

ANALYSIS

I

¶15 Jamieson first argues that the district court plainly erred 

by including in its restitution calculation at least some amount of

time spent by Company employees in addressing the criminal 

litigation. We agree.

¶16 The Crime Victims Restitution Act (the Act)5 provides

that “[w]hen a defendant enters into a plea disposition or is 

convicted of criminal activity that has resulted in pecuniary 

damages, . . . the court shall order that the defendant make 

restitution to victims.” Utah Code Ann. § 77-38a-302(1) 

(LexisNexis 2017). The Act defines restitution as “full, partial, or 

nominal payment for pecuniary damages to a victim.” Id. § 77-

38a-102(11). At the time Jamieson pled guilty, the Act defined 

“pecuniary damages” as follows:

all demonstrable economic injury, whether or not 

yet incurred, including those which a person could 

recover in a civil action arising out of the facts or 

events constituting the defendant’s criminal 

activities and includes . . . lost earnings and 

 

5. The Act, in its entirety, is codified at Utah Code Annotated 

sections 77-38a-101 to -601 (LexisNexis 2017).
State v. Jamieson

20150863-CA 8 2021 UT App 3

medical expenses, but excludes punitive or 

exemplary damages and pain and suffering.

Id. § 77-38a-102(6) (2015).6

¶17 There are two types of restitution: “complete restitution”

and “court-ordered restitution.” “Complete restitution” is “a 

calculation of the restitution necessary to compensate [a victim] 

for all losses caused.” State v. Brown, 2014 UT 48, ¶ 21, 342 P.3d 

239 (quotation simplified). “Court-ordered restitution” is “a 

subset of complete restitution that, among other things, takes 

into account the defendant’s circumstances.” Id. (quotation 

simplified). “Where facts do not provide a full evidentiary 

foundation” for a restitution calculation, “the court must base its 

determination on the best information available.” State v. 

Laycock, 2009 UT 53, ¶ 23, 214 P.3d 104; see also Utah Code Ann. 

§ 77-38a-203(1)(c) (LexisNexis 2017) (“The inability, failure, or 

refusal of the crime victim to provide all or part of the requested 

information shall result in the court determining restitution 

based on the best information available.”).

¶18 Jamieson wisely does not dispute that a restitution award 

can include amounts intended to reimburse crime victims for 

time spent attempting to mitigate the deleterious effects of the 

crime visited upon them. See State v. Birkeland, 2011 UT App 227, 

¶ 9, 258 P.3d 662 (“The value of labor necessitated by another’s 

culpable conduct has been recognized as a form of economic 

injury that is amenable to inclusion in a restitution award.”), 

overruled on other grounds by State v. Ogden, 2018 UT 8, 416 P.3d 

1132; see also Utah Code Ann. § 77-38a-102(6) (“lost earnings” are 

 

6. The Act’s definition of “pecuniary damages” was amended in

2016 and now expressly includes “travel expenses reasonably 

incurred as a result of participation in criminal proceedings.” 

Utah Code Ann. § 77-38a-102(6) (LexisNexis 2017). In this 

opinion, we apply the 2015 version of the Act’s definition of 

“pecuniary damages.” 
State v. Jamieson

20150863-CA 9 2021 UT App 3

included as part of “pecuniary damages”). Instead, Jamieson 

points out that, at least under the law in effect at the time of the 

district court’s restitution order, any time that Company 

employees spent attending to the criminal proceedings could not 

be included in a restitution order as a matter of law, see Brown, 

2014 UT 48, ¶ 23, and argues as a factual matter that the district 

court’s restitution order in this case improperly included at least 

some amount of time that falls into this category.

¶19 Jamieson’s legal argument is correct. In Brown, our 

supreme court noted the “longstanding, well-settled rule” that 

“forecloses recovery of costs or expenses incurred in the 

maintenance of, or related to, litigation.” Id. In that case, the 

victim asked the district court to include in its restitution order 

$1,228 for lost wages and travel costs incurred by the victim and 

her mother to attend hearings “[d]uring the criminal 

proceedings.” Id. ¶¶ 6–8. The district court denied the request, 

and the supreme court affirmed. The court cited the then-current 

statutory definition of “pecuniary damages” available as part of 

a restitution order, which, as noted, limited the damages to those

“which a person could recover in a civil action arising out of the 

facts or events constituting the defendant’s criminal activities.” 

Id. ¶ 22 (quoting Utah Code Ann. § 77-38a-102(6)). The court 

observed that the victim and her mother “would not be eligible 

to recover the lost wages or travel costs that were requested in 

this case” in the context of a “civil tort action against Brown 

arising out of his criminal activity.” Id. ¶ 23. Accordingly, the 

court held that “the lost wages and expenses requested for [the 

victim] and her mother are not ‘pecuniary damages’ 

compensable as an element of restitution.” Id. ¶ 24.

¶20 In response, the State acknowledges Brown, but asserts 

that its holding is limited to situations where a victim appears at 

a hearing voluntarily, and does not apply when a crime victim is 

compelled by subpoena to participate in the criminal 

proceeding. In support of this argument, the State points to the 

Brown court’s reliance on section 914 of the Restatement (Second) 

of Torts. See id. ¶ 23. That Restatement section sets forth the 
State v. Jamieson

20150863-CA 10 2021 UT App 3

general rule that expenses incurred in maintenance of litigation 

are not recoverable, but in its second subsection it provides an 

exception for attorney fees, experts, and loss of time incurred in 

bringing or defending a suit against a third party in order to 

protect one’s interests as a result of the tortfeasors’ actions. See 

Restatement (Second) of Torts § 914 (Am. Law Inst. 1979). On the 

facts of this case, the State’s reliance on this Restatement 

provision is misplaced.

¶21 The full text of the relevant subsection of that Restatement 

provision reads as follows:

One who through the tort of another has been 

required to act in the protection of his interests by 

bringing or defending an action against a third 

person is entitled to recover reasonable 

compensation for loss of time, attorney fees and 

other expenditures thereby suffered or incurred in 

the earlier action.

Id. § 914(2). The comment to this subsection makes clear that this 

provision applies only if a prior tort (e.g., Jamieson’s crime) 

caused a person to become a party to a subsequent suit by or 

against a third party: “The rule stated in [subsection 914(2)] 

applies when the preceding action was brought against the 

present plaintiff [e.g., Company] either by a third person or by 

the state, and also when the present plaintiff has been led by the 

defendant’s tort [e.g., Jamieson’s crime] to take legal proceedings 

against a third person.” See id. § 914 cmt. b. The illustrations to 

the comment show that subsection 914(2) is applicable, in this 

context, only when the victim of a prior crime becomes 

embroiled in a subsequent suit as a result of that crime. See id.

§ 914 illustrations. Here, no third party has brought any

subsequent action against Company seeking damages for harm

Jamieson caused, and Company has not instituted any such 

litigation itself. Thus, subsection 914(2) is inapplicable.
State v. Jamieson

20150863-CA 11 2021 UT App 3

¶22 The State provides no additional support for its 

contention that the rule set forth in Brown—that crime victims 

and their families are not permitted to include in restitution 

awards time spent attending to the underlying criminal 

proceedings, see 2014 UT 48, ¶ 23—should be varied in instances

where a crime victim is compelled by subpoena to participate in

the criminal case. We note that witnesses compelled to appear in 

court pursuant to subpoena are, at least nominally, compensated 

for their time, and although such fees often do not completely 

cover a witness’s expenses, they do provide some level of 

reimbursement for a subpoenaed witness’s time. See Utah Code 

Ann. § 78B-1-119(1)(a) (LexisNexis 2018) (mandating that 

witnesses “required . . . to attend a trial court of record” are

entitled to receive “$18.50 for the first day of attendance and $49 

per day for each subsequent day of attendance”). Certainly, in a 

civil case arising out of Jamieson’s crime, the question of 

Company’s ability to recover for its own employees’ time would 

not turn on whether those employees were compelled to appear 

by subpoena. In short, we are aware of no reason why a 

subpoenaed witness should be treated any differently than a 

non-subpoenaed witness for the purpose of calculating 

pecuniary damages for restitution.

¶23 We conclude, therefore, that the rule announced in Brown

applies with equal force to witnesses compelled to participate in 

criminal proceedings pursuant to subpoena as it does to nonsubpoenaed witnesses. Accordingly, any time that Company

employees spent attending to the proceedings in the State’s 

prosecution of Jamieson—regardless of whether they appeared 

pursuant to subpoena—is not compensable as restitution under 

the statute in effect at the time.

¶24 And as near as we can tell on the record before us, 

Jamieson’s factual assertions—that the court’s restitution order 

includes at least some amount for time Company employees 

spent attending hearings in the criminal case—are correct as 

well. The only evidence before the district court was Company

counsel’s proffer that “about 75 percent” of the requested hours 
State v. Jamieson

20150863-CA 12 2021 UT App 3

were spent “mitigating the damages” sustained by Jamieson’s 

email download, and that “about 25 percent” of the requested 

hours were spent “dealing with the criminal process in general.” 

It is not entirely clear from the record what is included in the 

latter “25 percent” category, but in the very next sentence 

following his description of that category, Company counsel

stated that this category was necessary “[b]ecause we’ve been in 

court three or four times for this restitution hearing to be 

continued.” The clear inference—and perhaps the only 

inference—that must be drawn from this statement is that the 

time Company employees spent attending hearings in the 

criminal case, including the oft-rescheduled restitution hearing, 

was included in the latter “25 percent” category.

¶25 It is, of course, not clear on this record whether all of the 

hours in the “25 percent” category were incurred attending court 

hearings or otherwise participating in the criminal case. But this 

question is beside the point. If even any of the time included in 

the “25 percent” category was time spent attending hearings in 

the criminal case, the calculation is erroneous. And it is clear that 

at least some time that falls in this category was indeed included. 

The district court did not undertake any analysis designed to 

ascertain how many of the hours that Company was requesting 

be included in the restitution order were hours spent attending 

to the criminal proceedings, and to then exclude those hours 

from the calculation. The district court’s failure to undertake this 

analysis was error.

¶26 Here, however, because Jamieson failed to raise this issue 

below, Jamieson must show more than error—he must show that 

the error was plain. In order to succeed in that endeavor, 

Jamieson must also show that the error should have been 

obvious to the district court, and that he was harmed by the 

error. See State v. Bond, 2015 UT 88, ¶ 15, 361 P.3d 104. We 

conclude that Jamieson has made the necessary showing.

¶27 “For an error to be obvious to the [district] court, the 

party arguing for the exception to preservation must show that 
State v. Jamieson

20150863-CA 13 2021 UT App 3

the law governing the error was clear or plainly settled at the 

time the alleged error was made.” State v. Johnson, 2017 UT 76, 

¶ 21, 416 P.3d 443 (quotation simplified). In this case, the 

relevant rule had been articulated by our supreme court in 

Brown over a year before the district court entered its restitution 

order. See 2014 UT 48, ¶ 23. Indeed, the district court was clearly 

aware of Brown: in its written decision calculating the restitution 

amount, the court not only cited Brown, it cited the very 

paragraph in Brown where the rule is found.

¶28 And Jamieson was clearly harmed by the inclusion, in 

calculation of complete restitution, of amounts reimbursing 

Company for time its employees spent attending to the criminal 

proceedings: he is now liable for at least some amount of 

complete restitution that should not have been awarded. If the 

district court had undertaken the analysis required by Brown, it 

would have reduced its complete restitution order by whatever 

amount it determined represented time spent by Company 

employees attending hearings or otherwise participating in the 

criminal case. Because the restitution amount imposed upon

Jamieson was higher than it should have been, Jamieson was 

clearly harmed.7

¶29 Accordingly, Jamieson has succeeded in demonstrating 

that the district court plainly erred by including at least some 

improper amounts in its restitution order.

 

7. Jamieson correctly points out that he would still sustain harm 

from an inaccurate computation of complete restitution, even if 

the court-ordered restitution amount would remain unaffected by 

the inaccuracy. Under Utah law, even though a defendant is 

obligated as part of the criminal case to pay only court-ordered 

restitution, a defendant is liable civilly for payment of the (often 

higher) complete restitution amount. See Utah Code Ann. § 77-

38a-401 (LexisNexis 2017).
State v. Jamieson

20150863-CA 14 2021 UT App 3

II

¶30 Jamieson next argues that his counsel was constitutionally 

ineffective for failing to challenge the State’s assertion that the 

CEO had spent 553 hours attempting to address the email 

download. We agree with this argument as well.

¶31 The Sixth Amendment to the United States Constitution 

provides that criminal defendants are entitled “to have the 

Assistance of Counsel for [their] defence.” U.S. Const. amend. 

VI. A criminal defendant’s right to effective assistance applies to 

privately retained counsel, Cuyler v. Sullivan, 446 U.S. 335, 344 

(1980), and applies at all critical stages of a criminal proceeding, 

including restitution hearings where restitution is ordered as 

part of a sentence that includes actual or suspended jail time, 

State v. Cabrera, 2007 UT App 194, ¶¶ 11–14, 163 P.3d 707. Here, 

the district court sentenced Jamieson to a term of 365 days in jail, 

with 335 days suspended. Because the district court sentenced 

Jamieson to actual as well as suspended jail time, he was entitled 

to effective assistance of counsel at the restitution hearing. See id.

¶32 To establish that his trial counsel was constitutionally 

ineffective, Jamieson must establish that (1) his counsel’s 

performance was deficient, and (2) this “deficient performance 

prejudiced the defense” by giving rise to “a reasonable 

probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Strickland v. 

Washington, 466 U.S. 668, 687, 694 (1984). We discuss, in turn, 

each part of this two-prong test. 

A

¶33 To determine whether counsel’s performance was 

deficient under the first part of the test, we apply “the deficiency 

standard announced in Strickland” and ask whether counsel’s 

actions “fell below an objective standard of reasonableness.” See

State v. Scott, 2020 UT 13, ¶ 31, 462 P.3d 350 (quotation 

simplified); see also Archuleta v. Galetka, 2011 UT 73, ¶ 38, 267 
State v. Jamieson

20150863-CA 15 2021 UT App 3

P.3d 232 (“To prevail, a defendant must show . . . that his 

counsel rendered a deficient performance in some demonstrable 

manner,” and that counsel’s “performance fell below an 

objective standard of reasonable professional judgment.” 

(quotation simplified)). One factor courts examine, in evaluating 

whether an attorney performed deficiently, is whether the 

attorney had a strategic reason for taking the action in question. 

See Scott, 2020 UT 13, ¶ 35 (stating that “the performance inquiry 

will often include an analysis of whether there could have been a 

sound strategic reason for counsel’s actions”). If the court 

determines that the attorney had a valid strategic reason for his 

actions, then “it follows that counsel did not perform 

deficiently.” Id.; see also State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d 

871 (“If it appears counsel’s actions could have been intended to 

further a reasonable strategy, a defendant has necessarily failed 

to show unreasonable performance.”). 

¶34 But our supreme court has clarified that, despite some 

language to the contrary in prior case law, the “converse is not 

true.” Ray, 2020 UT 12, ¶ 34. A court’s determination that an 

attorney did not have a valid strategic reason for his actions does 

not automatically lead to the conclusion that the attorney

performed deficiently. Id.; see also Scott, 2020 UT 13, ¶ 36 (“[E]ven 

where a court cannot conceive of a sound strategic reason for 

counsel’s challenged conduct, it does not automatically follow 

that counsel was deficient.”). In that situation, the court still 

must “ask whether, in light of all the circumstances, the attorney 

performed in an objectively reasonable manner.” Ray, 2020 UT 

12, ¶ 34 (quotation simplified); see also Scott, 2020 UT 13, ¶ 36 

(“[E]ven if a court concludes that counsel made an error, the 

ultimate question is always whether, considering all the 

circumstances, counsel’s acts or omissions were objectively 

unreasonable.”).

¶35 In certain circumstances, there can be valid tactical 

reasons for counsel to decide not to challenge the State’s 

requested restitution amount. For instance, counsel might 

believe that the requested amount is quite reasonable, and that 
State v. Jamieson

20150863-CA 16 2021 UT App 3

challenging the requested amount could expose the defendant to 

the risk that the court might order an amount even higher than 

the amount the State requests. See, e.g., State v. Daniels, 2014 UT 

App 230, ¶ 10, 336 P.3d 1074 (determining that counsel had a 

valid tactical reason for stipulating to a certain restitution 

amount, because “counsel might very reasonably have 

concluded that his client risked restitution liability in excess of” 

the stipulated amount). Alternatively, where restitution is 

computed before (or contemporaneously with) sentencing, 

counsel might believe that challenging the requested restitution 

amount may exhibit a lack of contrition by the defendant, which 

could cause a sentencing judge to impose a harsher sentence or 

higher court-ordered restitution amount. See, e.g., State v. 

Beckstrom, 2013 UT App 186, ¶ 15, 307 P.3d 677 (observing that 

stipulating to the amount of complete restitution put the 

defendant in a “contrite position” where she “might have had a 

better chance of convincing the judge to not impose the full 

amount of complete restitution as court-ordered restitution”); see 

also Daniels, 2014 UT App 230, ¶ 10 (stating that “counsel may 

have thought that it might play well for [the] [d]efendant to 

accept a restitution award in excess of the damages for which he 

admitted he was ‘absolutely responsible’”).

¶36 In this case, however, neither of these tactical reasons 

existed. First, there is no evidence in the record to suggest that 

the court would have had any basis to increase the number of 

hours above 553 had Jamieson’s counsel questioned the CEO. 

The State’s initial request for the CEO’s time was 553 hours, and 

the State presented no evidence to support any higher figure. 

This case therefore differs from Daniels, where there was a risk, 

based on a “revised damage estimate” as well as on the potential 

that the defendant would be asked to pay restitution for damage 

caused by his co-defendants, that the defendant might be 

ordered to pay a higher restitution amount if he withdrew his 

stipulation to a certain amount. See 2014 UT App 230, ¶¶ 4, 10. 

Here, Jamieson was the only perpetrator, and neither the State 

nor Company ever asked for any figure higher than 553 hours for 

the CEO’s time. There does not appear to have been any 
State v. Jamieson

20150863-CA 17 2021 UT App 3

appreciable risk that a higher figure might have been imposed if 

counsel took the opportunity to question the CEO.

¶37 Second, there was no risk in this case that Jamieson might 

have been subject to a stiffer overall sentence if he had 

questioned the CEO, for the simple reason that the district court 

sentenced Jamieson minutes before considering restitutionrelated issues. Thus, at the time Jamieson’s counsel had to decide 

whether or not to question the CEO, there was no risk that 

Jamieson might have been subject to additional jail time or more 

onerous probation conditions.

¶38 The only issue that remained open at the time the CEO’s 

testimony was proffered was the restitution amount itself. As 

noted above, there was no appreciable risk of questioning 

resulting in a finding of more than 553 hours, since that was the 

entire amount the State asked for. The only risk that remained 

may have been a concern that the district court would view the 

questioning as a lack of contrition and impose a higher courtordered restitution amount. But on the facts of this case, it is 

clear that defense counsel did not choose to employ a strategy of 

simply stipulating to the State’s requested amount of complete 

restitution in hopes of appearing contrite. Instead, Jamieson and 

his counsel made the decision to contest the State’s requested 

restitution amounts by arguing that Company “didn’t lose any 

money” and “had no pecuniary loss.” Thus, we need not 

speculate about whether defense counsel, in choosing not to 

question the CEO about the 553 hours, was attempting to further 

a strategy of attempting to appear contrite, when that is a 

strategy that counsel clearly chose not to adopt here.

¶39 In the end, we are unable to conceive of any valid tactical 

or strategic reason that Jamieson’s attorney might have had for 

not questioning the CEO about his claim that he spent 553 hours 

attempting to address Jamieson’s illegal email download. 

However, that does not end our analysis. Under Strickland, as 

clarified in Ray and Scott, we must proceed to determine 

whether, even in the absence of any valid tactical purpose for 
State v. Jamieson

20150863-CA 18 2021 UT App 3

counsel’s actions, counsel nevertheless acted in an objectively 

reasonable manner in light of all the circumstances. See Scott, 

2020 UT 13, ¶ 36; Ray, 2020 UT 12, ¶ 34. And we conclude that 

counsel did not act in an objectively reasonable manner. Under 

the circumstances presented here, an attorney providing an 

objectively reasonable level of assistance would have conducted 

at least some cross-examination of the CEO regarding his claim 

that he spent 553 hours on matters related to Jamieson’s actions. 

¶40 In the context of this particular restitution hearing, the 

CEO’s claim to have spent 553 hours attending to the aftereffects 

of Jamieson’s crime was extremely important: it comprised the 

clear majority of the State’s claimed restitution amount, and 

itself constituted a six-figure claim. This claim was unsupported 

by any documentation, and instead was based entirely on the 

CEO’s unclear recollection and rough “estimate” that he had 

spent an hour a day for a two-year period. The CEO’s time claim 

contrasted starkly with the time claim submitted by Company’s 

vice-president, the employee who was initially tasked with 

reviewing the emails Jamieson had taken and assessing the 

potential damage; that employee spent only sixty hours on the 

matter. And the district court expressed particular interest in 

how the 553-hour figure was derived, asking Company counsel 

to “[h]elp me understand the 553 hours.”

¶41 In sum, we conclude that Jamieson’s trial counsel had no 

valid tactical reason not to follow up on the 553-hour figure, and 

that a reasonable attorney would have done so. Accordingly, 

Jamieson’s counsel was objectively deficient by not questioning 

the CEO about the 553 hours.

B

¶42 In evaluating prejudice under the second part of the test, 

we assess whether there exists a reasonable probability that the

case would have had a different outcome had trial counsel not 

performed deficiently. See State v. Garcia, 2017 UT 53, ¶¶ 34–38, 

424 P.3d 171; see also State v. Beckstrom, 2013 UT App 186, ¶ 13, 
State v. Jamieson

20150863-CA 19 2021 UT App 3

307 P.3d 677 (stating that, in order to establish prejudice, a 

litigant must show “that ‘but for counsel’s unprofessional errors, 

the result of the proceeding would have been different’”

(quoting Strickland, 466 U.S. at 694)). “A reasonable probability is 

a probability sufficient to undermine confidence in the outcome” 

of the proceeding. Strickland, 466 U.S. at 694. In assessing 

whether a defendant has met this standard, we “consider the 

totality of the evidence before the judge or jury and then ask if 

the defendant has met the burden of showing that the decision 

reached would reasonably likely have been different absent the 

errors.” Garcia, 2017 UT 53, ¶ 28 (quotation simplified).

¶43 And we are confident that the result of the restitution 

hearing would likely have been different if counsel had chosen 

to press the State and Company about the 553 hours. Despite the 

district court’s stated interest in a breakdown of how the 553-

hour figure was derived, very little additional information was 

provided in the State’s restitution request or at the restitution 

hearing. During the hearing, the court twice asked the State and 

Company counsel to “help me understand” where the figure 

came from, but the only “help” the court received in answer to 

this question was a statement from the CEO that he “wished [he] 

would have kept better records,” and a reference to a written 

exhibit stating that the 553 hours had been spent “reviewing 

printed emails, meeting with local [and federal] counsel, police 

investigators, and staff.”

¶44 The State asserts that the record is “silent” as to what the 

CEO would have said, on cross-examination, and contends that 

Jamieson therefore cannot show prejudice. See Scott, 2020 UT 13, 

¶¶ 38, 45–46 (holding that, where the record contained “no 

information about what [the] evidence would have been,” the 

defendant could not demonstrate prejudice). But here, the record 

is not silent. At the preliminary hearing—which had been 

conducted by a magistrate, not the judge who presided over the 

restitution hearing—the CEO explained that the 553-hour figure 

was based on his assertion that “on average [he] had spent an 

hour a day, even now, on this matter. That’s going over a two-
State v. Jamieson

20150863-CA 20 2021 UT App 3

year period.” But these figures were rough estimates—not 

discrete facts corroborated through other credible evidence, such 

as logged time sheets. While Company was under no obligation 

to log this information with meticulous detail, the evidence 

supporting the 553-hour figure, as explained at the preliminary 

hearing, was sketchy at best, and would likely have been fruitful 

ground for cross-examination. Had the CEO been crossexamined, additional information from the preliminary hearing 

could have been provided to the restitution judge, which 

information could have been used to cast additional doubt on 

the merits of the restitution claim. 

¶45 Under the circumstances, our confidence in the outcome 

of the restitution hearing is undermined, and we conclude that 

there is a reasonable probability that the court would have 

reduced the number of hours if counsel had taken the 

opportunity to press the State and the CEO on this point.

¶46 In sum, Jamieson’s trial counsel’s performance was 

objectively deficient, and but for that deficient performance, 

Jamieson likely would have received a better outcome. 

Therefore, his trial counsel provided constitutionally ineffective

assistance. See State v. Ison, 2004 UT App 252, ¶ 14, 96 P.3d 374 

(explaining that a defendant has received constitutionally 

ineffective assistance of counsel when an attorney’s acts “fall 

below the standard of reasonable professional assistance” and 

that “counsel’s error prejudiced the defendant, i.e., that but for 

the error, there is a reasonable probability that the [outcome]

would have been more favorable to the defendant” (quotation 

simplified)); see also People v. Pangan, 152 Cal. Rptr. 3d 632, 639

(Cal. Ct. App. 2013) (concluding that trial counsel was ineffective 

for failing to challenge a restitution award based on the time 

value of money); State v. Hassan, 336 P.3d 99, 105 (Wash. Ct. 

App. 2014) (concluding that trial counsel was ineffective for

failing to object to the prosecution seeking a restitution award 

when “there was no evidence to support” the award and “there 

was no conceivable tactical reason not to object”).
State v. Jamieson

20150863-CA 21 2021 UT App 3

CONCLUSION

¶47 We agree with Jamieson that the district court plainly 

erred in including in its restitution order at least some amount of

time spent by Company employees in addressing the criminal 

litigation. We also agree with Jamieson that his trial counsel was 

ineffective for failing to challenge the 553 hours the CEO claimed 

to have spent mitigating damages.

¶48 Accordingly, we vacate the restitution order and remand 

the case to the district court to hold a new restitution hearing 

and to recalculate complete restitution (and, if necessary, courtordered restitution) in a manner consistent with this opinion.