1. Because there have been no substantive changes to the relevant

sections of the Utah Code, we cite the current version of the code

for the reader’s convenience. 2013 UT App 93

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

S TATE OF U TAH

,

Plaintiff and Appellee,

v.

D UANE K YLE W YMAN

,

Defendant and Appellant.

Memorandum Decision

No. 20120293

‐ CA

Filed April 18, 2013

Third District, Tooele Department

The Honorable Robert Adkins

No. 111300137

John Pace, Attorney for Appellant

John E. Swallow and Mark C. Field, Attorneys for Appellee

J UDGE C AROLYN B. M C H UGH authored this Memorandum

Decision, in which J UDGES G REGORY K. O RME

and M ICHELE M. C HRISTIANSEN concurred.

McHUGH, Judge:

¶1 Duane Kyle Wyman appeals from his convictions of theft,

a third degree felony, see Utah Code Ann. § 76

‐ 6

‐ 404 (LexisNexis

2012) (elements); id

. § 76

‐ 6

‐ 412(b) (penalties), and criminal mischief,

a third degree felony, see id. § 76

‐ 6

‐ 106(2)(c). 1 We affirm.State v. Wyman

20120293

‐ CA 2013 UT App 93 2 ¶2 In 2011, Wyman took several hundred pounds of brass

sprinkler heads from the irrigation equipment on a number of

alfalfa farms and sold them to a recycling company for scrap value.

On March 17, 2011, the State filed an information against Wyman

(the First Case), charging him with theft and criminal mischief.

Wyman and the State later reached a plea agreement in which

Wyman agreed to plead guilty to theft as a third degree felony and

to pay restitution. In exchange, the State agreed to dismiss the

criminal mischief charge and to recommend that Wyman serve no

jail time. During the change of plea hearing on May 10, 2011, the

district court explained to Wyman that a third degree felony is

punishable by a fine and an indeterminate prison term of zero to

five years. The district court then ordered Adult Probation and

Parole (AP&P) to prepare a presentence report. In the resulting

report, AP&P recommended, among other things, that Wyman pay

restitution and be placed on probation for a period of thirty

‐ six

months.

¶3 While awaiting sentencing in the First Case, Wyman used an

ax to disconnect a neighbor’s sprinkler pipe and then removed the

attached sprinkler heads. As a result, on July 11, 2011, the State

filed two additional charges of criminal mischief and theft against

Wyman (the Second Case). Later, the State agreed to dismiss the

theft charge in the Second Case in exchange for Wyman’s guilty

plea to criminal mischief. The district court entered the plea and

advised Wyman that a third degree felony is punishable by a fine

and incarceration for an indeterminate term of zero to five years.

In addition, the district court asked Wyman whether he understood

that “because there are two cases, that the [c]ourt can impose

consecutive sentences and if the [c]ourt did that, the maximum

period of time that you could be required to serve at the Utah State

Prison on these two cases would be ten years[?]” Wyman

responded affirmatively. The district court then scheduled a

sentencing hearing and ordered another presentence report. In that

second report, AP&P recommended that Wyman be committed to

the Utah State Prison.State v. Wyman

2. There is some indication in the record that Prosecutor was

involved in these cases before sentencing because defense counsel

mentioned him by first name at the change of plea hearing in the

First Case.

20120293

‐ CA 2013 UT App 93 3 ¶4 At the sentencing hearing for both cases, a Tooele County

attorney (Prosecutor), who had not appeared at prior hearings,

represented the State. 2 Prosecutor requested that Wyman be sent

directly to prison, and he urged the court to consider consecutive

sentences. The district court sentenced Wyman to prison for an

indeterminate term of zero to five years for theft in the First Case,

and imposed an identical sentence for criminal mischief in the

Second Case. The court also ordered that the two sentences would

run consecutively. Wyman filed a timely appeal.

¶5 Wyman argues that he received constitutionally deficient

assistance of counsel at his sentencing hearing when his defense

counsel failed to object to Prosecutor’s participation at the

sentencing hearing because Prosecutor and his father are alfalfa

farmers and members of the community harmed by Wyman’s acts.

“An ineffective assistance of counsel claim raised for the first time

on appeal presents a question of law,” which we review for

correctness. State v. Ott

, 2010 UT 1, ¶ 16, 247 P.3d 344 (citation and

internal quotation marks omitted).

¶6 The Sixth Amendment to the United States Constitution

guarantees a criminal defendant’s right to effective assistance of

counsel. See Strickland v. Washington

, 466 U.S. 668, 684–86 (1984). In

order to show that he was deprived of his right to effective

assistance of counsel, Wyman must establish “(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.’” See State v. King

, 2012 UT App

203, ¶ 13, 283 P.3d 980 (quoting State v. Hales

, 2007 UT 14, ¶ 68, 152

P.3d 321). “Failure to satisfy either component of this test is fatal toState v. Wyman

20120293

‐ CA 2013 UT App 93 4 an ineffective assistance of counsel claim.” Id. (citation and internal

quotation marks omitted). Defense counsel’s performance is

“presumed to be part of a sound trial strategy

. . . within the wide

range of reasonable professional assistance.” Id

. ¶ 14 (omission in

original) (citation and internal quotation marks omitted). This

presumption of effective assistance of counsel “may be overcome

only if there is a lack of any conceivable tactical basis for counsel’s

actions.” Id

. (citation and internal quotation marks omitted).

¶7 Wyman contends that his defense counsel was ineffective

because he should have objected to Prosecutor’s participation at the

sentencing hearing on the ground that Prosecutor had a conflict of

interest. Wyman claims that because Prosecutor and his father are

alfalfa farmers and members of the community harmed by

Wyman’s acts, Prosecutor should not have represented the State in

this matter. Wyman further claims that Prosecutor advocated in

favor of consecutive sentences due to his personal interests.

¶8 We first consider whether an actual conflict of interest

existed that might give rise to a valid objection to Prosecutor’s

participation in the sentencing hearing. Wyman’s conflict of

interest claim focuses on two statements Prosecutor made during

the sentencing hearing. The portion of the relevant colloquy is as

follows:

[PROSECUTOR]: The restitution that’s been

requested compensates them for the parts to put the

sprinklers back together. What it doesn’t begin to

compensate them for is the inconvenience of having

the stuff broken and not working when it should be

working. The sun only shines so many days, we only

have so many growing days in a season here in the State

of Utah

. . . .

. . . .State v. Wyman

3. Wyman also asks us to take judicial notice pursuant to rule 201

of the Utah Rules of Evidence of the fact that Prosecutor’s father is

president of a statewide organization of farmers and ranchers and

that the father is a cattle and alfalfa producer. We decline to do so.

See Finlayson v. Finlayson

, 874 P.2d 843, 847 (Utah Ct. App. 1994)

(“Judicial notice is taken on appeal only where there is a

compelling countervailing principle to be served.

. . . Further,

mandatory judicial notice is limited to the trial court.” (citations

and internal quotation marks omitted)). But see Utah R. Evid. 201

advisory committee’s note (“Subdivision (c) is discretionary, but

subdivision (d) requires the court to take judicial notice if

requested by a party and if supplied with the necessary

information to make a determination of whether to take judicial

notice.”). Even if we did take judicial notice of this fact, it would

not alter our analysis because it would not establish that Prosecutor

could not represent the State in this matter. See State v. Balfour

, 2008

(continued...)

20120293

‐ CA 2013 UT App 93 5 THE COURT: [Prosecutor], the restitution that’s set

out in the pre

‐ sentence report on [p]age 2, does that

include all of the restitution that is owed on the

second case

. . . ?

[PROSECUTOR]: Yes. And the new case, your

Honor, actually, the—owner went and had—had a

friend do the repairs and I think he took—he took

from existing parts that he had and he declined to

submit any information as to what he thinks he

should be compensated. He said it—it’s hard to

figure out the value, I— I fixed it with stuff that I had

.

So he hasn’t submitted anything. So what you’ve got,

your Honor, I believe to be complete.

(Emphasis added.) In Wyman’s view, Prosecutor’s use of the

pronoun “we” in explaining that “we only have so many growing

days in a season here” reveals that Prosecutor is an alfalfa farmer, 3State v. Wyman

3. (...continued)

UT App 410, ¶ 33, 198 P.3d 471 (“In Utah, a conflict of interest

exists when counsel [may]

. . . make choices advancing other

interests to the detriment of his client.” (alteration and omission in

original) (citation and internal quotation marks omitted)).

Prosecutor’s sentencing recommendations were not contrary to the

State’s interests.

20120293

‐ CA 2013 UT App 93 6 and that Prosecutor considered himself among the injured farmers.

Wyman also interprets Prosecutor’s statement that “I fixed it with

stuff that I had” as an admission that Prosecutor himself helped the

farmer whose sprinkler heads were stolen in the second incident,

thereby making Prosecutor a victim who suffered a direct loss

caused by Wyman’s actions. The State argues that Wyman’s

assertion of a conflict is not supported by the record.

¶9 We agree with the State that there is no direct evidence that

supports Wyman’s speculation that Prosecutor is an alfalfa farmer.

Moreover, such an inference cannot be supported by Wyman’s

strained interpretation of these passages of the transcript. With

respect to Prosecutor’s first statement, the more appropriate

interpretation is that Prosecutor was speaking in generalities and

used the pronoun “we” to refer to all citizens of Utah, not

specifically to himself as an alfalfa farmer. In the second quote, it

is clear from reading Prosecutor’s statements as a whole that

Prosecutor was paraphrasing what the injured farmer had told him

about the cost of repairs. Prosecutor begins his sentence with “he

said,” referring to the farmer, and then uses the pronoun “I” while

quoting the farmer. When read carefully, the statement does not

suggest that Prosecutor repaired the farmer’s irrigation system.

Instead, Prosecutor is simply repeating the farmer’s report that the

farmer fixed the damage to his own irrigation system.

¶10 Accordingly, there is no record evidence that Prosecutor had

a conflict of interest. As a result, defense counsel would have had

no reason to object to Prosecutor’s involvement in the sentencingState v. Wyman

4. Wyman does not allege that the district court imposed an illegal

sentence on appeal.

5. Wyman asserts that Prosecutor sought “a sentence harsher than

that recommended by AP&P.” However, we agree with the State

that AP&P’s recommendations did not address whether the

sentences for the First Case and the Second Case should run

concurrently or consecutively. In addition, “[w]hile sentencing

courts take into account all the relevant circumstances, a trial court

is not bound by the sentencing recommendations of [AP&P] or by

the requests of the parties

. . . . Moreover, the recommendations of

the prosecutor or any other party are not binding upon the court.”

State v. Moreau

, 2011 UT App 109, ¶ 11, 255 P.3d 689 (second

alteration in original) (citation and internal quotation marks

omitted).

20120293

‐ CA 2013 UT App 93 7 hearing. “[T]he failure of counsel to make motions or objections

which would be futile if raised does not constitute ineffective

assistance.” State v. Whittle

, 1999 UT 96, ¶ 34, 989 P.2d 52 (alteration

in original) (citation and internal quotation marks omitted).

Likewise, defense counsel’s failure to make such an objection did

not fall below an acceptable level of performance. See State v. Kelley

,

2000 UT 41, ¶ 26, 1 P.3d 546; Whittle

, 1999 UT 96, ¶ 34.

¶11 Wyman also asserts that he was prejudiced by his attorney’s

failure to object to Prosecutor’s conflict of interest because the

district court imposed consecutive prison sentences only upon

Prosecutor’s urging. 4 However, we have concluded that defense

counsel was not ineffective on this ground. Thus, we need not

address whether the outcome, i.e., the district court’s choice of

sentence, might have been different had defense counsel objected

to Prosecutor’s participation in the matter. 5 See State v. King

, 2012

UT App 203, ¶ 13, 283 P.3d 980 (noting that in order “[t]o prove a

claim of ineffective assistance, the defendant must show” both

defective performance and prejudice).State v. Wyman

20120293

‐ CA 2013 UT App 93 8 ¶12 Because no evidence indicates that an actual conflict of

interest existed, defense counsel did not perform deficiently when

he did not object to the participation of Prosecutor. Accordingly,

we reject Wyman’s claim of ineffective assistance of counsel.

¶13 Affirmed.