2015 UT App 144

_________________________________________________________

THE UTAH COURT OF APPEALS

JASON TYLER HAMBLIN,

Petitioner and Appellant,

v.

STATE OF UTAH,

Respondent and Appellee.

Memorandum Decision

No. 20130415-CA

Filed June 4, 2015

Third District Court, Salt Lake Department

The Honorable Randall N. Skanchy

No. 120901750

Andrew Parnes and Brent A. Gold, Attorneys 

for Appellant

Sean D. Reyes and Andrew F. Peterson, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum

Decision, in which JUDGES GREGORY K. ORME and JOHN A.

PEARCE concurred.

CHRISTIANSEN, Judge:

¶1 Jason Tyler Hamblin appeals from the district court’s ruling

on his petition for postconviction relief. Hamblin argues that his

trial counsel and appellate counsel rendered constitutionally

ineffective assistance. We conclude that Hamblin’s claims of trial

counsel’s ineffectiveness are procedurally barred and that he has

failed to demonstrate that appellate counsel was constitutionally

ineffective. We therefore affirm.
Hamblin v. State

¶2 Hamblin was accused of sexually abusing a minor who

temporarily lived with him at his stepmother’s house.1 The victim

accused Hamblin of a number of sexual offenses against her,

including several instances of object rape. The State charged

Hamblin with multiple sexual-abuse offenses against the victim,

including one count of object rape. The probable cause statement

filed in support of the information included an averment that

Hamblin had abused the victim by placing a lightbulb in her

rectum. Before the preliminary hearing, however, the State

amended the information to remove the reference to the lightbulb

and to change the object-rape charges to two counts based on an

averment that Hamblin had abused the victim with two other

objects. At the preliminary hearing, the victim testified to the two

instances of object rape alleged in the amended information. When

asked if Hamblin had abused her with “other objects other than

those two,” the victim denied that Hamblin had abused her with

any other objects. The victim also testified that she had been

sexually abused by her brother (Brother).

¶3 At trial, defense counsel planned to attack the victim’s

credibility by highlighting the inconsistency between her initial

accusations and her preliminary-hearing testimony regarding

whether Hamblin abused her with a lightbulb. Defense counsel

sought to persuade the jury that the victim “had attributed acts of

sexual abuse to the Defendant that had been committed by

[Brother]” and thereby undermine the accuracy and reliability of

her testimony. On cross-examination, defense counsel confronted

the victim with the inconsistency between her initial accusation

against Hamblin and her preliminary-hearing testimony. Defense

counsel highlighted the victim’s detailed description of the abuse

she had related involving Hamblin and the lightbulb and asked the

1. This decision recounts only those details of the offenses and

proceedings necessary to understand the issues on appeal. Further

background information is contained in our decision affirming

Hamblin’s convictions on direct appeal. See generally State v.

Hamblin, 2010 UT App 239, 239 P.3d 300.

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Hamblin v. State

victim to explain why she had initially accused Hamblin of abuse

that she now attributed to Brother. The victim conceded that she

was “confused for a long time” regarding who had abused her and

that “it got all kind of jumbled up” but that she now knew Brother,

not Hamblin, had abused her with the lightbulb.

¶4 Defense counsel argued in closing that all of the instances of

abuse the victim testified to had been committed by Brother and

not by Hamblin. The jury convicted Hamblin of one count of rape

of a child, one count of sodomy on a child, and two counts of

sexual abuse of a child but acquitted Hamblin of the remaining four

charges, including both charges of object rape.

¶5 Hamblinmovedfor anew trial, arguing that the prosecution

had failed to disclose that the victim had recanted her accusation

that Hamblin abused her with a lightbulb and that the

nondisclosure was a Brady violation. State v. Hamblin, 2010 UT App 2

239, ¶ 10, 239 P.3d 300. The district court denied Hamblin’s motion,

and he appealed. Id. This court affirmed, concluding that if any

Brady violation had occurred, Hamblin was notprejudiced, because

defense counsel had effectively used the evidence to his advantage

once it came to light at trial. Id. ¶ 17. This court observed that

defense counsel had effectively impeached the victim by 

highlighting the discrepancy between her initial accusations and

trial testimony:

The victim’s credibility was very much at issue

throughout the entire trial, and the evidence of the

victim’s recantation and Brother’s admission to

abusing her with a light bulb came out in a way that

was quite helpful to Hamblin. Disclosure of the

recantation midtrial bolstered the defense’s claim

2. Brady v. Maryland establishes that the prosecution must disclose

to the defendant before trial any “evidence favorable to an

accused” if that evidence is “material either to guilt or to

punishment.” 373 U.S. 83, 87 (1963).

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Hamblin v. State

that the victim could not really remember who

assaulted her and that, over time, she would come to

realize that, as typified by the light bulb episode, all

the assaults were perpetrated by Brother. Further,

Hamblin’s trial counsel was able to utilize this

evidence to effectively attack the victim’s credibility

by questioning her regarding the discrepancies in her

original andsubsequent allegations.Indeed, Hamblin

was ultimately acquitted on four of the counts

against him, including all object-rape counts.

Id.

¶6 Thereafter, Hamblin filed the present petition in the district

court for relief under the Post-Conviction Remedies Act (the

PCRA). He argued, among otherthings, that trial counsel rendered

ineffective assistance by failing to “investigate orrequest discovery

about the significant change in [the victim’s] testimony” and for

recommending that Hamblin proceed to trial with a strategy of

impeaching the victim with her inconsistent statements rather than

accepting a plea agreement or seeking a mistrial. Hamblin also 3

argued that counsel for his direct appeal rendered ineffective

assistance by failing to “raise the issues of violations of [Hamblin’s]

Sixth Amendment rights” in a motion under rule 23B of the Utah

Rules of Appellate Procedure and thereby obtain an evidentiary

hearing that Hamblin asserts would have led to a reversal of his

convictions. The district court denied Hamblin’s first claim as

procedurally barred and granted summary judgment to the State

on his remaining claims. Hamblin appeals.

¶7 “We review an appeal from an order dismissing or denying

a petition for post-conviction relief for correctness without

3. Hamblin raised other claims of trial counsel’s ineffectiveness in

his PCRA petition, but he has not challenged on appeal the district

court’s rulings on those claims. We therefore do not discuss them

further.

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Hamblin v. State

deference to the lower court’s conclusions of law.” Taylor v. State,

2012 UT 5, ¶ 8, 270 P.3d 471 (citation and internal quotation marks

omitted).

I. Ineffective Assistance of Trial Counsel

¶8 Hamblin argues that two of the district court’s rulings

regarding trial counsel’s performance are erroneous. First, he

argues that the district court erred in concluding that his failure-toinvestigate claim was procedurally barred. Second, he argues that

the district court erred in determining that trial counsel did not

perform deficiently by advising Hamblin to reject a plea offer and

proceed to trial with a strategy of impeaching the victim. Because

we conclude that both of Hamblin’s claims that trial counsel

rendered ineffective assistance are procedurally barred, we affirm

the district court’s denial of relief.

¶9 Generally, a claim is barred under the PCRA if it “was raised

or addressed at trial or on appeal” or “could have been but was not

raised at trial or on appeal.” Utah Code Ann. § 78B-9-106(1)(b), (c)

(LexisNexis Supp. 2011). Where a claim that trial counsel was

ineffective “could have been but was not raised” on appeal, that

claim is barred under the PCRA, and we may consider only

whether appellate counsel was constitutionally ineffective for

failing to raise the claim on appeal. Ross v. State, 2012 UT 93,

¶¶ 24–25, 293 P.3d 345 (citation and internal quotation marks

omitted).

¶10 We conclude that both of Hamblin’s claims of ineffective

assistance of trial counsel could have been but were not raised on

appeal and are therefore barred. Hamblin was represented by new

counsel on direct appeal who could have raised these claims that

trial counsel was constitutionally ineffective. Hamblin has

identified no evidentiary or legal bases for these claims that were

unavailable to appellate counsel at the time of his appeal or

otherwise demonstrated that these claims could not have been

brought on appeal. We are therefore precluded from directly

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Hamblin v. State

assessing the merits of Hamblin’s claims that trial counsel was

ineffective. Id.

II. Ineffective Assistance of Appellate Counsel

¶11 Nevertheless, Hamblin may obtain relief under the PCRA if

he demonstrates that appellate counsel’s failure to argue trial

counsel’s ineffectiveness was itself ineffective assistance of counsel.

Id. ¶ 24; see also Utah Code Ann. § 78B-9-106(4). Because Hamblin’s

“claim that his appellate counsel was ineffective is intertwined with

and dependent upon his claim that his trial counsel was

ineffective,” we must “examine the merits of the claim of ineffective

assistance of trial counsel” to determine if appellate counsel

rendered ineffective assistance. Ross, 2012 UT 93, ¶ 25 (citation and

internal quotationmarksomitted). However, “we may examine the

merits of that claim ‘only to the extent required to address’ the

ineffective assistance of appellate counsel claim.” Id. (quoting Utah

Code Ann. § 78B-9-106(4) (LexisNexis 2012)).

¶12 “The standard for evaluating whether appellate counsel is

ineffective is the same Strickland standard used to determine

whether trial counsel is ineffective.” Kell v. State, 2008 UT 62, ¶ 42,

194 P.3d 913. To succeed on a claim of ineffective assistance of

counsel, a defendant must show both “that counsel’s performance

was deficient” and “that the deficient performance prejudiced the

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “To

show that appellate counsel was ineffective in failing to raise a

claim, the petitioner must show that the issue [was] obvious from

the trial record and . . . probably would have resulted in reversal on

appeal.” Kell, 2008 UT 62, ¶ 42 (alteration and omission in original)

(citation and internal quotation marks omitted). “Finally, when

making a claim under the PCRA, the petitioner bears the burden of

establishing ineffective assistance of appellate counsel.” Ross, 2012

UT 93, ¶ 24.

¶13 Hamblin first argues that appellate counsel should have

raised a claim that trial counsel was ineffective for failing to

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discover that “long before trial, [the victim] corrected the initial

incorrect statement that [Hamblin] abused her with a light bulb”

and for failing to investigate the victim’s change in testimony.

Hamblin argues that had appellate counsel “properly investigated

and obtained trial counsel’s file,” appellate counsel would have

discovered this claim.

¶14 However, even if we assume appellate counsel performed

deficiently in failing to investigate and raise this claim, Hamblin

has not shown that he was prejudiced by appellate counsel’s

performance, because he has not shown that raising the claim

“probably would have resulted in reversal on appeal.” Kell, 2008

UT 62, ¶ 42 (citation and internal quotation marks omitted).

Indeed, Hamblin does not even assert that a reversal on appeal was

likely if appellate counsel had raised this claim, let alone explained

why. Accordingly, Hamblin has failed to carry his burden of

establishing that appellate counsel was ineffective for failing to

raise this claim. See Ross v. State, 2012 UT 93, ¶ 24, 293 P.3d 345.

¶15 Next, Hamblin argues that appellate counsel rendered 

ineffective assistance by failing to claim that trial counsel was

ineffective for recommending Hamblin proceed to trial rather than

accept a plea bargain. To determine whether appellate counsel’s

decision not to raise this claim prejudiced Hamblin, we must

evaluate trial counsel’s actions to determine if the claim “probably

would have resulted in reversal on appeal,” Kell, 2008 UT 62, ¶ 42

(citation and internal quotation marks omitted). Because we

conclude that Hamblin has failed to demonstrate that trial counsel

was constitutionally ineffective, he was not prejudiced by appellate

counsel’s decision not to raise this claim on appeal.

¶16 To demonstrate that trial counsel performed deficiently,

Hamblin “must overcome the presumption that, under the

circumstances, the challenged action might be considered sound

trial strategy.” Strickland, 466 U.S. at 689 (citation and internal

quotation marks omitted). We therefore must determine if “a

rational basis for counsel’s performance can be articulated,” and if

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so, we will “assume counsel acted competently.” State v. Lucero,

2014 UT 15, ¶ 43, 328 P.3d 841 (citation and internal quotation

marks omitted). To “eliminate the distorting effects of hindsight,”

we “evaluate the conduct from counsel’s perspective at the time.”

Strickland, 466 U.S. at 689.

¶17 During trial, as a result of certain errors that are not before

us in this matter, the trial court offered to declare a mistrial and the

State offered Hamblin a plea deal. According to Hamblin, trial

counsel advised him to reject the offers because counsel “liked the

jury” and believed that, once he cross-examined the victim and

highlighted the inconsistencies in her testimony, the jury would

acquit Hamblin on all charges. Hamblin argues that trial counsel’s

strategy was fatally flawed because thevictim was prepared to deal

with the inconsistencies in her testimony and that trial counsel

should have recognized that “his defense strategy had been

discredited by the [S]tate prior to trial.” Hamblin asserts that trial

counsel’s decision to go forward with this strategy was not “based

on proper investigation to support a strategic decision” because

trial counsel either “overlooked” or “negligently failed to take into

account this information.”

¶18 However, at the time of trial, defense counsel knew that the

State had struck the lightbulb-abuse charge from the information,

that the victim had not testified to the lightbulb abuse at the

preliminary hearing, and that the victim had, in fact, testified at the

preliminary hearing that she had not been abused by Hamblin with

any objects other than those included in the information.

Accordingly, trial counsel would have known that the victim was

unlikely to testify that Hamblin had abused her with a lightbulb

and no further investigation was necessary to determine whether

to proceed with the impeachment strategy.

¶19 Moreover, we are not convinced that trial counsel’s strategy

of impeaching the State’s key witness with her inconsistent

testimony regarding who had abused her wasobjectively deficient.

The State presented no physical evidence linking Hamblin to the

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Hamblin v. State

crimes, and the only direct evidence of his involvement came from

the victim’s testimony. Accordingly, it was not objectively

unreasonable for trial counsel to recommend seeking a full

acquittal by undermining the victim’s credibility. Indeed, Hamblin

was acquitted of all of the object-rape charges—those charges most

directly impacted by trial counsel’s impeachment of the victim.

That trial counsel’s strategy was not as effective as he had hoped

does not render it objectively unreasonable. Rather, given what

trial counsel knew at the time, and because that knowledge of the

victim’s likely testimony was adequate to assess the viability of an

impeachment strategy, we conclude that trial counsel did not

perform deficiently by recommending Hamblin proceed to trial on

a strategy of impeachment rather than taking the plea. Because a

claim that trial counsel was ineffective in this regard would not

have likely resulted in a reversal on appeal, Hamblin was not

prejudiced by appellate counsel’s failure to raise it. Kell v. State,

2008 UT 62, ¶ 42, 194 P.3d 913.

¶20 Finally, Hamblin argues that appellate counsel’s failure to

raise the issues of trial counsel’s ineffectiveness in a rule 23B

motion is a stand-alone basis for reversal of his convictions. Rule

23B permits a party to an appeal in a criminal case to move the

appellate court for a temporary remand to the district court for the

entry of factual findings necessary to resolve a claim of ineffective

assistance of counsel. Utah R. App. P. 23B(a). However, Hamblin

“cannot meet his burden [to show ineffective assistance of counsel]

by merely pointing out what counsel did not do; he must bring

forth the evidence that would have been available in the absence of

counsel’s deficient performance.” State v. Lee, 2014 UT App 4, ¶ 12,

318 P.3d 1164.

¶21 Hamblin has not identified the evidence he believes

appellate counsel should have sought to enter into the record

under rule 23B. Because it is “improper to remand a claim under

rule 23B for a fishing expedition,” Hamblin has not demonstrated

that a rule 23B motion by appellate counsel would have been well

taken. See State v. Griffin, 2015 UT 18, ¶ 19 (citation and internal

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quotation marks omitted). Accordingly, Hamblin has not

demonstrated that he was prejudiced by his appellate counsel’s

decision not to file such a motion.

¶22 Affirmed.

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