2015 UT App 144

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### T H E 

### U TA H 

### C O U RT O F 

### A P P E A L S

J A S O N T YL E R H AMB L I N

, Peti tioner and Appellant,

v. S TAT E OF U TAH

, Respondent and Appellee.

Memor andumDeci si on No. 20130415-CA Filed J une 4, 2015

Thi rd Di stric t Co urt, S alt Lake Depart ment The Honorable Randall N. Skanchy

No. 120901750
Andrew Parnes and Brent A. Gold, Att or neys

for Appellant Sean D. Reyes and Andrew F. Peter son, Atto rneys

for Appellee

J UD G E M I C H E L E M. C H RI S T I AN S E N authore d thi s Memorandum Deci si on, i n whi ch J UD G E S G RE G OR Y K. O R M Eand J O HN A. P E ARC E concu rr ed.

CHRIS TIANSEN, Judge:

¶1 Jason Tyler Hambl in appeals from the di stric t court’s ruli ng
on his p e t it i on for postconvic tion relief. Hambl in arg ues that hi s tr i al couns el and appellate couns el render ed constit uti onally ineffec tiv e a ssi stance. We conclu de that Hambl in’s clai ms of tr i al

couns el’s ineffec tiveness are procedurally ba r r e d and that he has fai led to demonstrate that appellate couns el was consti tutionally ineffec tive. We there fore affi rm.Hamblin v. S tat e

¶2 Ha mblin was accu sed of sexually abus ing a minor who tempor arily li ved wi th hi m at hi s stepmother ’s house. The vic tim 1

accu sed Ha mb lin of a numb er of sexual offenses again st her, incl ud ing several instances of object rape. The St ate charged Hambl in wi th multi ple sexual-ab use offenses again st the v i cti m, inclu ding one count of o bj e ct rape. The pr obable cause stat ement fi led in supp or t of the information incl uded an aver ment that Hambl in had abus ed the vic tim by p lacing a li ghtbulb in her rectum. Before the prelim inary hearin g, ho wev er, the St ate amended the information to remov e the refer ence to the li ghtbulb and to change the object-r ape charges to t wo co unts based on an
aver ment that Hambl in had abus ed th e v ict i m wi th two other objects. At the preliminary hear ing, the v i cti m testi fi ed to the two instances of object rape alleged in the amended information. When asked i f Hambl in had abus ed her wi th “other objects other than those two,” the vic tim d e nie d that Hambl in had abus ed her wi th any other objects. The vic tim a lso testifi ed that she had been sexually abus ed by her bro ther (Br other ).

¶3 At tr i al, defense couns el planned to attack the victim ’s credibi li ty by hi ghli ghting the inconsi st ency between her ini tial

accu sati ons and her prelim inary-hearing testim ony reg ardin g whether Hambli n abus ed her wi th a li ghtbulb. Defens e couns el sought to persuade the jury that the vic tim “had attr ibuted acts of sexual abus e to the Defendan t that had been committ e d by [Brot her]” and there by undermine the accu racy and reliab i li ty of her testi mony. On cross-examinati on, d efense couns el confronted the vic tim wi th the inconsi st ency between her ini tial accu sati on again st Hambl in and her prelim inary-hearing testim ony. Defense
couns el hi ghli ghted the vic tim ’s det ai led descri ption of t he abus e she had relat ed involv ing Hambl in and the li ghtbulb and asked the

1. Thi s deci si on recounts only those det ai ls of the offenses and proceedings necess ary to understand the i ssu es on appeal. Furt her backgro und information i s contai ned in our deci si on affi rmi ng Hambl in’s convic tions on di rect appeal. See generally State v. Hamblin , 2010 UT App 239, 239 P.3d 300.

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vic tim to explain why she h ad ini tiall y accus ed Hambl in of abus e t ha t she now attr ibuted to Brot her. The vic tim conceded that she

was “confus ed for a long tim e” reg ardin g who had abus ed her and that “i t got all kin d of jumbled up” but that she now knew Brot her, not Hamblin, had abu sed her wi th the lightbulb

. ¶4 Defens e couns el arg ued in closing that all of the instances of abus e the vic tim t e st ifi ed to had been commi tte d by Brot her and not by Hambl in. The jury convic ted Hambl in of one c ount of rape of a chi ld, on e co unt of sodomy on a chi ld, and two counts of sexual abus e of a chi ld but acqui tte d Hambl in of the remain ing four charges, inclu ding both charge s of object r ape.
¶5 Hambl in m ov e d for a n ew tr i al, arg uing that the prosecuti on had fai led to di scl ose t hat the vic tim had recanted her accu sati on that Hambl in abus ed her wit h a li ghtbulb and that the nondi scl osure was a Brady violati on

. State v. Hamblin , 2010 UT App 2 239, ¶ 10, 239 P.3d 300. The di stric t court deni ed Hambl in’s motion, and he appealed. Id. Thi s court affi rmed, co nc l uding that i f any B rady violati on had occurred, Hambl in was n ot p re ju d i c e d, b e c au s e defense couns el had effecti vely used the evidenc e to hi s advantag e
once i t came to li ght at tr i al. Id. ¶ 17. Thi s court observe d that defense couns el had effecti vely i mpeach ed the vic tim by hi ghli ghting t he di screpanc y between her ini tial accu sati ons and tr i al testim ony:

The vic tim ’s credibi li ty was ver y much at i ssu e thro ughout the entire tr i al, and the ev ide nc e of the vic tim ’s recantation and Brot her’s admis si on to abus ing her wi th a li ght bulb came out in a way that

was qui te helpfu l to Hamb l in. Di scl osure of the

rec a nt ation mi dtrial bolstered the defense’s clai m

2. Brady v. Maryla nd establi shes that the prosecuti on mus t di scl ose to the defendant before tr i al any “evidenc e fa vo rable to an
accu sed ” if that evidenc e i s “material ei ther to gui lt or to puni shm ent.” 373 U.S . 83, 87 (1963).

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t ha t t he vic tim could not really remember who

assau lted her and that, ov er tim e, she would come to realize that, as typi fi ed by the light bulb epi sode, all the assau lts were perpet rat ed by Brot her. Further, Hambl in’s tr i al couns el was able to uti li ze t hi s evidenc e to effecti vely attack the vic tim ’s credibi li ty by questi oning her re ga rdin g the di screpanc i es in her

or i gin a l a n d s ub s e qu e n t a l l e ga ti on s

. In d e e d, H amblin
was ulti ma t e l y acqui tte d on four of the counts again st hi m, inclu ding all object-r ape counts.

Id.

¶6 Thereafter , Hambl in fi led the present petiti on in the di stric t court for relief und e r the Post-Convic tion Remedi es Act (the PCRA). He arg ued, among other thi ngs, that tr i al couns el render ed ineffec tive assi stance by fai ling to “investigate or request di scovery about the si gni fi cant change in [the vic tim ’s] testim ony” and for

re co mm e nding that Hambl in proceed to tr i al wi th a strat egy of i mpeach ing the vic tim wi th her inconsi stent statements rat her than

a cc e ptin g a plea agr eement or seeki ng a mi strial. Hambl in al so 3 arg ued that couns el fo r hi s di rect appeal render ed ineffec tive assi stance by fai ling to “rais e the i ssu es of violati ons of [Hamb lin’s] Sixth Amendment r i ghts” in a motion under rule 23B of the Utah Rules of Appellate Procedure and there by obtain an e v ide nti ary hearin g that Hambl in asserts would have led to a rev ersal of hi s convic tions

. The di stric t court deni ed Hambl in’ s first clai m as procedurally bar red and gr anted summ ary judgment to the St ate on hi s remaining clai ms. H amblin appeals.

¶7 “We rev i ew an appeal from an or der di smi ssing or denyi ng
a petiti on for post-convic tion relief for corr ectness wi thout

3. Hambl in rais ed other clai ms of trialcouns el’s ineffec tiveness in hi s PCRA petiti on, but he has not challen ged on appeal the di stric t court’s r ulings on those clai ms. We therefor e do notdi scu ss them further.

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deference to t he lower court’s conclu si ons o f law.” Taylor v. State, 2012 UT 5, ¶ 8, 270 P.3d 471 (ci tation and internal quotat i on marks omi tte d).

I. Ineffecti ve Assi stance of Tri al Counsel

¶8 Hambl in arg ues that two of the di stric t co ur t ’ s rulings reg ar d ing tr i al couns el’s perfor manc e are err oneous. First, he arg ues that the di stric t court err ed in conclu ding that hi s fai lure-toinvestigate clai m was procedurally barred. Second, he arg ues that the di stric t cour t e r red in deter mining that tr i al couns el di d not perfor m defi ci ently by advis ing Hambl in to rej ect a plea offer and proceed to tri al wi th a strat egy of i mpeaching the v i cti m. Becau se
we co nc l ude that both of Hambl in’s clai ms that tr i al couns el render ed ineffec tive assi stance are procedurally barred, we affi rm the di stric t court ’s deni al of relief.

¶9 Generally, a clai m i s barred under the PCRA i f i t “was rais ed

or addressed at tr i al or on appeal” or “could have been but was not rais ed at tr i al or on appeal.” Utah Code Ann. § 78B-9-106( 1)(b ), (c) (Lexi sNexi s Supp. 2011). W he re a clai m that tr i al couns el was ineffec tive “could have been but was not rais ed” on appea l , that clai m is barred under the PCRA, and we may consi der only whether appellate couns el was consti tution a l l y ineffec tive for fai ling to ra ise the clai m on appeal. Ross v. State, 2012 UT 93, ¶¶ 24–25, 293 P.3d 345 (ci t a t io n a nd internal quotat i on marks omi tte d).

¶10 We conclu de that both of Hambl in’s clai ms of ineffec tive assi stance of tr i al couns el could have been bu t were no t r ai sed on appeal and are there fore barred. Hambl in was repr esented by new
couns el on di rect appeal who could have rais ed these cla ims t ha t tr i al couns el was consti tutionally ineffec tive. Hambl in has i denti fi ed no evidenti ary or legal basesfor these clai ms that were unavai lable t o a p p e l late couns el at the tim e of hi s appeal or other wi se demon st r a t e d that these clai ms could not have been brought on appeal. We are there fore precluded from di rectly

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asses sing the merits of Ha mb l in’ s clai ms that tr i al couns el was ineffec tive. Id.

II. I neffec tive Assi stance of Appellate Counsel

¶11 Never theless, Hambl in may obtain relief under the PCRA i f he demonstra t e s that appellate couns el’s fai lure to arg ue tr i al

c oun s e l ’s ineffec tiveness was i tself ineffec tive assi stance of couns el

. Id. ¶ 24; see also Utah Code Ann. § 78B-9-106( 4). Becaus e Hambl in’s “clai m th a t hi s a p p e l late couns el was ineffec tive i s intert wined wi th and dependent upon hi s clai m t ha t hi s tr i al couns el was in e ffe c ti ve,” we mus t “exami ne the merits of the clai m of ineffec tive assi stance of tr i al couns el” to deter mine i f appellate co un se l render ed ineffec tive assi stance. Ross , 2012 UT 93, ¶ 25 (ci tation and internal quotat i on m a rk s om i tt e d )

. H owever , “we may exami ne the merits of that clai m ‘only t o t he e x tent required to address’ the ineffec tive assi stance of appellate couns el clai m.” Id. (quoti ng Utah Code Ann. § 78B-9-106(4) (Lexi sNexi s 2012))

. ¶12 “The standard for evaluating whether appellate couns el i s ineffec tive i s the same Strickland st andard used to deter mine whether tr i al couns el i s ineffec tive.” Kell v. State, 2008 UT 62, ¶ 42, 194 P.3d 9 1 3

. To suc ceed on a clai m of ineffec tive assi stance of

couns el, a defendant mus t show both “that couns el’s perfor manc e
was defi ci ent” and “that the defi ci ent perfor manc e prej udi ced the defense.” S tr i c kl and v. Washington , 466 U.S. 668, 687 (1984). “To show that appe l l a t e co uns el was ineffec tive in fai ling to rais e a clai m, the petiti oner mus t s how that the i ssu e [was ] obvious fro m the tr i al recor d and

. . . probably would have resulted in rev ersal on appeal.” Kell , 2008 UT 62, ¶ 42 (alterat i on and omi ssi on in or i gin al) (ci tation and internal quotat io n marks omi tte d). “Fin ally, when maki ng a clai m under the PCRA, the petiti oner bears the burden of establi shing ineffec tive assi stance of appellate couns el.” Ross , 2012 UT 93, ¶ 24.

¶13 Hambl in fi rst arg ues that appellate coun sel should have rais ed a clai m that tr i al couns el was ineffec tive for fai ling to

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d isc ov er that “long before tr i al, [the vic tim ] corr ected the ini tial inc o r r ect statement that [Hamb lin] abus ed her wi th a li ght bulb” and fo r fai ling to investigate the vic tim ’s change in testim ony. Hambl in arg ues that had appellate couns el “proper ly investigated and obtained tr i al couns el’s fi le,” appellate couns el would have di scovered t hi s cl ai m.
¶14 However , e v en i f we assu me appellate couns el perfor med defi ci ently in fai ling to inves t ig a te and rais e thi s clai m, Hambl in has not shown that he was prej udi ced by appellate couns el’s perfor manc e, becau se he has not shown that rais ing the clai m

“ probably would have resulted in rev ersal on appeal.” Kell , 2 0 0 8 UT 62, ¶ 42 (ci tation and internal quotat i on marks o mi tte d). Indeed, Hambl in does not even assert that a rev ersal on appeal was li kely i f appellate couns el had rais ed thi s clai m, let alone explain ed why. Accordi ngly, Hambl in has fai led to ca r r y hi s burden of establi shing that appellate co uns el was ineffec tive for fai ling to rais e this clai m. See R oss v. State, 2012 UT 93, ¶ 24, 293 P.3d 345.

¶15 Next, Hambl in a rg ues that appellate couns el render ed ineffec tive assi stance by fai ling to clai m th a t tr i al couns el was ineffec tive for recommending Hambl in proceed to tr i al rat her than accept a plea bar g a in. To deter mine whether appellate couns el’s deci si on not to rais e thi s cl a im prej udi ced Hambl in, we mus t evaluate tr i al couns el’s acti ons to deter mine i f the clai m “probably would have resulted in rev ersal on ap peal,” Kell , 2008 UT 62, ¶ 42 (ci tation and internal quotat i on marks omi tte d). Becaus e we conclu de that Hambl in has fai led to demonstrate that tr i al couns el

was consti tutionally in e ffe cti ve, he was not prej udi ced by appellate

couns el’s deci si on not t o r ai se thi s cl ai m on appeal.

¶16 To demonstrate that tr i al couns el perfor me d defi ci ently, Hambl in “mus t ov e r co me the presumpti on that, under the ci rcums tances, the cha llenged acti on mi ght be consi dered sound tr i al strat egy .” Strickland, 466 U.S. a t 6 8 9 (ci tation and internal quotat i on mar ks omi tte d). We there fore mus t deter mine i f “a rat i onal basi s for couns el’s perfor manc e can be art i culated,” and i f

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so, we wi ll “assu me couns el acted competently.” State v. Lu c ero , 2014 UT 15, ¶ 43, 328 P.3d 841 (ci tation and internal quotat i on marks omi tte d). To “eli minate the di stor tin g effects of hindsi ght,”

we “evaluate the conduc t from couns el’s perspecti ve at the tim e.” Strickland, 466 U.S. at689.

¶17 During tri al, as a result of cert ain err or s that are no t b efore

us in thi s matter , the tr i al court offered to declare a mi strial and the St ate offered Hamb l in a plea deal. Accordi ng to Hambl in, tr i al

couns el advis ed hi m to rej ect the offers becau se couns el “li ked the jury ” and beli eved that, once he cros s- e x a mined the vic tim and hig hli ghted the inconsi stenci es in her testim ony, the jury would acqui t Hambl in on all charges. Hambl in arg ues that tr i al couns el’s strat egy was fatally flawed becau se the vi c tim was prepar ed to deal wi th the inconsi stenci es in her testim ony and that tr i al couns el should have recog ni zed that “hi s defense strat egy had been di scredi ted b y the [S]tate pr i or to t rial.” H amblin ass ert s that trial

couns el’s deci si on to go forward wi th thi s strat egy was not “based

on proper investigati on to supp or t a stra t e gic deci si on” becau se tr i al couns el ei ther “ov erlo oke d” or “negli gently fai led to take into
accoun t thisinformation.”

¶18 However , at the tim e of tr i al, defense couns el knew that the St ate had struck the li ghtbulb-ab use charge fro m the information, that the vic tim had not testifi e d t o t he li ghtbulb abus e at the prelim inary hearin g, and that the vic tim had, in fact, testifi ed at the prelim inary hearin g that she had not been abus ed by Hambl in wi th any objects other th a n t hose inclu ded in the information. Accordi ngly, tr i al couns el would have known that the vic tim was unli kely to testif

y that Hambl in had abus ed he r wi th a li ghtbulb and no further investi gation was necess ary to det ermin e whether to pr oceed wi th the im peachm ent strat egy

. ¶19 Mor eov er, we are not convin ced that tr i al couns el’s strat egy of i mpeach ing the St ate’s key wi tness wi th her incons ist e nt testim ony reg ardin g who had abus ed her w a s objectively defi ci ent. The St ate presented no physi cal evidenc e linki ng Hambl in to the

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cri mes, and the only di rect evidenc e of hi s involv ement came from the vic tim ’s testim ony. Accordi ngly, i t was not obj e ct i vely unreasonable for tr i al couns el to recommend seeki ng a full acqui ttal by undermining the vic tim ’s credibi li ty. Indeed, Hambl in
was acqui tte d of all of the object-r ape charges—those charges most dir e ctly i mpacted by tr i al couns el’s i mpeach ment of the vic tim

. That tr ia l couns el’s strat egy was not as effecti ve as he had hoped does not render i t o bj ecti vely unreasonable. Rather, given what tr i al couns el knew at the tim e, and becau se that knowledge of the vic tim ’s li kely testim ony was adequate to asses s the viab i li ty of an i mpeach ment strat egy, we conclu de that tr i al couns el di d not perfor m defi ci ently by recommending Hambl in proceed to tr i al on
a st r a t e gy of i mpeach ment rat her than taking the plea. Becaus e a clai m that tr ial couns el was ineffec tive in thi s reg ard would not have li kely r e sulted in a rev ersal on appeal, Hambl in was not prej udi ced by appellate couns el’s fai lure to rais e it

. Kell v. State, 2008 UT 62, ¶ 42, 194 P.3d 913.

¶20 Fin ally, Hambl in arg ues that a p p ellate couns el’s fai lure to rais e the i ssu es of tr i al couns el’s ine ff e ct i veness in a rule 23B motion i s a stand-alone basi s for rev ersal of hi s convic tions

. Rule 23B pe r mit s a party to an appeal in a cri minal case to move the appellate court for a tempor ary remand to the di stric t court for the entry of factual findings necess ary to resolv e a clai m of ineffec tive assi stance of couns el. Utah R. App. P. 23B(a). However , Hambl in “cannot meet hi s burden [to show ineffec tive assi stance of couns el] by merely poin tin g out what couns el d id no t d o ; he mus t bri ng fort h the evidenc e that would have been availab le in the absenc e of

couns el’s defi ci ent perfor manc e.” State v. Lee, 2014 UT App 4, ¶ 12, 318 P.3d 1164.

¶21 Hambl in has not i denti fi ed t he e v i dence he beli eves appellate couns el should have sought to enter into t he recor d under rule 23B. Becaus e i t i s “i mproper to remand a clai m under rule 23B for a fi shing expediti on,” Hambl in has not demons tr ated that a rule 23B motion by appellate couns el would have been well tak e n. S ee State v. Griffin , 2015 UT 18, ¶ 19 (ci tation and internal

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quotat i on marks omi tte d). Accordi ngly, Hambli n has not demon st rat ed that he was prej udi ced by hi s appellate couns el’s deci si on not t o fi le such a motion.

¶22 Affi rmed.

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