201 5 UT App 217

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

M ARTIN R AY J ACKSON , P etitioner and A ppell ant ,

v. S TATE OF U TAH , Respondent and A ppell ee

.

Opinion No. 20130957

- CA Filed August 27, 2015

Third District Court, West Jordan Department The Honorable Terry L. Christiansen

No. 120411054

Robb Jones , Attorney for Appellant Sean D. Reyes and Andrew F. Peterson , Attorney s

for Appellee

J UDGE K ATE A. T OOMEY authored this Opinion , in which J UDGE S J AMES Z. D AVIS and J OHN A. P EARCE concurred

.

TOOMEY , Judge:

¶1 Martin Ray Jackson appeals from the dismissal of his petition seeking post

- conviction relief from his conviction for unlawful sexual conduct, a third

- degree felony. His petition contended he was deprived of his constitutional right to effective assistance of counsel because his trial counsel failed to raise a
statute

- of

- limitations defense. But Jackson has not show n on appeal that his counsel’s performa nce fell below an objective standard of reasonableness , and we therefore affirm the district
court ’s decision to grant the State’s motion for summary judgment and to dismiss Jackson’s petition

.Jackson v. State

20130957

- CA 2 2015 UT App 217 BACKGROUND

¶2 In March 2008, the State charged Jackson with rape , a first

- degree felony, based on allegations that in June 2003, when he was forty

- three years old, he had sexual intercourse with his
seventeen

- year

- old stepdaughter (Stepdaughter). 1 In December 2008, the State amended the i nformation to add an a lternativ e , and lesser , charge of unlawful sexual conduct with a sixteen

- or seventeen

- ye ar

- old , a th ird

- degree felony. Although the statute of limitations for unlawful sexual conduct expi red before the State added the alternative charge , Jackson did n ot raise any challenges to it and waived his right to a prel iminary hearing on it

. 2

¶3 A t trial , the jury was instructed on the rape charge and on the alternative charge of unlaw ful sexual conduct. Jackson did not testify. Jackson argued throughout trial Step daughter was not credible , and maintained the allegations against him were fals e. Consistent with this, Jackson did not argue in the alternative for conviction on the lesser charge of unlawful sexual condu ct.

¶4 The jury ultimately acquitted Jackson of rape b ut convicted him of unlawful sexual conduct. After trial, Jackson filed a motion to arrest judgment, arguing that the statute of limitations barred the unlawful

- sex ual

- conduct charge

. The

1

. The State notes that using the word ‚Stepdaughter‛ does not accurately describe Jackson’s legal relationship to the victim. The precise nature of this relationship is not material to our analysis, and this court’s opinion on his direct appeal referred to the victim as ‚Stepdaughter.‛ Thus, this opinion will continue to employ that term for simplicity.

2

. Jackson did have a preliminary hearing on the rape charge.Jackson v. State

20130957

- CA 3 2015 UT App 217 cou rt denied the motion, reasoning that unlawful sexual conduct

was a lesser included offense of rape and because the statute of limitations for rape had not yet expired, Jackson’s prosecution for unlawful sexual condu ct was not barred. See Utah Code Ann. § 76

- 1

- 305 (LexisNexis 2012) (‚Whenever a defendant is charged with an offense for which the period of limitations has not run and the defendant should be found guilty of a lesser offense for which the period of limitations has run, the finding of the lesser and included offense against which the statute of limitations has run shall not be a bar to punishment for the lesser offense.‛).

¶5 On direct appeal, this court affirmed Jackson’s conviction for unlawful sexual conduct, albeit on a different ground. State v. Jackson , 2011 UT App 318, ¶ 1, 263 P.3d 540. We determined that unlawful sexual conduct is not a lesser included offense of rape and ‚the time for prosecuting Jackson for Unlawful Sexual Conduct cannot be extended by the longer statute of limitations applicable to the prosecution of rape.‛ Id. ¶ 15. Notwithstanding this error, we refused to reverse the conviction, holding that Jackson forfeited the statute

- of

- limitations defense when he failed to raise it before the jury convicted him of unlawful sexual conduct. Id. ¶¶ 34

– 35.

¶6 Next, Jackson file d a petition for relief pursuant to the Post

- Conviction Remedies Act (PCRA), claiming he was deprived of his constitutional right to effective assistance of counsel when his trial counsel fail ed to timely assert the statute

of

- limitations defense to the un lawful

- se xual

- conduct charge.

¶7 The Sta te moved for summary judgment, arguing that Jackson did not establish that his counsel failed to discover the
statute

- of

- limitations defense or that she could have had no legitimate strategic reason for for feiting it

. T he State also asserted that Jackson failed to show a reasonable probability he would have received a more favorable result if counsel had performed differently

.Jackson v. State

20130957

- CA 4 2015 UT App 217 ¶8 Jackson responded that his counsel’s failure to investigate and to raise the statute

- of

- limitations defense until after trial was not a conscious, strategic decision, and her performance therefore fell below the range of reasonable profess ional assistance. Further, he was prejudiced because there was ‚no question that the charge he was convic ted of would have been dismissed‛ had trial counsel raised the defense.

¶9 The district court granted summary judgment and dismissed Jackson’s petition , ruling that he had not demonstrated prejudice as required by Strickland v. Washington , 466 U.S. 668 (1984)

. 3 Specifically, the court considered ‚whether [Jackson had ] established a genuine issue of material fact that there is a reasonable probability that, but for his counsel’s failure to recognize and timely assert his statute of limitations defense to unlawf ul sexual conduct, the outcome of the trial would h ave been different.‛ It reasoned that by allowing ‚ the unlawful sexual co nduct charge [to] go to the jury despite the fact that the
statute of limitations had expired, [ Jackson ] received the benefit of a c onviction of a lesser crime.‛ Further, the court determined that the jury would have convicted Jackson of rape if the lesser ch arge had been dismissed. As a result, it conclud ed there was no reasonable probability of a n acquittal even if counsel had recognize d and timely assert ed Jackson’s statute

- of

- limitations defense.

¶10 The district court’s decision relied heavily on this court’s dicta in the decision resolving Jackson’s direct appeal. State v.

3

. In his p etition, Jackson also argued that his appellate counsel was ineffective for failing to assert his ineffective

- assistance

- of

trial

- counsel claim on direct appeal. Because the district court determined that this second claim depended upon the success of Jack son’s first claim for relief, it dismissed Jackson’s second claim after dismissing his first.Jackson v. State

20130957

- CA 5 2015 UT App 217 Jackson , 2011 UT App 318, 263 P.3d 540. In holding that he waived his statute

- of

- limitations defense at trial, this court cautioned that Jackso n would face a ‚heavy burden to establish counsel’s ineffectiveness.‛ Id. ¶ 32.

[W] here some charges are time

- barred and some are not, as in this case, it is appropriate to consider whether the defendant obtained a tactical advantage by failing to raise the limitations defense at trial. If the evidence is strong and the risk of conviction on the greater offense with higher penalties is likely, the defendant might consciou sly refrain from asserting a statute of limitations defense to a charge with lesser penalties. If the jury has no other option, conviction of the greater charge may be almost certain. By allowing the lesser charge to go to the jury despite the fact that th e statute of limitations has expired, the defendant may receive the benefit of a conviction on a lesser crime.

Id. (footnotes omitted). Jackson now appeals from the district
court ’s entry of summary judgment and its dismissal of his PCRA petition

.

ISSUE AND STANDARD OF REVIEW

¶11 ‚We review an appeal from an order dismissing or denying a petition for post

- conviction relief for correctness without deference to the lower court’s conclusions of law.‛ Ross v. State , 2012 UT 93, ¶ 18, 293 P.3d 345 (citation and i nternal quotation marks omitted). ‚Similarly, we review a grant of summary judgment for correctness, granting no deference to the *lower+ court.‛ Id. (alteration in original) (citation and internal quotation marks omitted). We will affirm such a decision ‚ when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as aJackson v. State

20130957

- CA 6 2015 UT App 217 matter of law.‛ Id. (citation and internal quotation marks omitted); see also Utah R. Civ. P. 56(c). In conducting our

ana lysis, ‚we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.‛ Ross , 2012 UT 93, ¶ 18 (citation and internal quotation marks omitted).

ANALYSIS

¶12 On appeal, Jackson argue s that his counsel’s ‚failure to identify and timely assert the statute of limitations‛ defense to the lesser charge was ‚not tactical‛ and ‚fell below the range of reasonable professional assistance.‛ F urther , her decision ‚could not have been strategic because she was unawar e that the statute of limitations on unlawful sexual conduct had expired until after trial.‛ The State counters that ‚Jackson failed to demonstrate

. . . that *counsel’s+ decision to offer the jury a lower but time barred charge fell below an objective standard of reasonableness .‛ According to the State, ‚counsel’s forfeiture of the statute of limitations defense was an objectively sound trial strategy

— whether counsel knew it or not.‛ Jackson responds that the question is not whether the strategy was reasonable, but whether counsel’s failure to identify and examine a defense was reasonable. We conclude that Jackson has not demonstrated deficiency in his trial counsel’s perf ormance.

¶13 In the context of a summary judgment motion in a PCRA proceeding premised on a claim of ineffective assistance of counsel, Jackson ‚bears the burden of proving his underlying legal claims of ineffective assistance of counsel.‛ See Menzies v. State , 2014 UT 40, ¶ 81 , 344 P.3d 581 . When the State files its motion for summary judgment, it ‚bears the initial burden of showing that it is entitled to judgment and that there is no genuine issue of material fact that would preclude summary judgment in [its + favor.‛ Id. (alteration in original) (citation and internal quotation marks omitted). ‚Once the State makes thatJackson v. State

20130957

- CA 7 2015 UT App 217 showing, the burden of proof then shifts to [Jackson, ] the nonmoving party

. . . .‛ See i d. Because Jackson bears th e burden of proving ineff ective assistance, he ‚cannot rest on *his+ allegations alone‛ but instead ‚must set forth specific facts showing that there is a genuine issue for trial.‛ Id. (alteration in original) (citations and internal quotation marks omitted).

¶14 Under the PCRA, a cri minal defendant may obtain relief if he establishes he received ineffective assistance of counsel. 4 Utah Code Ann. § 78B

- 9

- 104(1)(d) (LexisNexis 2012). To prevail on such a claim, Jackson must meet his burden under Strickland v. Washington , 466 U.S. 668 (1984), which requires a defendant to show (1) ‚counsel’s performance was deficient‛ and (2) ‚the deficient performance prejudiced the defense.‛ Id. at 687.

¶15 ‚A satisfactory showing of both parts of the Strickland test is required for the def endant to prevail.‛ Menzies , 2014 UT 40, ¶ 78. ‚As a result, it is not necessary for us to address both components of the inquiry if we determine that a defendant has made an insufficient showing on one.‛ Id. (citation and internal quotation marks omitted)

. Because Jackson has failed to demonstrate deficient performance , we do not address the prejudice prong. 5

4

. Although Jackson may not raise an ineffective

- assistance

- of

trial

- counsel claim under the PCRA without also demonstrating that his appellate attorney was defic ient, b ecause Jackson’s trial counsel also represented him on direct appeal, we may examine his claim that she rendered constitutionally i neffective assistance

. See Johnson v. State , 2011 UT 59, ¶ 11, 267 P.3d 880.

5

. Although the district court’s grant of summary judgment relied on its conclusion that Jackson failed to show prejudice stemming from his counsel’s performance, we may affirm on ‚any legal ground or theory apparent on the record.‛ Bailey v. (continued...)Jackson v. State

20130957

- CA 8 2015 UT App 217 ¶16 Our court ‚must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.‛ Strickland , 466 U.S. at 689. To overcome this presumption, Jackson must demonstrate that counsel’s ‚representation fell below an objective standard of reasonableness‛ under ‚prevailing professional norms‛ and was not part of a ‚sound trial strategy.‛ See id. at 688

– 89 (citation and internal quotation marks omitted ). Given the ‚strong presumption of competence, we need not come to a conclusion that counsel, in fact, had a specific strategy in mind.‛ State v. Tennyson , 850 P.2d 461, 468 (Utah Ct. App. 1993) (citing Strickland , 466 U.S. at 689). ‚Instead
, we need only articulate some plausible strategic explanation for counsel’s behavior.‛ Id. This ‚calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind. ‛ Harrington v. Richter , 562 U.S. 86, 109

– 10 (2011) (citing Strickland , 466 U.S. at 688)

.
¶17 Jackson has not overcome the strong presumption that his trial counsel’s waiver of the statute

- of

- limitations defense might be considered sound trial strategy. Hi s af fidavit merel y alleges that his attorney did not discuss the statute

- of

- limitations i ssue with him before trial, did not inform him that she made a strategic decision about proceeding with the unlawful

- sexual

-

(...continued) Bayles , 2002 UT 58, ¶ 10, 52 P.3d 1158 (citation and internal quotation marks omitted); see also Butterfield v. Cook , 817 P.2d 333, 338 (Utah Ct. App. 1991) (declining to reach the issue of whether counsel performed deficiently and instead affirming on the alter native basis that counsel’s performance was not prejudicial).Jackson v. State

20130957

- CA 9 2015 UT App 217 conduct charge , and was unaware of the possibil ity

. 6 This is not enough to rebut the ‚presumption that, under the circumstances, the challenged action might be considered sound trial strategy.‛ See Strickland , 466 U.S. at 687

– 88 (citation and internal quotation marks omitted)

. Accordingly, we consider whether such a tactical decision would fall within the ‚ wide range of reasonable professional assistance.‛ See i d. at 689

.
¶18 In some instances, reasonable trial counsel may decide her client would benefit from submi tting to the jury an instruction

on a time

- barred lesser charge . ‚*I+t has long been recognized that [an instruction on a lesser offense] can . . . be beneficial to the defendant because it affords the jury a less drastic alternative than the choice between conviction of t he offense charged and acquittal.‛ Beck v. Alabama , 447 U.S. 625, 633 (1980). As our supreme court has acknowledged, ‚the availability of the ‘third option’

— the choice of conviction of a lesser offense rather than conviction of the greater or acquittal

— giv es the defendant the benefit of the reasonable doubt standard.‛ State v. Baker , 671 P.2d 152, 157 (Utah 1983). But the absence of a lesser

- offense instruction and the presence of an ‚all

- or

- nothing choice‛ may ‚increase [] the risk that the jury will convic t

. . . to avoid setting the defendant free.‛ Spaziano v. Florida , 468 U.S. 447, 455 (1984). On Jackson’s direct appeal, t his court recognized the p otential benefits of an instruction on a time

- barred lesser offense

. State v. Jackson , 2011 UT App 318, ¶ 32, 263 P.3d 540. This court also acknowledged the possibility that a defendant like Jackson might consciously r efrain from asserting a statute

- of

- limitations defense to a charge with lesser penalties where the evidence is

6

. Jackson’s affidavit was required to ‚set forth .

. . facts as would be admissible in evidence,‛ but much of it relies on inadmissible hearsay and was not ‚made on personal knowledge,‛ as the rule requires. Utah R. Civ. P. 56(e)

.Jackson v. State

20130957

- CA 10 2015 UT App 217 strong and the risk of conviction on a greater offense with higher penalties is likely. 7 Id.

¶19 On this appeal, Jackson asks us to review trial counsel’s performance subjectively. But our consideration of counsel’s performance does not depend on ‚counsel’s subjective state of mind.‛ Harrington , 562 U.S. at 109

– 10 (citing Strickland , 466 U.S.
at 688) . Rather, we focus on the ‚objective reasonableness of counsel’s performance.‛ Id. (citing Strickland , 466 U.S. at 688). U nder the circumstances of this case, professionally competent trial counsel may have reasonably ch osen to forgo raising a
statute

- of

- limitations defense to the lesser charge of unlawful

se xual conduct. Had she raised the defense, the court likely would have dismissed the alternative charge and the jury would have been lef t with the choice of convicting Jackson of first

degree

- f elony rape or acquitting him entirely. Objectively, counsel could have reasonably concluded that faced with an all

or

- nothing choice, there was a greater likelihood the jury would convict Jackson o f the more serious charge. And reasonable counsel may well have decided that the risk of conviction on the time

- barred lesser charge was worth it given the reduced risk of a conviction on the greater charge. 8 Because waiving the statute

-

7

. In a similar vein, t his court generally affords deference to defense counsel’s decision to request or not request a lesser

included

- offense instruction in recognition that ‚counsel is in the best position to gauge the defendant’s likelihood of defeating a charge outright and to weigh the possibility that acquittal is not in the cards but that a jury might be satisfied with a conviction on a lesser charge.‛ State v. Binkerd , 2013 UT App 216, ¶ 31, 310 P.3d 755.

8

. In fact, Jackson’s counsel likely recognized the advantages of a lesser offense being submitted to the jury. After the jury posed a question to the court during its deliberations regarding consent, (continued...)Jackson v. State

20130957

- CA 11 2015 UT App 217 of

- limitations defense in this context would constitute a sound trial strategy, we conclude Jackson’s trial counsel’s performance was not objectively deficient.

CONCLUSION

¶20 Jackson has not demonstrated that his counsel’s performance fell below an objectiv e standard of reasonableness , and we therefore conclude his ineffective

- assistance

- of

- counsel claim fails. As a consequence, we affirm the district court’s grant of summary judgment and dismissal of Jackson’s PCRA petition.

(...continued) counsel affirmatively requested an additional jury instruct i on on another lesser offense

— i ncest

— e ven though, like the crime of unlawful sexual conduct, the statute of limitat ions had expired. This request also reflected a reasonable strategic choice.