BLANK

Tag: plea bargain

2024 UT App 40 – State v. Heward – plea agreement, ineffective assistance

2024 UT App 40 – State v. Heward

THE UTAH COURT OF APPEALS, STATE OF UTAH, Appellee, v. BENJAMIN LEE HEWARD, Appellant.

Opinion No. 20221055-CA Filed March 28, 2024 Fourth District Court, Provo Department

The Honorable Robert A. Lund No. 201400462

Scott F. Garrett and Jessica Griffin Anderson, Attorneys for Appellant

Sean D. Reyes and Andrew F. Peterson, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS concurred.

MORTENSEN, Judge:

¶1        Benjamin Lee Heward pled guilty to two charges of aggravated sexual abuse of his two minor daughters. As part of his plea agreement, the State and the victims promised to “affirmatively recommend” a prison sentence of two concurrent terms of six years to life. At sentencing, the prosecutor argued against probation and recommended a sentence of six years to life, but the two victims testified they were having second thoughts about the arguably lenient sentence, a change that the prosecutor attempted to explain. Ultimately, the court followed the recommendation of Adult Probation and Parole (AP&P), sentencing Heward to fifteen years to life on each count, with the sentences to run concurrently. Heward now maintains that the prosecutor breached the plea agreement when he made statements about probation and the feelings of the victims, and he asserts that the district court should have acted sua sponte to remedy the situation. Heward also asserts that his attorney rendered ineffective assistance in failing to object to the prosecutor’s comments. We reject Heward’s claims of error and therefore affirm.

BACKGROUND

¶2          Heward was charged with ten counts of aggravated sexual abuse of a child and one count of rape of a child for the admitted abuse he inflicted on his two minor daughters over a number of years. Heward pled guilty to two of the aggravated sexual abuse charges: (1) rubbing his clothed genitals over the clothed genitals of his older daughter in an act of simulated sexual intercourse and (2) rubbing his younger daughter’s genitals skin to skin with his hand.

¶3          As part of the plea, the State agreed to dismiss the rape charge and the other eight aggravated sexual abuse charges. In addition, the plea agreement indicated that the “State and the victims” would “affirmatively recommend” a prison sentence of six years to life and lifetime sex-offender registration. In contrast, AP&P recommended that Heward be sentenced to fifteen years to life on each count.[1]

¶4          At sentencing, the prosecutor stated, “I know that based on . . . Heward’s statement and the recommendation from his sex offender treatment therapist he’s going to be asking for probation.” The prosecutor acknowledged there was a “very, very narrow exception” to the mandatory imprisonment required for aggravated sexual abuse of a child. See Utah Code § 76-5-404.3(7) (stating that imprisonment is mandatory). That exception allows a court to “suspend execution of sentence and consider probation to a residential sexual abuse treatment center only if,” along with numerous other conditions, the perpetrator’s offense “did not cause the child victim severe psychological harm.” Id. § 76-5­406.5(1)(b). To this point, the prosecutor argued,

Heward needs to show it’s in the best interest of the public and specifically the child victims that the Court should sentence him to probation instead. He can’t show that, Judge. He needs to show that these offenses did not cause the child victim severe psychological harm. He cannot show that, Judge. It’s clear based on the victim impact statements from both [of Heward’s daughters] that they are suffering severe psychological harm, continued psychological harm for what their father did to them.

¶5          The prosecutor then emphasized that Heward’s abuse would make it “extremely difficult” for his victims to have a “sense of peace” and that they were “going to be affected” for “the rest of their lives” because Heward “used them as sexual objects.” The prosecutor also pointed out that certain sex offenses involving children in Heward’s juvenile record indicated that he represented a danger to the community. The prosecutor concluded by saying, “He’s going to tell the Court right now that he should be granted probation because he’s not a threat to the community. The Court should disregard that.”

¶6          The prosecutor then gave Heward’s victims time to speak. The older daughter stated that Heward’s abuse had a “devastating impact” on her life, that she was “still suffering from his actions,” and that she was “always having to look over [her] shoulder making sure he’s not around” her. This daughter, after recounting the “painful memories” and her continuing trauma, stated that Heward was “being shown undue mercy . . . with a plea agreement.” She also noted that Heward had violated protective orders “[a]gain and again” and even at the sentencing hearing, he had “force[d]” and “manipulated” her and her sister “into an embrace with him.”

¶7          The younger daughter also spoke. She said that as a result of the abuse, she struggled with depression and anxiety. She shared that she continued to “feel uncomfortable leaving [her] room” because she was afraid that she would “get raped and sexually assaulted again.” She further revealed that whenever someone touches her “unexpectedly,” she is “startled” and “can physically feel it all happening again.”

¶8          After Heward’s victims finished speaking, the prosecutor expressed that he wanted “to talk about what the State’s recommendation [was] going to be.” He explained that “[i]n speaking with the victims through plea negotiations,” their “minimums were 6 to life” and “lifetime sex offender” registration. Then the following exchange took place:

Prosecutor: I spoke with [the victims] this morning, if they still feel the same way, understanding that I’m bound to the recommendation of 6 to life, that I thought it was important for the Court to know where the victims stand today. I asked them how they still felt about the 6 to life. They told me—

Court: May I say, . . . you bound yourself to 6 to life?

Prosecutor: Yes, sir, that is the State’s recommendation.

Court: Okay, . . . you need to be very careful you don’t say anything now that could be you trying to argue against that deal. So be circumspect in your comments.

Prosecutor: Judge, I’m not arguing that it should be anything else. I think the Court should be fully informed about where the victims are. The victims aren’t party to this agreement, but victims do have a right to be heard, and that can be through their own statements or through that of the prosecutor. They felt like they were manipulated by the defendant to feel sorry for him, and the Court did hear those statements today. They felt manipulated, and that’s why they wanted 6 to life. That’s the reason for the plea offer that was given, Judge. The State is still bound and still recommending 6 to life.

¶9          Heward’s attorney (Counsel) then spoke about mitigating factors that the court should consider in sentencing. Counsel agreed with the State that Heward “probably [was] not qualified” for the “statutory exception that allows for probation.” Counsel then concluded, “We would concur with the recommendation of the two concurrent 6 years. That’s what we’ve all agreed to, and that’s what I’d recommend.”

¶10 Other witnesses, including Heward’s mother and his therapist, spoke about various mitigating factors. And Heward himself spoke, stating that he was “not asking for probation.”

¶11        The court was not persuaded by the recitation of mitigating factors:

[I]t evidences a higher level of depravity when the victims are your biological children, and this conduct went on for years. . . . [T]hat’s also an aggravating circumstance. It’s an aggravating circumstance that you violated the protective order.

Frankly, based on the information that’s before me, it seems to me that you’ve minimized the conduct that you’ve been involved in. I’d be more inclined to accept the versions that [your daughters] provide in terms of what happened.

Based on all of that, I’m going to follow the AP&P recommendation. I don’t think that I have the discretion to sentence you to less than 15 years in prison. That’s the sentence of the Court. You’ll be sentenced to [two concurrent terms] of 15 years to life in the Utah State Prison.

¶12        Heward appeals.

ISSUES AND STANDARDS OF REVIEW

¶13        Heward first argues that the “prosecutor breached the plea agreement by failing to affirmatively recommend a prison sentence of six years to life and by implying the State regretted entering into the plea agreement.” Heward acknowledges that this claim was not preserved and asks that it be reviewed under both plain error and ineffective assistance of counsel. See State v. Shaffer, 2010 UT App 240, ¶ 9, 239 P.3d 285 (recognizing that an unpreserved alleged breach may be reviewed for plain error and ineffective assistance of counsel). To demonstrate plain error, Heward “must show that: (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) absent the error, there is a reasonable likelihood of a more favorable outcome.” State v. Samul, 2018 UT App 177, ¶ 10, 436 P.3d 298 (cleaned up), cert. denied, 432 P.3d 1233 (Utah 2018). And “when a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” Id. ¶ 11 (cleaned up).

ANALYSIS
I. Plain Error

¶14 Heward complains that the prosecutor breached the plea agreement in two separate but related ways. First, Heward argues that the prosecutor failed to “affirmatively recommend” the prison sentence of six years to life as indicated in the plea agreement. Second, Heward argues that the prosecutor then “compounded” the breach by bringing up the victims’ apparent change of heart about the plea agreement, implying that the State regretted entering the plea agreement. And Heward asserts that the district court “should have been aware of the errors the prosecutor made.” In such cases, our court has focused on whether a prosecutor’s statements were egregious enough to require a district court to act sua sponte to remedy the situation. See State v. Hummel, 2017 UT 19, ¶ 119, 393 P.3d 314 (“[N]one of [the prosecutor’s] statements was so egregiously false or misleading that the judge had an obligation to intervene by raising an objection sua sponte.”); State v. Hosman, 2021 UT App 103, ¶ 38, 496 P.3d 1162 (questioning whether a prosecutor’s statements were so egregious that it constituted plain error for the court to fail to intervene sua sponte to remedy the harm), cert. denied, 502 P.3d 270 (Utah 2021).

¶15 To succeed on this claim, Heward “must prove that the State actually breached the plea agreement, that the breach should have been obvious to the district court, and that had the district court recognized and remedied the breach, there is a reasonable likelihood that [his] sentence would have been more favorable.” State v. Gray, 2016 UT App 87, ¶ 15, 372 P.3d 715, cert. denied, 379 P.3d 1185 (Utah 2016). And “if any one of these requirements is not met, plain error is not established.” Id. (cleaned up).

¶16        “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971); accord State v. Lindsey, 2014 UT App 288, ¶ 16, 340 P.3d 176. Accordingly, a “plea agreement is breached when the State fails to act in accord with its promise.” State v. Samulski, 2016 UT App 226, ¶ 13, 387 P.3d 595, cert. denied, 390 P.3d 725 (Utah 2017). However, “when a defendant alleges that the State violated a plea agreement by making inappropriate statements at sentencing, as [Heward] does here, we consider the prosecutor’s statements in the context of the entire hearing.” Gray, 2016 UT App 87, ¶ 16 (cleaned up).

  1. Affirmative Recommendation

¶17        Heward argues that the prosecutor failed to “affirmatively recommend” the prison sentence of six years to life agreed to in the plea. The gist of Heward’s argument is that “[i]n order to affirmatively recommend a sentence of six years to life, the prosecutor was required to make an effort to position the recommendation as one that is ‘in the interests of justice.’” (Quoting Utah Code § 76-5-404.3(4)(b).) Heward asserts that, instead, the prosecutor “utterly failed to make an argument or present the judge with any information that a sentence of six years to life was in the interests of justice.” Heward complains that the prosecutor “focused solely” on the limited discretion of the judge, certain aggravating factors (namely, the psychological harm suffered by the victims, Heward’s juvenile record, and Heward’s alleged violation of a protective order), and the victims’ alleged withdrawal of support for the plea agreement. “By emphasizing only aggravating factors in his argument,” Heward asserts, “the prosecutor failed to affirmatively recommend a sentence of six years to life,” resulting in “a clear breach.” We are not persuaded that any breach, let alone a clear one, occurred when the prosecutor highlighted these factors.

¶18        First, the prosecutor’s statements about aggravating factors were made not in reference to the plea agreement but in the context of arguing that Heward should not be offered probation under the limited statutory exception to mandatory imprisonment. By pointing to the severe psychological harm inflicted on the victims and Heward’s juvenile record, the prosecutor was explicitly arguing that Heward was not eligible for probation under the statute. And Heward’s violation of the protective order was also mentioned in the context of denying probation—specifically that Heward should start serving his sentence immediately. As the State points out, the prosecutor’s remarks about the protective order violations “weren’t about what Heward’s sentence should be, but when he should begin to serve it.” Arguing against probation and for immediate incarceration— even if it necessarily required the prosecutor to reference some aggravating factors relevant to other aspects of Heward’s sentencing—was consistent with the State’s recommendation of six years to life. After all, the plea agreement made it perfectly clear that the State would “affirmatively recommend” a prison term, a recommendation that obviously entitled the prosecutor to argue—even forcefully—against probation by highlighting specific reasons Heward did not qualify for probation.

¶19 Second, and more to the point, an “affirmative recommendation” does not require any particular measure of enthusiasm for an agreed-upon sentencing recommendation. While a prosecutor may not “undermine” a promised sentencing recommendation by expressing “personal reservations at the sentencing hearing,” the “prosecutor has no responsibility to make such recommendations enthusiastically.” State v. Shaffer, 2010 UT App 240, ¶ 26, 239 P.3d 285 (cleaned up); see also Gray, 2016 UT App 87, ¶ 18 (“[The prosecutor] described the circumstances of the crimes to underscore [the absence of mitigating factors], and at the conclusion of this discussion, he accurately, if not enthusiastically, described the recommendation the State had agreed to make for concurrent sentences . . . . [This] context supported a reasonable interpretation that comported with . . . the State’s obligations under the plea agreement.”).

¶20 Notably, the plea agreement does not contain any provisions regarding how the State was to fulfill its promise to “affirmatively recommend” the six-years-to-life sentence. It offers no guidance on how enthusiastically or forcefully the prosecutor had to argue in favor of the agreement. Nor does it indicate, as Heward argues on appeal that it should, any kind of obligation on the part of the prosecutor to highlight mitigating factors. And while it is true that the prosecutor did not approach the recommendation with gusto, it is even more clear that the prosecutor did affirmatively recommend the agreed-upon sentence two distinct times. The prosecutor explicitly declared that six years to life “is the State’s recommendation.” (Emphasis added.) And when cautioned by the court to “be circumspect” in his comments to avoid saying “anything” that “could be . . . trying to argue against that deal,” the prosecutor clarified that he was “not arguing that it should be anything else” and that the “State is still bound and still recommending 6 to life.” (Emphasis added.)

¶21 Moreover, these recommendations were “affirmative” in that the prosecutor did more than merely submit the matter without any argument against the defense’s recommendation; to the contrary, the State expressed its affirmative assent to the prison term agreed upon in the plea agreement. See State v. Samul, 2018 UT App 177, ¶¶ 13–17, 436 P.3d 298 (distinguishing between situations in which a plea agreement merely “secured the State’s promise not to oppose” the defense’s recommendation and situations in which a plea agreement requires the State to “affirmatively argue for” a particular sentence), cert. denied, 432 P.3d 1233 (Utah 2018). In this case, the prosecutor made an effort to positively express the State’s assent to the term of six years to life by declaring that the term “is the State’s recommendation.” (Emphasis added.) That the assent was expressed without great enthusiasm does not diminish that it was in the affirmative.

¶22 Thus, the prosecutor’s statements, especially when taken as a whole, represent a consistently unambiguous affirmation at sentencing that the State stood behind its recommendation of six years to life. We perceive no breach of the plea agreement in the manner in which the prosecutor recommended a six-years-to-life prison sentence.

  1. Implication of Regret

¶23 Heward next argues that in informing the court that the two victims apparently no longer supported the sentence of six years to life, the State breached the plea agreement by implying that it regretted entering it.

¶24 A prosecutor who “promises to recommend a certain sentence and does so” does not breach the bargain “by also bringing all relevant facts to the attention of the court, so long as the statements are neutral and do not imply that the information makes the State regret entering into the plea agreement.” Shaffer, 2010 UT App 240, ¶ 26 (cleaned up). The feelings of victims do not inherently reflect the position of the State, and victims are not authorized to communicate the State’s recommendations. Therefore, by sharing the victims’ feelings, the prosecutor was making a neutral statement, one that did not reflect the State’s position or recommendation. See id. ¶ 32 (“By repeating the victim’s statement, the prosecutor did not undermine the State’s recommendation or imply that the State regretted that recommendation.”). Thus, bringing to the court’s attention that the support of Heward’s victims for the plea agreement had perhaps waned does not imply that the State regretted entering the plea.

¶25        It is also important to note that the prosecutor made these comments immediately after Heward’s victims made statements that could admittedly cut against the sentence of six years to life. The older daughter seemed to explicitly oppose the plea agreement, saying that Heward was “being shown undue mercy . . . with a plea agreement.” And the younger daughter, while not overtly criticizing the plea agreement, described in detail how Heward’s abuse caused her to feel “numb,” depressed, anxious, “suicidal,” “unclean and dirty,” and untrusting. She further stated that she continued to have “very vivid nightmares and flashbacks” in which she could “physically feel his hands” on her. She also said, “I will never be able to forget how it felt when . . . Heward did the things he did to me. I’m afraid that wherever I go I will see him and he will hurt me in some type of way.” And she concluded by saying, “I want . . . Heward to learn from his actions, and I want him to know how badly he affected me . . . .” Given the graphic descriptions both victims provided of the ongoing harm they suffered, it certainly would not be a stretch to conclude that the victims thought Heward was being treated too leniently by the terms of the plea agreement.[2]

¶26 It was against this backdrop that the prosecutor spoke. As the State points out, the victims’ apparent “about-face on the plea agreement demanded an explanation” because the “court may have been confused by the disparity between the victims’ statements at sentencing and the plea agreement.” After all, the plea agreement stated that the “State and victims will affirmatively recommend” a sentence of six years to life. But after the victims spoke, the court could have easily concluded that the victims were no longer on board. It is in this milieu that the prosecutor assured the court that in “speaking with the victims through plea negotiations,” their “minimums were 6 to life” and “lifetime sex offender registry” and that was the offer the State gave Heward. Then the prosecutor explained that the victims had “wanted 6 to life” because “they felt manipulated” by Heward. We have made clear that a prosecutor conveying the views of the victim does not “undermine” or breach a plea agreement. Here, if anything, the prosecutor’s statements about how the victims felt represented an attempt to salvage the plea agreement after the victims’ statements could be taken as militating against it. And it was well within the prosecutor’s duty to assist the victims in making their views known. See State v. Casey, 2002 UT 29, ¶ 29, 44 P.3d 756 (“Prosecutors must assist victims in exercising their right to be heard at plea hearings and provide them with clear explanations regarding such proceedings.” (cleaned up)). The prosecutor appeared to be making the best of a delicate situation by juggling the interests of the various parties involved while trying to also honor the promises made in the plea agreement.

¶27        In sum, Heward’s complaint of plain error fails because the prosecutor did not breach the plea agreement at all, let alone commit a breach so obvious as to require the district court to intervene without an objection.

  1. Ineffective Assistance

¶28 Heward argues that Counsel provided ineffective assistance by failing to object to the prosecutor’s alleged breach of the plea agreement.

¶29 To show ineffective assistance of counsel, Heward must prove that Counsel performed deficiently and that he suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 687 (1984). “Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [Heward’s claim] under either prong.” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182. Since we conclude, for two reasons, that Counsel did not perform deficiently, we limit our analysis to the deficiency prong. We give “trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them.” State v. Heyen, 2020 UT App 147, ¶ 18, 477 P.3d 23 (cleaned up), cert. denied, 485 P.3d 943 (Utah 2021). So, to prevail on Strickland’s first prong, Heward “must overcome the strong presumption that trial counsel rendered adequate assistance and exercised reasonable professional judgment by persuading the court that there was no conceivable tactical basis for counsel’s actions.” State v. Samul, 2018 UT App 177, ¶ 15, 436 P.3d 298 (cleaned up), cert. denied, 432 P.3d 1233 (Utah 2018).

¶30 First, any objection would have been unlikely to succeed because, as we have explained above, it was far from clear that the prosecutor breached the plea agreement. See State v. Burdick, 2014 UT App 34, ¶ 34, 320 P.3d 55 (“It is well settled that counsel’s performance at trial is not deficient if counsel refrains from making futile objections, motions, or requests.” (cleaned up)), cert. denied, 329 P.3d 36 (Utah 2014). Under these circumstances, a reasonable attorney could have concluded that the prosecutor had made the required “affirmative recommendation” and had therefore not breached the plea agreement at all. See Samul, 2018 UT App 177, ¶ 16 (“Here, we can easily conceive of a reasoned basis for counsel’s decision not to object to the State’s remarks at sentencing: counsel may have believed that the State was accurately describing the terms of the plea agreement.”).

¶31        Second, even if we assume, for purposes of the discussion, that Counsel actually believed, in the moment, that the prosecutor’s sentencing remarks constituted a breach of the plea agreement, Counsel nevertheless had a solid strategic reason not to object to the prosecutor’s statements, namely, an objection could jeopardize the plea agreement and he very much wanted it to remain on the table owing to the favorable terms it offered Heward. Through the plea agreement, Heward would serve time for only two of his eleven charges—ten counts of aggravated sexual abuse of a child and one count of rape of a child. If Counsel had been successful in objecting that the prosecutor breached the plea agreement, one of two results would have likely happened. At its discretion, the district court could have ordered “either specific performance of the plea agreement or withdrawal of the guilty plea.” State v. Smit, 2004 UT App 222, ¶ 17, 95 P.3d 1203. If the court had ordered specific performance, the State would then have to reiterate that it was honoring the promises made in the plea agreement. But it would have been more likely (had a breach occurred) that the court would have allowed Heward to withdraw his plea—something he would be reluctant to do since the probability of getting an equally favorable offer later would be slim in light of the victims’ apparent reservations about the existing plea agreement. Competent counsel could easily conclude that the risk of objecting was simply too great considering the minimal benefit and likely downside. At the very least, competent counsel could have reasoned that there was no benefit in objecting because the existing agreement was the best Heward was going to receive. So, Counsel’s best course of action was to express Heward’s concurrence with the six-years-to-life sentence and hope that the court would agree.

¶32        Accordingly, Heward’s ineffective assistance claim fails because Counsel had sound strategic reasons for not lodging an objection to the prosecutor’s statements at sentencing.

CONCLUSION

¶33        Heward fails to establish that the district court plainly erred where he has not shown that the plea agreement was breached, much less obviously so. He has also failed to show that Counsel provided ineffective assistance in not objecting to the prosecutor’s statements.

¶34 Affirmed.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] For context, a court imposing a sentence for aggravated sexual abuse of a child may deviate downward from the presumptive upper range of fifteen years to life if the “court finds that a lesser term . . . is in the interests of justice.” See Utah Code § 76-5-404.3(4). The available lesser terms are ten years to life and six years to life. See id.

[2] In his reply brief, Heward explicitly states that he “does not object to the prosecutor facilitating the victims’ statements to the trial court.” Moreover, Heward does not claim in any way that the victims speaking up against the low-range sentence was a breach of the plea agreement, even where the plea agreement stated the victims would “affirmatively recommend” a sentence of six years to life along with the State.

Tags: , , , , , , , ,

State v. Hararah – 2023 UT App 77 – domestic violence prosecution

State v. Hararah – 2023 UT App 77

2023 UT App 77

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

HOUSTON RAEFAT HARARAH,

Appellant.

Opinion

No. 20220276-CA

Filed July 20, 2023

Eighth District Court, Vernal Department

The Honorable Edwin T. Peterson

The Honorable Gregory M. Lamb

No. 201800299

Nicolas C. Wilde and Trevor J. Lee,

Attorneys for Appellant

Tegan M. Troutner and Rachelle Shumway,

Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1        Houston Raefat Hararah was charged with assault for throwing a potted plant at his then-girlfriend. He waived his right to a preliminary hearing and proceeded to trial, following which he was convicted. He now contends that he was coerced into waiving his right to a preliminary hearing because the district court[1] stated, at various points in the proceedings, that it would not permit Hararah to accept any plea deal if he chose to have a preliminary hearing. But the record indicates that Hararah rejected the State’s “best offer” and independently decided to waive the preliminary hearing and proceed to trial, so we cannot agree that the court forced his waiver. Hararah also asserts that his defense counsel (Counsel[2]) provided ineffective assistance for not objecting to the court’s allegedly problematic statements, as well as for telling the jury, during opening statements at trial, that they would not hear that Hararah had punched the victim, when the victim went on to testify that he did so. We do not agree that his counsel performed deficiently in either respect, so we affirm.

BACKGROUND

¶2        After police responded to an argument between Hararah and his then-girlfriend, Hararah was charged with assault, with a domestic violence enhancement. The Information alleged that Hararah “threw a potted plant at his girlfriend[,] striking her in the face and causing a cut above her eye.” As a result, the district court issued a no-contact order against Hararah. At a hearing to review the no-contact order, held in July 2020, the following exchange took place between Hararah, the district court, and Counsel:

Counsel:  Judge, do you want to keep [the next hearing] on the 28th? I think that at this point, I’ve discussed a plea with Mr. Hararah and it looks like we’re probably going to be setting it for a preliminary hearing.

District Court:  Well, let’s go ahead and . . . take it on the 28th and see—Mr. Hararah, do you understand if you go to preliminary hearing, you’re going to trial on the original charges? I won’t allow a plea negotiation after that.

Hararah:  Yes, Your Honor.

District Court:  Okay. Well, you think long and hard on that and I’ll talk to you on the 28th. Thank you.

¶3        The minutes for the next hearing, held in August 2020, indicate that “[t]he defendant request[ed] a Preliminary Hearing” and that “the [c]ourt set[] this matter for Preliminary Hearing.”

¶4        In court on the date set for the preliminary hearing, in September 2020, Counsel said, “I’ve had a chance to speak with Mr. Hararah, [and] he’s willing to waive his right to a preliminary hearing and we can set the case for trial—for the next step.” Then the following exchange took place:

District Court:  So you talked to [Counsel] about what a preliminary hearing is[,] right?

Hararah:  Yes.

District Court:  Okay. And you are, in fact, willing to waive your rights to a preliminary hearing and allow the matter to be bound over; is that correct?

Hararah:  Yes.

District Court:  Very good. I will go ahead and allow the waiver[;] I’ll bind the matter over. How long do you think you need to have discussions, [Counsel]?

Counsel:  Your Honor, I think that the best offer has been made and Mr. Hararah  has had a chance to discuss it, and I think we’re just going to need to figure out when we can get it on for a trial as soon as possible in front of a jury.

Later in the hearing, the district court added,

District Court: [W]e will have a trial as soon as possible. And seeing as we did not go to prelim, we could still have discussions regarding, you know, some other outcome to the . . . litigation.

¶5        The case eventually went to trial, and during opening statements, Counsel said to the jury, “You will not hear any testimony about [Hararah] punching [the alleged victim] . . . . [Y]ou’ll hear . . . that the only item that he had to protect himself from [a] taser [the alleged victim held] was the plant that was on the floor. And he picked it up and he threw it so that he could get out . . . .”

¶6        But when the victim testified, she stated that Hararah had hit her through a pillow. She testified that the pair had been drinking and started arguing when “[a] verbal argument turned into a physical [one].” She said, “I had tried knocking over his drink. I knew the conversation wasn’t ending anywhere. He ended up on top of me hitting me.” She described how she tried to leave the room but “was hit in the face” with “a pillow and his fist.” She clarified that “he was punching [her] and hitting [her] through the pillow.”

¶7        Later in the trial and outside the presence of the jury, Counsel objected to “the uncharged misconduct that we’ve now heard about for the first time today, which is this witness . . . now saying that she was punched in the face by Mr. Hararah prior to the throwing of the plant.” Counsel asserted, “That is nowhere in the State’s discovery. It is not in the officer’s report, it isn’t anywhere in the body cam. And so what we are now entertaining is the fact that these jurors can . . . believe that the bruising on her face comes from those punches rather than from the plant.” Counsel explained why this was problematic: “We don’t have the ability to bring in a rebuttal expert to say, ‘Hey, do you think these bruis[es] came from punching or . . . from a plant?’ So, I maintain that [this] is prejudicial.” The trial court responded, “I’ve previously ruled during the course of the trial that I would allow the testimony as long as it was consecutive to the day . . . in question [and] I would allow testimony from . . . the witness about the arguing and the conduct that happened during that date in question.”

¶8        The State went on to call the deputy who had arrested Hararah. On cross-examination, he testified that “[t]he only assault [he] was aware of was the plant being thrown,” and he agreed that if the victim had “mentioned being punched in the face, [he] would have put that in [his] report.” In closing arguments, Counsel portrayed the victim as an unreliable witness based on the inconsistencies between her previous accounts of what happened and her trial testimony.

¶9        Ultimately, the jury found Hararah guilty of domestic violence-related assault. Hararah now appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Hararah presents two issues on appeal. First, he asserts that the district court erred “when it coerced [him] into waiving his right to a preliminary hearing by threatening to not allow him to accept a plea bargain from the State if he exercised his fundamental right to a preliminary hearing.” He argues that this error “violated Article I, Section 13 and Article V, Section 1 of the Utah Constitution; Utah Rules of Criminal Procedure 7(e) and 11(i); and our adversarial system of justice.” Hararah admits that this “issue was not preserved,” but he claims that “either the exceptional circumstances exception or the plain error exception applies here.”

¶11      Second, Hararah asserts that Counsel provided ineffective assistance in two respects: (1) by “fail[ing] to object to the district court coercing [Hararah] into waiving his fundamental right to a preliminary hearing” and (2) by telling the jury “during opening statements that the jury would not hear any testimony about the alleged victim being punched.” “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and [the appellate court] must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Reid, 2018 UT App 146, ¶ 17, 427 P.3d 1261 (cleaned up), cert. denied, 432 P.3d 1225 (Utah 2018).

ANALYSIS

  1. Preliminary Hearing Waiver

¶12      Hararah argues that the district court “violated [his] rights . . . when it—by threatening to prevent him from accepting a plea deal from the State—forced him to waive his right to a preliminary hearing.” Hararah acknowledges that he did not object or otherwise preserve this argument. He argues that either the plain error exception or the exceptional circumstances exception applies. But Hararah cannot prevail under either theory.

  1. Plain Error

¶13      To show plain error, “a defendant must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (cleaned up).

¶14      We first address Hararah’s argument that the district court erred by “coercing” or “forcing” him to waive his right to the preliminary hearing. Hararah takes issue with the district court’s statement made at the July 2020 hearing: “Mr. Hararah, do you understand if you go to preliminary hearing, you’re going to trial on the original charges? I won’t allow a plea negotiation after that.” The advisability of this comment[3] is immaterial here because the record indicates that Hararah chose to waive his right to a preliminary hearing for reasons unrelated to the district court’s statement. In other words, the record is clear that the court did not, in fact, force or coerce Hararah to waive the preliminary hearing because he made an independent choice to waive it.

¶15      At the outset of the September 2020 hearing, Counsel said, “I’ve had a chance to speak with Mr. Hararah, [and] he’s willing to waive his right to a preliminary hearing and we can set the case for trial—for the next step.” Critically, Counsel also said during that hearing that “the best offer has been made and Mr. Hararah has had a chance to discuss it, and I think we’re just going to need to figure out when we can get [the case set] for a trial as soon as possible in front of a jury.”

¶16 We make much of the fact that Hararah waived his preliminary hearing in the same hearing in which he expressed his rejection of the State’s “best” plea offer. This shows that Hararah’s waiver was not based on the possibility of future bargaining or a fear that he would not be able to accept a plea deal if he had a preliminary hearing. Counsel did not indicate that Hararah anticipated any plea bargain better than the one the State had offered—as the plea bargain offered was already the “best offer” possible; instead, Counsel represented that Hararah had considered the offer and had decided to proceed to trial rather than accept the offered bargain. And Counsel did not mention the idea that the preliminary hearing was being waived to keep open the prospect of a future plea deal.

¶17      Hararah fails to provide us with any evidence supporting a belief that his independent desire to proceed to trial—after rejecting the State’s “best offer”—was not what drove his decision to waive his right to a preliminary hearing. If Hararah had represented in any way that he was forgoing the preliminary hearing because he was planning to accept a plea deal or wanted to keep his options open, the case before us would be quite different. But instead, the record demonstrates that Hararah was forgoing the preliminary hearing after having fully considered and rejected the State’s best offer and with the goal of going to trial as soon as possible. Accordingly, Hararah has not shown that any error took place, because there is no indication that the district court’s comment had any effect on Hararah’s actions.

¶18      Similarly, the district court’s post-waiver statement that “seeing as we did not go to prelim, we could still have discussions regarding, you know, some other outcome to the . . . litigation” had no bearing on Hararah’s decision to waive his right to a preliminary hearing. At that point, Hararah had already made his decision to forgo the preliminary hearing, and he had also already rejected the State’s best plea offer.

¶19      Furthermore, even if we assume that the district court’s comments alone—rather than Hararah’s counterfactual claimed reliance on them—constituted error, Hararah has not met his burden on plain error review to show prejudice. The record shows that Hararah would have taken the same course of action whether or not the district court made the comments at issue. The same facts discussed above indicate that even if the statements had never been uttered, Hararah would have been presented with and rejected the State’s “best offer” and would have wanted to move as quickly as possible toward trial, including waiving his preliminary hearing. Accordingly, Hararah’s claim on this point fails.[4]

¶20      Moreover, even if “an error exist[ed]” that “should have been obvious to the [district] court,” Holgate, 2000 UT 74, ¶ 13 (cleaned up), any such error was cured by Hararah’s conviction by a jury, see State v. Aleh, 2015 UT App 195, ¶¶ 13–18, 357 P.3d 12, cert. denied, 366 P.3d 1213 (Utah 2016). In Aleh, a defendant “contend[ed] that the trial court erred in denying his motion to withdraw the waiver of his right to a preliminary hearing.” Id. ¶ 13. This court determined that because the “sole purpose” of a preliminary hearing is “determining whether probable cause exists,” “an error at the preliminary stage is cured if the defendant is later convicted beyond a reasonable doubt.” Id. ¶¶ 14–15 (cleaned up). And “[t]his is so even when the error consists of a complete deprivation of a preliminary hearing.” Id. ¶ 16.[5] “Because conviction beyond a reasonable doubt cures any flaw in a preliminary hearing—including the complete deprivation of a preliminary hearing—it necessarily cures any error the [district] court may have made in accepting a defendant’s waiver of the right to a preliminary hearing.” Id. ¶ 18.[6] “Accordingly, [Hararah’s] conviction of all charges beyond a reasonable doubt cured any possible error attending his waiver of a preliminary hearing.” See id.

¶21      Ultimately, Hararah’s argument of plain error fails.

  1. Exceptional Circumstances Doctrine

¶22      We apply the exceptional circumstances doctrine “to reach an unpreserved issue where a rare procedural anomaly has either prevented an appellant from preserving an issue or excuses a failure to do so.” State v. Johnson, 2017 UT 76, ¶ 29, 416 P.3d 443 (cleaned up). Hararah argues that “[b]ecause it is procedurally uncommon in Utah to have a district court force a criminal defendant to waive his constitutional right to a preliminary hearing, a rare procedural anomaly occurred.”

¶23      But the claimed procedural anomaly did not actually occur. Hararah’s argument points to the presumed effect of the district court’s statements (namely, “forc[ing]” Hararah “to waive his constitutional right to a preliminary hearing”) rather than the mere occurrence of the statements as the “rare procedural anomaly.” But as we have explained, Hararah was not forced into waiving his right to a preliminary hearing, because he chose to waive that right for reasons independent from the district court’s comments. The absence of an actual “rare procedural anomaly” alone defeats Hararah’s argument as to the applicability of the exceptional circumstances doctrine, but this is not all.

¶24     Even if we assume that the district court’s statements constituted a “rare procedural anomaly,” Hararah would need to show that they “either prevented [him] from preserving an issue or excuse[d] a failure to do so.” See id. Hararah does not attempt to explain what prevented him from objecting to the district court’s statements and thereby preserving the issue. In reality, there was nothing preventing him from doing so. Hararah could have objected when the district court made the first statement at the July 2020 hearing. But this is not a case where a defendant had only one opportunity to object to an alleged error. Hararah could have taken time to review the issue and objected during the August 2020 hearing. Or he could have objected after the district court’s follow-up comment at the September 2020 hearing. Furthermore, before trial, Hararah could have filed a motion to withdraw his waiver. On this record, Hararah had time and multiple opportunities to object or preserve this issue, and he did not do so.

¶25      Moreover, we are not convinced that Hararah’s failure to preserve the issue is excusable. While we recognize the fundamental nature of the preliminary hearing and we protect defendants’ constitutional rights to preliminary hearings, we also recognize that a defendant has the constitutionally guaranteed right to waive the preliminary hearing. See Utah Const. art. I, § 13 (protecting the right to a preliminary hearing “unless the examination be waived by the accused with the consent of the State”); see also, e.g.Hafen v. State, 2011 UT App 85, ¶¶ 3–4, 249 P.3d 1006 (per curiam) (“[The defendant] filed his petition asserting that he was deprived of his preliminary hearing. . . . The petition was inconsistent with and [superseded] by [the defendant’s] waiver. [The defendant] was not deprived of any right to a preliminary hearing.” (cleaned up)). Waiving a preliminary hearing may have negative implications, but this reality does not invalidate a qualifying waiver. See State v. Bragg, 2013 UT App 282, ¶ 40, 317 P.3d 452 (“[The defendant] waived his right to a preliminary hearing, [forgoing] one opportunity to explore the exact nature of the charges against him and resolve any confusion about what those charges entailed.”). While Hararah may, in retrospect, have benefitted from taking the opportunity to develop the victim’s testimony at the preliminary hearing, this does not invalidate his waiver. And his regrets do not excuse his failure to preserve this issue. Therefore, the exceptional circumstances doctrine does not apply.

  1. Ineffective Assistance

¶26 Hararah also asserts that Counsel provided ineffective assistance by failing to object to the district court’s comments discussed above and by informing the jury in opening statements that it would not hear that Hararah had punched the victim.

¶27      “To prevail on a claim of ineffective assistance of counsel, [a defendant] must demonstrate that (1) [the defendant’s] counsel’s performance was deficient in that it fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense.” State v. Streeper, 2022 UT App 147, ¶ 34, 523 P.3d 710 (cleaned up), cert. denied, 527 P.3d 1106 (Utah 2023); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). The first prong of this test “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “[T]he defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688.

¶28      The second prong “requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. “Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [a defendant’s] claims under either prong.” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182.

¶29      We can easily dismiss Hararah’s first assertion of ineffective assistance. As discussed above, Hararah did not provide any evidence that he intended to accept a plea deal and that he based his waiver of the right to a preliminary hearing on such a plan.[7] Counsel was aware of Hararah’s feelings toward the choice between pleading or going to trial and stated repeatedly that Hararah was not interested in pleading guilty or accepting a plea bargain. Accordingly, Hararah has not persuaded us that any comments from the district court related to plea negotiations would have affected his plans at all, so Counsel acted reasonably in choosing not to object to such comments. In other words, the district court’s comments bore no impact on Hararah’s actions, so there was no tactical reason for Counsel to act as Hararah retroactively desires. “In evaluating trial counsel’s performance, we give trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them.” State v. Liti, 2015 UT App 186, ¶ 18, 355 P.3d 1078 (cleaned up). Here Counsel acted in line with Hararah’s clear desire to proceed toward trial.

¶30      Additionally, for the same reasons described above, we are convinced that Hararah was not prejudiced by this alleged deficiency in performance. Hararah asserts that “[t]here is a reasonable likelihood that if [he] had been allowed to exercise his right to a preliminary hearing,” his case would have ended differently. But Hararah was able to exercise his right to a preliminary hearing. We have already explained why the district court’s alleged carrot—permitting Hararah the possibility of accepting a plea deal—was no carrot at all based on his express refusal of the State’s “best offer” and his desire to proceed to trial. Hararah’s claim might have some foundation if he had proceeded with a preliminary hearing and the court had, in fact, restricted his ability to negotiate a plea deal or even if he had accepted a plea bargain after waiving the preliminary hearing. But given that he clearly and consistently conveyed his desire to go to trial, that he was offered the “best” plea deal and refused it, and that his conviction by a jury at trial was in no way influenced by the district court’s earlier comments on waiving the preliminary hearing, we are not persuaded that the outcome would have been any different if Counsel had objected. See Strickland, 466 U.S. at 695. Therefore, Hararah cannot show ineffective assistance on this point.

¶31      Hararah’s second allegation of ineffective assistance is also unavailing. Hararah asserts that Counsel performed deficiently by saying in opening statements that the jury would “not hear any testimony about [Hararah] punching [the alleged victim],” when the victim went on to testify that Hararah had, in fact, hit her through a pillow. Hararah argues that Counsel should not have made such a promise without first “lock[ing] in” the victim’s testimony during a preliminary hearing. But, as discussed above, Hararah waived the preliminary hearing of his own free will. And it is clear that neither side was aware the victim would testify that Hararah hit her, because the deputy testified that he did not know of any assault other than Hararah throwing the plant. Accordingly, we do not fault Counsel for making a statement in line with all the known facts, and we conclude that Counsel’s actions are not nearly “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.

¶32      Furthermore, Hararah was not prejudiced by this allegedly deficient performance. Counsel was able to paint the victim as an unreliable witness based on the inconsistencies between her previous accounts of what happened and her trial testimony. And Counsel elicited testimony from the State’s own witness that there were no allegations of punching prior to trial. Accordingly, Hararah was in a strong position to counter the State’s case, and the jury still found him guilty of assault. From this, we see no support for “a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695.

CONCLUSION

¶33       Hararah’s claim that the district court coerced him into waiving his preliminary hearing is not supported by the record, so the exceptional circumstances doctrine does not apply and the court also did not plainly err. Additionally, Hararah’s assertion of ineffective assistance of counsel fails. Therefore, we affirm Hararah’s conviction.

Utah Family Law, LC | divorceutah.com | 801-466-9277

Tags: , , , , , , , , , , , , , , , ,

Why do some lawyers settle for a plea bargain when they know their client is innocent?

Many different reasons, but here’s a good example of one reason: because there are times when being innocent may not result in the jury believing you are, in fact, innocent.

I had a client (some details of the story are changed out of respect for privacy) who caught his wife in bed with their neighbor. He and the neighbor were friends, and so he was welcome to enter his neighbor’s house without knocking. Somehow, this friend/neighbor must not have figured my client would come to the house without knocking on the day the neighbor and my client’s wife were in bed together, asleep. When my client rounded the corner and entered the bedroom, he screamed in anger and pain, “Heather*, you slut!” The neighbor, who’d been drinking, woke up startled and disoriented, thinking there was an intruder in his house and he charged my client trying to kill him (he didn’t know it was his friend). My client was caught off guard and was so scared he soiled his pants and took a swing at the attacking neighbor, breaking his jaw.

My client, who had never been in trouble with the law a day in his life, was charged with aggravated assault. I believed he was innocent. His wife, who witnessed the whole thing, believed he was innocent. Do you believe I could have gotten the jury to believe that a man who caught his wife in bed with another guy broke the guy’s jaw accidentally and/or in self-defense?

I didn’t either. Or more accurately, I didn’t think the odds were good enough to risk it.

Worse, if my client had been found guilty by the jury, he could have gone to prison for at least 5 years. That’s not just five years, but five years away from his wife (who he still loved and who still wanted to be with him) and their 2-year old daughter. And losing a job he loved and that paid well.

The prosecutor offered him a deal to plead to a lesser charge and to get 30 days in jail. It was a bird in the hand is worth two in the bush situation.

I told my client that if I were him, I wouldn’t risk going to prison for at least 5 years if I could plead guilty and serve only 30 days. He could serve the time and then go back to his family and job without skipping much of a beat, compared to 5 terrifying and miserable years in prison.

It wasn’t easy. He has a criminal record now. He’s a felon. He can’t vote or own or use a gun. But he’s a free man who spent 30 days away from his family and job and life instead of 5 years. Not an easy choice to make, but not the hardest to make, either.

This is a perfect example of one situation where I advised my client to take a plea deal.

*not her real name

https://www.quora.com/Why-do-some-lawyers-settle-for-a-plea-bargain-when-they-know-their-client-is-innocent/answer/Eric-Johnson-311

Utah Family Law, LC | divorceutah.com | 801-466-9277

Tags: , , , , , ,
Click to listen highlighted text!