Filed: Dec. 06, 2012
Latest Update: Dec. 06, 2012
Summary: MEMORANDUM DECISION ROTH, Judge: 1 Defendant Luis Alberto Jimenez appeals his conviction for aggravated sexual abuse of a child and forcible sexual abuse, challenging the trial court's posttrial determination that Jimenez's trial counsel was not ineffective. We affirm. 2 To prevail on an ineffective assistance of counsel claim, "a defendant must first demonstrate that counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgment." St
Summary: MEMORANDUM DECISION ROTH, Judge: 1 Defendant Luis Alberto Jimenez appeals his conviction for aggravated sexual abuse of a child and forcible sexual abuse, challenging the trial court's posttrial determination that Jimenez's trial counsel was not ineffective. We affirm. 2 To prevail on an ineffective assistance of counsel claim, "a defendant must first demonstrate that counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgment." Sta..
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MEMORANDUM DECISION
ROTH, Judge:
¶ 1 Defendant Luis Alberto Jimenez appeals his conviction for aggravated sexual abuse of a child and forcible sexual abuse, challenging the trial court's posttrial determination that Jimenez's trial counsel was not ineffective. We affirm.
¶ 2 To prevail on an ineffective assistance of counsel claim, "a defendant must first demonstrate that counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgment." State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). "Second, the defendant must show that counsel's deficient performance was prejudicial — i.e., that it affected the outcome of the case." Id. (citing Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052). Here, the trial court concluded that Jimenez had not received ineffective assistance of counsel because "there ha[d] been no showing for the [second] prong ... that there would have been a different outcome" but for his trial counsel's alleged ineffective assistance.1 Jimenez challenges the court's decision, arguing that "[t]he ... analysis must be taken in order," that is, that the trial court was required to consider the first prong of the ineffective assistance analysis before reaching the second prong. This position, however, is contrary to applicable case law, which makes it clear that if "it is `easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,' we will do so without analyzing whether counsel's performance was professionally unreasonable." Archuleta v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052). Accordingly, we reject Jimenez's argument that the trial court was required to determine whether his trial counsel had rendered deficient performance in the course of his representation before considering whether Jimenez had been prejudiced by any such deficiencies.2
¶ 3 Even if we were to accept Jimenez's invitation to conclude that his trial counsel rendered deficient performance, however, Jimenez cannot prevail on appeal because he fails to challenge the trial court's decision that his counsel's performance did not cause him prejudice. See Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d 903 ("[A]n appellant must allege the lower court committed an error that the appellate court should correct.... If an appellant fails to allege specific errors of the lower court, the appellate court will not seek out errors in the lower court's decision." (citation omitted)). And, as we have discussed, to prevail on a claim of ineffective assistance, Jimenez must prove both deficient performance and prejudice. See Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). Thus, the trial court's unchallenged conclusion that Jimenez was not prejudiced by counsel's performance, deficient or not, is fatal to Jimenez's ineffective assistance of counsel claim.
¶ 4 Finally, even if we elected to conduct a more substantive review of Jimenez's ineffective assistance of counsel claim, we would be unable to do so because Jimenez has failed to provide a transcript of the trial. See id. ¶¶ 16-17 ("[W]here on direct appeal, [the] defendant raises a claim that trial counsel was ineffective ..., [the] defendant bears the burden of assuring the record is adequate.... Where the record appears inadequate in any fashion, ambiguities or deficiencies resulting therefrom simply will be construed in favor of a finding that counsel performed effectively."). Jimenez's ineffective assistance claim is based on his assertion that his trial counsel was inadequately prepared for trial because at trial he "relied entirely" on materials prepared by a non-attorney. According to Jimenez, his trial counsel "essentially read [these notes] verbatim" and those materials "formed the major strategy for the [d]efense." However, without a transcript of the trial, we cannot determine the extent to which Jimenez's trial counsel actually relied on these materials, if at all; whether doing so was a violation of reasonable standards of effective representation; or whether the result of the trial was negatively affected by any deficiency in counsel's performance.3 See id. ¶ 17 (explaining that the presumption that any irregularities in the record "result in an assumption of regularity on appeal" is "consistent with the fundamental polic[y]" that there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" (citation and internal quotation marks omitted)).
¶ 5 For the reasons stated, we affirm the trial court's conclusion that Jimenez failed to demonstrate that he received ineffective assistance of trial counsel.
¶ 6 Affirmed.
¶ 7 WE CONCUR: JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN, Judges.