Carrell v. State

536 P.3d 653

John Martin CARRELL, Appellant,

v.STATE of Utah, Appellee.

No. 20210145-CA

Court of Appeals of Utah.

Filed August 24, 2023

Ann M. Taliaferro, Salt Lake City, Attorney for Appellant

Sean D. Reyes, Aaron G. Murphy, and Erin Riley, Salt Lake City, Attorneys for Appellee

Staci A. Visser, Salt Lake City, Attorney for Amicus Curiae Utah Association of Criminal Defense Lawyers

Jennifer Springer, Attorney for Amicus Curiae Rocky Mountain Innocence Center

Debra M. Nelson and Benjamin Miller, Attorneys for Amicus Curiae Utah Indigent Appellate Defense Division

Judge Ryan D. Tenney authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

Opinion

TENNEY, Judge:

¶1 For a period of about five years, John Carrell drove a school bus for children with disabilities. In 2014, Carrell was charged with sexually abusing one of the children who rode his bus, and charges were later added relating to a second child. A jury convicted Carrell on a large number of counts, and those convictions were affirmed on direct appeal.

¶2 Acting pro se, Carrell filed a petition for postconviction relief. This was followed by an amended petition and then a second amended petition. During the pendency of the postconviction case, Carrell twice requested the appointment of counsel. The postconviction court denied both requests.

¶3 After briefing from both sides, the postconviction court granted the State's motion for summary judgment. With the assistance of new counsel, Carrell now appeals that decision. For the reasons set forth below, we affirm.

BACKGROUND

Underlying Criminal Case

¶4 The facts regarding Carrell's criminal convictions are set forth in State v. Carrell , 2018 UT App 21, 414 P.3d 1030, and we need provide only a brief summary here.

¶5 From 2009 through early 2014, Carrell drove a school bus for children with disabilities. Through an information filed in 2014 and an amended information filed in 2015, the State charged Carrell with 33 counts of aggravated sexual abuse of a child. The State alleged that Carrell sexually abused two children who rode his bus (both of whom were five years old at the time), and the State's allegations were at least partially corroborated by video footage taken from safety cameras that were operating inside the school bus.

¶6 Carrell retained private counsel to represent him. At the close of trial, the jury convicted Carrell on 19 counts—13 relating to the first victim and 6 relating to the second victim. Carrell appealed, and he was represented on appeal by the same attorney that Carrell had retained to represent him at trial. In February 2018, this court affirmed Carrell's convictions, and the Utah Supreme Court later denied Carrell's request for a writ of certiorari.

Postconviction Proceedings

¶7 In July 2019, Carrell filed a timely pro se petition for relief under the Post-Conviction Remedies Act (the PCRA), and he filed an amended petition in September 2019 (the First Amended Petition). In the First Amended Petition, Carrell raised a number of ineffective assistance claims that fell into five broad groups—namely, that trial counsel (1) failed to adequately investigate the case, (2) failed to provide him with discovery, communicate with him, or prepare him for trial, (3) failed to call an expert witness, (4) failed to make certain objections, impeach certain witnesses, and make various arguments at trial, and (5) operated under an actual conflict of interest based on the deterioration of the attorney-client relationship.

¶8 The State entered its appearance in November 2019, and in January 2020, it filed a motion for summary judgment. The postconviction court then granted Carrell's request for an extension of time to respond to the State's motion, giving him until April 2020 to respond.

¶9 On April 9, 2020, Carrell filed a motion asking the court to appoint counsel. Carrell claimed that he could no longer afford to retain private counsel, and he then argued that he "was illegally convicted due to Ineffective Assistance of Counsel" and that he "should have the right to effective assistance of counsel due to the legal complexity of this issue." In a written response to this request, the State said that while it took "no position on whether the [c]ourt should appoint counsel," it noted that "although the PCRA permits the appointment of pro bono counsel for petitioners," "there is no Sixth Amendment right to effective assistance of counsel in a PCRA proceeding." Still purporting to take no position on Carrell's request for counsel, the State also noted that Carrell had already drafted multiple petitions for postconviction relief "and numerous other motions, all of them exhibiting an understanding of the law."

¶10 The court denied Carrell's request for the appointment of counsel. It noted that under the PCRA provision governing the appointment of counsel, it was required to consider whether the petition "contains factual allegations that will require an evidentiary hearing" and "whether the petition involves complicated issues of law or fact that require the assistance of counsel for proper adjudication." See Utah Code § 78B-9-109(2) (2020).

The court held that it was "satisfied, based upon the factual allegations in the petition, that an evidentiary hearing [was] not ... required," explaining that the "events of the trial itself are a matter of record requiring no evidentiary hearing" and that as "to events that allegedly took place outside" of court, "no evidentiary hearing [was] necessary" for it "to apply the requisite, straight-forward Strickland analysis to trial counsel's performance." The court also concluded that "the issues presented in the petition are not complex and [Carrell] appears to be fully capable of presenting his claims in a clear and articulate manner."

¶11 On the same day that he filed his motion for the appointment of counsel, Carrell also filed a motion for leave to file a second amended petition, and this motion was accompanied by the proposed petition (the Second Amended Petition). The Second Amended Petition included all the claims that Carrell had raised in the First Amended Petition, and it now added five new claims. One of the new claims was that counsel was ineffective for failing to investigate the relationship between the first victim's family and Bikers Against Child Abuse (BACA), suggesting that such investigation might have provided some grounds to impeach the first victim at trial. The remaining four new claims alleged that Carrell's prior counsel was ineffective for not asking for various jury instructions at trial, or, instead, for not raising these jury instruction issues on direct appeal (the Jury Instruction Claims).

¶12 Over the State's opposition, the court partially granted Carrell's request to file the Second Amended Petition. The court held that one of Carrell's Jury Instruction Claims—namely, a claim that was based on counsel's failure to request a unanimity instruction—was "futile" because the jury had been "polled when it entered its verdict" and "[e]ach jury member affirmed that he or she concurred in the verdict." Because of this, the court would not allow Carrell to add this particular claim. But the court did allow Carrell to file the Second Amended Petition with respect to the remaining added claims.¹

¶13 In October 2020, the State filed a motion for summary judgment on the Second Amended Petition. There, the State argued that the Jury Instruction Claims (at least those that had survived the court's futility review) were "untimely and must be denied." The State laid out its view that Carrell was required to file his postconviction petition by October 5, 2019. The State argued that because the Second Amended Petition was filed on April 9, 2020, the Jury Instruction Claims were untimely, and it then argued that they did not qualify under the relation-back doctrine either. With respect to the remaining claims (the Non-Instruction Claims), the State asked the court to conclude that Carrell had not shown that his counsel had performed deficiently or that he was prejudiced by the alleged deficient performance.

¶14 After the State filed this second motion for summary judgment, Carrell filed another motion asking the court to appoint counsel. Carrell argued that the "issues which were allowed to be added" to his Second Amended Petition "and the one issue which was denied are extremely, legally complex to [him]." He argued that he had "exhausted every resource available to him" and that "[d]ue to the lack, non-existence or denial of legal training, access to case law, legal research materials, a law library or legal counsel," it was "virtually impossible for [him] to properly adjudicate his petition." He further argued that he was prejudiced because the State had "nearly unlimited resources in legal training, law trained associates to collaborate with, case law resources, law libraries, access to the internet and support staff" and that it was "certainly not a level playing field."

¶15 In a response to this request, the State again claimed that it was taking "no official position on whether the [c]ourt should appoint counsel." But the State noted that "Carrell has already drafted most of his responses to the summary judgment motion because nearly all of his claims remain identical from the prior petition." The State also pointed out that the "only difference is the four new claims, which Mr. Carrell himself successfully argued for in his motion to amend his petition, which the State opposed," and it then asserted that "[a]bsent this matter proceeding to an evidentiary hearing[,] there is little counsel can do for Mr. Carrell at this point." Finally, the State informed the court that it would provide Carrell with printed copies of the legal authorities it had cited in its motion for summary judgment in an attempt to address Carrell's concern "about the volume of cases and statutes cited in the State's motion for summary judgment."

¶16 The court...