State v. Gunter

304 P.3d 866

736 Utah Adv. Rep. 7

STATE of Utah, Plaintiff and Appellee,

v.David Alexander GUNTER, Defendant and Appellant.

No. 20110728–CA.

Court of Appeals of Utah.

June 6, 2013.

Gary G. Kuhlmann and Nicolas D. Turner, Attorneys for Appellant.

John E. Swallow and Andrew F. Peterson, Attorneys for Appellee.

Judge CAROLYN B. McHUGH authored this Opinion, in which Judges WILLIAM A. THORNE JR. and J. FREDERIC VOROS JR. concurred.

Opinion

McHUGH, Judge:

¶ 1 David Alexander Gunter appeals from convictions for aggravated sexual abuse of a child, seeUtah Code Ann. § 76–5–404.1(4)–(5) (LexisNexis 2012),¹ and four counts of lewdness involving a child, see id. § 76–9–702.5. We affirm.

BACKGROUND ²

¶ 2 Gunter was convicted after he inappropriately touched and repeatedly exposed himself to a child (Child). After Child disclosed the abuse to the authorities, police investigators arranged a recorded telephone call between Child and Gunter. During that conversation, Child confronted Gunter about the incidents. Gunter initially denied some of Child's accusations, but later indicated that the responsibility is “exactly 50/50 here” without identifying the specific conduct at issue. As the taped conversation continued, Gunter admitted, “[B]ecause I'm older, I'm taking responsibility,” “I totally take the blame,” “I'm the one who should have totally put an end to it,” “I'm more responsible ... I should carry more guilt than you,” and “I swear on my life that none of this will ever happen again.”

¶ 3 Gunter was charged with three counts of sexual abuse of a child and four counts of lewdness involving a child. The sexual abuse charges were later amended to aggravated sexual abuse of a child due to Gunter being in a position of special trust. The trial court appointed attorney Aric Cramer to represent Gunter. Cramer conducted several rounds of discovery, issued subpoenas, and obtained court-ordered funding to pay for a private investigator.

¶ 4 The trial court continued a preliminary hearing originally scheduled for January 23, 2009, to February 6, 2009, based on the State's motions indicating its witnesses were unavailable to testify on the original date. Thereafter, the February 6 hearing was continued for reasons that are not apparent from the record. Cramer did not object to either continuance and used the additional time to conduct discovery.

¶ 5 Subsequently, Cramer withdrew as counsel and was replaced by substitute counsel who represented Gunter at a March 10, 2009 preliminary hearing. At the conclusion of that hearing, the magistrate dismissed one of the three counts of aggravated sexual abuse of a child but found probable cause to bind Gunter over on the remaining counts.³ Substitute counsel then successfully moved for a reduction in Gunter's bail, which allowed Gunter to post a bond. At the next review hearing, Gunter failed to appear. The trial court ordered the bond forfeited and issued a $100,000 cash-only warrant for Gunter's arrest. Gunter was arrested at his home in Hurricane, Utah. At a new review hearing on July 21, 2010, the trial court again allowed Gunter to be released on bond.

¶ 6 Around that same time, the trial court appointed second substitute counsel for Gunter as a result of first substitute counsel's ill health. Several months before trial, Gunter's defense was again reassigned with Cramer reappearing as Gunter's counsel. Cramer immediately renewed his discovery efforts. Approximately two weeks before trial, Gunter replaced Cramer with private counsel, Nicholas Chamberlain. The substitution of counsel filed by Chamberlain contains no indication that his appearance was for a limited purpose.

¶ 7 Gunter again failed to appear for a review hearing one week before trial. That same day, Chamberlain filed a motion to suppress the recorded telephone conversation between Gunter and Child. After jury selection was completed on the first day scheduled for trial, the trial court held an evidentiary hearing on the motion to suppress. The trial court denied the motion and the trial proceeded the following day.

¶ 8 Gunter also did not appear for trial. The trial court concluded that Gunter “had voluntarily absented himself” and proceeded with the trial in Gunter's absence. In doing so, the trial court admonished the jury not to make any negative inferences based on Gunter's absence. Chamberlain represented Gunter during the suppression hearing and at every stage of trial, without giving the trial court any indication that he was appearing for a limited purpose. Despite Gunter's absence, Chamberlain never asked for a continuance, informed the trial court whether he knew where Gunter was, objected to proceeding with trial in absentia, or otherwise addressed Gunter's absence on the record. Chamberlain did, however, successfully move for a directed verdict on one count of aggravated sexual abuse of a child at the close of the State's case-in-chief.

¶ 9 The jury convicted Gunter of the one remaining count of aggravated sexual abuse of a child and on all four counts of lewdness involving a child. The trial court issued a $200,000 cash-only warrant for Gunter's arrest and ordered that his second bond be forfeited. Chamberlain then withdrew as counsel. Several months later, Gunter was arrested in Mexico and extradited to Utah. At that time, the trial court appointed posttrial counsel to represent Gunter.

¶ 10 Posttrial counsel filed a motion for a new trial alleging that the trial court conducted an inadequate inquiry into the voluntariness of Gunter's absence from trial, that the trial court could not have found Gunter voluntarily absent if it had known all the facts, and that Chamberlain was ineffective at trial due to the lack of preparation time and his inexperience. The motion for a new trial included an affidavit from Gunter in which he claims that he hired Chamberlain on a limited engagement to pursue only the suppression motion. Gunter's affidavit further indicates that he was stranded in Laughlin, Nevada during trial, that he had informed Chamberlain of that fact the day before trial, and that he spoke with Chamberlain at least six times during the trial proceedings.

¶ 11 On August 10, 2011, the trial court heard arguments on Gunter's motion for a new trial prior to sentencing. Gunter argued that his absence was not voluntary because he was stranded in Nevada and that Chamberlain ineffectively failed to provide that information to the trial court. Gunter also claimed that the trial court should have sua sponte reappointed Cramer because he had “prepared a defense” for trial and had effectively used the services of the private investigator, while Chamberlain was obviously unprepared. In response, the State argued that there was no evidence beyond Gunter's own statements that he was actually stranded in Nevada during trial and that, because Gunter had chosen to replace Cramer with Chamberlain two weeks before trial, he had caused any resulting prejudice. After argument, the trial court denied the motion for a new trial, indicating only that “[t]he motion for a new trial does not have sufficient legal grounds to support it.” The trial court then proceeded with sentencing.

¶ 12 Gunter's allocution included a statement to the effect that he was stranded in Nevada during trial. The trial court replied that Gunter had “voluntarily absented [him]self from the trial of this matter” and specifically indicated that Gunter lacked credibility “[i]n view of [his] continuing adherence to a position that bears no relationship to the truth.” The trial court then sentenced Gunter to an indeterminate prison term of fifteen years to life on the aggravated sexual abuse of a child conviction and concurrent one year terms on the lewdness convictions. Gunter timely appealed. He then filed a motion to this court for a remand under rule 23B of the Utah Rules of Appellate Procedure. We ordered that all briefing on the rule 23B motion should proceed contemporaneously with plenary briefing. The State subsequently moved to strike Gunter's brief, arguing that it relied almost exclusively on non-record evidence. We declined to strike Gunter's brief.⁴

ISSUES AND STANDARDS OF REVIEW

¶ 13 Gunter requests that we remand this case to the trial court under rule 23B of the Utah Rules of Appellate Procedure to create a record regarding his ineffective assistance of counsel claim. See generallyUtah R.App. P. 23B(a) ( “A party to an appeal in a criminal case may move the court to remand the case to the trial court for entry of findings of fact, necessary for the appellate court's determination of a claim of ineffective assistance of counsel. The motion shall be available only upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective.”).

¶ 14 Next, Gunter claims that the trial court erred in holding Gunter's trial in absentia because the trial court did not properly inquire into whether Gunter was voluntarilyabsent. Whether a trial court properly tried a defendant in absentia is a mixed question of law and fact. See State v. Pando, 2005 UT App 384, ¶ 13, 122 P.3d 672. “The initial question—whether ‘the trial court's inquiry regarding the voluntariness of [a defendant's] absence was properly conducted’—is a question of law reviewed for correctness.” Id. (alteration in original) (quoting State v. Wanosik (Wanosik I), 2001 UT App 241, ¶ 8, 31 P.3d 615,aff'd,2003 UT 46, 79 P.3d 937). “If the first question is answered in the affirmative, we next consider whether [the d]efendant was voluntarily absent, a question of fact.” Id. (citing State v. Wanosik (Wanosik II), 2003 UT 46, ¶ 15, 79 P.3d 937 (noting that “the question of voluntariness is highly fact-dependent”)).

¶ 15 Gunter further alleges that he received ineffective assistance of counsel because his pretrial counsel, Cramer, failed (1) to effectively communicate with Gunter in...