State v. Perkins

554 P.3d 363

2024 UT App 101

STATE of Utah, Appellee,

v.Christopher John PERKINS, Appellant.

No. 20220746-CA

Court of Appeals of Utah.

Filed July 18, 2024

Fifth District Court, St. George Department, The Honorable Jeffrey C. Wilcox, No. 211502451

Nicolas D. Turner and K. Andrew Fitzgerald, Attorneys for Appellant

Sean D. Reyes, Salt Lake City, and Connor Nelson, Attorneys for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judges David N.

Mortensen and Amy J. Oliver concurred.

Opinion

ORME, Judge:

¶1 Christopher John Perkins appeals his convictions for driving under the influence and driving on a suspended license. The charges were based on evidence collected after an encounter between Perkins and a law enforcement officer in a parking lot. Perkins argues his trial counsel (Trial Counsel) provided ineffective assistance by not filing a motion to suppress the evidence. He also asserts the trial court was required to conduct a colloquy about self-representation or to appoint substitute counsel after he expressed his dissatisfaction with Trial Counsel’s performance.

¶2 Because Perkins has not shown that Trial Counsel provided ineffective assistance, he is not entitled to a new trial. And because Perkins did not make a clear and unequivocal request to represent himself or show good cause for substitution of counsel, we discern no reversible error on the part of the trial court.

BACKGROUND¹

[1] ¶3 A woman (Witness) was seated in her vehicle when she observed Perkins park his truck in front of a gas station convenience store and enter the building. According to Witness, Perkins was "staggering" as he walked. She thereafter observed Perkins exit the store carrying a case of beer. Perkins placed the beer in a cooler located in the bed of his truck, but he removed one can and brought it with him into the vehicle. According to Witness, he opened the can, began drinking from it, and drove off.

¶4 Witness called police dispatch and reported what she had seen. At the dispatcher’s request, Witness followed Perkins for approximately half a mile until he turned into a bank parking lot. Witness did not observe any irregularities with Perkins’s driving.

¶5 Dispatch directed an officer with the St. George Police Department (Officer) to the bank parking lot. Because Witness had given a license plate number to dispatch, Officer was provided with Perkins’s driver license information while en route, including a report that Perkins's driving privileges were suspended and, moreover, that he was restricted to operating vehicles with ignition interlock devices.

¶6 Officer made contact with Perkins, who was sitting in the truck with the engine running. As they spoke, Officer observed that Perkins’s speech was slurred. Officer also smelled alcohol and noticed that Perkins’s eyes were bloodshot and watery. Perkins told Officer that he had consumed a six-pack of beer that day, finishing a can approximately fifteen to twenty minutes before Officer’s arrival. Officer then asked Perkins whether the vehicle was equipped with an interlock device, and Perkins confirmed it was not. Officer had Perkins exit his vehicle so he could administer field sobriety tests. Officer ran three tests, and Perkins failed each one. Officer, accordingly, arrested Perkins for suspicion of driving under the influence of alcohol and transported him to the police station.

¶7 After Perkins refused to take a breath or blood test, Officer obtained a search warrant, and another officer drew Perkins’s blood. Toxicology reports showed that Perkins’s blood-alcohol level was almost three times the legal limit. Perkins was charged with one count of driving under the influence, one count of failure to install an interlock device, and one count of driving on a suspended license. The interlock device charge was subsequently dismissed on the State’s motion.

¶8 The matter proceeded to trial. During jury selection, but outside the presence of the prospective jurors, Perkins asked for a continuance, stating,

Good afternoon, Your Honor. As to making a motion or just a suggestion, I would like to postpone these proceedings as to I don’t feel that my counsel has been conducting himself in accordance with the rules of professional conduct or due diligence. I feel that he’s been an ineffective loss of assistance of counsel. Furthermore, I’m going to file a complaint with the office of professional conduct. I haven’t met with [Trial Counsel] in person until today. I’ve barely talked to him over the phone over the last nine months. Plus the loss of exculpatory evidence from testimony due to the memory loss. Also, falsified documents knowing—that you present false documents is a second degree felony and to presenting them to this Court. So that’s all I have, Your Honor.

¶9 The State opposed Perkins’s request to continue the trial. After also hearing from Trial Counsel, the trial court denied Perkins’s request. The court addressed Perkins, stating,

[Y]ou can say what you want, file what you want against [Trial Counsel], but he knows what he’s doing. I’ve seen the work that he’s done in this case and with you. And I would think that State counsel would also say that he has spent time reviewing discovery, discussing this case. You haven’t been left on your own, and he’s ready to go.

Perkins replied, "That’s fine."

¶10 The jury found Perkins guilty of both crimes. After his conviction and sentence were entered, Perkins filed this appeal.

ISSUES AND STANDARDS OF REVIEW

[2] ¶11 Perkins first argues that Trial Counsel provided ineffective assistance by not filing a motion to suppress the evidence gathered as a result of the encounter with Officer. "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." State v. Guerro, 2021 UT App 136, ¶ 25, 502 P.3d 338 (quotation simplified), cert. denied, 525 P.3d 1254 (Utah 2022).

[3–6] ¶12 Perkins also challenges the trial court’s handling of the complaints he made about Trial Counsel’s representation, arguing that the court should have inquired into whether he wanted to represent himself or whether it was necessary to appoint substitute counsel. Whether a defendant’s waiver of the right to counsel was knowing and voluntary presents "a mixed question of law and fact," State v. Pedockie, 2006 UT 28, ¶ 23, 137 P.3d 716, and "[w]e review whether the right to counsel has been properly waived for correctness, but grant the trial court a reasonable measure of discretion when applying the law to the facts," State v. Byington, 936 P.2d 1112, 1115 (Utah Ct. App. 1997). "Whether a trial court should have inquired further into a defendant’s dissatisfaction with counsel is reviewed for an abuse of discretion." State v. Hall, 2013 UT App 4, ¶ 8, 294 P.3d 632, cert. denied, 308 P.3d 536 (Utah 2013).

ANALYSIS

I. Ineffective Assistance of Counsel

[7, 8] ¶13 To prevail on his ineffective assistance of counsel claim, Perkins must establish both that "counsel’s performance was deficient" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "Unless a defendant makes both showings," the claim fails. Id. To demonstrate deficient performance, Perkins "must show that counsel’s representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. To establish prejudice, Perkins "must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.

[9–12] ¶14 The Fourth Amendment to the United States Constitution guarantees individuals the right to be free from "unreasonable searches and seizures." U.S. Const. amend. IV. Perkins argues that Officer violated his Fourth Amendment rights by detaining him in the bank parking lot. When a defendant bases his ineffective assistance claim on his counsel’s failure to raise a Fourth Amendment challenge, he cannot show actual prejudice unless he "prove[s] that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence." Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). We have held that a meritorious claim is one that "would likely have been successful." State v. Beames, 2022 UT App 61, ¶ 13, 511 P.3d 1226 (quotation simplified).² But at the other end of the spectrum, "[a] futile motion necessarily fails both the deficiency and prejudice prongs of the Strickland analysis." State v. Makaya, 2020 UT App 152, ¶ 9, 476 P.3d 1025, cert. denied, 481 P.3d 1039 (Utah 2021).

[13, 14] ¶15 An investigatory detention is not constitutionally infirm if it is supported by "reasonable, articulable suspicion." State v. Anderson, 2013 UT App 272, ¶ 12, 316 P.3d 949 (quotation simplified). "Reasonable suspicion requires an objectively reasonable belief that an individual is engaged in or is about to be engaged in criminal activity." State v. Gurule, 2013 UT 58, ¶ 32, 321 P.3d 1039 (quotation simplified). This belief must be "based on specific, articulable facts drawn from the totality of the circumstances facing the officer at the time." State v. Navarro, 2017 UT App 102, ¶ 17, 400 P.3d 1120 (quotation simplified).

¶16 According to Perkins, Officer’s encounter with him was a level two investigatory detention that was not supported by reasonable articulable suspicion at its inception. See State v. Hansen, 2002 UT 125, ¶ 35, 63 P.3d 650 ("A level two encounter involves an investigative detention that is usually characterized as brief and non-intrusive."). He therefore asserts that the evidence gathered as a result of the detention was suppressible as "fruit of the poisonous tree" and that Trial Counsel should have...