State v. Gunter

2013 UT App 140
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
DAVID ALEXANDER GUNTER,
Defendant and Appellant.

Opinion
No. 20110728‐CA
Filed June 6, 2013

Fifth District, St. George Department
The Honorable James L. Shumate
No. 081502053

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.

McHUGH, Judge:

¶1 David Alexander Gunter appeals from convictions for
aggravated sexual abuse of a child, see Utah 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.

1. Where recent amendments to the Utah Code do not affect our
analysis, we cite the most recent version of the code for the
convenience of the reader.
 State v. Gunter

BACKGROUND2

¶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.

2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict.” Smith v. Fairfax Realty, Inc., 2003 UT
41, ¶ 3, 82 P.3d 1064 (citation and internal quotation marks
omitted).

20110728‐CA 2 2013 UT App 140
 State v. Gunter

¶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.

3. On the first day of trial, the charges were again amended to
eliminate one count of aggravated sexual abuse of a child in
conformity with the magistrate’s dismissal of it at the preliminary
hearing.

20110728‐CA 3 2013 UT App 140
 State v. Gunter

¶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.

20110728‐CA 4 2013 UT App 140
 State v. Gunter

¶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

4. Although we exercised our discretion to accept Gunter’s brief,
the State is correct that the brief cites non‐record facts contained in
Gunter’s motion for a rule 23B remand and supporting affidavits.
(continued...)

20110728‐CA 5 2013 UT App 140
 State v. Gunter

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
generally Utah 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 voluntarily absent. 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, affʹd, 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

4. (...continued)
While our ruling allowed briefing on the rule 23B motion to
proceed contemporaneously with plenary briefing, we did not
allow Gunter to rely on non‐record evidence in support of his
substantive claims. See State v. Bredehoft, 966 P.2d 285, 290 (Utah Ct.
App. 1998) (“We consider affidavits supporting [r]ule 23B motions
solely to determine the propriety of remanding ineffective
assistance of counsel claims for evidentiary hearings.”); see also Low
v. Bonacci, 788 P.2d 512, 513 (Utah 1990) (“[W]e do not consider
new evidence on appeal.”).

20110728‐CA 6 2013 UT App 140
 State v. Gunter

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 preparation for trial
and (2) to obtain Gunter’s consent to a continuance of the
preliminary hearing. Gunter also claims that he received ineffective
assistance of counsel because his trial counsel, Chamberlain, failed
(1) to inform the trial court that Gunter had contacted counsel
regarding circumstances surrounding his absence from the trial
proceedings and (2) to provide effective assistance where he was
hired for the limited purpose of representing Gunter on a
suppression issue and not in the trial proceedings. “An ineffective
assistance of counsel claim raised for the first time on appeal
presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d
162.

ANALYSIS

I. Rule 23B Motion for Remand

¶16 Gunter requests that we remand this case to the trial court
to create a record regarding his claim that he received ineffective
assistance of counsel from his pretrial counsel, Cramer, and his trial
counsel, Chamberlain. “The purpose of [r]ule 23B is for appellate
counsel to put on evidence he or she now has, not to amass
evidence that might help prove an ineffectiveness of counsel
claim.” State v. Johnston, 2000 UT App 290, ¶ 7, 13 P.3d 175 (per
curiam). “The rule was adopted to provide a ‘procedural solution
to the dilemma created by an inadequate record of trial counsel’s
ineffectiveness.’” Id. (quoting State v. Litherland, 2000 UT 76, ¶ 13,
12 P.3d 92). A defendant must meet four basic requirements to
obtain a rule 23B remand. “First, the motion must be supported by
affidavits setting forth ‘facts not fully appearing in the record on
appeal that show the claimed deficient performance of the

20110728‐CA 7 2013 UT App 140
 State v. Gunter

attorney.’” Id. ¶ 8 (quoting Utah R. App. P. 23B(b)). “Second, the
facts alleged in support of a [r]ule 23B motion may not be
speculative.” Id. ¶ 10. “Third, the allegations must show deficient
performance. In other words, the nonspeculative facts must focus
on why counsel’s performance was deficient.” Id. ¶ 12. “Finally, the
affidavits supporting the motion must ‘also allege facts that show
the claimed prejudice suffered by the appellant as a result of the
claimed deficient performance.’” Id. ¶ 13 (quoting Utah R. App. P.
23B(b)). “These facts must demonstrate prejudice, i.e., that the
result would have been different had counsel’s performance not
been deficient.” Id.

A. Remand to Establish Cramer’s Ineffectiveness is Unnecessary.

¶17 Gunter first seeks a remand to develop the evidentiary
record to support his allegation that Cramer failed to exercise
reasonable professional judgment when he stipulated to
continuances of the preliminary hearing without obtaining
Gunter’s consent.5 In support, he relies on rule 7(h)(2) of the Utah
Rules of Criminal Procedure. See Utah R. Crim. P. 7(h)(2) (“If the
defendant does not waive a preliminary examination, the
magistrate shall schedule the preliminary examination . . . [to] be
held within a reasonable time, but not later than ten days if the
defendant is in custody for the offense charged . . . .”).

¶18 Even if Gunter is correct that Cramer never discussed the
continuances with him, he cannot establish that Cramer’s conduct
fell below an acceptable level of performance. First, Gunter fails to
cite any authority that would require defense counsel to obtain the

5. Gunter also initially alleged that Cramer failed to communicate
effectively with him or to prepare adequately for trial, but he
conceded in his reply brief that no remand is necessary because the
record contains sufficient facts to bring a claim of ineffective
assistance of counsel on those grounds. Accordingly, we address
those arguments in our substantive discussion of Gunter’s
ineffective assistance of counsel claim. See infra ¶¶ 32–33.

20110728‐CA 8 2013 UT App 140
 State v. Gunter

consent of a defendant to a continuance of the preliminary hearing.
Cf. Taylor v. Illinois, 484 U.S. 400, 417–18 (1988) (“Although there are
basic rights that the attorney cannot waive without the fully
informed and publicly acknowledged consent of the client, the
lawyer has—and must have—full authority to manage the conduct
of the trial. The adversary process could not function effectively if
every tactical decision required client approval.” (footnote
omitted)); Utah Code Jud. Admin. 14‐301 (“If other counsel
requires a scheduling change, lawyers shall cooperate in making
any reasonable adjustments.”). Second, at least one of the
continuances was due to the unavailability of the State’s witnesses
on the scheduled dates, which constituted good cause for the
continuances under rule 7(h)(2). See Utah R. Crim. P. 7(h)(2)
(“These time periods may be extended by the magistrate for good
cause shown.”); State v. Rogers, 2006 UT 85, ¶¶ 19–21, 151 P.3d 171
(determining that good cause includes efforts by the prosecution to
secure the presence of critical witnesses). Thus, even assuming that
Cramer stipulated to the State’s requests for continuance without
Gunter’s consent, Gunter cannot establish deficient performance.
See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise
futile objections does not constitute ineffective assistance of
counsel.”).

¶19 Additionally, Gunter has failed to explain how he was
prejudiced by Cramer’s decisions. To the contrary, Gunter
concedes that part of the reason Cramer did not object to the State’s
motion for a continuance was so that he could use the additional
time to obtain discovery from the State. Under these circumstances,
Gunter has failed to convince us that a remand under rule 23B is
necessary to establish Cramer’s ineffectiveness.

B. Remand to Establish Chamberlain’s Ineffectiveness is
Unnecessary.

¶20 Gunter also contends that a remand is necessary to establish
that Chamberlain ineffectively failed to notify the trial court that
Gunter was involuntarily absent from trial and similarly failed to

20110728‐CA 9 2013 UT App 140
 State v. Gunter

seek a continuance so that Gunter could be present at trial. He also
argues that a remand will establish that Chamberlain was
unprepared and unauthorized to represent him at trial. According
to the State, remand is unnecessary because most of Gunter’s
allegations are contained in his motion for a new trial, which is part
of the record on appeal.

¶21 Gunter’s posttrial counsel filed a motion for a new trial
advancing the same arguments Gunter now argues on appeal.
Attached to the new trial motion is an affidavit from Gunter,
claiming that Chamberlain had been hired only to pursue the
suppression motion, that Gunter had informed Chamberlain that
he was stranded in Laughlin, Nevada during trial, and that he was
in contact with Chamberlain throughout trial. The trial court
rejected these arguments, determining that Gunter lacked
credibility. In support of his motion for a rule 23B remand, Gunter
attaches a second affidavit from himself and an affidavit from
Chamberlain. Most of the facts alleged in these affidavits are
cumulative of facts Gunter alleged in his motion for a new trial and
are therefore not supportive of a rule 23B remand. See State v.
Johnston, 2000 UT App 290, ¶ 8, 13 P.3d 175 (“[Rule 23B] is a means
to supplement the record with facts now known, even though not
previously elicited in the record.”).

¶22 However, Gunter’s rule 23B affidavit further indicates,
“I did not [meet] with . . . Chamberlain in preparation for trial, nor
did I discuss matters such as witnesses or other evidence which
may be brought forward in my defense as I had previously done
with Cramer.” Gunter’s affidavit also states, “I believed that these
witnesses would either contradict [Child’s] accusations, or provide
the trial court with additional information and evidence proving
my innocence.” These statements fail to establish prejudice because
Gunter never identifies the witnesses that his counsel allegedly
failed to investigate, what those witnesses would have said, or how
that testimony would have affected the outcome of the trial. This
court has previously instructed that a “defendant must specifically
identify uncalled witnesses and identify specific facts of their

20110728‐CA 10 2013 UT App 140
 State v. Gunter

testimony that might have helped his case” in justifying a rule 23B
remand. See id. ¶ 10 (citation and internal quotation marks
omitted). Here, Gunter states that he produced “a list of witnesses
[he] wanted to be interviewed and subpoenaed for trial,” without
providing the identity of those witnesses or describing the specific
testimony they would have given in support of his defense. Thus,
Gunter has failed to allege “facts not fully appearing in the record”
that would establish prejudicially deficient performance. See Utah
R. App. P. 23B(b). Accordingly, we deny his request for a rule 23B
remand based on his second affidavit. See State v. Garrett, 849 P.2d
578, 581 (Utah Ct. App. 1993) (“Given [rule 23B’s] clear emphasis
on specific factual allegations, it would be improper to remand a
claim under rule 23B for a fishing expedition.”).

¶23 In addition, Gunter provides an affidavit from Chamberlain
in support of his motion for a rule 23B remand. In that affidavit,
Chamberlain admits that Gunter had informed him that Gunter
“was out‐of‐state, and that due to some difficulty with procuring
transportation back in‐state, [Gunter] was concerned that he may
not be able to attend the trial proceedings.” Chamberlain also
indicates that he “remained in telephonic contact with [Gunter]
throughout the trial proceedings” and that he “did not alert the
trial court to the fact that [Gunter] had contacted [him]
telephonically, nor did [he] alert the trial court to the circumstances
surrounding [Gunter’s] absence or seek a continuance based upon
the same.” Although Chamberlain also indicates that if Gunter had
been present he would have called him as a witness, he does not
elaborate concerning the content of the testimony he expected to
elicit from Gunter in his defense. See Johnston, 2000 UT App 290,
¶ 10 (requiring the defendant to identify specific facts that an
uncalled witness would have provided in support of the defense).

¶24 With respect to Chamberlain’s alleged failure to disabuse
the trial court of the notion that Gunter was voluntarily absent, his
affidavit indicates that he was in contact with Gunter throughout
the trial court proceedings but that Chamberlain did not share the
circumstances of Gunter’s absence with the trial court. This

20110728‐CA 11 2013 UT App 140
 State v. Gunter

information is cumulative of Gunter’s new trial affidavit. And even
if Chamberlain’s affidavit would have convinced the trial court that
Gunter was credible when he reported that he was in contact with
his trial counsel, it does not establish that Gunter was involuntarily
absent. Gunter has pointed us to no evidence, including
Chamberlain’s affidavit, that explains why he was out of state
shortly before his trial or how he managed to travel to Mexico
immediately after a verdict was rendered against him but was
unable to return to Utah to participate in his defense. Accordingly,
Gunter has not convinced us that a remand under rule 23B is
appropriate.

II. Trial In Absentia

A. The Trial Court Inadequately Inquired Into Whether Gunter was
Voluntarily Absent.

¶25 Gunter contends that the trial court committed reversible
error by proceeding with trial in absentia because it failed to
conduct an adequate inquiry into whether his absence was
voluntary. “‘[D]efendants have the right to be present at all stages
of the criminal proceedings against them and . . . it is the burden of
the prosecution to show that an absent defendant has knowingly
and voluntarily waived that right’ before trying him or her in
absentia.” State v. Pando, 2005 UT App 384, ¶ 16, 122 P.3d 672
(alteration and omission in original) (quoting Wanosik II, 2003 UT
46, ¶ 12, 79 P.3d 937 (addressing sentencing in absentia))
(addressing failure to appear for trial); see also Utah Const. art. I,
§ 12 (“In criminal prosecutions the accused shall have the right to
appear and defend in person and by counsel . . . .”); Tennessee v.
Lane, 541 U.S. 509, 523 (2004) (deriving a criminal defendant’s right
to be present at critical stages of his or her trial from the Due
Process Clause of the Fourteenth Amendment and the incorporated
Confrontation Clause of the Sixth Amendment). “In light of the
State’s burden, ‘absent any direct evidence’ explaining the
defendant’s whereabouts, the trial court will ordinarily postpone
the proceedings ‘to permit both the prosecution and defense

20110728‐CA 12 2013 UT App 140
 State v. Gunter

counsel to seek additional information.’” Pando, 2005 UT App 384,
¶ 16 (quoting Wanosik II, 2003 UT 46, ¶ 12). Where there is no
explanation for the defendant’s absence, resolving the question of
voluntariness “requires some form of inquiry by the trial court.”
Wanosik II, 2003 UT 46, ¶ 15.

¶26 The State concedes that “no direct inquiry by the trial court
appears in the record.”6 Thus, the record reflects that the trial court
erred by failing to make an adequate inquiry into whether Gunter
was voluntarily absent before proceeding with trial in absentia. See
State v. Houtz, 714 P.2d 677, 678 (Utah 1986) (per curiam)
(“[V]oluntariness may not be presumed by the trial court.”); see also
Wanosik I, 2001 UT App 241, ¶ 25, 31 P.3d 615 (“In this case, the
State made no preliminary showing of voluntariness whatever, and
the trial court erred by making inadequate inquiry into [the
defendant’s] ability to appear . . . before deciding that he had
waived his right to be present . . . .” (citation and internal quotation
marks omitted)), affʹd, 2003 UT 46, 79 P.3d 937.

6. After deciding to postpone taking evidence until the day after
jury selection, this discussion ensued:
THE COURT: . . . that will give [Chamberlain] a
chance to talk with [his] client and see what he wants
to do.
[THE STATE]: If you can find him.
THE COURT: See how to handle it. I don’t even want
to know. That’s [Chamberlain’s] problem. I’m not even
going to worry about it.
[CHAMBERLAIN]: Yes, yes.
....
(Recess taken)
....
THE COURT: Thank you, ladies and gentlemen.
We’re back on the record in State v. [Gunter]. Mr.
Gunter has voluntarily absented himself in these
proceedings.
(Emphasis added.)

20110728‐CA 13 2013 UT App 140
 State v. Gunter

B. Any Error was Harmless.

¶27 “A trial court’s error in failing to conduct an adequate
inquiry into whether a defendant’s absence was voluntary does not
merit reversal, however, unless the defendant was prejudiced by
the lack of adequate inquiry.” Wanosik I, 2001 UT App 241, ¶ 26;7
see also State v. Anderson, 929 P.2d 1107, 1111 (Utah 1996) (“It stands
to reason that a defendant cannot demand repetition of a trial . . .
in which he suffered no unfairness.”). Gunter argues that he was
prejudiced by the proceedings in absentia because he “was
represented by an attorney who was neither authorized, nor
prepared, to represent” him and because he was “denied his right
to be present at, and participate in, the trial proceedings.”

¶28 With respect to Gunter’s inability to participate in the
proceedings, the State argues that any error in the trial court’s
inquiry or deficiency in Chamberlain’s failure to seek a continuance
was harmless because the trial court made a posttrial finding that
Gunter’s absence was voluntary. Gunter’s motion for a new trial
provided additional evidence, including Gunter’s affidavit, in
support of his argument that he was involuntarily stranded in

7. In Wanosik I, 2001 UT App 241, 31 P.3d 615, aff’d, 2003 UT 46, 79
P.3d 937, this court applied a simple harmlessness analysis in
determining that the trial court’s failure to adequately inquire into
the defendant’s ability to appear for sentencing was harmless. Id.
¶¶ 25–26. However, in Chapman v. California, 386 U.S. 18 (1967), the
United States Supreme Court applied a higher standard when
determining whether a trial court’s constitutional error could be
considered harmless, noting that “before a federal constitutional
error can be held harmless, the court must be able to declare a
belief that it was harmless beyond a reasonable doubt.” Id. at 24
(emphasis added). Although neither party briefed this higher
standard on appeal, our acceptance of the trial court’s posttrial
finding that Gunter had voluntarily absented himself, see infra ¶ 29,
establishes that the trial court’s error here was harmless under
either standard.

20110728‐CA 14 2013 UT App 140
 State v. Gunter

Nevada during trial. After considering that evidence and
argument, the trial court expressly found that Gunter had
voluntarily failed to appear at trial. In doing so, the trial court
determined that Gunter lacked credibility. Other record evidence
supporting the trial court’s determination of voluntariness includes
that Gunter failed to appear at two pretrial review hearings,
resulting in the forfeiture of his bond and a warrant being issued
for his arrest, and that Gunter fled to Mexico after trial and had to
be extradited to Utah. In addition, Gunter admitted that “he could
have made more of an effort to contact the [trial c]ourt [regarding
being stranded] prior to his case going to trial.” Indeed, the only
record evidence supporting Gunter’s argument that he was
involuntarily absent from trial was his own affidavit attached to the
new trial motion, which contained no independent, corroborating
evidence suggesting that Gunter was in fact stranded in Nevada or
explaining why he was in Nevada in the first place.

¶29 Despite his reliance on the new trial proceedings for
establishing that he preserved his objection to trial in absentia,
Gunter completely ignores on appeal the trial court’s finding that
he was voluntarily absent, made after considering the evidence
offered in support of a new trial. Because he has not challenged
that finding, we accept it as true. See C & Y Corp. v. General
Biometrics, Inc., 896 P.2d 47, 52 (Utah Ct. App. 1995) (stating that,
because the appellant did not challenge the trial court’s finding,
this court was required to accept the finding as true). As a result,
Gunter cannot establish prejudice based on the trial in absentia. If
the trial court had made appropriate inquiry on the first day of
trial, it would have reached the same conclusion that it did after
hearing the evidence on the new trial motion—that Gunter
intentionally absented himself from the trial proceedings.
Accordingly, the trial court’s error in proceeding with trial without
making an adequate inquiry into Gunter’s absence was harmless.
Cf. Wanosik I, 2001 UT App 241, ¶ 26.

20110728‐CA 15 2013 UT App 140
 State v. Gunter

III. Ineffective Assistance of Counsel

¶30 The Sixth Amendment guarantees criminal defendants the
right to effective assistance of counsel. See Strickland v. Washington,
466 U.S. 668, 686 (1984). “To support an ineffective assistance of
counsel claim, a defendant must demonstrate, first, ‘that counsel’s
performance was deficient’ and, second, ‘that counsel’s deficient
performance was prejudicial.’” State v. Walker, 2010 UT App 157,
¶ 13, 235 P.3d 766 (quoting State v. Litherland, 2000 UT 76, ¶ 19, 12
P.3d 92). “To satisfy the first part of the test, [a] defendant must
overcome the strong presumption that [his] trial counsel rendered
adequate assistance by persuading the court that there was no
conceivable tactical basis for counsel’s actions.” State v. Clark, 2004
UT 25, ¶ 6, 89 P.3d 162 (second alteration in original) (emphasis,
citations, and internal quotation marks omitted). “The court give[s]
trial counsel wide latitude in making tactical decisions and will not
question such decisions unless there is no reasonable basis
supporting them.” Id. (alteration in original) (citation and internal
quotation marks omitted); see also Strickland, 466 U.S. at 689
(indicating that counsel should be given wide latitude in making
tactical decisions). “To show prejudice, a defendant must establish
that ‘there is a reasonable probability that, absent the errors, the
fact finder would have had a reasonable doubt respecting guilt.’”
Walker, 2010 UT App 157, ¶ 13 (quoting Strickland, 466 U.S. at 695).
“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694.

¶31 Gunter argues that Cramer’s pretrial efforts were deficient
based on (1) his failure to communicate effectively with Gunter in
preparation for trial and (2) his failure to obtain Gunter’s consent
to continue the preliminary hearing. Next, Gunter alleges that
Chamberlain was ineffective because (1) he failed to inform the
trial court of the circumstances surrounding Gunter’s absence from
trial and (2) he failed to inform the trial court that he had been
retained for the limited purpose of bringing the suppression
motion and was not authorized to represent Gunter at trial.

20110728‐CA 16 2013 UT App 140
 State v. Gunter

A. Cramer’s Assistance was Not Deficient.

¶32 Gunter’s ineffective assistance arguments based on Cramer’s
pretrial performance fail because Gunter replaced Cramer with
Chamberlain before trial. See generally State v. Barber, 2009 UT App
91, ¶ 17, 206 P.3d 1223 (“Absent special circumstances, a
‘defendant’s choice of retained counsel must be respected’ . . . .”
(quoting United States v. Collins, 920 F.2d 619, 626 (10th Cir. 1990),
superseded by statute on other grounds as recognized by Lewis v.
Commissioner of Internal Revenue, 523 F.3d 1272 (10th Cir. 2008))).
Thus, Cramer’s alleged inadequate preparation had no effect on the
outcome of the trial in which he did not participate. Furthermore,
Gunter’s claims are directly contradicted by his argument to the
trial court in support of his motion for a new trial. There, he
asserted that the trial court should have sua sponte reappointed
Cramer because while Chamberlain was not adequately prepared
for trial, “Cramer . . . was prepared. He had an investigator, . . .
[and t]hey had prepared a defense . . . .”

¶33 As previously discussed, Gunter’s argument that Cramer
should have interviewed or subpoenaed witnesses fails to establish
deficiency or prejudice because Gunter does not identify the
witnesses or the content of their expected testimony. See generally
Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993) (“[P]roof of
ineffective assistance of counsel cannot be a speculative matter but
must be a demonstrable reality.”). Additionally, for the same
reasons we denied Gunter’s request for a rule 23B remand, Gunter
has not established that Cramer acted deficiently or that he was
prejudiced by Cramer’s failure to obtain Gunter’s consent to the
continuances of the preliminary hearing. See supra ¶¶ 18–19.

B. Chamberlain’s Assistance was Not Deficient.

¶34 Gunter next argues that Chamberlain rendered ineffective
assistance of counsel at trial by not seeking a continuance after he
learned that Gunter was stranded in Nevada. Specifically, Gunter
claims that his attendance and participation at trial were vital to his

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 State v. Gunter

defense because Chamberlain would have called him as a witness.
He further asserts that he was prejudiced because there was a
reasonable probability that the trial court would not have
proceeded in absentia if Chamberlain had informed it of the reason
for Gunter’s absence. However, because Gunter has not challenged
the trial court’s posttrial finding that his absence was voluntary, he
cannot establish either deficient conduct or prejudice in
Chamberlain’s decision not to seek a continuance.

¶35 There is no requirement that counsel engage in futile acts.
See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise
futile objections does not constitute ineffective assistance of
counsel.”). Based on Gunter’s prior voluntary absences and the
absence of any explanation for why he was out of the state
immediately before his scheduled trial date, Chamberlain could
have reasonably concluded that the trial court would not continue
the proceedings. Furthermore, even if Chamberlain performed
deficiently by not notifying the trial court of Gunter’s reported
stranding, Gunter cannot meet his “burden of proving that
[Chamberlain’s presumed] errors actually had an adverse effect on
the defense and that there is a reasonable probability that, but for
counsel’s . . . errors, the result of the proceeding would have been
different.” See State v. Ott, 2010 UT 1, ¶ 40, 247 P.3d 344 (omission
in original) (citation and internal quotation marks omitted). After
the trial court was fully apprised of Gunter’s explanation for being
absent, it concluded that his absence was voluntary, and Gunter
has not challenged that finding on appeal. Accordingly, the result
would have been the same if Chamberlain had informed the trial
court of Gunter’s telephone calls—the trial court would have
proceeded with the trial in absentia based on its finding that
Gunter was voluntarily absent.

¶36 Gunter next asserts that Chamberlain rendered ineffective
assistance by failing to call any witnesses at trial and by failing “to
inform the trial court that he was not hired, nor prepared, to
provide effective representation.” As we have previously
determined, Gunter’s claims regarding the failure to call other

20110728‐CA 18 2013 UT App 140
 State v. Gunter

witnesses is too speculative to establish prejudice because he has
identified neither the witnesses nor the content of their testimony.
See State v. Chacon, 962 P.2d 48, 50 (Utah 1998) (holding that proof
of ineffective assistance must be based on “a demonstrable reality
and not a speculative matter” (citation and internal quotation
marks omitted)).

¶37 Additionally, the record shows that contrary to the limited
fee agreement, Chamberlain filed a general substitution of counsel.
Based on Chamberlain’s appearance, Cramer withdrew. Although
this left Chamberlain as the only counsel of record, Gunter points
to no evidence that he objected to Cramer’s withdrawal. As counsel
of record, Chamberlain immediately filed the suppression motion
and, when it was denied, he participated in all aspects of the trial.8
Although Gunter claims he was in contact with Chamberlain
during trial, he does not assert that he instructed Chamberlain not
to participate on his behalf.

¶38 There is also nothing in the record that demonstrates
Chamberlain was unprepared. He participated in jury selection;
cross‐examined witnesses, making objections during their
testimony; participated in drafting the jury instructions;
successfully moved for dismissal of one charge of aggravated
sexual abuse of a child after the State rested its case‐in‐chief; and
made a closing argument to the jury. Other than the general
complaint that Chamberlain was unprepared and inexperienced,
Gunter identifies no specific deficiencies in his trial performance.
See State v. Classon, 935 P.2d 524, 532 (Utah Ct. App. 1997) (“[A]
defendant must identify counsel’s specific acts or omissions that
fall outside the wide range of professionally competent assistance.”
(citation and internal quotation marks omitted)). Accordingly,
Gunter has failed to identify how Chamberlain’s actions were
deficient or how he was prejudiced by that deficient performance.

8. Similarly, neither Gunter nor Chamberlain asserts in his affidavit
in support of the rule 23B motion that Gunter registered any
objection to Chamberlain acting as trial counsel.

20110728‐CA 19 2013 UT App 140
 State v. Gunter

See Kell v. State, 2008 UT 62, ¶ 27, 194 P.3d 913 (“[A] defendant
alleging ineffective assistant of counsel must establish both that
counsel’s performance was deficient and that the deficient
performance prejudiced the defense.” (citation and internal
quotation marks omitted)).9

CONCLUSION

¶39 We deny Gunter’s request for a rule 23B remand because
Gunter has failed to articulate specific factual allegations that
would demonstrate that he was prejudiced by counsel’s
performance. Although the trial court erred in proceeding with
trial in absentia without conducting an adequate inquiry into
whether Gunter’s absence was voluntary, the error was harmless
due to the trial court’s posttrial consideration of further evidence
on that issue and its unchallenged finding that Gunter was
voluntarily absent from trial. Gunter has failed to establish that
either his pretrial counsel or trial counsel rendered ineffective
assistance.

¶40 Affirmed.

9. Because we determine that Gunter’s trial counsel was not
ineffective, we need not reach Gunter’s inadequately briefed claim
that the trial court should have sue sponte removed Chamberlain
and reinstated Cramer.

20110728‐CA 20 2013 UT App 140