2016 UT App 72
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ROBERT FRANK GOODRICH,
Appellant.
Opinion
No. 20140708-CA
Filed April 14, 2016
Second District Court, Farmington Department
The Honorable Robert J. Dale
No. 091701314
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee
SENIOR JUDGE PAMELA T. GREENWOOD authored this Opinion, in
which JUDGES J. FREDERIC VOROS JR. and KATE A. TOOMEY
concurred.1
GREENWOOD, Senior Judge:
¶1 Defendant Robert Frank Goodrich appeals the district
court’s revocation of his probation and the reinstatement of his
original sentence, after he admitted to two probation violations.
His appeal rests on claims of ineffective assistance of counsel,
plain error by the district court, and cumulative error. We affirm.
1. Senior Judge Pamela T. Greenwood sat by special assignment
as authorized by law. See generally Utah R. Jud. Admin. 11-
201(6).
State v. Goodrich
BACKGROUND
¶2 Defendant pled guilty to two second-degree felony counts
of Sexual Abuse of a Child. See Utah Code Ann. § 76-5-404.1
(LexisNexis Supp. 2015).2 The district court sentenced him to two
consecutive indeterminate prison terms of one to fifteen years.
The district court suspended the prison terms and imposed a
365-day jail sentence with release to the Northern Utah
Community Correctional Center (NUCCC). Defendant was
placed on thirty-six months of probation, to be supervised by
Adult Probation and Parole (AP&P). After Defendant was
released from jail, and after he completed the NUCCC program,
he moved to Oregon for work. The Marion County Sheriff’s
Office in Salem, Oregon, supervised Defendant’s probation
there.
¶3 In March 2013, less than a year after Defendant moved to
Oregon, AP&P filed a probation violation report in Utah alleging
four violations. Defendant was prepared to admit to two of the
violations, which were originally described in the report as
‚possess*ing+ sexual stimulus material electronically on a laptop
in his possession‛ and leaving ‚the State of Oregon on two
occasions either by deviating from his travel permit or without
permission.‛ During the district court hearing in Utah on the
order to show cause, defense counsel requested that the first
allegation be amended to say that Defendant viewed, rather than
possessed, sexual stimulus material. He further requested that
the second allegation be amended to indicate that Defendant
‚was not truthful regarding leaving the State of Oregon.‛
Neither the State nor AP&P had any objections to the
2. ‚For ease of reference, we cite the current version of the
statute and note that there have been no alterations since
defendant’s conviction that would affect this appeal.‛ State v.
Roth, 2001 UT 103 ¶ 8 n.1, 37 P.3d 1099.
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State v. Goodrich
amendments; Defendant then admitted to the two amended
allegations.
¶4 Defendant told the district court, ‚I’d certainly love to
explain myself,‛ which the court allowed. He alleged that his
probation officer in Oregon ‚kept making just rude statements to
[him] . . . and . . . threatening *him+ each month.‛ Defendant
claimed that, after being denied his requests for a new probation
officer and to return to Utah, he decided his only option was to
pretend to violate probation. He explained, ‚And so I felt I was
backed into a corner, your Honor, and the only thing I could do
was just fabricate information that would then give me a
probation violation and get me back to Utah.‛
¶5 ‚*B+ased on *Defendant’s+ admitted probation violation
. . . and having looked carefully at [his] records and the
background and what[] occurred,‛ the district court
‚terminate*d+ *Defendant’s+ probation unsuccessfully.‛ AP&P
recommended that the district court impose Defendant’s original
prison sentence, and the court followed that recommendation.
Defendant now appeals.
ISSUES AND STANDARDS OF REVIEW
¶6 With the benefit of new counsel on appeal, Defendant
argues that his trial counsel3 ‚deprived [him] of his
constitutional right to the effective assistance of counsel in the
revocation proceedings . . . by failing to investigate and present
critical evidence rebutting and mitigating the probation violation
allegations.‛ Defendant also alleges that trial counsel was
3. Although there was no trial in this case, we use the term ‚trial
counsel‛ for simplicity throughout this opinion to refer to the
attorney who represented Defendant at the order to show cause
hearing and whose performance Defendant now contends was
constitutionally deficient.
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State v. Goodrich
ineffective when he violated the duty of loyalty. ‚A claim of
ineffective assistance of counsel, when raised on appeal for the
first time, presents a question of law.‛ State v. Legg, 2014 UT App
80, ¶ 9, 324 P.3d 656. ‚Questions of law are reviewed for
correctness.‛ State v. Petersen, 810 P.2d 421, 424 (Utah 1991).
¶7 Defendant also contends the district court failed to ensure
that he receive timely and adequate notice of, and an
opportunity to be heard on, the alleged probation violations.
Because this issue was not properly preserved for review on
appeal, Defendant raises this claim under the plain-error
doctrine, which requires him to establish that (1) an error exists,
(2) the error should have been obvious to the district court, and
(3) the error was harmful. See State v. Dunn, 850 P.2d 1201, 1208–
09 (Utah 1993).
¶8 Finally, Defendant claims that the cumulative effect of the
above alleged errors necessitates reversal. ‚Under the
cumulative error doctrine, we apply the standard of review
applicable to each underlying claim or error.‛ State v. Davis, 2013
UT App 228, ¶ 16, 311 P.3d 538 (citation and internal quotation
marks omitted). ‚*W+e will reverse only if the cumulative effect
of the several errors undermines our confidence . . . that a fair
trial was had.‛ Dunn, 850 P.2d at 1229 (omission in original)
(citation and internal quotation marks omitted).
ANALYSIS
I. Ineffective Assistance of Counsel
¶9 Defendant first alleges that trial counsel’s performance
was constitutionally deficient because he failed to investigate
and present mitigating evidence. ‚To succeed on his ineffective-
assistance claim, Defendant is required to prove ‘that counsel’s
representation fell below an objective standard of
reasonableness’ and ‘that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
20140708-CA 4 2016 UT App 72
State v. Goodrich
proceeding would have been different.’‛ State v. Potter, 2015 UT
App 257, ¶ 7, 361 P.3d 152 (quoting Strickland v. Washington, 466
U.S. 668, 687–88, 694 (1984)). ‚Because failure to establish either
prong of the test is fatal to an ineffective assistance of counsel
claim, we are free to address *Defendant’s+ claims under either
prong.‛ Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182. We
therefore first consider whether trial counsel’s alleged failure to
investigate prejudiced Defendant.
¶10 According to Defendant, trial counsel should have
obtained ‚a copy of the probation supervision documentation
from Oregon.‛ He claims that these documents demonstrate the
violation of his right to due process and that he did not violate
the terms of his probation.4 To succeed on this claim, Defendant
‚bears the burden of proving that counsel’s 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.‛ State v. Ott, 2010 UT 1,
¶ 40, 247 P.3d 344 (omission in original) (citation and internal
quotation marks omitted). This is a burden Defendant has not
successfully met.
¶11 Any error in trial counsel’s failure to obtain the Oregon
documents did not prejudice Defendant because he admitted to
4. Defendant has filed a rule 23B motion to supplement the
record on appeal with these documents. See Utah R. App. P. 23B.
Because we conclude that Defendant cannot show prejudice, see
infra ¶¶ 11–14, it is immaterial whether trial counsel performed
deficiently by not obtaining these documents. And because
having these documents as part of the record would therefore
not affect the outcome on appeal, we deny Defendant’s 23B
motion. See State v. Potter, 2015 UT App 257, ¶ 6 n.1, 361 P.3d 152
(denying a 23B motion where the defendant’s ‚ineffective-
assistance claim would fail for lack of prejudice, even assuming
defense counsel performed deficiently‛).
20140708-CA 5 2016 UT App 72
State v. Goodrich
the violations that led to the probation revocation. Cf. State v.
Brady, 2013 UT App 102, ¶ 10, 300 P.3d 778 (rejecting a due
process challenge where the defendant had admitted to violating
probation). In Brady, we considered a due process challenge
where the defendant ‚admitted to violating his probation by
failing to pay anything toward the restitution, but described his
efforts to find a job and his overwhelming financial obligations
in an effort to mitigate the impact of his violation.‛ Id. ¶ 3. There,
we ‚fail*ed+ to see how this amounted to a violation of Brady’s
due process rights, especially where he admitted to violating his
probation and the trial court considered his mitigating
testimony.‛ Id. ¶ 10 (emphasis added); see also State v. Waterfield,
2011 UT App 27, ¶ 2, 248 P.3d 57 (‚Once Defendant admitted to
probation violations, the district court had discretion to restart
his probation[.]‛).
¶12 In the present case, the Oregon documents would not
have affected the outcome. If, as Defendant contends, the
documents would have established that he had fabricated the
probation violations, such an explanation was already before the
district court. Defendant began his statement to the court by
offering mitigating evidence: he graduated from the NUCCC,
‚completed ten months of after care,‛ and ‚completed 34
months of probation.‛5 He then explained the claimed
5. We briefly note that this approach appears to be a sound
strategy employed by trial counsel, which cuts against any
argument that trial counsel performed deficiently. It appears that
trial counsel planned to focus on mitigating evidence in helping
Defendant avoid probation revocation. And, when Defendant
began his statement to the court, this was also his focus. But
Defendant appears to have veered off topic by describing his
disagreements with the Oregon probation officer and the
‚decision *Defendant+ made that *he+ wasn’t going to complete
[his] probation with this probation officer*.+‛ Trial counsel then
tried to refocus the discussion on mitigating factors, such as the
(continued<)
20140708-CA 6 2016 UT App 72
State v. Goodrich
fabrication: ‚I felt I was backed into a corner, your Honor, and
the only thing I could do was just fabricate information that
would then give me a probation violation and get me back to
Utah.‛
¶13 Perhaps counterintuitively, if the Oregon documents had
indeed supported Defendant’s assertion that he had used the
probation violations as a way to return to Utah, this would have
reinforced the district court’s decision to revoke probation. In
announcing its order, the district court admonished,
The concerns I have is, these are serious matters.
You—you have been convicted of serious matters
and to indicate to the Court, for instance, that you
violated your probation intentionally so that you
could be here is not, as far as the Court is
concerned, mitigating in the least; in fact, it’s
aggravating.
Any Oregon documents supporting Defendant’s claim on
this point could not have benefited him. The district court
would have likely determined that, like his proffered
explanation of his conduct, such evidence demonstrated
aggravating circumstances.
(