State v. Tapusoa

2020 UT App 92
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
R AYMOND F AALILI T APUSOA,
Appellant.
Opinion
No. 20190244-CA
Filed June 11, 2020
Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 181912058
Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and R YAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 	Raymond Faalili Tapusoa pled guilty to two felonies, and
the matter was set for sentencing. At the sentencing hearing,
Tapusoa sought to have his mother address the court. The
district court refused to hear from her directly but indicated that
any information she had could be relayed to the court via
Tapusoa’s counsel. Tapusoa appeals his sentence, claiming the
district court erred in precluding his mother from addressing the
court directly. He also asserts his defense counsel rendered
ineffective 	assistance 	in 	failing 	to 	object 	to 	a 	restitution
determination made at that same hearing. We affirm the district
court’s sentence and conclude that the ineffective assistance of
counsel claim fails.

State v. Tapusoa
20190244-CA 	2 	2020 UT App 92
BACKGROUND
¶2 	In response to several charges the State brought against
Tapusoa for criminal conduct related to his theft of a car from a
home, Tapusoa pled guilty to one count of burglary and one
count of possession of a firearm by a restricted person. The State
dismissed the remaining charges. During the hearing, Tapusoa
agreed to pay restitution for his offenses, including for the
dismissed charges.
¶3 	Prior to the sentencing hearing, the district court received
an impact statement prepared by the victim and a pre-sentence
report (PSR) prepared by Adult Probation and Parole (AP&P).
The 	victim 	impact 	statement 	included 	an 	itemized 	list 	of
expenses and losses attributable to Tapusoa’s criminal conduct
totaling $3,167.66. The PSR included a recommendation for that
same amount for the victim’s restitution.
¶4 	After receiving those reports, the district court held a
sentencing hearing. At the outset, defense counsel declared that
she had “no corrections or additions” to the PSR, which included
the restitution recommendation. The court then heard from a
social worker for the defense and from defense counsel, who
asked if Tapusoa’s mother (Mother) could “address the court.”
The court, however, declined to hear from Mother directly, and
instead directed defense counsel to “relay her information” to
the 	court. 	Tapusoa’s 	counsel 	thereafter 	conveyed 	Mother’s
frustrations with and hopes for Tapusoa, as well as her view that
Tapusoa should be afforded an opportunity to receive some
much-needed drug treatment.
¶5 	Also 	at 	the 	hearing, 	the 	victim 	of 	Tapusoa’s 	crimes
testified at length and articulated that he had incurred “over
$3,000” in damages for repairs to the stolen car, for missing and
damaged personal property in the car at the time of the theft,
and to replace locks on his house and other vehicles because
those keys were stolen along with the car. The State then offered
its remarks, including a recommendation for restitution in the

State v. Tapusoa
20190244-CA 	3 	2020 UT App 92
amount of $3,167.66, according to the itemized list provided.
Defense counsel’s sole comment related to restitution expressed
that it would be harder for Tapusoa to make restitution if he
were 	incarcerated; 	counsel 	did 	not 	object 	to 	the 	State’s
recommended restitution amount. The court invited Tapusoa to
make a statement, which he did. The court then sentenced
Tapusoa to concurrent prison terms for the convicted offenses
and 	ordered 	Tapusoa 	to 	pay 	restitution 	in 	the 	amount 	of
$3,167.66.
¶6 	The day after the sentencing hearing, defense counsel
filed an objection to the restitution amount and requested a
hearing. The court subsequently held a hearing to address the
objection. Despite the State’s argument that Tapusoa had waived
any 	objection 	to 	the 	restitution 	imposed 	at 	the 	sentencing
hearing, the court invited defense counsel to offer her “objection
about the [specific amount].” Defense counsel responded that
she sought more specificity in the valuation of the claimed
expenses 	and 	losses, 	opining 	that 	the 	amount 	was 	“not
necessarily . . . too much,” but that she wanted additional
evidence that the expenses and losses were “fair market values”
and 	proximately 	caused 	by 	Tapusoa’s 	criminal 	conduct.
The 	State, 	for 	its 	part, 	argued 	that 	in 	addition 	to 	being
waived, 	the 	restitution 	amount 	should 	remain 	unchanged
because it was sufficiently proved by evidence, including the
AP&P 	recommendation, 	the 	victim’s 	testimony, 	and 	the
itemized list. The court resolved the issue, commenting that it
was “going to . . . find that [section 77-38a-203(2) of the Utah
Code] actually controls that as far as complete restitution.” The
district court judge explained, “I suppose the issue may be a
little 	bit 	different 	if 	there 	was 	even 	now 	some 	specific
information that one can interpret as some kind of objection. But
what I’m getting right now is—is that they just want more
receipts.” The court declined to alter the previous restitution
determination.
¶7 	Tapusoa appeals.

State v. Tapusoa
20190244-CA 	4 	2020 UT App 92
ISSUES AND STANDARDS OF REVIEW
¶8 	Tapusoa 	presents 	two 	issues 	on 	appeal. 	First, 	he
asserts that the district court violated his due process right of
allocution 	and 	rule 	22(a) 	of 	the 	Utah 	Rules 	of 	Criminal
Procedure by refusing to allow Mother to address the court at
the sentencing hearing. Tapusoa’s argument regarding his right
of allocution presents a question of law, “which we review for
correctness, granting no particular deference to the conclusions
of the trial court.” See State v. Kelson, 2015 UT App 91, ¶ 5, 348
P.3d 	373 	(cleaned 	up). 	However, 	inasmuch 	as 	Tapusoa
challenges the district court’s management of the manner in
which information was presented at sentencing, we review his
claim for abuse of discretion. See State v. Daughton, 2013 UT App
170, ¶ 18, 308 P.3d 537 (“The trial court has substantial discretion
in conducting sentencing hearings . . . , and we will in general
overturn the trial court’s sentencing decisions only if we find an
abuse of discretion.” (cleaned up)). Cf. Maxfield v. Herbert, 2012
UT 44, ¶ 11, 284 P.3d 647 (“Within the bounds set by rule and
statute, . . . a district court’s management of its docket . . . is
reviewed for an abuse of discretion.” (cleaned up)).
¶9 	Second, 	Tapusoa 	contends 	that 	his 	defense 	counsel
rendered ineffective assistance by “failing to object to the court’s
order of restitution at the time of sentencing.” “A claim of
ineffective assistance of counsel raised for the first time on
appeal presents a question of law, which we consider de novo.”
State v. King, 2018 UT App 190, ¶ 11, 437 P.3d 425 (cleaned up).
ANALYSIS
I. Rights at Sentencing
¶10 	Tapusoa asserts that the district court violated his right of
allocution 	and 	rule 	22(a) 	of 	the 	Utah 	Rules 	of 	Criminal
Procedure by refusing to allow Mother to directly address the
court at the sentencing hearing. We disagree.

State v. Tapusoa
20190244-CA 	5 	2020 UT App 92
¶11 	A defendant has “both a constitutional and statutory right
to be heard before the trial court impose[s] sentence.” West Valley
City v. Walljasper, 2012 UT App 252, ¶ 12, 286 P.3d 948 (citing
Utah Const. art. I, § 12; Utah R. Crim. P. 22(a)); see also Utah
Const. art. I, § 7; State v. Wanosik, 2003 UT 46, ¶ 19, 79 P.3d 937.
While “the right to allocution is nowhere specifically granted in
either the State or the federal constitution,” it is “an inseparable
part of the right to be present.” Wanosik, 2003 UT 46, ¶ 20
(cleaned up). A “defendant’s right to allocution is satisfied so
long as the sentencing hearing was held in the defendant’s
presence and the defendant had an opportunity to speak” to
provide 	the 	court 	“with 	reasonably 	reliable 	and 	relevant
information regarding sentencing.” State v. Kelson, 2015 UT App
91, ¶ 7, 348 P.3d 373 (cleaned up).
¶12 	Here 	Tapusoa 	was 	inarguably 	permitted 	his 	right 	of
allocution. See id.; see also State v. Apadaca, 2015 UT App 212, ¶ 10,
358 P.3d 1124 (“Violations of a defendant’s right to allocution
usually involve situations where the court has prevented or
prohibited the defendant from speaking altogether or imposed
sentence in the defendant’s absence.” (cleaned up)). Tapusoa
was personally present at the sentencing hearing and he was
invited 	by 	the 	court 	to 	make 	a 	statement—an 	opportunity
of which he availed himself. Accordingly, the court satisfied all
that is required of it in affording Tapusoa the opportunity to
make a statement while present at the sentencing hearing. See
Kelson, 2015 UT App 91, ¶ 7. Thus, the court did not violate
Tapusoa’s right of allocution.
¶13 	Relatedly, 	“rule 	22(a) 	of 	the 	Utah 	Rules of 	Criminal
Procedure codifies a criminal defendant’s right to allocution.”
State v. Tingey, 2014 UT App 228, ¶ 8, 336 P.3d 608; see also
Wanosik, 2003 UT 46, ¶ 21 (Rule 22(a) stems from right of
allocution). Rule 22(a) provides, in relevant part, that “[b]efore
imposing 	sentence 	the 	court 	must 	afford 	the 	defendant 	an
opportunity to make a statement and to present any information

State v. Tapusoa
20190244-CA 	6 	2020 UT App 92
in mitigation of punishment, or to show any legal cause why
sentence should not be imposed.” Utah R. Crim. P. 22(a).1 The
rule “includes not only the defendant personally, but also the
defendant’s 	counsel,” 	“affording 	defense 	counsel 	the
opportunity to make a statement and provide information in
mitigation of sentence” to ensure that “a defendant is afforded
the Sixth Amendment right to counsel.”2 Wanosik, 2003 UT 46,
¶¶ 19–20.
¶14 	In this case, the court did not violate rule 22(a). While that
rule provides that a defendant and defense counsel be afforded
an opportunity to make a statement and present information, it
does not entitle others to make a statement for the defense, nor
does it entitle the defense to present other information in any
particular format. See Utah R. Crim. P. 22(a). Tapusoa provides
us with no analysis or citation to legal authority suggesting that
a defendant is entitled to dictate the means by which such other
information 	is 	presented 	at 	sentencing. 	And 	our 	review 	of
relevant case law suggests that a court possesses discretion to
1. See also Utah Code Ann. § 77-18-1(7) (LexisNexis Supp. 2018)
(addressing 	testimony, 	evidence, 	and 	information 	that 	the
defense or prosecution may present at sentencing). Because
Tapusoa does not make any argument pursuant to this statute,
we limit our discussion to the arguments Tapusoa raises: the
right to allocution and rule 22 of the Utah Rules of Criminal
Procedure.
2. Though not at issue here, we note as a matter of completeness
that 	“the 	prosecution 	is also 	guaranteed an 	opportunity 	to
present information to the court relevant to sentencing, ensuring
fairness and balance in the sentencing process.” State v. Wanosik,
2003 UT 46, ¶ 22, 79 P.3d 937; see also Utah Code Ann. § 77-18-
1(7) (“At the 	time of sentence, 	the court shall 	receive any
testimony, 	evidence, 	or 	information 	the 	defendant 	or 	the
prosecuting 	attorney 	desires 	to 	present 	concerning 	the
appropriate sentence.”).

State v. Tapusoa
20190244-CA 	7 	2020 UT App 92
limit the manner in which such other information is presented.
See generally State v. Lindsey, 2014 UT App 288, ¶ 13, 340 P.3d 176
(holding that the district court did not abuse its discretion in
sentencing defendant without a presentence investigation where
defendant had presented and the court had already “received all
of the information that both the prosecutor and [defendant]
wanted to present”); State v. Senior, 2005 UT App 389U, para. 6
(“However, even if the trial court did not physically read the
evaluation, there was no prejudice to the defendant because both
defendant and his counsel were allowed to address the trial
court 	prior 	to 	sentencing, 	. 	. 	. 	and 	defendant’s 	counsel
thoroughly apprised the trial court of the relevant portions of the
evaluation prior to the imposition of sentence.” (cleaned up)).
Thus, 	beyond 	the 	statements 	by 	a 	defendant 	and 	defense
counsel, so long as the defense has an opportunity to present
mitigating information to the court, a court may in its discretion
place 	limits 	on 	the 	manner 	in 	which 	such 	information 	is
presented to it at sentencing.
¶15 	Here, although the district court refused to hear directly
from Mother during the sentencing hearing, it received the
information Tapusoa intended to present from Mother through
other means. The information was presented in the subsequent
statements 	made 	by 	defense 	counsel 	expressing 	Mother’s
views—which Tapusoa admits relayed, “after a fashion, some of
what 	[Mother] 	would 	have 	said”3—and 	in 	the 	PSR, 	which
3. 	On 	appeal, 	Tapusoa 	does 	not 	identify 	what 	additional
information relevant to the mitigation of his sentence Mother
would have provided in her own words. He simply asserts that
the proxy statement made by defense counsel “is hardly a
substitute for hearing from [Mother] in her own voice and the
full breadth and depth of what she wished to say to the court.”
Consequently, 	we 	are 	left 	to 	surmise 	that 	defense 	counsel
adequately conveyed all the relevant information to the court on
Mother’s 	behalf, 	albeit 	without 	the 	heartfelt 	sincerity 	and
(continued…)

State v. Tapusoa
20190244-CA 	8 	2020 UT App 92
contained additional information from Mother about Tapusoa’s
support in the community and his readiness to address his
“criminogenic factors.” Accordingly, the court did not violate
rule 22(a) by refusing to hear directly from Mother and did not
abuse its discretion in requiring that the information Mother had
to convey be presented through counsel.
II. Ineffective Assistance of Counsel
¶16 	Tapusoa 	contends 	that 	his 	defense 	counsel 	rendered
ineffective assistance by “failing to object to the court’s order of
restitution at the time of sentencing.” We disagree.
¶17 	To prove ineffective assistance of counsel, a defendant
must “establish both that counsel’s performance was objectively
deficient—meaning 	counsel 	rendered 	demonstrably 	deficient
performance by objectively unreasonable conduct—and that the
deficient performance prejudiced the defense—meaning there is
a 	reasonable 	probability 	that, 	but 	for 	counsel’s 	error, 	the
defendant would have obtained a more favorable outcome.”
State v. Peterson, 2020 UT App 47, ¶ 18, 462 P.3d 421 (citing,
among other cases, Strickland v. Washington, 466 U.S. 668, 687–88
(1984)), petition for cert. filed, May 22, 2020 (No. 20200419). Failure
to prove either element defeats the ineffective assistance of
counsel claim. Id. We do not need to “review the deficient
performance element before examining the prejudice element,”
and “if it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, that course should be
followed.” State v. Ricks, 2018 UT App 183, ¶ 11, 436 P.3d 350
(cleaned up).
¶18 	Here, 	Tapusoa 	concedes 	that 	no 	prejudice 	resulted—
“specific items of concrete adversity cannot be articulated”—
(…continued)
personal perspective that only a concerned mother could bring
to the court’s attention.

State v. Tapusoa
20190244-CA 	9 	2020 UT App 92
from 	defense 	counsel’s 	failure 	to 	object 	at 	the 	sentencing
hearing. Tapusoa does not suggest, let alone demonstrate, that
there was additional information available to defense counsel
that would have bolstered the objection to the restitution amount
or affected the outcome of the sentencing hearing. Because
Tapusoa does not articulate how a timely objection would have
had “some conceivable effect on the outcome of the proceeding,”
he 	cannot 	establish 	“a 	reasonable 	probability 	that, 	but 	for
counsel’s unprofessional errors, the result of the proceeding
would 	have 	been 	different.” 	Strickland, 	466 	U.S. 	at 	693–94.
Accordingly, Tapusoa does not show the prejudice required to
establish ineffective assistance of counsel.
CONCLUSION
¶19 	The 	district 	court 	did 	not 	violate 	Tapusoa’s 	right 	of
allocution nor rule 22(a) of the Utah Rules of Criminal Procedure
by refusing to allow Mother to address the court directly. And
Tapusoa’s ineffective assistance of counsel claim fails because
Tapusoa has not demonstrated prejudice. We therefore affirm
the sentence and the restitution imposed by the district court.