State v Siavashi

1.The Honorable Judith M. Billings, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 164
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
THOMAS R. SIAVASHI,
Defendant and Appellant.
Per Curiam Decision
No. 20130467-CA
Filed July 17, 2014
Eighth District Court, Vernal Department
The Honorable Edwin T. Peterson
No. 121800212
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes, Laura B. Dupaix, and Brett J. DelPorto,
Attorneys for Appellee
Before JUDGES GREGORY K. ORME, STEPHEN L. ROTH, and JUDITH
M. BILLINGS.1
PER CURIAM:
¶1 Thomas Siavashi appeals his convictions on charges of
aggravated kidnapping and driving under the influence of alcohol.
We affirm.
¶2 Siavashi asserts that his trial counsel was ineffective because
he failed to call three witnesses that Siavashi wanted to testify.

State v. Siavashi
2.The trial court prohibited Siavashi from stating the witnesses’
names because the court believed the disclosure may implicate
attorney–client privilege.
20130467-CA 2 2014 UT App 164
Siavashi has not provided a record sufficient to reach this issue. In
a discussion in chambers, Siavashi told the trial court that he
disagreed with counsel’s decision not to call three witnesses.
Siavashi did not identify the witnesses, or proffer the specifics of2
what they would testify. As a result, there is nothing in the record
that suggests that the witnesses would have been able to testify or
would have been helpful to Siavashi.
¶3 “Where, on direct appeal, [a] defendant raises a claim that
trial counsel was ineffective, [the] defendant bears the burden of
assuring the record is adequate.” State v. Litherland, 2000 UT 76,
¶ 16, 12 P.3d 92. When trial counsel’s alleged ineffectiveness caused
or exacerbated record deficiencies, the mechanism to correct such
a record deficiency is a motion for remand pursuant to rule 23B of
the Utah Rules of Appellate Procedure. Utah R. App. P. 23B;
Litherland, 2000 UT 76, ¶ 16. Rule 23B provides a tool to assure a
complete record on appeal, and a defendant must pursue a remand
if necessary to get facts on the record for the purposes of appeal.
The failure to call a witness is an example of such a record defi-
ciency. A remand must be sought to put a proposed witness’s
testimony on the record so an appellate court can evaluate the
claim that counsel was ineffective for failing to call that witness at
trial.
¶4 Siavashi did not move for remand. As a result, the witnesses
remain unidentified and the expected testimony remains unknown.
“Where the record appears inadequate in any fashion, ambiguities
or deficiencies resulting therefrom simply will be construed in
favor of a finding that counsel performed effectively.” Litherland,
2000 UT 76, ¶ 17.

State v. Siavashi
3.The conversation on the record implies that the witnesses were
likely to be character witnesses with no actual knowledge of the
events on the night of the incident. This implication is further
supported by the nature of the crimes, which occurred when only
Siavashi and his victim were present, thereby limiting the pool of
witnesses with actual knowledge of the incident.
20130467-CA 3 2014 UT App 164
¶5 Siavashi also asserts that the trial court failed to conduct a
reasonable inquiry into his disagreement with trial counsel. “When
a defendant expresses dissatisfaction with counsel, a trial court
must make some reasonable, non-suggestive efforts to determine
the nature of the defendant’s complaints.” State v. Lovell, 1999 UT
40, ¶ 27, 984 P.2d 382. Courts should conduct a specific inquiry. Id.
In this instance, Siavashi has not shown that the court’s inquiry was
insufficient. Siavashi did not express general dissatisfaction with
trial counsel or request other counsel. He expressed disagreement
only with counsel’s failure to call three witnesses. The trial court
discussed the specific disagreement with Siavashi and explained
the limitations on character witnesses. The inquiry was reasonable3
regarding the particular disagreement.
¶6 Furthermore, even if the trial court could have conducted a
more detailed inquiry, Siavashi has shown no prejudice. As noted
above, the record is insufficient to determine that the proposed
witnesses would have been permitted to testify or that their
testimony would have been beneficial to Siavashi. In the absence of
an adequate record on appeal, appellate courts must presume the
regularity of the proceedings in the trial court. State v. Pritchett,
2003 UT 24, ¶ 13, 69 P.3d 1278.
¶7 Affirmed.