State v. Galindo

2017 UT App 117
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
LUIS A NTONIO GALINDO,
Appellant.
Opinion
No. 20140035-CA
Filed July 20, 2017
Third District Court, Salt Lake Department
The Honorable Ann Boyden
No. 121905052
Ronald Fujino, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE J. F REDERIC VOROS JR . authored this Opinion, in which
JUDGES K ATE A. TOOMEY and DAVID N. M ORTENSEN concurred.
VOROS, Judge:
¶1 	Luis Antonio Galindo appeals the district court’s decision
to sentence him to two consecutive prison terms. We affirm.
BACKGROUND
¶2 	The victim in this case (Victim) and her mother (Mother)
lived with Galindo. Mother and Galindo were romantically
involved. 	When 	Victim 	was 	15 	years 	old, 	Galindo 	started
engaging in regular sexual relations with her, which continued
until Victim was 17 years old. Although Victim said she had
feelings for Galindo at one point, she also “saw him as a father

State v. Galindo
20140035-CA 	2 	2017 UT App 117
figure,” “wanted him to be [her] dad,” and “wanted to be a
family.”
¶3 	The 	State 	charged 	Galindo 	with 	two 	counts 	each 	of
forcible 	sodomy 	and 	rape, 	all 	first 	degree 	felonies. 	Victim
testified 	at 	the 	preliminary 	hearing. 	Pursuant 	to 	a 	plea
agreement, Galindo pleaded guilty to two charges of unlawful
sexual conduct with a 16 or 17 year old, third degree felonies.
The judge who received Galindo’s plea did not preside over the
preliminary hearing.
¶4 	After pleading guilty, Galindo waived the minimum time
for 	sentencing 	and 	requested 	that 	the 	court 	sentence 	him
immediately. He requested that his sentences run concurrently
because he 	had already served 17 months in a maximum-
security facility, he faced deportation, and he “accepted his
responsibility for the conduct that he’s guilty of and that he’s
pled guilty to.” The State requested that Galindo’s sentences run
consecutively because, to “satisfy his sexual urges, he took them
out on his step-daughter.” The State argued that “[i]nstead of
being a father figure and caring for [Victim] and supporting her,
he took advantage of her emotional 	state.” After the State
concluded, Galindo asked for permission to address the court:
[GALINDO]: Can I say something in my defense?
No?
THE 	COURT: 	This 	is 	the 	time 	to 	pronounce
sentencing, 	I 	want 	you 	to 	discuss 	with 	[your
counsel], certainly, before I pronounce sentencing.
(Inaudible conversation)
THE COURT: . . . Mr. Galindo . . . defense counsel
has asked for concurrent. There’s nothing further.
Is that Mr. Galindo’s request as well?

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20140035-CA 	3 	2017 UT App 117
. . . .
[GALINDO]: Yes.
Defense counsel did not object. The court sentenced Galindo to
consecutive 	prison 	terms, 	explaining 	that 	“because 	of 	the
number of counts, the age of [Victim], and the particularly
egregious fact that you were in the role of a step-parent, an
authority figure in her home during her teenage years, that it is
proper to sentence you consecutively.”
ISSUES AND STANDARD OF REVIEW
¶5 	Galindo asserts three claims of error on appeal. First, he
contends that the district court erred in basing its sentencing
decision on the prosecutor’s erroneous statement of fact, i.e., that
Victim 	was 	Galindo’s 	“step-daughter.” 	Second, 	Galindo
contends 	that 	the 	district 	court 	abused 	its 	discretion 	by
sentencing him to consecutive prison terms without considering
all the required factors. Galindo concedes that both issues are
unpreserved 	and 	seeks 	review 	under 	the 	plain-error 	and
exceptional-circumstances 	exceptions 	to 	our 	preservation
requirement. 	Third, 	Galindo 	contends 	that 	he 	received
ineffective assistance of counsel.1
¶6 	“To demonstrate plain error, a defendant must establish
that ‘(i) an error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful, i.e., absent the error,
1. Galindo’s first two claims of ineffective assistance of counsel
pertain to the prosecutor’s erroneous statement of fact and the
district court’s failure to consider the legally required sentencing
factors. Because these claims can be resolved by Galindo’s failure
to establish prejudice, we address them together with Galindo’s
claims of plain error.

State v. Galindo
20140035-CA 	4 	2017 UT App 117
there is a reasonable likelihood of a more favorable outcome for
the appellant, or phrased differently, our confidence in the
verdict is undermined.’” State v. Holgate, 2000 UT 74, ¶ 13, 10
P.3d 346 (brackets omitted) (quoting State v. Dunn, 850 P.2d 1201,
1208–09 (Utah 1993)). “If any one of these requirements is not
met, plain error is not established.” Dunn, 850 P.2d at 1209.
ANALYSIS
¶7 	“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. To succeed on a claim of ineffective
assistance 	of 	counsel, 	a 	defendant 	must 	show 	both 	“that
counsel’s performance was deficient” and “that the deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984). See also State v. Nelson, 2015 UT 62, ¶ 12,
355 P.3d 1031. However, “a court need not determine whether
counsel’s 	performance 	was 	deficient 	before 	examining 	the
prejudice suffered by the defendant as a result of the alleged
deficiencies.” Strickland, 466 U.S. at 697. “If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” Id. See also State v.
Hards, 2015 UT App 42, ¶ 18, 345 P.3d 769 (“Because both
deficient 	performance 	and 	resulting 	prejudice 	are 	requisite
elements of an ineffective assistance of counsel claim, a failure to
prove either element defeats the claim.”). To prove prejudice, a
“defendant must show that there is a reasonable probability that,
but 	for 	counsel’s 	unprofessional 	errors, 	the 	result 	of 	the
proceeding would have been different. A reasonable probability
is 	a 	probability 	sufficient 	to 	undermine 	confidence 	in 	the
outcome.” Strickland, 466 U.S. at 694.
¶8 	Plain 	error 	and 	ineffective 	assistance 	of 	counsel 	are
analytically distinct concepts: the former alleges obvious error
by the court, the latter deficient performance by counsel. But
both types of challenges require the defendant to demonstrate

State v. Galindo
20140035-CA 	5 	2017 UT App 117
that the error or deficiency resulted in prejudice. See State v.
Kozlov, 2012 UT App 114, ¶ 37, 276 P.3d 1207. “The prejudice
analysis is the same under both a plain error and ineffective
assistance of counsel framework.” State v. Munguia, 2011 UT 5,
¶ 13, 	253 	P.3d 	1082 	(citation 	and 	internal 	quotation 	marks
omitted).
¶9 	The 	exceptional 	circumstances 	doctrine 	allows 	the
reviewing court to reach an unpreserved issue in cases involving
“rare procedural anomalies.” See Munguia, 2011 UT 5, ¶ 11
(citation and internal quotation marks omitted). We apply the
exception 	sparingly, 	“reserving 	it 	for 	the 	most 	unusual
circumstances where our failure to consider an issue that was
not properly preserved for appeal would have resulted in a
manifest injustice.” State v. Nelson-Waggoner, 2004 UT 29, ¶ 23, 94
P.3d 186.
I. Prosecutor’s Misstatement
¶10 	Galindo contends that the district court plainly erred in
basing its sentencing decision on the prosecutor’s statement that
Victim was his “step-daughter.” Likewise, he contends that trial
counsel performed deficiently in not objecting to the statement.
Galindo also argues that exceptional circumstances exist because
he “wanted to object to the State’s misstatement, but was not
allowed to do so.”
¶11 	Galindo cannot succeed on either a claim of plain error or
ineffective assistance of counsel, because he cannot establish
prejudice. Although Galindo and Mother were not married,
Galindo lived with Victim for five years beginning when she was
12 years old. Galindo occupied a position of authority in Victim’s
life, 	and 	she 	“saw 	him 	as 	a 	father 	figure.” 	And, 	during
sentencing, the district court stated that Galindo was “in the role
of a step-parent,” as an “authority figure in her home during her
teenage years.” (Emphasis added.)

State v. Galindo
20140035-CA 	6 	2017 UT App 117
¶12 	There is no indication that the district court actually
believed Galindo to be Victim’s step-parent by marriage. But
even without a marriage, the record demonstrates that Galindo
occupied a position of authority in Victim’s life. Indeed, Victim
“saw him as a father figure,” “wanted him to be [her] dad,” and
“wanted to be a family.” Galindo thus cannot establish that the
prosecutor’s 	statement 	that 	he 	was 	Victim’s 	“step-father”
prejudiced him. We see no “reasonable likelihood of a more
favorable outcome for the appellant” had either Galindo or his
counsel corrected the statement. See State v. Holgate, 2000 UT 74,
¶ 13, 10 P.3d 346 (citation and internal quotation marks omitted).
Accordingly, Galindo can establish neither that the district court
plainly erred in relying on this statement nor that his trial
counsel 	performed 	ineffectively 	by 	failing 	to 	object 	to 	this
statement. See Kozlov, 2012 UT App 114, ¶ 37.
¶13 	Galindo’s argument under the exceptional circumstances
doctrine similarly fails. He asserts that “the trial court told [him]
that he could not speak in his defense to challenge the State’s
erroneous factual statements” and that “at that time . . . trial
counsel failed to object.” That is not how we read the record.
After Galindo asked whether he may say something in his
defense, the court responded, “This is the time to pronounce
sentencing, I want you to discuss with [your counsel], certainly,
before I pronounce sentencing.” The court provided Galindo an
opportunity to discuss his concern with counsel. Galindo did not
renew his request when the court then questioned him about his
sentencing preferences. This sequence of events—where Galindo
was eventually given the opportunity to speak and counsel
could 	have 	but 	did 	not 	object—“is 	not 	the 	kind 	of 	rare
procedural 	anomaly 	contemplated 	by 	the 	exceptional
circumstances doctrine.” See Provo City v. Ivie, 2008 UT App 287,
¶ 6, 191 P.3d 841. Because this case is not an anomaly, we see no
indications of manifest injustice here and therefore decline to
review Galindo’s claim under exceptional circumstances. See
State v. Alfatlawi, 2006 UT App 511, ¶ 44, 153 P.3d 804.

State v. Galindo
20140035-CA 	7 	2017 UT App 117
II. Legally Required Factors
¶14 	Galindo next contends that the district court plainly erred
by failing to consider his history, character, or rehabilitative
needs in its sentencing decision and that his trial counsel was
ineffective for failing to object when the court did not consider
these factors. Galindo also argues that because he attempted to
say something in his own defense at sentencing and was not
allowed to do so, exceptional circumstances exist that warrant
appellate review of the district court’s sentencing decision.
¶15 	We afford trial courts “wide latitude and discretion in
sentencing.” State v. Killpack, 2008 UT 49, ¶ 58, 191 P.3d 17
(citation and internal quotation marks omitted), abrogated on
other grounds by State v. Lowther, 2017 UT 34. And we “presume
that the district court made all the necessary considerations
when making a sentencing decision.” State v. Moa, 2012 UT 28,
¶ 35, 282 P.3d 985. “In determining whether state offenses are to
run concurrently or consecutively, the court shall consider the
gravity and circumstances of the offenses, the number of victims,
and 	the 	history, 	character, 	and 	rehabilitative 	needs 	of 	the
defendant.” Utah Code Ann. § 76-3-401(2) (LexisNexis 2012). “At
the time of the sentence, the court shall receive any testimony,
evidence, or information the defendant or prosecuting attorney
desires to present concerning the appropriate sentence.” Id. § 77-
18-1(7) 	(LexisNexis 	Supp. 	2016). 	And 	the 	absence 	of 	a
presentence investigation report does not “mean that the district
court failed to have all legally relevant information available for
sentencing.” See State v. Lindsey, 2014 UT App 288, ¶ 12, 340 P.3d
176.
¶16 	Once again, Galindo’s claims of plain error and ineffective
assistance of counsel fail because he cannot establish prejudice.
At 	sentencing, 	Galindo 	waived 	his 	right 	to 	a 	presentence
investigation report and asked to be sentenced immediately. The
court 	provided 	the 	State 	and 	Galindo 	a 	chance 	to 	present

State v. Galindo
20140035-CA 	8 	2017 UT App 117
information relevant to sentencing. Galindo explained that he
had been in custody for 17 months in a maximum-security
facility, faced deportation, and accepted responsibility for his
conduct. When the court asked Galindo whether there was
anything else he wanted the court to know, Galindo requested
that the court sentence him immediately. The district court
“received all of the information that both the prosecutor and
[Galindo] wanted to present.” See id. ¶ 13.
¶17 	The district court based its sentencing decision primarily
on the number of counts, Victim’s age, and Galindo’s status as
an authority figure in her home during her teenage years.
Galindo also received the benefit of a plea bargain reducing four
first degree felony charges to two third degree felony charges.
Galindo offers nothing to suggest that any mitigating evidence
pertaining 	to 	his 	history, 	character, 	or 	rehabilitative 	needs
existed. Accordingly, any claim that a consideration of these
factors would have resulted in a different sentence rests on
speculation.
¶18 	Because 	Galindo 	cannot 	establish 	prejudice, 	he 	can
establish neither plain error nor ineffective assistance of counsel
in connection with the court’s alleged failure to consider all
legally required sentencing factors. See State v. Kozlov, 2012 UT
App 114, ¶ 37, 276 P.3d 1207.
¶19 	Galindo 	also 	argues 	that 	exceptional 	circumstances
warrant appellate review of his unpreserved claim that the
district court abused its discretion in sentencing him. He argues
that he “should have been able to explain his history and
rehabilitative needs to the court at that time.” However, the
district court gave Galindo the opportunity to present additional
information beyond what his counsel presented in support of
concurrent sentences. When asked whether there was anything
more he wanted the court to know before the State presented its
argument, 	Galindo 	responded 	only 	that 	he 	wished 	to 	be

State v. Galindo
20140035-CA 	9 	2017 UT App 117
sentenced 	immediately. 	For 	this 	reason 	and 	the 	reasons
discussed above, supra ¶ 13, we decline to review Galindo’s
claim under exceptional circumstances. See State v. Alfatlawi, 2006
UT App 511, ¶ 44, 153 P.3d 804.
III. Mitigating Factors
¶20 	Finally, Galindo contends that he received ineffective
assistance of counsel because his trial counsel did not present
any mitigating evidence at the sentencing hearing.
¶21 	For the reasons discussed above, Galindo cannot establish
that his counsel’s alleged deficient performance prejudiced him.
See supra ¶¶ 11–12, 16–17. In support of her argument that
Galindo 	be 	sentenced 	concurrently, 	Galindo’s 	trial 	counsel
explained that Galindo had been in a maximum-security facility
for 	17 	months, 	faced 	deportation, 	and 	had 	accepted
responsibility for his conduct. When asked directly whether
there was anything he wanted the court to know, Galindo only
asked to be sentenced immediately. Galindo has pointed to no
evidence, nor can we find any in the record, to suggest that
additional mitigating evidence existed. Consequently, he has not
shown 	that 	there 	is 	a 	reasonable 	probability 	that, 	but 	for
counsel’s alleged error, “the result of the proceeding would have
been different.” See Strickland v. Washington, 466 U.S. 668, 694
(1984). Accordingly, his claim of ineffective assistance of counsel
fails.
CONCLUSION
¶22 	For the foregoing reasons, the judgment of the district
court is affirmed.