State v. Bruhn

2019 UT App 21
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
S ANDRA DEE BRUHN ,
Appellant.
Opinion
No. 20160382-CA
Filed February 7, 2019
Fourth District Court, Nephi Department
The Honorable Jennifer A. Brown
No. 141600121
Nathan Phelps, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee
JUDGE DIANA H AGEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and R YAN M. HARRIS concurred.
HAGEN, Judge:
¶1 	Sandra Dee Bruhn appeals her convictions for possession
of a controlled substance and operating or riding in a motor
vehicle with an open container. Bruhn contends that her trial
counsel provided ineffective assistance and requests that we
reconsider our prior denial of her rule 23B motion to remand to
the district court for fact-finding.
¶2 	In her rule 23B motion, Bruhn argues that, because her
trial counsel was aware that Bruhn could not remember the
details 	of 	the 	events 	surrounding 	her 	criminal 	charges, 	he
provided 	ineffective 	assistance 	by 	failing 	to 	request 	a
competency 	evaluation 	before 	trial. 	Because 	knowledge 	of
Bruhn’s memory loss alone did not require her trial counsel,
under the facts of this case, to request a competency evaluation

State v. Bruhn
20160382-CA 	2 	2019 UT App 21
and Bruhn has alleged no other facts that would have suggested
that she was incompetent to stand trial, we decline to reconsider
our denial of her rule 23B motion. And because Bruhn has
conceded that she cannot prevail on appeal without a rule 23B
remand, we affirm her convictions.
BACKGROUND
¶3 	Two 	individuals 	were 	involved 	in 	a 	single-vehicle
accident. When law enforcement arrived on the scene of the
accident, they discovered a woman “inside the vehicle over on
the passenger side in the front seat” and a man who “appeared
to have been ejected [from the vehicle] that was lying on the left
side of the vehicle towards the back of it” who later identified
himself as the driver. After the driver and the woman were
transported 	to 	the 	hospital, 	law 	enforcement 	searched 	the
interior of the vehicle and the scattered debris. Documents in the
vehicle glovebox identified Bruhn as the registered owner of the
vehicle. Bruhn’s driver license was also found in a purse in the
debris, identifying Bruhn as the woman found in the passenger
side of the wrecked vehicle.
¶4 	In Bruhn’s purse, an officer discovered a purple latex
glove with the open end tied in a knot. In the process of
removing the glove from the purse, the officer felt a crystal
substance inside the glove. Suspecting that the crystal substance
was methamphetamine, he cut the glove open and performed a
field test that confirmed his suspicion.
¶5 	In 	another 	bag 	found 	at 	the 	scene, 	law 	enforcement
discovered three “dime baggies” of methamphetamine, a pipe
for 	smoking 	methamphetamine, 	a 	prescription 	bottle 	of
Metadate pills,1 a small baggie of marijuana, and a pipe for
1. 	Metadate 	is 	a 	brand 	name 	for 	the 	prescription 	drug
methylphenidate, a central nervous system stimulant used to
(continued…)

State v. Bruhn
20160382-CA 	3 	2019 UT App 21
smoking marijuana. Among the debris around the wrecked car,
officers also discovered an open container of alcohol inside a
bag, plastic baggies and latex gloves inside another bag, and a
prescription bottle of methylphenidate pills. According to the
labels on both bottles of prescription pills, neither had been
prescribed to Bruhn.
¶6 	Based 	on 	the 	drugs, 	drug 	paraphernalia, 	and 	open
container discovered at the accident scene, the State charged
Bruhn 	with 	possession 	of 	methamphetamine, 	possession 	of
Metadate, 	possession 	of 	methylphenidate, 	possession 	of
marijuana, and operating or riding in a motor vehicle with an
open container. Bruhn and the driver were tried together.
¶7 	During opening statements, Bruhn’s trial counsel told the
jury that Bruhn “was seriously injured in [the] accident” and, as
a result, “she lost a lot of her memory and not a lot of [it] . . . has
returned to her.” Her trial counsel added that Bruhn “is going to
be listening to what transpires today, look[ing] at the exhibits,
and then she’ll make a determination as to whether or not she
can remember anything that she can offer to you by way of
testimony.” Bruhn ultimately chose not to testify. In closing
argument, 	Bruhn’s 	trial 	counsel 	again 	referenced 	Bruhn’s
memory loss and her injuries from the accident, stating, “I can
tell you that Sandra Bruhn has gone through a lot on this, I’ve
indicated that she couldn’t testify because there is a lot of her
memory that is gone from the accident.” He urged the jury to
“not assume that she knew what was in those bags just because
her driver’s license was in there” and suggested that there were
questions 	regarding 	possession 	that 	“it 	would 	have 	been
(…continued)
treat 	conditions 	such 	as 	attention 	deficit 	hyperactivity
disorder. National Capital Poison Center, ADHD Drugs: An
Overview, https://www.poison.org/articles/2011-dec/adhd-drug-
overview [https://perma.cc/49T4-UKM4].

State v. Bruhn
20160382-CA 	4 	2019 UT App 21
[helpful] to have been able to answer but we cannot.” At the
conclusion of the trial, the jury convicted Bruhn of all charges.
¶8 	After trial but before sentencing, Bruhn submitted a letter
to the district court in which she “admit[ted] possession of meth,
possession of marijuana, and possession of the prescriptions.” At
her sentencing hearing, Bruhn stated that she was prepared to
“take accountability” for her actions and admitted that she
moved her identification into the purse “with all of the drugs.”
Bruhn also stated that she appeared to behave differently at
sentencing than she had during her initial court appearances
because she had previously been suffering from pneumonia. The
district court sentenced Bruhn to prison and recommended that
she receive substance abuse treatment while incarcerated.
¶9 	Bruhn appealed her convictions, arguing that her trial
counsel provided ineffective assistance of counsel in failing to
request a competency evaluation prior to trial. Shortly after this
court set a briefing schedule, Bruhn filed a petition for inquiry
into competency on appeal in the district court and sought a stay
in this court. This court granted her motion for a stay and the
district 	court 	subsequently 	determined 	that 	Bruhn 	was
competent to proceed on appeal.
¶10 	Bruhn 	then 	filed 	a 	rule 	23B 	motion 	to 	remand 	for
fact-finding 	on 	her 	ineffective 	assistance 	of 	counsel 	claim,
arguing that trial counsel “provided ineffective assistance of
counsel by failing to seek a competency evaluation [before trial]
. . . and that ineffective assistance prejudiced [Bruhn] because it
almost certainly allowed her to be convicted in an incompetent
state 	[of 	mind].” 	Attached 	to 	the 	rule 	23B 	motion 	was an
affidavit from Bruhn and an affidavit from a psychologist. In
Bruhn’s affidavit, she stated, “After the accident, I suffered from
memory problems. I had extreme difficulty remembering details
of events throughout my life, and especially events immediately
preceding the accident.” She added, “I told my [trial counsel]
about my memory issues” and “[a]t the time of trial, I still had
memory problems.” In a separate affidavit, the psychologist

State v. Bruhn
20160382-CA 	5 	2019 UT App 21
stated, “I believe there is a substantial probability that I would
have found [Bruhn] incompetent at [the time of trial]” because
“[t]he physical and psychological issues that still afflict [Bruhn]
. . . were present with greater severity [at the time of trial], as she
had 	received 	a 	recent 	head 	injury, 	plus 	was 	not 	properly
medicated and not receiving the medical care she needed.”
¶11 	We denied Bruhn’s rule 23B motion because she had
“failed to allege nonspeculative facts, which, if true, would
demonstrate that her trial counsel’s performance was deficient or
that she was prejudiced by potential deficient performance.” See
Utah R. App. P. 23B.
ISSUE AND STANDARD OF REVIEW
¶12 	Bruhn contends that her trial counsel provided ineffective
assistance in failing to request a competency evaluation on her
behalf. “When a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court ruling
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of
law.” State v. Robertson, 2018 UT App 91, ¶ 21, 427 P.3d 361
(quotation simplified).
ANALYSIS
¶13 	Bruhn argues that her trial counsel should have requested
a competency evaluation because counsel was aware that Bruhn
“continued to suffer from memory loss more than a year after a
traumatic automobile accident,” and that his failure to do so
constituted 	ineffective assistance of 	counsel. In making this
argument, Bruhn concedes that her ineffective assistance of
counsel claim “requires a remand under rule 23B to succeed”
and asks that we reconsider our prior denial of her rule 23B
motion. But even taking the facts in Bruhn’s rule 23B motion and

State v. Bruhn
20160382-CA 	6 	2019 UT App 21
accompanying affidavits to be true, Bruhn cannot show that her
trial counsel provided ineffective assistance.
¶14 	Rule 23B “provides a mechanism for criminal defendants
to supplement the record with facts that are necessary for a
finding of ineffective assistance of counsel but which do not
appear in the record.” State v. Griffin, 2015 UT 18, ¶ 17. To show
that she is entitled to a rule 23B remand, a criminal defendant
must make a motion containing a “nonspeculative allegation of
facts, not fully appearing in the record on appeal, which, if true,
could support a determination that counsel was ineffective.”
Utah R. App. P. 23B.
¶15 	Here, the factual allegations in Bruhn’s motion, even if
true, would not support a determination that her trial counsel’s
performance 	was 	deficient. 	To 	show 	that 	her 	trial 	counsel
rendered 	deficient 	performance, 	Bruhn 	“must 	overcome 	the
strong 	presumption 	that 	counsel 	rendered 	constitutionally
sufficient assistance by showing that counsel’s conduct ‘fell
below an objective standard of reasonableness under prevailing
professional norms.’” Lafferty v. State, 2007 UT 73, ¶ 12, 175 P.3d
530 (citation omitted) (quoting Strickland v. Washington, 466 U.S.
668, 688 (1984)). In evaluating whether the assistance provided
by 	counsel 	was 	deficient, 	courts 	should 	consider 	“all 	the
circumstances,” 	id. 	(quotation 	simplified), 	and 	determine
whether counsel “made errors so serious that counsel was not
functioning 	as 	the 	counsel 	guaranteed 	by 	the 	Sixth
Amendment,” State v. Von Niederhausern, 2018 UT App 149, ¶ 26,
427 P.3d 1277 (quotation simplified).
¶16 	We have previously acknowledged that counsel does not
perform deficiently by failing to file a competency petition if he
“had no basis to suspect [the defendant] was incompetent.” State
v. Lee, 2011 UT App 356, ¶ 7, 264 P.3d 239. Rather, counsel
performs 	deficiently 	by 	failing 	to 	request 	a 	competency
evaluation only if counsel has reason to know that the defendant
lacks “a rational and factual understanding of the proceedings
. . . or of the punishment specified for the offense charged,” or

State v. Bruhn
20160382-CA 	7 	2019 UT App 21
has an “inability to consult with . . . counsel and to participate in
the 	proceedings 	. 	. 	. 	with 	a 	reasonable 	degree 	of 	rational
understanding.” 	See 	Utah 	Code 	Ann. 	§ 	77-15-2 	(LexisNexis
2014)2; see also United States v. Dubrule, 822 F.3d 866, 881 (6th Cir.
2016) (“Counsel’s failure to request the trial court to order a
hearing 	or 	evaluation 	on 	the 	issue 	of 	the 	defendant’s
competency 	might 	render 	counsel’s 	performance 	objectively
unreasonable, 	provided 	there 	are 	sufficient 	indicia 	of
incompetence to give objectively reasonable counsel reason to
doubt the defendant’s competency.” (quotation simplified)).
¶17 	Even accepting the facts alleged in Bruhn’s rule 23B
motion as true, we are not persuaded that her trial counsel or all
objectively reasonable counsel would have had a sufficient basis
to suspect that she was incompetent. Bruhn claims that she was
incompetent at the time of trial based on both her memory loss
and the other “physical and psychological issues” referenced by
the psychologist in her affidavit. Because Bruhn’s attorney had
no reason to believe that her memory loss impaired her ability to
assist in her defense and was not aware of any other indicia of
incompetency, we conclude that it was not unreasonable for her
attorney to forgo requesting a competency evaluation in this
case.
¶18 	A defendant’s abilities to “disclose to counsel pertinent
facts, events, and states of mind” and to “testify relevantly” are
among the factors that bear on a defendant’s competence. Utah
Code 	Ann. 	§ 77-15-5(4)(a) 	(LexisNexis 	2014). 	However, 	the
inability to remember the details surrounding the charged crime
does not necessarily suggest an inability to “consult with . . .
counsel 	and 	to 	participate 	in 	the 	proceedings 	. 	. 	. 	with 	a
2. Because Bruhn’s trial took place in December 2015, we cite to
the version of the Utah Code of Criminal Procedure that was in
effect at that time.

State v. Bruhn
20160382-CA 	8 	2019 UT App 21
reasonable degree of rational understanding.”3 Id. § 77-15-2(2). In
her rule 23B motion, Bruhn alleges that she “could not recount
3. We note the overwhelming consensus that the inability to
remember the charged conduct, standing alone, is insufficient to
establish that a defendant is incompetent to stand trial. See
United 	States 	v. 	Andrews, 469 	F.3d 	1113, 	1118–19 	(7th 	Cir.
2006) (concluding 	that 	“amnesia 	alone 	does 	not 	render 	a
defendant incompetent to stand trial”); United States v. Villegas,
899 F.2d 1324, 1341 (2d Cir. 1990) (“A defendant’s amnesia about
events surrounding the crime will not automatically render him
incompetent 	to 	stand trial.”); 	United 	States 	ex 	rel. 	Parson 	v.
Anderson, 481 F.2d 94, 96 (3d Cir. 1973) (per curiam) (holding
that “the fact that the defendant suffered amnesia as to the
commission of the crime, does not, in and of itself, render the
defendant incompetent to stand trial”); United States v. Mota, 598
F.2d 995, 998 (5th Cir. 1979) (explaining that “amnesia does not
constitute incompetency per se to stand trial”); People v. Stahl,
2014 IL 115804, ¶ 27, 10 N.E.3d 870 (recognizing “that amnesia as
to the events surrounding the charges against a defendant does
not per se render him unfit to stand trial”); Richie v. State, 468
N.E.2d 1369, 1371 (Ind. 1984) (“[W]here a defendant understood
charges against him and was fully aware of events since [the
offense], . . . he was competent to stand trial[.]”); State v. Kincaid,
960 A.2d 711, 714 (N.H. 2008) (holding that a claim of amnesia
“alone . . . does not automatically raise a bona fide or legitimate
doubt triggering a due process right to a competency hearing”);
State v. Brooks, 495 N.E.2d 407, 413 (Ohio 1986) (per curiam)
(holding that “amnesia alone is not sufficient to render the
accused incompetent to stand trial” and that the defendant’s
amnesia denied him neither effective assistance of counsel nor
the opportunity to present a defense); Commonwealth v. Barky,
383 A.2d 526, 528 (Pa. 1978) (“We do not believe that appellant’s
amnesia alone denied him either the effective assistance of
counsel or the opportunity to present a defense.”). Nevertheless,
there may be cases in which knowledge of a defendant’s amnesia
(continued…)

State v. Bruhn
20160382-CA 	9 	2019 UT App 21
details that were related to the charges that were filed against
[her],” but she does not allege facts connecting that memory loss
to 	her 	ability 	to 	assist 	in 	her 	own 	defense. 	Without 	such
allegations, there is no basis to conclude that a reasonable
attorney would have viewed her memory loss as an impediment
to her ability to assist in her own defense and an indication of
possible incompetency.
¶19 	The 	New 	Hampshire 	Supreme 	Court 	encountered 	a
similar fact pattern in State v. Kincaid, 960 A.2d 711 (N.H. 2008).
In that case, the defendant claimed that the district court erred in
denying his motion for a competency evaluation and hearing
where 	the 	defendant 	claimed 	that 	he 	could 	not 	remember
anything about the car accident that led to his arrest “and thus
was unable to assist his counsel meaningfully in his defense at
trial.” Id. at 712. The supreme court noted that “a [district] court,
in order to comply with due process, must order an evidentiary
hearing on the issue of competency whenever a bona fide or
legitimate 	doubt 	arises 	whether 	a 	criminal 	defendant 	is
competent to stand trial.” Id. (quotation simplified). However,
the court held that the claim that a defendant has no memory of
the 	event that 	led 	to 	his arrest, 	standing 	alone, 	“does not
automatically raise bona fide or legitimate doubt triggering a
due process right to a competency hearing.” Id. at 714. “There
are many ways a defendant can consult with and assist his trial
counsel with a reasonable degree of rational understanding
without necessarily remembering the details or circumstances of
(…continued)
would place a reasonable defense attorney on notice that a
competency evaluation and hearing should be requested. In
determining whether counsel’s performance was deficient, the
question is not whether Bruhn ultimately would have been
found incompetent to stand trial, but whether all reasonably
competent attorneys would have requested an evaluation under
the circumstances.

State v. Bruhn
20160382-CA 	10 	2019 UT App 21
an event that led to his arrest.” Id. Because the record contained
no 	more 	than 	a 	representation 	that 	the 	defendant 	suffered
amnesia, “the [district] court could reasonably have concluded
that no bona fide or legitimate doubt arose as to the defendant’s
competency.” Id.
¶20 	Similarly, Bruhn’s trial attorney could have reasonably
concluded that Bruhn’s memory loss raised no legitimate doubt
as to her competency to stand trial. Although Bruhn argues that
her trial counsel recognized that her memory loss “prevented
[Bruhn] from properly participating in her own defense,” this
claim is not supported by any facts alleged in Bruhn’s rule 23B
affidavits nor by any evidence in the existing record. Bruhn
points only to trial counsel’s unsupported arguments to the jury,
suggesting that, due to her memory loss, Bruhn could not
provide testimony relevant to whether she possessed the drugs
as charged. But that suggestion is belied by Bruhn’s admissions
at sentencing. Bruhn admitted “possession of meth, possession
of marijuana, and possession of the prescriptions” and never
claimed to have recovered this key memory after trial. Although
she claims that her memory loss at the time of trial impaired her
ability to “recount the details” surrounding the charges, she does
not explain how those details would have been relevant to her
defense. 	Absent 	any 	indication 	that 	Bruhn’s 	memory 	loss
impaired 	her 	ability 	to 	participate 	in 	her 	defense 	in 	some
meaningful way, we cannot say that all reasonable attorneys
would have sought a competency evaluation based on Bruhn’s
memory loss alone.
¶21 	Moreover, Bruhn has not alleged that her counsel knew or
should 	have 	known 	of 	any 	other 	indicators 	of 	Bruhn’s
incompetence. Although the psychologist’s affidavit references
other “physical and 	psychological 	issues,” 	Bruhn makes no
claim that these issues were “known to [trial counsel] at the
time” of her trial. See State v. Biebinger, 2018 UT App 123, ¶ 17,
428 P.3d 36. Bruhn’s affidavit does not allege that she told trial
counsel about any physical or psychological problems other than
her memory loss and nothing in the record or in the affidavits

State v. Bruhn
20160382-CA 	11 	2019 UT App 21
submitted in support of Bruhn’s rule 23B motion suggests that
she exhibited any other symptoms or behaviors that would have
raised doubts as to her competency. See Lee, 2011 UT App 356
(considering whether the defendant’s “behavior was anything
out 	of 	the 	ordinary” 	in 	concluding 	that 	failure 	to 	raise 	a
competency issue was not deficient performance). Accordingly,
because “the facts that were known to [Bruhn’s trial counsel] at
the time [of trial] simply do not amount to obvious signals of
incompetency,” see Biebinger, 2018 UT App 123, ¶ 18, Bruhn has
failed to show that her trial counsel performed deficiently by
failing to request a competency evaluation.
CONCLUSION
¶22 	Bruhn 	has 	failed 	to 	establish 	that 	her 	trial 	counsel
performed 	deficiently 	in 	failing 	to 	request 	a 	competency
evaluation under the circumstances of this case. Accordingly, we
affirm.