State v. Lantz

2018 UT App 70
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
M ARK JOHN LANTZ ,
Appellant.
Opinion
No. 20160468-CA
Filed April 19, 2018
Fifth District Court, Cedar City Department
The Honorable Keith C. Barnes
No. 131500333
Dale W. Sessions, Attorney for Appellant
Sean D. Reyes and Thomas B. Brunker, Attorneys
for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which J UDGES
GREGORY K. O RME and M ICHELE M. C HRISTIANSEN concurred.
HARRIS, Judge:
¶1 	Mark John Lantz (Defendant) was the owner of, and
passenger 	in, 	a 	vehicle 	that 	was 	pulled 	over 	by 	a 	law
enforcement officer (Officer) in a routine traffic stop. Officer
found marijuana, methamphetamine, and drug paraphernalia in
the vehicle. Before trial, Defendant’s counsel moved to suppress
this evidence, then withdrew the motion to suppress. Defendant
appeals, arguing that his counsel was constitutionally ineffective
by not pressing the motion to suppress. 	We disagree, and
therefore affirm.
¶2 	On June 21, 2013, while patrolling Interstate 15, Officer
noticed a vehicle with a malfunctioning rear turn signal and an
apparently 	malfunctioning 	front 	right 	wheel. 	According 	to

State v. Lantz
20160468-CA 	2 	2018 UT App 70
Officer, 	the 	vehicle 	was 	“bouncing 	all 	over 	the 	road” 	and
“looked 	extremely 	unsafe.” 	Officer 	pulled 	over 	the 	vehicle,
which was occupied by a driver (Driver) and Defendant, who
was sitting in the front passenger seat. After approaching the
vehicle, Officer began speaking with both Driver and Defendant,
and they informed Officer that Defendant was the registered
owner of the vehicle, and that neither one of them had a valid
driver’s license. During the conversation, Officer smelled the
odor of burnt marijuana emanating from the vehicle. Based on
that, Officer asked Driver to step out of the car, at which point
Driver admitted that both Driver and Defendant had smoked
marijuana very recently at a truck stop about 20 miles away.
¶3 	At some point, Defendant also got out of the car, and
Officer 	asked 	Defendant 	a 	series 	of 	questions. 	Because 	no
witness—either at trial or at the pretrial evidentiary hearing in
connection with the motion to suppress—was ever asked about
Miranda1 warnings, there is no indication in the record, one way
or the other, whether Officer gave Defendant Miranda warnings
prior to asking questions. Among other things, Officer asked
Defendant if he had any illegal drugs in the car, and Defendant
refused to answer. Officer then asked Defendant if the drugs
were “on him or in the car” and, according to Officer, this time
Defendant responded by stating that “[t]hey’re in the car.” At
this point, Officer detained Defendant and searched the vehicle.
Officer 	found 	approximately 	$2,000 	in 	cash 	on 	Defendant’s
1. Miranda v. 	Arizona, 	384 U.S. 436 (1966); see also State v.
Macdonald, 2017 UT App 124, ¶ 20, 402 P.3d 91 (explaining that
the Fifth Amendment of the United States Constitution provides
a right against self-incrimination and that “[w]e protect this right
by excluding from a defendant’s criminal trial any incriminating
statement that the defendant made to police officers while under
custodial interrogation if the officers did not give a Miranda
warning” (citation and internal quotation marks omitted)).

State v. Lantz
20160468-CA 	3 	2018 UT App 70
person, 	and 	found 	marijuana, 	methamphetamine, 	and 	drug
paraphernalia in the car. According to Officer, after being asked
about some of the paraphernalia, Defendant admitted it was his.
Officer 	arrested 	both 	Defendant 	and 	Driver. 	After 	taking
Defendant to jail, Officer explained to Defendant that Officer
was seizing the money that had been found on Defendant
because Officer believed the money was associated with drugs.
Officer testified that Defendant replied by saying “Yes,” and
Officer believed that statement to be an affirmation that the
money was associated with drugs.
¶4 	Lantz’s version of events differed from Officer’s. Lantz
testified 	at 	trial 	that 	he 	had 	no 	idea 	that 	there 	was
methamphetamine in the vehicle, and denied that he ever told
Officer that there was. Indeed, Lantz testified that he refused to
answer any of Officer’s questions, and that he never replied by
saying “Yes” to Officer’s remark that the money was being
seized.
¶5 	Prior 	to 	trial, 	Defendant’s 	counsel 	filed 	a 	motion 	to
suppress any and all evidence resulting from the traffic stop.
Defendant’s counsel predicated this motion on the argument
that Officer had “illegally detained, searched, and arrested”
Defendant in violation of the Fourth Amendment to the United
States Constitution. Defendant made no argument based on the
Fifth 	Amendment, 	and 	specifically 	no 	argument 	that 	his
incriminating 	statements 	should 	be 	suppressed 	due 	to 	the
absence of Miranda warnings. After an evidentiary hearing,
Defendant’s counsel asked for leave to file a memorandum
supporting 	the 	motion, 	which 	the 	court 	granted. 	However,
Defendant’s counsel did not ever file any such memorandum,
and later opted to voluntarily withdraw the motion to suppress.
¶6 	After trial, a jury convicted Defendant of two counts of
possession of a controlled substance and one count of possession
of drug paraphernalia. Defendant appeals, and asks us to review

State v. Lantz
20160468-CA 	4 	2018 UT App 70
one 	issue: 	whether 	his 	trial 	counsel 	rendered 	ineffective
assistance by failing to press a motion to suppress.2 When a
defendant asserts, for the first time on appeal, that his trial
counsel was ineffective, “there is no lower court ruling to review
and we must determine whether the defendant was deprived of
the effective assistance of counsel as a matter of law.” State v.
Tirado, 2017 UT App 31, ¶ 10, 392 P.3d 926.
¶7 	To succeed on a claim that counsel was constitutionally
ineffective, 	Defendant 	“must 	show: 	(1) 	that 	counsel’s
performance 	was objectively 	deficient, 	and 	(2) 	a 	reasonable
probability exists that but for the deficient conduct defendant
would have obtained a more favorable outcome at trial.” State v.
Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. To satisfy the first element,
Defendant “must overcome the strong presumption that [his]
trial counsel rendered adequate assistance by persuading the
court that there was no conceivable tactical basis for counsel’s
actions.” 	Id. 	(alteration 	in 	original) 	(citations 	and 	internal
quotation marks omitted). Trial counsel is given “wide latitude
in making tactical decisions,” and courts “will not question such
decisions unless there is no reasonable basis supporting them.”
Id. (citation and internal quotation marks omitted). To satisfy the
second 	element, 	Defendant 	must 	demonstrate 	that 	“‘any
deficiencies in counsel’s performance [were] prejudicial to the
defense.’” State v. Mohamud, 2017 UT 23, ¶ 14, 395 P.3d 133
(alteration in original) (quoting Strickland v. Washington, 466 U.S.
668, 692 (1984)).
2. While Defendant purports to also raise the issue of whether
the jury properly convicted him, all of Defendant’s arguments on
that issue appear to relate to whether Defendant was prejudiced
by his trial counsel’s alleged ineffective assistance. We therefore
construe 	his 	“second 	issue” 	to 	actually 	be 	an 	argument
concerning the prejudice element of the ineffective assistance
analysis.

State v. Lantz
20160468-CA 	5 	2018 UT App 70
¶8 	As to the first element, Defendant contends that his trial
counsel’s performance was deficient because his trial counsel did
not submit a memorandum in support of the motion to suppress.
Defendant maintains that this action constituted “neglect” rather
than “a strategic decision” because “there was no action of any
kind taken to further or withdraw the [m]otion.” Defendant also
appears 	to 	argue 	that 	his 	trial 	counsel’s 	performance 	was
deficient because his trial counsel moved only to suppress all
evidence resulting from the traffic stop, instead of specifically
moving to suppress Defendant’s “confession.” While it is not
entirely clear which of his statements Defendant considers to
have 	been 	his “confession,” 	Defendant 	seeks to bolster the
assertion that his trial counsel should have moved to suppress it
by alleging for the first time on appeal that Defendant was not
Mirandized prior to the “confession.” We are unpersuaded.
¶9 	First, we note that Defendant is mistaken as to the actions
taken by his trial counsel. In fact, Defendant’s trial counsel
affirmatively withdrew the motion to suppress. Further, to the
extent Defendant’s arguments can be read as asserting that his
trial counsel should not have withdrawn the motion, Defendant
does not argue that the motion to suppress would have been
granted had it not been withdrawn. The motion to suppress that
counsel filed (and later withdrew) rested on the assertion that
Officer 	had 	violated 	Defendant’s 	rights 	guaranteed 	by 	the
Fourth 	Amendment, 	but 	Defendant 	makes 	no 	argument
concerning 	the 	Fourth 	Amendment 	on 	appeal. 	Because
Defendant 	does 	not 	set 	forth 	any 	facts 	or 	law 	on 	appeal
supporting the proposition that his Fourth Amendment motion
to suppress would have been successful, a thorough review of
that proposition would require this court to conduct extensive
independent research. Accordingly, the issue is inadequately
briefed. See State v. Turner, 2012 UT App 189, ¶ 29, 283 P.3d 527
(stating that “[a]n issue is inadequately briefed when the overall
analysis is so lacking as to shift the burden of research and
argument 	to 	the 	reviewing 	court” 	(citation 	and 	internal

State v. Lantz
20160468-CA 	6 	2018 UT App 70
quotation marks omitted)). Thus, Defendant has not shown that
his trial counsel’s decision to withdraw the motion to suppress
was objectively deficient.
¶10 	Instead 	of 	advancing 	the 	argument 	that 	his 	Fourth
Amendment motion would have succeeded, Defendant appears
to argue instead that his trial 	counsel 	should have filed a
separate motion to suppress. This separate motion, as Defendant
envisions it, would have prevented his “confession” from being
introduced as evidence, because Defendant offered it “without
[receiving] the Miranda warning.” However, Defendant still has
not 	demonstrated 	that 	his 	trial 	counsel’s 	performance 	was
objectively deficient, because the factual premise underlying any
Miranda motion is that a defendant was never given Miranda
warnings, and that factual premise is unsupported in the record.
¶11 	Indeed, there is no evidence indicating that Defendant did
not receive Miranda warnings prior to his “confession.” No
witness was asked about the presence or absence of Miranda
warnings during either of the two evidentiary proceedings that
took place before the trial court. Thus, the record is simply
devoid of any evidence that Miranda warnings were not given.
¶12 	In such circumstance, we might expect an appellant to
obtain an affidavit from a witness—say, Defendant—averring
that no Miranda warnings were given, and asking us to remand
the case to the trial court to enter findings of fact “necessary for
the appellate court’s determination of a claim of ineffective
assistance of counsel.” Utah R. App. P. 23B. However, Defendant
has not filed a rule 23B motion, much 	less submitted one
supported 	by 	an 	affidavit 	from 	any 	witness 	averring 	that
Miranda warnings were not given. Under these circumstances,
“[i]t should go without saying that the absence of evidence
cannot overcome the strong presumption that counsel’s conduct
[fell] 	within 	the 	wide 	range 	of 	reasonable 	professional
assistance.” State v. Gerber, 2015 UT App 76, ¶ 14, 347 P.3d 852

State v. Lantz
20160468-CA 	7 	2018 UT App 70
(second alteration in original) (citations and internal quotation
marks omitted). Indeed, a defendant “cannot meet his burden by
merely pointing out what counsel did not do; he must bring
forth the evidence that would have been available in the absence
of counsel’s deficient performance.” State v. Lee, 2014 UT App 4,
¶ 12, 	318 	P.3d 	1164. 	Defendant 	has 	not 	done 	so 	here.
Accordingly, 	Defendant 	has 	not 	established 	that 	his 	trial
counsel’s performance was objectively deficient.
¶13 	Moreover, 	we 	note 	that 	Defendant 	also 	has 	not
demonstrated that the alleged deficiencies in his trial counsel’s
performance were prejudicial to his defense. Defendant alleges
only that “had the jury not had [Defendant’s] confession before
it, there is a reasonable belief that the jury could have reached
reasonable doubt as to [Defendant’s] guilt.” However, even if we
assume 	that 	all 	of 	Defendant’s 	statements 	to 	Officer 	were
suppressed, the evidence would still have clearly shown that
Defendant was apprehended, with a large amount of cash, in a
vehicle 	he 	owned 	and 	in 	which 	officers 	located
methamphetamine and marijuana, with a Driver who testified
that Defendant and Driver had recently been using marijuana.
We do not see in this context how the omission of Defendant’s
statements to Officer would have altered the outcome at trial. See
Clark, 2004 UT 25, ¶¶ 5, 9 (holding that a defendant did not
receive ineffective assistance of counsel when trial counsel failed
to challenge certain trial testimony because “the State presented
overwhelming 	evidence 	of 	[the] 	defendant’s 	guilt”).
Accordingly, 	Defendant 	also 	has 	not 	met 	his 	burden 	to
demonstrate that any allegedly deficient performance rendered
by his trial counsel prejudiced his defense.
¶14 	Affirmed.