State v. Norton

2015 UT App 263
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Plaintiff and Appellee,
v.
DAVID A NDREW NORTON ,
Defendant and Appellant.
Opinion
No. 20140029-CA
Filed October 29, 2015
Third District Court, West Jordan Department
The Honorable Mark S. Kouris
No. 121401244
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Ryan D. Tenney, Attorneys
for Appellee
JUDGE J AMES Z. D AVIS authored this Opinion, in which
JUDGES GREGORY K. O RME and S TEPHEN L. R OTH concurred.
DAVIS, Judge:
¶1 	David Andrew Norton appeals from the district court’s
entry of consecutive sentences. Norton argues that he received
ineffective assistance of counsel during sentencing and that but
for his counsel’s deficient performance, the court would not have
imposed consecutive sentences. In support of his argument,
Norton asks us to remand the case under rule 23B of the Utah
Rules of Appellate Procedure. We deny Norton’s request for a
rule 	23B 	remand 	and 	affirm 	the 	district 	court’s 	sentencing
decision.

State v. Norton
20140029-CA 	2 	2015 UT App 263
BACKGROUND
¶2 	Norton pleaded guilty to two counts of sexual abuse of a
child and one count of attempted disarming of a police officer,
each a second degree felony. At the sentencing hearing, Norton’s
counsel 	requested 	probation 	with 	substance 	abuse 	and 	sex
offender treatment, arguing that Norton’s criminal behavior
“was borne out of his substance abuse.” The district court
rejected counsel’s assertion that Norton’s substance abuse “has
anything to do with” the charges against him and stated, “I deal
with literally hundreds of drug addicted people every week, I
operate a drug court. Because a person is addicted to heroin or
cocaine doesn’t cause them to sexual[ly] molest [a child] on a
number of occasions.” Accordingly, the district court sentenced
Norton to three indeterminate terms of one to fifteen years and
ordered the sentences to run consecutively. Norton appeals,
arguing that his counsel rendered ineffective assistance during
sentencing.
ISSUES AND STANDARDS OF REVIEW
¶3 	As an initial matter, Norton seeks a rule 23B remand to
supplement the record with evidence he claims is necessary for
this court’s review of his ineffective assistance of counsel claim.
“A remand under rule 23B will . . . be granted [only] ‘upon a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.’” State v. Lee, 2014 UT App 4, ¶ 5,
318 P.3d 1164 (quoting Utah R. App. P. 23B(a)).
¶4 	Norton 	also 	argues 	that 	his 	counsel’s 	representation
during sentencing was deficient in several ways. “An ineffective
assistance of counsel claim raised for the first time on appeal
presents 	a 	question 	of 	law.” 	Id. 	¶ 	6 	(citation 	and 	internal
quotation marks omitted).

State v. Norton
20140029-CA 	3 	2015 UT App 263
ANALYSIS
I. A Rule 23B Remand Is Not Warranted.
¶5 	Norton seeks a rule 23B remand to supplement the record
with a Forensic Psychological Examination Summary (FPES)
prepared by a licensed clinical social worker and a Psychosexual
Evaluation (PE) prepared by a psychologist. He asserts that these
two 	reports 	“provide 	critical 	information 	concerning 	[his]
history, character, and rehabilitative needs” and should have
been presented to the district court prior to sentencing.
¶6 	Rule 	23B 	of 	the 	Utah 	Rules 	of 	Appellate 	Procedure
“provides a mechanism for criminal defendants to supplement
the 	record 	with 	facts 	that 	are 	necessary 	for 	a 	finding 	of
ineffective assistance of counsel” where the inadequacy of the
record on appeal is a result of the ineffective assistance alleged.
State 	v. 	Griffin, 	2015 	UT 	18, 	¶ 17. 	“There 	are 	four 	basic
requirements for obtaining a 23B remand. First, the motion must
be supported by affidavits setting forth” facts that are not
“contained in the existing record.” State v. Johnston, 2000 UT App
290, ¶¶ 8–9, 13 P.3d 175 (per curiam), overruled in part by Griffin,
2015 UT 18, ¶¶ 19, 27. “Second, the defendant must provide
allegations of fact that are not speculative.” Griffin, 2015 UT 18,
¶ 19. “Third, the allegations must show deficient performance”
by counsel. Johnston, 2000 UT App 290, ¶ 12. And fourth, “the
affidavits supporting the motion must also allege facts that show
the claimed prejudice suffered by the appellant as a result of the
claimed deficient performance.” Id. ¶ 13 (citation and internal
quotation marks omitted); see also Griffin, 2015 UT 18, ¶ 20 (“The
third and fourth elements of the Johnston test come from the
rule’s 	mandate 	that 	the 	alleged 	facts 	could 	support 	a
determination 	that 	counsel 	was 	ineffective.” 	(citation 	and
internal quotation marks omitted)).
¶7 	“It stands to reason that if the defendant could not meet
the test for ineffective assistance of counsel, even if his new

State v. Norton
20140029-CA 	4 	2015 UT App 263
factual allegations were true, there is no reason to remand the
case, and we should deny the [rule 23B] motion.” Griffin, 2015
UT 18, ¶ 20. To succeed on an ineffective assistance of counsel
claim, a defendant must “establish that his counsel rendered a
deficient performance in some demonstrable manner, which
performance 	fell 	below an 	objective 	standard 	of 	reasonable
professional judgment.” Id. ¶ 15 (citation and internal quotation
marks omitted). The defendant must also “show that counsel’s
performance 	prejudiced 	[him], 	meaning 	that 	there 	is 	a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. (citation and internal quotation marks omitted).
A. 	The Forensic Psychological Examination Summary
¶8 	We consider the reports on which Norton bases his rule
23B motion, the FPES and PE, “solely to determine the propriety
of remanding [his] ineffective assistance of counsel claim[] for
[an] evidentiary hearing[].” See State v. Bredehoft, 966 P.2d 285,
290 (Utah Ct. App. 1998). Norton alleges that his counsel was
aware of the FPES and its contents; Norton found the FPES in his
counsel’s 	file. 	Therefore, 	he 	argues, 	his 	counsel’s 	failure 	to
present 	the 	FPES 	prior 	to 	sentencing 	was 	deficient 	and
prejudicial. The FPES does contain some information that may
have been helpful to Norton. For instance, the FPES indicates
that Norton does not have a history of sexual abuse, and it states,
“It would be reasonable to assume that if [Norton] could receive
sexual offender therapy, supervision from the pre-trial program,
be required to do drug testing, and avoid unsupervised contact
with minors, then [his] danger to the community could be
reduced” to “a low to moderate probability of risk.” The FPES
concludes that Norton should receive supervised release.
¶9 	Much of this information, however, is already in the
record, albeit absent the same professional imprimatur of the
FPES. The presentence investigation report (PSI) indicates that

State v. Norton
20140029-CA 	5 	2015 UT App 263
Norton needs substance abuse treatment and that he does not
have a history of sexual abuse. And several character-reference
letters submitted by Norton’s family and friends suggest that
Norton 	is 	not 	a 	danger 	to 	the 	community 	and 	can 	be
rehabilitated.
¶10 	Additionally, the FPES contains some information that is
unfavorable to Norton’s argument for lenient sentencing. The
FPES describes Norton as having “impulsive sexual urges,”
“compulsive sexual behavior,” and a “fixation” on the victim,
and it indicates that Norton’s sexual urges “will likely continue
unless 	[he] 	receives 	treatment 	in 	a 	structured 	treatment
program.” In light of this unfavorable information and the fact
that most of the favorable information in the FPES is largely
duplicative, 	counsel’s 	decision 	to 	withhold 	the 	report 	at
sentencing was a reasoned and sound strategy. See Griffin, 2015
UT 18, ¶ 21 (“[W]e indulge in the strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance; that is the defendant must overcome the
presumption 	that, 	under 	the 	circumstances, 	the 	challenged
action might be considered sound trial strategy.” (citation and
internal quotation marks omitted)). Because counsel did not
perform deficiently by withholding the FPES, counsel did not
render ineffective assistance 	in 	this regard. See Archuleta v.
Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 (recognizing that a court
reviewing 	an 	ineffective 	assistance 	claim 	does 	not 	need 	to
address both deficiency and prejudice if it determines that the
defendant has made “an insufficient showing on one” (citation
and 	internal 	quotation 	marks 	omitted)). 	We 	therefore 	deny
Norton’s request for a rule 23B remand on the FPES issue. See
Griffin, 2015 UT 18, ¶ 20.
B. 	The Psychosexual Evaluation
¶11 	We also deny Norton’s request for a rule 23B remand with
regard to the PE based on a lack of prejudice. Unlike the FPES,

State v. Norton
20140029-CA 	6 	2015 UT App 263
the PE was obtained by Norton’s appellate counsel. The PE
indicates that Norton is generally not aggressive, has a stable
work history, presents a low risk of committing another sex
offense, and feels shame and regret for his criminal actions.
However, this information is also contained in the PSI and the
character-reference letters and was stated by Norton during
allocution.
¶12 	The 	PE 	also 	explains 	that 	Norton 	“may” 	have 	an
untreated 	“cyclic 	emotional 	disturbance” 	that 	was 	“likely
exacerbated” by his substance abuse and cessation, and that
Norton’s 	substance 	abuse 	and 	cessation 	also 	“probably
contributed” to his criminal behavior. However, this argument is
couched 	in 	speculative 	language—i.e., 	“may,” 	“likely,” 	and
“probably”—and the district court already expressly rejected the
notion that Norton’s substance abuse was a cause for leniency. It
is unlikely that this speculation over a possible “emotional
disturbance” would have been sufficient to persuade the district
court otherwise.
¶13 	Furthermore, the PE contains a significant amount of
negative information. It describes Norton as minimizing his
responsibility for sexually abusing the victim and attributing the
abuse to his “feeling sexually deprived” after separating from
his wife, his communication problems with his wife, and other
problems 	in 	his 	family. 	The 	PE 	also 	describes 	Norton 	as
explaining that “he would not have committed a sex offense had
[the victim] not been curious and interested in sex,” that he
“‘wasn’t interested in forcing anything,’” and that he “was
careful to ask [the victim] about performing oral sex on him,
rationalizing that ‘maybe she want[ed] to.’” The PE concluded
that Norton “does not have sufficient motivation to be able to
successfully complete a sex offender treatment program,” that
his “prognosis for a good outcome is questionable,” and that his
“likelihood of success in the community seems mixed.”

State v. Norton
20140029-CA 	7 	2015 UT App 263
¶14 	Likewise, during the sentencing hearing, the district court
expressed concern that Norton minimized his responsibility for
his crimes. The evidence before the court that supported this
concern 	included 	the 	PSI 	and 	Norton’s 	statements 	during
allocution. The PSI quoted Norton as having described the
sexual abuse as “‘accidental’” and the behavior underlying the
disarming an officer charge as “‘not intentional.’” And during
allocution, Norton explained that he only “cupped over [the
victim’s] private area, her genitalia, there was no rubbing, there
was no insertion, there was no suggestion of any of that”; that
“there 	was 	no 	overt 	action”; 	that 	he 	does 	not 	remember
requesting oral sex from the victim; and that the “facts are
skewed 	and 	misrepresented 	as 	presented 	by 	the 	victim’s
mother.” Given the court’s concerns that Norton had not taken
“any responsibility” for his actions, it is unlikely that the court
would have considered the PE, with its description of additional
ways in which Norton rationalized his behavior and deflected
blame, 	as 	helpful 	to 	Norton’s 	request 	for 	leniency, 	simply
because it also suggests that Norton’s substance abuse and
cessation “probably contributed” to his criminal behavior and
“likely 	exacerbated” 	an 	untreated 	emotional 	disturbance 	he
“may” have. Accordingly, counsel’s failure to obtain the PE and
present it to the district court before sentencing did not prejudice
Norton. See State v. Griffin, 2015 UT 18, ¶¶ 15, 21. Because
Norton 	cannot 	“meet 	the 	test 	for 	ineffective 	assistance 	of
counsel, even if his new factual allegations were true, there is no
reason to remand the case” under rule 23B. See id. ¶ 20. We
therefore deny Norton’s rule 23B motion in its entirety.
II. Norton’s Counsel Was Not Ineffective.
¶15 	Norton relies on the contents of his rule 23B filings to
support the ineffective assistance arguments in his appellate
brief. As stated above, “[w]e consider affidavits supporting Rule
23B motions solely to determine the propriety of remanding
ineffective assistance of counsel claims for evidentiary hearings.”

State v. Norton
20140029-CA 	8 	2015 UT App 263
See State v. Bredehoft, 966 P.2d 285, 290 (Utah Ct. App. 1998). The
FPES, PE, and accompanying affidavits are therefore not a part
of the record before this court, and “we do not consider new
evidence on appeal.” See id. (citation and internal quotation
marks omitted). Moreover, based on our analysis of Norton’s
rule 23B motion, even if we were to consider his rule 23B filings,
we 	would 	reach 	the 	same 	conclusion—that 	he 	has 	not
demonstrated that his counsel was ineffective.
¶16 	Aside from the arguments in Norton’s brief that rely on
his rule 23B affidavits, Norton argues that counsel performed
deficiently by failing to properly argue against the imposition of
consecutive 	sentences. 	He 	asserts 	that 	counsel 	failed 	to
investigate his personal “history, character, and rehabilitative
needs” and failed to consult with a mental health professional.
As a result, he argues, the district court ordered consecutive
sentences without having the requisite evidence before it.
¶17 	As indicated above, to succeed on an ineffective assistance
of counsel claim, a defendant must demonstrate that his counsel
performed deficiently and that counsel’s deficient performance
prejudiced him. Griffin, 2015 UT 18, ¶ 15; see also Archuleta v.
Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 (noting that failure to
satisfy one prong of the ineffective assistance test is fatal to a
defendant’s claim). To demonstrate deficient performance, a
“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.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (alteration in
original) 	(emphasis, 	citations, 	and 	internal 	quotation 	marks
omitted). 	“The 	court 	give[s] 	trial 	counsel 	wide 	latitude 	in
making tactical decisions and will not question such decisions
unless 	there 	is 	no 	reasonable 	basis 	supporting 	them.” 	Id.
(alteration in original) (citation and internal quotation marks
omitted).

State v. Norton
20140029-CA 	9 	2015 UT App 263
¶18 	First, 	we 	note 	that 	by 	Norton’s 	own 	admission, 	his
counsel did, in fact, have access to a report from a licensed
clinical social worker prior to sentencing—Norton indicated that
he obtained the FPES from his attorney’s files. Additionally,
counsel obtained and submitted to the court seven favorable
character-reference letters from members of Norton’s family,
church, and community that described Norton as an intelligent,
religious, 	motivated, 	affable 	person. 	The 	letters 	attributed
Norton’s criminal behavior to his substance abuse and expressed
optimism regarding Norton’s ability to turn his life around if
granted leniency. The PSI also contained information pertaining
to Norton’s personal life, living situation, education, finances,
employment 	history, 	criminal 	history, 	and 	substance-abuse
history. Accordingly, we reject Norton’s assertion that counsel
failed to investigate his “history, character, and rehabilitative
needs” or to consult with a mental health professional.1
¶19 	Next, we consider whether counsel’s failure to submit the
FPES amounted to deficient performance. We do so without
considering the substance of the FPES, as that document is not in
the record on appeal. Instead, we evaluate whether counsel had
a reasonable strategic basis for not submitting that document.
Here, 	we 	can 	safely 	assume 	that 	counsel 	may 	not 	have
considered the FPES sufficiently favorable, relying instead on the
favorable letters and Norton’s well-written statement of remorse
1. Counsel’s 	failure 	to 	seek 	out 	another 	mental 	health
professional 	and, 	e.g., 	obtain 	a 	psychosexual 	evaluation,
particularly if the first mental health professional’s report is less
than stellar, does not amount to deficient performance. Cf. State
v. 	Munguia, 	2011 	UT 	5, 	¶ 33, 	253 	P.3d 	1082 	(rejecting 	an
ineffectiveness argument based on counsel’s failure to obtain an
additional psychosexual evaluation and noting that the results of
any additional evaluation were purely speculative and could
have been unfavorable).

State v. Norton
20140029-CA 	10 	2015 UT App 263
that he read during allocution to persuade the court to be
lenient. This information stressed Norton’s remorse, portrayed
him as a driven person who has the skills and desire to turn his
life around, and demonstrated the strength of his personal
support 	system. 	That 	the 	court 	ultimately 	did 	not 	see 	the
evidence 	that 	way, 	however, 	does 	not 	render 	counsel’s
performance deficient.
¶20 	Because “a rational basis for counsel’s performance can be
articulated, [the court] will assume counsel acted competently.”
See State v. Bryant, 965 P.2d 539, 542–43 (Utah Ct. App. 1998)
(alteration in original) (citation and internal quotation marks
omitted). Accordingly, Norton has not demonstrated that his
counsel rendered ineffective assistance during sentencing.2
CONCLUSION
¶21 	We deny Norton’s motion for a rule 23B remand and
affirm the district court’s sentencing decision.
2. Norton 	also 	suggests 	that 	the 	district 	court 	“illegal[ly]
stack[ed] three 1–15 [year] sentences” under Utah Code section
76-3-401(6)(a). See Utah Code Ann. § 76-3-401(6)(a) (LexisNexis
2012). “If a court imposes consecutive sentences, the aggregate
maximum of all sentences imposed may not exceed 30 years
imprisonment.” Id. We reject this argument and note that this
Utah Code section explicitly states, “This section may not be
construed 	to 	restrict 	the 	number 	or 	length 	of 	individual
consecutive sentences that may be imposed or to affect the
validity of any sentence so imposed, but only to limit the length
of sentences actually served under the commitments.” See id.
§ 76-3-401(10).