McCormick v. State

2014 UT App 49
_________________________________________________________
THE UTAH COURT OF APPEALS
CHRIS E. MCCORMICK,
Petitioner and Appellant,
v.
STATE OF UTAH,
Respondent and Appellee.
Per Curiam Decision
No. 20131012-CA
Filed March 6, 2014
Third District Court, West Jordan Department
The Honorable Charlene Barlow
No. 130411713
Chris E. McCormick, Appellant Pro Se
Before JUDGES J. FREDERIC VOROS JR., MICHELE M. CHRISTIANSEN,
and JOHN A. PEARCE.
PER CURIAM:
¶1 Chris E. McCormick appeals the district court’s dismissal of
his petition for post-conviction relief as frivolous. This matter is
before the court on its own motion for summary disposition on the
basis that the grounds for review are too insubstantial to merit
further proceedings and review.
¶2 McCormick alleged in his petition for post-conviction relief
that his guilty plea was not knowing and voluntary. Further, he
asserted that he received ineffective assistance of counsel. The
district court determined that the claims were “frivolous on their
face because they do not support a claim for relief as a matter of
law and have no arguable basis in fact.” We review the dismissal
of a petition for post-conviction relief for correctness, granting no

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20131012-CA 2 2014 UT App 49
deference to the district court. See Gardner v. State, 2010 UT 46, ¶ 55,
234 P.3d 1115. “With respect to any ineffectiveness claim, a
defendant must first demonstrate that counsel’s performance was
deficient, in that it fell below an objective standard of reasonable
professional judgment. Second, the defendant must show that
counsel’s deficient performance was prejudicial—i.e., that it
affected the outcome of the case.” State v. Litherland, 2000 UT 76,
¶ 19, 12 P.3d 92 (citations omitted).
¶3 The district court correctly determined that McCormick
failed to plead facts that would support a claim for relief as a
matter of law. First, in his petition McCormick asserted that his
plea was not voluntary and knowing, because his counsel acted
ineffectively by indicating to McCormick that by pleading guilty,
he would probably only spend a few days in jail. McCormick could
not prevail on this claim because the Statement in Support of the
Guilty Plea clearly informed McCormick that he could be
sentenced to the maximum penalty allowed by law. Further, the
Statement indicated that the district court was not obligated to
follow the parties’ recommendations. Thus, regardless of his
attorney’s suppositions about the possible sentence, McCormick
was put on notice that the sentence could be greater than what his
attorney expected. Similarly, McCormick alleged that his counsel
was ineffective because the attorney was being investigated by the
Utah State Bar and eventually lost his license. However, that
information alone is insufficient to demonstrate ineffective
assistance of counsel. McCormick made no allegations concerning
the quality of the attorney’s work or the attention that was paid to
McCormick’s case. Further, McCormick made no allegations that
tied the bar action against the attorney to the decision to enter a
negotiated plea. Accordingly, McCormick failed to set forth any
facts that, if true, could support a claim for relief that his plea was
not knowing and voluntary due to the ineffectiveness of his
counsel.
¶4 Finally, McCormick argues that counsel who represented
him at sentencing was ineffective for failing to reference certain

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20131012-CA 3 2014 UT App 49
mitigating factors, as well as the Presentence Investigation Report’s
(PSI) recommendation that McCormick be sentenced to probation.
The district court noted that the PSI, which was attached to the
petition, contained all of the mitigating factors McCormick claimed
that his counsel failed to emphasize. Further, the district court
stated that it had thoroughly reviewed the PSI prior to sentencing
and had taken into account all of the mitigating information and
the PSI’s recommendation before sentencing. Accordingly, the
district court correctly concluded that the claim failed as a matter
of law because the facts set forth in McCormick’s petition failed to
demonstrate that he was prejudiced by his counsel’s actions.
¶5 Affirmed.