State v. Tapusoa

2020 UT App 92

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
RAYMOND FAALILI TAPUSOA,
Appellant.

Opinion
No. 20190244-CA
Filed June 11, 2020

Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 181912058

Herschel Bullen, Attorney for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

MORTENSEN, Judge:

¶1 Raymond Faalili Tapusoa pled guilty to two felonies, and
the matter was set for sentencing. At the sentencing hearing,
Tapusoa sought to have his mother address the court. The
district court refused to hear from her directly but indicated that
any information she had could be relayed to the court via
Tapusoa’s counsel. Tapusoa appeals his sentence, claiming the
district court erred in precluding his mother from addressing the
court directly. He also asserts his defense counsel rendered
ineffective assistance in failing to object to a restitution
determination made at that same hearing. We affirm the district
court’s sentence and conclude that the ineffective assistance of
counsel claim fails.
State v. Tapusoa

BACKGROUND

¶2 In response to several charges the State brought against
Tapusoa for criminal conduct related to his theft of a car from a
home, Tapusoa pled guilty to one count of burglary and one
count of possession of a firearm by a restricted person. The State
dismissed the remaining charges. During the hearing, Tapusoa
agreed to pay restitution for his offenses, including for the
dismissed charges.

¶3 Prior to the sentencing hearing, the district court received
an impact statement prepared by the victim and a pre-sentence
report (PSR) prepared by Adult Probation and Parole (AP&P).
The victim impact statement included an itemized list of
expenses and losses attributable to Tapusoa’s criminal conduct
totaling $3,167.66. The PSR included a recommendation for that
same amount for the victim’s restitution.

¶4 After receiving those reports, the district court held a
sentencing hearing. At the outset, defense counsel declared that
she had “no corrections or additions” to the PSR, which included
the restitution recommendation. The court then heard from a
social worker for the defense and from defense counsel, who
asked if Tapusoa’s mother (Mother) could “address the court.”
The court, however, declined to hear from Mother directly, and
instead directed defense counsel to “relay her information” to
the court. Tapusoa’s counsel thereafter conveyed Mother’s
frustrations with and hopes for Tapusoa, as well as her view that
Tapusoa should be afforded an opportunity to receive some
much-needed drug treatment.

¶5 Also at the hearing, the victim of Tapusoa’s crimes
testified at length and articulated that he had incurred “over
$3,000” in damages for repairs to the stolen car, for missing and
damaged personal property in the car at the time of the theft,
and to replace locks on his house and other vehicles because
those keys were stolen along with the car. The State then offered
its remarks, including a recommendation for restitution in the

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State v. Tapusoa

amount of $3,167.66, according to the itemized list provided.
Defense counsel’s sole comment related to restitution expressed
that it would be harder for Tapusoa to make restitution if he
were incarcerated; counsel did not object to the State’s
recommended restitution amount. The court invited Tapusoa to
make a statement, which he did. The court then sentenced
Tapusoa to concurrent prison terms for the convicted offenses
and ordered Tapusoa to pay restitution in the amount of
$3,167.66.

¶6 The day after the sentencing hearing, defense counsel
filed an objection to the restitution amount and requested a
hearing. The court subsequently held a hearing to address the
objection. Despite the State’s argument that Tapusoa had waived
any objection to the restitution imposed at the sentencing
hearing, the court invited defense counsel to offer her “objection
about the [specific amount].” Defense counsel responded that
she sought more specificity in the valuation of the claimed
expenses and losses, opining that the amount was “not
necessarily . . . too much,” but that she wanted additional
evidence that the expenses and losses were “fair market values”
and proximately caused by Tapusoa’s criminal conduct.
The State, for its part, argued that in addition to being
waived, the restitution amount should remain unchanged
because it was sufficiently proved by evidence, including the
AP&P recommendation, the victim’s testimony, and the
itemized list. The court resolved the issue, commenting that it
was “going to . . . find that [section 77-38a-203(2) of the Utah
Code] actually controls that as far as complete restitution.” The
district court judge explained, “I suppose the issue may be a
little bit different if there was even now some specific
information that one can interpret as some kind of objection. But
what I’m getting right now is—is that they just want more
receipts.” The court declined to alter the previous restitution
determination.

¶7 Tapusoa appeals.

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State v. Tapusoa

ISSUES AND STANDARDS OF REVIEW

¶8 Tapusoa presents two issues on appeal. First, he
asserts that the district court violated his due process right of
allocution and rule 22(a) of the Utah Rules of Criminal
Procedure by refusing to allow Mother to address the court at
the sentencing hearing. Tapusoa’s argument regarding his right
of allocution presents a question of law, “which we review for
correctness, granting no particular deference to the conclusions
of the trial court.” See State v. Kelson, 2015 UT App 91, ¶ 5, 348
P.3d 373 (cleaned up). However, inasmuch as Tapusoa
challenges the district court’s management of the manner in
which information was presented at sentencing, we review his
claim for abuse of discretion. See State v. Daughton, 2013 UT App
170, ¶ 18, 308 P.3d 537 (“The trial court has substantial discretion
in conducting sentencing hearings . . . , and we will in general
overturn the trial court’s sentencing decisions only if we find an
abuse of discretion.” (cleaned up)). Cf. Maxfield v. Herbert, 2012
UT 44, ¶ 11, 284 P.3d 647 (“Within the bounds set by rule and
statute, . . . a district court’s management of its docket . . . is
reviewed for an abuse of discretion.” (cleaned up)).

¶9 Second, Tapusoa contends that his defense counsel
rendered ineffective assistance by “failing to object to the court’s
order of restitution at the time of sentencing.” “A claim of
ineffective assistance of counsel raised for the first time on
appeal presents a question of law, which we consider de novo.”
State v. King, 2018 UT App 190, ¶ 11, 437 P.3d 425 (cleaned up).

ANALYSIS

I. Rights at Sentencing

¶10 Tapusoa asserts that the district court violated his right of
allocution and rule 22(a) of the Utah Rules of Criminal
Procedure by refusing to allow Mother to directly address the
court at the sentencing hearing. We disagree.

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State v. Tapusoa

¶11 A defendant has “both a constitutional and statutory right
to be heard before the trial court impose[s] sentence.” West Valley
City v. Walljasper, 2012 UT App 252, ¶ 12, 286 P.3d 948 (citing
Utah Const. art. I, § 12; Utah R. Crim. P. 22(a)); see also Utah
Const. art. I, § 7; State v. Wanosik, 2003 UT 46, ¶ 19, 79 P.3d 937.
While “the right to allocution is nowhere specifically granted in
either the State or the federal constitution,” it is “an inseparable
part of the right to be present.” Wanosik, 2003 UT 46, ¶ 20
(cleaned up). A “defendant’s right to allocution is satisfied so
long as the sentencing hearing was held in the defendant’s
presence and the defendant had an opportunity to speak” to
provide the court “with reasonably reliable and relevant
information regarding sentencing.” State v. Kelson, 2015 UT App
91, ¶ 7, 348 P.3d 373 (cleaned up).

¶12 Here Tapusoa was inarguably permitted his right of
allocution. See id.; see also State v. Apadaca, 2015 UT App 212, ¶ 10,
358 P.3d 1124 (“Violations of a defendant’s right to allocution
usually involve situations where the court has prevented or
prohibited the defendant from speaking altogether or imposed
sentence in the defendant’s absence.” (cleaned up)). Tapusoa
was personally present at the sentencing hearing and he was
invited by the court to make a statement—an opportunity
of which he availed himself. Accordingly, the court satisfied all
that is required of it in affording Tapusoa the opportunity to
make a statement while present at the sentencing hearing. See
Kelson, 2015 UT App 91, ¶ 7. Thus, the court did not violate
Tapusoa’s right of allocution.

¶13 Relatedly, “rule 22(a) of the Utah Rules of Criminal
Procedure codifies a criminal defendant’s right to allocution.”
State v. Tingey, 2014 UT App 228, ¶ 8, 336 P.3d 608; see also
Wanosik, 2003 UT 46, ¶ 21 (Rule 22(a) stems from right of
allocution). Rule 22(a) provides, in relevant part, that “[b]efore
imposing sentence the court must afford the defendant an
opportunity to make a statement and to present any information

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State v. Tapusoa

in mitigation of punishment, or to show any legal cause why
sentence should not be imposed.” Utah R. Crim. P. 22(a). 1 The
rule “includes not only the defendant personally, but also the
defendant’s counsel,” “affording defense counsel the
opportunity to make a statement and provide information in
mitigation of sentence” to ensure that “a defendant is afforded
the Sixth Amendment right to counsel.” 2 Wanosik, 2003 UT 46,
¶¶ 19–20.

¶14 In this case, the court did not violate rule 22(a). While that
rule provides that a defendant and defense counsel be afforded
an opportunity to make a statement and present information, it
does not entitle others to make a statement for the defense, nor
does it entitle the defense to present other information in any
particular format. See Utah R. Crim. P. 22(a). Tapusoa provides
us with no analysis or citation to legal authority suggesting that
a defendant is entitled to dictate the means by which such other
information is presented at sentencing. And our review of
relevant case law suggests that a court possesses discretion to

1. See also Utah Code Ann. § 77-18-1(7) (LexisNexis Supp. 2018)
(addressing testimony, evidence, and information that the
defense or prosecution may present at sentencing). Because
Tapusoa does not make any argument pursuant to this statute,
we limit our discussion to the arguments Tapusoa raises: the
right to allocution and rule 22 of the Utah Rules of Criminal
Procedure.

2. Though not at issue here, we note as a matter of completeness
that “the prosecution is also guaranteed an opportunity to
present information to the court relevant to sentencing, ensuring
fairness and balance in the sentencing process.” State v. Wanosik,
2003 UT 46, ¶ 22, 79 P.3d 937; see also Utah Code Ann. § 77-18-
1(7) (“At the time of sentence, the court shall receive any
testimony, evidence, or information the defendant or the
prosecuting attorney desires to present concerning the
appropriate sentence.”).

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limit the manner in which such other information is presented.
See generally State v. Lindsey, 2014 UT App 288, ¶ 13, 340 P.3d 176
(holding that the district court did not abuse its discretion in
sentencing defendant without a presentence investigation where
defendant had presented and the court had already “received all
of the information that both the prosecutor and [defendant]
wanted to present”); State v. Senior, 2005 UT App 389U, para. 6
(“However, even if the trial court did not physically read the
evaluation, there was no prejudice to the defendant because both
defendant and his counsel were allowed to address the trial
court prior to sentencing, . . . and defendant’s counsel
thoroughly apprised the trial court of the relevant portions of the
evaluation prior to the imposition of sentence.” (cleaned up)).
Thus, beyond the statements by a defendant and defense
counsel, so long as the defense has an opportunity to present
mitigating information to the court, a court may in its discretion
place limits on the manner in which such information is
presented to it at sentencing.

¶15 Here, although the district court refused to hear directly
from Mother during the sentencing hearing, it received the
information Tapusoa intended to present from Mother through
other means. The information was presented in the subsequent
statements made by defense counsel expressing Mother’s
views—which Tapusoa admits relayed, “after a fashion, some of
what [Mother] would have said” 3—and in the PSR, which

3. On appeal, Tapusoa does not identify what additional
information relevant to the mitigation of his sentence Mother
would have provided in her own words. He simply asserts that
the proxy statement made by defense counsel “is hardly a
substitute for hearing from [Mother] in her own voice and the
full breadth and depth of what she wished to say to the court.”
Consequently, we are left to surmise that defense counsel
adequately conveyed all the relevant information to the court on
Mother’s behalf, albeit without the heartfelt sincerity and
(continued…)

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State v. Tapusoa

contained additional information from Mother about Tapusoa’s
support in the community and his readiness to address his
“criminogenic factors.” Accordingly, the court did not violate
rule 22(a) by refusing to hear directly from Mother and did not
abuse its discretion in requiring that the information Mother had
to convey be presented through counsel.

II. Ineffective Assistance of Counsel

¶16 Tapusoa contends that his defense counsel rendered
ineffective assistance by “failing to object to the court’s order of
restitution at the time of sentencing.” We disagree.

¶17 To prove ineffective assistance of counsel, a defendant
must “establish both that counsel’s performance was objectively
deficient—meaning counsel rendered demonstrably deficient
performance by objectively unreasonable conduct—and that the
deficient performance prejudiced the defense—meaning there is
a reasonable probability that, but for counsel’s error, the
defendant would have obtained a more favorable outcome.”
State v. Peterson, 2020 UT App 47, ¶ 18, 462 P.3d 421 (citing,
among other cases, Strickland v. Washington, 466 U.S. 668, 687–88
(1984)), petition for cert. filed, May 22, 2020 (No. 20200419). Failure
to prove either element defeats the ineffective assistance of
counsel claim. Id. We do not need to “review the deficient
performance element before examining the prejudice element,”
and “if it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, that course should be
followed.” State v. Ricks, 2018 UT App 183, ¶ 11, 436 P.3d 350
(cleaned up).

¶18 Here, Tapusoa concedes that no prejudice resulted—
“specific items of concrete adversity cannot be articulated”—

(…continued)
personal perspective that only a concerned mother could bring
to the court’s attention.

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from defense counsel’s failure to object at the sentencing
hearing. Tapusoa does not suggest, let alone demonstrate, that
there was additional information available to defense counsel
that would have bolstered the objection to the restitution amount
or affected the outcome of the sentencing hearing. Because
Tapusoa does not articulate how a timely objection would have
had “some conceivable effect on the outcome of the proceeding,”
he cannot establish “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 693–94.
Accordingly, Tapusoa does not show the prejudice required to
establish ineffective assistance of counsel.

CONCLUSION

¶19 The district court did not violate Tapusoa’s right of
allocution nor rule 22(a) of the Utah Rules of Criminal Procedure
by refusing to allow Mother to address the court directly. And
Tapusoa’s ineffective assistance of counsel claim fails because
Tapusoa has not demonstrated prejudice. We therefore affirm
the sentence and the restitution imposed by the district court.

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