2006 UT 59
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah,
No. 20050591
Plaintiff and Petitioner,
v.
F I L E D
Noe Rodriguez Carreno,
Defendant and Respondent.
October 3, 2006
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First District, Brigham City
The Honorable Ben H. Hadfield
No. 001100703
Attorneys: Mark L. Shurtleff, Att'y Gen., Erin Riley, Asst.
Att'y Gen., Salt Lake City, for plaintiff
Randall W. Richards, Ogden, for defendant
---
On Certiorari to the Utah Court of Appeals
DURRANT, Justice:
INTRODUCTION
¶1
The two issues upon which we granted certiorari review
in this case are (1) whether the district court erred in placing
a $500 limitation on reimbursable expenses for an investigator in
Noe Carreno's first degree felony case, and (2) whether the court
of appeals erred in failing to apply the plain error standard in
reviewing the expense limitation issue. We reach only the first
issue, however, because its resolution is dispositive.
¶2
The court of appeals essentially held that a district
court may not consider cost when reviewing a motion to appoint an
investigator. Although a court's primary inquiry is whether an
investigator is necessary for a complete defense, Utah Code
section 77-32-305.5 requires a court to consider investigator
expense to some extent. In this case, Carreno failed to provide
any record evidence to establish that the district court gave
improper weight to expense considerations in ordering the
appointment of an investigator. Accordingly, we reverse the
decision of the court of appeals and hold that the district court
did not abuse its discretion in imposing an initial $500
limitation on reimbursable expenses in its order of appointment.
BACKGROUND
¶3
When reviewing a jury verdict, we recite the facts in
the light most favorable to that verdict.1 On the night of the
crime, Lee Duong and Abel Carrazco were at the apartment of
Kristy Lamb, Carreno's wife, from whom he was separated at the
time. Late that night, Carreno knocked on the door. Lamb looked
out the peep-hole, saw that it was Carreno, and refused to open
the door. Carreno started pounding on the door and, although
Lamb was leaning against the door trying to prevent entry, forced
the door open and entered the apartment.
¶4
Upon entering the apartment, Carreno pointed a gun at
Lamb and Duong. Lamb ran over to the phone and tried to call 9-
1-1, but Carreno pulled the phone jack out of the wall. After a
struggle, Carreno shot Duong. The bullet went through Duong's
arm, punctured his lung, and lodged near his spine. Duong ran
out of the apartment and tried to get into an apartment across
from Lamb's. As Duong ran away, Carreno attempted to pull Lamb
out of her apartment. When she escaped, Carreno chased after
Duong. Duong ran back to Lamb's apartment. As he was running,
he heard another gunshot and heard Carreno say, "I'm going to
kill you." Duong ran through the apartment and escaped out the
back window. With Duong gone, Carreno grabbed Lamb's shirt and
pulled her outside. Lamb saw a friend and yelled at him to call
the police. At that point, Carreno let go of her, ran towards
the parking lot, and drove away in a van.
¶5
Prior to trial, Carreno filed a motion to have an
investigator appointed. The trial court denied this motion.
Carreno later filed a second, more detailed motion to appoint an
investigator. The minutes from a hearing on the motion indicate
that the trial court informed Carreno at the hearing that he
could "hire an investigator at a total cost of up to $500." The
written order states that "[a]n investigator shall be retained to
assist the defense in this matter in the initial sum of not more
than $500.00." There is no record that Carreno objected to the
$500 limitation and no record that Carreno requested additional
funds. The case proceeded to trial, and a jury convicted Carreno
of attempted aggravated murder, aggravated burglary, aggravated
kidnaping, and interrupting a communication device.
1 State v. Casey, 2003 UT 33, ¶ 2, 82 P.3d 1106.
No. 20050591
2
¶6
On appeal, the court of appeals reversed Carreno's
conviction without oral argument, concluding that the trial court
abused its discretion by focusing on how much an investigator
would cost rather than on whether an investigator was necessary.2
The court of appeals further concluded that "`[t]rial courts
should consider only the question of whether appointment of an
investigator is necessary for a complete defense'" and held that
a "limit on expenditures is not an acceptable condition on the
appointment of an investigator."3 The court of appeals then
decided that it could not logically determine whether the trial
court's error was harmless because it could not determine whether
an investigator could have found exculpatory evidence absent the
$500 limitation.4 Having determined that a new trial was
warranted on the expense-limitation issue, the court of appeals
stated that Carreno's ineffective assistance of counsel claim was
moot.5 Judge Bench dissented from the majority opinion, arguing
that the conviction should be affirmed because Carreno failed to
preserve the issue by objecting to the $500 limitation and failed
to show the elements necessary to establish plain error.6 Judge
Bench also expressed concern that the majority opinion created a
per se rule that a trial court commits reversible error any time
it imposes a limit on reimbursable expenses for an investigator.7
We granted certiorari to review the court of appeals' decision.
STANDARD OF REVIEW
¶7
On certiorari, we "review the decision of the court of
appeals and not that of the district court," and we grant no
deference to the court of appeals' conclusions of law.8 Our
review consists of determining "whether the court of appeals
2 State v. Carreno, 2005 UT App 208, ¶¶ 1011, 113 P.3d
1004.
3 Id. ¶ 10 (emphasis added) (quoting State v. Hancock, 874
P.2d 132, 135 n.3 (Utah Ct. App. 1994)).
4 Id. ¶ 11.
5 Id. ¶ 13 n.1.
6 Id. ¶¶ 1719 (Bench, J., dissenting).
7 Id. ¶ 20 (Bench, J., dissenting).
8 State v. Ireland, 2006 UT 17, ¶ 7, 133 P.3d 396 (internal
quotation omitted).
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No. 20050591
accurately reviewed the trial court's decision under the
appropriate standard of review."9 For purposes of our analysis,
we assume that the expense-limitation issue was preserved and,
therefore, that an abuse of discretion standard, as was applied
by the court of appeals, was the proper standard of review for
assessing that issue.10 We have jurisdiction pursuant to Utah
Code section 78-2-2(3), (5).
ANALYSIS
¶8
A criminal defendant is entitled to assistance of
counsel under the Sixth Amendment to the United States
Constitution.11 The United States Supreme Court has held that
the Sixth Amendment applies to the states through the Fourteenth
Amendment Due Process Clause and requires states to provide
counsel to indigent defendants.12 Furthermore, the "right to
counsel includes effective assistance of counsel."13 For counsel
to be effective in the case of an indigent defendant, the state
must provide a defendant with access to "the raw materials
integral to the building of an effective defense."14
¶9
To provide indigent defendants with effective
assistance of counsel consistent with their Sixth Amendment
right, our Legislature passed the Utah Indigent Defense Act (the
"Act").15 The Act provides "access for indigents to the basic
tools of defense."16 Relevant to this case, the Act requires
that a local government "provide [an indigent defendant with] the
investigatory resources necessary for a complete defense."17 As
no party has claimed that any provision of the Act is
9 State v. Orr, 2005 UT 92, ¶ 7, 127 P.3d 1213 (internal
quotation omitted).
10 State v. Cabututan, 861 P.2d 408, 41112 (Utah 1993).
11 U.S. Const. amend. VI.
12 Gideon v. Wainwrite, 372 U.S. 335, 33945 (1963).
13 State v. Burns, 2000 UT 56, ¶ 23, 4 P.3d 795.
14 Ake v. Oklahoma, 470 U.S. 68, 7677 (1985).
15 Utah Code Ann. §§ 77-32-101 to -704 (2003 & Supp. 2005).
16 Burns, 2000 UT 56, ¶ 24.
17 Utah Code Ann. § 77-32-301(3) (2003).
No. 20050591
4
unconstitutional under the federal or state constitutions, we
need only consider whether the court of appeals correctly applied
the Act.
¶10
We conclude that the court of appeals' decision is
inconsistent with the plain meaning of the Act. We first examine
whether the court of appeals' legal conclusion that a district
court may not consider costs or limit reimbursable expenses when
appointing an investigator is inconsistent with the Act. We then
discuss whether, in the absence of the court of appeals' legal
rule, the imposition of a $500 limitation in this case was
nevertheless an abuse of discretion.
I. A DISTRICT COURT MAY CONSIDER COSTS AND INITIALLY LIMIT
REIMBURSABLE EXPENSES WHEN APPOINTING AN INVESTIGATOR
¶11
The court of appeals erred in creating a rule that
precludes district courts from considering cost when deciding a
motion to appoint an investigator because such a rule directly
contradicts the Act. Our objective in interpreting a statute is
to effectuate legislative intent, and that intent is most readily
ascertainable by looking to the plain language of the statute.18
In addition, "[w]e read the plain language of the statute as a
whole, and interpret its provisions in harmony with other
statutes in the same chapter and related chapters."19 The
evolution of a statute through amendment by our Legislature may
also shed light on a statute's intended meaning.20
¶12
In this case, although the primary purpose of the Act
is to provide indigent defendants with access "to the basic tools
of defense,"21 the Legislature amended the Act in 1997,22 placing
various budgetary constraints on the provision and use of those
18 Burns, 2000 UT 56, ¶ 25.
19 Bd. of Educ. v. Sandy City Corp., 2004 UT 37, ¶ 9, 94
P.3d 234.
20 See 1A Norman J. Singer, Statutes and Statutory
Construction §§ 22.29-22.30 (6th ed. 2002) (discussing the
presumption that an amendment was intended to change the prior
statute; also discussing other tools of construction applicable
to amendments).
21 Burns, 2000 UT 56, ¶ 24.
22 Act of March 5, 1997, ch. 307, §§ 15, 1997 Utah Laws
1181, 1181-82.
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No. 20050591
tools.23 The amendments to the Act gave the district court the
responsibility to approve any departures from these budgetary
constraints.24
¶13
One of the 1997 additions to the Act, Utah Code section
77-32-305.5, is central to our resolution of this case. It
provides as follows:
(1) For the purposes of this section, an
"extraordinary expense" means the collective
expense which exceeds $500 for any particular
service or item such as experts,
investigators, surveys, or demonstrative
evidence.
(2) The county or municipality shall
reimburse expenses, exclusive of overhead and
extraordinary expense not approved by the
court in accordance with this chapter,
reasonably incurred by assigned attorneys for
indigent defendants.
(3) The assigned attorney shall file a
motion with the court for approval of the
proposed expenditure for any extraordinary
expense before the expense is incurred. The
motion shall be heard and ruled upon by a
judge other than the trial judge if so
requested by either party or upon the motion
of the trial judge.25
By its terms, subsection 77-32-305.5(3) is intended to provide
assigned counsel with an avenue for obtaining funds in excess of
$500 for, among other things, investigators. Indeed, the section
casts the court in the role of approving a "proposed expenditure
for any extraordinary expense before the expense is incurred."26
Thus, under subsection 77-32-305.5(3), defense counsel should
make a motion that requests a specific initial amount of funds.
Assessing the merit of such a motion necessarily requires a judge
23 Id. §§ 34, (codified as amended at Utah Code Ann.
§§ 77-32-304.5, -305.5).
24 Id.
25 Utah Code Ann. § 77-32-305.5 (2003) (emphasis added).
26 Id.
No. 20050591
6
to consider expense, a requirement that is in direct
contradiction to the court of appeals' conclusion that district
courts may not consider costs or limit reimbursable expenses when
appointing an investigator. The court of appeals' holding would
require that the district court, upon finding an investigator
necessary for a complete defense, write a blank check for
investigative purposes to the defendant on behalf of the county
or municipality. This requirement is clearly inconsistent with
the 1997 additions to the Act.
¶14
That a court must consider cost in appointing an
investigator is also consistent with the Legislature's cost-
control intent, which is evidenced both by section 77-32-305.5
and another section added by the 1997 amendment, section 77-32-
304.5. Subsection 77-32-304.5(f) provides for a compensation
limit on defense counsel appointed by the court depending on the
severity of the alleged crime and the type of proceeding, but
allows a court to prospectively approve further compensation
where necessary.27 Thus, similar to section 77-32-305.5, section
77-32-304.5 limits defendants' reimbursable expenses and
authorizes courts to approve the reimbursement of expenses beyond
the limits where necessary. These two sections therefore
establish the Legislature's intent that a district court have a
role in limiting the reimbursement of expenses incurred by
indigent defendants.
¶15
In sum, the Act plainly intends to give the district
court the authority to consider cost and limit reimbursable
investigator expenses so long as all resources necessary for a
complete defense are provided. Accordingly, the court of
appeals' per se rule prohibiting district courts from considering
cost or limiting reimbursable investigator expenses is error
unless it is required by the United States or Utah Constitutions.
¶16
The court of appeals does not claim, however, that its
conclusion is required by either constitution. Rather, the court
of appeals' decision in this case cites only to a prior court of
appeals decision, State v. Hancock.28 Hancock does not cite to
either constitution to support its statement in dicta that a
court must not consider cost in appointing an investigator.
Indeed, Hancock, decided in 1994, merely cites the version of the
27 Id. § 77-32-304.5(f) (2003).
28 State v. Carreno, 2005 UT App 208, ¶¶ 9-10, 113 P.3d
1004 (citing State v. Hancock, 874 P.2d 132, 135-36 & n.3 (Utah
Ct. App. 1994)).
7
No. 20050591
Act in effect at that time.29 As discussed above, the
Legislature amended the Act in 1997, and that amendment
authorizes a court to consider investigator expenses.30
Accordingly, the court of appeals' reliance on Hancock is
misplaced.
¶17
Ultimately, neither the court of appeals nor Carreno
has directed us to any authority for the proposition that the
federal or state constitutions prohibit district courts from
considering cost or limiting reimbursable investigator expenses.
Thus, because the court of appeals' conclusion that a district
court may not consider cost or limit reimbursable investigator
expense is in conflict with the Act, that conclusion is in error.
II. THE DISTRICT COURT REASONABLY IMPOSED AN INITIAL
$500 LIMITATION ON REIMBURSABLE INVESTIGATOR EXPENSE
¶18
Having determined that the court of appeals erred in
creating a per se rule against limitations to reimbursable
investigator expenses, we now consider whether the district court
nevertheless abused its discretion in setting an initial
limitation of $500. Although a court must consider cost when
deciding whether to approve an expenditure over $500, the
threshold inquiry is still whether investigatory resources are
necessary for a complete defense.31 In essence, regardless of
the cost, if the resources are necessary for a complete defense,
the court must approve them. Extending this reasoning to the
Act, it would be inappropriate to set an absolute cap of
reimbursable expenses for investigative purposes. Rather, a
defendant should always have the opportunity to request approval
for additional expenditures, and the court must approve such
requests to the extent necessary for a complete defense. By
requiring the court to approve extraordinary expenditures in
advance, section 77-32-305.5 not only protects the county or
municipality from paying or contesting unnecessary expenses, but
also gives the investigator and appointed counsel a measure of
security that they will not need to defend the reasonableness of
their expenses after the expenses have been incurred. A motion
to appoint an investigator for $500 or less, although not
required before a defendant incurs the expense, offers similar
protections when filed and granted before such time.
29 Hancock, 874 P.2d at 135 n.3.
30 Supra ¶¶ 13-15.
31 Utah Code Ann. § 77-32-301(3) (2003).
No. 20050591
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¶19
Turning to the facts of this case, there is simply no
record evidence to support a conclusion that the district court
erred in placing the initial $500 limitation on reimbursable
investigator expenses. First, as we explain above, the court of
appeals erred in concluding that a district court must
"exclusively address[] the need for an investigator."32 Because
Carreno failed to include in the record a transcript of the
hearing on his motion to appoint an investigator, the court of
appeals could only speculate that the district court unduly
"focus[ed] on the expenses of the investigator."33 That
speculation was unjustified, however, because, in the absence of
a record, "we must assume the regularity of the proceeding
below."34 In other words, we must assume that the district court
gave appropriate weight to the threshold question of whether an
investigator was necessary. Indeed, the district court concluded
that an investigator was necessary, and, accordingly, allocated
funds for that purpose.
¶20
Second, there is nothing in the record to support the
court of appeals' statement that the $500 limitation "acts as a
bar rather than a prerequisite."35 This statement suggests that
the $500 limit was absolute. To the contrary, the written order
refers to the $500 limitation as merely an "initial sum." Thus,
upon exhaustion of the initial funds, Carreno was free to request
additional funds. But there is nothing in the record to suggest
that Carreno either exhausted the $500 provided36 or requested
more at any time.37
32 See Carreno, 2005 UT App 208, ¶ 10 (emphasis added).
33 See id.
34 State v. Robbins, 709 P.2d 771, 773 (Utah 1985); accord
State v. Cramer, 2002 UT 9, ¶ 28, 44 P.3d 690 ("[I]f an appellant
fails to provide an adequate record on appeal, this court must
assume the regularity of the proceedings below.").
35 Carreno, 2005 UT App 208, ¶ 10.
36 See Barney v. State, 698 S.W.2d 114, 126 (Tex. Crim.
App. 1985) (holding that the district court did not abuse its
discretion in denying defendant's motion for additional funds
where defendant had not shown exhaustion of the $500 granted).
37 See Roberts v. State, 314 S.E.2d 83, 92 (Ga. 1984)
(holding no error where the court initially granted $500 for an
investigator, and defendant made no subsequent request for
(continued...)
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No. 20050591
¶21
Under these circumstances, placing an initial limit of
$500 on reimbursable investigator expenses is not error.
Carreno's motion did not contain a specific request or budget.
This put the district court in the difficult position of either
coming up with a limit with little-to-no information, or giving
Carreno a blank check on behalf of the county. As discussed
above, the blank-check option is at odds with the Act.38 Thus,
the district court was left looking for a reasonable limitation.
In this circumstance, the court reasonably used the $500
limitation from section 77-32-305.5 as a starting point. Indeed,
the use of the word "initial" in the written order suggests that
Carreno was free to request more funds if necessary.
¶22
Yet Carreno argues that the district court erred in
setting the limitation at $500 because his request merited a
larger initial sum. Carreno first argues that because section
77-32-305.5 does not require counsel to move for funds for an
investigator unless the expense is anticipated to exceed $500,39
the mere fact that he moved for an investigator implies that he
was requesting more than $500. He next argues that the number of
issues on which he requested investigative assistance makes it
unlikely that Carreno agreed to the $500 limitation at the
hearing. Finally, Carreno claims that because the legal expenses
required to petition for an investigator are more than $500, the
district court's ruling results in a net loss to the public
defender. We address each of these arguments in turn.
¶23
First, Carreno argues that his motion to appoint an
investigator should have been interpreted as a motion for
extraordinary expenses because section 77-32-305.5 does not
require a motion for anything less. A motion to appoint an
investigator is not necessarily synonymous, however, with a
motion for extraordinary expenses. Under section 77-32-305.5, no
investigator expense is reimbursed unless it is "reasonably
incurred."40 Additionally, for an extraordinary expense, e.g.,
investigator expenses beyond $500, a defendant must obtain
37 (...continued)
additional funds).
38 Supra ¶¶ 14-15.
39 Utah Code Ann. § 77-32-305.5 (2003).
40 Id.
No. 20050591
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approval from the court "before the expense is incurred."41
Accordingly, the defense need not necessarily seek prior approval
from the court to later be reimbursed for investigator expenses
of $500 or less. Nevertheless, the defense may seek prior
approval of non-extraordinary expenses to avoid the risk that a
court might find the expenditure unreasonable and, accordingly,
withhold reimbursement.
¶24
Defense counsel's motion in this case focuses solely on
the necessity of investigating possible exculpatory evidence
without any estimate of the expense of such an investigation. In
the motion, defense counsel makes no mention of the extraordinary
expenses discussed in Utah Code section 77-32-305.5, but only
quotes the Act as requiring a municipality to "provide the
investigatory resources necessary for a complete defense."42
Additionally, there is no record that Carreno objected when the
court set the limit at $500. Thus, the district court could
reasonably have concluded that Carreno was only seeking prior
approval of a non-extraordinary expense.
¶25
Second, Carreno urges us to infer that he objected to
the $500 limit because, given the numerous issues he wished to
investigate, he certainly would not have agreed to the $500
limitation. Such an inference would directly contradict the rule
that, in the absence of an adequate record, we assume the
regularity of the proceeding.43 Consequently, we must conclude
that the court was not informed that counsel was dissatisfied
with the initial limitation.
¶26
Finally, Carreno argues that because the legal fees for
preparing a motion to appoint an investigator would exceed $500,
it would be inefficient to make a motion for less than that
amount. But the fact that a motion is inefficient does not
compel our rewriting the motion to make it efficient. Rather,
where the motion did not include a proposed budget, the court
reasonably imposed an initial limitation on reimbursable
investigator expenses. Thus, we hold that the district court did
not abuse its discretion in placing an initial $500 limitation in
its order appointing an investigator.
41 Id.
42 Id. § 77-32-301(3) (2003).
43 Robbins, 709 P.2d at 773.
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No. 20050591
CONCLUSION
¶27
The court of appeals erred in reversing Carreno's
conviction. Section 77-32-305.5 authorizes the district court to
assess both the necessity of an investigator and the
reasonableness of the expense. This authorization is
inconsistent with the court of appeals' decision barring a
district court from considering expense at all. Furthermore, the
district court did not abuse its discretion in setting the
initial limitation at $500 because the record includes no
suggestion that a greater initial amount was necessary and no
indication that Carreno either exhausted the $500 or requested
more. We therefore reverse the decision of the court of appeals
and remand to the court of appeals to consider Carreno's
ineffective assistance of counsel claim.
---
¶28
Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant's
opinion.
No. 20050591
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