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Second District, Farmington Department
The Honorable Rodney S. Page

Attorneys:
Scott L. Wiggins, Salt Lake City, for Appellant
Jan Graham and Scott Keith Wilson, Salt Lake City, for Appellee

Before Judges Bench, Davis, and Orme.

ORME, Judge:

Regarding Hollen's ineffective assistance of counsel challenge premised on trial counsel's failure to seek pretrial suppression of the eyewitness identification testimony, the issues raised are in common with, and governed by, our opinion issued today in State v. Mecham, Case No. 971013-CA, 2000 UT App 247. And while Hollen, in his brief, claims his trial counsel's decision not to seek suppression was based on ignorance rather than trial strategy, the trial court's Rule 23B findings are to the contrary, and we defer to those factual findings. See State v. Bredehoft, 966 P.2d 285, 289 (Utah Ct. App. 1998).

As to the claim that Hollen's trial counsel was ineffective for not better advising him in connection with his decision not to testify, the trial court found that from the beginning Hollen, no stranger to the criminal justice system, told his attorney "that he would not testify." Given the likelihood the State could have impeached Hollen with his extensive criminal history if he had testified, counsel readily, albeit without belaboring the issue, agreed with Hollen that testifying on his own behalf would not be wise. This advice falls within the "'wide range of reasonable professional assistance'" expected of counsel. State v. Garrett, 849 P.2d 578, 579 (Utah Ct. App. 1993) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065 (1984)).⁽¹⁾ Regardless, Hollen has failed to show that even if advised differently, he would have testified, or, if he had, that his testimony would have altered the outcome.⁽²⁾ SeeFernandez v. Cook, 870 P.2d 870, 877 (Utah 1997) ("Proof of ineffective assistance of counsel cannot be a speculative matter but must be a demonstrable reality."); State v. Arguelles, 921 P.2d 439, 441 (Utah 1996).

Lastly, Hollen's counsel was not ineffective for failing to request a jury instruction on the lesser included offense of unlawful restraint, a crime necessarily included in aggravated kidnaping. Compare Utah Code Ann. § 76-5-304 (1999) (unlawful restraint includes "knowingly restrain[ing] another unlawfully") with Utah Code Ann. § 76-5-302 (1999) (aggravated kidnaping includes unlawful restraint to facilitate commission of a felony). Such an approach would have been inconsistent with the defense's misidentification strategy. See State v. Hall, 946 P.2d 712, 723 (Utah Ct. App. 1997), cert. denied, 953 P.2d 449 (Utah 1998); State v. Perry, 899 P.2d 1232, 1241 (Utah Ct. App. 1995). Additionally, a lesser included offense instruction is available only if "a rational basis exists on which the jury could acquit the defendant of the offense charged while convicting him of the alternative offense." State v. Parra, 972 P.2d 924, 927 (Utah Ct. App. 1998). See also Utah Code Ann. § 76-1-402(4) (1999). If all the elements of unlawful detention were proved in this case, it would only be in the context of the robbery--a felony which no doubt occurred--necessarily making the detention aggravated kidnaping rather than mere unlawful restraint.

Affirmed.
 
 
 
 

______________________________
Gregory K. Orme, Judge

WE CONCUR:
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
James Z. Davis, Judge

1. It is true Hollen's counsel believed Hollen was probably guilty of the crime. However, believing one's client is innocent is not a prerequisite to loyal representation. Even if Hollen had proclaimed his innocence to his attorney, which he never did, and even if his attorney believed him, there were sound tactical reasons, under the facts of this case, for Hollen not to testify on his own behalf.

2. Hollen admits that, if he had testified, all he had to offer was a vague denial: "All I could have said was that I didn't do it. I wasn't there. To the best of my knowledge I have never attended a movie theater in Layton or Davis County."