Utah Court of Appeals

Can defendants claim plain error when their counsel consented to the alleged error? State v. Perry Explained

2009 UT App 51
No. 20070694-CA
February 26, 2009
Affirmed

Summary

Perry appealed the revocation of his probation after an evidentiary hearing was conducted in his absence while he was incarcerated. His counsel consented to proceeding without Perry present, and Perry later objected in a letter to the court claiming he had mitigating evidence to present.

Analysis

In State v. Perry, the Utah Court of Appeals examined whether a defendant could claim plain error for a probation revocation hearing conducted in his absence when his own counsel had consented to the proceedings.

Background and Facts

Perry was on probation for aggravated robbery when Adult Probation and Parole filed violation reports. At the time of his evidentiary hearing, Perry was incarcerated on a forgery conviction. When Perry was not transported to the hearing, his counsel stated he would be “happy waiving his appearance” and saw “no reason to keep bringing him up here for something where he’s already in prison.” The court revoked Perry’s probation based on his earlier admission. Perry later sent a handwritten letter objecting to his absence, claiming he “had a lot to say in [his] own defense.”

Key Legal Issues

The court addressed two primary issues: (1) whether Perry’s due process rights were violated by conducting the hearing in his absence, reviewable under plain error; and (2) whether Perry received ineffective assistance of counsel when his attorney failed to object to his absence.

Court’s Analysis and Holding

The court applied the invited error doctrine, holding that plain error review was unavailable because Perry’s counsel “affirmatively represented” that he had no objection to proceeding without Perry present. For the ineffective assistance claim, the court applied the Strickland standard, focusing on the prejudice prong. Perry failed to demonstrate actual prejudice, as the record contained no mitigating evidence and only “unsubstantiated explanation” regarding his violations. The court emphasized that prejudice must be “a demonstrable reality and not a speculative matter.”

Practice Implications

This decision underscores the importance of strategic decision-making in probation violation proceedings. Defense counsel must carefully consider whether to consent to proceedings in a client’s absence, as such consent can waive appellate review under the invited error doctrine. Additionally, practitioners should develop a complete record of any mitigating evidence before hearings to avoid inadequate record issues on appeal.

Original Opinion

Link to Original Case

Case Details

Case Name

State v. Perry

Citation

2009 UT App 51

Court

Utah Court of Appeals

Case Number

No. 20070694-CA

Date Decided

February 26, 2009

Outcome

Affirmed

Holding

A defendant cannot claim plain error when counsel invites the alleged error, and ineffective assistance claims fail without demonstrable prejudice rather than speculative harm.

Standard of Review

Plain error review for due process claims; question of law for ineffective assistance of counsel claims

Practice Tip

When representing clients in probation violation proceedings, ensure clear objections are made to preserve appellate issues and develop a complete record of any mitigating evidence the client wishes to present.

Need Appellate Counsel?

Lotus Appellate Law handles appeals before the Utah Court of Appeals, Utah Supreme Court, California Court of Appeal, and the United States Court of Appeals for the Tenth Circuit.

Related Court Opinions

    • Utah Court of Appeals

    Republic Outdoor Advertising v. UDOT

    June 23, 2011

    A party must exhaust all available administrative remedies before seeking judicial review of agency actions, and failure to do so deprives the district court of subject matter jurisdiction.
    • Administrative Law
    • |
    • Appellate Procedure
    • |
    • Due Process
    • |
    • Preservation of Error
    Read More
    • Utah Supreme Court

    State v. Bonds

    February 9, 2023

    Defense counsel’s failure to object to an incorrect jury instruction that shifted the burden of proof on imperfect self-defense was deficient performance, but the defendant failed to establish prejudice where no reasonable jury could have found the defendant reasonably believed his conduct was legally justified in shooting an unarmed victim in the back while fleeing.
    • Constitutional Rights (Criminal)
    • |
    • Ineffective Assistance of Counsel
    • |
    • Jury Instructions
    • |
    • Standard of Review
    Read More
About these Decision Summaries

Lotus Appellate Law publishes these summaries to keep practitioners informed — not as legal advice. Each case turns on its own facts. If a decision here is relevant to your matter, we’re happy to discuss it.