District Court, Farmington Department The Honorable David M.
Connors No. 111701832
L. Wiggins, Attorney for Appellant
D. Reyes and Daniel W. Boyer, Attorneys for Appellee
Michele M. Christiansen Forster authored this Opinion, in
which Judges David N. Mortensen and Diana Hagen concurred.
CHRISTIANSEN FORSTER, Judge
Miguel A. Sagal appeals his convictions on six counts of
unlawful sexual activity with a minor. We affirm.
Sagal was charged with six third-degree felony counts of
unlawful sexual activity with a minor as a result of having
sexual intercourse with two minor females in 2010 and 2011.
Sagal pleaded not guilty to the charges.
Although a jury trial was initially scheduled, Sagal's
counsel filed a Request for Bench Trial shortly before trial.
In the Request for Bench Trial, counsel stated that he had
advised Sagal "of his right to seek trial by jury and
all the rights attendant to such a choice, as well as the
rights that he would be waiving by opting for a bench
trial." On the day of trial, the trial court questioned
counsel regarding Sagal's waiver of his right to a jury
trial. The judge stated, "I would just like to have on
record that you've had discussion with your client about
his . . . right to a jury trial and that he has knowingly and
intentionally agreed to go forward in a trial . . . without a
jury." Counsel responded, "I have discussed at
length with Mr. Sagal, his right to a jury trial, the rights
that he will be waiving should he elect to forgo his right to
a jury trial and have it tried to the bench."
Both victims testified at trial. The first victim, K.G.,
testified that she had sex with Sagal a number of times when
she was fourteen years old and he was eighteen years old.
After K.G. broke up with Sagal, he began contacting her
friend, M.P. M.P. had sex with Sagal three times in the
summer of 2011, when she was fourteen years old and he was
nineteen years old. On several occasions prior to trial, both
victims had denied having sex with Sagal.
After hearing the evidence, the trial court convicted Sagal
of all charges, finding both victims to be credible witnesses
and determining that other witnesses corroborated their
testimony. The trial court later amended the verdict by
reducing the three counts relating to K.G. to class B
misdemeanors because Sagal was slightly less than four years
older than K.G.
Following trial, Sagal's mother sought mitigating
testimony to undermine the victims' credibility. She
obtained an affidavit from a witness, L.S., who stated that
M.P. admitted to her that she had lied at trial about having
sex with Sagal. When counsel learned of this first potential
witness, L.S., he withdrew as Sagal's attorney because
Sagal had previously admitted to counsel that he had engaged
in sex with M.P. and counsel felt he could therefore not
ethically pursue any investigation into the witness's
statements. Following counsel's withdrawal, Sagal's
mother obtained an affidavit from a second witness, K.P., who
also stated that M.P. had confessed to her that she had lied
about having sex with Sagal.
Sagal appealed his convictions. First, he asserted that the
trial court committed plain error by failing to conduct an
adequate colloquy to ensure that he had been fully informed
of the rights he was waiving by electing a bench trial rather
than a jury trial. Second, Sagal asserted that he received
ineffective assistance of counsel because counsel did not
fully inform him of the rights he was waiving and did not
adequately investigate the two potentially exonerating
witnesses or move for a new trial.
This court remanded the case to the trial court pursuant to
rule 23B of the Utah Rules of Appellate Procedure, directing
the trial court
to make all findings of fact and enter all conclusions of law
necessary to resolve:
(1) whether counsel performed deficiently in advising [Sagal]
about his right to a jury trial;
(2) whether [Sagal] was prejudiced by counsel's deficient
performance, if any;
(3) whether counsel performed deficiently in not
investigating [L.S.] and [K.P.] and for not moving for a new