State v. Bacon
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IN THE UTAH COURT OF APPEALS ----ooOoo---State of Utah, Plaintiff and Appellee, v. Michael A. Bacon, Defendant and Appellant. ) ) ) ) ) ) ) ) ) MEMORANDUM DECISION (Not For Official Publication) Case No. 20080217-CA F I L E D (August 7, 2008) 2008 UT App 297 ----Sixth District, Richfield Department, 071600082 The Honorable David L. Mower Attorneys: Michael A. Bacon, Draper, Appellant Pro Se Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee ----- Before Judges Bench, Davis, and Orme. PER CURIAM: Michael A. Bacon appeals the trial court's denial of his motion to set aside his sentence and plea based on an alleged breach of the plea agreement. This is before the court on its own motion for summary disposition based on the lack of a substantial question for review. Bacon argued in the trial court that the prosecutor breached the agreement that no officer would make a recommendation to the Board of Pardons when Adult Probation and Parole (AP&P) filed a postsentencing report recommending that Bacon serve the maximum time. It is well settled that AP&P is not bound by a prosecutor's agreement for any sentencing recommendation as part of a plea agreement. See State v. Smit, 2004 UT App 222, ¶ 19 n.4, 95 P.3d 1203; State v. Thurston, 781 P.2d 1296, 1299-1300 (Utah Ct. App. 1989). Because the plea agreement did not bind AP&P, there is no breach of the agreement. Accordingly, the trial court did not err in denying Bacon's motion. In response to this prosecutor's promise was involuntary. Bacon does breached the agreement. court's motion, Bacon argues that the illusory, thereby making Bacon's plea not now argue that the AP&P report Instead, he relies on case law to argue that the prosecutor could not bind other agencies. See Smit, 2004 UT App 222, ¶ 19 n.4; Thurston, 781 P.2d at 1299-1300. Accordingly, he claims, the prosecutor misrepresented his authority in the plea agreement and prevented Bacon from entering the plea voluntarily. Bacon raises this issue for the first time on appeal. Below, he argued an alleged breach of the plea agreement. Here, he changes his focus to the voluntariness of the plea. Generally, this court does not review issues raised for the first time on appeal. See Salt Lake City v. Ohms, 881 P.2d 844, 847 (Utah 1994). As a result, we decline to address this issue further. Affirmed. ______________________________ Russell W. Bench, Judge ______________________________ James Z. Davis, Judge ______________________________ Gregory K. Orme, Judge 20080217-CA 2
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