State of Utah v. Sunter

State of Utah,
Plaintiff and Appellee,

v.

Emil Martin Sunter,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981026-CA

F I L E D
June 10, 1999
  1999 UT App 186 -----

Seventh District, Price Department
The Honorable Bryce K. Bryner

Attorneys:
Gene S. Byrge and Margret Sidwell Taylor, Helper, for Appellant
Jan Graham and Catherine M. Johnson, Salt Lake City, for Appellee

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Before Judges Wilkins, Billings, and Davis.

WILKINS, Presiding Judge:

Defendant Emil Martin Sunter appeals the trial court's denial of his motion to withdraw his guilty pleas to four counts of Unlawful Possession of a Controlled Substance, in violation of Utah Code Ann. § 58-37-8(2)(a) (1998), and to one count of Distributing or Arranging the Distribution of a Controlled Substance, in violation of Utah Code Ann. § 58-37-8(1)(a)(ii) (1998). He also appeals the trial court's order that the sentences for two of the offenses run consecutively. We affirm.

I. WITHDRAWAL OF GUILTY PLEAS

Utah Code Ann. § 77-13-6(2)(a) (1995) allows a court to set aside a guilty plea upon a showing of good cause and with leave of the court. However, the withdrawal of a guilty plea "is a privilege, not a right." State v. Gallegos, 738 P.2d 1040, 1041 (Utah 1987) (footnote omitted). Further, the granting of a presentence motion to withdraw a guilty plea is within the court's sound discretion. See id.; see also State v. Blair, 868 P.2d 802, 805 (Utah 1993) (reviewing denial of motion to withdraw for abuse of discretion). Moreover, "we uphold a decision denying a motion to withdraw a guilty plea if 'the record as a whole affirmatively establishes that the defendant entered his [or her] plea with full knowledge and understanding of its consequences and of the rights he [or she] was waiving.'" Blair, 868 P.2d at 806 (citations omitted).

Defendant first argues the trial court abused its discretion by denying his motion to withdraw his guilty pleas because section 39-6-38(1)(b), U.C.A. (1998), required the court to proceed as though he entered a not guilty plea when he raised an inconsistent matter after the plea.(1) Specifically, he argues that matters he discovered when reviewing audio-tapes after the entry of his plea contain some inconsistencies with the written police report, and therefore bar the entry of his guilty plea. However, we reject defendant's argument and agree with the trial court that section 39-6-38 is inapplicable because it only applies to matters brought under the Utah Code of Military Justice (UCMJ). See Utah Code Ann. § 39-6-3 (1998) (identifying persons subject to UCMJ).

Relying on State v. Gallegos, 738 P.2d 1040, 1042 (Utah 1987), defendant further argues, albeit superficially, that good cause existed to withdraw his plea because he discovered new exculpatory evidence on several audio-tapes following his plea.

In Utah, it is an abuse of discretion for a trial court to deny a motion to withdraw a guilty plea where "new and indisputable pivotal evidence" arises after the entry of the plea. Id. Defendant essentially contends that because he was "not given the opportunity" to review audio-tapes containing what he considers "fundamental inconsistencies," new evidence arose, thus amounting to good cause to withdraw his guilty pleas. We disagree. The record indicates that the inconsistencies identified by the defendant were minor in nature and therefore irrelevant, and do not rise to a level sufficient to implicate the merits of the case against the defendant. Consequently, we conclude that the defendant has not shown good cause based upon newly discovered evidence, and affirm the trial court's ruling on this issue.

II. CONSECUTIVE SENTENCES Defendant also challenges the trial court's decision to impose consecutive rather than concurrent sentences on two of his offenses. "'We review the sentencing decisions of a trial court for an abuse of discretion.'" State v. Montoya, 929 P.2d 356, 358 (Utah Ct. App. 1996) (quoting State v. Houk, 906 P.2d 907, 909 (Utah Ct. App. 1995)). Such abuse is manifest if the sentence is "inherently unfair," "clearly excessive," or when a judge "fails to consider all legally relevant factors." Id. However, an abuse of discretion arises "only if we conclude that 'no reasonable [person] would take the view adopted by the trial court.'" State v. Schweitzer, 943 P.2d 649, 651 (Utah Ct. App. 1997) (citation omitted).

In Utah, a trial court's authority to impose consecutive or concurrent sentences is governed by Utah Code Ann. § 76-3-401 (Supp. 1998). See Schweitzer, 943 P.2d at 651. Section 76-3-401(4) requires a trial court, in determining whether to impose consecutive sentences, to "consider the gravity and circumstances of the offenses and the history, character, and rehabilitative needs of the defendant." Utah Code Ann. § 76-3-401(4) (Supp. 1998).

In this case, defendant argues the trial court failed to properly consider the gravity and circumstances of the crime as well as his criminal history. Essentially, he contends that because his crimes were non-violent and did not deprive anyone of freedom or property, he should not be required to serve consecutive sentences. Again, we disagree. Although defendant asserts that these factors favor concurrent sentences, he has not shown that the trial court failed to consider these factors. See Schweitzer, 943 P.2d at 651-52 (rejecting defendant's argument that court failed to consider his non-violent temperament, criminal history, and remorse when defendant did not show court failed to consider these factors). To the contrary, defendant points to the sentencing transcript where the court individually addressed each of the four factors set forth in Utah Code Ann. § 76-3-401(4). Because defendant has not met his burden or demonstrated that the sentences are "clearly excessive" or "inherently unfair," we conclude the trial court did not abuse its discretion and affirm the court's sentencing decision.

Affirmed.
 
 

______________________________
Michael J. Wilkins,
Presiding Judge

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WE CONCUR:
 
 

______________________________
Judith M. Billings, Judge
 
 

______________________________
James Z. Davis, Judge

1. This section provides, that "[a] plea of not guilty shall be entered in the record, and the court shall proceed as though the accused had pleaded not guilty, if the accused . . . after a plea of guilty raises a matter inconsistent with the plea." Utah Code Ann. § 39-6-38(1)(b) (1998).