State of Utah v. Blake

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Randall J. Blake,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990271-CA

F I L E D
September 8, 2000 2000 UT App 259 -----

Fifth District, Cedar City Department
The Honorable Robert T. Braithwaite

Attorneys:
D. Bruce Oliver, Salt Lake City, for Appellant
Jan Graham and Kenneth A. Bronston, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Billings, and Davis.

GREENWOOD, Presiding Judge:

Defendant appeals from the trial court's Order denying his motion to correct sentence. Defendant argues that the trial court erred in failing to correct his judgment and sentence in accordance with his plea agreement so that it indicated conviction of a class A misdemeanor rather than a third degree felony.

As part of the plea agreement, defendant pleaded guilty to attempted forcible sex abuse, a third degree felony, and both the State and the trial court agreed that defendant would "be sentenced as a Class A Misdemeanor."(1) Under Utah Code Ann. § 76-3-402 (1999),(2) the court may reduce a third degree felony conviction to a class A misdemeanor; however, defendant did not mention section 76-3-402 as the basis for his plea in the written plea agreement or at the change of plea hearing.

The trial court later sentenced defendant to one year in jail and a $2,500 fine, stayed the sentence, and placed defendant on supervised probation. The Judgment, Sentence, Stay of Execution of Sentence, Order of Probation and Commitment states that defendant pleaded guilty to attempted forcible sexual abuse, a third degree felony, and that "it is adjudged that the Defendant is guilty as charged and convicted."

Approximately three months later, defendant filed an Objection to Order and Motion to Correct. Defendant asserted that the trial court's sentencing order was ambiguous because the correction facility incorrectly interpreted his conviction as a third degree felony and denied him good time credit on that basis. Defendant did not mention section 76-3-402 in his objection or motion. The trial court issued an order ruling that the judgment and sentence accurately reflected the parties' plea agreement, that defendant was sentenced as a class A misdemeanor, and amended the judgment to clearly state that defendant was not given credit for good time.(3)

On appeal, defendant contends that although the court sentenced him as if the conviction were a class A misdemeanor, the trial court erred by failing to order that the conviction be entered as a class A misdemeanor in accordance with section 76-3-402. "We traditionally afford the trial court wide latitude and discretion in sentencing. This court has held, '[a]n appellate court will set aside a sentence imposed by the trial court if the sentence represents an abuse of discretion.'" State v. Woodland, 945 P.2d 665, 671 (Utah 1997) (affirming trial court's refusal to grant defendant's section 76-3-402 motion) (citation omitted). "[T]his court may find an abuse of discretion 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).

Prior to this appeal, defendant failed to make any specific objection to the conviction and sentencing order based on section 76-3-402. As a general rule, we will not consider an issue which is raised for the first time on appeal. See State v. Brown, 856 P.2d 358, 359 (Utah Ct. App. 1993). A motion to the trial court must state "with particularity" the grounds upon which it is based. Utah R. Crim. P. 12(a). "The purpose of requiring a properly presented objection is to 'put[] the judge on notice of the asserted error and allow[] the opportunity for correction at that time in the course of the proceeding.'" Brown, 856 P.2d at 359 (alteration in original) (citation omitted); see alsoState v. Elm, 808 P.2d 1097, 1099 (Utah 1991) (explaining that defendant waived objection to alleged defects in sentencing by failing to make specific objection).

In this case, defendant did not cite section 76-3-402 as authority for either his original plea agreement or his objection to the final sentencing order. Further, defendant's motion to correct sentence raises only an objection to the jail's failure to give him credit for good time, an issue which falls under an entirely different statutory section.(4) Once defendant raised this objection, the trial court amended its sentencing order to address whether defendant was entitled to good time credit.

It is not evident on the record that the trial court even considered section 76-3-402 when sentencing defendant. Contrary to defendant's claims, the record does not contain any indication that the court was asked to or did enter orders pursuant to this statute. The discussions regarding defendant's sentence in both the transcripts and pleadings discuss an agreement that "sentencing occur at a class A misdemeanor level." The court agreed to sentence defendant to a maximum of one year in jail and a fine of $2,500--the sentence actually handed down by the court.

We conclude that defendant did not present the court with any challenge below to his sentencing order based on section 76-3-402, and therefore, waived any claim of error based on this statutory section. Accordingly, we affirm.
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 
 

______________________________
James Z. Davis, Judge
 

1. After defense counsel explained the agreement on the record, the trial court stated: "Another way to address that would be the maximum the court would sentence would be one year jail, $2,500 fine, or impose that, stay it for a year in terms of probation, whatever it ends up, and the maximum would be one year and 2,500."

2. Utah Code Ann. § 76-3-402 (1999) provides: (1) If the court, having regard to the nature and circumstances of the offense of which the defendant was found guilty and to the history and character of the defendant, concludes it would be unduly harsh to record the conviction as being for that degree of offense established by statute and to sentence the defendant to an alternative normally applicable to that offense, the court may unless otherwise specifically provided by law enter a judgment of conviction for the next lower degree of offense and impose sentence accordingly.

(2) If a conviction is for a third degree felony the conviction is considered to be for a class A misdemeanor if: (a) the judge designates the sentence to be for a class A misdemeanor and the sentence imposed is within the limits provided by law for a class A misdemeanor. 3. Defendant's probation was later revoked and the trial court ordered defendant to serve the balance of the one year sentence.

4. Utah Code Ann. § 76-3-403 (1999) provides guidelines for the applicability of credit for good behavior against a jail sentence. This section indicates that the correctional facility has discretion to give a defendant credit for good behavior when "the incarceration is for a misdemeanor offense, and the sentencing judge has not entered an order to the contrary; or the incarceration is part of a probation agreement for a felony offense, and the sentencing district judge has not entered an order to the contrary." Id. § 76-3-403(1)-(2).