State of Utah v. Hamling

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State of Utah v. Hamling, Case No. 20000813-CA, Filed September 13, 2001 IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Jon Donald Hamling,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000813-CA

F I L E D
September 13, 2001 2001 UT App 267 -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
Nisa Sisneros and Joan Watt, Salt Lake City, for Appellant
Mark Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

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Before Judges Greenwood, Billings, and Orme.

PER CURIAM:

Appellant Jon Donald Hamling appeals his sentence imposed in absentia. Hamling pleaded guilty to attempted possession of a controlled substance, a class A misdemeanor. At the time of his plea, he was given a sentencing hearing date of August 4, 2001, and told to contact Adult Probation and Parole for the preparation of a presentence report. Hamling was also ordered released pending sentencing. Hamling participated in the preparation of the presentence report and provided information to Adult Probation and Parole.

Hamling did not appear at his sentencing hearing. Defense counsel indicated that she had had contact with him two weeks prior to the sentencing date, but not since then. The court determined that, because Hamling had not contacted the court and he was not at the sentencing hearing, he had voluntarily absented himself from the proceedings. The judge gave defense counsel an opportunity to provide sentencing information. Counsel spoke on Hamling's behalf and the judge then, without affording the prosecution an opportunity to address sentencing, imposed a sentence of one year of incarceration, the maximum penalty for a class A misdemeanor. Defense counsel filed a motion to correct an illegal sentence in the trial court, which was denied, and this appeal followed.

In sentencing Hamling in absentia, the prosecution bears the burden of making a preliminary showing, based on reasonable inquiry, that defendant's absence is voluntary. State v. Wanosik, 2001 UT App 241,¶22, 428 Utah Adv. Rep. 10. Only after inquiry, the court, in appropriate circumstances, may infer that the defendant's absence is voluntary. Id. at ¶23. Defense counsel must "then have the opportunity to rebut the inference of voluntariness." Id. at ¶24. The court did not require any evidence from the State and inferred Hamling was voluntarily absent based solely on the fact that the defendant was not present and none of the parties had contact with him within two weeks prior to sentencing.

When neither the court nor counsel have information as to why the defendant is absent, the court should grant a continuance to allow reasonable inquiry into his nonappearance. Id. at ¶22. This court, in Wanosik, set forth some factors the court may consider in determining whether an absence is voluntary. Id. at ¶23.

Upon remand, sentencing must be in accordance with the procedure set forth in Wanosik. Id. at ¶38. Such procedure includes giving both the defense and the prosecution the opportunity to make a statement prior to sentencing

Lastly, the State argues that post-sentencing trial court docket entries, made after the defendant was subsequently arrested, reflect no good reason why the defendant failed to appear at his sentencing. These later developments have no bearing on whether the defendant was sentenced lawfully as post-sentencing information was not considered in the court's determination of voluntariness.

We vacate Hamling's sentence and remand for resentencing in accordance with State v. Wanosik.
 
 

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Pamela T. Greenwood,
Presiding Judge
 
 

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Judith M. Billings, Judge
 
 

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Gregory K. Orme, Judge