State of Utah v. Powell

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Daniel Befakadu Powell,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20001054-CA

F I L E D
July 11, 2002 2002 UT App 237 -----

Second District, Farmington Department
The Honorable Rodney S. Page

Attorneys:
Scott L. Wiggins, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee -----

Before Judges Jackson, Davis, and Thorne.

JACKSON, Presiding Judge:

Defendant Daniel Powell appeals his conviction for Attempted Retaliation Against Witness or Informant, a class A misdemeanor, in violation of Utah Code Ann. § 76-8-508(2) (1999). Powell challenges the trial court's acceptance of his guilty plea, arguing that the trial court failed to strictly comply in its plea colloquy with Utah Rule of Criminal Procedure 11(e) ("First Challenge"). Powell also challenges the court's sentence, arguing that the trial court violated Art. 1, § 7 of the Utah Constitution and rule 22(a) of the Utah Rules of Criminal Procedure by failing to request either party to offer information in mitigation of punishment ("Second Challenge"). We dismiss Powell's First Challenge and affirm Powell's sentence.

State v. Reyes, 2002 UT 13, 40 P.3d 630, controls Powell's First Challenge. In Reyes, the defendant attack[ed] his guilty plea, arguing that the trial court committed plain error by failing to strictly comply with rule 11 of the Utah Rules of Criminal Procedure. We decline to address this issue because we do not have jurisdiction to address it. Section 77-13-6 of the Utah Code was amended in 1989 to require a defendant to file a motion to withdraw a guilty plea within thirty days after the entry of the plea. [See] Utah Code Ann. § 77-13-6 (1999). We have held that failure to do so extinguishes a defendant's right to challenge the validity of the guilty plea on appeal. . . .

. . . This court may choose to review an issue not properly preserved for plain error. It cannot, however, use plain error to reach an issue over which it has no jurisdiction. Id. at ¶¶3-4 (internal citation omitted); accord State v. Abeyta, 852 P.2d 993, 995 (Utah 1993) (noting that defendant has thirty days in which to withdraw guilty plea, and thereafter right to appeal is "extinguished").

Powell's First Challenge is indistinguishable from that presented in Reyes. Powell urges us to review the trial court's plea colloquy for plain error based on alleged departures from the strict requirements of rule 11. However, Powell failed to file a timely motion to withdraw his plea. Thus, we lack jurisdiction to consider his challenge. See Reyes, 2002 UT 13 at ¶3. Accordingly, we dismiss Powell's First Challenge. See id. at ¶5.

Powell's Second Challenge rests on two alleged errors in sentencing:(1) (1) The sentencing court imposed sentence in Powell's absence and failed to request the State's substitute prosecutor to present information in mitigation of sentence;(2) and (2) the sentencing court failed to consider the court-ordered Presentence Investigation report (PSI) in sentencing.

Powell fails to demonstrate that any error occurred in sentencing.(3) He cites to State v. Wanosik, 2001 UT App 241, 31 P.3d 615, cert. granted, 42 P.3d 951 (Utah 2002), as authority for the proposition that the trial court committed procedural error at his sentencing. Although we agree that Wanosik controls this case, we conclude that the requirements outlined in Wanosik are satisfied here. The fact that the defendant was voluntarily absent in Wanosik, as opposed to Powell's involuntary absence, is an irrelevant factual difference. For sentencing to lawfully take place without the defendant present, Wanosik merely requires the voluntary relinquishment of that right, see id. at ¶¶19-20, an element clearly satisfied here by Powell's properly-filed consent to sentencing in absentia.

Also, Wanosik held the sentencing court to an affirmative duty to afford both the State and the defendant the opportunity to present additional or mitigating factors prior to sentencing, pursuant to Utah Rule of Criminal Procedure 22(a). See id. at ¶30. The sentencing court in Wanosik erred when it imposed sentence without first allowing additional comment. See id. at ¶33. Here, prior to sentencing, defense counsel presented the prosecution and defense's joint recommendation that Powell's sentences run concurrently with the sentences he was already serving. Their recommendation, expressing the views and additional factors both sides sought to submit, satisfies rule 22(a). That the sentencing court declined to follow the recommendation,(4) and that the substitute prosecutor did not participate in the recommendation as vocally as Powell had hoped, are irrelevant because we determine that through the joint recommendation both parties had ample opportunity to comment.

Next we address the trial court's alleged failure to consider the PSI when imposing sentence.(5) Powell makes much of the court's lack of reference to the PSI during sentencing, suggesting that the court failed to consider it. However, Powell does not direct us to, and we are not aware of, any legal authority requiring the court to refer to the PSI when imposing sentence. Further, Powell has offered no authority for the proposition that the court must detail its analysis of the factors contained in Utah Code Ann. § 76-3-401(4) (1999) (outlining factors a court must consider when deciding between consecutive and concurrent sentences for separate charges). Moreover, Utah appellate courts have consistently held that when evidence of those factors appears on the record, a reviewing court will assume that the trial court considered them. See State v. Helms, 2002 UT 12,¶11, 40 P.3d 626 ("[W]e will not assume that the trial court's silence, by itself, presupposes that the court did not consider the proper [sentencing] factors as required by law."); State v. Beck, 584 P.2d 870, 872 (Utah 1978) (stating it must be presumed that court used a court-ordered report as statute contemplated); State v. Schweitzer, 943 P.2d 649, 652 (Utah Ct. App. 1997) (affirming consecutive sentences where "defendant [did] not show that the trial court failed to consider [statutory] factors"); see also State v. Robertson, 932 P.2d 1219, 1234 (Utah 1997) ("[A]s a general rule 'this court upholds the trial court even if it failed to make findings on the record whenever it would be reasonable to assume that the court actually made such findings.'" (Quoting State v. Ramirez, 817 P.2d 774, 788 n.6 (Utah 1991)). Thus, we assume that the court considered the PSI and all relevant evidence in imposing sentence. Accordingly, we affirm Powell's sentence.
 
 

______________________________
Norman H. Jackson,
Presiding Judge -----

WE CONCUR:
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
William A. Thorne Jr., Judge

1. We review Powell's challenge for plain error because he failed to raise this issue below. See State v. Dunn, 850 P.2d 1201, 1208-09 (Utah Ct. App. 1993). To succeed on a claim of plain error, an appellant must show that (1) an error occurred; (2) the error was obvious; and (3) the error was harmful. See id. at 1208. The appellant must show the presence of all three elements, or the challenge fails. See id. at 1209.

2. A sentencing court has "an affirmative obligation . . . to extend the opportunity to be heard," and it errs when sentencing an absent defendant without giving that opportunity to defense counsel and the State. State v. Wanosik, 2001 UT App 241,¶32, 31 P.3d 615, cert. granted, 42 P.3d 951 (Utah 2002).

3. Thus, we decline to address whether the alleged errors were obvious or harmful. See State v. Dunn, 850 P.2d at 1208-09.

4. The court's refusal to follow the recommendation is irrelevant to the question of whether the parties had the opportunity to comment. The court made an unchallenged determination that the nature of Powell's crime of witness-tampering was sufficiently different from the underlying charges to warrant consecutive punishments. That determination stands as an independent, unchallenged basis on which the court imposed consecutive sentences, aside from any potential error in the parties' opportunity for comment.

5. We note that, prior to sentencing, the court stated it would impose sentence "[based] upon the pre-sentence report."