State of Utah v. Vicente

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State of Utah,
Plaintiff and Appellee,

v.

Jose Luis Vicente,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000955-CA

F I L E D
February 14, 2002 2002 UT App 43 -----

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

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

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Before Judges Jackson, Bench, and Greenwood.

PER CURIAM:

Appellant Jose Luis Vicente appeals the sentence on his conviction of Attempted Possession of a Controlled Substance with Intent to Distribute, a class A misdemeanor, in violation of Utah Code Ann. § 58-37-8(1)(a)(iii) (1999).

The issues raised in Vicente's appeal are the same issues determined in State v. Wanosik, 2001 UT App 241, 31 P.3d 615, regarding sentencing in absentia and a criminal defendant's Utah Rule of Criminal Procedure 22(a) and Due Process rights. Accordingly, Vicente is entitled to be resentenced under Wanosik because the district court did not (1) make an adequate inquiry into the actual voluntariness of Vicente's absence before proceeding to sentence him in absentia; (2) provide Vicente with the opportunity to present information through counsel in mitigation of punishment and also provide the prosecutor an opportunity to present information relevant to sentencing; and (3) base the sentencing decision on relevant and reliable information regarding the crime, defendant's background, and the interests of society. See id. at ¶¶36-38.

The State seeks dismissal of this appeal, relying upon cases concluding that an appeal taken by a criminal defendant who is a fugitive may be dismissed, subject to reinstatement if the defendant returns to the jurisdiction and if the State cannot demonstrate that it will be prejudiced by reinstatement. See, e.g., State v. Tuttle, 713 P.2d 703, 705 (Utah 1985). Because Wanosik is dispositive of Vicente's appeal and requires a remand for resentencing, we decline to dismiss this appeal.(1) However, if Vicente appeals the sentence imposed after remand, the State may raise the dismissal argument in the subsequent appeal.

We vacate the sentence and remand for resentencing in accordance with Wanosik.
 
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
Pamela T. Greenwood, Judge

1. Even if we were to dismiss this appeal, Vicente could challenge the sentence in the trial court under Rule 22(e) of the Utah Rules of Criminal Procedure. See Utah R. Crim. P. 22(e) ("The court may correct . . . a sentence imposed in an illegal manner, at any time."); see also Wanosik, 241 UT App at n.11 (stating issues regarding illegality of the sentence under Rule 22(a) can be considered for the first time on appeal under Rule 22(e)). Judicial economy suggests that we resolve the appeal from the sentence and preserve the State's ability to seek dismissal in any appeal taken after resentencing.