State v. Felder
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IN THE UTAH COURT OF APPEALS ----ooOoo---State of Utah, Plaintiff and Appellee, v. Cleveland Feranda Felder, Defendant and Appellant. ) ) ) ) ) ) ) ) ) MEMORANDUM DECISION (Not For Official Publication) Case No. 20060837-CA F I L E D (May 17, 2007) 2007 UT App 172 ----Second District, Ogden Department, 061901771 The Honorable Ernest W. Jones Attorneys: Randall W. Richards, Ogden, for Appellant Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee ----- Before Judges Greenwood, Billings, and Davis. PER CURIAM: Cleveland Feranda Felder appeals his sentence after entering a guilty plea. Felder asserts that the State breached the plea agreement by commenting at the sentencing hearing. This is before the court on a joint motion for remand and specific performance of the plea agreement. The record establishes that the State breached the plea agreement when it failed to remain silent regarding sentencing. "'[A] defendant who pleads guilty has a constitutional right to a remedy when a plea agreement is broken.'" State v. Smit, 2004 UT App 222,ΒΆ9, 95 P.3d 1203 (quoting Santobello v. New York, 404 U.S. 257, 262 (1971)). The parties agree that the remedy should be specific performance of the agreement at a new sentencing hearing before a new judge. See State v. Hale, 2005 UT App 305, n.4 (mem.) (noting that re-sentencing "should take place before a different judge"). Accordingly, Felder's sentence is vacated and this case is remanded for reassignment to a different judge for re-sentencing. ______________________________ Pamela T. Greenwood, Associate Presiding Judge ______________________________ Judith M. Billings, Judge ______________________________ James Z. Davis, Judge 20060837-CA 2
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