State v. Hoffman , 837 Utah Adv. Rep. 11 ( 2017 )

2017 UT App 70THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
AMELIA SUZANNE HOFFMAN,
Appellant.
Per Curiam Opinion
No. 20150894-CA
Filed April 27, 2017
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 141905983
Debra M. Nelson and Jessica A. Jacobs, Attorneys
for Appellant
Sean D. Reyes and Thomas B. Brunker, Attorneys
for Appellee
Before JUDGES STEPHEN L. ROTH, KATE A. TOOMEY, and DAVID N.
MORTENSEN.
PER CURIAM:
¶1 Amelia Suzanne Hoffman appeals the sentence for her
conviction of attempted possession of a controlled substance, a
class A misdemeanor. We affirm.
¶2 Hoffman argues that the district court erred by ordering
her to complete twelve months of supervised probation and
requiring her to complete a substance abuse evaluation and
recommended treatment, as well as requiring her to comply with
the other standard terms and conditions of probation. Hoffman
concedes that the issue she raises on appeal was not preserved.
However, she asserts that the claims may be reached either
under rule 22(e) of the Utah Rules of Criminal Procedure or
State v. Hoffman
under the doctrine of plain error. She concedes that where an
error is invited, it may not be reviewed under a claim of plain
error. See State v. Alfatlawi, 2006 UT App 511, ¶ 26, 153 P.3d 804.
¶3 Hoffman was charged by information with possession or
use of a controlled substance, a third degree felony. She entered
a no contest plea to an amended charge of attempted possession
or use of a controlled substance, a class A misdemeanor.
Hoffman’s defense counsel and the State jointly recommended
that Hoffman serve “[twelve] months Salt Lake County
probation,” “that she obtain a substance abuse eval[uation] and
do any recommended treatment, that she complete 50 hours of
community service[,] and that she pay a $50 recoupment fee.”
The district court sentenced Hoffman to serve 365 days in jail
and pay a fine of $4,625. The court then suspended the jail
sentence and fine, placing Hoffman on twelve months of
probation supervised by Salt Lake County Probation Services.
The district court ordered Hoffman to obtain a substance abuse
evaluation and to follow through with all recommended
treatment within ninety days thereafter, to complete fifty hours
of community service, and to pay a $50 recoupment fee. The
district court also ordered Hoffman not to commit any new
offenses, not to consume drugs or alcohol, not to be in places
where drugs and alcohol were bought, sold, or used or in the
company of persons who buy, sell, or use drugs and alcohol, and
to submit to random drug testing. Hoffman responded “okay”
after the district court imposed the probation conditions.
¶4 Hoffman’s claim that the district court erred in imposing
the sentence was not preserved for appeal. To establish plain
error and obtain appellate review of an unpreserved claim, a
defendant must show that “(i) [a]n error exists; (ii) the error
should have been obvious to the trial court; and (iii) the error
[was] harmful.” Id. ¶ 12 (first alteration in original) (citation and
internal quotation marks omitted). However, the doctrine of
plain error is not available to a party who has invited the error
that he or she later seeks to raise on appeal. See id. ¶ 26 (stating
20150894-CA 2 2017 UT App 70State v. Hoffman
that under the invited error doctrine, a party cannot take
advantage of an error committed at trial when that party led the
trial court to commit the claimed error). The district court
imposed the sentence that was jointly recommended by the State
and the defense. Hoffman’s brief provides no meaningful
analysis of the claim that the district court plainly erred in
imposing the sentence that was jointly recommended, along
with other usual and customary conditions of probation. Instead,
the brief describes Hoffman’s subjective belief that placing her
on probation supervised by Salt Lake County Probation Services,
as opposed to placing her on unsupervised or court probation,
was excessive. Because any claimed error in sentencing Hoffman
in accordance with the joint recommendation or in imposing
additional probation conditions without receiving any objection
from the defense was invited, the plain error doctrine is not
available to Hoffman. Thus, her claim of error will not be
reviewed on the merits. 1
1. In the recent case of State v. Prater, the Utah Supreme Court
stated,
We remind the appellate bar that counsel faced
with trouble finding an argument that is not
wholly frivolous may submit an Anders brief. The
United States Supreme Court established in Anders
v. California that appointed defense counsel must
support an indigent client’s appeal to the best of
her ability to protect her client’s constitutional
rights to fair process and substantial equality. 386
U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493 (1967). If,
after a “conscientious examination” of a
defendant’s case, counsel finds the “case to be
wholly frivolous,” she should “so advise the court
and request permission to withdraw.” Id. at 744, 87
S. Ct. 1396. The withdrawal request must “be
accompanied by a brief referring to anything in the
(continued…)
20150894-CA 3 2017 UT App 70State v. Hoffman
¶5 Finally, Hoffman argues that her claim on appeal may be
reviewed under rule 22(e) of the Utah Rules of Criminal
Procedure, which allows review of a claim raised for the first
time on appeal that the sentence imposed was illegal. “While
rule 22(e) allows a court to review an illegal sentence at any time,
it must be ‘narrowly circumscribed’ to prevent abuse.” State v.
Thorkelson, 2004 UT App 9, ¶ 15, 84 P.3d 854 (quoting State v.
Telford, 2002 UT 51, ¶ 5, 48 P.3d 228(per curiam)). An illegal
sentence “generally occurs in one of two situations: (1) where the
sentencing court has no jurisdiction, or (2) where the sentence is
beyond the authorized statutory range.” Id. Hoffman’s challenge
to her sentence involves neither of these situations. Without
meaningful analysis, Hoffman argues that she “believes” that the
sentence imposed by the district court was “fundamentally
unfair and violative of due process” and must be vacated.
Merely claiming that a sentence is “illegal” does not avoid
preservation requirements for a “run-of-the-mill” challenge to a
sentence. See id.; see also State v. Jaeger, 1999 UT 1, ¶ 31, 973 P.2d
404 (stating that rule 24(a)(9) of the Utah Rules of Appellate
Procedure “’[i]mplicitly . . . requires not just bald citation to
authority but development of that authority and reasoned
analysis based on that authority” (alternation and omission in
original) (quoting State v. Thomas, 961 P.2d 299, 305 (Utah 1998)).
¶6 Accordingly, we affirm.
(…continued)
record that might arguably support the appeal”
and relevant legal authorities. Id. “A copy of
counsel’s brief should be furnished the indigent
and time allowed him to raise any points that he
chooses. . . .” Id.Prater, 2017 UT 13, ¶ 43 n.7 (omission in original).
20150894-CA 4 2017 UT App 70