State v. Sanchez , 409 P.3d 156 ( 2017 )

2017 UT App 229THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
GREG PAUL SANCHEZ,
Appellant.
Per Curiam Opinion
No. 20170150-CA
Filed December 14, 2017
Fifth District Court, Beaver Department
The Honorable Paul D. Lyman
No. 161500029
Matt A. Munson, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee
Before JUDGES MICHELE M. CHRISTIANSEN, DAVID N. MORTENSEN,
and RYAN M. HARRIS.
PER CURIAM:
¶1 Appellant Greg Paul Sanchez appeals the sentences
imposed on two convictions of distributing, offering, or
arranging to distribute a controlled substance, one a first degree
felony and the other a second degree felony. We affirm.
¶2 This court reviews sentencing decisions for an abuse of
discretion. See State v. Neilson, 2017 UT App 7, ¶ 15, 391 P.3d 398.
A court abuses its discretion in sentencing “when [it] fails to
consider all legally relevant factors or if the sentence imposed is
clearly excessive.” State v. Monzon, 2016 UT App 1, ¶ 8, 365 P.3d
1234 (alteration in original) (citation and internal quotation
marks omitted). Abuse of discretion occurs only “if it can be said
that no reasonable [person] would take the view adopted by the
State v. Sanchez
[district] court.” State v. Valdovinos, 2003 UT App 432, ¶ 14, 82
P.3d 1167 (first alteration in original) (citation and internal
quotation marks omitted).
¶3 Sanchez contends that the district court committed plain
error when it sentenced him without obtaining a presentence
investigation report (PSI). Sanchez concedes that this issue was
not preserved and that Sanchez requested the district court to
proceed with sentencing without the PSI. However, Sanchez
argues that “[e]ven with Sanchez and his counsel asking the
court to move forward on sentencing, it was plain error for the
court to do so on what little information it had absent the PSI.”
To establish plain error and obtain 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 is harmful, i.e., absent the error there is a reasonable
likelihood of a more favorable outcome for [Defendant].” State v.
Alfatlawi, 2006 UT App 511, ¶ 12, 153 P.3d 804 (alterations in
original) (citation and internal quotation marks omitted).
However, the doctrine of plain error “is not available to a party
who had invited the error that he or she later seeks to raise on
appeal.” State v. Hoffman, 2017 UT App 70, ¶ 4, 397 P.3d 789 (per
curiam); see also Alfatlawi, 2006 UT App 511, ¶ 26.
¶4 Sanchez pleaded no contest to amended charges in three
cases. The record reflects that the district court ordered a PSI
1
shortly after the change of plea hearing held on October 3, 2016.
Sanchez subsequently sent a letter to the court stating an
intention to withdraw his no contest pleas. In a November 16,
2016 letter, the assigned agent from Adult Probation and Parole
1. A related appeal was dismissed because this court lacked
jurisdiction to consider claims related to the no contest pleas in
the absence of a timely motion to withdraw the plea. See Order
of Summary Dismissal, State v. Sanchez, Case No. 20170149-CA.
In the present appeal, Sanchez raises a sentencing issue that this
court has jurisdiction to consider.
20170150-CA 2 2017 UT App 229State v. Sanchez
(AP&P) stated the agent spoke to Sanchez on November 15, that
Sanchez refused to complete the AP&P questionnaire, and that
he “respectfully refused” to meet with the agent because he was
seeking to withdraw his no contest pleas. Therefore, the agent
stated that AP&P would not be able to complete the requested
PSI before the sentencing scheduled for November 28, 2016. The
minutes for that sentencing hearing reflect that sentencing was
continued to allow Sanchez to hire new counsel. The court later
found Sanchez to be indigent and appointed counsel.
¶5 At the sentencing hearing on February 13, 2017, Sanchez
indicated that he no longer wished to withdraw his no contest
pleas. Defense counsel stated that no PSI had been completed,
attributing this fact to the retirement of the assigned agent. The
court inquired, “So what do you want to do specifically today?”
Through counsel, Sanchez asked “to proceed with sentencing at
this point,” without a PSI. The district court confirmed with
Sanchez that this correctly represented his wish to proceed with
sentencing. The district court then stated that it would accept the
no contest pleas and proceeded with sentencing. The State
requested the imposition of the statutory prison terms in each
case and asked that the terms run consecutively. Defense counsel
stated that it was anticipated by the agreement that Sanchez
would be sentenced to prison, but he requested that the prison
terms run concurrently with credit for time served. The district
court sentenced Sanchez to prison terms of five-years-to-life on
the first degree felony and zero-to-fifteen years on the second
degree felony, to run concurrently, with credit for time served
and all fines suspended. This is precisely the sentence Sanchez
requested.
¶6 Sanchez cannot demonstrate that the district court
committed plain error in sentencing him. Any error in
proceeding without a PSI was invited by Sanchez when, in
response to the district court’s inquiry, he failed to request a
continuance to obtain a PSI and instead asked to be sentenced
without one. Nevertheless, Sanchez argues that the court should
not have proceeded to sentence him without sufficient
20170150-CA 3 2017 UT App 229State v. Sanchez
information “regarding Sanchez’s cases, criminal history, mental
health issues and medical concerns.” Even if the claimed error
was not invited, Sanchez has not made a credible argument that
the district court was not adequately informed of all relevant
information. In the change of plea hearing, the district court was
informed of the factual basis for the charges. In addition, there
can be no credible argument that either Sanchez or his counsel
was denied an opportunity to provide information or argument
relevant to sentencing. See State v. Wanosik, 2003 UT 46, ¶ 25, 79
P.3d 937 (holding that under Utah Rule of Criminal Procedure
22(a), “trial courts have an affirmative duty to provide both [the
defendant and counsel] an opportunity to address the court and
present information relevant to sentencing before imposing
sentence”). Sanchez did not argue in the district court that he
should have been granted probation and asked only that any
prison sentences run concurrently. Under the circumstances of
this case, even if the claimed error had not been invited, any
error in sentencing Sanchez to concurrent prison terms would
not have been obvious to the district court and would not
support a determination that the court plainly erred.
¶7 Accordingly, we affirm.
20170150-CA 4 2017 UT App 229