State v. Sharp

2021 UT App 90THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
BOBBIE JOE SHARP JR.,
Appellant.
Opinion
No. 20190292-CA
Filed August 19, 2021
Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 181900319
Wendy Brown and Sarah J. Carlquist, Attorneys
for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.
POHLMAN, Judge:
¶1 Bobbie Joe Sharp Jr. pleaded guilty to one count of
aggravated sexual abuse of a child, a first degree felony. After
entering his plea and before sentencing, the victim (Victim)
purportedly wrote a letter in which she recanted her allegations
of Sharp’s abuse. Alleging the letter exonerated him, Sharp
orally moved to withdraw his plea, but the district court denied
the motion and proceeded to sentence Sharp. On appeal, Sharp
contends that Victim’s supposed recantation rendered his guilty
plea unknowing and involuntary and thus justified withdrawal
of his plea. Alternatively, Sharp contends that the court should
have continued sentencing and that it violated his right to
allocution. We reject Sharp’s arguments and affirm.
State v. Sharp
BACKGROUND
¶2 In January 2018, the State charged Sharp with two counts
of rape of a child, three counts of sodomy on a child, one count
of aggravated sexual abuse of a child, and one count of enticing
a minor. As declared in the State’s probable cause statement,
Victim’s grandmother reported that Sharp had given Victim, an
eleven-year-old girl, a cell phone around Thanksgiving 2017 and
that Sharp had been sending Victim sexually explicit messages. 1
The messages contained suggestions that Sharp and Victim
should shower together and engage in anal sex. Victim stated
that Sharp, who was nearly sixty years old, “dated her” and also
sexually abused her. For example, Victim explained how Sharp
made her give him “blow jobs” and taught her how to do a “69.”
Victim said that Sharp told her that he could not wait until he
could take her virginity and Sharp would say, “Let’s fuck, baby.”
Victim also described that when Sharp was in the shower with
her, he told her to bend over, and he tried to go “in” her and
would not stop even after she told him to stop.
¶3 At the preliminary hearing, the State introduced the DVD
of Victim’s interview at the Children’s Justice Center, evidence
that Sharp lived in Victim’s apartment complex, and evidence
that Sharp met Victim when he gave ice pops to her and the
other children in the complex. Victim’s mother testified that in
the autumn of 2017, Victim spent time daily in Sharp’s
apartment and Sharp would walk her home in the evening. The
State also introduced evidence that Sharp sent messages to
Victim about “butt things” and told Victim that he “would
1. Because there was no trial in this case, we draw our
description of events from the State’s probable cause statement
and the evidence presented at the preliminary hearing. We
acknowledge that these details have not been proved and that
the factual basis of Sharp’s plea is not as detailed as our
description of events.
20190292-CA 2 2021 UT App 90State v. Sharp
stretch her butt out.” After the preliminary hearing, the district
court bound Sharp over for trial. 2
¶4 Sharp engaged in plea negotiations with the State.
Ultimately, in November 2018, the State amended the
information to a single count of aggravated sexual abuse of a
child, and Sharp pleaded guilty to that charge.
¶5 In his statement in support of his guilty plea, Sharp
acknowledged that he “underst[ood] that by pleading guilty [he
would] be admitting that [he] committed the crime[]” of
aggravated sexual abuse of a child. He also “stipulate[d] and
agree[d]” to a factual description of his conduct for which he
was criminally liable. Sharp’s statement also showed that Sharp
“agree[d] to be sentenced to a term of 15 year[s] to life in
prison.”
¶6 The district court held a change of plea hearing, during
which Sharp’s counsel reiterated the factual basis for the plea.
Counsel also acknowledged that Victim was eleven years old at
the time of the offense and that Sharp’s position of special
authority was “akin to a babysitter.”
¶7 The court conducted the requisite plea colloquy with
Sharp. Sharp confirmed to the court that what his attorney
described did in fact happen and that he was pleading guilty
because he was guilty. Sharp also stated, among other things,
that he understood the rights that he was giving up by pleading
guilty. The court accepted Sharp’s guilty plea, finding that the
plea was “knowing and voluntary,” that Sharp had the
“advantage of very good counsel,” and that he was “competent
2. Before bindover, the prosecutor amended the charges in two
respects. She amended the count of aggravated sexual abuse to
sexual abuse of a child, and she amended one count of rape of a
child to include the alternative of sodomy on a child.
20190292-CA 3 2021 UT App 90State v. Sharp
to enter a plea” and “underst[ood] the rights [he was] giving up
by doing so.” The court told Sharp, “If you want to ask to
withdraw this plea, you’ll need to do so in writing to me
sometime before your sentencing.”
¶8 Even though he was represented by counsel, Sharp
himself wrote to the judge weeks later, stating that he “would
like to cancel [his] plea deal and go to trial.” Shortly afterward,
Sharp’s counsel filed a written motion to withdraw Sharp’s
guilty plea and attached Sharp’s “sua sponte” letter to the
motion. Sharp’s counsel did not provide a basis for the plea
withdrawal but requested that the court set oral argument on the
motion and postpone sentencing. The court agreed to hold a
hearing.
¶9 At the hearing on the motion to withdraw the guilty plea,
Sharp’s counsel began by informing the court that a letter,
written to Sharp, recently “was intercepted at the jail” and was
“purportedly from the victim in this case.” Counsel continued,
“[I]t is an exculpatory letter basically, which I believe would, if it
is verified as being from [Victim], would be another basis to
withdraw [Sharp’s] plea.” Counsel explained that the State had
the actual letter while she had an electronic copy. In response,
the prosecutor stated, “We have asked Unified Police
Department to investigate. We believe it’s a forgery. . . . And we
don’t have any word [from] them yet on the status of that
investigation.” The court thus decided to proceed with
“handl[ing] the original motion to withdraw” while implying
that the investigation could continue and “then we can figure
out where that letter came from.”
¶10 The court then asked Sharp to state the basis for his
motion. Sharp responded that he had “misunderstood” the
judge at the last hearing about whether he had “45 days to
withdraw [his] guilty plea.” Sharp also stated that his family told
him that he should “let [his appointed counsel] go and bring
on another attorney to represent [him],” but Sharp conceded
20190292-CA 4 2021 UT App 90State v. Sharp
that he did not have the funds to hire a new attorney. The
prosecutor opposed Sharp’s motion to withdraw, arguing that
Sharp had given “no basis” for withdrawal and he had merely
“changed his mind.” The court then again found that Sharp’s
plea “was entered knowingly and voluntarily,” explaining to
Sharp, “I find that the Rule 11 colloquy was given in its entirety
by reference to the actual plea form itself, which your attorney
went over with you, and I see no other possible reason, no other
basis possible, that—that, in fact, your plea could be
withdrawn.” 3 Having denied the written motion to withdraw,
the court scheduled the sentencing hearing. Before adjourning,
the court again addressed the letter purportedly from Victim
and indicated, “I’ll get something from the prosecution talking
about the letter . . . , and we’ll see what the investigator has to
say about that. And . . . based on what happens there, obviously,
that will make our determination as to whether we’re going to
go forward or not.”
¶11 At the sentencing hearing six weeks later, the court first
inquired whether Sharp and his counsel had reviewed the
presentence investigation report (the PSI). Counsel responded,
“[W]e cannot go forward,” and explained that Sharp’s case
“seems to be reassigned in [her] office”; that Sharp had written
to the Utah State Bar complaining about counsel, the prosecutor,
and the judge; and that counsel did not “feel like [she could]
represent him.” The court indicated that the bar complaint
3. Sharp makes no argument that the district court failed to
comply with rule 11 of the Utah Rules of Criminal Procedure
when it accepted his plea. See generally Utah R. Crim. P. 11
(setting forth the findings that a court must make when
accepting a guilty plea); State v. Alexander, 2012 UT 27, ¶¶ 24–27,
279 P.3d 371 (explaining that compliance with rule 11 allows the
district court to “test the knowing and voluntary nature of the
plea” and “forecloses many potential arguments that the
defendant’s plea was not knowingly and voluntarily made”).
20190292-CA 5 2021 UT App 90State v. Sharp
would not “do that” and asked for any other reason to delay.
Counsel responded that the police were “investigating the
source” of the letter purportedly from Victim and stated, “I think
that investigation needs to be completed before we can go
forward with sentencing.” The court disagreed. After learning
that Victim and her mother were present at the hearing, the
court decided to proceed with sentencing. The court again asked
if Sharp and his counsel had reviewed the PSI, and when
counsel said she had not, the court told counsel that it would
take a recess to allow for that review before sentencing. Counsel
again protested that she could not represent Sharp and that the
case was being reassigned. The court responded, “Well, I think
you can represent him. The fact that he filed a bar complaint, to
me—I mean, he filed one against me. He filed one against the
prosecutor. I don’t think that has any bearing on this.”
¶12 When proceedings resumed after the recess, counsel
indicated that she had reviewed the PSI with Sharp and that it
contained no factual inaccuracies. Counsel reiterated that she did
not think that they could proceed, citing the fact that the court
did not have the alleged recantation letter. The court
acknowledged that it did not have the letter but it had “the
implication to what the letter is, though.” Counsel responded
that the “letter, item by item, is exculpatory in every event that
was alleged in this case.” The court then queried, “And how
does that affect . . . him knowing the plea?” Counsel answered,
“[T]hat’s being investigated by [the police].” Unsatisfied with
that answer, the court tried again, asking “how that letter has
anything to do with a person giving a knowing, voluntary, and
intentional plea.” Counsel responded, “Well, Your Honor, it’s
completely exculpatory, and that is being investigated by [the
police].” The court then “accept[ed]” Sharp’s objection, noting
that Sharp had made his record.
¶13 Counsel then read Sharp’s bar complaint aloud in court.
Although the court acknowledged that counsel had said she
could not “represent Mr. Sharp effectively in the sentencing,” the
20190292-CA 6 2021 UT App 90State v. Sharp
court nevertheless asked counsel to “[g]o ahead,” and she then
presented argument pertaining to sentencing:
Mr. Sharp did take responsibility for what
happened here. He did plead guilty. He agreed
that he would go to prison, 15 to life. That is not an
easy thing to do. And other than that, I don’t know
what to tell you. He’s accepted responsibility at the
time of [the plea]. However, now he’s saying he’s
innocent . . . and there’s evidence to support that.
The court stated, “I don’t agree with the last part,” and then
invited the prosecutor to argue.
¶14 The prosecutor began by observing that, from her vantage
point, Sharp’s counsel had “been very effective” and had
“explored all of the issues raised by the investigation.” The
prosecutor then asserted that Sharp had bought a cell phone for
eleven-year-old Victim, communicated with her on it by “saying
the things that he was going to do sexually to her,” and actually
sexually abused her. The prosecutor maintained that Sharp was
“guilty not only of the crime he pled guilty to, but all of the
crimes in the [original] information,” and asserted that the
presumptive sentence of fifteen years to life was “a very
appropriate sentence.” The court asked the prosecutor to explain
“what Mr. Sharp actually participated in with this young
girl,” and the prosecutor provided some details of the
abuse. Sharp’s counsel then interjected that she “dispute[d]
some of those facts.” The court said, “[T]hat’s fine,” and asked
counsel to move aside so that Victim’s mother could address the
court.
¶15 Victim’s mother stated that while Victim was “very
strong” and “resilient,” what Sharp “put [Victim] through was
devastating.” The mother hoped that Sharp would not “get [the]
chance” to “do this to another family,” and she further stated,
“[I]f it were up to me, I’d like him to stay in prison for the rest of
20190292-CA 7 2021 UT App 90State v. Sharp
his life.” The mother added that if Victim “had her way, [she]
would not let him get out of prison either.”
¶16 The court then addressed Victim directly, telling her,
among other things, that the “fact that [she] came forward and
said what [she] did . . . wasn’t easy” and that made her “a hero.”
The court also told Victim that she bore “no blame” for Sharp’s
“despicable acts.”
¶17 Turning to Sharp, the court asked him whether there was
“anything [he] would like [the court] to know before”
sentencing. Sharp answered, “No.” The court followed up, “You
don’t have anything to say?” He replied, “No, sir.”
¶18 The court then began to make a record of its rulings. It
observed that the case had “been in the system for a long time
now,” given that the case was filed in January 2018 and
sentencing was occurring in March 2019. In the court’s view, this
“slow ride through the system” was “painful, particularly for the
family.” The court further observed that Sharp’s counsel had
“done an outstanding job” and had “pushed the State on every
issue that was important.”
¶19 The court next addressed Sharp’s guilty plea, finding
that he “entered it knowingly, voluntarily, intelligently” and
that he “knew exactly what he was pleading guilty to.”
The court found that Sharp had the plea “form read to him,”
that the court “went over the rights with him” and confirmed
he “knew all those rights,” and that Sharp acknowledged in
open court that he understood. It observed that soon afterward,
Sharp had “a little bit of buyer’s remorse” and wanted to
withdraw his plea. Notably, with regard to the letter
purportedly from Victim, the court explained, “[T]here’s some
alleged letter out there that really, in my opinion, doesn’t
have any effect on anything, particularly in the state it’s in right
now.” The court thus denied Sharp’s oral motion to withdraw
his plea.
20190292-CA 8 2021 UT App 90State v. Sharp
¶20 The court then addressed the appropriate sentence for
Sharp. It remarked that Sharp had put Victim through
“something extremely terrible” and that his conduct was
“unbelievable” and “unforgiveable.” The court sentenced Sharp
to a prison term of fifteen years to life. With regard to when
Sharp would become eligible for parole, the court added, “I’m
going to write a personal letter to the Board of Pardons and that
letter is going to indicate that you should never, ever walk on
this earth outside of that prison again. I expect that you’ll die in
prison, which I think that’s what you should do.”
¶21 Finally, the court put “one more thing” on the record.
Regarding Sharp’s bar complaint, the court found “absolutely no
basis for any part of that letter.” It expressed its view that the bar
complaint was “another little trick to kind of push the system
out.” Because the complaint was “nothing more than that” and
the case had been “going now for 14 months,” the court gave the
complaint no credence. The court ended the sentencing hearing
by saying to Sharp, “When you entered that plea, if, in fact, you
knew this was all false, you wouldn’t have entered the plea, but
you did. Good luck to you.”
ISSUES AND STANDARDS OF REVIEW
¶22 On appeal, Sharp raises three main issues for our
consideration. First, Sharp contends that the district court
abused its discretion when it denied his oral motion to withdraw
his guilty plea even though Victim purportedly wrote a letter
recanting her accusations of abuse. 4 In the alternative, he
contends that the court abused its discretion by not reserving its
ruling on the motion to withdraw until the investigation into the
letter could be completed. “We review the denial of a motion to
4. Sharp does not challenge the court’s denial of his written
motion to withdraw.
20190292-CA 9 2021 UT App 90State v. Sharp
withdraw a guilty plea under an abuse of discretion
standard . . . .” State v. Gardner, 2019 UT App 78, ¶ 7, 442 P.3d
1262 (cleaned up). A district court’s decision regarding whether
to continue a matter is generally reviewed for abuse of
discretion. See State v. Taylor, 2005 UT 40, ¶ 8, 116 P.3d 360.
¶23 Second, Sharp contends that the district court abused its
discretion when it did not continue sentencing to allow for,
among other things, further investigation into the letter’s
authenticity. “This court reviews decisions involving
continuances of sentencing only for abuse of discretion.” State v.
Rivera, 2016 UT App 202, ¶ 12, 385 P.3d 685.
¶24 Third, Sharp contends that the district court “imposed an
illegal sentence when it denied Sharp his right to allocution.”
“The denial of the right to allocution is an issue of law that we
review for correctness.” 5 West Valley City v. Walljasper, 2012 UT
App 252, ¶ 6, 286 P.3d 948.
ANALYSIS
I. Plea Withdrawal
¶25 Sharp first contends that the “district court abused its
discretion when it denied Sharp’s motion to withdraw his guilty
plea based on a letter which supported a conclusion that Sharp
was actually innocent of the alleged crime.” According to Sharp,
5. The State asserts that the allocution issue and aspects of the
continuance issues are not preserved for our review. But because
we resolve these issues on the merits in the State’s favor, we
need not resolve the preservation questions. See State v. Kitches,
2021 UT App 24, ¶ 28, 484 P.3d 415 (“[I]f the merits of a claim
can easily be resolved in favor of the party asserting that the claim
was not preserved, we readily may opt to do so without
addressing preservation.”).
20190292-CA 10 2021 UT App 90State v. Sharp
the letter “altered the evidentiary landscape to such a degree
that Sharp cannot be said to have had sufficient awareness of the
relevant circumstances or an understanding of the law in
relation to the facts when he pled guilty.” Thus, Sharp asserts,
the “potentially exculpatory” letter “demonstrated that his guilty
plea was not knowing and voluntary” and warranted its
withdrawal. Alternatively, he contends that the court abused its
discretion by ruling on the motion to withdraw before the
investigation into the letter had been completed and before the
court saw the actual letter. We conclude that Sharp’s claim of
error is unavailing.
A
¶26 Any attempt to withdraw a guilty plea “is governed by
statute.” State v. Alexander, 2012 UT 27, ¶ 19, 279 P.3d 371. Utah’s
plea withdrawal statute provides that a guilty plea “may be
withdrawn only upon leave of the court and a showing that it
was not knowingly and voluntarily made.” Utah Code Ann.
§ 77-13-6(2)(a) (LexisNexis 2017); see also State v. Ruiz, 2012 UT
29, ¶ 37, 282 P.3d 998 (explaining that the defendant bears the
burden of proof on a motion to withdraw a plea). “To show that
a plea was not knowing and voluntary, a defendant must show
either that he did not in fact understand the nature of the
constitutional protections that he was waiving by pleading
guilty, or that he had ‘such an incomplete understanding of the
charge that his plea cannot stand as an intelligent admission of
guilt.’” Alexander, 2012 UT 27, ¶ 23 (quoting Henderson v. Morgan,
426 U.S. 637, 645 n.13 (1976)). Sharp focuses his argument on the
latter—whether he “had such an incomplete understanding of
the charge that his plea cannot stand as an intelligent admission
of guilt.” Id. (cleaned up).
¶27 To have a complete understanding of the charge, “a
defendant must possess ‘an understanding of the law in relation
to the facts.’” Id. ¶ 29 (quoting Boykin v. Alabama, 395 U.S. 238,
243 n.5 (1969)). “In determining whether a defendant
20190292-CA 11 2021 UT App 90State v. Sharp
understands the law in relation to the facts, courts review
whether the defendant understood the critical or essential
elements of the crime to which he pled guilty.” Id. ¶ 30 (cleaned
up). A defendant thus “must understand what critical elements
the State would have to prove beyond a reasonable doubt to
secure a conviction.” Id. ¶ 35. “Without knowing the elements
that the State would have to prove, a defendant cannot
intelligently weigh the risks and benefits of going to trial versus
pleading guilty.” Id. (cleaned up).
¶28 Sharp has not established that he lacked an
understanding of “the law in relation to the facts” of his case
when he pleaded guilty. See id. ¶ 30. To the contrary, Sharp
acknowledged in his plea statement that he understood that by
pleading guilty he would be admitting that he committed the
crime of aggravated sexual abuse of a child. And the factual
basis for the plea was explained to Sharp both in the plea
statement and by his counsel at the change of plea hearing. The
agreed-on factual basis was as follows:
On or about June 1, 2017, through December 21,
2017, in Salt Lake County, Mr. Sharp[,] under
circumstances not amounting to rape of a child,
object rape of a child, sodomy upon a child, or an
attempt to commit any of these offenses, touched
the buttocks of a child, [Victim], with the intent to
arouse the sexual desire of any person and Mr.
Sharp was in a position of special authority that
allowed him to exercise undue influence over
[Victim].
This factual basis included the elements of the offense in relation
to the factual allegations in Sharp’s case. Moreover, Sharp told
the court at the change of plea hearing that this description of
events did happen and that he was pleading guilty because he
was in fact guilty. See supra ¶ 7. The district court thus found
Sharp’s plea “to be knowing and voluntary.” And Sharp simply
20190292-CA 12 2021 UT App 90State v. Sharp
has not explained—either before the district court or this court—
how the alleged recantation letter specifically impacted his
understanding of the “critical or essential elements of the crime
to which he pled guilty.” See Alexander, 2012 UT 27, ¶ 30 (cleaned
up).
¶29 Instead, Sharp invites us to conclude that a plea may be
rendered involuntary under the current plea withdrawal statute 6
“[w]here post-plea but pre-sentence newly discovered evidence
demonstrates the defendant’s innocence.” In extending this
invitation, Sharp acknowledges that he is not aware of any Utah
caselaw applying the current statute under such circumstances.
In other words, although Utah courts have concluded that the
discovery of post-plea, pre-sentencing evidence demonstrating
factual innocence may constitute “good cause” to withdraw a
plea under the pre-2003 version of the plea withdrawal statute, 7
Utah courts have yet to directly address whether the discovery
6. The Utah Legislature amended the plea withdrawal statute in
2003, “chang[ing] the standard for withdrawal of guilty pleas
from good cause to a showing that the plea was not knowingly
and voluntarily entered.” State v. Ruiz, 2012 UT 29, ¶ 39, 282 P.3d
998 (Durham, J., concurring in part and dissenting in part); see
also Utah Code Ann. § 77-13-6(2)(a) (LexisNexis 2017).
7. See State v. Gallegos, 738 P.2d 1040, 1041–42 (Utah 1987)
(reversing the denial of a motion to withdraw a guilty plea
under the pre-2003 version of the plea withdrawal statute based
on the victim’s under-oath recantation of her testimony accusing
her boyfriend of assault), superseded by statute as stated in Ruiz,
2012 UT 29; State v. Mildenhall, 747 P.2d 422, 424 (Utah 1987)
(applying the pre-2003 good cause standard to the defendant’s
motion to withdraw a guilty plea based on a victim’s recantation
of the allegations giving rise to the charge); State v. Walker, 2013
UT App 198, ¶¶ 27–32, 308 P.3d 573 (same).
20190292-CA 13 2021 UT App 90State v. Sharp
of such evidence could render a plea unknowing or involuntary
under the current statute. 8
¶30 The State, however, urges us not to resolve this question
on this record, arguing that “because Sharp cannot demonstrate
that the purported recantation letter truly concerns factual
innocence,” the question he poses is purely hypothetical. It
posits that “[w]here such evidence is not in the record, any
opinion from this Court on the matter would amount to an
advisory opinion.” We agree with the State.
¶31 Whether post-plea, pre-sentence evidence demonstrating
a defendant’s innocence may render a plea unknowing or
involuntary under the current plea withdrawal statute presents
an interesting question. But when Sharp made his motion to
withdraw his guilty plea, there was no such evidence before the
district court. All the court had before it, at the time the motion
to withdraw was made, was a proffer that there might be
evidence supporting Sharp’s innocence. Sharp never presented
even a copy of the alleged recantation letter to the court so that it
could assess whether the letter, based on its content, tended to
show his innocence. And although Sharp contends that his
proffer was undisputed and that the court was thus obliged to
accept it, the proffer was limited. Sharp and the State agreed that
a letter purporting to be from Victim was received at the jail, but,
as Sharp concedes, the State “actively challenged the authenticity
of the letter” and expressed its belief that it was a forgery.
8. The closest our appellate courts have come was in State v.
Archuleta, 2019 UT App 136, 449 P.3d 223. There, without
resolving the question, this court expressed some skepticism
about the proposition, observing that “evidence discovered after
entry of a plea does not necessarily go to whether the plea was
knowingly and voluntarily made at the time it was entered.” See
id. ¶ 32.
20190292-CA 14 2021 UT App 90State v. Sharp
¶32 Thus, even assuming the discovery of post-plea,
pre-sentence evidence could render a plea unknowing and
involuntary under the current plea withdrawal statute, Sharp
has not shown that the court abused its discretion in denying his
motion in the state it was in. Only if the letter were proved to be
authentic could it potentially support the conclusion that Sharp
is factually innocent. Yet no showing of authenticity was made.
And because Sharp did not present to the court actual evidence
demonstrating his innocence, the premise of his argument fails,
and we must leave for another day the question of whether such
evidence could render a plea unknowing and involuntary under
the current plea withdrawal statute. 9
B
¶33 In the alternative, Sharp argues that the district court
acted prematurely and instead should have deferred its ruling
on the motion to withdraw so that the police investigation into
the letter could be completed.
¶34 A district court typically has broad discretion over
whether to continue proceedings. See State v. Taylor, 2005 UT 40,
¶ 8, 116 P.3d 360. An abuse of that discretion “occurs when a
trial court denies a continuance and the resulting prejudice
affects the substantial rights of the defendant, such that a review
9. Sharp resists this conclusion, arguing that this court should
resolve the legal question “because new evidence was
discovered . . . , namely, a letter intercepted at the jail from the
alleged victim.” But even if we were to conclude that newly
discovered evidence demonstrating factual innocence could
render a plea unknowing or involuntary, that ruling would not
benefit Sharp. His argument assumes the letter’s authenticity
and is nonspecific as to its actual contents. Without some
demonstration that the letter was authentic, Sharp could only
speculate that such evidence exists.
20190292-CA 15 2021 UT App 90State v. Sharp
of the record persuades the court that without the error there
was a reasonable likelihood of a more favorable result for the
defendant.” Id. (cleaned up); see also State v. Peraza, 2020 UT 48,
¶ 59, 469 P.3d 1023 (“When a defendant moves for a continuance
under the common law, it is the defendant’s burden to prove
that a denial of the motion would be prejudicial.”). In this case,
Sharp would have to show that there was a reasonable
likelihood of a more favorable result had the court reserved
ruling on the motion to withdraw until the investigation into the
letter’s authenticity concluded. See Taylor, 2005 UT 40, ¶ 8. He
therefore has to show it is reasonably likely that the letter would
have been authenticated, that it demonstrated his innocence, and
that it would have led the district court to conclude that the
evidence rendered his plea unknowing and involuntary.
¶35 Sharp has not met this burden as we are not persuaded
that the results of a finished investigation would have been
reasonably likely to lead to a better result for Sharp. Even
assuming late-arising exculpatory evidence could reach back
and render a plea unknowing and involuntary, see supra ¶¶ 29–
32, there is nothing in the record to suggest it is reasonably likely
that the letter was an authentic retraction. If we were to remand
this matter for the court to reconsider the motion to withdraw
Sharp’s plea, we would be doing so based on nothing more than
speculation that the letter would be proved authentic. See State v.
Maestas, 2012 UT 46, ¶ 286, 299 P.3d 892 (stating that
“speculation that prejudice occurred is insufficient to satisfy [an
appellant’s] burden” on appeal); cf. State v. Kirkwood, 2002 UT
App 128, ¶¶ 13–17, 47 P.3d 111 (explaining that appellate courts
may not simply “speculate as to whether the alleged error was
harmful”).
¶36 Indeed, most of the information before the court
suggested that Victim’s allegations were credible and that she
had not completely recanted. For instance, the court watched
Victim’s interview in which she described Sharp’s abuse, and it
found Victim to be “intelligent, articulate and credible.” It
20190292-CA 16 2021 UT App 90State v. Sharp
further noted that her answers were “internally consistent and
included plausible details” about anatomy and clothing. Victim
was able to describe matters that are normally outside the
knowledge of an eleven-year-old, and Victim’s statements were
corroborated by Sharp’s sexually explicit messages that he sent
to her. This evidence lent credibility to Victim’s allegations.
¶37 On the other hand, the evidence that Victim had
completely recanted was comparatively weak. For example, the
letter was intercepted at the jail, but it was unknown what the
letter looked like and how a child would have known how to
properly address and send a letter to Sharp in jail. A complete
recantation on Victim’s part was also inconsistent with her and
her mother’s presence and conduct at the sentencing hearing.
Additionally, the letter surfaced in the context of Sharp having
“buyer’s remorse” over his plea and lodging a bar complaint as a
“little trick” to delay the proceedings. This context suggested
that the letter could well be yet another ploy.
¶38 Thus, on this record, we cannot conclude that Sharp has
shown that the district court abused its discretion in not waiting
to resolve the motion to withdraw Sharp’s guilty plea until after
the investigation into the letter’s authenticity was complete. The
authenticity of the letter remains unknown, and nothing in the
record makes it reasonably likely that the letter would have been
found authentic. 10
10. To the extent Sharp suggests that the State’s possession of the
letter hindered his ability to show its authenticity, Sharp has not
shown that any effort was made to reach a resolution on this
issue in the six weeks between his hearings. In addition, other
case circumstances potentially could be relied on to show a
reasonable probability that another piece of evidence would
eventually be authenticated. The other circumstances of this
case, however, do not lend such support. See supra ¶¶ 36–37.
(continued…)
20190292-CA 17 2021 UT App 90State v. Sharp
¶39 In sum, Sharp has not shown that he entered his guilty
plea without understanding the law in relation to the facts. We
further conclude that Sharp has not established that the district
court exceeded its discretion in denying his motion to withdraw
his guilty plea or that he was prejudiced by the court’s refusal to
extend the proceedings.
II. The Refusal to Continue Sentencing
¶40 Sharp next asserts that if we do not allow him to return to
the district court to withdraw his plea, this court instead should
vacate his sentence and remand for a new sentencing hearing.
On three grounds, Sharp contends that the district court abused
its discretion when it proceeded to sentencing over his counsel’s
objection. We address each ground and conclude that
resentencing is not warranted.
(…continued)
Sharp also argues that the district court should have waited
until it was able to review the actual letter, but the court was not
obliged to defer its ruling on Sharp’s motion to withdraw until it
“could personally review the letter.” Although Sharp’s counsel
had an electronic copy of the letter, she did not offer that copy to
the district court. Because Sharp “never sought to submit [a copy
of the letter] to the [district] court, the court could not have erred
by failing to consider [it].” See State v. Kelson, 2015 UT App 91,
¶ 13 n.3, 348 P.3d 373. Under the totality of the circumstances,
we agree with the State that the court acted within its discretion
to rule without waiting longer to review the letter.
Relatedly, Sharp asserts that the “district court’s failure to
consider all of the facts—namely, the letter—renders its findings
clearly erroneous.” This argument is unavailing for the same
reason, see id., and we are not otherwise persuaded that the court
made any clearly erroneous findings, see generally State v.
Gardner, 2019 UT App 78, ¶ 7, 442 P.3d 1262 (reviewing the
district court’s findings of fact for clear error).
20190292-CA 18 2021 UT App 90State v. Sharp
¶41 The decision of whether to continue sentencing rests
within the district court’s sound discretion. State v. Rivera, 2016
UT App 202, ¶¶ 12–13, 385 P.3d 685 (explaining that the district
court’s decision not to grant a continuance for sentencing was an
exercise of discretion that we review only for abuse). An abuse
of discretion occurs when the court’s decision is “clearly
unreasonable and arbitrary.” Clarke v. Clarke, 2012 UT App 328,
¶ 19, 292 P.3d 76 (cleaned up). And even when a district court
exceeds its discretion in refusing to postpone the sentencing
proceedings, the appellant must demonstrate prejudice from the
district court’s decision. See Rivera, 2016 UT App 202, ¶ 14. Thus,
we will reverse the denial of a continuance only “when our
review of the record persuades us that without the error there
was a reasonable likelihood of a more favorable result for the
defendant.” State v. Torres-Garcia, 2006 UT App 45, ¶ 10, 131 P.3d
292 (cleaned up); accord State v. Taylor, 2005 UT 40, ¶ 8, 116 P.3d
360.
¶42 First, Sharp asserts that “the district court abused its
discretion by ordering that sentencing proceed before the [oral]
motion to withdraw [his plea] was resolved.” According to
Sharp, the district court contravened the plea withdrawal statute
by “order[ing] that sentencing proceed before denying the
pending motion to withdraw.” But we agree with the State that
the statute does not require that the motion be resolved before
the court hears sentencing evidence. The plea withdrawal statute
provides, “Sentence may not be announced unless the motion [to
withdraw the plea] is denied.” Utah Code Ann. § 77-13-6(2)(b)
(LexisNexis 2017). Thus, it requires only that the court deny the
motion before announcing the sentence. See id. The district court
did exactly that. At the sentencing hearing, the court announced
its denial of Sharp’s oral motion to withdraw before it
announced Sharp’s sentence.
¶43 Second, Sharp argues that “the district court abused its
discretion by forcing Sharp to proceed with sentencing where
there were questions about whether defense counsel would
20190292-CA 19 2021 UT App 90State v. Sharp
continue to represent him and where defense counsel had not
previously had the opportunity to review the presentence report
with Sharp.” True, Sharp did lodge a bar complaint against his
counsel. At the beginning of the sentencing hearing, defense
counsel expressed her belief that she could not represent Sharp
effectively at sentencing, noting that Sharp wrote a bar
complaint and that his case “seems to be reassigned in [her]
office.” Counsel also read the complaint aloud in open court. But
the court found no basis to disqualify Sharp’s defense counsel—
a decision Sharp does not challenge on appeal. And although
defense counsel indicated at the beginning of the hearing that
she had not yet reviewed the PSI with Sharp, the court took a
recess for that express purpose. When the hearing resumed,
counsel confirmed to the court that she had reviewed the PSI
with Sharp. Given that the court allowed defense counsel time to
review the PSI and saw no reason that defense counsel could not
represent Sharp at the hearing, we conclude that the court acted
reasonably under the circumstances.
¶44 Third, Sharp asserts that proceeding with sentencing
forced his counsel to “take an untenable position: that Sharp had
taken responsibility for his actions but also that the victim had
recanted, thereby showing that Sharp was factually innocent of
the crime pled to.” Sharp argues that a continuance would have
allowed for the police investigation into the letter to conclude
and that his counsel could then have made a “cohesive, logical
argument” that Sharp took responsibility for his crime by
pleading guilty or, alternatively, that Victim “had withdrawn
her allegations against Sharp.” Sharp also asserts that either
argument would have been likely to bring about “a more
favorable result” for him.
¶45 Even assuming, without deciding, that the court should
have continued the hearing to allow time for the development of
a more cohesive argument, we are unconvinced that such
argument would have been reasonably likely to lead to a more
favorable sentence for Sharp. If counsel had argued only that
20190292-CA 20 2021 UT App 90State v. Sharp
Sharp was accepting responsibility for his crime, that argument
would have been directly contradicted by Sharp’s own statement
in the PSI that he “didn’t do it” and by the PSI’s notes that Sharp
denied committing the crime and failed to take responsibility for
his actions. On the other hand, if counsel had argued after
further investigation that Victim’s recantation letter was
authentic, that argument would have been undercut by the fact
that Victim and her mother were present at sentencing and
signaled their preference for Sharp to stay in prison for life. That
argument also likely would not have overcome the evidence of
Sharp’s guilt, including his own admission, Victim’s credible
interview, and Sharp’s sexually explicit messages that
corroborated Victim’s allegations. See supra ¶ 36. In deciding on
a fifteen-to-life prison sentence, the district court called Sharp’s
conduct toward Victim “unbelievable” and “despicable,” and
observed that Sharp put Victim through “something extremely
terrible.” Noting that it believed Sharp’s conduct was
“unforgivable,” the court even went so far as to state its
intention to write a personal letter to the Board of Pardons and
Parole so that when Sharp became eligible for parole, the Board
would know the court thought that Sharp “should never, ever
walk on this earth outside of that prison again.” In view of these
statements and the other circumstances present here, we see it as
unlikely that either one of the possible cohesive arguments that
Sharp could have made with more time would have swayed the
district court toward a more lenient sentence. 11
¶46 For the foregoing reasons, we decline to vacate Sharp’s
sentence.
11. In connection with his challenge to the district court’s refusal
to continue sentencing, Sharp also argues that the court abused
its discretion in making factual findings “without first reviewing
the letter and learning of its authenticity.” But this argument
fails for the same reasons discussed above. See supra ¶¶ 35–38.
20190292-CA 21 2021 UT App 90State v. Sharp
III. Allocution
¶47 Finally, Sharp contends that we should vacate his
sentence because it was imposed in violation of his right to
allocution. Specifically, he argues that “[w]hile the district court
offered Sharp the right to speak in his own behalf, it limited
defense counsel’s discussion of relevant information that bore on
mitigation.” We disagree.
¶48 “The right to allocution ‘is an inseparable part’ of a
defendant’s right under the Utah Constitution to be present in a
criminal prosecution.” State v. Tingey, 2014 UT App 228, ¶ 8, 336
P.3d 608 (quoting State v. Anderson, 929 P.2d 1107, 1111 (Utah
1996)); see also Utah Const. art. I, § 12 (“[T]he accused shall have
the right to appear and defend in person and by counsel . . . .”).
The Utah Rules of Criminal Procedure codify this right,
providing that “[b]efore imposing sentence the court must afford
the defendant an opportunity to make a statement and to
present any information in mitigation of punishment, or to show
any legal cause why sentence should not be imposed.” Utah R.
Crim. P. 22(a). 12
¶49 Our supreme court has instructed that rule 22(a) “requires
trial courts to affirmatively provide the defense an opportunity
to address the court and present reasonably reliable and relevant
information in the mitigation of a sentence.” State v. Wanosik,
2003 UT 46, ¶ 23, 79 P.3d 937. “In this context, the ‘defense’
refers to both the defendant and defense counsel.” Tingey, 2014
UT App 228, ¶ 8 (citing Wanosik, 2003 UT 46, ¶ 23). Thus, rule
22(a) “provides that a defendant and defense counsel be
afforded an opportunity to make a statement and present
information.” State v. Tapusoa, 2020 UT App 92, ¶ 14, 467 P.3d
12. We cite the current version of rule 22(a) for convenience.
Although this rule has been amended since the relevant time, the
alterations are immaterial to this case.
20190292-CA 22 2021 UT App 90State v. Sharp
912. “A trial court can ‘affirmatively provide’ the defense an
opportunity for allocution by extending a ‘simple verbal
invitation or question,’ but ‘it is the court which is responsible
for raising the matter.’” Tingey, 2014 UT App 228, ¶ 8 (quoting
Wanosik, 2003 UT 46, ¶ 23). “Violations of a defendant’s right to
allocution usually involve situations where the court has
prevented or prohibited the defendant from speaking altogether
or imposed sentence in the defendant’s absence.” State v.
Graziano, 2014 UT App 186, ¶ 5, 333 P.3d 366. In contrast, “a
defendant’s right to allocution is satisfied so long as the
sentencing hearing was held in the defendant’s presence and the
defendant had an opportunity to speak.” Tingey, 2014 UT App
228, ¶ 9 (cleaned up).
¶50 Because Sharp was present at the sentencing hearing and
the district court asked him directly whether he had anything he
wanted to say, the court inarguably afforded Sharp an
opportunity to make a statement before sentencing. See Tapusoa,
2020 UT App 92, ¶ 12. The court similarly invited defense
counsel to speak regarding sentencing. Still, Sharp contends on
appeal that the district court violated his right to allocution by
“limit[ing] defense counsel’s discussion of relevant information.”
According to Sharp, the court refused to hear from defense
counsel in two instances during the sentencing hearing.
¶51 The first instance occurred soon after defense counsel
discussed the alleged recantation letter, Sharp’s oral motion to
withdraw, and Sharp’s bar complaint. The court expressed
appreciation for defense counsel’s concerns but decided to “go
forward with sentencing.” The court then invited defense
counsel to “[g]o ahead,” and defense counsel addressed
sentencing concerns in this exchange:
[Defense counsel]: Your Honor, Mr. Sharp did take
responsibility for what happened here. He did
plead guilty. He agreed that he would go to prison,
15 to life. That is not an easy thing to do. And other
20190292-CA 23 2021 UT App 90State v. Sharp
than that, I don’t know what to tell you. He’s
accepted responsibility at the time of plead[ing].
However, now he’s saying he’s innocent—
The Court: I understand.
[Defense counsel]:—and there’s evidence to
support that.
The Court: Okay. Well, I don’t agree with the last
part. But go ahead, counselor.
The court then asked the prosecutor to address sentencing.
Referring to this exchange, Sharp argues that the court
improperly interfered with defense counsel’s argument by
interrupting after a few sentences and “asserting that it did not
‘agree with the’ idea that there was evidence to support a claim
of innocence.”
¶52 We read the transcript differently. In our view, the court
afforded defense counsel an opportunity to provide pertinent
information to sentencing. Defense counsel took that
opportunity, albeit briefly, and before she mentioned that Sharp
was “now . . . saying he’s innocent,” counsel suggested that she
had little more to tell the court. While the court did interject that
it disagreed that “there’s evidence to support” innocence,
defense counsel did not indicate a need to follow up. And
because the transcript shows that, overall, defense counsel was
an engaged and assertive advocate throughout the hearings, we
think it unlikely that counsel would have stood idly by if she
actually had more to add at that juncture. Thus, we do not share
Sharp’s view that the court “limited defense counsel’s
discussion” in this first instance.
¶53 As a second instance of alleged improper limitation on
defense counsel, Sharp points to a moment soon after the
prosecutor recited, at the court’s behest, some of the details of
20190292-CA 24 2021 UT App 90State v. Sharp
Sharp’s abuse. Once the prosecutor finished her recitation,
defense counsel said, “Your Honor, I dispute some of those
facts.” The court then stated, “If you wouldn’t mind—that’s fine.
If you wouldn’t mind moving off to the side there . . . .” At that
time, the court invited Victim’s mother to speak. Referring to
this exchange, Sharp argues that the court restricted defense
counsel’s argument and instead should have allowed her to
explain her disagreement with the facts as stated by the
prosecutor.
¶54 We again do not perceive a problem during this second
instance. Defense counsel completed her statement that she
“dispute[d] some of those facts” without interruption. Instead of
probing into this disagreement, the court moved on to hear from
Victim’s mother. But the court did not cut off defense counsel
and was not obligated to inquire further. The court had already
afforded Sharp and his defense counsel an opportunity to make
a statement and present information, thereby satisfying Sharp’s
right to allocution. See Tapusoa, 2020 UT App 92, ¶ 14; Tingey,
2014 UT App 228, ¶ 9. Sharp has not persuaded us otherwise.
CONCLUSION
¶55 First, we conclude Sharp has not shown that his guilty
plea was unknowing and involuntary, that the district court
abused its discretion in denying his motion to withdraw his plea
given the state of the letter, or that he was prejudiced by the
court’s decision to rule before the investigation into the letter
was complete. Second, we conclude Sharp has not established
that the district court’s decision to proceed with sentencing was
an abuse of discretion or prejudicial. Finally, we conclude that
Sharp was afforded his right to allocution at the sentencing
hearing. We thus affirm the district court’s decisions.
20190292-CA 25 2021 UT App 90