State v. Tingey

2014 UT App 228_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH ,
Plaintiff and Appellee,
v.
STEVEN SHANE TINGEY ,
Defendant and Appellant.
Memorandum Decision
No. 20120797-CA
Filed September 25, 2014
Second District Court, Farmington Department
The Honorable David M. Connors
No. 071701372
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES STEPHEN L. ROTH and JOHN A. PEARCE
concurred.
CHRISTIANSEN, Judge:
¶1 Defendant Steven Shane Tingey appeals from the revocation
of his probation and the imposition of a previously suspended
prison term. We affirm.
¶2 In 2008, Defendant pled guilty to aggravated assault, a third
degree felony. The trial court sentenced Defendant to an
indeterminate prison term, suspended the prison sentence,
imposed a jail term of 365 days, and placed him on probation. In
February 2012, Defendant appeared before the trial court after the
State charged him with several new felonies. During this hearing,
State v. Tingey
Defendant pled guilty to one count of attempted sexual abuse of a
child, one count of failing to register as a sex offender, and one
count of bail-jumping. Defendant admitted that, with respect to his
original assault case, he violated the terms of his probation by
committing the new offenses of bail-jumping and failing to register
as a sex offender. In August 2012, Defendant appeared before the
trial court to be sentenced on the new felony convictions and the
probation violations. The court sentenced Defendant to a prison
term of zero to five years for each new felony charge to which he
had pled guilty and ordered those sentences to run concurrently
with each other. The court also revoked Defendant’s probation for
his original assault conviction, imposed the previously suspended
zero-to-five-year prison sentence, and ordered that this sentence
run consecutively to the sentences imposed for the new felonies.
¶3 On appeal, Defendant first argues that the trial court failed
to consider that the requisite statutory factors and therefore erred
in ordering the sentence in Defendant’s original assault case to run
consecutively to the sentences imposed in the new felony cases. In
determining whether sentences “are to run concurrently or
consecutively, the court shall consider the gravity and
circumstances of the offenses, the number of victims, and the
history, character, and rehabilitative needs of the defendant.” Utah
Code Ann. § 76-3-401(2) (LexisNexis 2012). The record does not
reflect, however, that Defendant preserved this issue for appellate
review. Generally, in order to preserve an issue for appellate
review, a party must make “a timely and specific objection” before
the trial court. State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171(citation and internal quotation marks omitted). Additionally,
“appellate courts will not consider an issue . . . raised for the first
time on appeal unless the trial court committed plain error or the
case involves exceptional circumstances.” State v. Dean, 2004 UT 63,
¶ 13, 95 P.3d 276. Here, Defendant has not demonstrated that he
specifically objected to or otherwise brought to the trial court’s
attention the court’s alleged failure to consider the requisite
statutory factors in imposing sentence. Defendant argues that
although defense counsel may have “somewhat inartfully
20120797-CA 2 2014 UT App 228State v. Tingey
presented” the issue below, the issue was nevertheless raised “in
such a manner so as to provide the trial court with ‘an opportunity
to address the claimed error, and if appropriate, correct it.’”
(Quoting State v. Noor, 2012 UT App 187, ¶ 5, 283 P.3d 543.) To
support his preservation argument, Defendant cites the following
statements made by defense counsel to the court during the
sentencing hearing:
As the Court will recall the agreement and the
plea agreement on [the new felonies] was that we
had agreed he had entered these pleas with the
agreement that they would be run concurrent, and
that was the recommendation of the State in this
matter.
Other than that, contrary to what the
recommendation AP&P were recommending, we
would concur in the recommendations and run all
three of these matters concurrent, including the
probation violation. As I said, he has spent three
years in custody on these—while these two newer
matters were pending anyway, your Honor.
While these statements indicate that defense counsel requested that
the sentences all run concurrently, we conclude that counsel’s
statements were insufficient to alert the trial court to the specific
error Defendant now claims on appeal—that the court failed to
consider relevant statutory factors before it imposed a consecutive
prison term. Defendant’s claim is therefore unpreserved. Because
Defendant does not argue that plain error or exceptional
circumstances permit our review of this claim, we decline to
consider it further.
¶4 In a related but distinct claim on appeal, Defendant argues
that defense counsel rendered ineffective assistance by failing to
“clearly and specifically” demonstrate to the trial court that the
State had explicitly agreed to recommend concurrent sentencing.
20120797-CA 3 2014 UT App 228State v. Tingey
To establish a claim of ineffective assistance of counsel, Defendant
“must show that counsel’s performance was deficient” and “that
the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). Trial counsel performs
deficiently when “counsel’s representation [falls] below an
objective standard of reasonableness.” Id. at 688. Closely linked
with this standard is the “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. Therefore, to demonstrate that defense
counsel performed deficiently here, Defendant must convince us
that counsel did, in fact, fail to bring to the court’s attention the
State’s agreement to recommend concurrent sentencing and that
failing to do so was a “specific act[] or omission[] that fell outside
the wide range of [reasonable] professional assistance.” See State v.
Chacon, 962 P.2d 48, 50 (Utah 1998). Defendant has not met this
burden.
¶5 The record reveals that defense counsel consistently and
repeatedly alerted the trial court to the State’s purported
agreement to recommend concurrent sentencing on all of
Defendant’s cases. During the February 2012 hearing, defense
counsel explained to the trial court his understanding of the terms
of Defendant’s plea agreement with the State:
[DEFENSE COUNSEL]: Your Honor, our
understanding, I think that the prosecution and I
had—although I did not put it on our plea
agreements—would be that the two matters that he
pled to today would be run concurrent with this
matter . . . .
[PROSECUTOR]: The State has no objection to that.
THE COURT: All right. Well, we’ll address that at
sentencing, obviously, but thank you for putting that
on the record. . . .
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These statements by defense counsel and, in particular, the court’s
acknowledgment of that agreement on the record, indicate that
defense counsel explicitly informed the trial court of the State’s
purported agreement to recommend concurrent sentencing.
¶6 Defense counsel repeated his understanding of the nature of
the plea agreement at the sentencing hearing:
[DEFENSE COUNSEL:] As the Court will recall the
agreement and the plea agreement on [the new
felonies] was that we had agreed he had entered
these pleas with the agreement that they would be
run concurrent, and that was the recommendation of
the State in this matter.
Other than that, contrary to what the
recommendation AP&P were recommending, we
would concur in the recommendations and run all
three of these matters concurrent, including the
probation violation. . . .
....
[PROSECUTOR]: Your Honor, that was the case in
relation to [the new felonies] it was part of the plea
agreement that the State would recommend—part of
the plea agreement was that those two cases run
concurrent, but [the probation violation on the
original assault case] was not part of that plea
agreement. Other than [that] the State will
submit. . . .
....
[DEF ENSE COUNSEL]: I want ed—my
understanding, although—and it’s not written in the
plea agreements, but my understanding when we
spoke with and negotiated that we could—we would
agree to run everything concurrent. So [the State]
and I have a little bit of a miscommunication there
concerning the probation violation [in the original
20120797-CA 5 2014 UT App 228State v. Tingey
assault case]. Our understanding was that the
agreement was a recommendation to run everything
concurrent, but I will—understanding that we did
not specifically include that verbiage in the two plea
agreements that we did [sign].
From these exchanges, it is clear that defense counsel repeatedly
conveyed to the trial court his understanding of the terms of the
plea agreement and, specifically, the State’s role in that agreement.
That the State ultimately disagreed with defense counsel’s
characterization of the plea agreement does not change this fact.
Defendant has identified no other record evidence suggesting that
defense counsel failed to demonstrate to the court the State’s
agreement to recommend concurrent sentencing; indeed, the
record reveals the opposite to be true. Nor has Defendant proffered
what more defense counsel should have done to alert the court to
the purported agreement for concurrent sentencing on all of
Defendant’s pending matters. Therefore, Defendant has not
identified a “specific act[] or omission[] that fell outside the wide
range of professional assistance.” See Chacon, 962 P.2d at 50. As a
result, he is unable to establish that defense counsel performed
deficiently, and his claim of ineffective assistance fails.
¶7 Defendant next argues that the trial court deprived him of
his right to allocution and due process by imposing a prison
sentence without granting him an opportunity to address the court
with information in mitigation of punishment. Defendant concedes
that this claim is not preserved; he thus raises it under the doctrine
of plain error. To prevail under plain error review, Defendant must
satisfy three elements: “First, he must establish that an error did in
fact occur. Second, he must establish that the error should have
been obvious to the trial court. Third, [he] must establish that the
error was harmful.” State v. Candland, 2013 UT 55, ¶ 22, 309 P.3d
230 (citation and internal quotation marks omitted).
¶8 The right to allocution “is an inseparable part” of a
defendant’s right under the Utah Constitution to be present in a
20120797-CA 6 2014 UT App 228State v. Tingey
criminal prosecution. 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.”).
Additionally, rule 22(a) of the Utah Rules of Criminal Procedure
codifies a criminal defendant’s right to allocution. Rule 22(a)
provides that “[b]efore imposing sentence[,] the court shall 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). Based on “both the plain language of rule 22 and the
approach of other jurisdictions with similar rules,” our supreme
court has explained that “the ‘shall afford’ language 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. See id. (“[B]oth the defendant
and counsel shall be affirmatively afforded an opportunity to make
a statement, present any information in mitigation of punishment,
or show any legal cause why sentence should not be imposed.”). 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.” Id.¶9 A violation of a defendant’s right to allocution usually arises
where a trial court has prevented or prohibited the defendant from
speaking altogether or imposed sentence in the defendant’s
absence. In State v. Udy, for instance, this court determined that a
defendant was not “afforded his right to allocution” because “the
trial court refused to hear any statement in mitigation” from either
the defendant or defense counsel during a sentencing review
hearing. 2012 UT App 244, ¶¶ 28–29, 286 P.3d 345; see also State v.
Legg, 2006 UT App 367U, paras. 1, 6 (holding that the trial court
violated the defendant’s allocution rights “when the court
sentenced him without allowing him to offer mitigating remarks”);
State v. Wanosik, 2001 UT App 241, ¶ 32, 31 P.3d 615 (holding that
20120797-CA 7 2014 UT App 228State v. Tingey
the trial court violated the defendant’s allocution rights when the
court, in the defendant’s absence, did not “afford[] defense counsel
an opportunity to present information in mitigation of
punishment”), aff’d, 2003 UT 46, 79 P.3d 937. In sum, 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.” State v. Rodrigues, 2009 UT 62, ¶ 40, 218 P.3d
610 (citation and internal quotation marks omitted); see also State v.
Graziano, 2014 UT App 186, ¶ 6.
¶10 Here, after defense counsel explained to the court his
understanding of the nature of the plea agreement, as cited above,
the court asked defense counsel, “All right. Anything further?” to
which counsel responded, “Not at this time, your Honor.” The
court then asked the State for its input. Once the State responded
and submitted the cases for sentencing, and before the court
actually imposed sentence, the court again asked the defense,
“Okay. Any final words?” Defense counsel responded, “I don’t
believe so, your Honor.” This exchange constitutes a “simple verbal
invitation or question” extended by the court, see Wanosik, 2003 UT
46, ¶ 23, followed by a response from defense counsel, who was
authorized to speak on Defendant’s behalf. Defendant argues that
this invitation is insufficient to satisfy the court’s obligation to
extend Defendant a personal opportunity to allocute, because the
court did not “explicitly” invite Defendant himself to present any
information in mitigation of punishment. But Defendant has failed
to identify any legal support for the proposition that a sentencing
court must explicitly extend to a defendant a separate, verbal
invitation for allocution. Rather, what is required is that “‘some
conduct of the court must let the defendant know that he, as well as
counsel,’” has an opportunity to address the court. Id. (additional
emphasis omitted) (quoting United States v. Byars, 290 F.2d 515, 517
(6th Cir. 1961)). Here, given the context of the exchange between
the court, defense counsel, and the State, the court’s invitation for
“[a]ny final words” signaled to Defendant that he had an
opportunity to address the court. This invitation came only after
the court had asked for and received comment from the State and,
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more importantly, asked defense counsel if he had “[a]nything
further” to add, to which counsel responded, “Not at this time,
your Honor.” That Defendant apparently relied on defense counsel
to respond on his behalf does not invalidate the court’s invitation
to Defendant to address the court. See Graziano, 2014 UT App 186,
¶ 6. We thus conclude that the trial court fulfilled its obligation to
afford Defendant his right to allocution. Accordingly, the trial court
did not commit plain error because no error occurred. See Candland,
2013 UT 55, ¶ 22 (“To prevail under plain error review, a defendant
must demonstrate . . . that an error did in fact occur.” (citation and
internal quotation marks omitted)).1
¶11 Finally, Defendant contends that defense counsel rendered
ineffective assistance by failing to affirmatively request that the
trial court allow Defendant to address the court at sentencing. Even
assuming Defendant could establish deficient performance by
defense counsel in this regard, Defendant has not demonstrated
that this alleged deficiency prejudiced him. In order to establish an
ineffective assistance of counsel claim, proof of prejudice based on
trial counsel’s omissions must be rooted in “a demonstrable reality
and not a speculative matter.” State v. Chacon, 962 P.2d 48, 50 (Utah
1. Defendant also requests that we vacate his sentence and remand
for resentencing pursuant to rule 22(e) of the Utah Rules of
Criminal Procedure. Defendant asserts that his sentence “was both
illegal and imposed in an illegal manner” because the trial court
violated his right to allocution under rule 22(a). “The court may
correct an illegal sentence, or a sentence imposed in an illegal
manner, at any time.” Utah R. Crim. P. 22(e); see also State v. Samora,
2004 UT 79, ¶ 13, 99 P.3d 858 (“[A] sentence imposed in violation
of rule 22(a) . . . may be considered a ‘sentence imposed in an illegal
manner’ under rule 22(e).”). However, because we determine that
the trial court affirmatively provided Defendant with an
opportunity for allocution during the sentencing hearing, the
sentence imposed did not violate rule 22(a). Consequently,
Defendant’s rule 22(e) challenge also fails.
20120797-CA 9 2014 UT App 228State v. Tingey
1998) (citation and internal quotation marks omitted). Here,
Defendant merely asserts that
[h]ad the sentencing court been alerted of its
affirmative duty, the court more likely than not
would have duly allowed Defendant the opportunity
to address the court and present information in
mitigation of punishment, which, in turn would have
allowed the sentencing court to more fully and
accurately consider AP&P’s recommendation for
imprisonment at sentencing.
Defendant does not specify what, if any, mitigating evidence he
would have proffered apart from what his counsel and the
presentence reports had already addressed. Without this
information, we are left to speculate as to what Defendant might
have said. His ineffective assistance of counsel claim therefore fails.
¶12 Affirmed.
20120797-CA 10 2014 UT App 228