2015 UT App 109
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
DAVID DEVOY CARTER,
Defendant and Appellant.
Memorandum Decision
No. 20130897-CA
Filed April 30, 2015
Fifth District Court, St. George Department
The Honorable John J. Walton
No. 121501442
Gary G. Kuhlmann and Nicolas D. Turner, Attorneys
for Appellant
Sean D. Reyes and Brett J. DelPorto, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES J. FREDERIC VOROS JR. and KATE A. TOOMEY
concurred.
ORME, Judge:
¶1 Defendant David Devoy Carter appeals his sentences for
two counts of distributing or arranging to distribute a controlled
substance, second degree felonies. See Utah Code Ann. § 58-37-
8(1)(a)(ii), (b)(i) (LexisNexis 2012). We affirm.
¶2 In 2012, Defendant was charged in two separate cases
with one count of distributing methamphetamine in a drug-free
zone, first degree felonies.1 See id. § 58-37-8(4)(a)(i)–(xi), (b)(i).
Defendant agreed to plead guilty to two counts of distributing or
1. The two cases have been consolidated on appeal.
State v. Carter
arranging to distribute a controlled substance, in exchange for
the State’s agreement to drop the drug-free zone enhancements
and to not file three pending controlled-buy cases. Under the
plea agreements, Defendant was also required to submit to a
presentence investigation with Adult Probation and Parole
(AP&P).
¶3 At Defendant’s plea hearing on December 3, 2012, the
district court conducted the usual colloquy before accepting
Defendant’s guilty pleas. The court reviewed the written plea
agreements with Defendant and then asked him, ‚Is there
anything that’s been promised to you that [you] didn’t get in
your plea agreement[s]?‛ Defendant’s then-counsel replied:
‚Your Honor, I think that there’s a recommendation that the
State would not be seeking prison time and that upon successful
completion of probation that the State would not object to a
double 402.‛2 Defense counsel also told the court that the State
had agreed to release Defendant on his own recognizance.
2. Under section 76-3-402 of the Utah Code,
[i]f the court suspends the execution of the
sentence and places the defendant on probation,
whether or not the defendant is committed to jail
as a condition of probation, the court may enter a
judgment of conviction for the next lower degree of
offense . . . after the defendant has been
successfully discharged from probation . . . .
Utah Code Ann. § 76-3-402(2)(a) (LexisNexis 2012). The statute
allows only one reduction absent prosecutorial consent, but with
the consent of the prosecutor, an offense may be reduced by two
degrees. See id. § 76-3-402(3)(a), (b). For example, if a defendant
was convicted of a second degree felony and the sentencing
court granted the defendant’s motion to reduce the charge, the
‚second degree felony, . . . when reduced, becomes a third
degree felony.‛ State v. Barrett,
2005 UT 88, ¶ 39,
127 P.3d 682. If
(continued<)
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State v. Carter
¶4 The original prosecutor who had negotiated the plea
agreements with Defendant’s counsel was not present at the plea
hearing, because he was in another courtroom for a preliminary
hearing. The State was instead represented by a substitute
prosecutor. The substitute prosecutor told the court that his
copies of the plea agreements did not contain those provisions
and that the original prosecutor did not tell him about these
alleged provisions. The court noted, ‚That’s the understanding
of the defense at this point apparently so we do have a record of
that if it becomes relevant.‛
¶5 The court recessed so that the substitute prosecutor could
clarify with the original prosecutor what had been promised.
When the court reconvened, the substitute prosecutor told the
court that the original prosecutor had agreed to Defendant’s
release on his own recognizance but made no mention of a no-
prison recommendation or section 402 reduction. Defense
counsel made no inquiry about what the original prosecutor had
said concerning the no-prison recommendation or 402 reduction,
nor did he interpose any objection to the accuracy of the
substitute prosecutor’s statements. The district court told
Defendant that his two cases had ‚the potential for two
sentences to the prison for one to 15 years‛ and that ‚it’s also a
possibility the sentencing judge would make those consecutive,
one after the other.‛3 The court asked Defendant if he still
wanted to plead guilty, and Defendant replied, ‚Yes, your
Honor.‛ The court accepted Defendant’s guilty pleas and
ordered that Defendant be ‚released on recognizance.‛
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State v. Carter
¶6 At Defendant’s sentencing hearing nine months later, the
original prosecutor was present. The court noted that the State’s
recommendation was for prison. Defendant’s then-counsel did
not raise the claimed agreement for a no-prison recommendation
but responded as follows: ‚Yes, your Honor. And I’d like to ask
the Court to perhaps consider some jail in lieu of that and let me
explain why.‛ Defense counsel then stated that he thought
Defendant should be sentenced to jail instead of prison because
Defendant knew what he did was wrong, he had come to terms
with his guilt, and defense counsel believed that Defendant had
‚finally turned the corner.‛ The original prosecutor stated that
the State was recommending prison based on the facts that
Defendant had been to prison before, he had ‚poor performance
on probation,‛ he ‚didn’t show up for his first appointment with
AP&P,‛ and he had ‚prior convictions for similar types of
offenses.‛ The court then told Defendant, ‚*I]n light of all of this
or after all of this you committed two different offenses
involving distribution of controlled substances. You’ve left the
Court with no reasonable alternatives but to send you to prison.‛
The district court sentenced Defendant to two consecutive terms
of imprisonment of one to fifteen years. Defendant appeals.
¶7 Defendant first argues that the State breached the plea
agreements by recommending prison time and that the district
court erred when it failed to ensure that his expectations
regarding the plea agreements were fulfilled. Defendant
concedes that this claim was not preserved and seeks review
under the plain error exception to the preservation requirement.
To establish plain error, an appellant 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.‛ State v. Dunn,
850 P.2d 1201,
1208 (Utah 1993). ‚If any one of these requirements is not met,
plain error is not established.‛
Id. at 1209. Here, we conclude that
Defendant has not established plain error.
¶8 First, it is far from clear that an error occurred. See
id. at
1208. While not dispositive in and of itself, the State’s alleged
promise not to recommend prison is not mentioned in the
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State v. Carter
written plea agreements, and Defendant concedes ‚that the
record does not contain an actual affirmation from the State that
[it] had promised to not seek prison time in exchange for [his]
guilty pleas.‛4
¶9 Nevertheless, Defendant argues that an error occurred
because he ‚entered his pleas with the understanding that the
State would not seek prison time, and the trial court was aware
of [his] understanding at the time he entered his pleas.‛
Defendant compares his situation to that of the defendant in
State v. Garfield,
552 P.2d 129 (Utah 1976), and argues that, like
the defendant in Garfield, he has the right to receive the benefit of
his bargain, i.e., ‚to be sentenced without a State
recommendation of prison time.‛ However, in Garfield, the
record ‚unequivocally‛ established that the prosecutor promised
to recommend probation in return for the defendant’s guilty
plea.
Id. at 130. Here, unlike in the Garfield case, there is no
record of a promise by the State to refrain from recommending
prison time. And as the Utah Supreme Court noted in State v.
Bero,
645 P.2d 44 (Utah 1982), ‚*a+ ‘plea agreement’ that was
never agreed upon need not be fulfilled.‛
Id. at 46. See also
id. at
47 (‚A reasonable belief is not equal to a promise.‛).
Consequently, because there is no evidence that the State ever
agreed not to seek prison time, Defendant has not established
that an error occurred.
¶10 However, even if we were to agree that an error occurred,
Defendant has failed to establish that the error should have been
obvious to the district court. See Dunn, 850 P.2d at 1208. Again,
beyond defense counsel’s single assertion at the plea hearing
4. Nothing in this decision should be taken to suggest that the
absence of a particular provision from a written plea agreement
conclusively establishes that the parties never agreed to the
provision. In this case, there is simply nothing to suggest that the
parties ever reached an agreement regarding a no-prison
recommendation.
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State v. Carter
that the State promised not to recommend prison, the record is
silent as to whether the State actually promised to refrain from
seeking prison time for Defendant. But more importantly, once
the question arose at the plea hearing, the district court and
counsel took actions to clarify the terms of Defendant’s plea
agreements. See Bero, 645 P.2d at 47 (‚The court should
understand clearly and make sure the parties understand clearly
the terms which they have agreed to before acting upon the
*plea+ agreement.‛). After defense counsel mentioned that the
State agreed not to seek prison time and that Defendant could be
released on his own recognizance, the district court briefly
adjourned so that the substitute prosecutor and the original
prosecutor could confer to clarify the terms of the plea
agreements. When the court reconvened, the substitute
prosecutor stated only that the original prosecutor had agreed to
Defendant’s being released that day on his own recognizance. 5
5. Defendant also argues that ‚the mere existence of the
State’s promise to stipulate to *D+efendant’s *own-recognizance]
release, indicates that the State had previously agreed not to seek
prison time at sentencing.‛ He asserts, ‚Otherwise, one must ask
why the State would bother to stipulate to *Defendant’s+ release
at the time the court accepts his guilty pleas, only to ask that
*Defendant+ be put back into custody at sentencing?‛ We think
that the answer to Defendant’s question is fairly obvious. After
the district court acknowledged the State’s recommendation that
Defendant be released on his own recognizance, the court stated
that there was ‚some kind of a warrant from Cedar City . . . so
you’d be transported to Cedar City instead of being released
from [the Purgatory Correctional Facility] here, but at least
you’d be free to go to Cedar City and do whatever needs to be
done up there.‛ Thus, by stipulating to Defendant’s release on
his own recognizance, the State was presumably furthering its
interest in having Defendant respond, as required, to the
outstanding warrant in Cedar City.
Contrary to Defendant’s assertion, the fact that the State
stipulated to Defendant’s own-recognizance release does not
(continued<)
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State v. Carter
The court acknowledged this clarification of the plea agreements
on the record, stating: ‚And *Defendant+, the prosecutor has
clarified there was an agreement for you to be released on your
own recognizance on these cases if you entered a plea.‛ Defense
counsel did not object or reassert that the State had additionally
promised not to seek prison time. The district court then warned
Defendant that his two cases had ‚the potential for two
sentences to the prison for one to 15 years‛ and that ‚it’s also a
possibility the sentencing judge would make those consecutive,
one after the other.‛ When the court asked Defendant if he still
wanted to plead guilty, Defendant said, ‚Yes, your Honor.‛
Based on these events, we think that the district court could
appropriately conclude that the State had not agreed to the no-
prison recommendation defense counsel initially raised.
Consequently, the error, if any, was not obvious.
¶11 Defendant cannot demonstrate either that an error
occurred or that the error, if any existed, should have been
obvious to the district court. Therefore, we conclude that
(2015 UT App 109
State v. Carter
Defendant has not demonstrated plain error.6 See Dunn, 850 P.2d
at 1208.
¶12 Defendant, represented by new counsel on appeal, next
argues that his trial counsel’s performance was constitutionally
deficient because he did not object to the State’s
recommendation that Defendant be sentenced to prison. ‚An
ineffective assistance of counsel claim raised for the first time on
appeal presents a question of law.‛ State v. Clark,
2004 UT 25, ¶ 6,
89 P.3d 162. To prove ineffective assistance of counsel, ‚a
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). ‚If a defendant
6. In the alternative, Defendant argues that we should consider
his claims under the exceptional circumstances exception to the
preservation requirement. See State v. Dunn,
850 P.2d 1201, 1209
n.3 (Utah 1993). Specifically, he argues that he was prejudiced by
the change in judge between the plea hearing at which he
entered his guilty pleas and the sentencing hearing. The
exceptional circumstances doctrine ‚is used sparingly, properly
reserved for truly exceptional situations . . . involving ‘rare
procedural anomalies.’‛ State v. Irwin,
924 P.2d 5, 11 (Utah Ct.
App. 1996) (quoting Dunn, 850 P.2d at 1209 n.3). Utah courts
have previously recognized that ‚two judges, while different
persons, constitute a single judicial office.‛ Gillmor v. Wright,
850
P.2d 431, 439–40 (Utah 1993) (Orme, J., concurring). Accord In re
R.B.F.S.,
2012 UT App 132, ¶ 12,
278 P.3d 143. Accordingly, we
conclude that the change of judges between the plea and
sentencing hearings is not the kind of rare procedural anomaly
contemplated by the exceptional-circumstances doctrine and that
Defendant was not prejudiced by the reassignment of his case to
another judge. This is especially so given that the change of
judges was occasioned by the routine occurrence of a retirement
and that the first judge specifically warned Defendant of the
possibility that his sentence would be exactly the one that was
imposed by the second judge.
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fails to establish either of the two parts of the Strickland test,
counsel’s assistance was constitutionally sufficient, and we need
not address the other part of the test.‛ State v. Medina-Juarez,
2001 UT 79, ¶ 14,
34 P.3d 187.
¶13 To satisfy the first part of the Strickland test, Defendant
must ‚overcome a strong presumption that [his] trial counsel
rendered adequate assistance.‛ State v. Crosby,
927 P.2d 638, 644
(Utah 1996). Given this ‚strong presumption of competence, we
need not come to a conclusion that counsel, in fact, had a specific
strategy in mind.‛ State v. Tennyson,
850 P.2d 461, 468 (Utah Ct.
App. 1993). ‚Instead, we need only articulate some plausible
strategic explanation for counsel’s behavior.‛
Id.
¶14 In this case, there is a plausible explanation for counsel’s
failure to object to the State’s prison recommendation, namely,
that the State never promised to refrain from recommending
prison time for Defendant. And indeed, there is no evidence of
such an agreement by the State. In any event, defense counsel
was not required to object to the State’s recommendation of
prison if such an objection would have been futile. See State v.
Whittle,
1999 UT 96, ¶ 34,
989 P.2d 52. If defense counsel had
pursued his objection to the State’s prison recommendation, the
State would likely have responded that it never agreed not to
recommend prison. And the district court would have consulted
the written, signed plea agreements, and it would have seen that
the agreements said nothing about a promise by the State to not
recommend prison. Moreover, both plea agreements stated that
‚*a+ll the promises, duties, and provisions of the plea agreement
. . . are fully contained in this statement.‛ And as previously
indicated, after initially sharing his thought ‚that there’s a
recommendation that the State would not be seeking prison
time,‛ defense counsel may have realized he had that wrong. See
supra note 5. Thus, defense counsel’s failure to make futile and
possibly unethical arguments about the no-prison
recommendation does not constitute deficient performance.
¶15 There is a ‚plausible strategic explanation‛ for defense
counsel’s failure to object to the State’s recommendation of
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State v. Carter
prison. See Tennyson,
850 P.2d at 468. Therefore, Defendant
cannot demonstrate that his counsel’s performance was deficient
under part one of the Strickland test. See
466 U.S. at 687. Because
Defendant has failed to establish part one of the Strickland test,
‚we need not address the *prejudice+ part of the test.‛ Medina-
Juarez,
2001 UT 79, ¶ 14.
¶16 We conclude that Defendant’s claim of plain error fails
because he cannot demonstrate that an error occurred or that the
error, if any, should have been obvious to the district court. In
addition, we reject Defendant’s argument that he received
ineffective assistance of counsel. His sentences are affirmed.
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