State v. Gerrard

• Decision Date: 14 September 1978
• Docket Number: No. 15580,15580
• Parties: The STATE of Utah, Plaintiff and Respondent, v. David GERRARD, Defendant and Appellant.
• Court: Utah Supreme Court

Page 885

584 P.2d 885

The STATE of Utah, Plaintiff and Respondent, v. David GERRARD, Defendant and Appellant.

No. 15580.

Supreme Court of Utah.

Sept. 14, 1978.

Salt Lake Legal Defenders Ass'n, Brad P. Rich, Salt Lake City, for defendant and appellant.

Robert B. Hansen, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., R. Paul VanDam, Salt Lake County Atty., Salt Lake City, for plaintiff and respondent.

ELLETT, Chief Justice:

The appellant was charged with the crime of rape pursuant to U.C.A., 1953, 76-5-402. He entered a plea of guilty and when he appeared for sentencing, the trial court stated that it would refer the matter to the Board of Corrections for a ninety-day evaluation. The appellant then attempted to escape from the courtroom. When he was apprehended, the court recalled both appellant and his counsel on that same day and rescinded its previous recommendation for the ninety-day evaluation. The court then proceeded to sentence appellant to the Utah State Prison for a term of one to fifteen years.

Appellant now appeals seeking a reversal of the sentence and a remand for the purpose of referral to the Board of Corrections as originally recommended. The appellant does not challenge the term of sentence as such but objects to the sentencing procedure itself, claiming that the trial court abused its discretion by rescinding its previous recommendation for a sentence evaluation.

The sentencing procedures, including the use of an evaluation, are clearly discretionary with the trial court. U.C.A., 1953, 76-3-404, provides in pertinent part the following:

(1) In felony cases where the court is of the opinion that imprisonment may be appropriate but desires more detailed information as a basis . . . The court may, in its discretion, commit a convicted defendant to the custody of the division of corrections for a period not exceeding ninety days . . . (Emphasis added.)

Not only does the court have discretion in deciding whether or not to order a sentence evaluation, but it is important to note that the recommendation of the court was never committed to a formal order. It is the sentence itself which constitutes a final judgment from which appellant has the right to appeal. Thus, prior statements made from the bench are not the judgment of the case and, therefore, are not appealable.

In People v. Boyce ¹ the court held that where prior to pronouncement of judgment, an order of probation was revoked, that such an order, being made before judgment was rendered, was not appealable. This is analogous to the case at hand. Here, the court stated its inclination to defer the judgment until after an evaluation report could be submitted; however, he changed his mind and proceeded to enter the judgment and to pronounce sentence. Only the judgment itself is subject to appeal and all incidents, impressions, or statements made by the court prior to that judgment are precluded.

While we have not found a Utah criminal case dealing with this specific issue, the law is well settled in the state that the statements made by a trial judge are not the judgment of the case and it is only the signed judgment that prevails. The case of McCollum v. Clothier ² is illustrative. There, the judge, at the close of the evidence, stated that it was his opinion that the plaintiff had failed to make a case. When proposed findings, conclusions, and judgment were presented to the court, the judge stated that he had concluded that he was in error and that plaintiff should recover. The defendant appealed the ruling, and at page 320 of the Utah Report, at page 472 of the Pacific Report this Court said:

The fact that the trial court changed his mind and entered a judgment contrary to his orally announced decision at the time the case was submitted, cannot be the basis for over-turning the judgment. The only judgment that can be given effect is the one entered in accordance with law.

Oral statements of opinion by the trial court inconsistent with the findings and conclusions ultimately rendered do not affect the final judgment. (Citations omitted.)

Whether or not the judge elects to order an evaluation before passing sentence is clearly within his discretion, based on his own judgment of the case before him. In Hicklin v. State ³ the defendant entered a plea of nolo contendere. He appealed, claiming in part that the trial court's sentence was based on an unreasonable interpretation of circumstances that existed at the prior hearings. The Supreme Court there dealt with the effect of sentencing procedures on the subsequent judgment by stating:

. . . a judgment in a criminal case will not be disturbed because of sentencing procedures unless there is a showing of an abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play. . . . ⁴

Before this Court will overturn the sentence given by the trial court, it must be clear that the actions of the judge were so inherently unfair as to constitute abuse of discretion. To do otherwise would have a chilling effect on the trial court which has the main responsibility for sentencing and which attempts to arrive at a proper sentence based on the facts and law before it. ⁵

In State v. Harris ⁶ the court there said that the exercise of discretion in sentencing necessarily reflects the personal judgment of the court and the appellate court can properly find abuse only if it can be said that no reasonable man would take the view adopted by the trial court. We cannot say that such is the situation here. In the instant matter the court granted a sentence evaluation based on the appellant's plea that he, in good faith, wanted to be rehabilitated in order to have an opportunity to support the family with whom he was living. A reasonable man could well have believed that appellant's attempt to escape negated his previous statements and that a further evaluation would be futile.

Whether or not the trial judge changed his mind due to the conduct of the defendant or to other reasons is not our concern. The sentence imposed in the instant matter was the proper statutory penalty for the offense of rape in the second degree, ⁷ and this Court will not reverse or modify a sentence prescribed by law unless it is clearly excessive or unless the trial court abused its discretion. ⁸ We find nothing in the circumstances here to warrant either exception, nor do we find that appellant suffered undue prejudice because of the sentence imposed.

The ninety-day evaluation in issue before us was not a judgment of the court; it was within the complete discretion of the judge to grant the evaluation and before being reduced to judgment, was rescinded. That decision was also within the proper discretion of the trial court.

Judgment affirmed. No costs are awarded.

CROCKETT, WILKINS and HALL, JJ., concur.

MAUGHAN, Justice (dissenting):

For the following reasons, I dissent.

Defendant entered a plea of guilty to the crime of rape before the district court judge, who directed defendant to the board of corrections for a ninety-day evaluation. Shortly thereafter, defendant attempted to escape from the courtroom. The judge recalled the defendant to appear before him the afternoon of the same day, rescinded his order for the ninety-day evaluation, and sentenced defendant to prison for a term of one to fifteen years. On appeal, defendant urges...