State v. Irwin

Decision Date06 September 1996
Docket NumberNo. 950385-CA,950385-CA
Citation924 P.2d 5
PartiesSTATE of Utah, Plaintiff and Appellee, v. Steven M. IRWIN, Defendant and Appellant.
CourtUtah Court of Appeals

Kent E. Snider, Ogden, for Defendant and Appellant.

Jan Graham and Kenneth A. Bronston, Salt Lake City, and Gary Heward, Ogden, for Plaintiff and Appellee.

Before ORME, BILLINGS and JACKSON, JJ.

OPINION

ORME, Presiding Judge:

Claiming the prosecution breached the terms of his plea agreement, defendant appeals his convictions for forcible sexual abuse and unlawful sexual intercourse. We conclude the issue was not preserved for appeal and that "exceptional circumstances" do not exist so as to permit our consideration of the issue absent preservation. Accordingly, we affirm.

FACTS

Defendant was charged with rape, a first-degree felony. At his original arraignment, he pled not guilty. During the course of investigation, new charges surfaced against defendant and defendant entered into plea negotiations with the State. Defendant agreed to plead guilty to a second-degree felony, forcible sexual assault, and a third-degree felony, unlawful sexual intercourse. The State, for its part, agreed not to file any other charges and to remain silent at the sentencing of defendant. However, it was agreed that the prosecutor could provide input to Adult Probation and Parole (AP & P) in the course of its preparing a presentence report.

At initial sentencing, the prosecutor, claiming she was never contacted by AP & P, addressed the court regarding defendant's sentence. She told the court that the presentence report failed to address the unlawful sexual intercourse offense, that the police reports showed defendant lied to police about this and other cases, and that the victim had dropped out of school as a result of defendant's offenses. Defense counsel did not object. At this first sentencing hearing, the court ordered defendant to submit to a ninety-day diagnostic evaluation at the prison. Final sentencing was rescheduled.

At the hearing following the diagnostic evaluation, a substitute prosecutor was present and made a recommendation to the court during sentencing. He recommended that the court follow the diagnostic report and sentence defendant to prison. Again, defense counsel made no objection to the prosecutor's comments. The trial court then sentenced defendant to 1-15 years for forcible sexual abuse and 0-5 years for unlawful sexual intercourse, the terms to be served concurrently.

APPELLATE REVIEW OF ISSUE NOT RAISED BELOW

Defendant, through new counsel on appeal, argues we should address the issue of the breach of his plea agreement even though no objection to the prosecutor's remarks was made at either sentencing hearing. Defendant contends that "exceptional circumstances" exist because the thirty-day time limit for filing a motion to withdraw his guilty plea under Utah Code Ann. § 77-13-6(2)(b) (1995) had elapsed before the prosecution breached its promise to remain silent at sentencing. 1

It is a well-established rule that a defendant who fails to bring an issue before the trial court is generally barred from raising it for the first time on appeal. 2 State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994); State v. Archambeau, 820 P.2d 920, 922 (Utah App.1991). However, three exceptions to this general rule are recognized in Utah. An appellate court may address an issue for the first time on appeal if appellant establishes that the trial court committed "plain error," State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993); Archambeau, 820 P.2d at 922; if there are "exceptional circumstances," id.; or in some situations, if a claim of ineffective assistance of counsel is raised on appeal even though, by reason of the claimed ineffectiveness, the matter was not raised below. See State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991).

Defendant does not raise a claim of ineffective assistance of counsel in this appeal. In order to obtain appellate relief through the doctrine of "plain error," an appellant must establish that "(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful." Dunn, 850 P.2d at 1208. If appellant fails to prove one of these requirements, plain error is not established. Id. at 1209. In this case, while defendant raises "plain error" in passing, that doctrine is not the thrust of his argument. Rather, he focuses all but exclusively on "exceptional circumstances" and fails to establish the last two requirements of the "plain error" doctrine. Thus, we turn our attention to consider whether exceptional circumstances are present.

The exceptional circumstances concept serves as a "safety device," to assure that "manifest injustice does not result from the failure to consider an issue on appeal." Archambeau, 820 P.2d at 923. Unlike "plain error," "exceptional circumstances" is not so much a precise doctrine, which may be analyzed in terms of fixed elements, as it is a descriptive term used to memorialize an appellate court's judgment that even though an issue was not raised below and even though the plain error doctrine does not apply, unique procedural circumstances nonetheless permit consideration of the merits of the issue on appeal. 3

The concept of exceptional circumstances is an elusive one. See, e.g., Dunn, 850 P.2d at 1209 n. 3 (referring to "exceptional circumstances exception" as "ill-defined"). The cases employing the concept feature circumstances which may be fairly characterized as exceptional, but not in every case with some peculiar twist will appellate courts invoke the "exceptional circumstances" label and reach an issue otherwise impervious to appellate review. It does not follow, however, that the determination is completely unpredictable or, as defendant seems to assume, that the concept is so imprecise that "exceptional circumstances" can only be said to exist when an appellate court, more or less arbitrarily, says they do. While something of a qualitative judgment must ultimately be made by the appellate court, careful review of the cases which have employed the exceptional circumstances concept illustrate its proper use and inform our decision as to whether it properly may be invoked in this case.

REVIEW OF "EXCEPTIONAL CIRCUMSTANCES" CASES

In In re Woodward, 14 Utah 2d 336, 384 P.2d 110 (1963), the Utah Supreme Court held that statutes granting general supervision and control over the juvenile courts to an executive branch agency and sanctioning the removal of judges by that same agency were unconstitutional because they violated the separation of powers doctrine. 384 P.2d at 113. While this issue was not raised at the trial level, the Court, in a footnote, justified addressing the issue on appeal, finding exceptional circumstances, although not using that term. Id. 384 P.2d at 111-12 n. 2. While noting that there was "authority for raising a constitutional issue for the first time on appeal" if appellant's liberty were at stake, the Woodward court rejected the proposition that the case before it implicated a liberty interest. Id. The Court nonetheless considered the merits of the underlying issue--the constitutionality of the statute--primarily because the usual trappings of the adversary process, like participation by legal counsel, were not necessarily present in juvenile court proceedings in those days. Id.

In State v. Breckenridge, 688 P.2d 440 (Utah 1983), defendant had agreed to a plea bargain under which he pled guilty to arson. Id. at 441-42. Although there was no objection to this plea bargain or a motion to withdraw plea, on appeal defendant claimed that he had been improperly influenced to plead guilty. Id. at 442. In its opinion, the Supreme Court stated: "The general rule that constitutional issues not raised at trial cannot be raised on appeal is excepted to when a person's liberty is at stake." Id. at 443. It reached the merits of defendant's claim and held that his Due Process rights were violated. See id. at 444. Notwithstanding the Breckenridge court's summary reference to "liberty," it has been noted that the peculiar circumstances leading to Breckenridge's "conviction for accidentally starting a fire certainly qualify as 'exceptional circumstances.' " Archambeau, 820 P.2d at 924 n. 8.

In State v. Jameson, 800 P.2d 798 (Utah 1990), the Supreme Court permitted defendant to raise an issue of double jeopardy for the first time on appeal because "defendant's liberty [was] at stake," id. at 802-03, in the apparent absence of any procedural circumstances that could be regarded as "exceptional." However, this court later expressly rejected the notion that implication of a "liberty interest" is a self-standing exception to the general rule or that it automatically equates to an exceptional circumstance. See State v. Archambeau, 820 P.2d 920, 925 (Utah App.1991). This court held that "a defendant may not assert [even] a constitutional issue for the first time on appeal unless he can demonstrate 'plain error' or 'exceptional circumstances.' " Id. Moreover, this court concluded that the fact that a "liberty interest" is at stake is just one factor in determining whether "exceptional circumstances" exist. Id. Writing for a unanimous panel, Judge Billings correctly observed that

[i]n a criminal case ... it is almost always true that the defendant's "conviction and sentence rest on the outcome of his [or her] appeal," Breckenridge, 688 P.2d at 443, and, therefore, his or her "liberty" is at stake. A per se "liberty interest" exception to the rule prohibiting the consideration of issues for the first time on appeal would effectively swallow the general rule in criminal appeals.

Id. The Utah Supreme Court has expressly approved the analysis set forth in Archambeau. 4 See State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994).

In State v. Gibbons, 740 P.2d 1309 (Utah 1987), the Supreme Court used the exceptional circumstances rationale to reach an issue not...

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