State v. Samora

• Decision Date: 15 November 2002
• Docket Number: No. 20010988-CA.,20010988-CA.
• Citation: 59 P.3d 604,2002 UT App 384
• Parties: STATE of Utah, Plaintiff and Appellee, v. Manuel Ernesto SAMORA, Defendant and Appellant.
• Court: Utah Court of Appeals

59 P.3d 604

2002 UT App 384

STATE of Utah, Plaintiff and Appellee, v. Manuel Ernesto SAMORA, Defendant and Appellant.

No. 20010988-CA.

Court of Appeals of Utah.

November 15, 2002.

Joan C. Watt and John K. West, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.

Mark L. Shurtleff, Attorney General, and Jeanne B. Inouye, Assistant Attorney General, for Appellee.

Before Judges JACKSON, BENCH, and GREENWOOD.

OPINION

GREENWOOD, Judge:

¶ 1 Manuel Ernesto Samora (Defendant) appeals from a sentence for attempted joyriding with intent to temporarily deprive owner, a class A misdemeanor, in violation of Utah Code Ann. § 41-1a-1314 (1998) and Utah Code Ann. § 76-4-101 (1999). Defendant argues that the trial judge erred in imposing a harsher sentence following reversal of his original sentence on appeal. We vacate Defendant's sentence and remand.

BACKGROUND

¶ 2 On August 8, 2000, Defendant pleaded guilty to attempted unlawful control of a motor vehicle with intent to temporarily deprive owner. As part of his plea agreement with the State, Defendant agreed to pay restitution to the victim. The trial court accepted Defendant's guilty plea and agreed to release him on his own recognizance pending sentencing. The trial court set sentencing for September 22, 2000, in front of a different trial judge. When Defendant failed to appear for his September 22 sentencing, the trial court sentenced him in absentia to the statutory maximum one-year sentence, imposed a fine of $2500, a surcharge, and attorney fees. The trial court did not impose restitution.

¶ 3 Defendant appealed his sentence in absentia, claiming it violated due process and Rule 22(a) of the Utah Rules of Criminal Procedure. On September 7, 2001, this court in a per curiam opinion vacated Defendant's sentence and remanded his case for resentencing in accordance with State v. Wanosik, 2001 UT App 241, 31 P.3d 615, cert. granted, 42 P.3d 951 (Utah 2002).¹

¶ 4 On November 16, 2001, Defendant appeared for resentencing before the judge who previously sentenced him. During resentencing, defense counsel requested that the trial court waive or substantially reduce Defendant's fine so Defendant could pay the restitution that he originally agreed to as part of the plea negotiation. Defense counsel also requested that Defendant be granted credit for the six months he had served on his sentence awaiting the original appellate disposition.

¶ 5 After taking testimony regarding the restitution amount owing, the trial court resentenced Defendant to the maximum one-year jail term, denying Defendant good-time credit for the six months he had served. The court again imposed the maximum $2500 fine, a surcharge, and attorney fees. In addition, the court ordered that Defendant pay $744.80 in restitution.

¶ 6 Defendant filed a Motion to Reconsider Sentence asking the trial court to reconsider its denial of credit for time served. The trial court granted Defendant's Motion to Reconsider and gave him credit for the time he had served.

ISSUE AND STANDARD OF REVIEW

¶ 7 Defendant claims the trial court erred by imposing restitution at resentencing when restitution was not imposed as part of Defendant's original sentence. Because sentencing errors involve questions of law, we review for correctness. See State v. Kenison, 2000 UT App 322, ¶ 7, 14 P.3d 129

.

ANALYSIS

¶ 8 Defendant argues that the trial court erred when it imposed restitution at resentencing without waiving or substantially reducing the fine Defendant owed. He contends that due process and Utah Code Ann. § 76-3-405 (1999), preclude the imposition of a harsher sentence after a case is reversed on appeal. The State argues that Defendant invited any sentencing error when he declared his obligation to pay restitution. Alternatively, the State asserts that the trial court may increase the penalties upon resentencing when the original sentence was illegal or is based on facts not known to the court at the time of the original sentencing.² ¶ 9 In North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969), the Supreme Court held that when resentencing a defendant, due process prevents the sentencing judge from increasing the sentence when that increase is motivated by vindictiveness. To free defendants from the apprehension of such a retaliatory motivation, the Supreme Court held that "whenever a judge imposes a more severe sentence upon a defendant," the reasons must affirmatively appear on the record and "be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Id. at 766, 89 S.Ct. at 2081. But see Texas v. McCullough, 475 U.S. 134, 140-42, 106 S.Ct. 976, 980-81 (1986)

(stating that language "[r]estricting justifications for a sentence increase to only `events that occurred subsequent to the original proceeding'" was not "intended to describe exhaustively all of the possible circumstances in which a sentence increase could be justified.").

¶ 10 The Utah Code also addresses limitations on resentencing, as follows:

(1) Where a conviction or sentence has been set aside on direct review or on collateral attack, the court shall not impose a new sentence for the same offense or for a different offense based on the same conduct which is more severe than the prior sentence less the portion of the prior sentence previously satisfied.

(2) This section does not apply when:

(a) the increased sentence is based on facts which were not known to the court at the time of the original sentence, and the court affirmatively places on the record the facts which provide the basis for the increased sentence; ....

Utah Code Ann. § 76-3-405.

¶ 11 In State v. Sorensen, 639 P.2d 179, 180 (Utah 1981), the supreme court discussed the requirements of due process and section 76-3-405 in relation to resentencing. The supreme court held that section 76-3-405

prevents the Utah constitutional right to appeal (Article VIII, § 9) from being impaired "by imposing on a defendant who demonstrates the error of his conviction the risk that he may be penalized with a harsher sentence for having done so."

Id. (quoting Chess v. Smith, 617 P.2d 341, 343 (Utah 1980)).

In the context of the due process requirement of North Carolina v. Pearce, [395 U.S. 711, 89 S.Ct. 2072], which seeks to assure that there is no chilling or deterring of the criminal defendant's exercise of his basic constitutional right to appeal, and in light of the Utah constitutional constraint against impairing the right to appeal, as articulated in Chess v. Smith, , we think the meaning of our statutory prohibition against a "more severe" second sentence is clear. The second sentence cannot exceed the first in appearance or effect, in the number of its elements, U.C.A., 1953, § 76-3-201, or in their magnitude.

Sorensen, 639 P.2d at 181 (alterations in original).

¶ 12 Our supreme court has also observed that section 76-3-405 is "more stringent than the due process protection [and] `allows for no exceptions.'" State v. Bakalov, 1999 UT 45, ¶ 73, 979 P.2d 799 (quoting Sorensen, 639 P.2d at 180). Although the State agrees that as a general rule a sentence imposed after a successful appeal cannot be more severe than the prior sentence, it argues that Defendant's case is different because he invited any error by volunteering that he owed restitution.

¶ 13 Defendant acknowledges he did not argue at resentencing that the trial court was precluded from imposing a harsher sentence on resentencing. However, Defendant asserts plain error on appeal. The State counters, and our dissenting colleague agrees, that Defendant invited error by initiating the discussion of restitution and acknowledging that it was owed. Accordingly, the State asserts that a plain error analysis is not available. See State v. Perdue, 813 P.2d 1201, 1206 (Utah Ct.App.1991)

(stating invited error defeats claim of plain error). We have two initial responses. First, as noted in Wanosik, rule 22(e) permits this court to consider whether a defendant was illegally sentenced "`even if the issue is raised for the first time on appeal.'" State v. Wanosik, 2001 UT App 241, ¶ 28 n. 11, 31 P.3d 615,

cert. granted, 42 P.3d 951 (Utah 2002) (quoting State v. Brooks, 908 P.2d 856, 860 (Utah 1995)). Second, the colloquy between the trial court and Defendant's counsel lacked sufficient clarity to construe it as an invitation or stipulation for the trial court to violate section 76-3-405.³

¶ 14 We acknowledge that Defendant did not provide a plain error analysis in his brief, alluding to it only in the standard of review section, perhaps relying on the proposition stated in Wanosik and Brooks, that the issue did not need to be preserved in the trial court. As noted in the dissenting opinion, plain error will be found only if the appellant establishes that "(i) an 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). The third factor is clearly established because Defendant received a more harsh sentence on resentencing. We next examine the first factor, whether error occurred, because that analysis is necessary to a plain error evaluation and also necessary if we have jurisdiction under Wanosik and Brooks. We note that this issue is addressed in Defendant's brief.

¶ 15 We begin our analysis by determining whether the presumption of vindictiveness as described in Pearce is applicable. See Pearce, 395 U.S. at 725,

89 S.Ct. at 2080; State v. Babbel, 813 P.2d 86, 87 (Utah 1991). The State argues that the principles underlying Pearce are not applicable in this case because Defendant's original sentence was illegal, and under Babbel, id. at 88, an illegal sentence is void and not subject to the sentence protections articulated in Pearce, Sorensen, Chess, and section 76-3-405. However, we find the...