State v. Wanosik
| Decision Date | 24 October 2003 |
| Docket Number | No. 20010809.,20010809. |
| Citation | 79 P.3d 937,2003 UT 46 |
| Parties | STATE of Utah, Plaintiff and Petitioner, v. Anthony James WANOSIK, Defendant and Respondent. |
| Court | Utah Supreme Court |
Mark L. Shurtleff, Att'y Gen., Jeanne B. Inouye, Asst. Att'y Gen., Nicholas D'Alesandro, Salt Lake City, for plaintiff.
Joan C. Watt, Catherine E. Lilly, Andrea J. Garland, Salt Lake City, for defendant.
¶ 1 Petitioner, the State of Utah, appeals the decision of the Utah Court of Appeals vacating respondent Anthony Wanosik's sentence and remanding for resentencing. The court held the State had not met its burden of proof with respect to the voluntariness of Wanosik's absence. In addition, the court held the trial court did not comply with the requirements of Utah Rule of Criminal Procedure 22(a), and that the defendant's due process rights regarding sentencing were violated.
¶ 2 The facts of this case are largely uncontested. Wanosik was stopped after a police officer saw him place something in his pocket while rummaging through donated items at a Deseret Industries store in Salt Lake City. A computer check revealed the defendant had an outstanding warrant, and he was arrested. A search incident to the arrest found knives, drug paraphernalia, three containers and two bags of suspected methamphetamine, and a bag of suspected marijuana on Wanosik's person. Wanosik pled guilty to two misdemeanor drug offenses. The trial court informed the defendant that the sentencing hearing would be held on May 26, 2000 at 8:30 a.m. Wanosik was not specifically informed that failure to appear at the sentencing might result in sentencing in absentia. ¶ 3 The court also ordered Wanosik to contact Adult Probation and Parole (AP & P) for preparation of a presentence report. He did so, and AP & P recommended that Wanosik be sentenced to twenty days in jail with credit for time served and that he participate in a substance abuse treatment program.
¶ 4 Wanosik failed to appear at the sentencing hearing, which occurred as scheduled. He was, however, represented by counsel. Upon the court's calling defendant's name and receiving no response, defense counsel requested time to locate the absent defendant before the court issued an arrest warrant. Counsel suggested Wanosik "was intending to show up" because he had appeared for his presentence report, the presentence report was favorable, and thus "he would have had no reason to try and avoid court today," and "he may have simply written down the wrong date."
¶ 5 Denying defense counsel's request, the court proceeded with sentencing, stating:
(Emphasis added).
¶ 6 Upon hearing the trial court impose the statutory maximum on each count, rather than the period of incarceration recommended by AP & P, Wanosik's attorney immediately objected, stating:
¶ 7 Although present, the prosecutor said nothing throughout the sentencing and was only addressed when directed to prepare the court's findings of fact and conclusions of law. Wanosik was eventually arrested pursuant to the sentencing warrant.
¶ 8 Wanosik appealed his sentence to the court of appeals. That court vacated the sentence and remanded the case for resentencing, finding that the trial court failed to conduct a proper inquiry to determine if the defendant's absence was indeed voluntary, violated Utah Rule of Criminal Procedure 22(a) by imposing sentence without affording either the prosecutor or defense counsel an opportunity to address information relevant to sentencing, and imposed the maximum sentence possible on the defendant, contrary to the recommendations of the pre-sentence report and based only on the defendant's absence. State v. Wanosik, 2001 UT App 241, ¶¶ 37-39, 31 P.3d 615. We granted the State's petition for a writ of certiorari.
¶ 9 The State asks us (1) to review the court of appeals's requirement for a preliminary inquiry before a trial court may proceed with in absentia sentencing, (2) to clarify the application of Utah Rule of Criminal Procedure 22, and (3) to evaluate the trial court's basis for Wanosik's maximum sentence.
On certiorari, we review the decision of the court of appeals, not the decision of the trial court. In doing so, this court adopts the same standard of review used by the court of appeals: questions of law are reviewed for correctness, and the trial court's factual findings are reversed only if clearly erroneous.
State v. Harmon, 910 P.2d 1196, 1199 (Utah 1995) (citation omitted).
¶ 10 On appeal, the State's arguments fall into two primary categories: (1) in absentia sentencing, and (2) the function and limits of rule 22.
¶ 11 The State contests the requirements imposed by the court of appeals on the prosecution in criminal cases to prove the voluntariness of the defendant's absence. We thus focus on what constitutes a reasonable inquiry at the time a defendant is sentenced in absentia.
¶ 12 The court of appeals outlined a procedure whereby it concluded that sentencing in absentia could be accomplished without a violation of defendant's constitutional rights. The court properly noted that defendants have the right to be present at all stages of the criminal proceedings against them and that it is the burden of the prosecution to show that an absent defendant has knowingly and voluntarily waived that right before sentencing in absentia can proceed. Wanosik, 2001 UT App 241 at ¶¶ 10, 21, 31 P.3d 615 (citing State v. Anderson, 929 P.2d 1107, 1109-11 (Utah 1996)); State v. Wagstaff, 772 P.2d 987, 989-90 (Utah Ct.App. 1989). Therefore, the court of appeals determined that, absent any direct evidence at a sentencing hearing of the reason for a defendant's absence, the hearing should "ordinarily" be continued to permit both the prosecution and defense counsel to seek additional information. It then identified a half dozen potential "avenues for establishing voluntariness," including inquiries of law enforcement, hospitals, employers, and others with supervisory or security interests in the defendant's appearance, such as bail bond companies or pretrial services personnel. Wanosik, 2001 UT App 241 at ¶ 23, 31 P.3d 615. Given that the burden of proof regarding waiver remains with the prosecution, the court of appeals suggested that it might make these inquiries, but obviously contemplated that defense counsel would do the same. The court then concluded that "[o]nce inquiry appropriate to the case has been made, and a compelling reason for the defendant's absence remains unknown, voluntariness, while not guaranteed, may then be properly inferred." Id., at ¶ 23. The State argues that the foregoing process places too heavy a burden of production on the prosecution and that, having established the "knowing" element of waiver by proving notice, the State is entitled to a presumption of the "voluntary" element based solely on the defendant's non-appearance. This approach would properly, according to the State, shift the burden to absent defendants to produce evidence of non-voluntariness.
¶ 13 We do not believe that our precedent permits an automatic presumption in favor of waiver of a constitutional right rather, we find that the reasonable inquiry process identified by the court of appeals is a salutary one. In State v. Houtz this court observed:
A defendant charged with a crime is entitled to be present at all stages of trial. The right to appear and defend in person is a constitutional one, but may be waived under certain circumstances if the defendant voluntarily absents himself from the trial. However, that voluntariness may not be presumed by the trial court.... The trial court made inadequate inquiry into defendant's ability to appear ... before deciding that he had waived his right to be present at trial.
714 P.2d 677, 678 (Utah 1986) (emphasis added) (citations omitted).
¶ 14 In Wagstaff, the court of appeals stated that "[v]oluntariness is determined by considering the totality of the circumstances," 772 P.2d at 990, a standard that clearly contemplates some form of inquiry appropriate to the facts of the case, as required by the court of appeals in this case. The defendant in Wagstaff was known by the trial judge to have intentionally left the state...
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