W. Valley City v. Walljasper

• Decision Date: 13 September 2012
• Docket Number: No. 20110291–CA.,20110291–CA.
• Citation: 286 P.3d 948,717 Utah Adv. Rep. 60,2012 UT App 252
• Parties: WEST VALLEY CITY, Plaintiff and Appellee, v. Armand WALLJASPER, Defendant and Appellant.
• Court: Utah Court of Appeals

286 P.3d 948

717 Utah Adv. Rep. 60

2012 UT App 252

WEST VALLEY CITY, Plaintiff and Appellee,

v.Armand WALLJASPER, Defendant and Appellant.

No. 20110291–CA.

Court of Appeals of Utah.

Sept. 13, 2012.

Jeremy M. Delicino, Salt Lake City, for Appellant.

Ryan D. Robinson and Victoria K. McFarland, West Valley City, for Appellee.

Before Judges McHUGH, ORME, and CHRISTIANSEN.

OPINION

McHUGH, Presiding Judge:

¶ 1 Armand Walljasper appeals from his sentence of sixty days in jail and eighteen months of probation for two counts of violation of a protective order, which are each class A misdemeanors. SeeUtah Code Ann. § 76–5–108 (2008); id. § 77–36–1 (2008) (current version at id. (Supp. 2012)). ¹ We affirm.

BACKGROUND

¶ 2 This case arises out of a series of charges against Walljasper for violating a protective order entered at the request of the mother of his child (Victim). On August 12, 2009, Walljasper entered guilty pleas to two misdemeanor counts of violation of a protective order on the current charges. The trial court agreed to hold the guilty pleas in abeyance and placed Walljasper on probation, the terms of which included that he have no further violations. Subsequently, Victim filed an affidavit in support of an Order to Show Cause, alleging that Walljasper had again violated the protective order (the new violations). The trial court set the matter for hearing on February 28, 2011.

¶ 3 At the hearing, Walljasper admitted the new violations and the trial court revoked his probation on the current charges. The trial court then heard from the West Valley City (the City) prosecutor, who explained that Walljasper was already serving a sixty-day sentence for a related protective order violation (the related violation).² Trial counsel indicated that at the time of the hearing, Walljasper had completed approximately half of the sentence on the related violation, leaving about thirty more days of the jail sentence to serve. The court next heard from Victim, who expressed her desire that the court impose the maximum two-year sentence for the current charges, to be served after completion of the sentence on the related violation. She also detailed the impact of Walljasper's repeated violations of the protective order on her life. In response, Walljasper's trial counsel requested that any jail time be served concurrently with the jail sentence on the related violation. He explained that Walljasper had sixty-days leave from his employment to serve the sentence on the related violation, and that he would lose his job if he did not return to work at the end of that time. Trial counsel noted that without employment, Walljasper would be unable to pay child support. Finally, trial counsel urged the court to consider the “nonviolent” nature of Walljasper's violations of the protective order and that his criminal history was “relatively minimal.” The trial court then requested input from the prosecutor, who asked for “additional punishment” beyond the sixty days Walljasper was serving for the related violation.

¶ 4 Following this argument, the trial court rescinded the pleas in abeyance on the current charges and entered Walljasper's pleas as guilty. It then stated, “The Court will impose 365 days in each [of the current charges] and run [these sentences] consecutive to [each other],” but also indicated that it would suspend the one-year sentences and “require that Mr. Walljasper serve ... an additional 60 days ... to what he has presently served [on the related violation].” Because Walljasper had already served half of the sentence on the related violation, the sentence on the present charges effectively added thirty days of jail time. The trial court next explained that the jail sentences would be followed by probation. While announcing the terms of that probation, the trial court paused to ask the attorneys to identify the agency that would be supervising Walljasper's probation on the related violation. Trial counsel replied, “I believe it will be AP & P [Adult Probation and Parole]. And, Judge, just for the record, I think Mr. Walljasper would like to allocute, if that's possible.” The trial court replied, “Pardon me?” to which counsel responded, “[H]e'd like to allocute.... He'd like to address the Court if that's possible.” The trial court responded, “Let me just finish this, though.... To be supervised by Adult Probation and Parole, and then I'll set forth some terms here in just a minute.”

¶ 5 At that point, the trial court allowed Walljasper to address the court. Walljasper's uninterrupted statement comprises about two pages of the sentencing transcript. Walljasper expressed remorse, said that he had lost several jobs because of jail time, and stated his desire to get his “life back on track” so that he could be a better father. When Walljasper finished, the trial court immediately resumed its announcement of the terms of the probation and concluded the hearing without making any reference to Walljasper's statements. The court subsequently entered a written sentencing order consistent with the sentence announced prior to Walljasper's allocution.

ISSUE AND STANDARD OF REVIEW

¶ 6 Walljasper claims that the trial court violated his constitutional right to allocution by not inviting him to speak before imposing sentence and because, when the error was brought to its attention, the court “made no affirmative effort to ... assure Walljasper his allocution could impact the sentence” and “did not acknowledge Walljasper's remarks in any fashion.” The denial of the right to allocution is an issue of law that we review for correctness. See Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177.

ANALYSIS

¶ 7 The right to allocution is guaranteed by the Utah Constitution. SeeUtah Const. art. I, § 12 (“In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel.”); State v. Anderson, 929 P.2d 1107, 1111 (Utah 1996) (holding that the right to allocution “is an inseparable part of the right to be present” expressly granted by the Utah Constitution). Indeed, “from the beginning of the development of this state's criminal procedures, a high value was placed on a defendant's availability and opportunity to speak at trial and sentencing.” State v. Maestas, 2002 UT 123, ¶ 47, 63 P.3d 621. The Utah Supreme Court has identified two purposes for the right to allocution: “to provide the defendant personally with an opportunity to address the court” and “to ensure that the judge is provided with reasonably reliable and relevant information regarding sentencing.” See State v. Wanosik, 2003 UT 46, ¶ 19, 79 P.3d 937. While the United States Supreme Court has not recognized allocution as a constitutional right, it has indicated its importance by explaining that “[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) (plurality).

¶ 8 In addition, the right to allocution is codified in rule 22(a) of the Utah Rules of Criminal Procedure, which states, “Before imposing sentence the court shall afford the defendant an opportunity to make a statement and to present any information in mitigation of punishment.” SeeUtah R.Crim. P. 22(a). Our supreme court has interpreted “the' shall afford' language” in rule 22(a) as “requir[ing] trial courts to affirmatively provide the defense an opportunity to address the court and present reasonably reliable and relevant information in the mitigation of a sentence.” Wanosik, 2003 UT 46, ¶ 23, 79 P.3d 937. “A simple verbal invitation or question will suffice, but it is the court which is responsible for raising the matter.” See id.Rule 32 of the Federal Rules of Criminal Procedure imposes a similar obligation on the federal trial courts.³

¶ 9 The case before us does not involve a complete denial of Walljasper's allocution right. Rather, the issue is the timing of the exercise of that right. According to Walljasper, the trial court denied him any meaningful allocution by not inviting him to speak until after it had announced his entire sentence, except the terms of probation. The City argues, however, that because the trial court was free to adjust the sentence based on Walljasper's statements, his right to allocution was not violated.

I. Correction of Initial Error

¶ 10 We first decide whether a trial court can correct an initial failure to invite a defendant to speak before imposing sentence by allowing the defendant to allocute after announcing the sentence but before concluding the hearing. Although the Utah appellate courts have not addressed this precise question, our supreme court has considered the analogous issue of whether the trial court's subsequent actions can cure an initial failure to allow the victim to speak concerning the acceptance of a plea agreement.⁴ In State v. Casey, 2002 UT 29, 44 P.3d 756, the State charged the defendant with aggravated sexual abuse of a child, a first degree felony, but later entered into a plea agreement that allowed him to plead guilty to lewdness involving a child, a class A misdemeanor. See id. ¶ 1. The child victim and his mother wished to comment on the propriety of the plea agreement, but that fact was not brought to the trial court's attention. See id. As a result, the court accepted the defendant's guilty plea to the lesser crime without hearing from the victim. See id. When the trial court learned of the oversight through the victim's motion to set aside the plea, it “ ‘informally’ reopened” the plea proceedings at the sentencing hearing and allowed each of them to testify and the victim's counsel to argue. See id. ¶¶ 2, 38 & n. 12. Ultimately, the trial court deferred to the prosecutor's discretion and reaffirmed the plea. See id. The victim appealed, claiming that his right to be heard on the plea agreement had been effectively denied. See id. ¶ 14.

¶ 11 The...