West Valley City v. Walljasper

2012 UT App 252, 286 P.3d 948, 717 Utah Adv. Rep. 60, 2012 WL 4009689, 2012 Utah App. LEXIS 265
CourtCourt of Appeals of Utah
DecidedSeptember 13, 2012
Docket20110291-CA
StatusPublished
Cited by6 cases

This text of 2012 UT App 252 (West Valley City v. Walljasper) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
West Valley City v. Walljasper, 2012 UT App 252, 286 P.3d 948, 717 Utah Adv. Rep. 60, 2012 WL 4009689, 2012 Utah App. LEXIS 265 (Utah Ct. App. 2012).

Opinion

OPINION

McHUGH, Presiding Judge:

T1 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. See Utah Code Ann. § 76-5-108 (2008); id. § 77-36-1 (2008) (current version at id. (Supp. 2012)). 1 We affirm.

BACKGROUND

12 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.

*950 T3 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, Wall-jasper'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.

1 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, "[Hle'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."

T5 At that point, the trial court allowed Walljasper to address the court. Wallias-per'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

16 Walljiasper claims that the trial court violated his constitutional right to allo-cution 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 Walljas-per'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.

*951 ANALYSIS

T 7 The right to allocution is guaranteed by the Utah Constitution. See Utah 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 "[the 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).

T8 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." See Utah R.Crim. P. 22(a).

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Bluebook (online)
2012 UT App 252, 286 P.3d 948, 717 Utah Adv. Rep. 60, 2012 WL 4009689, 2012 Utah App. LEXIS 265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-valley-city-v-walljasper-utahctapp-2012.