State v. Silveira, 2015 UT App 290

Background

In 2010 Cameron Silveira shot his brother; the brother survived. Silveira was charged with attempted murder and related counts, including possession of a firearm by a restricted person and obstruction of justice.
The brother repeatedly refused to testify and was held as a material witness in jail during pretrial proceedings.
In April 2011 Silveira pleaded guilty to attempted manslaughter, obstruction of justice, and possession/use of a firearm by a restricted person, each with dangerous-weapon enhancements, under a plea agreement that included a stipulated recommended sentence and credit for time served.
At plea/sentencing the court informed Silveira he could waive the 2–45 day sentencing period under Utah R. Crim. P. 22(a); Silveira waived and elected immediate sentencing. The court warned that waiving would foreclose withdrawing the plea later.
The court invited allocution and heard statements from defense counsel and Silveira expressing remorse and lack of intent. The court then imposed the agreed-upon sentence.
On appeal Silveira argued (1) plain error because the court did not explicitly advise him pre-waiver of his right to have his brother testify at sentencing; (2) ineffective assistance for counsel’s failure to advise/request mitigation via the brother’s testimony; and (3) that the sentence was imposed in an illegal manner under Rule 22(e).

Issues

Issue	State's Argument	Silveira's Argument	Held
Whether the court committed plain error by accepting a Rule 22(a) waiver without explicitly advising Silveira of the right to have witnesses (the brother) testify at sentencing	Court satisfied allocution obligation by inviting and hearing from defendant and counsel at sentencing; no authority requires advising of allocution rights before a timing waiver	Court erred by not informing him before he waived the sentencing period that he had the right to have his brother testify in mitigation	No plain error: invitation to allocute at sentencing fulfilled Rule 22(a); no requirement to warn before waiver.
Whether counsel was ineffective for failing to advise/request the brother’s mitigating testimony	Even assuming counsel erred, defendant cannot show prejudice because the plea agreement included a jointly recommended sentence that the court imposed	Counsel failed to advise/request mitigation via brother; had he, brother could have been available and testified if sentencing delayed	Ineffective-assistance claim fails for lack of prejudice—no reasonable probability the sentence would have been different given the agreed recommended sentence.
Whether the sentence was illegal under Rule 22(e) because the court obtained the waiver improperly	Rule 22(a) requires timing and opportunity to present mitigation; court afforded allocution and accepted the waiver—so sentence was not imposed illegally	The court obtained the waiver without advising of full allocution rights, rendering the sentence illegally imposed	No illegal sentence: Rule 22(a) satisfied (timing waived by defendant; allocution afforded), so no relief under Rule 22(e).

Key Cases Cited

State v. Dunn, 850 P.2d 1201 (Utah 1993) (plain-error test)
State v. Wanosik, 79 P.3d 937 (Utah 2003) (court must affirmatively provide opportunity to allocute)
State v. Weaver, 122 P.3d 566 (Utah 2005) (procedural-preservation and review principles)
State v. Templin, 805 P.2d 182 (Utah 1990) (framework for evaluating counsel performance)
State v. Smith, 909 P.2d 236 (Utah 1995) (adopts Strickland standard elements for ineffective-assistance analysis)
Parsons v. Barnes, 871 P.2d 516 (Utah 1994) (prejudice requirement for sentencing relief)
Strickland v. Washington, 466 U.S. 668 (1984) (ineffective-assistance standard)