State v. Tingey, 336 P.3d 608

2014 Utah Court of Appeals memorandum decision by Judge Christiansen.
Defendant Tingey pled guilty in 2008 to aggravated assault and received a suspended prison term with 365 days in jail and probation.
In 2012 Tingey pled guilty to new felonies (attempted sexual abuse of a child, failing to register as a sex offender, bail-jumping) and admitted probation violations.
In August 2012 Tingey was sentenced to zero-to-five years for each new felony, running concurrently, with the original suspended sentence revoked to run consecutively to the new sentences.
The trial court ordered the consecutive sentences after considering the new felonies and probation violations; Tingey challenges preservation, effectiveness of counsel, and allocution rights on appeal.
The appellate court affirmed the sentences and addressed preservation, ineffective assistance, and allocution issues on plain-error review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Preservation of sentencing-factor argument for consecutivity	Tingey preserved by defense counsel’s statements showing concurrence with concurrent sentencing	Trial court failed to consider statutory factors before ordering consecutive sentences	Issue unpreserved; no plain error; court declines review
Ineffective assistance for not clearly proving State’s concurrent-sentencing agreement	Counsel failed to demonstrate State’s agreement to run concurrent	Counsel repeatedly alerted court to the State’s concurrent-sentencing agreement	Counsel's performance not deficient; no prejudice shown; claim fails
Allocution right at sentencing	Defendant was not afforded personal opportunity to speak in mitigation	Court failed to explicitly invite Defendant to speak for mitigation	Court fulfilled allocution; no plain error; right to allocution satisfied

State v. Wanosik, 79 P.3d 937 (Utah Supreme Court, 2003) (allocution requires court to invite defense to speak; simple invitation suffices when defense counsel speaks)
State v. Udy, 286 P.3d 345 (Utah Court of Appeals, 2012) (allocution rights; absence or failure to hear mitigation notes)
State v. Rodrigues, 218 P.3d 610 (Utah Supreme Court, 2009) (allocation rights; defendant must have opportunity to address court)
State v. Candland, 309 P.3d 230 (Utah Supreme Court, 2013) (plain-error framework for allocution)
State v. Chacon, 962 P.2d 48 (Utah Supreme Court, 1998) (deficient performance must be outside wide range of professional assistance)
State v. Noor, 283 P.3d 543 (Utah Court of Appeals, 2012) (preservation by timely and specific objection; exceptions for plain error)