Case Information
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T HE U TAH C OURT OF A PPEALS
S TATE OF U TAH , Plaintiff and Appellee, v.
D ARYL G RAZIANO , Defendant and Appellant. Memorandum Decision No. 20111063-CA Filed August 7, 2014 Second District Court, Farmington Department The Honorable David M. Connors No. 111700528 Scott L. Wiggins, Attorney for Appellant Sean D. Reyes and Brett J. DelPorto, Attorneys for Appellee J UDGE M ICHELE M. C HRISTIANSEN authored this Memorandum Decision, in which J UDGES J AMES Z. D AVIS and S TEPHEN L. R OTH
concurred.
CHRISTIANSEN, Judge:
¶1 Defendant Daryl Graziano appeals the sentence imposed by the trial court after Defendant pled guilty to two counts of attempted sexual exploitation of a minor. Defendant requests that we vacate his sentence and remand for resentencing. We affirm. ¶2 On August 23, 2011, Defendant pled guilty to two counts of attempted sexual exploitation of a minor, both third-degree felonies. See Utah Code Ann. § 76-5a-3 (LexisNexis Supp. 2010) (current version at Utah Code Ann. § 76-5b-201 (LexisNexis 2012)). Thereafter, Adult Probation and Parole (AP&P) prepared a Presentence/Postsentence Report (PSR) and recommended that Defendant be sentenced to prison. Also, at the request of Defendant’s defense counsel, a psychologist prepared a Psychosexual Evaluation of Defendant. At the sentencing hearing, the trial court acknowledged that it had received and reviewed both the PSR and the Psychosexual Evaluation. After both the State and defense counsel acknowledged that they too had reviewed the reports, the State confirmed that it agreed with AP&P’s recommendation that Defendant be committed to prison. The court then stated, “All right. Comments from the defendant or defense counsel[?]” Defense counsel addressed the court on Defendant’s behalf and asked the court to depart from the prison recommendation, referring the court to a letter prepared by the same psychologist who had prepared the Psychosexual Evaluation. In that letter, the psychologist opined that Defendant’s perspective of his crimes had changed during the course of his treatment sessions. Based on that letter, defense counsel argued that Defendant should be allowed to continue his therapy and not be sentenced to prison. However, based on Defendant’s prior history as described in the PSR and the assessment in the Psychosexual Evaluation that Defendant still posed a “moderate risk” for reoffending, the court sentenced Defendant to concurrent terms of zero to five years in prison. Defendant did not speak during the sentencing hearing.
¶3 On appeal, Defendant argues that the trial court violated his
right to allocution and due process by imposing a prison sentence
without providing him an opportunity to address the court with
information in mitigation of punishment. Because Defendant failed
to preserve this issue before the trial court, he argues that we
should review his claim under the doctrine of plain error. To
prevail under plain-error review, Defendant “must demonstrate
three elements. First, he must establish that an error did in fact
occur. Second, he must establish that the error should have been
obvious to the trial court. Third, [he] must establish that the error
was harmful . . . .”
State v. Candland
,
¶4
In order to determine whether the trial court erred in
sentencing Defendant, we first examine a defendant’s right to
allocution. In
State v. Anderson
, the Utah Supreme Court observed
that the right to allocution “is an inseparable part” of a defendant’s
right under the Utah Constitution to be present in a criminal
prosecution.
¶5
In order for a trial court to “affirmatively provide” the
defense an opportunity for allocution, the supreme court has
instructed that a “simple verbal invitation or question will suffice,
but it is the court which is responsible for raising the matter.”
Wanosik,
2003 UT 46, ¶ 23. Violations of a defendant’s right to
allocution usually involve situations where the court has prevented
or prohibited the defendant from speaking altogether or imposed
sentence in the defendant’s absence. For example, in
State v. Udy
,
this court determined that a defendant was not “afforded his right
to allocution” because “the trial court refused to hear any statement
in mitigation” from either the defendant or defense counsel during
a sentencing review hearing.
¶6 Here, Defendant argues that the sentencing-hearing
transcript and record on appeal demonstrate that the trial court
failed to invite or otherwise provide Defendant a personal
opportunity to address the court prior to the imposition of a prison
sentence. We disagree. At the sentencing hearing, after the trial
court acknowledged that it had received and reviewed both the
PSR and Psychosexual Evaluation, the court explicitly invited the
defense to allocute, saying, “All right. Comments from the
defendant or defense counsel[?]” It is true that, technically, the
court’s invitation is framed in the disjunctive, thereby suggesting
that only defense counsel or Defendant, and not both, were invited
to speak. However, taken in context, the court’s use of the
disjunctive did not limit either Defendant’s or defense counsel’s
opportunity to speak. That is, the context of the subsequent
exchange between the court and defense counsel demonstrates that
Defendant and his counsel understood the invitation to have
applied to both of them. Defense counsel responded to the court’s
invitation by telling the court, “[
W
]
e
would ask the Court to depart
from the recommendation in this case.” (Emphasis added.) Because
counsel said “we”—referring to himself and Defendant—as
opposed to “I,” we infer that Defendant and his counsel had
previously discussed the issues relevant to Defendant’s sentencing
and were in agreement on how to proceed. Defense counsel
thoroughly presented to the court information and argument as to
why the court should not follow AP&P’s recommendation for
prison. For instance, defense counsel attempted to rebut the
information in the PSR by referencing the psychologist’s opinion
that Defendant had made progress in treatment. Furthermore, it
was the court, not Defendant or defense counsel, that initially
“rais[ed] the matter” of affirmatively providing Defendant with a
personal opportunity to address the court.
See Wanosik
,
¶7 Defendant also argues that defense counsel rendered
ineffective assistance by failing to affirmatively request that the
sentencing court allow Defendant to address the court at
sentencing. To establish ineffective assistance of counsel, Defendant
“must show that counsel’s performance was deficient” and “that
the deficient performance prejudiced the defense.”
Strickland v.
Washington
, 466 U.S. 668, 687 (1984). To establish deficient
performance, Defendant must show defense counsel’s decision not
1. Additionally, Defendant argues that pursuant to rule 22(e) of the
Utah Rules of Criminal Procedure, his sentence “was both illegal
and imposed in an illegal manner” because the trial court violated
his right to allocution under rule 22(a).
See
Utah R. Crim. P. 22(e)
(“The court may correct an illegal sentence, or a sentence imposed
in an illegal manner, at any time.”);
see also State v. Samora
, 2004 UT
79, ¶ 13,
to specifically request that Defendant have a personal opportunity to address the court “fell below an objective standard of reasonableness.” Id. at 688. Because we determine that the court affirmatively provided the defense with an opportunity for allocution and did not prohibit or restrict Defendant himself from speaking, defense counsel need not have separately requested that the court allow Defendant to personally address the court, particularly where counsel adequately and effectively addressed the court on Defendant’s behalf. We readily conclude that it was objectively reasonable for defense counsel to refrain from requesting something the court had already provided. Defendant cannot therefore establish that defense counsel performed deficiently.
¶8 Affirmed.