Case Information
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T HE U TAH C OURT OF A PPEALS
S TATE OF U TAH , Appellee, v.
J OHN J ACOB S AMULSKI , Appellant.
Opinion No. 20150178-CA Filed November 17, 2016 Second District Court, Farmington Department The Honorable Thomas L. Kay No. 141701346 Scott L. Wiggins, Attorney for Appellant Sean D. Reyes and John J. Nielsen, Attorneys for Appellee
J UDGE K ATE A. T OOMEY authored this Opinion, in which J UDGES G REGORY K. O RME and M ICHELE M. C HRISTIANSEN concurred.
TOOMEY, Judge: In this appeal, John Jacob Samulski challеnges his prison
sentence by alleging the district court erred in failing first, to recognize a breach of the plea agreement, and second, to address errors in the presentence investigation report. In addition, Samulski raises an ineffective-assistance-of-counsel claim. We hold there was no breach of the plea agreement or ineffective assistance of counsel, but we remand for the limited purpose of resolving Samulski’s objections to the presentence investigation report.
BACKGROUND Samulski was charged with domestic violence аgainst his
ex-girlfriend. After receiving documents related to this charge, Samulski went to his ex-girlfriend’s house and threatened her. Samulski was later arrested. During a search in connection with that arrest, the police found a knife Samulski was not permitted to carry due to his status as a convicted felon. The State charged Samulski with tampering with a witness, a third degree felony, and possession of a dangerous weapon by a restricted person, a class A misdemeanor. See Utah Code Ann. §§ 76-8-508(1), 76-10- 503(3)(b) (LexisNexis 2012 & Supp. 2016). The tampering-with-a- witness charge was later amended to a retaliation-аgainst-a- witness charge, also a third degree felony. See id. § 76-8-508.3 (2012). After plea negotiations, Samulski agreed to plead guilty
to the retaliation felony in exchange for the State’s dismissal of the misdemeanor charge, the recommendation that Samulski receive “no prison time” for his cоnviction, and the reduction of the retaliation felony to a misdemeanor if there were “no further violations of law.” The district court requested a presentence investigation
report (PSI). Adult Probation and Parole (AP&P) filed a PSI addendum on February 10, 2015, with a copy of an earlier PSI dated December 27, 2012. [1] AP&P recommended “prison commitment.”
1. The Decembеr 2012 PSI was completed for different charges. The PSI addendum for the charges in this case indicates that the “addendum does not constitute a complete report without the attached presentence/postsentence report.” Thus, both reports together constitutе the PSI for purposes of this case.
¶5 The court held a sentencing hearing on February 12, 2015. At the beginning of the hearing, defense counsel indicated there were corrections to be made to the PSI, including Samulski’s proper address, source of income, and ability to pay taxes. Additiоnally, defense counsel objected that the PSI erroneously indicated that Samulski had a drug addiction and was a gang member. [2] The court acknowledged each proposed correction by commenting, “Okay.” After hearing from defense counsel, the court asked for
the Stаte’s response. The prosecutor noted that he was “bound by what’s in the plea agreement,” but pointed out that “the victim is here, and . . . it’s my understanding that she is on board with AP&P’s recommendation and supports the prison sentence.” The prosecutor also stated that the court “has thе ability to do whatever it pleases.” Defense counsel expressed concern that the prosecutor
was “stepping away from [the] stipulated sentence.” The prosecutor then qualified his prior remarks by stating that he had only conveyed the victim’s recommendatiоn, but he also reiterated that he was bound by the plea agreement. In response, the court explained that it was not bound by the agreement and that nothing the prosecutor said had changed its view. The court sentenced Samulski to prison for “an indeterminate term of zero to five years.” Samulski appeals.
ISSUES AND STANDARDS OF REVIEW First, Samulski contends the court erred by failing to
recognize a breach of the plea agreement because “the 2. Defense counsel made this clarification but did not ask that the information be struck.
prosecutor’s
comments
at
sentencing
constituted
a
recommendation or plea for the imposition of prison time.”
Samulski’s “failure to preserve this claim results in our
reviewing it for plain error.”
State v. Diaz
, 2002 UT App 288,
¶ 11,
consider and resolve his objections to the PSI. “Whether the trial
court рroperly complied with a legal duty to resolve on the
record the accuracy of contested information in sentencing
reports is a question of law that we review for correctness.”
State
v. Scott
,
proper objection regarding the breach” and not affirmatively
requesting resolution of the PSI concerns, defense counsel
“deprived [him] of his Sixth Amendment right to the effective
assistance of counsel.” “We review claims of ineffective
assistance of counsel raised for the first time on appeal for
correctness.”
State v. Jaramillo
,
ANALYSIS
I. The District Court Did Not Err Because There Was No Breach
of the Plea Agreement. Samulski contends the “court erred by failing to recognize
that the prosecutor had breached the stipulated plea agreemеnt by recommending prison.” Because Samulski did not raise this issue below, it is unpreserved. See 438 Main St. v. Easy Heat, Inc. , 2004 UT 72, ¶ 51, 99 P.3d 801 (requiring that an issue “be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue” in order to be preserved). “The mere mention of an issue without introducing supporting evidence or relevant legal authority does not preserve that issue for appeal.” State v. Brown , 856 P.2d 358, 361 (Utah Ct. App. 1993) (citation and internal quotation marks omitted). Accordingly, we review this issue for plain error. See Diaz , 2002 UT App 288, ¶ 11. “To demonstrate plain error, a defendant must establish
that (i) an error еxists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful.”
State v. Saenz
, 2016
UT App 69, ¶ 8, 370 P.3d 1278 (citation and internal quotation
marks omitted). Here, Samulski “must prove that the State
actually breached the plea agreement, that the breach should
have been obvious to the district cоurt, and that had the district
court recognized and remedied the breach, there is a reasonable
likelihood that [his] sentence would have been more favorable.”
State v. Gray
,
the plea agreement depends on whether a breach occurred. A
plea agreement is breached when the State fails to act in accord
with its promise.
See State v. Lindsey
,
plea agreement the State agreed that in еxchange for a guilty plea to retaliation against a witness, it would dismiss the second charge of possession of a dangerous weapon by a restricted person, recommend that there would be no prison time, and reduce the retaliation felony to a misdemeanor on the condition that Samulski successfully complete probation without further violations of law. Although the prosecutor accurately observed that AP&P
and the victim supported a prison sentence, the statements do
not rise to a level of breach. We acknowlеdge that these
statements may have, to some extent, undermined the force or
weight of the recommendation. Nevertheless, the prosecutor also
maintained that the “[plea agreement] was a recommendation
for no prison,” affirming three times that the State wаs bound by
the agreement. By confirming that it had stipulated to
recommend “no prison time,” and by repeatedly acknowledging
the State’s obligation to abide by the agreement, the State
fulfilled its contractual obligations. “If the prosecutor promises
to recommend a certаin sentence and does so, []he has not
breached the bargain by also bringing all relevant facts to the
attention of the court.”
State v. Shaffer
, 2010 UT App 240, ¶ 26,
conclude the district court did not err.
II. The District Court Failed to Sufficiently Resolve Samulski’s
Objections to the PSI. Samulski also contends “the court failed to duly consider
and resolve” inaccuracies contained in the PSI. “Any alleged
inaccuracies in the presentence investigation report, which have
not been resolved by the parties and the department prior to
sentencing, shall be brought to the attention of the sentencing
judge . . . .” Utah Code Ann. § 77-18-1(6)(a) (LexisNexis 2012).
Our supreme court has explained that “section 77-18-1(6)(a)
requires the sentencing judge to consider the party’s objections
to the report, make findings on the rеcord as to whether the
information objected to is accurate, and determine on the record
whether that information is relevant to the issue of sentencing.”
State v. Jaeger
,
the information in the PSI, including his address, income, ability
to pay taxes, drug dependency, and gang affiliation. These
objections were nоt sufficiently addressed with findings. The
district court acknowledged the objections and stated, “Okay,”
but failed to make any determinations on the record. This does
not satisfy the statutory duty imposed by section 77-18-1(6)(a).
“[B]ecause the statements in [a defendant’s] PSI may be utilized
in future settings, such as parole hearings, it is necessary that
[the defendant’s] objections be resolved on the record.”
Waterfield
,
failure to adequately resolve the objections to the PSI on the record negatively affected Samulski’s sentence. Indeed, it аppears that the district court accepted Samulski’s corrections to the PSI for sentencing purposes. We therefore uphold Samulski’s sentence but “remand for the limited purpose of resolving [his] objections to the PSI that were not adequately addressed on the reсord by the district court.” Id.
III. Samulski Did Not Receive Ineffective Assistance of Counsel.
Finally, Samulski asserts that he received ineffective
assistance of counsel, depriving him of his Sixth Amendment
right to representation. “To succeed on his ineffective-assistance
claim, [a defendant] is required to prove ‘that counsel’s
representation
fell below an objective
standard of
reasonableness’ and ‘that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’”
State v. Potter
, 2015 UT
App 257, ¶ 7,
counsel when his defense attorney failed “to articulate a proper objection regarding the breach.” Because we have determined that there was no breach of the plea agreement, counsel’s failure to object was objectively reasonable. See State v. Christensen , 2014 UT App 166, ¶ 10, 331 P.3d 1128 (“The failure to raise futile objections does not constitute ineffective assistance of counsel.” (citation and internal quotation marks omitted)). Next, Samulski claims that “[b]y failing to request that the
sentencing court exercise its fact finding function to resolve the inaccuracies in the [PSI], trial counsel rendered ineffective assistance of counsel.” Samulski contends that if counsel had requested that the court resolve the PSI inaccuracies, it “would have allowed the sentencing court to more fully and accurately consider the options for ultimately imposing sentence.” In this case, defense counsel made objections on the record to inaccuracies in the PSI. While defense counsel should have gone one step further and asked the district court to make sрecific findings on the record, “that mistake will be fixed with the limited remand we have ordered and thus is of no consequence.” See State v. Monroe , 2015 UT App 48, ¶ 11, 345 P.3d 755.
CONCLUSION We conclude there was no breach of the plea agreement
and Samulski has not shown ineffective assistance of counsel. We remand for the limited purpose of resolving Samulski’s objections to the PSI and affirm in all other respects.