State v. Graziano , 333 P.3d 366 ( 2014 )

2014 UT App 186_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH ,
Plaintiff and Appellee,
v.
DARYL GRAZIANO ,
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
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES JAMES Z. DAVIS and STEPHEN L. ROTH
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
State v. Graziano
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, 2013 UT 55, ¶ 22, 309 P.3d 23020111063-CA 2 2014 UT App 186State v. Graziano
(omission in original) (citation and internal quotation marks
omitted).
¶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. 929 P.2d 1107, 111 (Utah 1996); see also Utah Const. art.
I, § 12 (“[T]he accused shall have the right to appear and defend in
person and by counsel . . . .”). The Utah Rules of Criminal
Procedure also codify a criminal defendant’s right to allocution.
Rule 22(a) provides that “[b]efore imposing sentence[,] the court
shall afford the defendant an opportunity to make a statement and
to present any information in mitigation of punishment, or to show
any legal cause why sentence should not be imposed.” Utah R.
Crim. P. 22(a). Our supreme court has explained that “from both
the plain language of rule 22 and the approach of other
jurisdictions with similar rules, . . . the ‘shall afford’ language
requires trial courts to affirmatively provide the defense an
opportunity to address the court and present reasonably reliable
and relevant information in the mitigation of a sentence.” State v.
Wanosik, 2003 UT 46, ¶ 23, 79 P.3d 937. In this context, the
“defense” refers to both the defendant and defense counsel. Id.(“‘[T]he defendant, himself, must be given such opportunity and
some conduct of the court must let the defendant know that he, as
well as counsel, has this right.’” (emphasis omitted) (quoting United
States v. Byars, 290 F.2d 515, 517 (6th Cir. 1961))); see also State v.
Rodrigues, 2009 UT 62, ¶ 40, 218 P.3d 610 (explaining that a
defendant’s right to allocution is satisfied “so long as the
[sentencing] hearing was held in [the defendant’s] presence and
[the] defendant had an opportunity to speak” (citation and internal
quotation marks omitted)).
¶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,
20111063-CA 3 2014 UT App 186State v. Graziano
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. 2012 UT App 244, ¶¶ 28–29, 286 P.3d
345.
¶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
20111063-CA 4 2014 UT App 186State v. Graziano
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, 2003 UT 46,
¶ 23. The court gave Defendant a “simple verbal invitation” to
allocute. See id. That Defendant relied on defense counsel to speak
on his behalf does not invalidate the court’s invitation. Thus, we
conclude that the trial court fulfilled its obligation of affording
Defendant his right to allocution, and accordingly, Defendant’s
claim of plain error fails because he cannot demonstrate that an
error occurred below.1
¶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, 99 P.3d 858 (“[A] sentence imposed in violation of rule
22(a) . . . may be considered a ‘sentence imposed in an illegal
manner’ under rule 22(e).”). He thus asks us to vacate his sentence
and remand for resentencing. However, because we determine that
the trial court affirmatively provided Defendant with an
opportunity for allocution during the sentencing hearing, the
sentence imposed did not violate rule 22(a). Therefore, Defendant’s
rule 22(e) challenge also fails.
20111063-CA 5 2014 UT App 186State v. Graziano
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.
20111063-CA 6 2014 UT App 186