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State of Utah v Friis

IN THE UTAH COURT OF APPEALS ----ooOoo---) ) MEMORANDUM DECISION ) (Not For Official Publication) Plaintiff and Appellee, ) v. ) Case No. 971565-CA ) Robert Edgar Friis, FILED ) (December 3, 1998) ) Defendant and Appellant. ) State of Utah, -----

Fifth District, Parowan Department The Honorable J. Philip Eves Attorneys:Floyd W. Holm, Cedar City, for Appellant Jan Graham and Kris C. Leonard, Salt Lake City, for Appellee

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Before Judges Bench, Billings, and Orme. ORME, Judge: Appellant Robert Edgar Friis appeals the trial court's denial of his motion to withdraw his guilty plea. 1 We review such a denial for an abuse of discretion and disturb the court's findings of fact supporting its decision only if they are clearly erroneous. See State v. Blair, 868 P.2d 802, 805 (Utah 1993); State v. Penman, 964 P.2d 1157, 1160 (Utah Ct. App. 1998). In reviewing the trial court's interpretation of the plea agreement, we are guided by principles of contract law, see State v. Patience, 944 P.2d 381, 386-87 (Utah Ct. App. 1997), and review its interpretation for correctness. See Edwards & Daniels Architects, Inc. v. Farmers' Properties, Inc., 865 P.2d 1382, 1385 (Utah Ct. App. 1993). We conclude that the prosecutor did not breach the promise, contained in paragraph 11 of the plea agreement, "to make no recommendations regarding sentencing (i.e. to submit the matter to the Court without comment)." Although the prosecutor may have said more than was strictly necessary, his comments did not amount to a sentencing recommendation. Indeed, the prosecutor did not initiate the discussions in which the comments were made, but rather responded, in one instance, to the court's mistake in computing time served, and in the other, to appellant's request to delay the beginning of his sentence, which sentence had already been fixed by the court.

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State of Utah v Friis

Regarding the comments concerning computation of appellant's time served, the prosecutor merely clarified the record to ensure that the trial court did not err in crediting appellant for time served on unrelated charges--credit to which appellant agreed he was not entitled. The prosecutor never bargained away his right to ensure that the trial court accurately viewed the facts--just the ability to argue how the court should view those facts in determining an appropriate sentence. Indeed, "[i]t is clear that the fact that a plea agreement has been entered into between the government and a defendant cannot alone prohibit the government from bringing relevant information to the attention of the trial judge at the time of sentencing." United States v. Jiminez, 928 F.2d 356, 363 (10th Cir.), cert. denied, 502 U.S. 854, 112 S. Ct. 164 (1991). The prosecutor's comments in question addressed possible mistakes in administering the court's sentence but did not affect the sentence appellant would ultimately receive. Likewise, the prosecutor's statements regarding appellant's request for a one-week delay in the start of his sentence did not breach the plea agreement. At the time these statements were made, the trial court had already imposed the ninetyday sentence, and the prosecutor never asked the court to reconsider its decision. Rather, the prosecutor simply responded to appellant's request to delay serving his sentence. With or without the delay, appellant's sentence would still be ninety days; if appellant started his sentence a week later, his eventual release would also be one week later. Therefore, like the prosecutor's statements on computation of time served, these comments did not concern appellant's sentence as such. 2 Affirmed. Gregory K. Orme, Judge

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WE CONCUR: ______________________________ Russell W. Bench, Judge ______________________________ Judith M. Billings, Judge 1. He does so at some risk, given that if he were successful, the State could recharge him for all three original counts-including the second degree felony--and, if he was convicted, the court could impose a sentence greater than the ninety days he has already served. See State v. Powell, 957 P.2d 595, 597 (Utah 1998) (holding that after appellate reversal of denial of motion to withdraw plea, defendant may receive more severe sentence); State v. Maguire, 957 P.2d 598, 60001 (Utah 1998) (same). 2. It is clear the prosecutor did not breach his obligations even under the more expansive approach argued by appellant. Appellant contends that, under the plea agreement, the prosecutor made a "commitment not to make any damning or even potentially damaging statements at the time of sentencing." See Commonwealth v. Alvarado, 276 A.2d 526, 529 (Pa. 1971). Because appellant has no right to receive credit for time he did not serve, the prosecutor's comments correcting a possible mistake in the court's calculations were not "potentially damaging" in any legal sense. Likewise, the comments on the one-week delay were not "potentially damaging" because they were made after the court had imposed sentence, and the prosecutor did not ask the court to reconsider its previously announced sentence.

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State of Utah v Friis

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