2015 UT App 109
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
DAVID DEVOY CARTER,
Defendant and Appellant.
Memorandum Decision
No. 20130897-CA
Filed April 30, 2015
Fifth District Court, St. George Department
The Honorable John J. Walton
No. 121501442
Gary G. Kuhlmann and Nicolas D. Turner, Attorneys
for Appellant
Sean D. Reyes and Brett J. DelPorto, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES J. FREDERIC VOROS JR. and KATE A. TOOMEY
concurred.
ORME, Judge:
¶1 Defendant David Devoy Carter appeals his sentences for
two counts of distributing or arranging to distribute a controlled
substance, second degree felonies. See Utah Code Ann. § 58-37-
8(1)(a)(ii), (b)(i) (LexisNexis 2012). We affirm.
¶2 In 2012, Defendant was charged in two separate cases
with one count of distributing methamphetamine in a drug-free
zone, first degree felonies.1 See id. § 58-37-8(4)(a)(i)–(xi), (b)(i).
Defendant agreed to plead guilty to two counts of distributing or
1. The two cases have been consolidated on appeal.
State v. Carter
arranging to distribute a controlled substance, in exchange for
the State’s agreement to drop the drug-free zone enhancements
and to not file three pending controlled-buy cases. Under the
plea agreements, Defendant was also required to submit to a
presentence investigation with Adult Probation and Parole
(AP&P).
¶3 At Defendant’s plea hearing on December 3, 2012, the
district court conducted the usual colloquy before accepting
Defendant’s guilty pleas. The court reviewed the written plea
agreements with Defendant and then asked him, ‚Is there
anything that’s been promised to you that [you] didn’t get in
your plea agreement[s]?‛ Defendant’s then-counsel replied:
‚Your Honor, I think that there’s a recommendation that the
State would not be seeking prison time and that upon successful
completion of probation that the State would not object to a
double 402.‛2 Defense counsel also told the court that the State
had agreed to release Defendant on his own recognizance.
2. Under section 76-3-402 of the Utah Code,
[i]f the court suspends the execution of the
sentence and places the defendant on probation,
whether or not the defendant is committed to jail
as a condition of probation, the court may enter a
judgment of conviction for the next lower degree of
offense . . . after the defendant has been
successfully discharged from probation . . . .
Utah Code Ann. § 76-3-402(2)(a) (LexisNexis 2012). The statute
allows only one reduction absent prosecutorial consent, but with
the consent of the prosecutor, an offense may be reduced by two
degrees. See id. § 76-3-402(3)(a), (b). For example, if a defendant
was convicted of a second degree felony and the sentencing
court granted the defendant’s motion to reduce the charge, the
‚second degree felony, . . . when reduced, becomes a third
degree felony.‛ State v. Barrett, 2005 UT 88, ¶ 39, 127 P.3d 682. If
(continued<)
20130897-CA 2 2015 UT App 109
State v. Carter
¶4 The original prosecutor who had negotiated the plea
agreements with Defendant’s counsel was not present at the plea
hearing, because he was in another courtroom for a preliminary
hearing. The State was instead represented by a substitute
prosecutor. The substitute prosecutor told the court that his
copies of the plea agreements did not contain those provisions
and that the original prosecutor did not tell him about these
alleged provisions. The court noted, ‚That’s the understanding
of the defense at this point apparently so we do have a record of
that if it becomes relevant.‛
¶5 The court recessed so that the substitute prosecutor could
clarify with the original prosecutor what had been promised.
When the court reconvened, the substitute prosecutor told the
court that the original prosecutor had agreed to Defendant’s
release on his own recognizance but made no mention of a no-
prison recommendation or section 402 reduction. Defense
counsel made no inquiry about what the original prosecutor had
said concerning the no-prison recommendation or 402 reduction,
nor did he interpose any objection to the accuracy of the
substitute prosecutor’s statements. The district court told
Defendant that his two cases had ‚the potential for two
sentences to the prison for one to 15 years‛ and that ‚it’s also a
possibility the sentencing judge would make those consecutive,
one after the other.‛3 The court asked Defendant if he still
wanted to plead guilty, and Defendant replied, ‚Yes, your
Honor.‛ The court accepted Defendant’s guilty pleas and
ordered that Defendant be ‚released on recognizance.‛
(