State v. Sanchez

2015 UT App 58
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
WILBERT SANCHEZ,
Defendant and Appellant.

Memorandum Decision
No. 20121030-CA
Filed March 12, 2015

Fifth District Court, St. George Department
The Honorable John J. Walton
No. 121501257

Kenneth L. Combs, Attorney for Appellant

Sean D. Reyes, Brett J. DelPorto, and Paul F. Graf,
Attorneys for Appellee

JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
which JUDGE GREGORY K. ORME concurred. JUDGE MICHELE M.
CHRISTIANSEN concurred, with opinion.

TOOMEY, Judge:

¶1 Wilbert Sanchez appeals from the sentence imposed on
him by the trial court after he was convicted of unlawful
possession of another’s identification documents, a class A
misdemeanor. We affirm.

¶2 Sanchez was charged with one count of identity fraud
and one count of forgery based on his alleged use of another
 State v. Sanchez

person’s social security number to obtain employment. 1 A jury
later acquitted Sanchez of the identity fraud and forgery charges,
instead finding him guilty of a lesser offense of unlawful
possession of another’s identification document. Sanchez then
filed a motion pursuant to Utah Code section 76-3-402(1) to
reduce the conviction. See Utah Code Ann. § 76-3-402(1)
(LexisNexis 2012) (providing the trial court discretion to reduce
a conviction to the next lower degree of offense if it concludes
the conviction would be unduly harsh). Specifically, Sanchez
asked the court to reduce his conviction to a class B
misdemeanor and sentence him within the corresponding
penalty range. See id. § 76-3-204(2) (providing that a class B
misdemeanor is punishable by imprisonment for a term not
exceeding six months). At the sentencing hearing, the prosecutor
asked the trial court to sentence Sanchez to 365 days in jail, the
maximum sentence for a class A misdemeanor. See id. § 76-3-
204(1). Sanchez responded that if the court refused to reduce his
conviction and sentenced him to 365 days in jail, he would be
deported because of his immigration status. Sanchez therefore
urged the trial court to sentence him to 180 days in jail based on
his counsel’s understanding that such a sentence would give
Sanchez a better chance of remaining in the country.

¶3 The trial court judge ultimately denied Sanchez’s motion:

[U]nder the circumstances—I think that I would be
substituting my own sympathies for Mr.
Sanchez’[s] situation rather than applying the law
in an appropriate manner if I were to rule or find

1. Both of these counts in the information are third degree
felonies. See Utah Code Ann. § 76-6-1102(3)(a) (LexisNexis Supp.
2014); id. § 76-6-502 (LexisNexis 2012). Unlawful possession of
another’s identification document is a class A misdemeanor. See
id. § 76-6-1105 (LexisNexis 2012).

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 State v. Sanchez

that it would be unduly harsh or severe to sentence
Mr. Sanchez to the standard sentence for a Class A
Misdemeanor.

The trial court thereafter sentenced Sanchez to a term of 365 days
in jail. It also imposed a $2,500 fine, stayed the execution of
sentence, and placed Sanchez on probation for two years.
Among other things, the conditions of Sanchez’s probation
required him to serve a term of 100 days in the county jail with
an early release should he be deported, and an order was
entered requiring Sanchez’s release to Immigration and Customs
Enforcement agents for deportation. Sanchez appeals.

¶4 On appeal, Sanchez raises three arguments challenging
his sentence. Specifically, he argues that the trial court (1) was
unduly harsh and abused its discretion when it denied his
request for a section 402(1) reduction, (2) abused its discretion
when it failed to take into account his potential deportation
when determining his sentence, and (3) unlawfully delegated its
sentencing decision to the prosecutor.

¶5 The decision of whether to grant a section 402(1)
reduction rests within the discretion of the trial court. See State v.
Perea, 2013 UT 68, ¶ 114, 322 P.3d 624; see also State v. Boyd, 2001
UT 30, ¶¶ 30–31, 25 P.3d 985. We afford trial courts “wide
latitude and discretion in sentencing.” State v. Killpack, 2008 UT
49, ¶ 58, 191 P.3d 17 (citation and internal quotation marks
omitted). Accordingly, “[w]e will not overturn a sentence unless
it exceeds statutory or constitutional limits, the judge failed to
consider all the legally relevant factors, or the actions of the
judge were so inherently unfair as to constitute abuse of
discretion.” State v. Sotolongo, 2003 UT App 214, ¶ 3, 73 P.3d 991
(citations and internal quotation marks omitted); see also Boyd,
2001 UT 30, ¶ 31.

¶6 First, Sanchez argues the trial court exceeded its
discretion in denying his request for a section 402(1) reduction

20121030-CA 3 2015 UT App 58
 State v. Sanchez

because a conviction for a class A misdemeanor would be
unduly harsh and would subject him to deportation. Section 76-
3-402(1) provides,

If at the time of sentencing the court, having regard
to the nature and circumstances of the offense of
which the defendant was found guilty and to the
history and character of the defendant, and after
having given any victims present at the sentencing
and the prosecuting attorney an opportunity to be
heard, concludes it would be unduly harsh to
record the conviction as being for that degree of
offense established by statute, the court may enter
a judgment of conviction for the next lower degree
of offense and impose sentence accordingly.

Utah Code Ann. § 76-3-402(1).

¶7 In analyzing Sanchez’s motion to reduce his conviction,
the trial court considered the nature of his crime, his particular
circumstances, and the consequences of his conviction.
Specifically, the court noted that, although he is “a hard
worker,” Sanchez committed “a serious crime, using someone
else’s Social Security Number” and had “already substantially
benefited by not having been convicted of a felony.” Moreover, it
considered that there was no guarantee that Sanchez was going
to be deported with a class A misdemeanor conviction or a 365-
day jail sentence. The trial court judge determined that the
conviction for a class A misdemeanor was not unduly harsh to
Sanchez, stating,

I don’t think that the Section 402 argument is a
hard one, Counsel, because given—I heard the
facts of the case, and I just could not find under the
circumstances—and I’ve given it a lot [of]
thought—that I should reduce it because I can’t
find that it would be unduly harsh or severe to

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 State v. Sanchez

enter sentence at the level of a standard sentence
for a Class A Misdemeanor.

Based on our review of the record, we conclude the trial court
acted within its discretion in ruling that the class A
misdemeanor conviction was not unduly harsh under the
circumstances of this case.

¶8 Second, Sanchez contends the trial court should have
taken into account his potential deportation when determining
his sentence. In essence, Sanchez argues that the immigration
consequences resulting from a 365-day jail sentence should have
been weighed as a mitigating factor and should have led the trial
court to sentence him to a shorter jail term.

¶9 In general, trial courts base sentencing decisions on “the
totality of the circumstances.” Perea, 2013 UT 68, ¶ 117.
“Although courts must consider all legally relevant factors in
making a sentencing decision, not all aggravating and mitigating
factors are equally important, and [o]ne factor in mitigation or
aggravation may weigh more than several factors on the
opposite scale.” Killpack, 2008 UT 49, ¶ 59 (alteration in original)
(citation and internal quotation marks omitted).

¶10 In this case, the trial court considered the totality of the
circumstances when it made its sentencing decision. In doing so,
the court contemplated whether to give weight to Sanchez’s
potential deportation but concluded that it should sentence
Sanchez without regard to the immigration ramifications.
Nevertheless, the judge opined that Sanchez’s deportation
would be “unfortunate,” and the judge expressed “sympathies
for Mr. Sanchez’[s] situation” and hope for “substantial
comprehensive immigration reform that would deal with these
situations.”

¶11 Although the trial court evidently entertained the idea of
sentencing Sanchez to less than the maximum standard 365-day

20121030-CA 5 2015 UT App 58
 State v. Sanchez

jail sentence, it explained that the “only reason” to do that would
be because the trial court was “not sure that it is fair that Mr.
Sanchez be deported.” 2 But because doing so would be “making
a different kind of sentence for Mr. Sanchez than [the court does]
for almost everyone else who’s committed a Class A
Misdemeanor,” the trial court refused to deviate from its normal
practice of imposing the maximum standard sentence of 365
days in jail. Under these circumstances, the trial court did not
exceed its discretion when it sentenced Sanchez. 3

2. Even if the trial court had exceeded its discretion when it
sentenced Sanchez to 365 days in jail, it would be harmless
because the actual sentence imposed by the court is irrelevant to
Sanchez’s potential for deportation. As Sanchez notes, “[a]
person who is in the country illegally is subject to deportation
when convicted of certain crimes as set forth in 8 U.S.C.A.
§ 1227.” Specifically, he cites the Immigration and Nationality
Act: “Any alien who . . . is convicted of a crime involving moral
turpitude . . . and . . . is convicted of a crime for which a sentence
of one year or longer may be imposed, is deportable.” 8 U.S.C.
§ 1227(a)(2)(A)(i) (2012) (emphasis added). Accordingly, because
a class A misdemeanor is a crime for which a sentence of one
year may be imposed and the trial court did not abuse its
discretion in denying Sanchez’s request for a section 402(1)
reduction, Sanchez’s actual sentence is irrelevant to the potential
for deportation under the Immigration and Nationality Act. See
id.; see also Utah Code Ann. § 76-3-204(1) (LexisNexis 2012).

3. Sanchez cites two cases in support of his argument that the
trial court should have taken into account his potential
deportation when determining his sentence. In the first case,
Padilla v. Kentucky, 559 U.S. 356 (2010), the United States
Supreme Court held that because “deportation is an integral part
. . . of the penalty that may be imposed on noncitizen defendants
who plead guilty to specified crimes,” id. at 364, “counsel must
(continued...)

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 State v. Sanchez

¶12 Finally, Sanchez asserts that the trial court unlawfully
delegated its sentencing decision to the prosecutor. In support,
Sanchez directs us to a point during the sentencing hearing
when the trial judge explained that “99.9 percent of the time,” he
sentences defendants to the maximum standard sentence for a
class A misdemeanor and that although he had deviated from
that a “time or two,” he had “never done it . . . unless it was
stipulated by Counsel.” Based on these statements, the
prosecutor’s refusal to stipulate to a lesser sentence, and the trial
judge’s imposition of the maximum 365-day jail sentence,
Sanchez asserts the trial judge improperly required a stipulation
from the prosecutor before he would impose a shorter sentence,
thereby delegating his sentencing duty. The State counters that
because the judge “simply followed [his] ordinary practice of not
reducing the sentence for a class A misdemeanor unless the
prosecutor stipulated,” the court did not delegate its judicial
authority. We agree with the State.

(…continued)
inform her client whether his plea carries a risk of deportation,”
id. at 360, 373–74. But Padilla does not require trial courts to
consider immigration status during sentencing. See id. In the
second case, United States v. Jefferson, 925 F.2d 1242 (10th Cir.
1991), the Tenth Circuit determined that a district court
committed reversible error during the sentencing phase of a trial
when it stated that it did not have the discretion to depart from
the United States Sentencing Guidelines. Id. at 1247, 1259–60.
According to Sanchez, Jefferson buttresses his claim that the trial
court erroneously believed it could not exercise any discretion to
sentence Sanchez to less than the maximum standard sentence.
But because the trial court in this case did not state that it lacked
discretion and because Jefferson does not address sentencing
under Utah law, Jefferson is inapposite. See id. at 1259–60.
Consequently, Sanchez’s reliance on these cases is misplaced.

20121030-CA 7 2015 UT App 58
 State v. Sanchez

¶13 “While sentencing courts take into account all the relevant
circumstances, . . . the recommendations of the prosecutor or any
other party are not binding upon the court.” State v. Moreau, 2011
UT App 109, ¶ 11, 255 P.3d 689 (citations and internal quotation
marks omitted); cf. Utah R. Crim. P. 11(h)(2) (“If sentencing
recommendations are allowed by the court, the court shall
advise the defendant personally that any recommendation as to
sentence is not binding on the court.”). In this case, the
sentencing hearing transcript does not support Sanchez’s claim
that the prosecutor’s recommendation dictated the trial court’s
ultimate decision. The relevant portion of the transcript is as
follows:

[DEFENSE COUNSEL]: Your Honor, I’m not
aware of any law that says the Court cannot
sentence a person from zero to 365 [days for a class
A misdemeanor].

THE COURT: Right, I agree with you. But 99.9
percent of the time, I don’t do that, and I question,
given the fact that Mr. Sanchez has been convicted
of a Class A Misdemeanor, if it’s appropriate for
me to enter a different kind of a sentence than I do
99.9 percent of the time . . . and the only reason that
I would be doing that . . . would be to say it’s
because I’m not sure that it’s fair that Mr. Sanchez
be deported. But that’s not my decision.

....

[DEFENSE COUNSEL]: . . . I’ve seen a couple of
judges here in this district . . . vary from the
practice [but] most all do the same thing the Court
does, that’s 99.9 percent, probably.

20121030-CA 8 2015 UT App 58
 State v. Sanchez

THE COURT: I’ll tell you, Counsel, I’ve done it a
time or two. I’ve never done it, I don’t believe,
unless it was stipulated by Counsel.

....

THE COURT: [Prosecutor], what about it? You
started with the position that [the sentence] ought
to be 365 days because presumably that means that
Mr. Sanchez would be deported.

[PROSECUTOR]: Well, that’s the basis for the
position that (Inaudible). . . . I’ve come to the same
conclusion you have . . . that is the normal Class A
Misdemeanor sentence was 365 days.

....

THE COURT: What opposition would you have to
the Court exercising its discretion to, say, 360 days
as a statutory sentence instead of 365?

[PROSECUTOR]: I recognize that you have had
(Inaudible). I’ve even heard of judges saying 364
days.

THE COURT: Yes.

[PROSECUTOR]: I would oppose that; I would ask
for 365 days.

THE COURT: Okay.

The trial court then sentenced Sanchez to the maximum standard
sentence of 365 days, explaining that imposing the sentence was
“the appropriate thing to do from a judicial standpoint.” When
the transcript is read as a whole, the trial court’s reference to a

20121030-CA 9 2015 UT App 58
 State v. Sanchez

stipulation was only an explanation of its usual practice of
refusing to depart from maximum standard sentences absent a
stipulation from the parties. We therefore do not agree with
Sanchez that the trial court delegated its sentencing authority to
the prosecutor.

¶14 In conclusion, the trial court did not exceed its discretion
in sentencing Sanchez or in denying Sanchez’s motion to reduce
his conviction. Moreover, the court did not improperly delegate
its sentencing authority to the prosecutor. Accordingly, we
affirm Sanchez’s sentence.

CHRISTIANSEN, Judge (concurring):

¶15 I agree with the lead opinion’s conclusion that the trial
court committed no reversible error in sentencing Sanchez, and I
therefore concur in affirming his sentence. However, I write
separately because I believe a point the lead opinion addresses
only briefly in a footnote is dispositive of one of the principal
issues raised by Sanchez on appeal. See supra note 2. The critical
inquiry in examining the trial court’s exercise of its discretion
here is whether the trial court properly denied Sanchez’s motion
for a section 402 reduction, not whether the trial court abused its
discretion in imposing Sanchez’s actual sentence. This is because
the only prejudice Sanchez is claiming to have suffered as a
result of the trial court’s sentencing decision is his classification
as deportable under title 8, section 1227 of the United States
Code—a classification that is completely unaffected by the actual
sentence imposed by the trial court.

¶16 Sanchez was convicted of unlawful possession of
another’s identification documents, a class A misdemeanor. Utah
Code Ann. § 76-6-1105(2)(a) (LexisNexis 2012). This offense is
subject to a sentence of imprisonment for a term not exceeding
one year. Id. § 76-3-204. Before he was sentenced, Sanchez moved
the court for a reduction under Utah Code section 76-3-402,

20121030-CA 10 2015 UT App 58
 State v. Sanchez

seeking reduction of his conviction to a class B misdemeanor
punishable by up to six months of imprisonment. Id. The trial
court denied that motion, concluding that entering the
conviction as a class A misdemeanor would not be “unduly
harsh.” See id. § 76-3-402(1).

¶17 I agree with the lead opinion that the trial court did not
abuse its discretion in denying Sanchez’s motion for a section
402 reduction. Sanchez argued to the trial court that entering his
conviction as a class A misdemeanor would be unduly harsh
because it would subject him to deportation. A review of the
record demonstrates that the trial court acknowledged Sanchez’s
immigration status, the nature of Sanchez’s offense, and
Sanchez’s character and personal circumstances in ruling on the
motion. Sanchez has not demonstrated that the trial court failed
to consider any legally relevant sentencing factors or exceeded
statutory or constitutional limits in denying his motion. Given
the deference with which we review a trial court’s decision on a
section 402 motion, I cannot say that “no reasonable [person]
would take the view adopted by the trial court” and therefore
cannot conclude that the trial court abused its discretion in
denying Sanchez’s motion for a reduction of his conviction. See
State v. Moreau, 2011 UT App 109, ¶ 6, 255 P.3d 689 (alteration in
original) (citation and internal quotation marks omitted).

¶18 Having determined that the trial court properly denied
Sanchez’s motion for a section 402 reduction, I would not reach
Sanchez’s argument that the trial court abused its discretion in
sentencing him. Rather, I would affirm because any error in the
trial court’s actual sentencing decision is harmless with respect
to the only prejudice that Sanchez has asserted on appeal—his
classification as deportable under title 8, section 1227 of the
United States Code. Federal law provides that an alien convicted
of a crime involving moral turpitude “for which a sentence of
one year or longer may be imposed” is deportable. 8 U.S.C.
§ 1227(a)(2)(A)(i) (2012). Sanchez argues that “the length of the
sentence” imposed by the trial court would “impact whether or

20121030-CA 11 2015 UT App 58
 State v. Sanchez

not [Sanchez] can possibly be deported” and that it was
therefore “vital for the trial court to consider possible
deportation when imposing his sentence.” However, it is the
maximum sentence permitted for a conviction—not the actual
sentence imposed—that determines whether a defendant is
deportable under this section. See id. § 1227(a)(2)(A)(i)(II). 1

¶19 A defendant convicted of a class A misdemeanor may be
sentenced to imprisonment for up to one year. Utah Code Ann.
§ 76-3-204. Thus, once Sanchez was convicted of a class A
misdemeanor and the trial court entered the conviction at that
level, he “could have been deported regardless of [his] sentence,
because the Immigration and Nationality Act . . . classifies as
deportable any alien convicted of a crime of moral turpitude ‘for
which a sentence of one year or longer may be imposed.’” State v.
Aguirre-Juarez, 2014 UT App 212, ¶ 3, 335 P.3d 896 (quoting 8
U.S.C. § 1227(a)(2)(A)(i) (2006)). Whatever weight the trial court
gave to the potential immigration consequences of Sanchez’s
sentence simply does not matter, because the actual term of
imprisonment ordered by the trial court is irrelevant to
Sanchez’s eligibility for deportation. Any error or abuse of

1. Sanchez’s argument appears to concede, and I assume for
purposes of this analysis, that a conviction for unlawful
possession of another’s identification documents is a crime of
moral turpitude. This view appears consistent with the Supreme
Court’s observation that “crimes involving fraud have
universally been held to involve moral turpitude.” Jordan v. De
George, 341 U.S. 223, 228 (1951). However, I would not decide
this issue, because it would not affect the outcome of my
analysis. Even if the crime of unlawful possession of another’s
identification is not one of moral turpitude, Sanchez would
simply not be classified as deportable under this statute, and the
sentence imposed by the trial court would still have no effect on
that classification.

20121030-CA 12 2015 UT App 58
 State v. Sanchez

discretion in the trial court’s selection of the period of
incarceration is therefore harmless with respect to whether
Sanchez is deportable. 2 As Sanchez has raised no other claim of
prejudice on appeal, I would affirm on that basis.

2. This court has recognized that the actual sentence imposed by
the trial court may have other immigration consequences.
Notably, “an adult alien convicted of a crime of ‘moral
turpitude’ and sentenced to incarceration for six months or
more” is rendered permanently inadmissible to the United
States. State v. Aguirre-Juarez, 2014 UT App 212, ¶ 5, 335 P.3d 896
(quoting 8 U.S.C. § 1182(a)(2)(A)(i)–(ii) (2006)). However,
Sanchez has argued only the deportation issue and has raised no
other immigration issue below or on appeal.

20121030-CA 13 2015 UT App 58