2016 UT App 226
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JOHN JACOB SAMULSKI,
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
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.
TOOMEY, Judge:
¶1 In this appeal, John Jacob Samulski challenges 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.
State v. Samulski
BACKGROUND
¶2 Samulski was charged with domestic violence against 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-against-a-
witness charge, also a third degree felony. See id. § 76-8-508.3
(2012).
¶3 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 conviction, and the reduction of
the retaliation felony to a misdemeanor if there were “no further
violations of law.”
¶4 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 December 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 constitute the PSI for purposes of this case.
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State v. Samulski
¶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.
Additionally, 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.”
¶6 After hearing from defense counsel, the court asked for
the State’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 the
ability to do whatever it pleases.”
¶7 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 recommendation, 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
¶8 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.
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State v. Samulski
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, 55 P.3d 1131.
¶9 Second, Samulski alleges the court erred by failing to
consider and resolve his objections to the PSI. “Whether the trial
court properly 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, 2008 UT App 68, ¶ 5, 180 P.3d 774 (citation and internal
quotation marks omitted).
¶10 Third, Samulski claims that by failing “to articulate a
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, 2016 UT App 70, ¶ 24, 372 P.3d 34
(citation and internal quotation marks omitted).
ANALYSIS
I. The District Court Did Not Err Because There Was No Breach
of the Plea Agreement.
¶11 Samulski contends the “court erred by failing to recognize
that the prosecutor had breached the stipulated plea agreement
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
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State v. Samulski
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.
¶12 “To demonstrate plain error, a defendant must establish
that (i) an error exists; (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 court, 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, 2016 UT App 87, ¶ 15, 372 P.3d 715.
¶13 Whether the court erred in failing to recognize a breach of
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, 2014 UT App 288, ¶ 16, 340
P.3d 176 (“‘[W]hen a plea rests in any significant degree on a
promise or agreement of the prosecutor, so that it can be said to
be part of the inducement or consideration, such promise must
be fulfilled.’” (quoting State v. Garfield, 662 P.2d 129, 130 (Utah
1976)); see also United States v. Burke, 633 F.3d 984, 994 (10th Cir.
2011) (holding that the government did not breach a plea
agreement because it “complied with its end of the contractual
bargain”); State v. Monson, 2016 UT App 1, ¶ 16, 365 P.3d 1234
(determining the State did not breach the plea agreement
because the “State kept [its] promise”); State v. Hale, 2005 UT
App 305 (concluding the State did not breach the plea agreement
because the State did what it agreed to do). In addition, “[w]hen
a defendant alleges that the State violated a plea agreement by
making inappropriate statements at sentencing . . . , we consider
the prosecutor’s statements in the context of the entire hearing.”
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State v. Gray, 2016 UT App 87, ¶ 16, 372 P.3d 715 (citation and
internal quotation marks omitted).
¶14 Here, there is no error because there was no breach. In the
plea agreement the State agreed that in exchange 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.
¶15 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 acknowledge 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 was 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 certain 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,
239 P.3d 285 (citation and internal quotation marks omitted). In
“the context of the hearing as a whole,” the “statement[s] did not
undermine the recommendation so as to constitute a plain
breach of the plea agreement.” Gray, 2016 UT App 87, ¶¶ 16–17.
“And even assuming the prosecutor’s statement[s] transgressed,
any breach would not have been obvious to the district court.”
Id. ¶ 17.
¶16 Because there was no breach of the plea agreement, we
conclude the district court did not err.
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State v. Samulski
II. The District Court Failed to Sufficiently Resolve Samulski’s
Objections to the PSI.
¶17 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 record 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, 1999 UT 1, ¶ 44, 973 P.2d 404. Making “findings on
the record” requires more than accepting corrections to the PSI;
rather, the court must enter specific findings of fact resolving the
objections. Compare State v. Waterfield, 2011 UT App 27, ¶ 9, 248
P.3d 57 (concluding that the “district court’s statement that it
would accept” corrections to the PSI raised by the defendant
“did not satisfy its duty to resolve objections to the PSI on the
record” (alteration and internal quotation marks omitted), with
State v. Veteto, 2000 UT 62, ¶ 15, 6 P.3d 1133 (stating that the
statute mandates the trial court “to make specific findings on the
record”).
¶18 In this case, Samulski challenged the accuracy of some of
the information in the PSI, including his address, income, ability
to pay taxes, drug dependency, and gang affiliation. These
objections were not 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
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State v. Samulski
[the defendant’s] objections be resolved on the record.”
Waterfield, 2011 UT App 27, ¶ 11.
¶19 Nevertheless, we are not persuaded that the court’s
failure to adequately resolve the objections to the PSI on the
record negatively affected Samulski’s sentence. Indeed, it
appears 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
record by the district court.” Id.
III. Samulski Did Not Receive Ineffective Assistance of Counsel.
¶20 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, 361 P.3d 152 (quoting Strickland v. Washington, 466
U.S. 668, 687–88, 694 (1984)). “Because failure to establish either
prong of the test is fatal to an ineffective assistance of counsel
claim,” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182, “a
reviewing court can dispose of an ineffectiveness claim on either
ground,” State v. Bair, 2012 UT App 106, ¶ 49, 275 P.3d 1050
(citation and internal quotation marks omitted).
¶21 Samulski first claims he received ineffective assistance of
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
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State v. Samulski
objections does not constitute ineffective assistance of counsel.”
(citation and internal quotation marks omitted)).
¶22 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.”
¶23 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
specific 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
¶24 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.
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