State v. Samul

2018 UT App 177

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
THEODORE JAMES SAMUL,
Appellant.

Opinion
No. 20160465-CA
Filed September 13, 2018

Third District Court, Salt Lake Department
The Honorable Judith S.H. Atherton
No. 021913406

Teresa L. Welch and Robin K. Ljungberg, Attorneys
for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
concurred.

HARRIS, Judge:

¶1 Theodore James Samul pled guilty to attempted
aggravated sexual assault and kidnapping, and was sentenced to
consecutive prison sentences. He appeals those sentences,
raising two general issues for our review. First, Samul argues
that the terms of the plea agreement called for concurrent
sentences, and that the State breached that agreement when the
prosecutor failed to affirmatively argue for concurrent sentences.
Samul asserts that his attorney rendered ineffective assistance,
and that the district court committed plain error, by failing to
require the State to abide by the plea agreement. Second, Samul
asserts that the district court plainly erred by imposing
 State v. Samul

consecutive (rather than concurrent) sentences without
adequately considering his history, character, and rehabilitative
needs. We affirm Samul’s sentences.

BACKGROUND

¶2 In December 2002, Samul was charged with aggravated
sexual assault and aggravated kidnapping, both first degree
felonies, in connection with an incident in which his sister
accused him of raping her while driving her home from a family
party. A few months later, Samul pled guilty to attempting to
commit both offenses, admitting that he “seized [the victim]
against her will with the intent to attempt to rape her.” No
recording of the change of plea hearing at which Samul pled
guilty has been preserved, but the details of Samul’s guilty plea
were set forth on a written plea agreement form. In a section
entitled “Plea bargain,” that agreement states that “[a]ll the
promises, duties, and provisions of the plea bargain . . . are fully
contained in this statement, including those explained below,”
and states that Samul will plead to amended charges.
Immediately beneath that statement, the form contains two
handwritten words: “CONCURRENT SENTENCES.”

¶3 After accepting Samul’s plea, the district court scheduled
a sentencing hearing to be held nearly two months later. In the
meantime, Adult Probation and Parole (AP&P) prepared a pre-
sentence report. In that report, AP&P noted several mitigating
factors that worked in Samul’s favor, including that he had a
fiancé and a child, that he had a history of drug and alcohol
problems for which he had sought treatment, that he was
gainfully employed, and that he expressed contrition and
accepted full responsibility for his actions. The pre-sentence
report also noted several aggravating factors, however,
including that Samul’s actions in this case were particularly
egregious and harmful, that he continued to use drugs and
alcohol despite access to treatment options, and that in AP&P’s
estimation he posed a continuing “danger to the community.”

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 State v. Samul

AP&P thus recommended that Samul be sentenced to two prison
terms of three-years-to-life, to run consecutively.

¶4 At the sentencing hearing, the court first noted that it had
reviewed the pre-sentence report. Samul’s attorney then
addressed the court and emphasized Samul’s supportive family
and “strong employment record,” as well as the fact that his
troubles appeared to be related to drug and alcohol use. Counsel
did not explicitly argue for a sentence other than prison, but
implied that Samul would be amenable to treatment, and argued
that, “if the Court is inclined” to impose prison sentences, the
sentences should be imposed concurrently, asserting that
AP&P’s recommendation for consecutive sentences was “not
appropriate.”

¶5 The prosecutor then addressed the court, and argued that
“prison is the absolute appropriate sentence in this case. It’s the
wish of the victim. I believe that [prison] is really the only
appropriate response to what happened here, and I do
encourage the Court to follow the pre-sentence report
recommendation.” In her next sentence, the prosecutor stated
that, “[a]s part of the plea bargain, I agree to not speak to the
issue of consecutive and concurrent, but I will leave that to the
court’s decision.” Samul’s attorney did not express any concern
with the prosecutor’s statements during the sentencing hearing.

¶6 At the conclusion of the sentencing hearing, the district
court told Samul his offense was “disturbing in a number of
different ways,” and noted that the violence Samul inflicted on
his sister was “extreme.” The court then indicated that it would
“keep you in prison as long as I possibly can because I think it’s
the only safe way to sentence you for your victim and for the
community at large.” Accordingly, the court sentenced Samul to
consecutive prison terms.

¶7 Samul did not initially appeal his sentence. Nine years
later, in 2012, Samul filed a pro se motion seeking to correct
alleged errors in his sentence. Samul’s motion included a claim

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 State v. Samul

that his right to file a direct appeal should be reinstated,
pursuant to Manning v. State, 2005 UT 61, 122 P.3d 628, and rule
4(f) of the Utah Rules of Appellate Procedure, because he was
not made aware of his right to appeal at his sentencing hearing
as required by rule 22(c) of the Utah Rules of Criminal
Procedure. The district court corrected one error in Samul’s
sentence, reducing his sentence for attempted kidnapping to
one-to-fifteen-years (as opposed to three-years-to-life), but
denied Samul’s remaining claims. Samul appealed, and we
reversed in part, remanding the case for a determination of
whether the district court, back in 2003, had “neglected to inform
[Samul] of his right to appeal and of the time period in which to
do so.” See State v. Samul, 2015 UT App 23, ¶ 35, 343 P.3d 719. On
remand, the district court determined that Samul was not
properly advised of his right to appeal during his sentencing
hearing, and therefore reinstated the thirty-day time period
within which Samul could file a direct appeal. Samul
subsequently initiated the present appeal.

ISSUES, STANDARDS OF REVIEW, AND PRESERVATION

¶8 Samul raises two general issues for our review. First,
Samul contends that the State was obligated, under the terms of
the plea agreement, to affirmatively argue for concurrent
sentences at the sentencing hearing, and that the State breached
the plea agreement by failing to do so. Second, Samul contends
that the district court erred by imposing consecutive (rather than
concurrent) sentences without adequately considering his
history, character, and rehabilitative needs. 1

1. In his brief, Samul also asked for alternative relief in the form
of a remand to “reconstruct the record” regarding Samul’s
change of plea hearing. However, Samul’s appellate counsel
appeared to abandon this position at oral argument. Moreover,
and in any event, we are not persuaded by Samul’s request for a
(continued…)

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 State v. Samul

¶9 Samul acknowledges that he did not alert the district
court that the State had allegedly breached the plea agreement,
and therefore concedes that he failed to preserve his first issue.
“When a party fails to raise and argue an issue in the trial court,
it has failed to preserve the issue, and an appellate court will not
typically reach that issue absent a valid exception to
preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443.
Our supreme court “has recognized three distinct exceptions to
preservation: plain error, ineffective assistance of counsel, and
exceptional circumstances.” Id. ¶ 19. Samul asks for review of his
first issue under two of these exceptions: plain error and
ineffective assistance of counsel.

¶10 Samul contends that the district court plainly erred by
failing to require the State to affirmatively argue for concurrent
sentences. To prevail on such a claim, Samul must show that: “(i)
an error exists; (ii) the error should have been obvious to the trial
court; and (iii) . . . absent the error, there is a reasonable
likelihood of a more favorable outcome for [Samul].” State v.
Bedell, 2014 UT 1, ¶ 20, 322 P.3d 697 (quotation simplified).

¶11 Samul also contends that his attorney was constitutionally
ineffective in failing to object to the State’s characterization of the

(…continued)
remand, because the only way such a reconstruction could
benefit Samul is if Samul’s previous attorney were able to testify
that his recollection of the terms of the plea bargain in this case
differs from the State’s position, and that the State actually did
agree to affirmatively argue for concurrent sentences. We know,
however, that Samul’s attorney cannot so testify, because
Samul’s attorney has already testified in this case that, not only
does he not remember the precise terms of the fifteen-year-old
plea bargain, he has “no independent recollection” of the case at
all, and has destroyed his files pertinent to this case. Under these
circumstances, a remand to reconstruct the record would be
futile even if Samul had not abandoned his request.

20160465-CA 5 2018 UT App 177
 State v. Samul

plea agreement at the sentencing hearing. “When a claim of
ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” Layton City v. Carr, 2014
UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified).

¶12 With regard to the second issue—whether the district
court erred by imposing consecutive sentences—Samul asserts
that he preserved the issue, but in the alternative asks us to
review the issue for plain error. We agree with the State’s
position that Samul failed to preserve this issue for appellate
review. Samul contends that he preserved the issue by asking for
concurrent sentences and presenting mitigating evidence at
sentencing. However, to preserve an issue for appellate review, a
defendant must first “present the issue to the trial court in such a
way that the court had the opportunity to resolve it.” State v.
Gailey, 2015 UT App 249, ¶ 5, 360 P.3d 805. In order to preserve
for appellate review an argument that a sentencing court “erred
by imposing consecutive sentences without considering all of the
relevant statutory factors and by failing to give adequate weight
to various mitigating factors,” a defendant must specifically raise
that issue with the sentencing court and must provide that court
with supporting evidence and relevant legal authority. Id. at
¶¶ 4-5. Merely presenting mitigating evidence and asking the
sentencing court for a different sentence, without more, does not
preserve the issue for appellate review. Id. ¶¶ 4–5; see also State v.
Tingey, 2014 UT App 228, ¶ 3, 336 P.3d 608 (noting that where a
defendant could not “demonstrate[] that he specifically objected
to or otherwise brought to the trial court’s attention the court’s
alleged failure to consider the requisite statutory factors in
imposing sentence,” the issue was not preserved for appellate
review). In this case, Samul did nothing more than ask for
concurrent sentences and present mitigating evidence.
Accordingly, under Gailey and Tingey, Samul failed to preserve
this issue. We therefore review this issue for plain error in
accordance with Samul’s alternative request.

20160465-CA 6 2018 UT App 177
 State v. Samul

ANALYSIS

A

¶13 First, Samul argues that the State breached the plea
agreement by failing to argue affirmatively for concurrent
sentences, and asserts that his attorney rendered ineffective
assistance, and that the district court plainly erred, by failing to
require the State to abide by the terms of the plea agreement.
This argument, in both of its iterations, fails because the plea
agreement is ambiguous. 2

¶14 Under Samul’s interpretation of the words
“CONCURRENT SENTENCES,” the State agreed to
affirmatively argue for the imposition of concurrent rather than
consecutive sentences. Under another at least equally reasonable
interpretation, the State agreed to do nothing more than refrain
from opposing Samul’s advocacy for concurrent sentences.
Samul vigorously argues that the plea agreement is

2. We acknowledge that principles of plea agreement
interpretation generally favor the defendant, and that “courts
may in certain circumstances hold the government to a higher
standard than the defendant.” See State v. Patience, 944 P.2d 381,
387 (Utah Ct. App. 1997). Had it been brought to the court’s
attention at the sentencing hearing that there was a dispute
about the meaning of the plea agreement, the court may have
been obligated in that context to construe any ambiguity against
the State. See, e.g., 21 Am.Jur.2d Criminal Law § 617 (2018)
(stating that “[a]ny ambiguities in a plea agreement in a criminal
case are construed against the government”). However, because
the issue was not brought to the court’s attention, we review this
issue only for plain error and for ineffective assistance of
counsel, and in those contexts, for the reasons discussed below,
the presence of unacknowledged ambiguity works against
Samul. See State v. Gray, 2016 UT App 87, ¶ 21 n.6, 372 P.3d 715;
State v. Friel, 2015 UT App 95, ¶ 8, 347 P.3d 724.

20160465-CA 7 2018 UT App 177
 State v. Samul

unambiguous and cannot possibly encompass the second
interpretation, but we are not persuaded. Plea agreements are
generally interpreted using principles of contract law. See State v.
Terrazas, 2014 UT App 229, ¶¶ 26–27, 336 P.3d 594 (stating that
“principles of contract law provide a useful analytic framework”
to assist in determining “what the parties reasonably understood
to be the terms of [a plea] agreement” (quotation simplified)).
With regard to ambiguities, “courts are particularly willing to
identify ambiguities in plea agreements because of the
significant constitutional rights the defendant waives by
entering a guilty plea.” Id. ¶ 27 (quotation simplified). Under
contract law, an agreement is ambiguous “if it is capable of more
than one reasonable interpretation because of uncertain
meanings of terms, missing terms, or other facial deficiencies.”
Novell, Inc. v. Canopy Group, Inc., 2004 UT App 162, ¶ 20, 92 P.3d
768 (quotation simplified). However, “terms are not ambiguous
simply because one party seeks to endow them with a different
interpretation according to his or her own interests.” See Mind
& Motion Utah Investments, LLC v. Celtic Bank Corp., 2016 UT 6,
¶ 24, 367 P.3d 994. Instead, both interpretations “must be
plausible and reasonable in light of the language used.” Id. In
this case, it strikes us as an entirely reasonable interpretation for
the words “CONCURRENT SENTENCES” to mean that Samul
will argue for concurrent sentences, and the State will not
oppose that argument. Because both possible interpretations are
reasonable, we consider the plea agreement to be ambiguous.

¶15 The presence of ambiguity defeats Samul’s argument that
his counsel was ineffective. In order to prove that counsel was
constitutionally ineffective, Samul must establish both (1) that
counsel’s performance was objectively deficient; and (2) that
there is a reasonable probability that, but for counsel’s deficient
performance, Samul would have received a more favorable
outcome. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).
To prevail on the first element, Samul must “overcome the
strong presumption that trial counsel rendered adequate
assistance and exercised reasonable professional judgment,”
State v. Burnett, 2018 UT App 80, ¶ 21 (quotation simplified), “by

20160465-CA 8 2018 UT App 177
 State v. Samul

persuading the court that there was no conceivable tactical basis for
counsel’s actions.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162
(quotation simplified).

¶16 Here, we can easily conceive of a reasoned basis for
counsel’s decision not to object to the State’s remarks at
sentencing: counsel may have believed that the State was
accurately describing the terms of the plea agreement. Given the
ambiguity of the phrase “CONCURRENT SENTENCES,” it is
plausible that counsel believed that the plea agreement simply
secured the State’s promise not to oppose Samul’s argument for
concurrent sentences, an interpretation that would have
mirrored the State’s. Samul has advanced no argument to
undermine this potential explanation for counsel’s actions, and
therefore has fallen short of overcoming the strong presumption
that counsel rendered adequate assistance and exercised
reasonable professional judgment. Accordingly, Samul has not
demonstrated that counsel was constitutionally ineffective for
failing to object to the State’s remarks at sentencing.

¶17 The presence of ambiguity likewise defeats Samul’s
argument that the district court committed plain error. While
Samul is certainly correct that district courts can and should take
action when a prosecutorial breach of a plea agreement is
brought to its attention, see State v. Smit, 2004 UT App 222, ¶ 17,
95 P.3d 1203 (determining that “when a plea agreement is
breached by the prosecutor, the proper remedy is either specific
performance of the plea agreement or withdrawal of the guilty
plea both at the discretion of the trial judge”), those agreements
are contracts between the State and the defendant, and district
courts typically do not participate in their negotiation. When
their terms are ambiguous, district courts naturally depend on
the parties and their attorneys to help the court understand what
the terms of the agreement are, and whether there exists any
disagreement about their meaning. When the State characterizes
the agreement in a particular way in open court, and the defense
attorney fails to take issue with the State’s characterization, a
district court may reasonably assume that the attorneys are

20160465-CA 9 2018 UT App 177
 State v. Samul

proceeding in accordance with their agreement. At a minimum,
it is a far cry from obvious error for the district court to rely on
the attorneys’ characterization of an ambiguous plea agreement. 3

¶18 This conclusion is bolstered by State v. Gray, 2016 UT App
87, 372 P.3d 715. In that case, a defendant pled guilty to six
felony charges pursuant to a plea agreement in which the
prosecutor agreed to recommend that five of the defendant’s
sentences run concurrently, while reserving the right to
recommend that the sixth run consecutively. Id. ¶ 2. At the
sentencing hearing, the prosecutor stated that he had agreed to
recommend that five sentences run concurrently but that he had
“stated all along” that he would ask for the sixth sentence to run
consecutively. Id. ¶ 7 (quotation simplified). The prosecutor then
asked the court to “hand out the maximum punishment in this
case.” Id. (quotation simplified). The defendant’s counsel raised
no objection to the prosecutor’s statements, id. ¶ 21 n.6, and the
court subsequently ordered that all of the defendant’s sentences
run consecutively, id. ¶ 11. The defendant appealed to this court,
arguing that the prosecutor breached the plea agreement when
he asked the court to impose the “maximum punishment,” and
that the court had committed plain error by allowing the breach.
Id. ¶¶ 12, 14. This court disagreed, noting that because the

3. Samul also argues that the prosecutor breached the plea
agreement by encouraging the district court “to follow the pre-
sentence report recommendation.” We disagree with this
characterization. The prosecutor’s statement was referring to
that part of the report that recommended that Samul be
sentenced to prison rather than jail and probation. This was
made clear by the prosecutor’s next statement that, “[a]s part of
the plea bargain, I agree to not speak to the issue of consecutive
and concurrent.” Considered in the “context of the entire
hearing,” see State v. Gray, 2016 UT App 87, ¶ 16, 372 P.3d 715,
we do not read the prosecutor’s statements as encouraging the
district court to follow the presentence report’s recommendation
of consecutive (as opposed to concurrent) sentences.

20160465-CA 10 2018 UT App 177
 State v. Samul

prosecutor clarified the terms of the plea agreement before his
“maximum punishment” request, the “context of the hearing as
a whole [did] not support [the defendant’s] claim” that it would
have been obvious to the district court that the State breached
the plea agreement. Id. ¶¶ 15–17. This court further noted that,
“[w]hile defense counsel’s inaction is certainly not dispositive,
his silence suggests that he saw no error in the prosecutor’s
presentation worthy of correction and reinforces our conclusion
that the alleged breach, if any, was not obvious.” Id. ¶ 21 n.6; see
also State v. Friel, 2015 UT App 95, ¶ 8, 347 P.3d 724 (noting that
where a defendant “never alerted the district court” that she
believed a prosecutor’s description of a plea agreement during
sentencing was incorrect, that disagreement “would not have
been obvious” to the court).

¶19 In this case, as in Gray, it is far from clear—in the context
of the entire hearing—that the State breached the plea agreement
during its sentencing argument. Likewise, as in Gray, defense
counsel’s inaction following the State’s remarks strongly
suggests that he “saw no error in the prosecutor’s presentation
worthy of correction,” and strongly indicates that any breach
would not have been obvious to the district court even had one
occurred. Accordingly, the district court did not plainly err when
it did not take issue with the prosecutor’s remarks at the
sentencing hearing. 4

4. In his brief, Samul tries to evade this conclusion by citing to
State v. King, 576 N.W.2d 369 (Iowa 1998). In that case, a
prosecutor promised as part of a plea agreement to remain
entirely silent at sentencing, but nonetheless spoke at the
defendant’s sentencing and recommended defendant receive a
harsh sentence. Id. at 370. On appeal, the Supreme Court of Iowa
vacated the sentence and remanded the case for resentencing,
holding that “the prosecutor’s promise to remain silent at
sentencing, a commonly bargained-for component of a plea
agreement, was ignored” and that this amounted to a breach that
(continued…)

20160465-CA 11 2018 UT App 177
 State v. Samul

B

¶20 Second, Samul argues that the district court erred by
sentencing him without adequately considering his history,
character, and rehabilitative needs. As noted above, due to
Samul’s failure to raise this issue below, we review it here for
plain error, and we conclude that Samul has fallen well short of
demonstrating that the district court plainly erred.

¶21 Under Utah law, sentencing courts considering whether
to impose concurrent or consecutive prison sentences are
required to consider “the gravity and circumstances of the
offenses, the number of victims, and the history, character, and
rehabilitative needs of the defendant.” See Utah Code Ann. § 76-
3-401(2) (LexisNexis 2017). This is not to say, however, that a
sentencing court must always expressly mention these factors on
the record at the sentencing hearing. Indeed, as a “general rule”
we will “uphold[] the [sentencing] court even if it failed to make
findings on the record whenever it would be reasonable to
assume that the court actually made such findings.” State v.
Helms, 2002 UT 12, ¶ 11, 40 P.3d 626 (quotation simplified).
Moreover, “we will not assume that the [sentencing] court’s
silence, by itself, presupposes that the court did not consider the
proper factors as required by law.” Id. Instead, it is a defendant’s
“burden to demonstrate that the [sentencing] court failed to
properly consider legally relevant factors,” State v. Bunker, 2015
UT App 255, ¶ 3, 361 P.3d 155, and this burden cannot be met
“by merely pointing to a lack of written findings or the existence

(…continued)
“tainted the entire sentencing proceeding.” Id at 371. This case
does not save Samul’s argument for two reasons: first, because
Samul has not demonstrated that the State made argument on an
issue on which it agreed to remain silent, or that the State
remained silent on an issue on which it agreed to make
argument, and second, because Gray and Friel (rather than King)
are binding precedent in Utah.

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 State v. Samul

of mitigating circumstances,” id. (citing Helms, 2002 UT 12, ¶ 16);
see also id. (stating that “neither our case law nor our statutes
require a [sentencing] court to make specific findings of fact in a
sentencing order” (quotation simplified)). Instead, when
reviewing a court’s sentencing decision against a challenge that
it failed to consider the required statutory factors, “we begin
with the presumption” that the court properly considered the
factors. See State v. Valdez, 2017 UT App 185, ¶ 17, 405 P.3d 952.

¶22 On this record, Samul fails to persuasively rebut this
presumption. Here, Samul argues that the district court did not
take various mitigating factors into account during his
sentencing, including that Samul’s adult criminal history was
not extensive, that Samul was remorseful and accepted
responsibility for his crime, that Samul had struggled with drug
and alcohol abuse and had previously voluntarily attended
treatment programs, and that Samul had a good employment
record and strong family connections. However, these mitigating
factors were noted in AP&P’s pre-sentence report, and the
district court stated at the beginning of the sentencing hearing
that it had reviewed that report. In addition, as Samul
acknowledges, the district court was further made aware of
these mitigating factors during the sentencing hearing, when
Samul’s counsel discussed them at some length.

¶23 Under these circumstances, Samul has failed to rebut the
presumption that the district court considered the gravity and
circumstance of Samul’s offenses, the number of victims, and
Samul’s history, character, and rehabilitative needs. All of these
issues were covered in the pre-sentence report, which the district
court reviewed, and most of these factors were expressly
discussed at the hearing. See State v. Monzon, 2016 UT App 1,
¶ 22, 365 P.3d 1234 (stating that, where “the mitigating evidence
that [defendant] believes the district court should have
considered was discussed at the first sentencing hearing or was
set forth in the [pre-sentence report] . . . , we presume that the
district court considered that information prior to sentencing”).
Accordingly, Samul has not demonstrated that the district court

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 State v. Samul

plainly erred by failing to consider the required statutory factors
in the course of making its decision to sentence Samul to
consecutive sentences. 5

CONCLUSION

¶24 Samul has not established that the district court plainly
erred, or that his attorney rendered ineffective assistance, when
they did not challenge the prosecutor’s remarks at Samul’s
sentencing hearing. Samul has also failed to establish that the
district court did not adequately consider his history, character,
and rehabilitative needs, and Samul therefore falls short of
demonstrating that the district court plainly erred by imposing
consecutive (rather than concurrent) sentences. Accordingly, we
affirm Samul’s sentences.

5. Samul argues that three cases—State v. Galli, 967 P.2d 930
(Utah 1998), State v. Smith, 909 P.2d 236 (Utah 1995), and State v.
Strunk, 846 P.2d 1297 (Utah 1993)—require the conclusion that
the district court’s sentencing decision was erroneous. The State
asserts that those cases have been superseded by statute, but we
need not reach that argument because, even if those cases remain
good law, we are not persuaded that they apply here in any
event. In those cases, our supreme court held that courts had
abused their discretion by imposing lengthy consecutive
sentences that—under the statutory scheme then in effect—
effectively prevented the Board of Pardons from considering
parole for decades. See Gray, 2016 UT App 87, ¶ 30 (discussing
Galli, Smith, and Strunk, which imposed combined minimum
sentences of fifteen to sixty years). In this case, after the district
court corrected the sentencing error, Samul faced one sentence of
three-years-to-life, and another sentence of one-to-fifteen-years,
for a combined minimum sentence of four years. This sentence
does not unduly impact the Board of Pardons’ ability to review
Samul’s eligibility for parole. Accordingly, Samul’s reliance on
Galli, Smith, and Strunk is misplaced.

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