State v. Brotherson

2020 UT App 97

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DAVID DANIEL BROTHERSON,
Appellant.

Opinion
No. 20190262-CA
Filed June 18, 2020

Fourth District Court, Provo Department
The Honorable James R. Taylor
No. 161401544

Earl G. Xaiz, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES KATE APPLEBY and DAVID N. MORTENSEN concurred.

ORME, Judge:

¶1 Appellant David Daniel Brotherson argues that the
district court exceeded its discretion when it declined to reduce
his felony convictions of burglary and aggravated assault to
class A misdemeanors. He further argues that by defending the
district court’s ruling on appeal, the State breached the plea
agreement it entered into below. We reject both arguments and
affirm.
 State v. Brotherson

BACKGROUND

The Plea Agreement

¶2 In May 2016, the State charged Brotherson with burglary,
rape, and forcible sexual abuse. Brotherson agreed to plead
guilty to burglary, a second-degree felony, and aggravated
assault, a third-degree felony. In exchange, the prosecutor
agreed to “recommend[] probation” and “stipulate[d] to a two
level reduction on [the burglary conviction], and a one level
reduction [on the aggravated assault conviction], upon
[Brotherson’s] successful completion of probation, pursuant to
§ 76-3-402 Utah Code,” which would have resulted in both
counts being reduced to class A misdemeanors. The factual basis
of the plea was as follows:

On May 19, 2016, [Brotherson] and others had been
to the victim’s home for a get together.
[Brotherson] and the others left the home later on,
but [Brotherson] then returned to the home,
reentered the home through an unlocked door, and
entered the victim’s bedroom without her consent.
He then engaged in sexual activity, wherein he
believed she was consenting. During the course of
this activity, his conduct, because of the
circumstances, created a “substantial risk of serious
bodily injury.”

¶3 Additionally, during the plea colloquy, 1 the prosecutor
offered a further factual basis for the plea, stating that

1. We were not provided a transcript of the hearing in which the
plea colloquy occurred. We quote from a recitation by the
district court in its ruling on Brotherson’s motion to reduce the
level of his convictions. Nothing in the record suggests, nor has
Brotherson argued, that he objected to the State’s supplemental
(continued…)

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 State v. Brotherson

[Brotherson] had been at the victim’s house
previously that evening and left. He texted her and
communicated with her that he wanted to come
back. She told him not to come back. She went to
bed. He entered the house without permission, got
into bed with her, touched her breasts and vagina,
and then had intercourse with her without consent.

¶4 Before entering into the plea agreement, however,
Brotherson underwent a psychosexual evaluation in which he
proffered a different version of the facts. The doctor
administering the evaluation wrote that Brotherson told him that

he dropped off his friend and called the woman
whose house they had been at, and, “We were
texting back and forth.” He indicated they talked
about him coming over. He questioned her, asking
if she was sure she wanted him to come over. He
stated that she replied, telling him she had just
taken a sleeping pill, and, “If I was going to come
over, to do it quick.” . . . He said he drove back to
her house and knocked on her door. He stated she
answered the door, saying, “She was in a t-shirt
and panties. She called me back to her room. There
was a light on. I laid on the bed and she was
standing up doing something and we were talking
back and forth.” He said he was lying on his side,
and, “She laid next to me like we were spooning.”
He indicated she took his arm and laid it across her
stomach, saying, “We were laying there. My crotch
was next to her behind and she started to move
around a little bit and I thought I heard her moan.
The next thing, we were both getting my penis out

(…continued)
factual basis during the plea colloquy or that the court’s
recitation of that further factual basis was inaccurate.

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 State v. Brotherson

and I stuck it between her legs above her panties,
and we started to grind.” He contended he never
heard her say “no.” He continued by saying, “She
never told me to stop. We were in a difficult
position so when I repositioned myself I got myself
hard and I got in the same position and, as I started
to ejaculate, I took off my shirt and cleaned off the
semen and laid there for a few minutes and then I
said I was going to go home.” He stated he then
picked up his clothing and left. He reported that
during their interaction, “I can’t remember if I
touched her breasts. I could have but it wouldn’t
have been for very long.” He stated that at no point
did he grab her throat or make any threatening
statements towards her. He contended he was
never on top of her. He reported their relationship
is complicated by the fact that they had been
sexually active previously, months earlier, while
they were at his house.

¶5 During this evaluation, the doctor noted that “Brotherson
does not report having committed a sex offense.” The doctor also
noted that Brotherson “does not report having used force in a
sexual encounter” and “believes the sexual behavior happened
because the person already had sexual experience and wanted
and liked the sex things that happened.” The doctor concluded
that if Brotherson “had acted with force, violence, or without
consent, he would need to participate in treatment . . . [but] it is
unclear this had been the case.” The doctor suggested it would
be “worthwhile for . . . Brotherson to voluntarily submit to a
polygraph examination to explore this further,” because if he
“has not committed the offense he has been accused of, there
would be less need for him to participate in sex offender specific
treatment.”

¶6 The court accepted Brotherson’s plea and ordered Adult
Probation and Parole (AP&P) to prepare a presentence

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 State v. Brotherson

investigation report (PSIR). As part of that report, Brotherson
provided the following written statement:

I called [the victim] and texted her about coming
back to her house. We texted back and forth and I
ended up going back to her house and entered her
home through the side door that we had entered
through earlier that night. I walked back to her
room and [the victim] was there and I layed down
on her bed. We talked for a few minutes and then
she laid down beside me. I began to touch [the
victim] and began to grind on her from behind.
Thinking everything was consensual. I continued
to grind with her from behind and at this time my
penis was in between her legs rubbing on the
outside of her panties. I know from [the victim]
that she was not ok with this. I admit my behavior
[w]as not normal for me and regret and feel very
sorry for ever[] going back to her house. After
grinding I ejaculated on her leg and took my shirt
off and cleaned her off. Still thinking everything
was ok I laid there for a few minutes then gathered
my things and left.

¶7 The investigator who prepared the PSIR informed the
court that Brotherson denied having any sexual interaction with
the victim before this offense, which contradicted the story he
told the doctor during his psychosexual evaluation. Determining
that Brotherson not only entered the home intending to commit
a sexual act, but also committed that act, the investigator
deviated from the sentencing guidelines, which recommended
no imprisonment, and recommended prison time.

Sentencing and Probation

¶8 At sentencing, the district court stated that although “this
is a heinous offense,” it would not impose prison time “because
there is no criminal history that [would warrant] an immediate

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 State v. Brotherson

commitment to prison.” The court noted, however, that the
psychosexual evaluation was “really no help at all” because
“[t]he results were inconclusive, [and] the facts, apparently that
were reported to the examiner differ from the facts that have
been admitted to.” The court then sentenced Brotherson to a
suspended prison sentence and placed him on probation for
thirty-six months. As a condition of probation, the court ordered
Brotherson to serve one year in jail, even though the sentencing
matrix recommended 0–210 days in jail, and to complete any
treatment AP&P recommended, including taking a polygraph
exam if required.

¶9 Approximately eight months into his one-year
condition-of-probation incarceration, Brotherson was released
from jail for good behavior. He then submitted to a polygraph
exam. During the exam, “Brotherson was asked if he forced his
victim to engage in sexual contact with him and if he let himself
into the victim’s house.” Brotherson answered in the negative to
both questions, and his “responses scored as ‘no significant
responses observed,’” so he “was determined to be telling the
truth by the polygrapher.” After his release from jail, Brotherson
also entered sex-offender treatment. This treatment was
terminated after only four weeks, when the psychologist in
charge of Brotherson’s therapy categorized him as “very low
risk” and deemed that he had no need for further treatment
based on the results of the polygraph test and other assessments.

¶10 Seven months after Brotherson’s release from jail, AP&P
requested that the district court terminate his probation early on
the grounds that he “has completed everything asked of him and
has done so quickly, remained crime free and probation
violation free.” The court denied the request because it “was not
satisfied that sex therapy had been as ‘successful’ as the doctors
had declared since their conclusion seem[s] rooted in reliance
upon ‘no response’ to questions that directly contradicted
findings admitted and then made in connection with the
sentencing in this case.”

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 State v. Brotherson

¶11 Approximately four months later, Brotherson moved the
district court to terminate his probation in accordance with Utah
Code section 64-13-21(7) on the ground that he had had no
probation violations for eighteen months. The court heard
argument on the matter and granted the motion, terminating
Brotherson’s probation as successfully completed.

402 Reduction

¶12 Brotherson then filed the motion at issue in this appeal—
which the prosecutor stipulated to in accordance with the plea
agreement—requesting that the district court reduce his
burglary and aggravated assault convictions to class A
misdemeanors pursuant to Utah Code section 76-3-402.
Brotherson argued he was entitled to the reduction on the
grounds that he (1) “has no other criminal history”; (2) “was an
exemplary inmate and probationer”; (3) completed everything
the court “asked him to do in an expedient manner”; (4) was
“continuing with counseling, despite the fact that he was
successfully discharged from court ordered counseling”; (5) had
stable employment but “his ability to progress in the company
and his income potential are restricted due to his felony
convictions”; and (6) had “gotten his life back on track so that he
can be a good father to his children and continue to provide for
them.” While the prosecutor stipulated to this motion, the
victim, who was not bound by the stipulation, opposed it.

¶13 After finding that all applicable statutory requirements
for the requested reduction had been met, the court turned to
whether it “would be ‘in the interest of justice’” to reduce
Brotherson’s convictions under section 76-3-402(3)(a)(v). In
conducting this analysis, the court noted that “[a] detailed
description of [the] investigation results was included in an
affidavit of probable cause filed to support [Brotherson’s]
warrantless arrest” and that “[t]he alleged conduct was also
described in a probable cause statement included within the
information.” The court, however, “largely ignored” these
sources in its analysis “because the State bargained away the

20190262-CA 7 2020 UT App 97
 State v. Brotherson

ability it had to have those allegations scrutinized during [a]
preliminary hearing or trial.” The court then recited the facts
from the plea agreement, the factual basis recited by the State
during the plea colloquy, the written statement Brotherson had
provided for his PSIR, and a victim impact statement in which
the victim characterized Brotherson’s actions as rape. The court
then reiterated the following facts that it had initially noted at
sentencing:

The psycho-sexual evaluation is no help, at all. The
results are inconclusive and the detail report is
inconsistent with the reported and admitted facts
of the case, minimizing [Brotherson’s] guilt by
suggesting that he had a previous relationship with
the victim, that she met him at the door partially
dressed and voluntarily engaged in sexual conduct
in the bed. The facts are that they had no
relationship, he came in through a side door
uninvited, held the victim by the throat, and
clearly engaged in unwanted and nonconsensual
sexual conduct.

¶14 The court then proceeded to conduct its “interest
of justice” analysis, focusing on (1) the seriousness of the
conduct, (2) the magnitude of the crime, and (3) Brotherson’s
culpability.

¶15 As to its first consideration, the court found that

the facts that [Brotherson] has admitted describe an
intrusive, harmful intent that significantly
exceeded the purposes required for proof of
burglary of a dwelling. He negotiated for and
received a reduction in the seriousness of the
offense at the time he entered his plea. He served
[eight] months in jail instead of one to fifteen years
in prison. His course of treatment, mandated
because of the facts which indicated that

20190262-CA 8 2020 UT App 97
 State v. Brotherson

engagement in unwanted sexual behavior was at
the core of this crime, was shortened and clearly
influenced by his continued insistence that the facts
were other than what he admitted at the time of his
guilty plea. It is the conclusion of this Court that
the seriousness of the conduct in this case
significantly exceeded the severity of the crimes he
[pled] to and, moreover, that the penalty which
was imposed was substantially less than would
usually be expected for those crimes.

¶16 Turning to its second consideration, the court found that
the victim credibly described the impact that the incident had on
her and that “[t]he harm to the victim was real, palpable, and
long-lasting—perhaps permanent.” The court further noted that

[b]urglary of a dwelling and an assault under
circumstances where significant injury could occur
might happen with far less ominous activity and
results than occurred here. For example, a
would-be thief/burglar might be encountered in a
home . . . and then respond by flashing or
threatening with a weapon to allow for escape. . . .
But the circumstances here were substantially
beyond and more impactful than that less serious
circumstance. By comparison with the broad
spectrum of home intrusion offenses . . . , it is the
conclusion of the Court that this circumstance
should be characterized as greater than average
magnitude.

¶17 Finally, with respect to its third consideration, the court
stated that although Brotherson “has substantial good will in
his community of family and friends” and “completed the
specific tasks imposed . . . at sentencing in unusually short
order,” it was “concerned that he has minimized the seriousness
of the conduct that led to these convictions.” The court
continued:

20190262-CA 9 2020 UT App 97
 State v. Brotherson

While polygraph results are generally not
admissible, it is the understanding of this Court
that the process seeks to measure the confidence of
the subject in his answers, not the absolute truth of
the responses. This Court is satisfied that
[Brotherson’s] less than serious characterization of
his conduct is consistent with how he views what
happened that night in the victim’s home. But even
allowing that he believes he was not committing as
serious a wrong as he admitted, it is still troubling
that he doesn’t understand the gravity of his
conduct. By his admission, he chose to return
without permission to the home, bedroom, and bed
of the victim in the wee hours of the morning. He
chose to initiate and complete unwanted sexual
activity. He then falsely told the psycho-sexual
evaluator that the victim met him at the door and
invited him into the home and into the conduct.
The culpability here rests with [Brotherson], not
the victim. Based on the record of this case, this
Court is convinced that the culpability of
[Brotherson] in all of this is more significant than
he acknowledges or believes it to be.

¶18 The court then concluded that based on Brotherson’s
admitted conduct, the impact that it had upon the victim, and
the “unwanted sexual advances within the sanctity of the home
of the victim,” “the interests of justice . . . would not be served by
reduction” of Brotherson’s offenses.

¶19 Brotherson appeals.

ISSUES AND STANDARDS OF REVIEW

¶20 Brotherson asserts that the district court erred when it
declined to reduce the level of his convictions. “We review a trial
court’s denial of a motion to reduce the degree of a conviction

20190262-CA 10 2020 UT App 97
 State v. Brotherson

for abuse of discretion.” State v. Salt, 2015 UT App 72, ¶ 9, 347
P.3d 414. “Under this standard, we will affirm the court’s
decision absent a showing that it failed to consider all legally
relevant factors, or if no reasonable person would take the view
it adopted.” State v. Cochran, 2019 UT App 92, ¶ 7, 443 P.3d 1269
(quotation simplified).

¶21 In response to the position the State took in its brief on
appeal, Brotherson argued in his reply brief that the State had
breached the plea agreement by “now revers[ing] its position
and argu[ing] that the court should not have reduced the level of
the offenses as [the State] had agreed.” We invited and received
supplemental briefing on this question. “The enforceability of a
plea agreement presents a question of law” that we consider de
novo. State v. Francis, 2017 UT 49, ¶ 8, 424 P.3d 156.

ANALYSIS

I. 402 Reduction

¶22 Under Utah Code section 76-3-402, a district court “may
enter a judgment of conviction for a lower degree of offense,” or
two degrees if agreed to by the prosecutor, if after successful
completion of probation the court finds the requested reduction
“is in the interest of justice.” 2 Utah Code Ann. § 76-3-402(3)–(4)

2. The district court relied on LeBeau v. State, 2014 UT 39, 337
P.3d 254, when it determined that reductions of Brotherson’s
convictions were not in the interest of justice. See id. ¶ 41. But
“[n]o Utah appellate court has . . . required a LeBeau-style
analysis in deciding a charge-reduction motion brought under
Utah Code section 76-3-402.” State v. Cochran, 2019 UT App 92,
¶ 9 n.4, 443 P.3d 1269. We need not consider the propriety of the
district court’s LeBeau-style analysis in this case, because we can
readily affirm its ruling that the requested reductions were not
in the interest of justice under Utah Code section 76-3-402. We
(continued…)

20190262-CA 11 2020 UT App 97
 State v. Brotherson

(LexisNexis 2017). Such a decision “is one of judgment and
discretion.” State v. Salt, 2015 UT App 72, ¶ 26, 347 P.3d 414.

¶23 Brotherson’s challenge to the district court’s ruling
focuses on a variety of individual facts and statements the court
made that Brotherson argues were incorrect or mischaracterized.
In Brotherson’s view, examples include the court’s consideration
of irrelevant aggravating facts not admitted to by Brotherson
that went beyond the factual basis found in his plea agreement;
the court’s “acting as if Brotherson had been convicted of rape”;
the court’s disregard of the polygraph results and the related
opinion of Brotherson’s psychologist; and the court’s failure to
properly consider Brotherson’s rehabilitative potential. 3
Brotherson further assails the court’s ruling with reference to
other perceived errors, which we do not consider material and
thus decline to address further. As stated, in deferring to the
broad discretion of the district court in such matters, we take
something of a thirty-thousand-foot view, which ultimately
helps us determine if the district court’s conclusion is one that no

(…continued)
can do so given the court’s extensive factual findings and
lengthy analysis, which allow us to determine that under the
statute, even ignoring the court’s reliance on LeBeau, the court
did not exceed its discretion.

3. In his reply brief, Brotherson argues that the State’s counter
arguments as to why the district court’s ruling should be
affirmed “are unpreserved issues” because the State made no
such arguments in the district court. But because we may affirm
a district court’s ruling “if it is sustainable on any legal ground
or theory apparent on the record,” even when it “was not raised
in the lower court, and was not considered or passed on by the
lower court,” Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158
(quotation simplified), the preservation requirements ordinarily
do not apply to appellees on appeal.

20190262-CA 12 2020 UT App 97
 State v. Brotherson

reasonable person would reach. See State v. Cochran, 2019 UT
App 92, ¶ 7, 443 P.3d 1269.

¶24 With that perspective in mind, we address Brotherson’s
main concern, which is his contention that although he pled
guilty to burglary and aggravated assault, the district court acted
throughout its entire 402 reduction ruling “as if [he] had been
convicted of rape,” thereby exceeding its discretion. We disagree
with Brotherson’s characterization of the district court’s ruling.
The court’s actual analysis does not treat him as having
committed rape, even though it referenced the allegations set
forth in the probable cause statement of the information and
recited the sexual abuse allegations made by the State at the plea
colloquy and those included in the victim’s statement. In its
ruling, the court provided facts from the probable cause
statement as background and did not rely on them in reaching
its decision. Rather, the court explicitly stated that it
“largely ignored” “[t]he alleged conduct . . . described in [the]
probable cause statement included within the information” that
characterized Brotherson’s actions as rape. And although the
court recited the statements the State made at the plea colloquy
and the victim’s statement that included those same rape
allegations, these were not central to the court’s analysis. 4

4. Ultimately, an “interest of justice” analysis calls for a wide
examination of the facts and the individual, looking at the big
picture. And insofar as the district court may have gleaned some
information from the record suggesting that Brotherson’s
conduct was more serious than he pled to, nothing in
adjudicating the interest of justice requires the court to turn a
blind eye on reliable evidence in the record that describes the
defendant’s conduct. Had the court solely or even primarily
relied on these two sources, which were not part of the plea
agreement, we likely would have reservations about the court’s
decision. But the court did not do so, and it was not an abuse of
discretion for it to take into account reliable statements from the
(continued…)

20190262-CA 13 2020 UT App 97
 State v. Brotherson

¶25 For example, the court stated, with our emphasis, that
“the facts . . . indicated that engagement in unwanted sexual
behavior[5] was at the core of this crime.” And the court found that
the magnitude of the crime was great because there was an
“unwanted intrusion, not just into the home but into the
bedroom of the victim, coupled with an assault”—a
characterization entirely consistent with the crimes of burglary
and aggravated assault to which Brotherson pled guilty. When
analyzing Brotherson’s culpability, the court disregarded the
results of his polygraph exam not because the results suggested
that he did not force himself on the victim, but because of
Brotherson’s “less than serious characterization of his conduct”
during the night in question. Notwithstanding his polygraph

(…continued)
State, especially because there is no indication that Brotherson
objected at the plea colloquy to those statements or to those from
the victim. Significantly, the court did not unduly rely on these
two sources in making its decision.

5. Not all sexual crimes amount to rape, as there are many other
sexual crimes that are considered less serious in nature and are
punished accordingly. Compare Utah Code Ann. § 76-5-402(3)
(LexisNexis 2017) (providing that rape is a first-degree felony),
with id. § 76-9-702.1(3) (Supp. 2019) (providing that sexual
battery is a class A misdemeanor); id. § 76-5-404(2) (providing
that forcible sexual abuse may be punished as a second-degree
felony if no serious bodily injury was done to the victim); id.
§ 76-5-412(2), (4) (providing that custodial sexual misconduct
may be punished as anything from a class A misdemeanor up to
a second-degree felony); and id. § 76-5-401(3) (stating that
unlawful sexual activity with a minor may be punished as either
a class A or B misdemeanor, or a third-degree felony, depending
on the circumstances). Thus, by referencing unwanted sexual
behavior, the court was not necessarily equating Brotherson’s
actions to rape.

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 State v. Brotherson

exam narrative, “[b]y his own admission, [Brotherson] chose to
return without permission to the home, bedroom, and bed of the
victim in the wee hours of the morning . . . to initiate and
complete unwanted sexual activity.” The court also disregarded
the psychosexual evaluation, again not because of its beliefs that
Brotherson raped the victim and that the evaluator was wrong,
but because Brotherson “falsely told the . . . evaluator that the
victim met him at the door and invited him into the home and
into the conduct,” which was not what he admitted to in his plea
statement. The court’s analysis did not hinge on the rape
allegations but on the conduct Brotherson admitted to and his
attempts to minimize that conduct. It is therefore
understandable that the court would be unfavorably impressed
by what it perceived as Brotherson’s attempts to shift the blame
to the victim.

¶26 Accordingly, the court’s analysis focused on the
“unwanted” entry into the victim’s home and the improper
sexual behavior of Brotherson—not on an unwarranted
conclusion that he raped the victim. Brotherson has not shown
that the court abused its discretion in directing its focus that
way. On the contrary, the court correctly summarized and
recited the key facts from the evidence properly before it, the
majority of which came from the admitted factual basis in the
plea agreement.

¶27 The court also took into account facts favorable to
Brotherson. It noted that it had received various letters from
current and former employers and friends, all of whom attested
to Brotherson’s good character, and stated that Brotherson “has
substantial good will in his community of family and friends.”
The court additionally found that Brotherson “completed the
specific tasks imposed by this Court at sentencing in unusually
short order” and that “[h]e is able to be employed and appears
to be a good parent, spouse, and friend to those around him.”
But the court found that these factors did not outweigh its
“concern[] that he has minimized the seriousness of the conduct
that led to [his] convictions.”

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 State v. Brotherson

¶28 Ultimately, the district court analyzed the factors in favor
of Brotherson and balanced them against the severity of the
crime (unwanted sexual behavior that came after Brotherson
intruded upon the sanctity of the victim’s home in the middle of
the night), the impact on the victim, Brotherson’s periodic
attempts to minimize his behavior, and his failure to take
responsibility for it. Having done so, the court concluded that it
was not in the interest of justice to reduce Brotherson’s
convictions. Brotherson does not point to any additional factor
the district court should have considered but did not. Instead,
Brotherson takes issue with how the district court viewed the
circumstances of this case. But this decision, “[b]y its nature, . . .
is one of judgment and discretion.” See State v. Salt, 2015 UT App
72, ¶ 26, 347 P.3d 414. Given the court’s sound and thorough
analysis, we cannot overturn its ruling on the rationale that “no
reasonable person would [have] take[n] the view it adopted.” 6

6. We note that in reviewing a district court’s ruling for an abuse
of discretion, our deference is substantial, and the mere fact that
one or more of us might have ruled the other way had we been
in the district court’s position is largely irrelevant. See Gunn Hill
Dairy Props., LLC v. Los Angeles Dep't of Water & Power, 2015 UT
App 261, ¶¶ 21–24, 361 P.3d 703 (Orme, J., and Toomey, J.,
concurring) (stating that “standards of review really do matter”
and appellate courts will affirm a district court’s discretionary
ruling so long as it considered “all the relevant factors” and
“explained the basis for [its] decision”). The fact that the district
court was able to have the defendant before it, judge his
demeanor, see his body language, and evaluate his level of
sincerity gives the district court a substantial advantage over an
appellate court in making an “interest of justice” determination.
In this case, it might well have been expected that the court
would grant Brotherson’s requested reductions, given his
satisfactory compliance with the terms of his probation and the
State’s stipulation, and had the court denied the request without
any explanation, we very well may have reversed. But where the
court was able to observe Brotherson in person on multiple
(continued…)

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 State v. Brotherson

See State v. Cochran, 2019 UT App 92, ¶ 7, 443 P.3d 1269
(quotation simplified). See also id. ¶ 11 (“A court that considers
all the circumstances before making a [402 reduction] decision is
usually found to have acted within its discretion.”).

II. Breach of the Plea Agreement

¶29 Brotherson also asserts that “[t]he State . . . had an
obligation to fulfill its promise [under the plea agreement], not
just at the level of the trial court, but throughout the
post-conviction process, specifically, this appeal.” As a result,
Brotherson contends that “[t]he State should be estopped from
violating the agreement that both the State and [he] agreed to”
and urges us to “strike the State’s brief, or, in any event,
disregard its arguments” and remand to “the sentencing court to
enforce the bargain made.”

¶30 “When 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.” State v. Lindsey, 2014 UT App 288, ¶ 16, 340 P.3d 176
(quotation simplified). “If the prosecutor breaches the
agreement, then the court must afford the defendant a remedy,
either by permitting the withdrawal of the plea or requiring the
State to perform.” Id. “We apply contract principles when
interpreting plea agreements,” Hattrich v. State, 2019 UT App
142, ¶ 18, 449 P.3d 929, meaning we “generally look first to the
plain language” of the plea agreement, State v. Davis, 2011 UT
App 74, ¶ 3 n.2, 272 P.3d 745. “If . . . after considering each
contract provision in relation to all of the others, with a view
toward giving effect to all and ignoring none, we determine that

(…continued)
occasions, although he never testified before the court, and
undertook a thorough and careful written analysis explaining in
detail its decision to decline Brotherson’s 402 reduction request,
we cannot conclude that the court exceeded its discretion.

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 State v. Brotherson

the language of the contract is unambiguous, we may interpret
its terms based on the plain language” and need not go further.
State v. Terrazas, 2014 UT App 229, ¶ 27, 336 P.3d 594 (quotation
simplified). We determine that the language of the plea
agreement in this case is indeed unambiguous, that the State
fully complied with the agreement, and that it did not violate
that agreement by opposing Brotherson’s appeal.

¶31 In the plea agreement, the prosecutor agreed to
recommend probation and to stipulate to a two-level reduction
on the burglary conviction, and a one-level reduction on the
aggravated assault conviction, upon Brotherson’s successful
completion of probation. This would have resulted in the
reduction of each felony count to a class A misdemeanor. This
language “is straightforward and explicit” and did not prohibit
the State from opposing Brotherson’s appeal if, the prosecutor
having done as agreed, the court declined to reduce the
convictions. See Hattrich, 2019 UT App 142, ¶ 19. The agreement
the prosecutor entered into with Brotherson bound the State to
stipulate to the 402 reductions upon Brotherson’s successful
completion of probation, and the State did exactly as required in
accordance with the “clear and unambiguous language of the
agreement.” See id.

¶32 The fact that the court rejected that stipulation and came
to a contrary conclusion has no bearing on the State’s
performance of the contract. See State v. Stringham, 2001 UT App
13, ¶ 14, 17 P.3d 1153 (“Even where the government and the
defendant reach a plea agreement, the court is not required to
accept it.”) (quotation simplified). Nothing in the plea agreement
limited the State’s ability to take an inconsistent position on
appeal and, in that setting, to defend the exercise of the district
court’s discretion by arguing in support of the court’s
interest-of-justice assessment. Atypical though it might be, if
Brotherson and the State had included in the plea agreement a
provision that the State would not oppose any appeal he would
take in the event the district court did not grant the stipulated
402 reductions, then Brotherson would have a compelling

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 State v. Brotherson

argument. But because no such provision exists “and the State
kept [its] promise” in all respects, see State v. Monzon, 2016 UT
App 1, ¶ 16, 365 P.3d 1234, we decline to grant Brotherson the
relief he requests.

CONCLUSION

¶33 The district court did not exceed its discretion in declining
to reduce Brotherson’s convictions. And the State did not violate
the plea agreement by defending the district court’s ruling on
appeal.

¶34 Affirmed.

20190262-CA 19 2020 UT App 97