State v. James

2023 UT App 80

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v
FRANKLIN JAMES,
Appellant.

Opinion
No. 20210476-CA
Filed August 3, 2023

Third District Court, Salt Lake Department
The Honorable Randall N. Skanchy
No. 201914105

Erick Grange, Attorney for Appellant
Sean D. Reyes and Emily Sopp,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES RYAN M. HARRIS and JOHN D. LUTHY concurred.

ORME, Judge:

¶1 During a consolidated change of plea hearing, Franklin
James pled guilty in two criminal cases. Several months later, the
district court sentenced James in both cases but did not invite
James to speak on his own behalf prior to imposing sentence.
James argues on appeal that the court plainly erred because it did
not affirmatively provide him the opportunity to personally
address the court before it pronounced sentence. We agree with
James that the court violated his right to allocution. We therefore
vacate James’s sentence and remand for resentencing.
 State v. James

BACKGROUND

¶2 In 2020, the State charged James, in two separate cases,
with various drug- and weapons-related felonies and associated
misdemeanors. At a consolidated change of plea hearing, the
parties presented the district court with a “proposed resolution”
of both cases. Under the proposed plea agreement, James agreed
to plead guilty to two second-degree-felony drug distribution
charges and one third-degree-felony weapons charge, and the
State agreed to dismiss all remaining counts. The court approved
the proposed agreement and, after a plea colloquy, accepted
James’s guilty pleas to the three counts.

¶3 Immediately thereafter, defense counsel stated that the
parties had “a joint recommendation for sentencing” and that
they desired to immediately “move forward with that.” Defense
counsel recited that the parties were recommending that James’s
“prison sentences be run concurrent to each other and
suspended” and “that he be placed on probation for a period of
36 months.” Defense counsel further reported that James “wrote
a couple of letters to the Court . . . that were very insightful about
his desire to participate in treatment” and that “[i]n his previous
matters he’s had, he’s been sent to prison and he hasn’t ever had
the opportunity to participate in a residential treatment
program.”

¶4 In response, the court initially noted, “I think I’m going to
need a presentence report.” The court explained that “one case
has large amounts of—a brick of methamphetamine and guns and
money,” while the other case has “a large amount of everything,”
and “that’s not the sort of person I typically send to a therapeutic
community without some . . . compelling reason.” Thus, the court
chose not to sentence James at that time, instead requesting that
Adult Probation and Parole (AP&P) prepare a presentence report,
and the court set a date for a sentencing hearing.

¶5 The presentence report contained a recommendation in
line with the parties’ joint recommendation: that James “be

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 State v. James

granted the privilege [of] probation” rather than be sent to prison.
And at the subsequent sentencing hearing, defense counsel
reminded the court of AP&P’s recommendation and the joint
sentencing recommendation, and he referred to the letters that
James had written. Defense counsel then summarized that James
“takes accountability for his actions and how his behavior has
displayed a disregard for the life of others, but also that he desires
to change.” At no point during this exchange did the court invite
James to address the court, and at no point did James actually
address the court. Finally, the prosecutor endorsed the joint
sentencing recommendation and stated that allowing James the
opportunity for probation and treatment was “an investment
worth taking.”

¶6 The court then imposed sentence. It rejected the parties’
joint recommendation and the recommendation of AP&P and
instead imposed concurrent prison sentences, without affording
James the opportunity for probation. This appeal followed.

ISSUE AND STANDARD OF REVIEW

¶7 James argues that “[t]he district court violated [his] right to
allocution when it sentenced him without permitting [him] to
personally speak at sentencing.” 1 He concedes that “[t]his issue
was not preserved” but contends that he should be entitled to
raise it for the first time on appeal because a court’s denial of a
defendant’s right to allocution “can be reached under . . . plain
error.” It is well-settled that “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

1. James also contends that the court “abused its discretion by
failing to adequately consider all relevant factors and imposing a
prison sentence against the recommendations of all parties,
AP&P, and the Utah Sentencing Guidelines.” Because we resolve
this case in James’s favor on other grounds, we need not address
this issue.

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 State v. James

harmful.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (quotation
simplified).

ANALYSIS

¶8 Generally, “claims not raised before the trial court may not
be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d
346. Requiring that a party preserve its issue for appeal “serves
two important policies.” Id. “First, in the interest of orderly
procedure, the trial court ought to be given an opportunity to
address a claimed error and, if appropriate, correct it.” Id.
(quotation simplified). “Second, a defendant should not be
permitted to forego making an objection with the strategy of
enhancing the defendant’s chances of acquittal and then, if that
strategy fails, claiming on appeal that the Court should reverse.”
Id. (quotation simplified). “To serve these policies, we have held
that the preservation rule applies to every claim, including
constitutional questions, unless a defendant can demonstrate that
exceptional circumstances exist or plain error occurred.” Id.
(quotation simplified). James contends that the court plainly erred
because the court did not give him an opportunity to speak on his
own behalf prior to sentencing.

¶9 With the three-part test for plain error in mind, James
argues that (1) “the district court did not allow [him] an
opportunity to personally speak at sentencing,” (2) “the error was
obvious because the right to allocution was well settled at the time
of the hearing,” and (3) “this Court should reverse without
requiring a showing of prejudice.” We address each part of
James’s argument in turn.

I. An Error Existed

¶10 We must first decide whether James has shown that the
court erred. In doing so, we take this opportunity to briefly review
our jurisprudence concerning a defendant’s right to allocution

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and whether trial courts have an affirmative duty to provide such
an opportunity to criminal defendants.

¶11 “Before imposing sentence the court must afford the
defendant an opportunity to make a statement and to present any
information in mitigation of punishment, or to show any legal
cause why sentence should not be imposed.” Utah R. Crim. P.
22(a) (emphasis added). Thus, the right to allocution provides a
defendant the opportunity “to make a statement in mitigation or
explanation after conviction but before sentencing.” State v.
Wanosik, 2003 UT 46, ¶ 18, 79 P.3d 937. It “is an inseparable part
of the right to be present,” State v. Anderson, 929 P.2d 1107, 1111
(Utah 1996), and “is both a constitutional and statutory right,”
State v. Udy, 2012 UT App 244, ¶ 25, 286 P.3d 345. See Utah Const.
art. I, § 12.

¶12 In Wanosik, our Supreme Court clarified a criminal
defendant’s absolute right to allocution prior to sentencing. There,
when the defendant failed to appear for his scheduled sentencing,
the trial court denied defense counsel’s request for extra time to
“locate the absent defendant” and “impose[d] the statutory
maximum on each count, rather than the period of incarceration
recommended” in the pre-sentence report. Wanosik, 2003 UT 46,
¶¶ 4–6. The defendant in Wanosik successfully appealed the trial
court’s sentence on multiple grounds, including, as is relevant
here, that the court “violated Utah Rule of Criminal Procedure
22(a) by imposing sentence without affording . . . defense counsel
an opportunity to address information relevant to sentencing.” 2
Id. ¶¶ 8, 23. Our Supreme Court decided, based on “both the plain
language of rule 22 and the approach of other jurisdictions with
similar rules, that the ‘shall afford’ language requires trial courts
to affirmatively provide the defense an opportunity to address the
court” and that “both the defendant and counsel shall be

2. The Court’s initial focus on defense counsel rather than the
defendant is explained by the fact that the defendant in Wanosik
had absconded and was sentenced in absentia. See State v.
Wanosik, 2003 UT 46, ¶ 5, 79 P.3d 937.

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 State v. James

affirmatively afforded an opportunity to make a statement,
present any information in mitigation of punishment, or show any
legal cause why sentence should not be imposed.” 3 Id. ¶ 23. The
Court concluded that rule 22(a) “encompasses both the defendant
and his counsel, and trial courts have an affirmative duty to provide
both an opportunity to address the court and present information
relevant to sentencing before imposing sentence.” Id. ¶ 25
(emphasis added).

¶13 Citing Wanosik, James argues that the district court plainly
erred because it did not affirmatively provide him the
opportunity to personally address the court prior to sentencing.
The State does not suggest that the court provided him that
opportunity. Instead, the State contends that the court did not
plainly err and advocates for the application of our decision in
State v. Tingey, 2014 UT App 228, 336 P.3d 608, cert. denied, 343 P.3d
708 (Utah 2015). As the State explains, the “‘defense’ refers to both
the defendant and defense counsel who are treated as one unit.”
The State also contends that James’s letters to the court satisfied
his right to allocution.

¶14 In Tingey, a criminal defendant argued that the trial court
plainly erred by violating his right to allocution prior to imposing
sentence. See id. ¶ 7. There, “after defense counsel explained to the
court his understanding of the nature of the plea agreement . . . ,
the court asked defense counsel, ‘All right. Anything further?’ to
which counsel responded, ‘Not at this time, your Honor,’” and the
court proceeded to announce sentence. Id. ¶ 10 (quotation
simplified). We held that “[t]his exchange constitutes a simple
verbal invitation or question extended by the court, followed by a
response from defense counsel, who was authorized to speak on
Defendant’s behalf.” Id. We further noted that “this invitation
came only after the court had asked for and received comment

3. In 2019, our Supreme Court amended rule 22(a) to change the
phrasing “the court shall afford” to “the court must afford.”
Compare Utah R. Crim. P. 22(a) (2019), with id. (2018). If anything,
“must” is more indicative of a mandatory directive than “shall.”

20210476-CA 6 2023 UT App 80
 State v. James

from the State and, more importantly, asked defense counsel if he
had ‘anything further’ to add, to which counsel responded, ‘Not
at this time, your Honor.’” Id. (quotation simplified). We decided
that “given the context of the exchange between the court, defense
counsel, and the State, the court’s invitation for ‘any final words’
signaled to Defendant that he had an opportunity to address the
court” and that the defendant’s apparent reliance “on defense
counsel to respond on his behalf does not invalidate the court’s
invitation to Defendant to address the court.” Id. We held that the
trial court’s “simple verbal invitation” was a sufficient inquiry
and did not amount to plain error because “the trial court fulfilled
its obligation to afford Defendant his right to allocution.” Id.

¶15 This case is much more like Wanosik than Tingey. In this
case, there was no exchange between the defense and the court
that included a straightforward invitation to the defense to speak,
which James could reasonably have understood extended to him
personally as well as to his attorney. At the sentencing hearing,
defense counsel presented the court with the parties’ joint
sentencing recommendation. Following defense counsel’s
explanation of the recommendation, the State briefly addressed
the court and “join[ed] in the recommendation,” offering its
endorsement that the recommended sentence “was an investment
worth taking.” Following the brief comment by the State, the court
announced James’s sentence, which was at odds with the joint
sentencing recommendation. Unlike in Tingey, the court did not
inquire of the defense if there was anything further it wished to
add, nor did the court extend a straightforward invitation for the
defense to address the court, which James could have reasonably
understood was an invitation to him as well as to his attorney. For
those reasons, Tingey does not support an affirmance in this case. 4

4. The State also cites our decision in State v. Graziano, 2014 UT
App 186, 333 P.3d 366, cert. denied, 343 P.3d 708 (Utah 2015), in
which “the court explicitly invited the defense to allocute, saying,
‘All right. Comments from the defendant or defense counsel?’” Id.
(continued…)

20210476-CA 7 2023 UT App 80
 State v. James

¶16 Next, the State argues that James was not denied his right
to allocution “because the trial court was fully apprised of
mitigating factors through letters [James] wrote to the court.”
While letters are a practical and useful method of communication,
they are not typically an adequate means of exercising one’s right
to allocution. The in-person dialogue between a defendant and
the sentencing judge allows the judge to gauge the defendant’s
sincerity, allows the court to ask for clarification of points
expressed by the defendant, and permits the defendant to consult
with the defendant’s attorney in real time while addressing the
judge. We echo the view expressed by the Seventh Circuit Court
of Appeals that “the right to allocute calls for the court to address
the defendant personally, and, after the other information
relevant to sentencing has been presented, to permit the
defendant to address the court.” United States v. Scott, 192 F. App’x
552, 555 n.1 (7th Cir. 2006) (quotation simplified), judgment vacated
and remanded on other grounds, 552 U.S. 1090 (2008). See also
Wanosik, 2003 UT 46, ¶ 18 (“[T]he voice of the individual
defendant is most appropriate in the presentation of a personal
plea.”).

¶17 James’s letters to the court were written prior to his change
of plea hearing and therefore before he changed his pleas and was
convicted. While there was a proposed joint sentencing
recommendation at James’s change of plea hearing, the court
opted not to sentence him at that time but rather to defer
sentencing until after it received a presentence report. So, by the
time of sentencing, the letters were somewhat outdated. Had the
court inquired of James regarding the contents of the letters and
had James responded that the views expressed in his letters had
not changed and that he had nothing to add, the State’s argument
would be more persuasive. But that did not happen here. The
State simply has not shown that James’s letters to the court satisfy
the demands of the right to allocution, the essence of which is to

¶ 6 (quotation simplified). Obviously, Graziano does not support
the State’s position here.

20210476-CA 8 2023 UT App 80
 State v. James

give the defendant the opportunity to address the court
personally.

¶18 As stated in rule 22(a), “the court must afford the
defendant an opportunity to make a statement and to present any
information in mitigation of punishment, or to show any legal
cause why sentence should not be imposed.” As interpreted by
our Supreme Court, rule 22(a) requires that the trial court
“affirmatively provide the defense an opportunity to address the
court” and that “both the defendant and counsel shall be
affirmatively afforded an opportunity to make a statement,
present any information in mitigation of punishment, or show any
legal cause why sentence should not be imposed.” Wanosik, 2003
UT 46, ¶ 23. Under this standard, the trial court erred because it
did not explicitly provide James the opportunity to speak on his
own behalf prior to announcing sentence.

II. The Error Was Obvious

¶19 We must next determine whether the error was obvious.
“To establish that the error should have been obvious to the trial
court, the appellant must show that the law governing the error
was clear at the time the alleged error was made.” Thomas v.
Mattena, 2017 UT App 81, ¶ 13, 397 P.3d 856 (quotation
simplified). As previously noted, the trial court may not assume a
passive role and expect defendants to speak up if they wish to
avail themselves of their right to address the court. Instead, the
trial court must make an affirmative inquiry of the defense and
provide an explicit opportunity for the defense to address the
court whereby “both the defendant and counsel shall be
affirmatively afforded an opportunity to make a statement,
present any information in mitigation of punishment, or show any
legal cause why sentence should not be imposed.” State v.
Wanosik, 2003 UT 46, ¶ 23, 79 P.3d 937.

¶20 James argues that “the error was obvious because the right
to allocution was well settled at the time of the hearing.” As
explained in Part I, James is correct. The right to allocution is

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clearly stated in rule 22(a) of the Utah Rules of Criminal Procedure
and firmly established in our jurisprudence. Simply put, the trial
court did not affirmatively provide James the “opportunity to
make a statement, present any information in mitigation of
punishment, or show any legal cause why sentence should not be
imposed.” Id. The cases we refer to in Part I, among others, serve
to enshrine the right to allocution in our jurisprudence. The
court’s error in not according James the right to allocution was an
error that should have been obvious to the court.

III. The Error Was Harmful

¶21 Having determined in Parts I and II that the trial court
erred and that the error was obvious, we must now determine
whether James was harmed as a result of the court’s error.

¶22 James argues that when defendants demonstrate that their
right to allocution has been violated, they have necessarily
demonstrated harm and “this Court should reverse without
requiring a showing of prejudice.” James urges our adoption of
the Tenth Circuit Court of Appeals’ approach in United States v.
Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017) (en banc). 5 We
find the approach compelling, and we adopt it.

5. Under federal law, “to demonstrate plain error, a litigant must
show: (1) error, (2) that is plain, which (3) affects substantial
rights, and which (4) seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v.
Bustamante-Conchas, 850 F.3d 1130, 1137 (10th Cir. 2017)
(quotation simplified). Under Utah law, as previously explained,
“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, i.e., absent the error, there is a
reasonable likelihood of a more favorable outcome for the
appellant, or phrased differently, our confidence in the verdict is
undermined.” State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346
(quotation simplified).

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 State v. James

¶23 Bustamante-Conchas “involve[d] a clear failure of the trial
court to ask the defendant if he had anything to say on his behalf
before imposing sentence—a failure to personally address the
defendant and offer an opportunity to allocute.” Id. at 1133. The
appellate court noted,

Granting defendants an opportunity to personally
address the court advances several ends. First, it
serves an informational function by allowing
defendants to present mitigating circumstances. . . .
Second, allocution permits the defendant to present
personal characteristics to enable the sentencing
court to craft an individualized sentence. . . . Third,
requiring a sentencing judge to personally engage
with a defendant enhances the appearance of
fairness in the criminal justice system. . . . Allocution
thus has value in terms of maximizing the perceived
equity in the process.

Id. at 1136 (quotation simplified).

¶24 In Bustamante-Conchas, the court noted its prior view “that
a complete denial of allocution at a defendant’s initial sentencing
hearing is per se or presumptively prejudicial.” Id. at 1133. While
standing by its prior view as a general matter, the court clarified
“that in a rare number of cases, such errors may not result in
prejudice.” Id. “In particular,” the court continued, “defendants
who receive the minimum permissible sentence will be unable to
demonstrate that an allocution error affected their substantial
rights.” Id. This limited exception to the usual rule is entirely
logical. If a defendant received the lightest possible sentence,
deprivation of his right to allocution was harmless because it
would have been impossible for the defendant to have talked the
court into anything less. But “a defendant who shows he has been
denied the right to allocute has met his burden of demonstrating
prejudice absent some extraordinary circumstance,” id. at 1139,
such as the impossibility of the court imposing a lighter sentence
had it heard from the defendant as it should have. The court

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 State v. James

further noted that in the absence of such a circumstance,
“defendants satisfy this burden if a complete denial of allocution
occurs at their initial sentencing hearing” and that “[t]his rule
applies regardless of whether the defendant has proffered a
proposed allocution statement on appeal.” Id. at 1134.

¶25 Here, the denial of James’s right to allocution does not
come within the “extraordinary circumstance” exception to the
general rule. James did not receive the lightest possible sentence.
On the contrary, the district court imposed concurrent prison
terms. And it did so in the face of an agreement between the
defense and the prosecution that James should be placed on
probabtion and receive treatment, which disposition was also
recommended by AP&P in its presentence report. Thus, this is one
of the “ordinary cases” where “defendants meet this burden [of
demonstrating prejudice] simply by showing that they were
denied the right to meaningfully address the court.” Id. at 1133.

¶26 Quoting State v. Chacon, 962 P.2d 48 (Utah 1998), the State
responds to James’s argument by contending that prejudice
cannot be based on mere speculation but must be a “demonstrable
reality.” See id. at 50 (quotation simplified). While we agree with
that premise, an advantage of the Bustamante-Conchas approach is
that it forecloses speculation regarding what a defendant might
have said and further speculation regarding any possible effect
the defendant’s words would have had on the court’s sentencing
decision. Cf. United States v. Luepke, 495 F.3d 443, 451 (7th Cir.
2007) (noting that a presumption of prejudice “avoids our
speculation about what the defendant might have said had the
right been properly afforded him”).

¶27 Because the circumstances of this case do not come within
the “extraordinary circumstances” exception to the general rule of
“per se or presumptive[] prejudic[e],” Bustamante-Conchas, 850
F.3d at 1133, we conclude that James was necessarily harmed by
the court’s error in not offering him the opportunity to address
the court at sentencing.

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 State v. James

CONCLUSION

¶28 “A defendant’s right to allocution at sentencing is one of
the oldest and most important principles in our legal system.”
United States v. Jimenez, 61 F.4th 1281, 1284 (10th Cir. 2023). James
has established that the sentencing court plainly erred in denying
him his right to allocution. Accordingly, we vacate James’s
sentences and remand for such further proceedings as may now
be appropriate, consistent with this opinion.

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