2015 UT App 290
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
CAMERON SILVEIRA,
Appellant.
Memorandum Decision
No. 20141107-CA
Filed December 3, 2015
Third District Court, Tooele Department
The Honorable Robert W. Adkins
No. 101300430
Linda M. Jones and Julie J. Nelson, Attorneys
for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES JOHN A. PEARCE and KATE A. TOOMEY
concurred.
ORME, Judge:
¶1 Appellant Cameron Silveira (Defendant) pled guilty to
attempted manslaughter and possession or use of a firearm by a
restricted person, each a third degree felony, and obstruction of
justice, a second degree felony. See Utah Code Ann. §§ 76-5-205,
76-4-102(1)(e), 76-10-503, 76-8-306(3)(a) (LexisNexis 2012 & Supp.
2014). As summarized by the district court, each count included
a dangerous-weapon enhancement under the plea agreement.
See id. § 76-3-203.8(2) (LexisNexis 2012). He now appeals his
sentence for those crimes. We affirm.
State v. Silveira
¶2 In August 2010, Defendant shot his brother in the head.
The brother survived. Defendant was initially charged with one
count of attempted murder, with a dangerous-weapon
enhancement; two counts of obstruction of justice; two counts of
witness tampering; and one count of possession or use of a
firearm by a restricted person. At Defendant’s preliminary
hearing, the brother refused to testify. The district court had the
brother held as a material witness and continued the preliminary
hearing. Over the course of the next four months, the
preliminary hearing was continued several more times, and the
brother, who continued to refuse to testify, remained in jail as a
material witness.
¶3 In April 2011, Defendant and the State reached a plea
agreement under which Defendant pled guilty to attempted
manslaughter, obstruction of justice, and possession or use of a
firearm by a restricted person, all with dangerous-weapon
enhancements. The State, in return, agreed to seek dismissal of
the remaining charges, recommend credit for time served, and
recommend a particular prison sentence. The district court
accepted the pleas, finding that they were made freely and
voluntarily and that Defendant understood the ramifications the
pleas could have on sentencing. The court then turned its
attention to sentencing, explaining to Defendant that he had a
right to be sentenced in not less than two days and not more
than forty-five days. See Utah R. Crim. P. 22(a). Defendant
waived the time for sentencing, preferring to be sentenced
forthwith, and the district court imposed the sentence that the
State had agreed to recommend and did, in fact, recommend.
¶4 Before announcing sentence, the district court specifically
explained to Defendant that if he waived the time for sentencing,
he would “never have an opportunity to file” “a motion to
attempt to withdraw *his+ guilty pleas in this case.” Defendant’s
counsel at the time further explained to him, “That just means
that you can’t take this back, if he sentences you now.”
Defendant’s response was, “Then we have nothing to worry
about, then transport me.” Rather than accept Defendant’s
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State v. Silveira
invitation to immediately transport him to prison, the district
court took the time to “hear from counsel and the defendant.” At
that point, defense counsel explained the circumstances
surrounding the charged conduct: Defendant and his brother
were in a heated argument, and Defendant had no intention of
hurting his brother. He claimed that Defendant accepted
responsibility for his actions and felt remorse for his conduct.
These points were driven home when Defendant directly
addressed the court, reiterating his remorse and lack of intent in
hurting his brother.
¶5 Despite the opportunity Defendant had to address the
court and explain any potentially mitigating factors, he now
appeals, arguing that he was not advised “that he had the right
to have his brother (the victim) testify at the sentencing hearing.”
He also argues, with the help of new counsel on appeal, that his
prior counsel was ineffective for failing to explain Defendant’s
right to present mitigating evidence at sentencing and for failing
to affirmatively request that Defendant be afforded his right to
do so. Defendant acknowledges that neither of these alleged
errors was preserved for appeal, and he therefore seeks our
review under the plain-error and ineffective-assistance-of-
counsel doctrines, as well as under rule 22 of the Utah Rules of
Criminal Procedure. See State v. Weaver, 2005 UT 49, ¶ 18, 122
P.3d 566; Utah R. Crim. P. 22(e).
¶6 We first consider whether the district court plainly erred
by failing to explicitly inform Defendant that he had a right to
have his brother testify at sentencing. To succeed on a claim of
plain error,
the appellant must show the following: (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 [outcome
of the proceeding] is undermined.
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State v. Silveira
State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993). In Defendant’s
view, an error occurred when the district court accepted
Defendant’s waiver of the time for sentencing without informing
Defendant “that he had the right to have witnesses speak in
mitigation of his sentence.”
¶7 Defendant clearly had a right to allocution. See Utah R.
Crim. P. 22(a); State v. Wanosik, 2003 UT 46, ¶ 23, 79 P.3d 937
(indicating that the sentencing court must “affirmatively provide
the defense an opportunity to address the court and present
reasonably reliable and relevant information in the mitigation of
a sentence” and that “it is the court which is responsible for
raising the matter”). But what is notably missing from
Defendant’s brief is reference to any statute, case, or rule
suggesting that the conduct of the district court did not satisfy
the allocution requirement. At sentencing, the district court
indicated that it would hear from Defendant and his counsel,
and then it did so. Considering that even “*a+ simple verbal
invitation or question will suffice” to meet the court’s burden of
affirmatively providing Defendant the right to allocute, see
Wanosik, 2003 UT 46, ¶ 23, the district court’s in-court invitation
to hear from Defendant and his counsel was sufficient, especially
where both then addressed the court.
¶8 As to Defendant’s more particular challenge, that the
district court should have informed him of his rights “before
obtaining the rule 22(a) waiver,” we are unconvinced. As
Defendant himself recognizes, “Importantly, the court must
ensure that the defendant is afforded these rights at the time of
sentencing.” (Defendant’s emphasis omitted; our emphasis
added.) Indeed, we have found no authority that requires a
sentencing court, before accepting a waiver of the time for
sentencing, to advise a defendant of his right to allocution or to
present mitigating evidence from third parties at the time of
sentencing. Thus, because the district court invited and accepted
statements from both Defendant and his counsel, and because
there is no requirement that a sentencing court advise a
defendant of the right to allocution before a sentencing hearing,
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State v. Silveira
there was no error. Because there was no error, we need not
consider the other components of plain-error review. See Dunn,
850 P.2d at 1209 (“If any one of these requirements is not met,
plain error is not established.”).1
¶9 We next address Defendant’s claim that his counsel
performed deficiently by not informing Defendant of his right to
present mitigating evidence at sentencing and by not
affirmatively advocating for the exercise of that right.
To show ineffective assistance of counsel under the
standards in State v. Templin, 805 P.2d 182, 186
(Utah 1990), a defendant must show (1) that
counsel’s performance was so deficient as to fall
below an objective standard of reasonableness and
(2) that but for counsel’s deficient performance
there is a reasonable probability that the outcome
. . . would have been [more favorable to
Defendant].
State v. Smith, 909 P.2d 236, 243 (Utah 1995) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). “Because both deficient
performance and resulting prejudice are requisite elements of an
ineffective assistance of counsel claim, a failure to prove either
element defeats the claim.” State v. Hards, 2015 UT App 42, ¶ 18,
345 P.3d 769. We therefore first determine whether Defendant
was prejudiced by any claimed deficiencies in his counsel’s
performance.
¶10 For purposes of our analysis, we assume Defendant is
correct that defense counsel should have advised him “of his
rights in mitigating the sentence” and should have “introduce*d+
mitigating evidence through *the brother+’s testimony at the
1. We note that even if the district court had erred in this regard,
Defendant would nevertheless be unable to demonstrate
prejudice. See infra ¶¶ 10–11.
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State v. Silveira
sentencing hearing.” We further assume the following: Had
defense counsel informed Defendant of his rights prior to
Defendant waiving the time for sentencing, Defendant would
not have waived the time requirements set forth in rule 22 of the
Utah Rules of Criminal Procedure; had Defendant been
sentenced at a later time, his brother would have been released
from jail and available to testify; Defendant’s brother would
have agreed to testify as to sentencing even though he was not
otherwise willing to testify; and his brother would have testified
favorably to Defendant. Noting that these are generous
assumptions, we nevertheless make them to demonstrate what
would have had to happen for Defendant’s optimal sentencing
scenario to fall into place.
¶11 Even if all these circumstances had been different, as
assumed, one important fact would remain the same: Defendant
and the State agreed on a recommended sentence as part of his
plea agreement, and the district court imposed that very
sentence. We cannot see how, given this agreement between the
parties, there is any likelihood that Defendant’s sentence would
have been different with the benefit of his brother’s testimony.
And this falls far short of the standard that Defendant must
“show a reasonable probability that the outcome of his
sentencing hearing would have been different but for counsel’s
failure.” See Parsons v. Barnes, 871 P.2d 516, 527 (Utah 1994).
Defendant therefore cannot demonstrate prejudice and,
accordingly, his ineffective-assistance claim fails.
¶12 Finally, we address Defendant’s separate but related
claim that his “sentence was imposed in an illegal manner, in
violation of rule 22(e) of the Utah Rules of Criminal Procedure.”
Rule 22(e) provides the remedy for illegal sentences—the
correction of the same—and thus we assume that Defendant
means to argue that because the district court allegedly violated
rule 22(a) by “obtain*ing+ a waiver of the waiting period for
sentencing without informing [Defendant] of his full rights
under the law,” we should use rule 22(e) to correct the sentence.
See Utah R. Crim. P. 22(a), (e). But this argument is quickly
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State v. Silveira
resolved with reference to our plain-error analysis. See supra ¶ 8.
Rule 22(a) does not require a sentencing court to inform
Defendant of any right to allocution before waiver of the time for
sentencing. Instead, it requires that sentencing take place “not
less than two nor more than 45 days after the verdict or plea”
unless the defendant agrees otherwise. Utah R. Crim. P. 22(a).
And it requires the court to “afford the defendant an opportunity
to make a statement and to present any information in
mitigation of punishment.” Id. These are distinct requirements
and do not operate as Defendant suggests. Because the district
court obtained Defendant’s waiver of the time for sentencing and
afforded Defendant his right to allocution, Defendant’s sentence
is not “an illegal sentence, or a sentence imposed in an illegal
manner,” and we have no occasion to correct it. See id. R. 22(e).
¶13 The district court ensured that Defendant was afforded
his rights at sentencing. He was informed of, and waived, the
time for sentencing. He was given, and took advantage of, the
opportunity to allocute and present mitigating information.
There was no error in the district court’s subsequent decision to
impose the sentence that had been agreed upon by the State and
Defendant.
¶14 Affirmed.
20141107-CA 7 2015 UT App 290