State of Utah V. Emil Martin Sunter : Brief of Appellee Utah Court of Appeals
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Brigham Young University Law School BYU Law Digital Commons Utah Court of Appeals Briefs 1999 State of Utah v. Emil Martin Sunter : Brief of Appellee Utah Court of Appeals Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca2 Part of the Law Commons Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Margret Sidwell Taylor; Gene Schultz Bryge; Attorneys for Appellant. Catherine M. Johnson; Assistant Attorney General; Jan Graham; Utah Attorney General; Gene E. Strate; Carbon County Attorney; Attorneys for Appellee. Recommended Citation Brief of Appellee, Utah v. Sunter, No. 980026 (Utah Court of Appeals, 1999). https://digitalcommons.law.byu.edu/byu_ca2/1955 This Brief of Appellee is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court of Appeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. ""tjifr^QGRT OF APPEALS UTAH Bm* DOCUMfiiH KFU _§e IN THE UTAH COURT OF APPE JKS -~3?!*£&&4. STATE OF UTAH, Plaintiff/Appellee, Case No. PW26-CA vs. EMIL MARTIN SUNTER, Priority Defendant/Appellant. BRIEF OF APPELLEE AN APPEAL FROM A CONVICTION OF ONE THIRD-DEGREE FELONY COUNT OF DISTRIBUTING OR ARRANGING DISTRIBUTION OF A CONTROLLED SUBSTANCE PURSUANT TO UTAH CODE ANN. § 58-37-8(1 )(a)(ii) (1998), AND FOUR THIRD- DEGREE FELONY COUNTS OF UNLAWFUL POSSESSION OF A CONTROLLED SUBSTANCE PURSUANT TO UTAH CODE ANN. § 58-37-8(2)(a) (1998) IN THE SEVENTH JUDICIAL DISTRICT COURT OF CARBON COUNTY, STATE OF UTAH, THE.HQNORABLE JUDGE BRYCE K. BRYNER, PRESIDING. CATHERINE M. JOHNSON [5975] Assistant Attorney General MARGRET SID WELL TAYLOR JAN GRAHAM [1231] 20 South Main Street Utah Attorney General Helper, UT 8452600 160 East 300 South, 6th Floor Salt Lake City, U04114 GENE SCHULTZ BRYGE 147 South Main Street GENEE.STR4f|H Helper, UT 84526 Carbon County Attorney _„, *,«•&-* FILED Attorneys for Appellant Attorneys for Appellee utah Court of ADpeals MAR 0 1 1999 Julia D'Alesandro Clerk of the Court IN THE UTAH COURT OF APPEALS STATE OF UTAH, Plaintiff/Appellee, Case No. 980026-CA vs. EMIL MARTIN SUNTER, Priority No. 2 Defendant/Appellant. BRIEF OF APPELLEE AN APPEAL FROM A CONVICTION OF ONE THIRD-DEGREE FELONY COUNT OF DISTRIBUTING OR ARRANGING DISTRIBUTION OF A CONTROLLED SUBSTANCE PURSUANT TO UTAH CODE ANN. § 58-37-8(1 )(a)(ii) (1998), AND FOUR THIRD- DEGREE FELONY COUNTS OF UNLAWFUL POSSESSION OF A CONTROLLED SUBSTANCE PURSUANT TO UTAH CODE ANN. § 58-37-8(2)(a) (1998) IN THE SEVENTH JUDICIAL DISTRICT COURT OF CARBON COUNTY, STATE OF UTAH, THE HONORABLE JUDGE BRYCE K. BRYNER, PRESIDING. CATHERINE M. JOHNSON [5975] Assistant Attorney General MARGRET SIDWELL TAYLOR JAN GRAHAM [1231] 20 South Main Street Utah Attorney General Helper, UT 8452600 160 East 300 South, 6th Floor Salt Lake City, UT 84114 GENE SCHULTZ BRYGE 147 South Main Street GENE E. STRATE Helper, UT 84526 Carbon County Attorney Attorneys for Appellant Attorneys for Appellee TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii JURISDICTION AND NATURE OF THE CASE 1 ISSUES PRESENTED ON APPEAL AND STANDARDS OF REVIEW 1 CONSTITUTIONAL PROVISIONS, STATUTES AND RULES 2 STATEMENT OF THE CASE 3 STATEMENT OF FACTS 3 SUMMARY OF ARGUMENT 9 ARGUMENT I. DEFENDANT HAS FAILED TO DEMONSTRATE THAT THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING HIS MOTION TO WITHDRAW HIS GUILTY PLEAS 10 A. Defendant Has Failed to Adequately Brief the Issues of Whether He Demonstrated Good Cause to Withdraw His Guilty Pleas of Whether the Trial Court Abused Its Discretion in Denying his Motion 10 B. Even if the Issues Had Been Adequately Briefed, Defendant Did Not Demonstrate Good Cause to Withdraw His Pleas 13 II THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION IN ORDERING THAT DEFENDANT SERVE CONSECUTIVE SENTENCES 16 CONCLUSION 19 ADDENDUM A - Statutes and Rules i TABLE OF AUTHORITIES STATE CASES Bums v. Summerhavs. 927 P.2d 197 (Utah Ct. App. 1996) 12 State v. Bishop. 753 P.2d 439 (Utah 1988) 12 State v. Blair. 868 P.2d 802 (Utah 1993) 2 State v. Copeland. 765 P.2d 1266 (Utah 1988) 11 State v. Gallegos. 712 P.2d 207 (Utah 1985) 16 State v. Gallegos. 738 P.2d 1040 (Utah 1987) 10, 11, 13 State v. Galli. 967 P.2d 930 (Utah 1998) 17, 18 State v. Gibbons. 740 P.2d 1309 (Utah 1987) 10 State v. Houk. 906 P.2d 907 (Utah Ct. App. 1995) 2 State v. Montova. 929 P.2d 356 (Utah App. 1996) 17 State v. Munson. 351 Utah Adv. Rep. 31 (Utah 1998) 13 State v. Penman. 964 P.2d 1157 (Utah App. 1998) 2, 14 State v. Price. 837 P.2d 578 (Utah App. 1992) 16 State v. Schweitzer. 943 P.2d at 649 2 State v. Smith. 812 P.2d 470 (Utah Ct. App. 1991) 10, 15 State v. Smith. 909 P.2d 236 (Utah 1995) 17, 18 State v. Strunk. 846 P.2d 1297 (Utah 1993) 17,18 ii State v. Thorup. 841 P.2d 746 (Utah App. 1992), cert, denied. 853 P.2d 897 (Utah 1993) 10, 13 State v. Vasilacopoulos. 756 P.2d 92 (Utah Ct. App.), cert, denied. 765 P.2d 1278 (Utah 1988) 11 State v. Yates. 834 P.2d 599 (Utah Ct. App. 1992) 12 Williamson v. Opsahl 416 N.E.2d 783 (1981) 12 STATE STATUTES Utah Admin. Code § R671-201-1 (1998) 19 Utah Code Ann. § 39-6-3 (1994) 12 Utah Code Ann. § 39-6-38 (1994) 12 Utah Code Ann. § 58-37-8 (1998) 1,2 Utah Code Ann. § 76-3-401 (Supp. 1998) 2, 7 Utah Code Ann. § 77-13-6 (1995) 2 Utah Code Ann. § 77-16-6 (1995) 10 Utah Code Ann. § 78-2a-3 (1996) 1 Utah R. App. P. 24 11 Utah R. Crim. P. 11 2, 7, 10 iii IN THE UTAH COURT OF APPEALS STATE OF UTAH, : Plaintiff/Appellee, : Case No. 980026-CA vs. : EMIL MARTIN SUNTER, : Priority No. 2 Defendant/Appellant. : BRIEF OF APPELLEE JURISDICTION AND NATURE OF THE CASE Defendant was convicted of one third-degree felony count of distributing or arranging the distribution of a controlled substance pursuant to Utah Code Ann. § 58-37- 8(l)(a)(ii) (1998), and four third-degree felony counts of unlawful possession of a controlled substance pursuant to Utah Code Ann. § 58-37-8(2)(a) (1998) in the Seventh Judicial District Court of Carbon County, State of Utah, the Honorable Judge Bryce K. Bryner presiding. This Court has jurisdiction of the case pursuant to Utah Code Ann. § 78-2a-3(2)G) (1996). ISSUES PRESENTED ON APPEAL AND STANDARDS OF REVIEW 1. Did the trial court err in denying defendant's motion to withdraw his guilty pleas? "We review a trial court's denial of a motion to withdraw a guilty plea under an abuse-of-discretion standard." State v. Blair. 868 P.2d 802, 805 (Utah 1993); State v. Penman. 964 P.2d 1157,1160 (Utah App. 1998). "However, this court may find an abuse of discretion only if we conclude that 'no reasonable [person] would take the view adopted by the trial court.'" State v. Schweitzer. 943 P.2d at 649,657 (Utah App. 1997) (quoting State v. Gerrard. 584 P.2d 885, 887 (Utah 1978)). 2. Did the trial court err in ordering that the sentences for two of the offenses to which defendant pled guilty run consecutively? "We review the sentencing decisions of a trial court for abuse of discretion. Abuse of discretion 'may be manifest if the actions of the judge in sentencing were 'inherently unfair' or if the judge imposed a 'clearly excessive sentence.'" State v. Houk. 906 P.2d 907,909 (Utah Ct. App. 1995) (citations omitted). See also Schweitzer. 943 P.2d at 651. "However, this court may find an abuse of discretion only if we conclude that 'no reasonable [person] would take the view adopted by the trial court. '"Schweitzer. 943 P.2d at 651 (quoting State v. Gerrard. 584 P,2d 885, 887 (Utah 1978)). CONSTITUTIONAL PROVISIONS, STATUTES AND RULES The following statutes and rule are reproduced in Addendum A: Utah Code Ann. § 77-13-6 (1995) Utah Code Ann. § 76-3-401 (Supp. 1998) Rule 11, Utah Rules of Criminal Procedure 2 STATEMENT OF THE CASE Defendant was charged in 11 separate informations with drug-related offenses (R. 48 at 2, R. 50 at 16). He pled guilty to five third-degree felony counts. Under the plea agreement, the State agreed to dismiss the six remaining cases (R. 49 at 15). Defendant made a timely motion to withdraw his guilty pleas (R. 13). The trial court denied the motion (R. 27). On December 16, 1997, the trial court sentenced defendant to 0-5 year prison terms on each of the offenses, ordering that the four sentences for unlawful possession or use of a controlled substance would run concurrently, and that the sentence for unlawful distribution of a controlled substance would run consecutively with one of the sentences for possession (R. 35). Defendant filed a timely notice of appeal (R. 39). STATEMENT OF FACTS In the two-and-a-half months between July 12, 1996 and October 24, 1996, defendant, in the presence of a police informant wearing a hidden microphone, committed nine offenses involving possession or distribution of various controlled substances.