State v. Swogger

2013 UT App 164
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
CHARLES ADAM SWOGGER,
Defendant and Appellant.

Memorandum Decision
No. 20120043‐CA
Filed July 5, 2013

Fifth District, St. George Department
The Honorable G. Rand Beacham
No. 091502055

Gary G. Kuhlmann and Nicolas D. Turner,
Attorneys for Appellant
John E. Swallow and Kris C. Leonard, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES JAMES Z. DAVIS and CAROLYN B. MCHUGH
concurred.

ROTH, Judge:

¶1 Charles Adam Swogger pleaded guilty with a mental illness
at the time of the offenses to aggravated sexual assault, attempted
murder, and aggravated burglary. The district court imposed
statutory prison terms for each offense, and Swogger appeals the
court’s sentencing decision. We affirm.

¶2 Swogger raises two issues. First, he contends that the district
court plainly erred when it failed to conduct a hearing to determine
his present mental state. Second, he argues that the court
committed plain error when it decided to sentence him to the Utah
State v. Swogger

State Prison rather than commit him to the Utah State Hospital.
Specifically, Swogger contends that under the guilty with a mental
illness statutes, the court was required to first determine whether
the state hospital was an appropriate placement before it could
sentence him to prison and that the court failed to do so. “To
prevail under plain error review, a defendant must demonstrate
that [1] an error exists; [2] the error should have been obvious to
the trial court; and [3] the error was harmful, i.e., absent the error,
there is a reasonable likelihood of a more favorable outcome.” State
v. Low, 2008 UT 58, ¶ 20, 192 P.3d 867 (alterations in original)
(citation and internal quotation marks omitted).

I. Swogger Invited the District Court To Accept His Pleas
Without Holding a Hearing.

¶3 Swogger first contends that the district court erred when it
failed to conduct a hearing to assess whether he currently had a
mental illness, as required by Utah Code section 77‐16a‐103 (section
103). Section 103 reads, “Upon a plea of guilty with a mental illness
at the time of the offense being tendered by a defendant to any
charge, the court shall hold a hearing within a reasonable time to
determine whether the defendant currently has a mental illness.”
Utah Code Ann. § 77‐16a‐103(1) (LexisNexis 2012).1 At the time
Swogger entered his pleas, however, he represented to the court,
through counsel, that “the State is willing to stipulate that
[Swogger] is suffering from a mental illness which would take away
the necessity for the Court to have a hearing on whether he’s currently
suffering from a mental illness.” (Emphasis added.) The State
affirmed its agreement, and the court accepted the stipulation,
stating, “[T]hat’s sufficient, then.” Thus, if the district court erred
in failing to hold a hearing, it did so at Swogger’s invitation. It is
well settled that “a party cannot take advantage of an error
committed at trial when the party led the trial court into

1. The pertinent statutes have not changed since the time of
Swogger’s pleas.

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State v. Swogger

committing the error,” and accordingly, we “decline[] to engage in
even plain error review when counsel, either by statement or act,
affirmatively represented to the [trial] court that he or she has no
objection to the [proceedings].” Pratt v. Nelson, 2007 UT 41,
¶¶ 16–17, 164 P.3d 366 (alterations in original) (citations and
internal quotation marks omitted).

¶4 In his reply brief, Swogger “concedes that the invited error
doctrine may apply to [his] first claim.” He argues that we should
nevertheless overlook the invitation because he did not
intentionally mislead the court so as to “‘preserve a hidden ground
for reversal on appeal.’” (Quoting id. ¶ 17.) The invited error
doctrine, however, serves an additional purpose beyond
preventing a defendant from taking advantage of an error he or she
created: it allows the district court an opportunity to address the
issue in the first instance. State v. Geukgeuzian, 2004 UT 16, ¶ 12, 86
P.3d 742. This second purpose has been the basis for application of
the invited error doctrine even when the statement inviting the
error was “likely inadvertent and not a conscious attempt to
mislead the trial court.” Id. (refusing to review a claim that a jury
instruction was erroneous because it did not contain a mens rea
requirement where defense counsel had “affirmatively purported
to list all ‘essential elements’” in the proposed instruction). We
therefore conclude that Swogger’s representation to the court that
no hearing was required, even if not intended to mislead, falls
within the realm of invited error. Accordingly, we will not consider
Swogger’s claim that the court plainly erred by not holding a
hearing regarding his mental condition as a part of his plea process.
Instead, we turn to Swogger’s claim that the district court erred in
sentencing him directly to prison rather than first to the state
hospital.

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State v. Swogger

II. The District Court Did Not Plainly Err in Sentencing Swogger
to Prison Rather than to the State Hospital.

¶5 Applicable law requires that once the district court has
concluded that a defendant who offers to enter a plea of guilty with
a mental illness actually suffers from a mental illness, it must
accept the plea and then sentence the defendant “in accordance
with Section 77‐16a‐104” (section 104). Utah Code Ann. § 77‐16a‐
103(4). Section 104 directs the court to “impose any sentence that
could be imposed under law upon a defendant who does not have
a mental illness and who is convicted of the same offense” and then
to determine how that sentence will be served: (1) at the state
hospital, (2) on probation, or (3) if “commitment to the [state
hospital] or probation . . . is not appropriate,” in prison. Id. § 77‐
16a‐104(3). Swogger contends that the plain language of the statute
contemplates that imprisonment be the placement of last resort, an
option available only after the court determines that the state
hospital is not an appropriate placement.2

A. The District Court Did Eliminate the State Hospital as an
Appropriate Placement Prior to Sentencing Swogger to Prison.

¶6 This court need not decide whether Swogger’s interpretation
of section 104 is correct because it appears that the district court
actually engaged in an evaluation of the sentencing options in
accordance with the statutory interpretation Swogger advances.
Specifically, in connection with deciding that Swogger should serve
his time at the prison, the district court determined that placement
at the state hospital was not appropriate. From the time of
Swogger’s initial appearance on the charges, concerns arose about
his competency to stand trial. The court immediately ordered an
examination of Swogger’s competency, and over the next twenty‐
one months Swogger was evaluated by a neuropsychiatric

2. Swogger concedes that, given the severity of his crimes,
probation was not an option.

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State v. Swogger

physician and three psychologists, including one state hospital
psychologist who examined Swogger while he was housed at the
state hospital in an effort to restore his competency. All of these
reports were available to the court at the time of sentencing.
Furthermore, at sentencing, the court also had a presentence
investigation report from Adult Probation and Parole and
statements from both victims of Swogger’s crimes. In addition, the
judge who sentenced Swogger had the opportunity to observe and
interact with Swogger over a period of nearly two years and was
able to apply this experience to his determination of where
Swogger should serve his sentence.

¶7 After examining the extensive information available, the
court made an explicit determination that committing Swogger to
the state hospital was clearly inappropriate. Under the statute,
commitment to the state hospital is an option only if the court finds
both that the defendant’s mental illness causes “an immediate
physical danger to self or others, including jeopardizing the
defendant’s own or others’ safety, health, or welfare if placed in a
correctional . . . setting,” and that the state hospital is equipped to
provide the defendant with the appropriate “treatment, care,
custody, and security.” Id. § 77‐16a‐104(3)(a)(ii) (emphasis added).
The information before the court, however, did not demonstrate
that Swogger would be too dangerous to deal with in prison and
supported a conclusion that the state hospital itself was not
equipped to provide either adequate treatment or security. For
example, the court described Swogger’s crimes as “savage and
brutal,” even drawing a comparison to “an attack by a wild
animal” but “worse than that” because “[i]t was premeditated, and
it was heartless.” The court also noted Swogger’s menacing
behavior toward staff and other patients when previously
committed to the state hospital as a basis for its conclusion that the
state hospital was not a viable placement option. Specifically, in its
written report to the court, the state hospital had expressed serious
concerns about its ability to safely house Swogger because he “had
at least five incidents of physical aggression toward patients and
[state hospital] staff (including spitting in his social worker’s face)”

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State v. Swogger

and he had made explicit threats to “attack and rape staff.” As a
result, the staff was administering psychotropic medication to
Swogger and restricting his physical movement with “wrist‐to‐
waist restraints.”3 The other information available to the court
suggested, as well, that the state hospital would not be able to
effectively treat Swogger’s condition. In their competency reports,
two psychologists explained that although Swogger appeared to be
suffering from antisocial personality disorder and exhibited some
symptoms of psychosis, they were concerned that his more severe
symptoms were the product of malingering. A psychologist at the
state hospital shared that concern, stating that Swogger’s scores on
a test “used to assess . . . exaggerated psychopathology” indicated
an increased likelihood of feigning.

¶8 Based on this information, the court found,

His rehabilitative needs, well, . . . I suppose
we could hope that psychologists working with Mr.
Swogger would be able to fix what it is that ails him
. . . . I’m not really very optimistic about that. I
certainly hope that he’s able to get some kind of
mental health treatment through the Department of
Corrections, but I don’t see that as being very
optimistic or very likely to produce good.
And under these circumstances and because
Mr. Swogger has so recently been to the Utah State
Hospital and been evaluated there and because in
my judgment I don’t think he deserves to be
considered for further mental health treatment, . . . I
think he needs to be committed directly to the Utah
State Prison.

3. In contrast, the Department of Corrections recommended that
Swogger be sentenced to prison, implicitly indicating that he was
not too dangerous to be safely managed there.

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The court further explained that only the state prison could handle
“the risk that Mr. Swogger poses to peaceful and law‐abiding
citizens.” Specifically, the court stated,

[W]hat has been discovered through very careful
attention given to him over some long period of time
just doesn’t persuade me that this is somebody who
is beyond his own control, but it is somebody who is
mentally ill in ways that result in crime and are dead
certain to result in more crime . . . .

“[W]ithout some extremely grand change in his makeup,” the court
concluded, Swogger “is too dangerous to ever be released” into the
community. The court then sentenced Swogger to the statutory
prison terms.

¶9 Thus, the district court determined that the state hospital
was not a viable placement prior to sentencing him to prison, as
Swogger claims section 104 requires. In arriving at this conclusion,
the court appropriately evaluated the statutory criteria and
determined both that the Department of Corrections could
adequately manage Swogger’s risk to himself and others “in a
correctional . . . setting” and that the state hospital was unlikely to
be able either to treat him or to safely deal with his aggression. See
Utah Code Ann. § 77‐16a‐104(3)(a)(ii) (LexisNexis 2012). The
court’s conclusions were amply supported by the record. Thus,
Swogger has not established that the court made any error, much
less an obvious one, in its sentencing decision. See State v. Low, 2008
UT 58, ¶ 20, 192 P.3d 867 (requiring the defendant to show an
obvious error to support a claim of plain error).

B. The District Court Was Not Required To Hold a Hearing as a
Part of Sentencing.

¶10 Swogger next complains about the process by which the
district court came to its sentencing decision. Swogger appears to
assert two statutory bases to support his claim that the court must

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conduct a sentencing hearing. First, he argues that sections 103 and
104 require such a hearing. To support his contention, Swogger
relies on the Utah Supreme Court’s analysis in State v. Copeland, 765
P.2d 1266 (Utah 1988), which says, “Before sentencing, the court
shall conduct a hearing to determine the defendant’s present mental
state.” Id. at 1270 (internal quotation marks omitted). Copeland,
however, applies the 1988 version of section 104, a fact that
Swogger recognizes. Under the present version of section 104, a
district court is required to hold a hearing to assess the defendant’s
current mental state only after the defendant is adjudicated guilty
with a mental illness at a trial. Utah Code Ann. § 77‐16a‐104(1)
(“Upon a verdict of guilty with a mental illness . . . , the court shall
conduct a hearing to determine the defendant’s present mental
state.” (emphasis added)). Swogger was not tried, but rather
pleaded guilty with a mental illness, and the plea process is
governed by section 103, not section 104. See id. § 77‐16a‐103
(entitled “Plea of guilty with a mental illness at the time of the
offense”). Section 103 also requires the court to conduct a hearing
but only in connection with its acceptance of a plea of guilty with
a mental illness. Id. § 77‐16a‐103(1) (“Upon a plea of guilty with a
mental illness at the time of the offense being tendered by a
defendant to any charge, the court shall hold a hearing within a
reasonable time to determine whether the defendant currently has
a mental illness.”). This hearing is for the purpose of determining
whether the defendant currently has a mental illness and the
nature and extent of that illness. If the defendant is found to be
mentally ill, he will then be sentenced in accordance with the
guidelines laid out in section 104,4 which offer the court the

4. Once the plea of guilty and mentally ill is entered, section 103
directs the court to follow the sentencing provisions set out in
section 104. See Utah Code Ann. § 77‐16a‐103(4) (LexisNexis 2012)
(“If the court concludes that the defendant currently has a mental
illness, the defendant’s plea shall be accepted and the defendant
shall be sentenced in accordance with Section 77‐16a‐104.”); id.
(continued...)

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State v. Swogger

additional option of commitment to the state hospital, an option
not otherwise available under Utah’s statutory sentencing scheme.
See generally id. § 76‐3‐201(2) (including probation and
imprisonment, but not commitment to the state hospital, in the
options available to a court when sentencing a convicted criminal
defendant who does not have a mental illness). As we have already
concluded, any error in not conducting the designated hearing at
the plea stage was invited. See supra ¶¶ 3–4.

¶11 Swogger seeks to avoid the invited error problem by
arguing that the court was required to conduct a second hearing
prior to sentencing, under section 104, where the state hospital
must be afforded an opportunity to evaluate him. See id. § 77‐16a‐
104(3)(a)(i) (requiring “the court [to] give[] the [state hospital] the
opportunity to provide an evaluation and recommendation” prior
to the court deciding to send the defendant to the state hospital); see
also id. § 77‐16a‐104(4). In the context of a plea, however, section 104
only requires the court to make a determination as to whether a
defendant should be committed to the state hospital, not
necessarily to hold an evidentiary hearing in order to reach that
decision. Rather, section 104 provides that with regard to a
defendant who “currently has a mental illness,” the court is to
“commit the defendant to the [state hospital]” only if “the court
gives the [state hospital] the opportunity to provide an evaluation
and recommendation” by “notify[ing] the [hospital’s] executive
director of the proposed placement and provid[ing] the [state
hospital] with an opportunity to evaluate the defendant and make
a recommendation to the court regarding placement prior to
commitment.” Id. § 77‐16a‐104(3)(a), (4) (emphasis added).

¶12 Although we agree that a hearing may be helpful to the
court in reaching a sentencing decision regarding state hospital

4. (...continued)
§ 77‐16a‐104(3) (outlining the sentencing process for persons with
mental illness).

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State v. Swogger

placement, we are not convinced that section 104 plainly requires a
second hearing as a part of sentencing where the court is required
to hold a hearing only in connection with accepting the plea under
section 103. Indeed, the section 103 hearing might well provide
information useful to the sentencing. In this case, the court did not
hold a section 103 hearing—at the parties’ invitation—but it clearly
had ample evidence about Swogger’s mental state from the
extensive evaluations that occurred before Swogger entered his
pleas, including a significant report from the state hospital itself. In
fact, the abundance of available information appears to have been
the underlying motivation for each side (and the court) to forego
the hearing in the first place. We conclude that the commitment
provisions of section 104 did not require a separate hearing to
determine whether Swogger should be committed to the state
hospital. And we have already concluded that the district court had
ample relevant information on which to base its determination that
commitment to the state hospital was not appropriate and that
commitment to prison was.

¶13 Thus, the decision to commit Swogger to the Utah State
Prison was well within the court’s discretion under the statute.
Because Swogger has not shown any error on the part of the district
court, much less a harmful error, Swogger’s claims of plain error
must fail. Accordingly, we affirm the district court’s sentencing
decision.

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