State v. Kelson

2015 UT App 91

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
GRACE C. KELSON,
Defendant and Appellant.

Memorandum Decision
No. 20100299-CA
Filed April 16, 2015

Third District Court, Salt Lake Department
The Honorable Judith S.H. Atherton
No. 041901548

Stephen W. Howard, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES JAMES Z. DAVIS and JOHN A. PEARCE concurred.

ORME, Judge:

¶1 This case returns to us on remand from the Utah Supreme
Court. See State v. Kelson (Kelson II), 2014 UT 50, ¶ 27. The sole
issue on remand is whether the trial court violated Defendant
Grace C. Kelson’s due process rights and rule 22(a) of the Utah
Rules of Criminal Procedure when it sentenced her without
receiving or reviewing certain documents. We conclude it did
not.

¶2 In 2009, Defendant was convicted of one count of offering
or selling unregistered securities, a third degree felony; one
count of sale by an unlicensed broker-dealer, agent, or
investment advisor, a third degree felony; three counts of
securities fraud, each a second degree felony; and one count of
State v. Kelson

pattern of unlawful activity, a second degree felony. Defendant
appealed.

¶3 On appeal, we concluded that one of the jury instructions
at Defendant’s trial unconstitutionally shifted the burden of
persuasion from the State to Defendant, that Defendant’s trial
counsel was ineffective for stipulating to the jury instruction,
and that the trial court erred in denying Defendant’s motion for
a directed verdict with respect to the pattern-of-unlawful-
activity charge because Defendant’s activities did not constitute
a pattern of unlawful activity as a matter of law. See State v.
Kelson (Kelson I), 2012 UT App 217, ¶ 49, 284 P.3d 695.
Consequently, we vacated Defendant’s conviction for pattern of
unlawful activity and reversed and remanded for a new trial on
the remaining charges. See id. The State filed a petition for
certiorari, which the Utah Supreme Court granted. See Kelson II,
2014 UT 50, ¶ 10.

¶4 The Supreme Court upheld the jury instruction as an
accurate statement of law, reversed our decision on the
ineffective assistance of counsel issue, and rejected Defendant’s
plain error argument regarding the jury instruction.1 See id. ¶ 14.
The Court remanded the case to us for consideration of one issue
that we declined to address in Kelson I because our resolution of
the aforementioned issues was dispositive of the case. See id.
¶ 27; Kelson I, 2012 UT App 217, ¶ 48 n.14. We now consider that
issue.

¶5 Defendant argues that the trial court violated her due
process rights and rule 22(a) of the Utah Rules of Criminal
Procedure by ‚failing to receive or review . . . documents offered
by [her] at sentencing,‛ which failure, she contends, undermined

1. The State did not challenge our reversal of Defendant’s
conviction for pattern of unlawful activity. See Kelson II, 2014 UT
50, ¶ 10 n.1.

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State v. Kelson

her right of allocution. Defendant’s arguments present questions
of law, ‚which we review for correctness, granting no particular
deference to the conclusions of the trial court.‛ State v. Wanosik
(Wanosik I), 2001 UT App 241, ¶ 9, 31 P.3d 615, aff’d, 2003 UT 46,
79 P.3d 937.

¶6 The right of allocution allows a defendant to ‚make a
statement in mitigation or explanation after conviction but
before sentencing.‛ State v. Wanosik (Wanosik II), 2003 UT 46,
¶ 18, 79 P.3d 937. ‚In Utah, allocution is both a constitutional
and statutory right.‛ State v. Udy, 2012 UT App 244, ¶ 25, 286
P.3d 345. Our Supreme Court has ‚explained that the right to
allocution ‘is an inseparable part of the right to be present’
guaranteed by the Utah Constitution.‛ Id. (quoting State v.
Anderson, 929 P.2d 1107, 1111 (Utah 1996)). The right of
allocution is also codified in the Utah Rules of Criminal
Procedure: ‚Before imposing sentence the court shall 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).

¶7 Our Supreme Court has identified two purposes for the
right to allocution: (1) ‚to provide the defendant personally with
an opportunity to address the court‛ and (2) ‚to ensure that the
judge is provided with reasonably reliable and relevant
information regarding sentencing.‛ Wanosik II, 2003 UT 46, ¶ 19.
The ‚defendant’s right to allocution is satisfied ‘so long as the
[sentencing] hearing was held in [the defendant’s+ presence and
[the] defendant had an opportunity to speak.’‛ State v. Tingey,
2014 UT App 228, ¶ 9, 336 P.3d 608 (alterations in original)
(quoting State v. Rodrigues, 2009 UT 62, ¶ 40, 218 P.3d 610).

¶8 At Defendant’s sentencing hearing on March 5, 2010, she
said that she ‚would like to ask for a continuance and to prepare
for [her] sentencing‛ and that she had ‚some motions that [she]
would like to present‛ and ‚some new documents and evidence

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that needs to be seen before‛ sentencing. The trial court denied
Defendant’s request for a continuance:

The motion . . . is denied. You made the
motion last week, I set it over, I told you [that you]
would be sentenced, making the observation that
this matter was set for sentencing April 17th of
2009, and I have been prepared to go forward since
[that] date and I believe the State has as well.[2]

2. Defendant’s sentencing hearing was originally set for
April 17, 2009. On that date, the trial court granted Defendant’s
then-counsel’s motion to withdraw and appointed a public
defender. The trial court continued sentencing to May 1, 2009, on
which date it granted Defendant’s request for a continuance so
that her counsel could research the possibility of filing a motion
to arrest judgment, and the court set the matter for a scheduling
conference on July 31, 2009. When that day came, the trial court
granted Defendant’s request for another continuance. On
October 16, 2009, the trial court again granted Defendant’s
request for a continuance. On November 6, 2009, the trial court
granted Defendant’s motion for a further continuance ‚for three
weeks for her to file a motion for arrest of judgment‛ and set the
matter for January 29, 2010. On the latter date, Defendant’s
counsel reported to the trial court that filing a motion to arrest
judgment was not in Defendant’s best interest but that
Defendant was not prepared to be sentenced that day. The trial
court then granted Defendant’s request for yet another
continuance.
At Defendant’s sentencing hearing on February 26, 2010,
she requested that she be allowed to represent herself. The trial
court strongly advised Defendant against representing herself
but ultimately accepted Defendant’s waiver of counsel. The trial
court continued sentencing to March 5, 2010, and appointed
standby counsel. Before the February 26 hearing concluded,
Defendant told the trial court that she needed ‚about a month to
prepare‛ for sentencing, to which the trial court responded, ‚No.
(continued<)

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State v. Kelson

¶9 Defendant then spoke, uninterrupted, at some length:

Your Honor, I have some documents and
some new evidence that needs to be seen before
sentencing . . . . I have documents that even my
son, who is here in Court, has brought these
documents, I have not had a chance to meet with
my standby counsel, but he is here with the
documents that I would like to present to the Court
so you can take a look at this, because I—I think it’s
very important.
. . . I have been prevented to—from
testifying. I have proof of that. And I would like to
present that to the Court. . . .
Through the whole trial and before, I was
prepared to testify. My attorney prevented me
from testifying, very actively. I would like to also
subpoena Officer Jason, I have spoken with him, to
testify that he saw me arguing with my attorney in
order to testify.
Also, Attorney Kim Clark is going to testify
for me that my attorney did not even pick up the
boxes of documents, he was not prepared, he lied
to me. . . .
....
. . . And I would like to have a chance to
meet with the prosecutor to present these
documents because I think the prosecutor should
see, not only these documents, but other
documents that my attorney did not present
during the trial and they would clear my name.
....

(<continued)
This thing has been prepared for . . . close to a year, and I know
that you know what’s going on.‛ Defendant was finally
sentenced on March 5, 2010.

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State v. Kelson

So, I’m asking your Honor, please, to give
me a chance to see these things, will be just a very
short time, I am totally ready to have this move
forward very fast, because I have all the documents
and if your Honor can please look at this, I would
respectfully [suggest] that these documents need[]
to be seen by your Honor and by the prosecutor
and they are readily available for the Court[] to see
it.
And so, I would, please, your Honor,
request that you give me a—an extension, a very
short extension, so I can get these things presented
to you properly, the way it should be done. . . .

The trial court did not respond to Defendant’s statements;
rather, it then asked the prosecutor if the State had any
recommendations for sentencing. After hearing from the
prosecutor, the trial court announced Defendant’s sentences.

¶10 After reviewing the transcript of Defendant’s sentencing
hearing, we conclude that she was not denied her right of
allocution. Defendant was present for her sentencing hearing
and the trial court afforded her an opportunity to address the
court. She spoke at length, without interruption. Although
Defendant stated that she had information in the form of
documents that she wanted the trial court to see before
sentencing, indicating that the documents were in the courtroom
with her son, she never actually attempted to give those
documents to the trial court. Instead, she sought to postpone her
sentencing yet again by asking for an additional continuance so
that she could present the documents to the prosecutor and the
trial court ‚properly.‛

¶11 It is far from clear that the documents had anything to do
with sentencing. Defendant did not contend that the documents
bore on her rehabilitative prospects, remorse, determination to
make full restitution, lack of a prior criminal record, or anything
else germane to sentencing. See State v. Samul, 2015 UT App 23,

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¶ 20, 343 P.3d 719 (concluding that the defendant’s right to
allocution was satisfied where the defendant himself had an
opportunity to speak and his counsel also urged the court to
consider mitigating factors such as the defendant’s ‚claimed
remorse for his conduct, his efforts at rehabilitation, and his
character and work ethic‛). See also United States v. Kellogg, 955
F.2d 1244, 1250 (9th Cir. 1992) (noting that the right to allocution
‚is not unlimited‛ and concluding that the defendant’s right to
allocution was not violated when the district court interrupted
defendant as he spoke of ‚giant loopholes‛ in the tax laws,
‚scorned the IRS as incompetent,‛ and discussed ‚the problem
of the national debt*+ and the fall of Eastern Europe‛). Instead,
Defendant asserted that the documents established that she had
been wrongly convicted because, according to her, the
documents demonstrated her innocence but were ignored by her
attorney, who allegedly precluded her from testifying at trial.

¶12 Beyond Defendant’s bald assertions at sentencing that she
had proof that her attorney prevented her from testifying and
documents that would clear her name, we simply do not know
what those documents actually said. Under rule 30 of the Utah
Rules of Criminal Procedure, an appellant is required to show
that her ‚substantial rights‛ were affected by an error to warrant
a remedy on appeal. See Utah R. Crim. P. 30(a) (‚Any error,
defect, irregularity or variance which does not affect the
substantial rights of a party shall be disregarded.‛). Here,
Defendant has neither entered the documents into the record nor
explained how they would likely have led to a lesser sentence
than the one that was imposed. Thus, even assuming the court
erred by not accepting documents that were never offered and
even assuming, despite appearances, that the documents
somehow bore on sentencing, Defendant has failed to
demonstrate how she was harmed by the fact that the trial court
did not receive or consider the documents. To be clear, we are
unable to determine whether the documents were even relevant
to sentencing, much less whether Defendant’s substantial rights
were affected when the trial court did not consider them. See
Wanosik II, 2003 UT 46, ¶ 19, 79 P.3d 937 (stating that one of the

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purposes of the right to allocution is ‚to ensure that the judge is
provided with reasonably reliable and relevant information
regarding sentencing‛).

¶13 But even if the documents had some relevance to the
business at hand, namely the proper sentence to be imposed on
Defendant, the documents were in the courtroom during the
sentencing hearing. A continuance was unnecessary. Defendant
simply needed to actually offer the documents to the trial court if
they bore on matters relevant to sentencing. Had Defendant
presented the documents to the trial court, there is no reason to
assume the trial court would have rejected them.3

¶14 Because Defendant never sought to submit her documents
to the trial court for its consideration, the court did not err when
it did not receive or consider them prior to sentencing. And
Defendant has not provided any explanation regarding how she
was harmed by the court’s ‚failure‛ to receive or review the
documents, which, as she described them, had no direct
relevance to sentencing. Defendant was present at her
sentencing hearing, had the opportunity to speak before she was
sentenced, and, in fact, did speak. Accordingly, we conclude that
the trial court fulfilled its obligation of affording Defendant her
right to allocution. Her sentence is affirmed.

3. Even if Defendant is correct in arguing that the plain language
of rule 22(a) ‚contemplates more than the defendant’s right to
make an oral statement‛ because the right includes the right to
‚present any information,‛ including documents, the fact
remains that Defendant simply did not offer the documents or
proffer their contents to the trial court for its consideration in
imposing sentence. See Utah R. Crim. P. 22(a). Instead, she used
them as a basis for requesting a further continuance. Because she
never sought to submit her documents to the trial court, the
court could not have erred by failing to consider them.

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