State v. Sharp

2021 UT App 90
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
BOBBIE JOE S HARP JR .,
Appellant.
Opinion
No. 20190292-CA
Filed August 19, 2021
Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 181900319
Wendy Brown and Sarah J. Carlquist, Attorneys
for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. O RME and D AVID N. M ORTENSEN concurred.
POHLMAN, Judge:
¶1 	Bobbie 	Joe 	Sharp 	Jr. 	pleaded 	guilty 	to 	one 	count 	of
aggravated sexual abuse of a child, a first degree felony. After
entering his plea and before sentencing, the victim (Victim)
purportedly wrote a letter in which she recanted her allegations
of Sharp’s abuse. Alleging the letter exonerated him, Sharp
orally moved to withdraw his plea, but the district court denied
the motion and proceeded to sentence Sharp. On appeal, Sharp
contends that Victim’s supposed recantation rendered his guilty
plea unknowing and involuntary and thus justified withdrawal
of his plea. Alternatively, Sharp contends that the court should
have continued sentencing and that it violated his right to
allocution. We reject Sharp’s arguments and affirm.

State v. Sharp
20190292-CA 	2 	2021 UT App 90
BACKGROUND
¶2 	In January 2018, the State charged Sharp with two counts
of rape of a child, three counts of sodomy on a child, one count
of aggravated sexual abuse of a child, and one count of enticing
a minor. As declared in the State’s probable cause statement,
Victim’s grandmother reported that Sharp had given Victim, an
eleven-year-old girl, a cell phone around Thanksgiving 2017 and
that Sharp had been sending Victim sexually explicit messages.1
The messages contained suggestions that Sharp and Victim
should shower together and engage in anal sex. Victim stated
that Sharp, who was nearly sixty years old, “dated her” and also
sexually abused her. For example, Victim explained how Sharp
made her give him “blow jobs” and taught her how to do a “69.”
Victim said that Sharp told her that he could not wait until he
could take her virginity and Sharp would say, “Let’s fuck, baby.”
Victim also described that when Sharp was in the shower with
her, he told her to bend over, and he tried to go “in” her and
would not stop even after she told him to stop.
¶3 	At the preliminary hearing, the State introduced the DVD
of Victim’s interview at the Children’s Justice Center, evidence
that Sharp lived in Victim’s apartment complex, and evidence
that Sharp met Victim when he gave ice pops to her and the
other children in the complex. Victim’s mother testified that in
the 	autumn 	of 	2017, 	Victim 	spent 	time 	daily 	in 	Sharp’s
apartment and Sharp would walk her home in the evening. The
State also introduced evidence that Sharp sent messages to
Victim about “butt things” and told Victim that he “would
1. 	Because 	there 	was 	no 	trial 	in 	this 	case, 	we 	draw 	our
description of events from the State’s probable cause statement
and the evidence presented at the preliminary hearing. We
acknowledge that these details have not been proved and that
the 	factual 	basis of 	Sharp’s plea 	is not 	as detailed 	as our
description of events.

State v. Sharp
20190292-CA 	3 	2021 UT App 90
stretch her butt out.” After the preliminary hearing, the district
court bound Sharp over for trial.2
¶4 	Sharp 	engaged 	in 	plea 	negotiations 	with 	the 	State.
Ultimately, 	in 	November 	2018, 	the 	State 	amended 	the
information to a single count of aggravated sexual abuse of a
child, and Sharp pleaded guilty to that charge.
¶5 	In his statement in support of his guilty plea, Sharp
acknowledged that he “underst[ood] that by pleading guilty [he
would] 	be 	admitting 	that 	[he] 	committed 	the 	crime[]” 	of
aggravated sexual abuse of a child. He also “stipulate[d] and
agree[d]” to a factual description of his conduct for which he
was criminally liable. Sharp’s statement also showed that Sharp
“agree[d] to be sentenced to a term of 15 year[s] to life in
prison.”
¶6 	The district court held a change of plea hearing, during
which Sharp’s counsel reiterated the factual basis for the plea.
Counsel also acknowledged that Victim was eleven years old at
the time of the offense and that Sharp’s position of special
authority was “akin to a babysitter.”
¶7 	The court conducted the requisite plea colloquy with
Sharp. Sharp confirmed to the court that what his attorney
described did in fact happen and that he was pleading guilty
because he was guilty. Sharp also stated, among other things,
that he understood the rights that he was giving up by pleading
guilty. The court accepted Sharp’s guilty plea, finding that the
plea 	was 	“knowing 	and 	voluntary,” 	that 	Sharp 	had 	the
“advantage of very good counsel,” and that he was “competent
2. Before bindover, the prosecutor amended the charges in two
respects. She amended the count of aggravated sexual abuse to
sexual abuse of a child, and she amended one count of rape of a
child to include the alternative of sodomy on a child.

State v. Sharp
20190292-CA 	4 	2021 UT App 90
to enter a plea” and “underst[ood] the rights [he was] giving up
by doing so.” The court told Sharp, “If you want to ask to
withdraw this plea, you’ll need to do so in writing to me
sometime before your sentencing.”
¶8 	Even 	though 	he 	was 	represented 	by 	counsel, 	Sharp
himself wrote to the judge weeks later, stating that he “would
like to cancel [his] plea deal and go to trial.” Shortly afterward,
Sharp’s counsel filed a written motion to withdraw Sharp’s
guilty plea and attached Sharp’s “sua sponte” letter to the
motion. Sharp’s counsel did not provide a basis for the plea
withdrawal but requested that the court set oral argument on the
motion and postpone sentencing. The court agreed to hold a
hearing.
¶9 	At the hearing on the motion to withdraw the guilty plea,
Sharp’s counsel began by informing the court that a letter,
written to Sharp, recently “was intercepted at the jail” and was
“purportedly from the victim in this case.” Counsel continued,
“[I]t is an exculpatory letter basically, which I believe would, if it
is verified as being from [Victim], would be another basis to
withdraw [Sharp’s] plea.” Counsel explained that the State had
the actual letter while she had an electronic copy. In response,
the 	prosecutor 	stated, 	“We 	have 	asked 	Unified 	Police
Department to investigate. We believe it’s a forgery. . . . And we
don’t have any word [from] them yet on the status of that
investigation.” 	The 	court 	thus 	decided 	to 	proceed 	with
“handl[ing] the original motion to withdraw” while implying
that the investigation could continue and “then we can figure
out where that letter came from.”
¶10 	The court then asked Sharp to state the basis for his
motion. 	Sharp responded 	that 	he 	had “misunderstood” 	the
judge at the last hearing about whether he had “45 days to
withdraw [his] guilty plea.” Sharp also stated that his family told
him that he should “let [his appointed counsel] go and bring
on another attorney to represent [him],” but Sharp conceded

State v. Sharp
20190292-CA 	5 	2021 UT App 90
that he did not have the funds to hire a new attorney. The
prosecutor opposed Sharp’s motion to withdraw, arguing that
Sharp had given “no basis” for withdrawal and he had merely
“changed his mind.” The court then again found that Sharp’s
plea “was entered knowingly and voluntarily,” explaining to
Sharp, “I find that the Rule 11 colloquy was given in its entirety
by reference to the actual plea form itself, which your attorney
went over with you, and I see no other possible reason, no other
basis 	possible, 	that—that, 	in 	fact, 	your 	plea 	could 	be
withdrawn.”3 Having denied the written motion to withdraw,
the court scheduled the sentencing hearing. Before adjourning,
the court again addressed the letter purportedly from Victim
and indicated, “I’ll get something from the prosecution talking
about the letter . . . , and we’ll see what the investigator has to
say about that. And . . . based on what happens there, obviously,
that will make our determination as to whether we’re going to
go forward or not.”
¶11 	At the sentencing hearing six weeks later, the court first
inquired 	whether 	Sharp 	and 	his 	counsel 	had 	reviewed 	the
presentence investigation report (the PSI). Counsel responded,
“[W]e cannot go forward,” and explained that Sharp’s case
“seems to be reassigned in [her] office”; that Sharp had written
to the Utah State Bar complaining about counsel, the prosecutor,
and the judge; and that counsel did not “feel like [she could]
represent him.” The court indicated that the bar complaint
3. Sharp makes no argument that the district court failed to
comply with rule 11 of the Utah Rules of Criminal Procedure
when it accepted his plea. See generally Utah R. Crim. P. 11
(setting 	forth 	the 	findings 	that 	a 	court 	must 	make 	when
accepting a guilty plea); State v. Alexander, 2012 UT 27, ¶¶ 24–27,
279 P.3d 371 (explaining that compliance with rule 11 allows the
district court to “test the knowing and voluntary nature of the
plea” 	and 	“forecloses 	many 	potential 	arguments 	that 	the
defendant’s plea was not knowingly and voluntarily made”).

State v. Sharp
20190292-CA 	6 	2021 UT App 90
would not “do that” and asked for any other reason to delay.
Counsel 	responded 	that 	the 	police 	were 	“investigating 	the
source” of the letter purportedly from Victim and stated, “I think
that investigation needs to be completed before we can go
forward with sentencing.” The court disagreed. After learning
that Victim and her mother were present at the hearing, the
court decided to proceed with sentencing. The court again asked
if Sharp and his counsel had reviewed the PSI, and when
counsel said she had not, the court told counsel that it would
take a recess to allow for that review before sentencing. Counsel
again protested that she could not represent Sharp and that the
case was being reassigned. The court responded, “Well, I think
you can represent him. The fact that he filed a bar complaint, to
me—I mean, he filed one against me. He filed one against the
prosecutor. I don’t think that has any bearing on this.”
¶12 	When 	proceedings 	resumed 	after 	the 	recess, 	counsel
indicated that she had reviewed the PSI with Sharp and that it
contained no factual inaccuracies. Counsel reiterated that she did
not think that they could proceed, citing the fact that the court
did 	not 	have 	the 	alleged 	recantation 	letter. 	The 	court
acknowledged that it did not have the letter but it had “the
implication to what the letter is, though.” Counsel responded
that the “letter, item by item, is exculpatory in every event that
was alleged in this case.” The court then queried, “And how
does that affect . . . him knowing the plea?” Counsel answered,
“[T]hat’s being investigated by [the police].” Unsatisfied with
that answer, the court tried again, asking “how that letter has
anything to do with a person giving a knowing, voluntary, and
intentional plea.” Counsel responded, “Well, Your Honor, it’s
completely exculpatory, and that is being investigated by [the
police].” The court then “accept[ed]” Sharp’s objection, noting
that Sharp had made his record.
¶13 	Counsel then read Sharp’s bar complaint aloud in court.
Although the court acknowledged that counsel had said she
could not “represent Mr. Sharp effectively in the sentencing,” the

State v. Sharp
20190292-CA 	7 	2021 UT App 90
court nevertheless asked counsel to “[g]o ahead,” and she then
presented argument pertaining to sentencing:
Mr. 	Sharp 	did 	take 	responsibility 	for 	what
happened here. He did plead guilty. He agreed
that he would go to prison, 15 to life. That is not an
easy thing to do. And other than that, I don’t know
what to tell you. He’s accepted responsibility at the
time of [the plea]. However, now he’s saying he’s
innocent . . . and there’s evidence to support that.
The court stated, “I don’t agree with the last part,” and then
invited the prosecutor to argue.
¶14 	The prosecutor began by observing that, from her vantage
point, 	Sharp’s 	counsel 	had 	“been 	very 	effective” 	and 	had
“explored all of the issues raised by the investigation.” The
prosecutor then asserted that Sharp had bought a cell phone for
eleven-year-old Victim, communicated with her on it by “saying
the things that he was going to do sexually to her,” and actually
sexually abused her. The prosecutor maintained that Sharp was
“guilty not only of the crime he pled guilty to, but all of the
crimes in the [original] information,” and 	asserted that the
presumptive 	sentence 	of 	fifteen 	years 	to 	life 	was 	“a 	very
appropriate sentence.” The court asked the prosecutor to explain
“what 	Mr. 	Sharp 	actually 	participated 	in 	with 	this 	young
girl,” 	and 	the 	prosecutor 	provided 	some 	details 	of 	the
abuse. Sharp’s counsel then interjected that she “dispute[d]
some of those facts.” The court said, “[T]hat’s fine,” and asked
counsel to move aside so that Victim’s mother could address the
court.
¶15 	Victim’s 	mother 	stated 	that 	while 	Victim 	was 	“very
strong” and “resilient,” what Sharp “put [Victim] through was
devastating.” The mother hoped that Sharp would not “get [the]
chance” to “do this to another family,” and she further stated,
“[I]f it were up to me, I’d like him to stay in prison for the rest of

State v. Sharp
20190292-CA 	8 	2021 UT App 90
his life.” The mother added that if Victim “had her way, [she]
would not let him get out of prison either.”
¶16 	The court then addressed Victim directly, telling her,
among other things, that the “fact that [she] came forward and
said what [she] did . . . wasn’t easy” and that made her “a hero.”
The court also told Victim that she bore “no blame” for Sharp’s
“despicable acts.”
¶17 	Turning to Sharp, the court asked him whether there was
“anything 	[he] 	would 	like 	[the 	court] 	to 	know 	before”
sentencing. Sharp answered, “No.” The court followed up, “You
don’t have anything to say?” He replied, “No, sir.”
¶18 	The court then began to make a record of its rulings. It
observed that the case had “been in the system for a long time
now,” 	given 	that 	the 	case 	was 	filed 	in 	January 	2018 	and
sentencing was occurring in March 2019. In the court’s view, this
“slow ride through the system” was “painful, particularly for the
family.” The court further observed that Sharp’s counsel had
“done an outstanding job” and had “pushed the State on every
issue that was important.”
¶19 	The court next addressed Sharp’s guilty plea, finding
that he “entered it knowingly, voluntarily, intelligently” and
that 	he 	“knew 	exactly 	what 	he 	was 	pleading 	guilty 	to.”
The court found that Sharp had the plea “form read to him,”
that the court “went over the rights with him” and confirmed
he “knew all those rights,” and that Sharp acknowledged in
open court that he understood. It observed that soon afterward,
Sharp had “a little bit of buyer’s remorse” and wanted to
withdraw 	his 	plea. 	Notably, 	with 	regard 	to 	the 	letter
purportedly from Victim, the court explained, “[T]here’s some
alleged 	letter 	out 	there 	that 	really, 	in 	my 	opinion, 	doesn’t
have any effect on anything, particularly in the state it’s in right
now.” The court thus denied Sharp’s oral motion to withdraw
his plea.

State v. Sharp
20190292-CA 	9 	2021 UT App 90
¶20 	The court then addressed the appropriate sentence for
Sharp. 	It 	remarked 	that 	Sharp 	had 	put 	Victim 	through
“something 	extremely 	terrible” 	and 	that 	his 	conduct 	was
“unbelievable” and “unforgiveable.” The court sentenced Sharp
to a prison term of fifteen years to life. With regard to when
Sharp would become eligible for parole, the court added, “I’m
going to write a personal letter to the Board of Pardons and that
letter is going to indicate that you should never, ever walk on
this earth outside of that prison again. I expect that you’ll die in
prison, which I think that’s what you should do.”
¶21 	Finally, the court put “one more thing” on the record.
Regarding Sharp’s bar complaint, the court found “absolutely no
basis for any part of that letter.” It expressed its view that the bar
complaint was “another little trick to kind of push the system
out.” Because the complaint was “nothing more than that” and
the case had been “going now for 14 months,” the court gave the
complaint no credence. The court ended the sentencing hearing
by saying to Sharp, “When you entered that plea, if, in fact, you
knew this was all false, you wouldn’t have entered the plea, but
you did. Good luck to you.”
ISSUES AND STANDARDS OF REVIEW
¶22 	On 	appeal, 	Sharp 	raises 	three 	main 	issues 	for 	our
consideration. 	First, 	Sharp 	contends 	that 	the 	district 	court
abused its discretion when it denied his oral motion to withdraw
his guilty plea even though Victim purportedly wrote a letter
recanting 	her 	accusations 	of 	abuse.4 	In 	the 	alternative, 	he
contends that the court abused its discretion by not reserving its
ruling on the motion to withdraw until the investigation into the
letter could be completed. “We review the denial of a motion to
4. Sharp does not challenge the court’s denial of his written
motion to withdraw.

State v. Sharp
20190292-CA 	10 	2021 UT App 90
withdraw 	a 	guilty 	plea 	under 	an 	abuse 	of 	discretion
standard . . . .” State v. Gardner, 2019 UT App 78, ¶ 7, 442 P.3d
1262 (cleaned up). A district court’s decision regarding whether
to 	continue 	a 	matter 	is 	generally 	reviewed 	for 	abuse 	of
discretion. See State v. Taylor, 2005 UT 40, ¶ 8, 116 P.3d 360.
¶23 	Second, Sharp contends that the district court abused its
discretion when it did not continue sentencing to allow for,
among 	other 	things, 	further 	investigation 	into 	the 	letter’s
authenticity. 	“This 	court 	reviews 	decisions 	involving
continuances of sentencing only for abuse of discretion.” State v.
Rivera, 2016 UT App 202, ¶ 12, 385 P.3d 685.
¶24 	Third, Sharp contends that the district court “imposed an
illegal sentence when it denied Sharp his right to allocution.”
“The denial of the right to allocution is an issue of law that we
review for correctness.”5 West Valley City v. Walljasper, 2012 UT
App 252, ¶ 6, 286 P.3d 948.
ANALYSIS
I. Plea Withdrawal
¶25 	Sharp first contends that the “district court abused its
discretion when it denied Sharp’s motion to withdraw his guilty
plea based on a letter which supported a conclusion that Sharp
was actually innocent of the alleged crime.” According to Sharp,
5. The State asserts that the allocution issue and aspects of the
continuance issues are not preserved for our review. But because
we resolve these issues on the merits in the State’s favor, we
need not resolve the preservation questions. See State v. Kitches,
2021 UT App 24, ¶ 28, 484 P.3d 415 (“[I]f the merits of a claim
can easily be resolved in favor of the party asserting that the claim
was 	not 	preserved, 	we 	readily 	may 	opt 	to 	do 	so 	without
addressing preservation.”).

State v. Sharp
20190292-CA 	11 	2021 UT App 90
the letter “altered the evidentiary landscape to such a degree
that Sharp cannot be said to have had sufficient awareness of the
relevant 	circumstances 	or 	an 	understanding 	of 	the 	law 	in
relation to the facts when he pled guilty.” Thus, Sharp asserts,
the “potentially exculpatory” letter “demonstrated that his guilty
plea 	was 	not 	knowing 	and 	voluntary” 	and 	warranted 	its
withdrawal. Alternatively, he contends that the court abused its
discretion by ruling on the motion to withdraw before the
investigation into the letter had been completed and before the
court saw the actual letter. We conclude that Sharp’s claim of
error is unavailing.
A
¶26 	Any attempt to withdraw a guilty plea “is governed by
statute.” State v. Alexander, 2012 UT 27, ¶ 19, 279 P.3d 371. Utah’s
plea withdrawal statute provides that a guilty plea “may be
withdrawn only upon leave of the court and a showing that it
was not knowingly and voluntarily made.” Utah Code Ann.
§ 77-13-6(2)(a) (LexisNexis 2017); see also State v. Ruiz, 2012 UT
29, ¶ 37, 282 P.3d 998 (explaining that the defendant bears the
burden of proof on a motion to withdraw a plea). “To show that
a plea was not knowing and voluntary, a defendant must show
either that he did not in fact understand the nature of the
constitutional 	protections 	that 	he 	was 	waiving 	by 	pleading
guilty, or that he had ‘such an incomplete understanding of the
charge that his plea cannot stand as an intelligent admission of
guilt.’” Alexander, 2012 UT 27, ¶ 23 (quoting Henderson v. Morgan,
426 U.S. 637, 645 n.13 (1976)). Sharp focuses his argument on the
latter—whether he “had such an incomplete understanding of
the charge that his plea cannot stand as an intelligent admission
of guilt.” Id. (cleaned up).
¶27 	To have a complete understanding of the charge, “a
defendant must possess ‘an understanding of the law in relation
to the facts.’” Id. ¶ 29 (quoting Boykin v. Alabama, 395 U.S. 238,
243 	n.5 	(1969)). 	“In 	determining 	whether 	a 	defendant

State v. Sharp
20190292-CA 	12 	2021 UT App 90
understands the law in relation to the facts, courts review
whether 	the 	defendant 	understood 	the 	critical 	or 	essential
elements of the crime to which he pled guilty.” Id. ¶ 30 (cleaned
up). A defendant thus “must understand what critical elements
the State would have to prove beyond a reasonable doubt to
secure a conviction.” Id. ¶ 35. “Without knowing the elements
that 	the 	State 	would 	have 	to 	prove, 	a 	defendant 	cannot
intelligently weigh the risks and benefits of going to trial versus
pleading guilty.” Id. (cleaned up).
¶28 	Sharp 	has 	not 	established 	that 	he 	lacked 	an
understanding of “the law in relation to the facts” of his case
when he pleaded guilty. See id. ¶ 30. To the contrary, Sharp
acknowledged in his plea statement that he understood that by
pleading guilty he would be admitting that he committed the
crime of aggravated sexual abuse of a child. And the factual
basis for the plea was explained to Sharp both in the plea
statement and by his counsel at the change of plea hearing. The
agreed-on factual basis was as follows:
On or about June 1, 2017, through December 21,
2017, 	in 	Salt 	Lake 	County, 	Mr. 	Sharp[,] 	under
circumstances not amounting to rape of a child,
object rape of a child, sodomy upon a child, or an
attempt to commit any of these offenses, touched
the buttocks of a child, [Victim], with the intent to
arouse the sexual desire of any person and Mr.
Sharp was in a position of special authority that
allowed 	him 	to 	exercise 	undue 	influence 	over
[Victim].
This factual basis included the elements of the offense in relation
to the factual allegations in Sharp’s case. Moreover, Sharp told
the court at the change of plea hearing that this description of
events did happen and that he was pleading guilty because he
was in fact guilty. See supra ¶ 7. The district court thus found
Sharp’s plea “to be knowing and voluntary.” And Sharp simply

State v. Sharp
20190292-CA 	13 	2021 UT App 90
has not explained—either before the district court or this court—
how 	the 	alleged 	recantation 	letter 	specifically 	impacted 	his
understanding of the “critical or essential elements of the crime
to which he pled guilty.” See Alexander, 2012 UT 27, ¶ 30 (cleaned
up).
¶29 	Instead, Sharp invites us to conclude that a plea may be
rendered involuntary under the current plea withdrawal statute6
“[w]here post-plea but pre-sentence newly discovered evidence
demonstrates 	the 	defendant’s 	innocence.” 	In 	extending 	this
invitation, Sharp acknowledges that he is not aware of any Utah
caselaw applying the current statute under such circumstances.
In other words, although Utah courts have concluded that the
discovery of post-plea, pre-sentencing evidence demonstrating
factual innocence may constitute “good cause” to withdraw a
plea under the pre-2003 version of the plea withdrawal statute,7
Utah courts have yet to directly address whether the discovery
6. The Utah Legislature amended the plea withdrawal statute in
2003, “chang[ing] the standard for withdrawal of guilty pleas
from good cause to a showing that the plea was not knowingly
and voluntarily entered.” State v. Ruiz, 2012 UT 29, ¶ 39, 282 P.3d
998 (Durham, J., concurring in part and dissenting in part); see
also Utah Code Ann. § 77-13-6(2)(a) (LexisNexis 2017).
7. See State v. Gallegos, 738 P.2d 1040, 1041–42 (Utah 1987)
(reversing the denial of a motion to withdraw a guilty plea
under the pre-2003 version of the plea withdrawal statute based
on the victim’s under-oath recantation of her testimony accusing
her boyfriend of assault), superseded by statute as stated in Ruiz,
2012 UT 29; State v. Mildenhall, 747 P.2d 422, 424 (Utah 1987)
(applying the pre-2003 good cause standard to the defendant’s
motion to withdraw a guilty plea based on a victim’s recantation
of the allegations giving rise to the charge); State v. Walker, 2013
UT App 198, ¶¶ 27–32, 308 P.3d 573 (same).

State v. Sharp
20190292-CA 	14 	2021 UT App 90
of such evidence could render a plea unknowing or involuntary
under the current statute.8
¶30 	The State, however, urges us not to resolve this question
on this record, arguing that “because Sharp cannot demonstrate
that 	the 	purported 	recantation 	letter 	truly 	concerns 	factual
innocence,” the question he poses is purely hypothetical. It
posits that “[w]here such evidence is not in the record, any
opinion from this Court on the matter would amount to an
advisory opinion.” We agree with the State.
¶31 	Whether post-plea, pre-sentence evidence demonstrating
a 	defendant’s 	innocence 	may 	render 	a 	plea 	unknowing 	or
involuntary under the current plea withdrawal statute presents
an interesting question. But when Sharp made his motion to
withdraw his guilty plea, there was no such evidence before the
district court. All the court had before it, at the time the motion
to withdraw was made, was a proffer that there might be
evidence supporting Sharp’s innocence. Sharp never presented
even a copy of the alleged recantation letter to the court so that it
could assess whether the letter, based on its content, tended to
show his innocence. And although Sharp contends that his
proffer was undisputed and that the court was thus obliged to
accept it, the proffer was limited. Sharp and the State agreed that
a letter purporting to be from Victim was received at the jail, but,
as Sharp concedes, the State “actively challenged the authenticity
of the letter” and expressed its belief that it was a forgery.
8. The closest our appellate courts have come was in State v.
Archuleta, 	2019 	UT 	App 	136, 	449 	P.3d 	223. 	There, 	without
resolving the question, this court expressed some skepticism
about the proposition, observing that “evidence discovered after
entry of a plea does not necessarily go to whether the plea was
knowingly and voluntarily made at the time it was entered.” See
id. ¶ 32.

State v. Sharp
20190292-CA 	15 	2021 UT App 90
¶32 	Thus, 	even 	assuming 	the 	discovery 	of 	post-plea,
pre-sentence 	evidence 	could 	render 	a 	plea 	unknowing 	and
involuntary under the current plea withdrawal statute, Sharp
has not shown that the court abused its discretion in denying his
motion in the state it was in. Only if the letter were proved to be
authentic could it potentially support the conclusion that Sharp
is factually innocent. Yet no showing of authenticity was made.
And because Sharp did not present to the court actual evidence
demonstrating his innocence, the premise of his argument fails,
and we must leave for another day the question of whether such
evidence could render a plea unknowing and involuntary under
the current plea withdrawal statute.9
B
¶33 	In the alternative, Sharp argues that the district court
acted prematurely and instead should have deferred its ruling
on the motion to withdraw so that the police investigation into
the letter could be completed.
¶34 	A 	district 	court 	typically 	has 	broad 	discretion 	over
whether to continue proceedings. See State v. Taylor, 2005 UT 40,
¶ 8, 116 P.3d 360. An abuse of that discretion “occurs when a
trial court denies a continuance and the resulting prejudice
affects the substantial rights of the defendant, such that a review
9. Sharp resists this conclusion, arguing that this court should
resolve 	the 	legal 	question 	“because 	new 	evidence 	was
discovered . . . , namely, a letter intercepted at the jail from the
alleged victim.” But even if we were to conclude that newly
discovered 	evidence 	demonstrating 	factual 	innocence 	could
render a plea unknowing or involuntary, that ruling would not
benefit Sharp. His argument assumes the letter’s authenticity
and 	is 	nonspecific 	as 	to 	its 	actual 	contents. 	Without 	some
demonstration that the letter was authentic, Sharp could only
speculate that such evidence exists.

State v. Sharp
20190292-CA 	16 	2021 UT App 90
of the record persuades the court that without the error there
was a reasonable likelihood of a more favorable result for the
defendant.” Id. (cleaned up); see also State v. Peraza, 2020 UT 48,
¶ 59, 469 P.3d 1023 (“When a defendant moves for a continuance
under the common law, it is the defendant’s burden to prove
that a denial of the motion would be prejudicial.”). In this case,
Sharp 	would 	have 	to 	show 	that 	there 	was 	a 	reasonable
likelihood of a more favorable result had the court reserved
ruling on the motion to withdraw until the investigation into the
letter’s authenticity concluded. See Taylor, 2005 UT 40, ¶ 8. He
therefore has to show it is reasonably likely that the letter would
have been authenticated, that it demonstrated his innocence, and
that it would have led the district court to conclude that the
evidence rendered his plea unknowing and involuntary.
¶35 	Sharp has not met this burden as we are not persuaded
that the results of a finished investigation would have been
reasonably likely to lead to a better result for Sharp. Even
assuming late-arising exculpatory evidence could reach back
and render a plea unknowing and involuntary, see supra ¶¶ 29–
32, there is nothing in the record to suggest it is reasonably likely
that the letter was an authentic retraction. If we were to remand
this matter for the court to reconsider the motion to withdraw
Sharp’s plea, we would be doing so based on nothing more than
speculation that the letter would be proved authentic. See State v.
Maestas, 	2012 	UT 	46, 	¶ 	286, 	299 	P.3d 	892 	(stating 	that
“speculation that prejudice occurred is insufficient to satisfy [an
appellant’s] burden” on appeal); cf. State v. Kirkwood, 2002 UT
App 128, ¶¶ 13–17, 47 P.3d 111 (explaining that appellate courts
may not simply “speculate as to whether the alleged error was
harmful”).
¶36 	Indeed, 	most 	of 	the 	information 	before 	the 	court
suggested that Victim’s allegations were credible and that she
had not completely recanted. For instance, the court watched
Victim’s interview in which she described Sharp’s abuse, and it
found 	Victim 	to 	be 	“intelligent, 	articulate 	and 	credible.” 	It

State v. Sharp
20190292-CA 	17 	2021 UT App 90
further noted that her answers were “internally consistent and
included plausible details” about anatomy and clothing. Victim
was able to describe matters that are normally outside the
knowledge of an eleven-year-old, and Victim’s statements were
corroborated by Sharp’s sexually explicit messages that he sent
to her. This evidence lent credibility to Victim’s allegations.
¶37 	On 	the 	other 	hand, 	the 	evidence 	that 	Victim 	had
completely recanted was comparatively weak. For example, the
letter was intercepted at the jail, but it was unknown what the
letter looked like and how a child would have known how to
properly address and send a letter to Sharp in jail. A complete
recantation on Victim’s part was also inconsistent with her and
her mother’s presence and conduct at the sentencing hearing.
Additionally, the letter surfaced in the context of Sharp having
“buyer’s remorse” over his plea and lodging a bar complaint as a
“little trick” to delay the proceedings. This context suggested
that the letter could well be yet another ploy.
¶38 	Thus, on this record, we cannot conclude that Sharp has
shown that the district court abused its discretion in not waiting
to resolve the motion to withdraw Sharp’s guilty plea until after
the investigation into the letter’s authenticity was complete. The
authenticity of the letter remains unknown, and nothing in the
record makes it reasonably likely that the letter would have been
found authentic.10
10. To the extent Sharp suggests that the State’s possession of the
letter hindered his ability to show its authenticity, Sharp has not
shown that any effort was made to reach a resolution on this
issue in the six weeks between his hearings. In addition, other
case circumstances potentially could be relied on to show a
reasonable probability that another piece of evidence would
eventually be authenticated. The other circumstances of this
case, however, do not lend such support. See supra ¶¶ 36–37.
(continued…)

State v. Sharp
20190292-CA 	18 	2021 UT App 90
¶39 	In sum, Sharp has not shown that he entered his guilty
plea without understanding the law in relation to the facts. We
further conclude that Sharp has not established that the district
court exceeded its discretion in denying his motion to withdraw
his guilty plea or that he was prejudiced by the court’s refusal to
extend the proceedings.
II. The Refusal to Continue Sentencing
¶40 	Sharp next asserts that if we do not allow him to return to
the district court to withdraw his plea, this court instead should
vacate his sentence and remand for a new sentencing hearing.
On three grounds, Sharp contends that the district court abused
its discretion when it proceeded to sentencing over his counsel’s
objection. 	We 	address 	each 	ground 	and 	conclude 	that
resentencing is not warranted.
(…continued)
Sharp also argues that the district court should have waited
until it was able to review the actual letter, but the court was not
obliged to defer its ruling on Sharp’s motion to withdraw until it
“could personally review the letter.” Although Sharp’s counsel
had an electronic copy of the letter, she did not offer that copy to
the district court. Because Sharp “never sought to submit [a copy
of the letter] to the [district] court, the court could not have erred
by failing to consider [it].” See State v. Kelson, 2015 UT App 91,
¶ 13 n.3, 348 P.3d 373. Under the totality of the circumstances,
we agree with the State that the court acted within its discretion
to rule without waiting longer to review the letter.
Relatedly, Sharp asserts that the “district court’s failure to
consider all of the facts—namely, the letter—renders its findings
clearly erroneous.” This argument is unavailing for the same
reason, see id., and we are not otherwise persuaded that the court
made 	any 	clearly 	erroneous 	findings, 	see 	generally 	State 	v.
Gardner, 2019 UT App 78, ¶ 7, 442 P.3d 1262 (reviewing the
district court’s findings of fact for clear error).

State v. Sharp
20190292-CA 	19 	2021 UT App 90
¶41 	The decision of whether to continue sentencing rests
within the district court’s sound discretion. State v. Rivera, 2016
UT App 202, ¶¶ 12–13, 385 P.3d 685 (explaining that the district
court’s decision not to grant a continuance for sentencing was an
exercise of discretion that we review only for abuse). An abuse
of 	discretion 	occurs 	when 	the 	court’s 	decision 	is 	“clearly
unreasonable and arbitrary.” Clarke v. Clarke, 2012 UT App 328,
¶ 19, 292 P.3d 76 (cleaned up). And even when a district court
exceeds its discretion in refusing to postpone the sentencing
proceedings, the appellant must demonstrate prejudice from the
district court’s decision. See Rivera, 2016 UT App 202, ¶ 14. Thus,
we will reverse the denial of a continuance only “when our
review of the record persuades us that without the error there
was a reasonable likelihood of a more favorable result for the
defendant.” State v. Torres-Garcia, 2006 UT App 45, ¶ 10, 131 P.3d
292 (cleaned up); accord State v. Taylor, 2005 UT 40, ¶ 8, 116 P.3d
360.
¶42 	First, Sharp asserts that “the district court abused its
discretion by ordering that sentencing proceed before the [oral]
motion to withdraw [his plea] was resolved.” According to
Sharp, the district court contravened the plea withdrawal statute
by 	“order[ing] 	that 	sentencing 	proceed 	before 	denying 	the
pending motion to withdraw.” But we agree with the State that
the statute does not require that the motion be resolved before
the court hears sentencing evidence. The plea withdrawal statute
provides, “Sentence may not be announced unless the motion [to
withdraw the plea] is denied.” Utah Code Ann. § 77-13-6(2)(b)
(LexisNexis 2017). Thus, it requires only that the court deny the
motion before announcing the sentence. See id. The district court
did exactly that. At the sentencing hearing, the court announced
its 	denial 	of 	Sharp’s 	oral 	motion 	to 	withdraw 	before 	it
announced Sharp’s sentence.
¶43 	Second, Sharp argues that “the district court abused its
discretion by forcing Sharp to proceed with sentencing where
there were questions about whether defense counsel would

State v. Sharp
20190292-CA 	20 	2021 UT App 90
continue to represent him and where defense counsel had not
previously had the opportunity to review the presentence report
with Sharp.” True, Sharp did lodge a bar complaint against his
counsel. At the beginning of the sentencing hearing, defense
counsel expressed her belief that she could not represent Sharp
effectively 	at 	sentencing, 	noting 	that 	Sharp 	wrote 	a 	bar
complaint and that his case “seems to be reassigned in [her]
office.” Counsel also read the complaint aloud in open court. But
the court found no basis to disqualify Sharp’s defense counsel—
a decision Sharp does not challenge on appeal. And although
defense counsel indicated at the beginning of the hearing that
she had not yet reviewed the PSI with Sharp, the court took a
recess for that express purpose. When the hearing resumed,
counsel confirmed to the court that she had reviewed the PSI
with Sharp. Given that the court allowed defense counsel time to
review the PSI and saw no reason that defense counsel could not
represent Sharp at the hearing, we conclude that the court acted
reasonably under the circumstances.
¶44 	Third, 	Sharp 	asserts 	that 	proceeding 	with 	sentencing
forced his counsel to “take an untenable position: that Sharp had
taken responsibility for his actions but also that the victim had
recanted, thereby showing that Sharp was factually innocent of
the crime pled to.” Sharp argues that a continuance would have
allowed for the police investigation into the letter to conclude
and that his counsel could then have made a “cohesive, logical
argument” 	that 	Sharp 	took 	responsibility 	for 	his 	crime 	by
pleading guilty or, alternatively, that Victim “had withdrawn
her allegations against Sharp.” Sharp also asserts that either
argument 	would 	have 	been 	likely 	to 	bring 	about 	“a 	more
favorable result” for him.
¶45 	Even assuming, without deciding, that the court should
have continued the hearing to allow time for the development of
a 	more 	cohesive 	argument, 	we 	are 	unconvinced 	that 	such
argument would have been reasonably likely to lead to a more
favorable sentence for Sharp. If counsel had argued only that

State v. Sharp
20190292-CA 	21 	2021 UT App 90
Sharp was accepting responsibility for his crime, that argument
would have been directly contradicted by Sharp’s own statement
in the PSI that he “didn’t do it” and by the PSI’s notes that Sharp
denied committing the crime and failed to take responsibility for
his actions. On the other hand, if counsel had argued after
further 	investigation 	that 	Victim’s 	recantation 	letter 	was
authentic, that argument would have been undercut by the fact
that Victim and her mother were present at sentencing and
signaled their preference for Sharp to stay in prison for life. That
argument also likely would not have overcome the evidence of
Sharp’s guilt, including his own admission, Victim’s credible
interview, 	and 	Sharp’s 	sexually 	explicit 	messages 	that
corroborated Victim’s allegations. See supra ¶ 36. In deciding on
a fifteen-to-life prison sentence, the district court called Sharp’s
conduct toward Victim “unbelievable” and “despicable,” and
observed that Sharp put Victim through “something extremely
terrible.” 	Noting 	that 	it 	believed 	Sharp’s 	conduct 	was
“unforgivable,” 	the 	court 	even 	went 	so 	far 	as 	to 	state 	its
intention to write a personal letter to the Board of Pardons and
Parole so that when Sharp became eligible for parole, the Board
would know the court thought that Sharp “should never, ever
walk on this earth outside of that prison again.” In view of these
statements and the other circumstances present here, we see it as
unlikely that either one of the possible cohesive arguments that
Sharp could have made with more time would have swayed the
district court toward a more lenient sentence.11
¶46 	For the foregoing reasons, we decline to vacate Sharp’s
sentence.
11. In connection with his challenge to the district court’s refusal
to continue sentencing, Sharp also argues that the court abused
its discretion in making factual findings “without first reviewing
the letter and learning of its authenticity.” But this argument
fails for the same reasons discussed above. See supra ¶¶ 35–38.

State v. Sharp
20190292-CA 	22 	2021 UT App 90
III. Allocution
¶47 	Finally, 	Sharp 	contends 	that 	we 	should 	vacate 	his
sentence because it was imposed in violation of his right to
allocution. Specifically, he argues that “[w]hile the district court
offered Sharp the right to speak in his own behalf, it limited
defense counsel’s discussion of relevant information that bore on
mitigation.” We disagree.
¶48 	“The right to allocution ‘is an inseparable part’ of a
defendant’s right under the Utah Constitution to be present in a
criminal prosecution.” State v. Tingey, 2014 UT App 228, ¶ 8, 336
P.3d 608 (quoting State v. Anderson, 929 P.2d 1107, 1111 (Utah
1996)); see also Utah Const. art. I, § 12 (“[T]he accused shall have
the right to appear and defend in person and by counsel . . . .”).
The 	Utah 	Rules 	of 	Criminal 	Procedure 	codify 	this 	right,
providing that “[b]efore 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).12
¶49 	Our supreme court has instructed that rule 22(a) “requires
trial courts to affirmatively provide the defense an opportunity
to address the court and present reasonably reliable and relevant
information in the mitigation of a sentence.” State v. Wanosik,
2003 UT 46, ¶ 23, 79 P.3d 937. “In this context, the ‘defense’
refers to both the defendant and defense counsel.” Tingey, 2014
UT App 228, ¶ 8 (citing Wanosik, 2003 UT 46, ¶ 23). Thus, rule
22(a) 	“provides 	that 	a 	defendant 	and 	defense 	counsel 	be
afforded 	an 	opportunity 	to 	make 	a 	statement 	and 	present
information.” State v. Tapusoa, 2020 UT App 92, ¶ 14, 467 P.3d
12. We cite the current version of rule 22(a) for convenience.
Although this rule has been amended since the relevant time, the
alterations are immaterial to this case.

State v. Sharp
20190292-CA 	23 	2021 UT App 90
912. “A trial court can ‘affirmatively provide’ the defense an
opportunity 	for 	allocution 	by 	extending 	a 	‘simple 	verbal
invitation or question,’ but ‘it is the court which is responsible
for raising the matter.’” Tingey, 2014 UT App 228, ¶ 8 (quoting
Wanosik, 2003 UT 46, ¶ 23). “Violations of a defendant’s right to
allocution 	usually 	involve 	situations 	where 	the 	court 	has
prevented or prohibited the defendant from speaking altogether
or 	imposed 	sentence 	in 	the 	defendant’s 	absence.” 	State 	v.
Graziano, 2014 UT App 186, ¶ 5, 333 P.3d 366. In contrast, “a
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.” Tingey, 2014 UT App
228, ¶ 9 (cleaned up).
¶50 	Because Sharp was present at the sentencing hearing and
the district court asked him directly whether he had anything he
wanted 	to 	say, 	the 	court 	inarguably 	afforded 	Sharp 	an
opportunity to make a statement before sentencing. See Tapusoa,
2020 UT App 92, ¶ 12. The court similarly invited defense
counsel to speak regarding sentencing. Still, Sharp contends on
appeal that the district court violated his right to allocution by
“limit[ing] defense counsel’s discussion of relevant information.”
According to Sharp, the court refused to hear from defense
counsel in two instances during the sentencing hearing.
¶51 	The first instance occurred soon after defense counsel
discussed the alleged recantation letter, Sharp’s oral motion to
withdraw, 	and 	Sharp’s 	bar 	complaint. 	The 	court 	expressed
appreciation for defense counsel’s concerns but decided to “go
forward 	with 	sentencing.” 	The 	court 	then 	invited 	defense
counsel 	to 	“[g]o 	ahead,” 	and 	defense 	counsel 	addressed
sentencing concerns in this exchange:
[Defense counsel]: Your Honor, Mr. Sharp did take
responsibility for what happened here. He did
plead guilty. He agreed that he would go to prison,
15 to life. That is not an easy thing to do. And other

State v. Sharp
20190292-CA 	24 	2021 UT App 90
than that, I don’t know what to tell you. He’s
accepted responsibility at the time of plead[ing].
However, now he’s saying he’s innocent—
The Court: I understand.
[Defense 	counsel]:—and 	there’s 	evidence 	to
support that.
The Court: Okay. Well, I don’t agree with the last
part. But go ahead, counselor.
The court then asked the prosecutor to address sentencing.
Referring 	to 	this 	exchange, 	Sharp 	argues 	that 	the 	court
improperly 	interfered 	with 	defense 	counsel’s 	argument 	by
interrupting after a few sentences and “asserting that it did not
‘agree with the’ idea that there was evidence to support a claim
of innocence.”
¶52 	We read the transcript differently. In our view, the court
afforded defense counsel an opportunity to provide pertinent
information 	to 	sentencing. 	Defense 	counsel 	took 	that
opportunity, albeit briefly, and before she mentioned that Sharp
was “now . . . saying he’s innocent,” counsel suggested that she
had little more to tell the court. While the court did interject that
it 	disagreed 	that 	“there’s 	evidence 	to 	support” 	innocence,
defense counsel did not indicate a need to follow up. And
because the transcript shows that, overall, defense counsel was
an engaged and assertive advocate throughout the hearings, we
think it unlikely that counsel would have stood idly by if she
actually had more to add at that juncture. Thus, we do not share
Sharp’s 	view 	that 	the 	court 	“limited 	defense 	counsel’s
discussion” in this first instance.
¶53 	As a second instance of alleged improper limitation on
defense 	counsel, 	Sharp 	points 	to 	a 	moment 	soon 	after 	the
prosecutor recited, at the court’s behest, some of the details of

State v. Sharp
20190292-CA 	25 	2021 UT App 90
Sharp’s 	abuse. 	Once 	the 	prosecutor 	finished 	her 	recitation,
defense counsel said, “Your Honor, I dispute some of those
facts.” The court then stated, “If you wouldn’t mind—that’s fine.
If you wouldn’t mind moving off to the side there . . . .” At that
time, the court invited Victim’s mother to speak. Referring to
this exchange, Sharp argues that the court restricted defense
counsel’s argument and instead should have allowed her to
explain 	her 	disagreement 	with 	the 	facts 	as 	stated 	by 	the
prosecutor.
¶54 	We again do not perceive a problem during this second
instance. Defense counsel completed her statement that she
“dispute[d] some of those facts” without interruption. Instead of
probing into this disagreement, the court moved on to hear from
Victim’s mother. But the court did not cut off defense counsel
and was not obligated to inquire further. The court had already
afforded Sharp and his defense counsel an opportunity to make
a statement and present information, thereby satisfying Sharp’s
right to allocution. See Tapusoa, 2020 UT App 92, ¶ 14; Tingey,
2014 UT App 228, ¶ 9. Sharp has not persuaded us otherwise.
CONCLUSION
¶55 	First, we conclude Sharp has not shown that his guilty
plea was unknowing and involuntary, that the district court
abused its discretion in denying his motion to withdraw his plea
given the state of the letter, or that he was prejudiced by the
court’s decision to rule before the investigation into the letter
was complete. Second, we conclude Sharp has not established
that the district court’s decision to proceed with sentencing was
an abuse of discretion or prejudicial. Finally, we conclude that
Sharp was afforded his right to allocution at the sentencing
hearing. We thus affirm the district court’s decisions.