State v. Rynhart

2025 UT App 148

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ROGER DEAN RYNHART,
Appellant.

Opinion
No. 20230262-CA
Filed October 17, 2025

Second District Court, Ogden Department
The Honorable Scott M. Hadley
The Honorable Camille L. Neider
No. 071900923

Roger Dean Rynhart, Appellant Pro Se
Derek E. Brown and Michael Palumbo,
Attorneys for Appellee
Pace Johnson, Attorney for Amicus Curiae
Pace Johnson Law Group

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES RYAN D. TENNEY and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1 Roger Dean Rynhart pled guilty to seven felony crimes,
including attempted rape of a child, and was sentenced to prison.
He now appeals his sentence, and he raises five claims of error,
including a due process challenge, claims of ineffective assistance
of counsel, and an assertion that the State should be equitably
estopped from denying probation based on purported
representations made by Rynhart’s defense counsel. We reject
Rynhart’s arguments and affirm his sentence.
State v. Rynhart

BACKGROUND 1

¶2 In 2006, Rynhart’s girlfriend (Mother) found sexually
explicit emails on her computer that she believed Rynhart had
sent to her ten-year-old daughter, Mindy.2 Mother then reported
to law enforcement that she believed Rynhart had sexually
abused Mindy. Mother also reported that, two years earlier, she
had found sexually explicit photographs of Rynhart and Mindy
that had been taken on a digital camera, but she indicated that she
did not report the photographs at that time because she had been
“in denial.” The explicit photographs of Mindy “appeared to have
been taken without [Mindy’s] consent,” and some of the
photographs contained images of both Mindy and “the genitals of
an adult male” whom Mother identified as Rynhart.

¶3 Mother’s report prompted an investigation, and Mindy
was interviewed at the Children’s Justice Center a few days later.
The interviewer later reported that, during the interview, Mindy
stated that she had “7 or 8 incidents of sexual encounters” with
Rynhart, including “vaginal penetration, oral sex[,] and
masturbation,” starting in April 2006. As the investigation
continued, officers searched Rynhart’s electronic devices and
found explicit photographs of Mindy. Rynhart eventually
admitted to touching Mindy on “the top of [her] vagina,”
engaging in oral sex with her, and taking the sexually explicit
photographs of her, among other things.

1. Because Rynhart entered into a plea agreement with the State,
there was no trial and resulting transcript. The facts recited here
come from the charging document, the plea agreement form, the
plea hearing, the presentence investigation report, and the
sentencing hearing. See, e.g., State v. Hintze, 2025 UT 3, n.1, 567
P.3d 506; State v. Mooers, 2018 UT App 74, ¶ 2 n.2, 424 P.3d 1126.

2. A pseudonym.

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State v. Rynhart

¶4 The State charged Rynhart with two counts of rape of a
child, one count of aggravated sexual abuse of a child, and one
count of sodomy upon a child, all first-degree felonies, as well as
five second-degree-felony counts of sexual exploitation of a
minor. The dates of these offenses, according to the charging
document, spanned approximately one month.

¶5 In September 2008, Rynhart accepted a plea offer from the
State. Under the arrangement, he agreed to plead guilty to one
count of attempted rape of a child and one count of attempted
aggravated sexual abuse of a child—counts that had been
amended down from the original counts but were still first-degree
felonies—as well as all five counts of sexual exploitation of a
minor, as originally charged. In exchange, the State agreed to
dismiss the other two first-degree-felony counts. In a written
statement accompanying his plea, Rynhart acknowledged that he
could receive “the maximum sentence that may be imposed for
each crime to which” he pled guilty and that his “sentence may
include a prison term, fine, or both.” At the time, attempted rape
of a child and attempted aggravated sexual abuse of a child were
each punishable by a term of three years to life in prison, and
sexual exploitation of a minor was punishable by a prison term of
one to fifteen years. See Utah Code §§ 76-5-402.1(2), -404.1(5), 76-
5a-3, 76-4-102(2)(c), 76-3-203(2) (2006). Rynhart also
acknowledged that his guilty plea was “the result of a plea
bargain” with the State and that “[a]ll the promises, duties and
provisions of the plea bargain, if any, [were] fully contained in
[the] statement.” He further acknowledged, that “if there is more
than one crime involved, the sentence[s] may be imposed one
after the other (consecutively).”

¶6 During the plea hearing, the district court engaged in a
colloquy with Rynhart about the punishment he could face if he
pled guilty. Defense counsel (Counsel) stated that he had
explained to Rynhart that attempted rape “carries at least three
years to life” as a “minimum mandatory prison time.” And

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State v. Rynhart

Rynhart confirmed he understood “that even though there may
be a recommendation that the penalties be less” than the
maximum potential sentences, the court “could ignore that
recommendation” and sentence Rynhart “up to the maximum
and run [the sentences] consecutive[ly].” When the court asked
whether any “promises” had been made “in connection with” his
guilty plea, Rynhart answered in the negative.

¶7 After the plea hearing, Adult Probation and Parole
prepared a presentence investigation report (the PSR), which
recommended that the district court sentence Rynhart to prison.
Specifically, the PSR recommended that Rynhart “serve one term
of 25–life, one term of 15–life, and three terms of 1–15 years in
prison.” In support of this recommendation, the PSR provided an
evaluative assessment, which asserted that Rynhart was “in
denial and [was] blaming the 10-year-old [Mindy] for initiating all
of the sexual encounters” and had “shown absolutely no remorse
or comprehension of the deep [psychological] damage” Mindy
experienced. The PSR included Rynhart’s statements from his
presentence investigation interview: that he “only touched
[Mindy] once,” that “there was no physical evidence” after
Mindy’s medical exam, and that “the police couldn’t find the
pictures.” In his statement made for purposes of the PSR, Rynhart
denied initiating the sexual encounters with Mindy, stating that
he “never . . . initiated the [first] sexual contact with any girl that
[he] . . . ever had sexual contact with, ever[,] including [Mindy].”

¶8 The PSR also included a criminal history assessment. Such
assessments create “a starting point for sentencing judges,” State
v. Monzon, 2016 UT App 1, ¶ 3 n.2, 365 P.3d 1234, by implementing
the Utah Sentencing Commission’s general matrix form to a
specific case. The matrix included in Rynhart’s PSR (the
Sentencing Matrix) generated a score of seven points based on
Rynhart’s criminal history. One point was added for “prior
misdemeanor convictions,” based on a class C misdemeanor
conviction Rynhart received in 2004 for maintaining a nuisance on

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a property. Another point was added for “prior supervision,”
because Rynhart had been placed on court-supervised probation
in the misdemeanor case. And Rynhart received an additional
point for “supervision risk,” because he apparently had trouble
completing that court-supervised probation. The most points,
however, were tallied under the “time range” category for
“number of years [Rynhart had] been offending sexually.”
Rynhart received four points there for offending for “two years or
over”; these points were apparently added because Rynhart had
taken explicit photographs of Mindy two years before he was
charged. All together, his total of seven points placed him in the
highest class for criminal history (Class III) in the Sentencing
Matrix, and his first-degree felonies were categorized in the
highest class of crime (Crime Category A). The result was a
recommended prison sentence of twenty-one years for the
attempted rape and attempted aggravated sexual abuse of a child
convictions, and sixty-four months for the sexual exploitation of a
minor convictions.

¶9 During the week before sentencing, Counsel received a
copy of the PSR. At the sentencing hearing, which took place in
November 2008, the district court began by asking Counsel
whether the suggested mandatory minimum sentences in the PSR
were correct. Counsel replied, “We went through that
downstairs,” and he clarified that Rynhart had committed the
crimes before passage of a statutory amendment that increased
the penalty for attempted rape of a child, and that, as a result, the
PSR should have specified “3-to-life” as the mandatory minimum
“under the old statute” (instead of fifteen to life or twenty-five to
life). Counsel stated that he was “hoping [the court] would ignore
the prison [sentence recommendation] and go with something
else.” But he clarified that “we knew when we pled this out that
it was [going to] be prison, and it was [going to] be three years to
life on the first two counts.” The court acknowledged that the PSR
mandatory-minimum recommendations were erroneous, and it
asked Counsel whether Rynhart was “willing to go forward with

20230262-CA 5 2025 UT App 148
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the presentence report being in error, but noting the corrections”;
Counsel stated that Rynhart was ready to proceed.

¶10 Counsel then addressed the criminal history assessment of
the PSR, arguing that “the only prior” Rynhart had was
“maintaining a nuisance,” which Counsel characterized as
“something like maintaining a junkyard” on his property.
Turning to the convictions at hand, Counsel stated that Rynhart
“doesn’t deny that he engaged in inappropriate behavior,” but
that Rynhart wanted “the court to know that he . . . believes that
. . . [Mindy] came to him, basically.” Rynhart then offered his own
direct statement to the court in which he apologized “for what
[he] did” but added that he “did not go out looking for this.”
Counsel then pointed out that the crimes were “all from one time
period . . . a single episode . . . as a single, criminal information,”
and he urged the court to run the sentences concurrently.

¶11 Mindy’s father also addressed the court, detailing the
trauma Mindy had suffered because of Rynhart’s actions. The
State followed by arguing that Rynhart should serve consecutive
prison terms “given the tender age of the victim” and the
“seriousness of what happened.” The State further argued that
Rynhart had “not taken full responsibility for what happened”
and that he was “trying to blame a 10-year-old girl for these acts.”

¶12 At the conclusion of the hearing, the court sentenced
Rynhart to three years to life in prison on the attempted rape and
attempted aggravated sexual abuse counts, and one to fifteen
years for each of the sexual exploitation of a minor counts. The
court ordered all of those sentences to run consecutively,
explaining that it was concerned that Rynhart was not taking
responsibility for his actions. The court offered its view that “a 10-
year-old’s coming on to” Rynhart was “not only at odds with her
own statement, but . . . at odds with common sense.” The court
further explained that a “10-year-old isn’t capable of making that
type of a decision and [Rynhart], as an adult, and frankly a highly

20230262-CA 6 2025 UT App 148
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educated adult, knows that.” “[F]or that reason,” the court
continued, “and for the length of time that these events occurred
over, and the number of incidents, . . . consecutive sentencing is
appropriate.” At the time, Rynhart did not appeal the court’s
sentencing order.

¶13 Later, in 2011 while serving his prison sentence,
Rynhart had a parole hearing during which the Board of
Pardons and Parole made an adjustment to the “time range”
part of the Sentencing Matrix. Per the sentencing
guidelines, four points should only be assigned “[i]f
the offender has any sex offense conviction over two years
old,” whereas only one point is assigned for the
“present offense.” See Utah Sent’g Comm’n, 2008 Adult Sentencing
and Release Guidelines 14 (2008), https://justice.utah.gov/wp-
content/uploads/AdultGuidelineManual2008.pdf [https://perma.
cc/6NPB-YETL] [hereinafter 2008 Sentencing Guidelines]. And
the guidelines instructed that the “date of conviction is
determinative for purposes of this section.” Id. Thus, the Board of
Pardons and Parole reduced Rynhart’s time range assessment
from “two years or over” to “one-time incident,” resulting in a
three-point reduction in the Sentencing Matrix, leaving him with
a total of four points.

¶14 After that, Rynhart’s case lay dormant for years. But in
2020, Rynhart filed a motion invoking rule 22 of the Utah Rules of
Criminal Procedure, asking the district court to correct his
sentence. In that motion, he argued that errors in the PSR and the
Sentencing Matrix had prejudiced him at his sentencing hearing
and that Counsel had failed to provide adequate representation
in various respects. Rynhart also argued that his three-years-to-
life sentences were “highly ambiguous” and “internally
contradictory.” No response or objection to this motion was filed
by the State, nor did Rynhart ever file a request to submit this
motion to the district court for a decision, as required. See Utah R.

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State v. Rynhart

Crim. P. 12(b). As a result, it appears that Rynhart’s rule 22 motion
remains pending in the district court. 3

¶15 Around the same time, Rynhart also filed a motion under
rule 4(f) of the Utah Rules of Appellate Procedure asking the
district court to reinstate his time to file an appeal of his sentence.
Rynhart argued that neither the district court nor Counsel ever
informed him of his right to appeal his sentence. See Utah R. App.
P. 4(f) (providing a mechanism for criminal defendants, in some
circumstances, to obtain reinstatement of their time “for filing a
direct appeal”). The court granted that motion, and Rynhart
(proceeding pro se) timely filed a notice of appeal.

ISSUES AND STANDARDS OF REVIEW

¶16 In his appeal, Rynhart challenges his prison sentence under
several legal theories. First, he argues that the statute governing
presentence investigation reports unconstitutionally deprived
him of due process of law. This issue was not preserved below,
and Rynhart asks us to review it under the doctrine of exceptional
circumstances. In this situation, we assess this issue in the first
instance, as a matter of law. See State v. Kozlov, 2012 UT App 114,
¶ 28, 276 P.3d 1207 (explaining that a plain error, ineffective
assistance of counsel, or exceptional circumstances claim
“presents a legal question that we review for correctness”).

3. Rynhart does not point us to any place in the record where his
rule 22 motion was resolved by the district court. And the State
notes in its brief that “[t]here is no order or minute entry
indicating [that] the district court has decided” the motion; based
on this, the State posits that the “motion remains pending.” The
record appears to support the State’s assertion, and therefore, for
purposes of this appeal, we proceed on the assumption that there
is no order resolving Rynhart’s rule 22 motion.

20230262-CA 8 2025 UT App 148
State v. Rynhart

¶17 Rynhart also raises two claims of ineffective assistance of
counsel. “When an ineffective assistance claim is raised for the
first time on appeal, it presents a question of law.” State v. Rivera,
2022 UT App 44, ¶ 21, 509 P.3d 257.

¶18 Next, Rynhart challenges the legality of his sentence under
rule 22 of the Utah Rules of Criminal Procedure. Usually, we
review “decisions on challenges to illegal sentences for
correctness and grant no deference to the district court.” State v.
Mullins, 2025 UT 2, ¶ 11 (cleaned up). But here, where Rynhart’s
rule 22 motion remains unresolved before the district court, his
arguments are unpreserved for our review, and (as discussed
below) he has not asserted that any exception to our preservation
requirement applies.

¶19 Finally, Rynhart argues that Counsel promised him
probation instead of a prison sentence, and that, therefore, the
State should be equitably estopped from denying probation. This
claim appears to be unpreserved, and Rynhart does not argue for
any exception to our preservation doctrine. However, because
“the merits of [this] claim can easily be resolved” in favor of the
State, we “opt to do so without addressing preservation.” State v.
Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415. And we address
whether Counsel’s purported representations are attributable to
the State as a question of law.

ANALYSIS

I. The Due Process Challenge

¶20 Rynhart first argues that Utah’s law governing presentence
investigation reports deprived him of due process of law by
preventing him from addressing errors in the PSR that harmed
him. We need not reach the merits of this argument, however,
because Rynhart’s challenge is unpreserved.

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State v. Rynhart

¶21 In challenging the constitutionality of Utah’s presentence
report statute, Rynhart compares Utah’s law to rule 32 of the
Federal Rules of Criminal Procedure, and he observes that there
are meaningful differences between the federal and state
provisions. Specifically, Rynhart points out that the federal rule
requires direct disclosure of the presentence report to the
defendant, even if the defendant has an attorney; Utah’s law, by
contrast, is satisfied by service of a copy of the report on the
defendant’s attorney, if the defendant is represented. Compare
Fed. R. Crim. P. 32(e)(2), with Utah Code § 77-18-103(4). 4 Rynhart
also notes that, under the federal rule, a presentence report must
be disclosed to the defendant thirty-five days before the
sentencing hearing, and that the rule allows fourteen days for the
defendant to object to inaccuracies in the report; Utah’s law, by
contrast, requires disclosure only “three working days” before the
sentencing hearing. Compare Fed. R. Crim. P. 32(e)(2), (f)(1), with
Utah Code § 77-18-103(4). Finally, Rynhart observes that, under
the federal scheme, the sentencing judge does not see the report
until after it has been reviewed by the parties and any objections
have been raised; under Utah’s scheme, by contrast, the
sentencing judge receives a copy of the report at the same time as
the defendant’s attorney. Compare Fed. R. Crim. P. 32(e)(1), (g),
with Utah Code § 77-18-103(4). Rynhart views the federal rule as
superior because, as he sees it, it helps ensure that errors in a
presentence report are caught and addressed before the court sees
them. Indeed, Rynhart goes so far as to assert that, because it does
not include the additional protections contained in the federal
rule, Utah’s law is unconstitutional.

4. The presentence report statute has been amended and
renumbered since Rynhart’s sentencing. At the time of his
sentencing, it was codified as Utah Code section 77-18-1(6) (2008).
Because the relevant provision has not materially changed, we
cite the current version of the code.

20230262-CA 10 2025 UT App 148
State v. Rynhart

¶22 In this case, Rynhart’s due process challenge stands
uncontested on appeal because the State did not respond to this
argument in its brief. But an appellee’s failure to respond to an
argument “does not amount to an automatic default and
consequent reversal of the lower court,” Farman-Rava v. Blu Auto
Transp. LLC, 2021 UT App 93, ¶ 5 n.2, 498 P.3d 24 (cleaned up),
and it is not “a confession of error on the part of the appellee,”
State v. Sorbonne, 2020 UT App 48, ¶ 16 n.3, 462 P.3d 409, aff’d, 2022
UT 5, 506 P.3d 545. “In such situations, we still must consider
whether the appellant has carried its burden of persuasion on
appeal,” Zions Bancorporation, NA v. Schwab, 2023 UT App 105,
¶ 14, 537 P.3d 273 (cleaned up), but that burden is significantly
lower, see AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42,
¶ 19, 496 P.3d 76 (“This is a lower standard than the typical
burden of persuasion on appeal.”). If we were to reach the merits
of Rynhart’s argument, he would need only to establish “a prima
facie showing of a plausible basis for reversal.” Id. (cleaned up);
see also Mitchell v. Arco Indus. Sales, 2023 UT App 70, ¶ 22, 533 P.3d
394 (“Our supreme court has previously held that it is appropriate
to rule in favor of an appellant if the appellant establishes a prima
facie showing of a plausible basis for reversal and the appellee
fails to brief the argument.” (cleaned up)).

¶23 But here, Rynhart acknowledges that he failed to preserve
his challenge for appellate review. We are thus confronted with
an unusual situation: an appellant has made an unpreserved
argument, and the appellee has completely failed to respond. In a
somewhat analogous situation, our supreme court noted that it is
“well within [the] prerogative” of an appellate court “to raise a
preservation issue on [its] own initiative when [lack of
preservation] provides an alternative basis for affirmance, even if
the [appellee] failed to brief the preservation argument.” See State
v. Malo, 2020 UT 42, ¶ 20 n.7, 469 P.3d 982. We choose to exercise
that prerogative here, and we therefore proceed to examine the
preservation issues despite the State’s failure to raise them.

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State v. Rynhart

¶24 Ordinarily, an issue must first be raised in the district court
to be preserved for review. See Patterson v. Patterson, 2011 UT 68,
¶ 12, 266 P.3d 828 (stating that appellate courts “generally will not
consider an issue unless it has been preserved for appeal”). The
purpose of this rule is to “put the [district] court on notice of an
issue and provide it with an opportunity to rule on it.” State v.
Florez, 2020 UT App 76, ¶ 33, 465 P.3d 307 (cleaned up). When an
issue is not properly preserved, we will not consider it on appeal
unless one of the exceptions to our preservation doctrine applies.
See State v. Low, 2008 UT 58, ¶ 19, 192 P.3d 867. And there are three
such exceptions: “plain error, ineffective assistance of counsel,
and exceptional circumstances.” State v. Johnson, 2017 UT 76, ¶ 19,
416 P.3d 443.

¶25 Here, Rynhart does not assert that the district court plainly
erred, nor does he assert that Counsel rendered ineffective
assistance by not raising a constitutional challenge to Utah’s
presentence investigation report statute. 5 Instead, Rynhart
attempts to tap into the third exception to our preservation
requirement, arguing that exceptional circumstances exist here
that permit appellate review of his unpreserved constitutional
challenge. The “exceptional circumstances” exception to our
preservation doctrine is “often invoked but rarely applied.” State
v. Dowhaniuk, 2025 UT App 100, ¶ 19, 574 P.3d 1000. Indeed, we
apply it only “where a rare procedural anomaly has either
prevented an appellant from preserving an issue or excuses a
failure to do so.” State v. Van Huizen, 2019 UT 01, ¶ 22, 435 P.3d
202 (cleaned up); see also Johnson, 2017 UT 76, ¶ 29 (stating that the
“exceptional circumstances doctrine is applied sparingly” and is
reserved “for the most unusual circumstances where our failure

5. As discussed later, Rynhart does argue that Counsel was
ineffective for failing to address certain purported errors in the
PSR. But at no point does he assert that Counsel performed
deficiently by failing to raise a constitutional due process
challenge to Utah’s presentence investigation report statute.

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State v. Rynhart

to consider an issue that was not properly preserved for appeal
would have resulted in manifest injustice” (cleaned up)). Only if
a rare procedural anomaly exists does the door open “to a deeper
inquiry” in which “additional factors must be considered to
determine whether an appellate court should reach an
unpreserved issue.” Johnson, 2017 UT 76, ¶ 29.

¶26 In this case, the record is clear: no exceptional circumstance
exists that would justify disregarding our preservation
requirement. There was no rare procedural anomaly here that
prevented Rynhart from making his constitutional challenge to
the district court in the first instance. Rynhart, through Counsel,
received a copy of the PSR in advance of the sentencing hearing,
and he was able to identify errors in it that were discussed with
the sentencing court. And Rynhart makes no assertion that he was
somehow prevented from learning about the Utah law governing
presentence reports or that he was somehow prevented from
challenging the constitutionality of that statute. In this situation,
nothing prevented Rynhart from challenging the particulars of
Utah’s statute governing presentence reports; indeed, he could
have specifically argued that any purported errors in the PSR
should have been resolved before the court received the PSR to
avoid any potential bias that might result from the court seeing an
errant recommendation. But Rynhart raised no such challenge.

¶27 We therefore see no exceptional circumstance—no rare
procedural anomaly—that would justify our review of Rynhart’s
admittedly unpreserved constitutional challenge. On that basis,
we decline to assess the merits of that challenge.

II. The Ineffective Assistance Claim for Errors in the PSR

¶28 Next, Rynhart asserts that Counsel rendered ineffective
assistance by failing to object to several purported errors in the
PSR. For the reasons discussed below, we disagree.

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State v. Rynhart

¶29 To succeed on an ineffective assistance claim, Rynhart
must make a two-part showing: (1) that Counsel’s performance
“fell below an objective standard of reasonableness,” and (2) that
this deficient performance “prejudiced the defense” such that
“there is a reasonable probability that, but for [C]ounsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 687–88, 694
(1984); accord State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350; State v.
Ray, 2020 UT 12, ¶ 24, 469 P.3d 871. Failure to prove either
component is fatal; “[u]nless a defendant makes both showings, it
cannot be said that the conviction . . . resulted from a breakdown
in the adversary process that renders the result unreliable.”
Strickland, 466 U.S. at 687. Thus, “if either is lacking, the claim fails
and this court need not address the other.” State v. Kufrin, 2024 UT
App 86, ¶ 55, 551 P.3d 416 (cleaned up).

¶30 In this case, Rynhart claims that Counsel performed
deficiently by not identifying—and challenging at the sentencing
hearing—several things in the PSR that Rynhart now claims were
erroneous. Rynhart centers his claim on the following purported
errors: (1) the PSR’s recommendation of prison sentences of
twenty-five years to life and fifteen years to life instead of three
years to life, (2) the Sentencing Matrix’s inclusion of a class C
misdemeanor and the derivative issues related to that prior
conviction, and (3) the Sentencing Matrix’s point allocation for
Rynhart’s two-plus year history of sexual offenses. For the reasons
discussed, either Counsel’s performance was not deficient or any
deficiency did not prejudice Rynhart. 6 We discuss each of these
purported errors in turn.

6. With regard to each of these three purported errors in the PSR,
Rynhart asserts that Counsel rendered ineffective assistance in
four respects. One of those assertions—that Counsel did not
“consult” with him “when the judge expressed concern” over his
(continued…)

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A

¶31 Rynhart first argues that Counsel was ineffective for
electing not to seek a continuance of the sentencing hearing when
it came to light that the PSR erroneously recommended that
Rynhart serve sentences of twenty-five years to life and fifteen
years to life on the first-degree felonies, instead of three years to
life (the applicable statutory sentence at the time of the events in
question). But Counsel’s performance was not deficient because
Counsel fully resolved this error with the court at sentencing.

“right to withdraw his plea”—is inadequately briefed. Rynhart
simply does not develop this argument, so we do not discuss it
further. See Cottam v. IHC Health Services Inc., 2024 UT App 19,
¶ 15, 544 P.3d 1051 (“An appellant’s claim is inadequately briefed
when the overall analysis of the issue is so lacking as to shift the
burden of research and argument to the reviewing court.”
(cleaned up)); see also State v. Thomas, 961 P.2d 299, 304 (Utah 1998)
(“It is well established that a reviewing court will not address
arguments that are not adequately briefed.”).
Rynhart’s other three assertions are as follows: (i) Counsel
“failed to inform” Rynhart about the PSR so that he could
“examine and fix [the] errors” before sentencing; (ii) Counsel did
not refer the PSR back to Adult Probation and Parole for
correction; and (iii) Counsel “chose to move forward . . . with the
[PSR] being in error” rather than “stopping to address [the] errors
and discover any other errors by running it past [Rynhart] and
informing him about his [PSR].” Each of these claims rests on the
premise that there were errors in the PSR that were not addressed
and resolved at the sentencing hearing and that those errors
resulted in a harsher sentence. Thus, the analysis in this section
focuses on the heart of Rynhart’s various ineffective assistance
claims: the purported errors and any resulting prejudice. As we
explain, some of these purported errors weren’t errors at all, and
the others were not prejudicial.

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¶32 Rynhart is correct that the PSR’s recommendation of the
higher minimum mandatory sentence was erroneous. When
Rynhart committed the crimes, attempts to commit rape of a child
or to commit aggravated sexual abuse of a child were punishable
by a minimum sentence of three years to life. See Utah Code § 76-
4-102(2)(c) (2006). After Rynhart pled guilty, the penalties for
some attempted child sex crimes increased significantly. See id.
§ 76-4-102(1)(d) (2008). For instance, attempted rape of a child was
made punishable by a prison sentence of fifteen years to life. Id.
Rynhart was entitled to be sentenced under the law as it existed
at the time he committed the crimes, see State v. Losee, 2012 UT
App 213, ¶ 38, 283 P.3d 1055 (stating that “the punishment
available at the time of sentencing cannot be greater than that
available when the defendant committed the crime”), so the PSR
should have listed three years to life as the statutory sentence for
both of the first-degree felonies to which he pled guilty.

¶33 But Counsel resolved this error at the beginning of the
sentencing hearing, after the district court raised the issue sua
sponte. The court acknowledged the error and asked whether
Counsel was “willing to go forward with the presentence report
being in error, but noting the corrections.” (Emphasis added.) And
in the end, the district court sentenced Rynhart to three years to
life on the first-degree felony charges, and not fifteen years to life
or twenty-five years to life. Thus, we cannot conclude that
Counsel’s performance was deficient, because Counsel addressed
the error, the court resolved the error, and the court’s sentencing
did not include the wrong statutory minimum sentence.

B

¶34 Rynhart next argues that the Sentencing Matrix’s point
allocation for his prior class C misdemeanor for maintaining a
nuisance was an error Counsel should have resolved. Rynhart
also claims that the derivative issues related to this
misdemeanor—the supervision history and supervision risk

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State v. Rynhart

point allocations—were erroneous. But Counsel’s performance
was not deficient, because the inclusion of the misdemeanor and
related issues was not an error under the sentencing guidelines at
the time.

¶35 When Rynhart was sentenced, the criminal history
assessment within a presentence report took into account class C
misdemeanors. See 2008 Sentencing Guidelines at 5. Indeed,
Rynhart’s nuisance citation was included under the category
entitled “prior misdemeanor convictions,” which excluded only
minor traffic citations. Thus, Counsel could have reasonably
relied on the then-current sentencing guidelines and concluded
that the misdemeanor properly belonged in the PSR.

¶36 Rynhart resists this conclusion by pointing out that,
sometime after his sentencing, the sentencing guidelines changed
and limited discussion of misdemeanor offenses in presentence
reports to class A misdemeanors. Even so, we assess Counsel’s
performance by asking “whether the strategy Counsel employed
was that of a reasonable, competent lawyer in the real-time
context.” State v. Wilkes, 2020 UT App 175, ¶ 24, 479 P.3d 1142; see
also Strickland v. Washington, 466 U.S. 668, 689 (1984) (“A fair
assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the
time.”). And in 2008, presentence reports could include class C
misdemeanors and only excepted minor traffic violations. See
2008 Sentencing Guidelines at 5. Thus, it was not objectively
unreasonable for Counsel to rely on the sentencing guidelines in
effect at the time Rynhart was sentenced. 7

7. Rynhart also contests the misdemeanor on substantive grounds,
arguing that he was not properly cited with maintaining a
(continued…)

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State v. Rynhart

¶37 For these reasons, we cannot conclude that the supervision
history and supervision risk point allocations were errors that
Counsel should have contested at the sentencing hearing. Even if
presentence reports assess these categories somewhat differently
now, we cannot conclude that Counsel acted unreasonably by
opting not to lodge a challenge to those point additions at the time
of Rynhart’s sentencing.

¶38 Accordingly, we reject Rynhart’s assertions regarding the
nuisance misdemeanor because Rynhart has not demonstrated
that Counsel performed deficiently.

C

¶39 Finally, Rynhart argues that the PSR erroneously allocated
maximum points for the “time range” of past sexual offenses and,
in turn, that Counsel was ineffective for failing to raise that issue
with the sentencing court. But on the record before us, Rynhart
has not demonstrated that he was prejudiced by Counsel’s
performance in this regard.

¶40 Under the 2008 version of the sentencing guidelines, four
points may be allocated to a defendant in the criminal history
assessment “[i]f the offender has any sex offense conviction over
two years old,” whereas only one point is assigned for the
“present offense.” See 2008 Sentencing Guidelines at 14 (emphasis
added). And those guidelines instruct that the “date of conviction
is determinative for purposes of this section.” Id. Because Rynhart
did not have any prior sex offense conviction over two years old

nuisance because he did not own the property at issue but only
helped take care of it. But the sentencing hearing for his 2006 sex
crimes was not the proper place to adjudicate the merits of that
past conviction, nor can we fault Counsel for not raising those
substantive arguments.

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State v. Rynhart

prior to his 2008 convictions, we agree with Rynhart that the four-
point allocation was erroneous.

¶41 But even if we assume, for purposes of the discussion, that
Counsel performed deficiently by not explicitly asking for this
error to be corrected in the PSR, Rynhart has not demonstrated
that he was prejudiced by any such deficient performance. As an
initial matter, there is no indication in the record that the district
court based its sentence—and, specifically, its decision to impose
consecutive sentences—on the four-point addition to the
Sentencing Matrix. Instead, the court explained that it was
imposing a strict sentence out of a concern that Rynhart was not
taking responsibility for his actions. Specifically, the court said
that “a 10-year-old’s coming on to” Rynhart was “not only at odds
with [Mindy’s] own statement, but . . . at odds with common
sense.” The court continued by stating that a “10-year-old isn’t
capable of making that type of a decision and [Rynhart], as an
adult, and frankly a highly educated adult, knows that.” Thus, it
was Rynhart’s lack of remorse and insistence that he did not make
the first move on a ten-year-old that provided the primary stated
basis for the court’s imposition of consecutive sentences.

¶42 It is true that the court further explained that “the length of
time that these events occurred over, and the number of
incidents,” made “consecutive sentencing . . . appropriate.” But
we do not take this statement to be a reference to the “time range”
column on the Sentencing Matrix. Instead, the PSR’s factual
summary detailed instances of abuse that spanned approximately
two years—the explicit photographs of Mindy taken in 2004 and
the separate instances of abuse in 2006. So, even though the PSR
should not have allocated points for a time range of two-plus
years, it was nevertheless appropriate for the court to consider the
number and span of the instances of abuse and Rynhart’s
character when determining whether to run the sentences
consecutively. See Utah Code § 76-3-401(2) (“In determining
whether state offenses are to run concurrently or consecutively,

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State v. Rynhart

the court shall consider the gravity and circumstances of the
offenses, the number of victims, and the history, character, and
rehabilitative needs of the defendant.”). Thus, on this record, we
see no reasonable probability of a different sentence in a
counterfactual sentencing hearing in which the court had been
made aware of the four-point-addition error.

¶43 And to the extent that Rynhart is asserting that he has been
prejudiced in post-sentencing parole decisions, we note that the
“time range” point allocation was corrected by the Board of
Pardons and Parole in 2011, just three years into Rynhart’s prison
sentence. Rynhart’s time range assessment was reduced from
“two years or over” to “one time incident,” resulting in the
reduction of three points. Thus, the error was corrected relatively
early in Rynhart’s prison term, and Rynhart has not attempted to
explain how the error might have affected his parole eligibility.

¶44 Thus, even if we assume that Counsel performed
deficiently by not correcting the four-point addition, Rynhart has
not demonstrated that he was prejudiced by that inaction.
Accordingly, we reject Rynhart’s final claim of ineffective
assistance.

III. The Rule 22 Motion

¶45 Next, Rynhart invokes rule 22 of the Utah Rules of
Criminal Procedure, and he challenges his sentences of three
years to life on the first-degree felony charges as ambiguous and
internally contradictory. For the reasons discussed, Rynhart’s rule
22 challenge is unpreserved and not properly before us.

¶46 Under rule 22, a defendant may file a motion with the
district court to correct an erroneous sentence, and the rule
requires a court to “correct a sentence” when (among other
situations) the sentence imposed “is ambiguous as to the time and
manner in which it is to be served” or “is internally
contradictory.” Utah R. Crim. P. 22(e)(1)(D), (E). Rynhart invokes

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State v. Rynhart

these provisions here, and he asserts that his first-degree felony
sentences of “three years to life” in prison are “ambiguous” and
“internally contradictory.”

¶47 But as noted, rule 22 requires that these issues be raised in
the first instance by motion in the district court. See id.; State v.
Mullins, 2025 UT 2, ¶ 30. Indeed, our supreme court recently
clarified that “if a defendant seeks to raise on appeal a challenge
to his sentence that he did not raise in his [rule] 22(e) motion
before the district court,” our appellate courts “will hear the
unpreserved issue only if the defendant can show that an
exception to preservation applies.” Mullins, 2025 UT 2, ¶ 30; see
also id. ¶¶ 22–30 (discussing the prior version of rule 22 and its
appellate reviewability in the first instance in contrast with the
amended rule’s language indicating action in the district court).

¶48 In this case, Rynhart filed a rule 22 motion with the district
court. He did so in August 2020, after the amendments to rule 22
had been made. See Utah R. Crim P. 22. But Rynhart never
submitted that motion for decision in the district court, so the
court never had the opportunity to rule on it. Indeed, Rynhart
points to no place in the record showing that such a ruling was
ever made. Thus, Rynhart has not complied with rule 22’s
requirement that such motions be made and adjudicated in the
district court in the first instance. As such, Rynhart’s rule 22
arguments are unpreserved for our review.

¶49 And Rynhart does not argue that one of the three
exceptions to our preservation requirement permits our review of
the merits of his argument, as Mullins requires. See 2025 UT 2,
¶ 30. Therefore, we cannot address Rynhart’s rule 22 motion in
the first instance without some basis for an exception under our
preservation doctrine. Accordingly, we do not reach the merits of
Rynhart’s rule 22 arguments.

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State v. Rynhart

IV. Equitable Estoppel

¶50 Rynhart next raises an equitable estoppel claim, arguing
that Counsel promised him that he would be afforded the privilege
of probation instead of being sentenced to prison, and that
because of this promise, the State should be equitably estopped
from imposing the prison sentence. This argument fails.

¶51 As an initial matter, this claim appears to be unpreserved.
However, because “the merits of [this] claim can easily be
resolved” in favor of the State, we “opt to do so without
addressing preservation.” See State v. Kitches, 2021 UT App 24,
¶ 28, 484 P.3d 415.

¶52 “As a general rule, estoppel may not be invoked against a
governmental entity.” Anderson v. Public Service Comm’n, 839 P.2d
822, 827 (Utah 1992). Indeed, “it is well settled that equitable
estoppel is only assertible against the State or its institutions in
unusual situations in which it is plainly apparent that failing to
apply the rule would result in manifest injustice.” Holland v. Career
Service Review Board, 856 P.2d 678, 682 (Utah Ct. App. 1993). In
such cases, “the critical inquiry is whether it appears that the facts
may be found with such certainty, and the injustice to be suffered
is of sufficient gravity, to invoke the exception.” Utah State Univ.
v. Sutro & Co., 646 P.2d 715, 720 (Utah 1982). “The few cases in
which Utah courts have permitted estoppel against the
government have involved very specific written representations
by authorized government entities.” Anderson, 839 P.2d at 827. To
establish an equitable estoppel claim against the State, Rynhart
must show that (1) the State made a statement that is inconsistent
with a position later taken, and (2) Rynhart reasonably relied on
that statement (3) to his detriment. See Holland, 856 P.2d at 682.

¶53 Rynhart’s estoppel argument stands uncontested on
appeal because the State did not respond to this argument in its
brief, so we apply the lower standard for Rynhart’s burden of
persuasion. As explained, supra ¶ 22, when an appellee fails to

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State v. Rynhart

respond to an argument, the appellant need only establish “a
prima facie showing of a plausible basis for reversal.” AL-IN
Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76
(cleaned up).

¶54 But here, Rynhart cannot establish even a prima facie
showing of a plausible basis for relief on his estoppel claim
because he erroneously attributes to the State the statements
purportedly made by Counsel. 8 Indeed, Rynhart does not point to
any statement made by the prosecutor in this case regarding the
possibility of probation or a suspended prison sentence.

¶55 Rynhart’s argument rests on the assumption that a criminal
defense attorney is a state actor, a rather striking assertion for
which Rynhart cites no authority. In fact, a criminal defense
attorney—even one appointed by the court and paid for by public
funds—is not a state actor; such attorneys, by virtue of their
representation, are specifically hired to take a position that is
adversarial to the State. See Vermont v. Brillon, 556 U.S. 81, 91 (2009)
(stating that, “except for the source of payment, the relationship
between a defendant and the public defender representing him is
identical to that existing between any other lawyer and client,”
and that “unlike a prosecutor or the court, assigned counsel
ordinarily is not considered a state actor” (cleaned up)); cf. Polk
County v. Dodson, 454 U.S. 312, 318–19 (1981) (holding that a
criminal defense lawyer is not “a state actor under color of state
law,” and reasoning that “a defense lawyer characteristically
opposes the designated representatives of the State” and “best
serves the public, not by acting on behalf of the State or in concert
with it, but rather by advancing the undivided interests of his
client” (cleaned up)). We are aware of no support for the

8. Rynhart makes this point clear in his brief: “We are challenging
the PROMISE Counsel and his team (i.e., investigator) made to
[Rynhart]. We are not challenging the plea or conviction.”

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State v. Rynhart

proposition that a criminal defense attorney is considered a state
actor for purposes of an estoppel claim.

¶56 Instead, Rynhart directs our attention to Commonwealth v.
Cosby, a Pennsylvania case where a prosecutor was equitably
estopped from changing his position after representing that the
state would not prosecute the defendant. See 252 A.3d 1092, 1128–
29 (Pa. 2021). There, a prosecutor had “announced to the public,
on behalf of the Commonwealth of Pennsylvania, that he would
not prosecute [the defendant] for any offense related to the 2004
sexual abuse that [a claimant had] alleged.” Id. at 1128. After
analyzing the prosecutor’s public statement and the defendant’s
actions that followed, the court held that “when a prosecutor
makes an unconditional promise of non-prosecution, and when
the defendant relies upon that guarantee to the detriment of his
constitutional right not to testify, the principle of fundamental
fairness that undergirds due process of law in our criminal justice
system demands that the promise be enforced.” Id. at 1131
(emphasis added).

¶57 But Cosby involved the prosecutor’s actions, not defense
counsel’s. See id. at 1128–29. And Rynhart provides no analysis for
why the duties and constitutional limitations applied to
prosecutors in this context should be extended to defense
attorneys. Accordingly, Rynhart has not borne even a reduced
burden of persuading us that Counsel ought to be considered a
state actor whose representations may estop the State in a criminal
case. On this basis, we reject Rynhart’s estoppel claim.

V. The Ineffective Assistance Claim for a
Purported Promise of Probation

¶58 Finally, Rynhart argues that Counsel provided ineffective
assistance by purportedly promising Rynhart that he could obtain
probation instead of being sentenced to prison. In particular, he
claims that “Counsel’s performance crossed the line with the bait-
and-switch he used on [Rynhart] and should be considered . . .

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State v. Rynhart

ineffective assistance of counsel.” And he argues that he was
prejudiced because, in reliance on Counsel’s representations, he
“waived his right to a trial,” among other rights. As explained,
supra ¶ 29, to succeed on an ineffective assistance claim, Rynhart
must demonstrate both deficient performance and prejudice. And
here, Rynhart cannot demonstrate that he was prejudiced by any
purported representations made by Counsel, because the record
shows that Rynhart knew full well that he was not entitled to
receive probation.

¶59 First, in his plea agreement, Rynhart acknowledged that
“the maximum sentence” could be “imposed for each crime to
which” he pled guilty and that his “sentence may include a prison
term, fine, or both.” At the time, attempted rape of a child and
attempted aggravated sexual abuse of a child each were
punishable by three years to life, and sexual exploitation of a
minor was punishable by one to fifteen years in prison. See Utah
Code §§ 76-5-402.1(2), -404.1(5), 76-5a-3, 76-4-102(2)(c), 76-3-203(2)
(2006). Rynhart also acknowledged that his guilty plea was “the
result of a plea bargain” and that “[a]ll the promises, duties and
provisions of the plea bargain, if any, [were] fully contained in
[the] statement.”

¶60 Next, during the plea hearing, Counsel stated on the record
that he had explained to Rynhart that attempted rape of a child
“carries at least three years to life” as a “minimum mandatory
prison time.” And Rynhart confirmed to the court that he
understood “that even though there may be a recommendation
that the penalties be less” than the maximum potential sentences,
the court “could ignore that recommendation” and sentence
Rynhart “up to the maximum and run [the sentences]
consecutive[ly].” And when the court asked Rynhart whether any
“promises” had been made “in connection with” his guilty plea,
Rynhart answered in the negative. We have explained that, in the
plea context, “solemn declarations in open court carry a strong
presumption of verity.” State v. Archuleta, 2019 UT App 136, ¶ 20,

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State v. Rynhart

449 P.3d 223 (cleaned up). Indeed, “the truth and accuracy of a
defendant’s statements during the plea colloquy should be
regarded as conclusive in the absence of a believable, valid reason
justifying a departure from the apparent truth of his plea colloquy
statements.” Arriaga v. State, 2018 UT App 160, ¶ 15, 436 P.3d 222
(cleaned up), aff’d, 2020 UT 37, 469 P.3d 914.

¶61 Finally, at sentencing, Counsel stated on the record, “[W]e
were hoping [the court] would ignore the prison [sentence
recommendation] and go with something else. But we knew when
we pled this out that it was [going to] be prison, and it was [going
to] be three years to life on the first two counts.”

¶62 Taken together, these facts show that Rynhart repeatedly
affirmed that he understood that a prison sentence of three years
to life was within the discretion of the sentencing court and that
the court was not bound by any recommendations of the parties.
Rynhart also affirmed that no promises had been made regarding
his sentencing. We therefore cannot conclude that Rynhart was
prejudiced by any purported promises of probation by Counsel.
See McCormick v. State, 2014 UT App 49, ¶ 3, 321 P.3d 1172 (per
curiam) (“[R]egardless of his attorney’s suppositions about the
possible sentence, [the defendant] was put on notice that the
sentence could be greater than what his attorney expected.”).

CONCLUSION

¶63 Rynhart failed to preserve for our review his constitutional
due process claim and his rule 22 sentencing claim, and on that
basis we decline to assess the merits of those arguments. Rynhart
also failed to preserve his equitable estoppel claim, but we reject
that claim on its merits because Rynhart has not borne even a
reduced burden of persuading us that Counsel was a state actor.
And Rynhart has not demonstrated that Counsel rendered
constitutionally ineffective assistance. Accordingly, we reject all
of Rynhart’s arguments and affirm his sentence.

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