State v. Williams

2018 UT App 176

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
GREGORY EMMANUEL WILLIAMS,
Appellant.

Opinion
No. 20160483-CA
Filed September 13, 2018

Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 161900235

Alexandra S. McCallum and Lance L. Talakai,
Attorneys for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
concurred.

HARRIS, Judge:

¶1 After Gregory Emmanuel Williams pled guilty to three
separate property crimes, the district court sentenced him to
prison. He appeals his sentence, arguing that one of his
convictions was improperly enhanced from a misdemeanor to a
felony, and that the court violated Williams’s rights against
double jeopardy and abused its discretion by sentencing him to
prison on the other two convictions. We agree with Williams
that the sentence on his first conviction was improperly
enhanced, and therefore vacate the district court’s sentencing
order on that count and remand for resentencing. We affirm
Williams’s sentence on his other two convictions.
State v. Williams

BACKGROUND

¶2 In 2014, Williams broke into a vehicle in a parking garage
and stole property from the vehicle. Williams’s actions were
captured by a surveillance camera, and law enforcement officers
later apprehended Williams with the stolen property in his
possession. After being charged with multiple offenses, Williams
pled guilty to a single charge: burglary of a vehicle. Under Utah
law, burglary of a vehicle is a class A misdemeanor, and there
are no statutory provisions permitting enhancement of the
offense. See Utah Code Ann. § 76-6-204(2) (LexisNexis 2017).
Both the prosecutor and Williams’s attorney, however, were
apparently under the mistaken impression that the offense could
be enhanced due to prior convictions, and agreed that
Williams—who had similar prior convictions—was pleading
guilty to a third-degree felony. The court entered the plea as a
third-degree felony, and sentenced Williams accordingly: the
court imposed a zero-to-five-year prison term but suspended
that sentence and ordered Williams to serve a year in jail and
complete an inpatient treatment program for drug addiction
upon release. Williams was subsequently released to an
inpatient treatment program, and placed on probation.

¶3 In late 2015, while Williams was still on probation, law
enforcement officers found Williams sleeping in a vehicle with
the motor running. The officers saw prescription amphetamines,
later determined to be prescribed to someone other than
Williams, in plain view in the vehicle, and observed that
Williams was incoherent and struggling to stay awake. Officers
determined that Williams was unable to safely perform field
sobriety tests and therefore placed him under arrest; they later
also found methamphetamine, syringes, and stolen property in
the vehicle. After initially being taken into custody, Williams
was released pending trial.

¶4 Approximately one month later, law enforcement officers
performing an exterior patrol of the Matheson Courthouse in
Salt Lake City heard the sound of breaking glass. The officers

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State v. Williams

went towards the sound and observed Williams “jumping
through the back passenger side window” of a vehicle. The
officers then witnessed Williams leaving the vehicle with “both
arms full of property.” At this point, officers identified
themselves and told Williams to stop. In response, Williams
dropped the property, got into a vehicle parked nearby, and
drove away from the officers. The vehicle, which turned out to
be stolen, ran out of gas only a few blocks away, and Williams
was subsequently apprehended.

¶5 Facing charges for both of the 2015 incidents, Williams
pled guilty to one count of theft by receiving stolen property, a
third-degree felony, and one count of attempted theft, a third-
degree felony, in exchange for dismissal of all the remaining
charges. At sentencing, after reviewing Williams’s record, the
district court indicated that it was inclined to “try something
else” other than prison and inquired about placing Williams in
“The Other Side Academy,” a local rehabilitation program. After
some discussion, the court then indicated that it would not send
Williams to prison, but instead would suspend his prison terms
and place Williams on probation for five years, and require
Williams to, among other things, serve up to one year in jail and
then enter into The Other Side Academy and successfully
complete the program there. The court then asked if anyone had
any questions about the sentence, and the probation officer
asked what would happen if The Other Side Academy was not
willing or able to take Williams, and whether that would
constitute a violation of the terms and conditions of probation. In
response, the court stated that it was “not sure if anything but
prison is an option if” the program refused to accept Williams,
and that the issue raised regarding whether that would
constitute a probation violation was “a valid concern.” The court
then stated: “Let’s not finish sentencing here. I will continue
sentencing out for 60 days so we can get a firm answer” about
whether Williams would be accepted into the program. The
court then told Williams that it was trying to get him in the
program but that, if Williams was unable to obtain admission,
the court did not “know another option other than prison.” The

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State v. Williams

court then continued the sentencing hearing, stating specifically
that it was “continuing everything in this sentencing.” The court
entered no order imposing sentence following that hearing.

¶6 A few weeks later, at the continued sentencing hearing,
Williams revealed that he had been unable to get into The Other
Side Academy. Williams requested that the court nonetheless
place him on probation and permit him to participate in a
different treatment program. The court declined that invitation,
and instead sentenced Williams to two concurrent zero-to-five-
year prison terms for both of Williams’s convictions stemming
from the 2015 incidents. The court also noted that Williams was
on probation for the 2014 vehicular burglary, which had been
entered as a third-degree felony, and sentenced Williams to a
concurrent zero-to-five-year prison term as a consequence of
violating the terms of his probation on that charge.

ISSUES AND STANDARDS OF REVIEW

¶7 Williams appeals, and asks us to consider three issues.
First, Williams contends that his conviction for vehicular
burglary was unlawfully enhanced from a class A misdemeanor
to a third-degree felony. 1 Whether an imposed sentence is illegal
presents a question of law that we review for correctness. State v.
Thorkelson, 2004 UT App 9, ¶ 9, 84 P.3d 854.

¶8 Second, Williams contends that he obtained “a legitimate
expectation of finality” in the district court’s initial imposition of
probation on the 2015 counts, and that the court violated his
constitutional protections against double jeopardy by later

1. Williams also contends that the district court erred by
revoking his probation on this first count without first holding a
probation revocation hearing. Because we vacate Williams’s
sentence with respect to that conviction and remand for
resentencing, we need not consider Williams’s other argument.

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State v. Williams

sentencing him to prison. Because Williams did not raise this
issue before the district court, he asks us to review it for plain
error. To prevail on a claim of plain error, Williams must show
that: “(i) an error exists; (ii) the error should have been obvious
to the [district] court; and (iii) . . . absent the error, there is a
reasonable likelihood of a more favorable outcome.” State v.
Bedell, 2014 UT 1, ¶ 20, 322 P.3d 697 (quotation simplified).

¶9 Third, Williams contends that the district court abused its
discretion when it sentenced Williams to prison instead of
probation. 2 We review a district court’s sentencing decision for
abuse of discretion. State v. Valdovinos, 2003 UT App 432, ¶ 14, 82
P.3d 1167.

ANALYSIS

A

¶10 Williams first contends that the district court imposed an
illegal sentence when it accepted his incorrectly enhanced
conviction for burglary of a vehicle and thus sentenced him for
that offense as a third-degree felony as opposed to a class A
misdemeanor. In its brief, the State concedes the point. See State
v. Patience, 944 P.2d 381, 388 (Utah Ct. App. 1997) (stating that
when a defendant enters into a plea agreement that contains a
“mistake as to the law in effect at the time the parties entered
into the plea agreement,” and that mistake causes the defendant
to receive a harsher sentence than he would have received if the
plea agreement correctly represented the law, the defendant is
“entitled to [the] lesser criminal punishment[] mandated by
statute[]”). The parties also agree that the remedy in such cases is

2. While Williams makes this argument with regard to all three
counts, we need consider this argument only as it pertains to the
second and third counts, because we vacate Williams’s sentence
on his first conviction for other reasons.

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remand to the district court for resentencing pursuant to the
correct law. Id.

¶11 In this case, Williams pled guilty to burglary of a vehicle,
which is defined by statute as “a class A misdemeanor.” Utah
Code Ann. § 76-6-204(2). Under Utah law, no statute permits
enhancing that offense. Despite this, Williams pled to the offense
as a third-degree felony, and the district court sentenced him as
if the offense were a third-degree felony. This was an illegal
sentence, and Williams is thus entitled to the lesser criminal
punishment provided for by the applicable statute. We therefore
vacate Williams’s sentence for burglary of a vehicle stemming
from the 2014 incident, and remand that count for resentencing
as a class A misdemeanor.

B

¶12 Williams next contends that the district court violated his
state and federal rights against double jeopardy when it
sentenced him to prison after he “gained a legitimate expectation
of finality” in “his original probationary sentences.” On this
record, we find his argument unpersuasive.

¶13 Both the United States and Utah Constitutions contain
provisions that “prohibit the state from placing an individual
twice in jeopardy for the same offense.” See Bernat v. Allphin,
2005 UT 1, ¶ 10, 106 P.3d 707; see also U.S. Const. amend. V; Utah
Const. art. 1, § 12. These provisions embody “three separate
protections: (1) protection against a second prosecution for the
same offense after acquittal, (2) protection against a second
prosecution for the same offense after conviction, and (3)
protection against multiple punishments for the same offense.”
Bernat, 2005 UT 1, ¶ 11. Resentencing, however, does not always
“implicate the double jeopardy protection from multiple
punishments.” See State v. Rodrigues, 2009 UT 62, ¶ 36, 218 P.3d
610 (quotation simplified); see also State v. Prion, 2012 UT 15, ¶ 64,
274 P.3d 919 (stating that “[t]he [federal] constitution leaves
more leeway for the state to reconsider a defendant’s sentence

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than to reevaluate his guilt”). Resentencing violates double
jeopardy protection only “where the defendant has developed a
legitimate expectation of finality in his original sentence.”
Rodrigues, 2009 UT 62, ¶ 36 (quotation simplified).

¶14 Generally, a defendant develops a reasonable expectation
of finality in a sentence once that sentence has been announced
or ordered by the district court. See State v. Udy, 2012 UT App
244, ¶ 18, 286 P.3d 345. However, “[w]here the [district] court
expressly indicates that the sentence announced is subject to
change, it is not reasonable to expect that the sentence is final.”
Id. Moreover, “in cases where the court has expressly declined to
impose a final sentence until it has had the opportunity to
review” further information, “jeopardy does not attach until the
court issues a final signed order.” Id. (quotation simplified).

¶15 In this case, Williams argues that he gained a legitimate
expectation of finality in being sentenced to probation with
regard to his two convictions stemming from the 2015 incidents
when the district court initially indicated that it would sentence
Williams to two suspended prison terms and place him on
probation. Because of this, Williams argues that it was error for
the court to later sentence him to prison for those same
convictions. We disagree, because Williams’s arguments are
foreclosed by our previous decisions in Udy, 2012 UT App 244,
and State v. Perkins, 2014 UT App 60, 322 P.3d 1184.

¶16 In Udy, a defendant being sentenced for securities fraud
represented to the court that he was in the middle of a business
deal that would allow him to pay back some of his victims
within sixty days. Udy, 2012 UT App 244, ¶¶ 1–3. The court was
skeptical, but decided to give the defendant a chance to make
good on that representation. The court announced that it would
refrain from sending the defendant to prison, and would instead
impose a short jail sentence and probation, if the defendant
could make substantial restitution payments within the next
three months. Id. ¶ 4. However, the court then warned the
defendant that this sentence would be subject to change if the

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defendant did not pay his victims within the three-month
period. Id. While a sentencing order was prepared
memorializing this arrangement, the court did not sign it. Id. ¶ 5.
Three months later, the defendant had made no substantial
restitution, and the district court revisited its former comments.
Id. ¶¶ 6–7. Noting that it had initially indicated that it would
impose a short jail sentence followed by probation, the court
rescinded that statement and sentenced the defendant to lengthy
prison terms. Id. ¶¶ 7–9. The defendant appealed, arguing that
he had gained a reasonable expectation of finality in the sentence
when the court first articulated it. Id. ¶¶ 11–12. On appeal, this
court held that, because the district court had warned the
defendant that its initial sentencing decision might be subject to
change and because it did not sign an order following the first
hearing, the defendant did not gain a legitimate expectation of
finality in the sentence the court announced. Id. ¶ 18.

¶17 In Perkins, a defendant pled guilty to two counts of child
abuse. Perkins, 2014 UT App 60, ¶ 1. At the sentencing hearing,
the district court expressed its view that the defendant should
receive the maximum sentence possible, stating that “[q]uite
frankly, I wish there was more [that] I [could] do [in sentencing
the defendant] . . . . I quite frankly don’t think [the defendant]
should ever walk the streets again.” Id. ¶ 5. The court then orally
sentenced defendant to two zero-to-five-year terms and ordered
that they run concurrently. Id. Later that day, the discrepancy
between the court’s comments and its order of concurrent
sentences was brought to the court’s attention. Id. ¶ 6. The court
immediately ordered a follow-up hearing. Id. However, the
court’s clerk “mistakenly prepared a judgment ordering
concurrent sentences, stamped the judge’s name on it, and faxed
it to the prison.” Id. The court became aware of the mistake the
next day, and notified the prison that the order was incorrect. Id.
At the follow-up hearing, the court sentenced the defendant to
consecutive zero-to-five-year prison terms. Id. The defendant
appealed, arguing that he gained a legitimate expectation of
finality in his sentence when the district court orally imposed the
sentence and then issued a signed sentencing order

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memorializing the sentence. Id. ¶ 18. On appeal, this court
disagreed, holding that, because the judge’s preference for a
maximum sentence was so strongly conveyed at the first
hearing, the defendant “should have anticipated that concurrent
sentencing was contrary to the trial judge’s statements and that
the trial judge had actually intended to say ‘consecutively’
instead of the similarly sounding term ‘concurrently.’” Id. ¶ 18.
Further, we noted that the sentencing order did not engender a
legitimate expectation of finality in the defendant because “the
following day the prison received a . . . fax stating that the
[sentencing order] was incorrect.” Id. Accordingly, we held that
the defendant had never gained a legitimate expectation of
finality in his sentence. Id.

¶18 The facts set forth in Udy and, especially, Perkins represent
circumstances that seem far more likely to have engendered a
reasonable expectation of finality in a sentence than the facts
presented here. In both Udy and Perkins, the sentencing courts
orally imposed sentences which the defendants began serving,
and in Perkins the court even issued an order memorializing its
sentence. See Udy, 2012 UT App 244, ¶¶ 4–7; Perkins, 2014 UT
App 60, ¶ 6. But in both of those cases, the defendants were held
not to have gained a legitimate expectation of finality in their
sentences because the conduct of their respective sentencing
courts should have put them on notice that the sentences issued
may be subject to change or incorrect. See Udy, 2012 UT App 244,
¶ 18; Perkins, 2014 UT App 60, ¶ 18.

¶19 In this case, Williams had even less reason than the
defendants in either Udy or Perkins to expect that the district
court’s oral sentence was final. Here, the court did not ever sign
a sentencing order memorializing the sentence Williams relies
upon; indeed, the court modified its sentence just minutes after
articulating it, and did so in response to input it received in
response to its own question as to whether there were “[a]ny
questions about the sentence.” The court ended the hearing by
clearly stating that it was “continuing everything in this
sentencing” in order to allow time for Williams to explore

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State v. Williams

whether he could be admitted into The Other Side Academy,
and warned Williams that it was unaware of “another option
other than prison” if Williams were unable to gain admission
into the program.

¶20 Under these circumstances, especially in light of Udy and
Perkins, we simply cannot conclude that Williams formed a
legitimate expectation of finality in the probation sentence the
court articulated at the hearing. Accordingly, the court did not
violate Williams’s double jeopardy protections at all, let alone
commit plain error, when it sentenced Williams to prison instead
of probation at the continued sentencing hearing.

C

¶21 Finally, Williams contends that the district court
abused its discretion when it sentenced him to prison, asserting
that the court failed to adequately weigh several
“factors justifying probation.” A court’s sentencing decision
“will not be overturned unless it exceeds statutory or
constitutional limits, the judge failed to consider all of the
legally relevant factors, or the actions of the judge were so
inherently unfair as to constitute abuse of discretion.” State v.
Killpack, 2008 UT 49, ¶ 59, 191 P.3d 17 (quotation simplified).
Williams maintains that, in this case, the district court “failed to
adequately weigh his character, attitude, and rehabilitative
needs before denying him the opportunity for a non-
prison sentence.” Williams also maintains that, despite his
crimes, he was “committed to addressing his underlying
issues of drug addiction [and] lack of social skills and life skills.”
Williams argues that this commitment was apparent because
he had researched treatment programs and was willing to
“take advantage of programming at the jail.” Williams
further asserts that prison is “not conducive to his
rehabilitative needs” and argues that, for all these reasons, the
district court “did not properly weigh the circumstances” when
it sentenced him to prison.

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State v. Williams

¶22 We disagree. In doing so, we note the “wide latitude and
discretion” we normally afford district courts in sentencing. State
v. Woodland, 945 P.2d 665, 671 (Utah 1997). A sentencing court
abuses its discretion only “if it can be said that no reasonable
person would take the view adopted by the [sentencing] court.”
Valdovinos, 2003 UT App 432, ¶ 14 (quotation simplified). Here,
Williams cannot satisfy that standard. Notably, Williams does
not allege that the district court failed to consider any factor
necessary for sentencing. Instead, Williams merely alleges that
the district court failed to “adequately weigh” the various factors
that Williams argues warranted probation. This is not sufficient
to persuade us that “no reasonable person” would have
sentenced Williams to prison instead of probation, especially
considering Williams’s criminal history and poor recent
supervision history.

¶23 Accordingly, the district court did not abuse its discretion
when it sentenced Williams to prison instead of probation with
respect to his convictions related to the two 2015 incidents.

CONCLUSION

¶24 Because the district court did not violate Williams’s
double jeopardy rights and did not abuse its discretion in
sentencing him to prison, we affirm Williams’s sentences for his
two convictions (theft by receiving stolen property, and
attempted theft) stemming from the 2015 incidents. Because
Williams’s sentence for his 2014 vehicular burglary conviction
was predicated on a legal error, we vacate that sentence. We
remand this case for the limited purpose of resentencing on the
2014 vehicular burglary conviction.

20160483-CA 11 2018 UT App 176