State v. Heward

2024 UT App 40

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
BENJAMIN LEE HEWARD,
Appellant.

Opinion
No. 20221055-CA
Filed March 28, 2024

Fourth District Court, Provo Department
The Honorable Robert A. Lund
No. 201400462

Scott F. Garrett and Jessica Griffin Anderson,
Attorneys for Appellant
Sean D. Reyes and Andrew F. Peterson,
Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.

MORTENSEN, Judge:

¶1 Benjamin Lee Heward pled guilty to two charges of
aggravated sexual abuse of his two minor daughters. As part of
his plea agreement, the State and the victims promised to
“affirmatively recommend” a prison sentence of two concurrent
terms of six years to life. At sentencing, the prosecutor argued
against probation and recommended a sentence of six years to life,
but the two victims testified they were having second thoughts
about the arguably lenient sentence, a change that the prosecutor
attempted to explain. Ultimately, the court followed the
recommendation of Adult Probation and Parole (AP&P),
sentencing Heward to fifteen years to life on each count, with the
State v. Heward

sentences to run concurrently. Heward now maintains that the
prosecutor breached the plea agreement when he made
statements about probation and the feelings of the victims, and he
asserts that the district court should have acted sua sponte to
remedy the situation. Heward also asserts that his attorney
rendered ineffective assistance in failing to object to the
prosecutor’s comments. We reject Heward’s claims of error and
therefore affirm.

BACKGROUND

¶2 Heward was charged with ten counts of aggravated sexual
abuse of a child and one count of rape of a child for the admitted
abuse he inflicted on his two minor daughters over a number of
years. Heward pled guilty to two of the aggravated sexual abuse
charges: (1) rubbing his clothed genitals over the clothed genitals
of his older daughter in an act of simulated sexual intercourse and
(2) rubbing his younger daughter’s genitals skin to skin with his
hand.

¶3 As part of the plea, the State agreed to dismiss the rape
charge and the other eight aggravated sexual abuse charges. In
addition, the plea agreement indicated that the “State and the
victims” would “affirmatively recommend” a prison sentence of
six years to life and lifetime sex-offender registration. In contrast,
AP&P recommended that Heward be sentenced to fifteen years to
life on each count. 1
0F

1. For context, a court imposing a sentence for aggravated sexual
abuse of a child may deviate downward from the presumptive
upper range of fifteen years to life if the “court finds that a lesser
term . . . is in the interests of justice.” See Utah Code § 76-5-404.3(4).
The available lesser terms are ten years to life and six years to life.
See id.

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State v. Heward

¶4 At sentencing, the prosecutor stated, “I know that based on
. . . Heward’s statement and the recommendation from his sex
offender treatment therapist he’s going to be asking for
probation.” The prosecutor acknowledged there was a “very, very
narrow exception” to the mandatory imprisonment required for
aggravated sexual abuse of a child. See Utah Code § 76-5-404.3(7)
(stating that imprisonment is mandatory). That exception allows
a court to “suspend execution of sentence and consider probation
to a residential sexual abuse treatment center only if,” along with
numerous other conditions, the perpetrator’s offense “did not
cause the child victim severe psychological harm.” Id. § 76-5-
406.5(1)(b). To this point, the prosecutor argued,

Heward needs to show it’s in the best interest of the
public and specifically the child victims that the
Court should sentence him to probation instead. He
can’t show that, Judge. He needs to show that these
offenses did not cause the child victim severe
psychological harm. He cannot show that, Judge.
It’s clear based on the victim impact statements
from both [of Heward’s daughters] that they are
suffering severe psychological harm, continued
psychological harm for what their father did to
them.

¶5 The prosecutor then emphasized that Heward’s abuse
would make it “extremely difficult” for his victims to have a
“sense of peace” and that they were “going to be affected” for “the
rest of their lives” because Heward “used them as sexual objects.”
The prosecutor also pointed out that certain sex offenses
involving children in Heward’s juvenile record indicated that he
represented a danger to the community. The prosecutor
concluded by saying, “He’s going to tell the Court right now that
he should be granted probation because he’s not a threat to the
community. The Court should disregard that.”

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State v. Heward

¶6 The prosecutor then gave Heward’s victims time to speak.
The older daughter stated that Heward’s abuse had a
“devastating impact” on her life, that she was “still suffering from
his actions,” and that she was “always having to look over [her]
shoulder making sure he’s not around” her. This daughter, after
recounting the “painful memories” and her continuing trauma,
stated that Heward was “being shown undue mercy . . . with a
plea agreement.” She also noted that Heward had violated
protective orders “[a]gain and again” and even at the sentencing
hearing, he had “force[d]” and “manipulated” her and her sister
“into an embrace with him.”

¶7 The younger daughter also spoke. She said that as a result
of the abuse, she struggled with depression and anxiety. She
shared that she continued to “feel uncomfortable leaving [her]
room” because she was afraid that she would “get raped and
sexually assaulted again.” She further revealed that whenever
someone touches her “unexpectedly,” she is “startled” and “can
physically feel it all happening again.”

¶8 After Heward’s victims finished speaking, the prosecutor
expressed that he wanted “to talk about what the State’s
recommendation [was] going to be.” He explained that “[i]n
speaking with the victims through plea negotiations,” their
“minimums were 6 to life” and “lifetime sex offender”
registration. Then the following exchange took place:

Prosecutor: I spoke with [the victims] this morning,
if they still feel the same way, understanding that
I’m bound to the recommendation of 6 to life, that
I thought it was important for the Court to know
where the victims stand today. I asked them how
they still felt about the 6 to life. They told me—

Court: May I say, . . . you bound yourself to 6 to life?

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State v. Heward

Prosecutor: Yes, sir, that is the State’s
recommendation.

Court: Okay, . . . you need to be very careful you
don’t say anything now that could be you trying
to argue against that deal. So be circumspect in
your comments.

Prosecutor: Judge, I’m not arguing that it should be
anything else. I think the Court should be fully
informed about where the victims are. The
victims aren’t party to this agreement, but
victims do have a right to be heard, and that can
be through their own statements or through that
of the prosecutor. They felt like they were
manipulated by the defendant to feel sorry for
him, and the Court did hear those statements
today. They felt manipulated, and that’s why
they wanted 6 to life. That’s the reason for the
plea offer that was given, Judge. The State is still
bound and still recommending 6 to life.

¶9 Heward’s attorney (Counsel) then spoke about mitigating
factors that the court should consider in sentencing. Counsel
agreed with the State that Heward “probably [was] not qualified”
for the “statutory exception that allows for probation.” Counsel
then concluded, “We would concur with the recommendation of
the two concurrent 6 years. That’s what we’ve all agreed to, and
that’s what I’d recommend.”

¶10 Other witnesses, including Heward’s mother and his
therapist, spoke about various mitigating factors. And Heward
himself spoke, stating that he was “not asking for probation.”

¶11 The court was not persuaded by the recitation of mitigating
factors:

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State v. Heward

[I]t evidences a higher level of depravity when the
victims are your biological children, and this
conduct went on for years. . . . [T]hat’s also an
aggravating circumstance. It’s an aggravating
circumstance that you violated the protective order.

Frankly, based on the information that’s before me,
it seems to me that you’ve minimized the conduct
that you’ve been involved in. I’d be more inclined to
accept the versions that [your daughters] provide in
terms of what happened.

Based on all of that, I’m going to follow the AP&P
recommendation. I don’t think that I have the
discretion to sentence you to less than 15 years in
prison. That’s the sentence of the Court. You’ll be
sentenced to [two concurrent terms] of 15 years to
life in the Utah State Prison.

¶12 Heward appeals.

ISSUES AND STANDARDS OF REVIEW

¶13 Heward first argues that the “prosecutor breached the plea
agreement by failing to affirmatively recommend a prison
sentence of six years to life and by implying the State regretted
entering into the plea agreement.” Heward acknowledges that
this claim was not preserved and asks that it be reviewed under
both plain error and ineffective assistance of counsel. See State v.
Shaffer, 2010 UT App 240, ¶ 9, 239 P.3d 285 (recognizing that an
unpreserved alleged breach may be reviewed for plain error and
ineffective assistance of counsel). To demonstrate plain error,
Heward “must show that: (i) an error exists; (ii) the error should
have been obvious to the trial court; and (iii) absent the error,
there is a reasonable likelihood of a more favorable outcome.”
State v. Samul, 2018 UT App 177, ¶ 10, 436 P.3d 298 (cleaned up),

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State v. Heward

cert. denied, 432 P.3d 1233 (Utah 2018). And “when a claim of
ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” Id. ¶ 11 (cleaned up).

ANALYSIS

I. Plain Error

¶14 Heward complains that the prosecutor breached the plea
agreement in two separate but related ways. First, Heward argues
that the prosecutor failed to “affirmatively recommend” the
prison sentence of six years to life as indicated in the plea
agreement. Second, Heward argues that the prosecutor then
“compounded” the breach by bringing up the victims’ apparent
change of heart about the plea agreement, implying that the State
regretted entering the plea agreement. And Heward asserts that
the district court “should have been aware of the errors the
prosecutor made.” In such cases, our court has focused on
whether a prosecutor’s statements were egregious enough to
require a district court to act sua sponte to remedy the situation.
See State v. Hummel, 2017 UT 19, ¶ 119, 393 P.3d 314 (“[N]one of
[the prosecutor’s] statements was so egregiously false or
misleading that the judge had an obligation to intervene by
raising an objection sua sponte.”); State v. Hosman, 2021 UT App
103, ¶ 38, 496 P.3d 1162 (questioning whether a prosecutor’s
statements were so egregious that it constituted plain error for the
court to fail to intervene sua sponte to remedy the harm), cert.
denied, 502 P.3d 270 (Utah 2021).

¶15 To succeed on this claim, Heward “must prove that the
State actually breached the plea agreement, that the breach should
have been obvious to the district court, and that had the district
court recognized and remedied the breach, there is a reasonable
likelihood that [his] sentence would have been more favorable.”

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State v. Heward

State v. Gray, 2016 UT App 87, ¶ 15, 372 P.3d 715, cert. denied, 379
P.3d 1185 (Utah 2016). And “if any one of these requirements is
not met, plain error is not established.” Id. (cleaned up).

¶16 “[W]hen a plea rests in any significant degree on a promise
or agreement of the prosecutor, so that it can be said to be part of
the inducement or consideration, such promise must be fulfilled.”
Santobello v. New York, 404 U.S. 257, 262 (1971); accord State v.
Lindsey, 2014 UT App 288, ¶ 16, 340 P.3d 176. Accordingly, a “plea
agreement is breached when the State fails to act in accord with
its promise.” State v. Samulski, 2016 UT App 226, ¶ 13, 387 P.3d
595, cert. denied, 390 P.3d 725 (Utah 2017). However, “when a
defendant alleges that the State violated a plea agreement by
making inappropriate statements at sentencing, as [Heward] does
here, we consider the prosecutor’s statements in the context of the
entire hearing.” Gray, 2016 UT App 87, ¶ 16 (cleaned up).

1. Affirmative Recommendation

¶17 Heward argues that the prosecutor failed to “affirmatively
recommend” the prison sentence of six years to life agreed to in
the plea. The gist of Heward’s argument is that “[i]n order to
affirmatively recommend a sentence of six years to life, the
prosecutor was required to make an effort to position the
recommendation as one that is ‘in the interests of justice.’”
(Quoting Utah Code § 76-5-404.3(4)(b).) Heward asserts that,
instead, the prosecutor “utterly failed to make an argument or
present the judge with any information that a sentence of six years
to life was in the interests of justice.” Heward complains that the
prosecutor “focused solely” on the limited discretion of the judge,
certain aggravating factors (namely, the psychological harm
suffered by the victims, Heward’s juvenile record, and Heward’s
alleged violation of a protective order), and the victims’ alleged
withdrawal of support for the plea agreement. “By emphasizing
only aggravating factors in his argument,” Heward asserts, “the
prosecutor failed to affirmatively recommend a sentence of six
years to life,” resulting in “a clear breach.” We are not persuaded

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State v. Heward

that any breach, let alone a clear one, occurred when the
prosecutor highlighted these factors.

¶18 First, the prosecutor’s statements about aggravating factors
were made not in reference to the plea agreement but in the
context of arguing that Heward should not be offered probation
under the limited statutory exception to mandatory
imprisonment. By pointing to the severe psychological harm
inflicted on the victims and Heward’s juvenile record, the
prosecutor was explicitly arguing that Heward was not eligible
for probation under the statute. And Heward’s violation of the
protective order was also mentioned in the context of denying
probation—specifically that Heward should start serving his
sentence immediately. As the State points out, the prosecutor’s
remarks about the protective order violations “weren’t about what
Heward’s sentence should be, but when he should begin to serve
it.” Arguing against probation and for immediate incarceration—
even if it necessarily required the prosecutor to reference some
aggravating factors relevant to other aspects of Heward’s
sentencing—was consistent with the State’s recommendation of
six years to life. After all, the plea agreement made it perfectly
clear that the State would “affirmatively recommend” a prison
term, a recommendation that obviously entitled the prosecutor to
argue—even forcefully—against probation by highlighting
specific reasons Heward did not qualify for probation.

¶19 Second, and more to the point, an “affirmative
recommendation” does not require any particular measure of
enthusiasm for an agreed-upon sentencing recommendation.
While a prosecutor may not “undermine” a promised sentencing
recommendation by expressing “personal reservations at the
sentencing hearing,” the “prosecutor has no responsibility to
make such recommendations enthusiastically.” State v. Shaffer,
2010 UT App 240, ¶ 26, 239 P.3d 285 (cleaned up); see also Gray,
2016 UT App 87, ¶ 18 (“[The prosecutor] described the
circumstances of the crimes to underscore [the absence of
mitigating factors], and at the conclusion of this discussion, he

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State v. Heward

accurately, if not enthusiastically, described the recommendation
the State had agreed to make for concurrent sentences . . . . [This]
context supported a reasonable interpretation that comported
with . . . the State’s obligations under the plea agreement.”).

¶20 Notably, the plea agreement does not contain any
provisions regarding how the State was to fulfill its promise to
“affirmatively recommend” the six-years-to-life sentence. It offers
no guidance on how enthusiastically or forcefully the prosecutor
had to argue in favor of the agreement. Nor does it indicate, as
Heward argues on appeal that it should, any kind of obligation on
the part of the prosecutor to highlight mitigating factors. And
while it is true that the prosecutor did not approach the
recommendation with gusto, it is even more clear that the
prosecutor did affirmatively recommend the agreed-upon
sentence two distinct times. The prosecutor explicitly declared
that six years to life “is the State’s recommendation.” (Emphasis
added.) And when cautioned by the court to “be circumspect” in
his comments to avoid saying “anything” that “could be . . . trying
to argue against that deal,” the prosecutor clarified that he was
“not arguing that it should be anything else” and that the “State
is still bound and still recommending 6 to life.” (Emphasis added.)

¶21 Moreover, these recommendations were “affirmative” in
that the prosecutor did more than merely submit the matter
without any argument against the defense’s recommendation; to
the contrary, the State expressed its affirmative assent to the
prison term agreed upon in the plea agreement. See State v. Samul,
2018 UT App 177, ¶¶ 13–17, 436 P.3d 298 (distinguishing between
situations in which a plea agreement merely “secured the State’s
promise not to oppose” the defense’s recommendation and
situations in which a plea agreement requires the State to
“affirmatively argue for” a particular sentence), cert. denied, 432
P.3d 1233 (Utah 2018). In this case, the prosecutor made an effort
to positively express the State’s assent to the term of six years to
life by declaring that the term “is the State’s recommendation.”

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State v. Heward

(Emphasis added.) That the assent was expressed without great
enthusiasm does not diminish that it was in the affirmative.

¶22 Thus, the prosecutor’s statements, especially when taken
as a whole, represent a consistently unambiguous affirmation at
sentencing that the State stood behind its recommendation of six
years to life. We perceive no breach of the plea agreement in the
manner in which the prosecutor recommended a six-years-to-life
prison sentence.

2. Implication of Regret

¶23 Heward next argues that in informing the court that the
two victims apparently no longer supported the sentence of six
years to life, the State breached the plea agreement by implying
that it regretted entering it.

¶24 A prosecutor who “promises to recommend a certain
sentence and does so” does not breach the bargain “by also
bringing all relevant facts to the attention of the court, so long as
the statements are neutral and do not imply that the information
makes the State regret entering into the plea agreement.” Shaffer,
2010 UT App 240, ¶ 26 (cleaned up). The feelings of victims do not
inherently reflect the position of the State, and victims are not
authorized to communicate the State’s recommendations.
Therefore, by sharing the victims’ feelings, the prosecutor was
making a neutral statement, one that did not reflect the State’s
position or recommendation. See id. ¶ 32 (“By repeating the
victim’s statement, the prosecutor did not undermine the State’s
recommendation or imply that the State regretted that
recommendation.”). Thus, bringing to the court’s attention that
the support of Heward’s victims for the plea agreement had
perhaps waned does not imply that the State regretted entering
the plea.

¶25 It is also important to note that the prosecutor made these
comments immediately after Heward’s victims made statements

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State v. Heward

that could admittedly cut against the sentence of six years to life.
The older daughter seemed to explicitly oppose the plea
agreement, saying that Heward was “being shown undue mercy
. . . with a plea agreement.” And the younger daughter, while not
overtly criticizing the plea agreement, described in detail how
Heward’s abuse caused her to feel “numb,” depressed, anxious,
“suicidal,” “unclean and dirty,” and untrusting. She further
stated that she continued to have “very vivid nightmares and
flashbacks” in which she could “physically feel his hands” on her.
She also said, “I will never be able to forget how it felt when . . .
Heward did the things he did to me. I’m afraid that wherever I go
I will see him and he will hurt me in some type of way.” And she
concluded by saying, “I want . . . Heward to learn from his actions,
and I want him to know how badly he affected me . . . .” Given
the graphic descriptions both victims provided of the ongoing
harm they suffered, it certainly would not be a stretch to conclude
that the victims thought Heward was being treated too leniently
by the terms of the plea agreement. 2 1F

¶26 It was against this backdrop that the prosecutor spoke. As
the State points out, the victims’ apparent “about-face on the plea
agreement demanded an explanation” because the “court may
have been confused by the disparity between the victims’
statements at sentencing and the plea agreement.” After all, the
plea agreement stated that the “State and victims will
affirmatively recommend” a sentence of six years to life. But after
the victims spoke, the court could have easily concluded that the
victims were no longer on board. It is in this milieu that the

2. In his reply brief, Heward explicitly states that he “does not
object to the prosecutor facilitating the victims’ statements to the
trial court.” Moreover, Heward does not claim in any way that the
victims speaking up against the low-range sentence was a breach
of the plea agreement, even where the plea agreement stated the
victims would “affirmatively recommend” a sentence of six years
to life along with the State.

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State v. Heward

prosecutor assured the court that in “speaking with the victims
through plea negotiations,” their “minimums were 6 to life” and
“lifetime sex offender registry” and that was the offer the State
gave Heward. Then the prosecutor explained that the victims had
“wanted 6 to life” because “they felt manipulated” by Heward.
We have made clear that a prosecutor conveying the views of the
victim does not “undermine” or breach a plea agreement. Here, if
anything, the prosecutor’s statements about how the victims felt
represented an attempt to salvage the plea agreement after the
victims’ statements could be taken as militating against it. And it
was well within the prosecutor’s duty to assist the victims in
making their views known. See State v. Casey, 2002 UT 29, ¶ 29, 44
P.3d 756 (“Prosecutors must assist victims in exercising their right
to be heard at plea hearings and provide them with clear
explanations regarding such proceedings.” (cleaned up)). The
prosecutor appeared to be making the best of a delicate situation
by juggling the interests of the various parties involved while
trying to also honor the promises made in the plea agreement.

¶27 In sum, Heward’s complaint of plain error fails because the
prosecutor did not breach the plea agreement at all, let alone
commit a breach so obvious as to require the district court to
intervene without an objection.

II. Ineffective Assistance

¶28 Heward argues that Counsel provided ineffective
assistance by failing to object to the prosecutor’s alleged breach of
the plea agreement.

¶29 To show ineffective assistance of counsel, Heward must
prove that Counsel performed deficiently and that he suffered
prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 687
(1984). “Because failure to establish either prong of the test is fatal
to an ineffective assistance of counsel claim, we are free to address
[Heward’s claim] under either prong.” Honie v. State, 2014 UT 19,
¶ 31, 342 P.3d 182. Since we conclude, for two reasons, that

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State v. Heward

Counsel did not perform deficiently, we limit our analysis to the
deficiency prong. We give “trial counsel wide latitude in making
tactical decisions and will not question such decisions unless there
is no reasonable basis supporting them.” State v. Heyen, 2020 UT
App 147, ¶ 18, 477 P.3d 23 (cleaned up), cert. denied, 485 P.3d 943
(Utah 2021). So, to prevail on Strickland’s first prong, Heward
“must overcome the strong presumption that trial counsel
rendered adequate assistance and exercised reasonable
professional judgment by persuading the court that there was no
conceivable tactical basis for counsel’s actions.” State v. Samul,
2018 UT App 177, ¶ 15, 436 P.3d 298 (cleaned up), cert. denied, 432
P.3d 1233 (Utah 2018).

¶30 First, any objection would have been unlikely to succeed
because, as we have explained above, it was far from clear that the
prosecutor breached the plea agreement. See State v. Burdick, 2014
UT App 34, ¶ 34, 320 P.3d 55 (“It is well settled that counsel’s
performance at trial is not deficient if counsel refrains from
making futile objections, motions, or requests.” (cleaned up)), cert.
denied, 329 P.3d 36 (Utah 2014). Under these circumstances, a
reasonable attorney could have concluded that the prosecutor had
made the required “affirmative recommendation” and had
therefore not breached the plea agreement at all. See Samul, 2018
UT App 177, ¶ 16 (“Here, we can easily conceive of a reasoned
basis for counsel’s decision not to object to the State’s remarks at
sentencing: counsel may have believed that the State was
accurately describing the terms of the plea agreement.”).

¶31 Second, even if we assume, for purposes of the discussion,
that Counsel actually believed, in the moment, that the
prosecutor’s sentencing remarks constituted a breach of the plea
agreement, Counsel nevertheless had a solid strategic reason not
to object to the prosecutor’s statements, namely, an objection
could jeopardize the plea agreement and he very much wanted it
to remain on the table owing to the favorable terms it offered
Heward. Through the plea agreement, Heward would serve time
for only two of his eleven charges—ten counts of aggravated

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State v. Heward

sexual abuse of a child and one count of rape of a child. If Counsel
had been successful in objecting that the prosecutor breached the
plea agreement, one of two results would have likely happened.
At its discretion, the district court could have ordered “either
specific performance of the plea agreement or withdrawal of the
guilty plea.” State v. Smit, 2004 UT App 222, ¶ 17, 95 P.3d 1203. If
the court had ordered specific performance, the State would then
have to reiterate that it was honoring the promises made in the
plea agreement. But it would have been more likely (had a breach
occurred) that the court would have allowed Heward to
withdraw his plea—something he would be reluctant to do since
the probability of getting an equally favorable offer later would
be slim in light of the victims’ apparent reservations about the
existing plea agreement. Competent counsel could easily
conclude that the risk of objecting was simply too great
considering the minimal benefit and likely downside. At the very
least, competent counsel could have reasoned that there was no
benefit in objecting because the existing agreement was the best
Heward was going to receive. So, Counsel’s best course of action
was to express Heward’s concurrence with the six-years-to-life
sentence and hope that the court would agree.

¶32 Accordingly, Heward’s ineffective assistance claim fails
because Counsel had sound strategic reasons for not lodging an
objection to the prosecutor’s statements at sentencing.

CONCLUSION

¶33 Heward fails to establish that the district court plainly
erred where he has not shown that the plea agreement was
breached, much less obviously so. He has also failed to show that
Counsel provided ineffective assistance in not objecting to the
prosecutor’s statements.

¶34 Affirmed.

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