State v. Sanchez

2015 UT App 58
_________________________________________________________
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Plaintiff and Appellee,
v.
WILBERT S ANCHEZ ,
Defendant and Appellant.
Memorandum Decision
No. 20121030-CA
Filed March 12, 2015
Fifth District Court, St. George Department
The Honorable John J. Walton
No. 121501257
Kenneth L. Combs, Attorney for Appellant
Sean D. Reyes, Brett J. DelPorto, and Paul F. Graf,
Attorneys for Appellee
JUDGE K ATE A. TOOMEY authored this Memorandum Decision, in
which JUDGE GREGORY K. O RME concurred. JUDGE M ICHELE M.
C HRISTIANSEN concurred, with opinion.
TOOMEY, Judge:
¶1 	Wilbert Sanchez appeals from the sentence imposed on
him 	by 	the 	trial 	court 	after 	he 	was convicted 	of 	unlawful
possession 	of 	another’s 	identification 	documents, 	a 	class 	A
misdemeanor. We affirm.
¶2 	Sanchez was charged with one count of identity fraud
and one count of forgery based on his alleged use of another

State v. Sanchez
person’s social security number to obtain employment.1 A jury
later acquitted Sanchez of the identity fraud and forgery charges,
instead 	finding 	him 	guilty 	of 	a 	lesser 	offense 	of 	unlawful
possession of another’s identification document. Sanchez then
filed a motion pursuant to Utah Code section 76-3-402(1) to
reduce 	the 	conviction. 	See 	Utah 	Code 	Ann. 	§ 	76-3-402(1)
(LexisNexis 2012) (providing the trial court discretion to reduce
a conviction to the next lower degree of offense if it concludes
the conviction would be unduly harsh). Specifically, Sanchez
asked 	the 	court 	to 	reduce 	his 	conviction 	to 	a 	class 	B
misdemeanor 	and 	sentence 	him 	within 	the 	corresponding
penalty range. See id. § 76-3-204(2) (providing that a class B
misdemeanor is punishable by imprisonment for a term not
exceeding six months). At the sentencing hearing, the prosecutor
asked the trial court to sentence Sanchez to 365 days in jail, the
maximum sentence for a class A misdemeanor. See id. § 76-3-
204(1). Sanchez responded that if the court refused to reduce his
conviction and sentenced him to 365 days in jail, he would be
deported because of his immigration status. Sanchez therefore
urged the trial court to sentence him to 180 days in jail based on
his counsel’s understanding that such a sentence would give
Sanchez a better chance of remaining in the country.
¶3 	The trial court judge ultimately denied Sanchez’s motion:
[U]nder the circumstances—I think that I would be
substituting 	my 	own 	sympathies 	for 	Mr.
Sanchez’[s] situation rather than applying the law
in an appropriate manner if I were to rule or find
1. Both of these counts in the information are third degree
felonies. See Utah Code Ann. § 76-6-1102(3)(a) (LexisNexis Supp.
2014); id. § 76-6-502 (LexisNexis 2012). Unlawful possession of
another’s identification document is a class A misdemeanor. See
id. § 76-6-1105 (LexisNexis 2012).
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State v. Sanchez
that it would be unduly harsh or severe to sentence
Mr. Sanchez to the standard sentence for a Class A
Misdemeanor.
The trial court thereafter sentenced Sanchez to a term of 365 days
in jail. It also imposed a $2,500 fine, stayed the execution of
sentence, 	and 	placed 	Sanchez 	on 	probation 	for 	two 	years.
Among 	other 	things, 	the 	conditions 	of 	Sanchez’s 	probation
required him to serve a term of 100 days in the county jail with
an early release should he be deported, and an order was
entered requiring Sanchez’s release to Immigration and Customs
Enforcement agents for deportation. Sanchez appeals.
¶4 	On appeal, Sanchez raises three arguments challenging
his sentence. Specifically, he argues that the trial court (1) was
unduly harsh and abused its discretion when it denied his
request for a section 402(1) reduction, (2) abused its discretion
when it failed to take into account his potential deportation
when determining his sentence, and (3) unlawfully delegated its
sentencing decision to the prosecutor.
¶5 	The 	decision 	of 	whether 	to 	grant 	a 	section 	402(1)
reduction rests within the discretion of the trial court. See State v.
Perea, 2013 UT 68, ¶ 114, 322 P.3d 624; see also State v. Boyd, 2001
UT 30, ¶¶ 30–31, 25 P.3d 985. We afford trial courts “wide
latitude and discretion in sentencing.” State v. Killpack, 2008 UT
49, ¶ 58, 191 P.3d 17 (citation and internal quotation marks
omitted). Accordingly, “[w]e will not overturn a sentence unless
it exceeds statutory or constitutional limits, the judge failed to
consider all the legally relevant factors, or the actions of the
judge 	were 	so 	inherently 	unfair 	as 	to 	constitute 	abuse 	of
discretion.” State v. Sotolongo, 2003 UT App 214, ¶ 3, 73 P.3d 991
(citations and internal quotation marks omitted); see also Boyd,
2001 UT 30, ¶ 31.
¶6 	First, 	Sanchez 	argues 	the 	trial 	court 	exceeded 	its
discretion in denying his request for a section 402(1) reduction
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State v. Sanchez
because a conviction for a class A misdemeanor would be
unduly harsh and would subject him to deportation. Section 76-
3-402(1) provides,
If at the time of sentencing the court, having regard
to the nature and circumstances of the offense of
which the defendant was found guilty and to the
history and character of the defendant, and after
having given any victims present at the sentencing
and the prosecuting attorney an opportunity to be
heard, concludes 	it would be unduly harsh to
record the conviction as being for that degree of
offense established by statute, the court may enter
a judgment of conviction for the next lower degree
of offense and impose sentence accordingly.
Utah Code Ann. § 76-3-402(1).
¶7 	In analyzing Sanchez’s motion to reduce his conviction,
the trial court considered the nature of his crime, his particular
circumstances, 	and 	the 	consequences 	of 	his 	conviction.
Specifically, 	the 	court 	noted 	that, 	although 	he 	is 	“a 	hard
worker,” Sanchez committed “a serious crime, using someone
else’s Social Security Number” and had “already substantially
benefited by not having been convicted of a felony.” Moreover, it
considered that there was no guarantee that Sanchez was going
to be deported with a class A misdemeanor conviction or a 365-
day jail sentence. The trial court judge determined that the
conviction for a class A misdemeanor was not unduly harsh to
Sanchez, stating,
I don’t think that the Section 402 argument is a
hard one, Counsel, because given—I heard the
facts of the case, and I just could not find under the
circumstances—and 	I’ve 	given 	it 	a 	lot 	[of]
thought—that I should reduce it because I can’t
find that it would be unduly harsh or severe to
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State v. Sanchez
enter sentence at the level of a standard sentence
for a Class A Misdemeanor.
Based on our review of the record, we conclude the trial court
acted 	within 	its 	discretion 	in 	ruling 	that 	the 	class 	A
misdemeanor 	conviction 	was 	not 	unduly 	harsh 	under 	the
circumstances of this case.
¶8 	Second, Sanchez contends the trial court should have
taken into account his potential deportation when determining
his sentence. In essence, Sanchez argues that the immigration
consequences resulting from a 365-day jail sentence should have
been weighed as a mitigating factor and should have led the trial
court to sentence him to a shorter jail term.
¶9 	In general, trial courts base sentencing decisions on “the
totality 	of 	the 	circumstances.” 	Perea, 	2013 	UT 	68, 	¶ 	117.
“Although courts must consider all legally relevant factors in
making a sentencing decision, not all aggravating and mitigating
factors are equally important, and [o]ne factor in mitigation or
aggravation 	may 	weigh 	more 	than 	several 	factors 	on 	the
opposite scale.” Killpack, 2008 UT 49, ¶ 59 (alteration in original)
(citation and internal quotation marks omitted).
¶10 	In this case, the trial court considered the totality of the
circumstances when it made its sentencing decision. In doing so,
the court contemplated whether to give weight to Sanchez’s
potential deportation but concluded that it should sentence
Sanchez 	without 	regard 	to 	the 	immigration 	ramifications.
Nevertheless, 	the 	judge 	opined 	that 	Sanchez’s 	deportation
would be “unfortunate,” and the judge expressed “sympathies
for 	Mr. 	Sanchez’[s] 	situation” 	and 	hope 	for 	“substantial
comprehensive immigration reform that would deal with these
situations.”
¶11 	Although the trial court evidently entertained the idea of
sentencing Sanchez to less than the maximum standard 365-day
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State v. Sanchez
jail sentence, it explained that the “only reason” to do that would
be because the trial court was “not sure that it is fair that Mr.
Sanchez be deported.”2 But because doing so would be “making
a different kind of sentence for Mr. Sanchez than [the court does]
for 	almost 	everyone 	else 	who’s 	committed 	a 	Class 	A
Misdemeanor,” the trial court refused to deviate from its normal
practice of imposing the maximum standard sentence of 365
days in jail. Under these circumstances, the trial court did not
exceed its discretion when it sentenced Sanchez.3
2. Even if the trial court had exceeded its discretion when it
sentenced Sanchez to 365 days in jail, it would be harmless
because the actual sentence imposed by the court is irrelevant to
Sanchez’s 	potential 	for 	deportation. 	As 	Sanchez 	notes, 	“[a]
person who is in the country illegally is subject to deportation
when convicted of certain crimes as set forth in 8 U.S.C.A.
§ 1227.” Specifically, he cites the Immigration and Nationality
Act: “Any alien who . . . is convicted of a crime involving moral
turpitude . . . and . . . is convicted of a crime for which a sentence
of one year or longer may be imposed, is deportable.” 8 U.S.C.
§ 1227(a)(2)(A)(i) (2012) (emphasis added). Accordingly, because
a class A misdemeanor is a crime for which a sentence of one
year may be imposed and the trial court did not abuse its
discretion in denying Sanchez’s request for a section 402(1)
reduction, Sanchez’s actual sentence is irrelevant to the potential
for deportation under the Immigration and Nationality Act. See
id.; see also Utah Code Ann. § 76-3-204(1) (LexisNexis 2012).
3. Sanchez cites two cases in support of his argument that the
trial 	court 	should 	have 	taken 	into 	account 	his 	potential
deportation when determining his sentence. In the first case,
Padilla 	v. 	Kentucky, 	559 	U.S. 	356 	(2010), 	the 	United 	States
Supreme Court held that because “deportation is an integral part
. . . of the penalty that may be imposed on noncitizen defendants
who plead guilty to specified crimes,” id. at 364, “counsel must
20121030-CA 	6 	2015 UT App 58
(continued...)

State v. Sanchez
¶12 	Finally, Sanchez asserts that the trial court unlawfully
delegated its sentencing decision to the prosecutor. In support,
Sanchez directs us to a point during the sentencing hearing
when the trial judge explained that “99.9 percent of the time,” he
sentences defendants to the maximum standard sentence for a
class A misdemeanor and that although he had deviated from
that a “time or two,” he had “never done it . . . unless it was
stipulated 	by 	Counsel.” 	Based 	on 	these 	statements, 	the
prosecutor’s refusal to stipulate to a lesser sentence, and the trial
judge’s 	imposition 	of 	the 	maximum 	365-day 	jail 	sentence,
Sanchez asserts the trial judge improperly required a stipulation
from the prosecutor before he would impose a shorter sentence,
thereby delegating his sentencing duty. The State counters that
because the judge “simply followed [his] ordinary practice of not
reducing the sentence for a class A misdemeanor unless the
prosecutor stipulated,” the court did not delegate its judicial
authority. We agree with the State.
inform her client whether his plea carries a risk of deportation,”
id. at 360, 373–74. But Padilla does not require trial courts to
consider immigration status during sentencing. See id. In the
second case, United States v. Jefferson, 925 F.2d 1242 (10th Cir.
1991), 	the 	Tenth 	Circuit 	determined 	that 	a 	district 	court
committed reversible error during the sentencing phase of a trial
when it stated that it did not have the discretion to depart from
the United States Sentencing Guidelines. Id. at 1247, 1259–60.
According to Sanchez, Jefferson buttresses his claim that the trial
court erroneously believed it could not exercise any discretion to
sentence Sanchez to less than the maximum standard sentence.
But because the trial court in this case did not state that it lacked
discretion and because Jefferson does not address sentencing
under 	Utah 	law, 	Jefferson 	is 	inapposite. 	See 	id. 	at 	1259–60.
Consequently, Sanchez’s reliance on these cases is misplaced.
20121030-CA 	7 	2015 UT App 58
(…continued)

State v. Sanchez
¶13 	“While sentencing courts take into account all the relevant
circumstances, . . . the recommendations of the prosecutor or any
other party are not binding upon the court.” State v. Moreau, 2011
UT App 109, ¶ 11, 255 P.3d 689 (citations and internal quotation
marks omitted); cf. Utah R. Crim. P. 11(h)(2) (“If sentencing
recommendations are 	allowed by the court, the court shall
advise the defendant personally that any recommendation as to
sentence 	is 	not 	binding 	on 	the 	court.”). 	In 	this 	case, 	the
sentencing hearing transcript does not support Sanchez’s claim
that the prosecutor’s recommendation dictated the trial court’s
ultimate decision. The relevant portion of the transcript is as
follows:
[DEFENSE 	COUNSEL]: 	Your 	Honor, 	I’m 	not
aware 	of 	any 	law 	that 	says 	the 	Court 	cannot
sentence a person from zero to 365 [days for a class
A misdemeanor].
THE COURT: Right, I agree with you. But 99.9
percent of the time, I don’t do that, and I question,
given the fact that Mr. Sanchez has been convicted
of a Class A Misdemeanor, if it’s appropriate for
me to enter a different kind of a sentence than I do
99.9 percent of the time . . . and the only reason that
I would be doing that . . . would be to say it’s
because I’m not sure that it’s fair that Mr. Sanchez
be deported. But that’s not my decision.
. . . .
[DEFENSE COUNSEL]: . . . I’ve seen a couple of
judges 	here 	in 	this 	district . . . vary 	from 	the
practice [but] most all do the same thing the Court
does, that’s 99.9 percent, probably.
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State v. Sanchez
THE COURT: I’ll tell you, Counsel, I’ve done it a
time or two. I’ve never done it, I don’t believe,
unless it was stipulated by Counsel.
. . . .
THE COURT: [Prosecutor], what about it? You
started with the position that [the sentence] ought
to be 365 days because presumably that means that
Mr. Sanchez would be deported.
[PROSECUTOR]: 	Well, 	that’s 	the 	basis 	for 	the
position that (Inaudible). . . . I’ve come to the same
conclusion you have . . . that is the normal Class A
Misdemeanor sentence was 365 days.
. . . .
THE COURT: What opposition would you have to
the Court exercising its discretion to, say, 360 days
as a statutory sentence instead of 365?
[PROSECUTOR]: I recognize that you have had
(Inaudible). I’ve even heard of judges saying 364
days.
THE COURT: Yes.
[PROSECUTOR]: I would oppose that; I would ask
for 365 days.
THE COURT: Okay.
The trial court then sentenced Sanchez to the maximum standard
sentence of 365 days, explaining that imposing the sentence was
“the appropriate thing to do from a judicial standpoint.” When
the transcript is read as a whole, the trial court’s reference to a
20121030-CA 	9 	2015 UT App 58

State v. Sanchez
stipulation was only an explanation of its usual practice of
refusing to depart from maximum standard sentences absent a
stipulation from the parties. We therefore do not agree with
Sanchez that the trial court delegated its sentencing authority to
the prosecutor.
¶14 	In conclusion, the trial court did not exceed its discretion
in sentencing Sanchez or in denying Sanchez’s motion to reduce
his conviction. Moreover, the court did not improperly delegate
its 	sentencing 	authority 	to 	the 	prosecutor. 	Accordingly, 	we
affirm Sanchez’s sentence.
CHRISTIANSEN, Judge (concurring):
¶15 	I agree with the lead opinion’s conclusion that the trial
court committed no reversible error in sentencing Sanchez, and I
therefore concur in affirming his sentence. However, I write
separately because I believe a point the lead opinion addresses
only briefly in a footnote is dispositive of one of the principal
issues raised by Sanchez on appeal. See supra note 2. The critical
inquiry in examining the trial court’s exercise of its discretion
here is whether the trial court properly denied Sanchez’s motion
for a section 402 reduction, not whether the trial court abused its
discretion in imposing Sanchez’s actual sentence. This is because
the only prejudice Sanchez is claiming to have suffered as a
result of the trial court’s sentencing decision is his classification
as deportable under title 8, section 1227 of the United States
Code—a classification that is completely unaffected by the actual
sentence imposed by the trial court.
¶16 	Sanchez 	was 	convicted 	of 	unlawful 	possession 	of
another’s identification documents, a class A misdemeanor. Utah
Code Ann. § 76-6-1105(2)(a) (LexisNexis 2012). This offense is
subject to a sentence of imprisonment for a term not exceeding
one year. Id. § 76-3-204. Before he was sentenced, Sanchez moved
the court for a reduction under Utah Code section 76-3-402,
20121030-CA 	10 	2015 UT App 58

State v. Sanchez
seeking reduction of his conviction to a class B misdemeanor
punishable by up to six months of imprisonment. Id. The trial
court 	denied 	that 	motion, 	concluding 	that 	entering 	the
conviction as a class A misdemeanor would not be “unduly
harsh.” See id. § 76-3-402(1).
¶17 	I agree with the lead opinion that the trial court did not
abuse its discretion in denying Sanchez’s motion for a section
402 reduction. Sanchez argued to the trial court that entering his
conviction as a class A misdemeanor would be unduly harsh
because it would subject him to deportation. A review of the
record demonstrates that the trial court acknowledged Sanchez’s
immigration 	status, 	the 	nature 	of 	Sanchez’s 	offense, 	and
Sanchez’s character and personal circumstances in ruling on the
motion. Sanchez has not demonstrated that the trial court failed
to consider any legally relevant sentencing factors or exceeded
statutory or constitutional limits in denying his motion. Given
the deference with which we review a trial court’s decision on a
section 402 motion, I cannot say that “no reasonable [person]
would take the view adopted by the trial court” and therefore
cannot conclude that the trial court abused its discretion in
denying Sanchez’s motion for a reduction of his conviction. See
State v. Moreau, 2011 UT App 109, ¶ 6, 255 P.3d 689 (alteration in
original) (citation and internal quotation marks omitted).
¶18 	Having determined that the trial court properly denied
Sanchez’s motion for a section 402 reduction, I would not reach
Sanchez’s argument that the trial court abused its discretion in
sentencing him. Rather, I would affirm because any error in the
trial court’s actual sentencing decision is harmless with respect
to the only prejudice that Sanchez has asserted on appeal—his
classification as deportable under title 8, section 1227 of the
United States Code. Federal law provides that an alien convicted
of a crime involving moral turpitude “for which a sentence of
one year or longer may be imposed” is deportable. 8 U.S.C.
§ 1227(a)(2)(A)(i) (2012). Sanchez argues that “the length of the
sentence” imposed by the trial court would “impact whether or
20121030-CA 	11 	2015 UT App 58

State v. Sanchez
not 	[Sanchez] 	can 	possibly 	be 	deported” 	and 	that 	it 	was
therefore 	“vital 	for 	the 	trial 	court 	to 	consider 	possible
deportation when imposing his sentence.” However, it is the
maximum sentence permitted for a conviction—not the actual
sentence 	imposed—that 	determines 	whether 	a 	defendant 	is
deportable under this section. See id. § 1227(a)(2)(A)(i)(II).1
¶19 	A defendant convicted of a class A misdemeanor may be
sentenced to imprisonment for up to one year. Utah Code Ann.
§ 76-3-204. 	Thus, 	once 	Sanchez 	was convicted 	of 	a class A
misdemeanor and the trial court entered the conviction at that
level, he “could have been deported regardless of [his] sentence,
because the Immigration and Nationality Act . . . classifies as
deportable any alien convicted of a crime of moral turpitude ‘for
which a sentence of one year or longer may be imposed.’” State v.
Aguirre-Juarez, 2014 UT App 212, ¶ 3, 335 P.3d 896 (quoting 8
U.S.C. § 1227(a)(2)(A)(i) (2006)). Whatever weight the trial court
gave to the potential immigration consequences of Sanchez’s
sentence simply does not matter, because the actual term of
imprisonment 	ordered 	by 	the 	trial 	court 	is 	irrelevant 	to
Sanchez’s eligibility for deportation. Any error or abuse of
1. Sanchez’s argument appears to concede, and I assume for
purposes 	of 	this 	analysis, 	that 	a 	conviction 	for 	unlawful
possession of another’s identification documents is a crime of
moral turpitude. This view appears consistent with the Supreme
Court’s 	observation 	that 	“crimes 	involving 	fraud 	have
universally been held to involve moral turpitude.” Jordan v. De
George, 341 U.S. 223, 228 (1951). However, I would not decide
this 	issue, because 	it 	would not affect the outcome of my
analysis. Even if the crime of unlawful possession of another’s
identification is not one of moral turpitude, Sanchez would
simply not be classified as deportable under this statute, and the
sentence imposed by the trial court would still have no effect on
that classification.
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State v. Sanchez
discretion 	in 	the 	trial 	court’s 	selection 	of 	the 	period 	of
incarceration 	is 	therefore 	harmless 	with 	respect 	to 	whether
Sanchez is deportable.2 As Sanchez has raised no other claim of
prejudice on appeal, I would affirm on that basis.
2. This court has recognized that the actual sentence imposed by
the 	trial 	court 	may 	have 	other 	immigration 	consequences.
Notably, 	“an 	adult 	alien 	convicted 	of 	a 	crime 	of 	‘moral
turpitude’ and sentenced to incarceration for six months or
more” 	is 	rendered 	permanently 	inadmissible 	to 	the 	United
States. State v. Aguirre-Juarez, 2014 UT App 212, ¶ 5, 335 P.3d 896
(quoting 	8 	U.S.C. 	§ 	1182(a)(2)(A)(i)–(ii) 	(2006)). 	However,
Sanchez has argued only the deportation issue and has raised no
other immigration issue below or on appeal.
20121030-CA 	13 	2015 UT App 58