State v. Lindsey

2014 UT App 288
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
HENDRICKS M. LINDSEY,
Defendant and Appellant.

Memorandum Decision
No. 20120962-CA
Filed December 11, 2014

Eighth District Court, Duchesne Department
The Honorable Lyle R. Anderson
No. 111800341

Grant W.P. Morrison and Court J. Klekas II,
Attorneys for Appellant

Sean D. Reyes and Erin Riley, Attorneys for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and JOHN A. PEARCE concurred.

ROTH, Judge:

¶1 Hendricks M. Lindsey pleaded guilty to one count of
third degree felony child abuse. The district court sentenced him
to an indeterminate term of zero to five years in prison. Lindsey
now appeals this sentence, claiming three errors: (1) the district
court wrongly sentenced him without first allowing him to
obtain a presentence investigation report (PSI), (2) the prosecutor
breached the plea agreement by not recommending a jail
sentence rather than prison, and (3) the district court wrongly
considered letters from three non-victims at the sentencing
hearing. We affirm.
State v. Lindsey

¶2 Lindsey was charged with second degree felony child
abuse based on allegations that he knowingly inflicted serious
physical injury on a child when he hit the child until she was
‚black and blue.‛ On July 26, 2012, Lindsey pleaded guilty to a
reduced charge of third degree felony child abuse. One of the
terms of the plea agreement was that the prosecutor would
recommend that Lindsey serve his sentence in the county jail,
rather than at the state prison, if Lindsey obtained a PSI for use
at sentencing. The district court scheduled sentencing for
September 27, 2012, and referred Lindsey to Adult Probation and
Parole (AP&P) for a PSI in the meantime.

¶3 Lindsey arrived late for his scheduled appointment with
AP&P on August 27, 2012, and he had not yet completed the
required paperwork when he arrived. AP&P was unable to
adjust its schedule to conduct Lindsey’s interview later in the
day. At the subsequent sentencing hearing, defense counsel
sought a continuance so that Lindsey could reschedule the
appointment to complete the PSI. The prosecutor agreed to the
continuance but ‚ask*ed+ that Mr. Lindsey be taken into custody
and held until . . . sentencing‛ because he was apparently
concerned that Lindsey might further delay sentencing by failing
to keep his AP&P appointment a second time. In apparent
agreement, the district court gave Lindsey a choice between
‚go*ing+ ahead with sentencing . . . without any information
from Adult Probation and Parole‛ or continuing the sentencing
hearing to allow him time to ‚get a pre-sentence report,‛ with
the condition that he ‚sit in jail until sentencing.‛ Against the
advice of his counsel, Lindsey chose to forgo the PSI because he
did not wish to serve time in jail during the interim.

¶4 The court then continued the sentencing hearing for two
weeks, until October 11, 2012, with Lindsey remaining out of
custody.1 The day before the second sentencing hearing, defense

1. Because the prosecutor had earlier been informed that Lindsey
was seeking a continuance, he had told the victim and her family
(continued...)

20120962-CA 2 2014 UT App 288
State v. Lindsey

counsel filed a stipulated motion to continue on the basis that
Lindsey had decided that he did wish to obtain a PSI. At the
hearing the next day, the prosecutor informed the court that his
stipulation to the continuance had been conditioned upon
receiving ‚an answer in time for me to call the victim*+ so that
*she and her family+ didn’t have to travel out here for Court.‛
Because the district court had not yet ruled on the continuance
request and the victim and her family had traveled two hours to
be present for sentencing, the prosecutor withdrew his
stipulation. The district court denied Lindsey’s motion to
continue on the basis that ‚two weeks ago . . . Mr. Lindsey chose
this course.‛ The court then proceeded with sentencing.

¶5 The prosecutor stated that he would not be
recommending that Lindsey serve his sentence in jail instead of
prison because ‚*i+t was implied that the recommendation
would only be made if a PSI was ordered and used at
sentencing.‛ Lindsey’s attorney agreed that the prosecutor’s
representation about the plea agreement was ‚absolutely
accurate‛ and that the ‚idea was that we would have a PSI‛ that
‚would flesh in more of *Lindsey’s+ background‛ for the court to
assess the prosecutor’s recommendation that the sentence be
served in jail.

¶6 Next, the prosecutor told the court that he had letters
written by one of Lindsey’s neighbors, a babysitter, and a crisis
center representative that he intended to read into the record.
Lindsey objected on the ground that he had not been previously
provided with notice of the letters, which he characterized as
highly inflammatory and prejudicial, and therefore had ‚not
ha[d] the opportunity to present a rebuttal.‛ The court

that they did not need to be present for the September 27
sentencing hearing. But he advised the court that the victim still
‚want*ed+ to address the Court before sentencing.‛ Accordingly,
the district court postponed sentencing for two weeks to allow
the victim and her family to be present.

20120962-CA 3 2014 UT App 288
State v. Lindsey

responded that it was possible that the court would ‚determine
that there’s something here that would be a surprise to your
client‛ and if that were the case, Lindsey ‚would have a chance
to present evidence to counter it.‛ However, the court
determined that because it is ‚supposed to consider a wide
range of things‛ in determining a sentence, it would hear the
letters. The first letter was from a neighbor, who wrote that he
had seen handprint-shaped black and blue bruises on the child’s
legs after the incident underlying Lindsey’s guilty plea. The
neighbor further reported that Lindsey’s ‚lack of control or care
of a child was bad‛ and out of proportion to the child’s behavior.
The neighbor further wrote that he confronted Lindsey, who
showed ‚no remorse‛ for his actions. The second letter was from
a babysitter who described an incident where Lindsey yelled at
her and punched a wall in her presence. The third letter was
from a crisis center representative who believed that Lindsey
had followed the victim’s family to a domestic violence shelter.
After the prosecutor read the letters, the victim and her family
made statements about various violent acts committed against
them by Lindsey, including the abuse to which Lindsey pleaded
guilty.

¶7 Lindsey gave his own statement, in which he explained to
the court that he had spanked the child until she had bruises on
one leg and for that he ‚will deeply, deeply be sorry, forever.‛
He also offered an explanation for some of his behavior toward
the family, describing it primarily as responsive to ‚things that
were going on in the house that I did not approve of.‛ Lindsey
then described the counseling he had undergone since the
incident and claimed that he had not committed any other
violent crimes. Lindsey did not offer any direct rebuttal to the
written statements from the three non-victims, except when he
described his current feelings of remorse, nor did he ask the
court for an opportunity to put on further rebuttal evidence.

¶8 The district court sentenced Lindsey to zero to five years
in prison. In reaching this decision, the court explained that it
had heard nothing that would explain ‚why *the victim’s+ family
would, all of a sudden, turn on [Lindsey]‛ and make up the

20120962-CA 4 2014 UT App 288
State v. Lindsey

allegations. It also found the neighbor’s statements about the
effects of the abuse and Lindsey’s reaction to it to be particularly
‚important.‛ Lindsey now challenges three aspects of the
sentencing decision: (1) the district court’s denial of his motion
for a continuance to obtain the PSI, (2) the prosecutor’s
purported breach of the plea agreement when he did not
recommend a jail sentence and the court’s failure to recognize
the breach, and (3) the court’s consideration of the letters from
the non-victims.

I. Denial of the Motion to Continue Sentencing to Obtain a PSI

¶9 Lindsey first challenges the district court’s denial of his
motion to continue sentencing for the purpose of completing a
PSI. According to Lindsey, the court’s failure to permit him to
obtain a PSI resulted in the court not having all the legally
relevant information it needed to sentence him. The State
counters that a PSI is not essential for sentencing and that the
district court therefore acted within its discretion when it denied
Lindsey’s second request for a continuance.

¶10 ‚[T]he [district] court may, with the concurrence of the
defendant, continue the date for the imposition of sentence for a
reasonable period of time for the purpose of obtaining a
presentence investigation report . . . .‛ Utah Code Ann. § 77-18-
1(5)(a) (LexisNexis 2012). ‚Use of the permissive term ‘may’
plainly indicates that the trial court is not required to continue
sentencing to obtain a presentence investigation report.‛ State v.
Madsen, 2002 UT App 345, ¶ 14, 57 P.3d 1134. Consequently, we
will disturb a district court’s decision to deny a motion to
continue only if the court abused its discretion. Clarke v. Clarke,
2012 UT App 328, ¶ 19, 292 P.3d 76; see also Madsen, 2002 UT App
345, ¶ 14 (concluding that the district court has discretion to
sentence a defendant without ordering a presentence
investigation report). We likewise review sentencing decisions
for abuse of discretion. State v. Valdovinos, 2003 UT App 432,
¶ 14, 82 P.3d 1167.

20120962-CA 5 2014 UT App 288
State v. Lindsey

¶11 We conclude that the district court did not abuse its
discretion when it determined that a continuance was not
warranted in this case. Lindsey had previously been given an
opportunity to obtain the PSI, but due to his own dilatory
behavior, he was unable to complete the PSI interview on the
scheduled date. Nevertheless, the district court was willing to
give Lindsey a continuance to obtain the PSI, but on the
condition that he be placed in custody in the meantime to ensure
that the PSI was done this time. Such a condition was within the
court’s discretion under the circumstances.2 Despite the offered

2. Lindsey asserts that the district court found that he was ‚not
responsible for there being no pre-sentence report available‛ on
the date of the original sentencing hearing after he was late for
his original appointment. Lindsey, however, reads the district
court’s statement in isolation. When read in context, it is
apparent that the court was differentiating between delay within
Lindsey’s control and delay outside of it and excusing only the
latter.
At the initial sentencing hearing, Lindsey represented to
the court that although his AP&P interview was a month after he
entered the guilty plea, he had scheduled the earliest available
appointment. He admitted that he had arrived late for his
appointment but claimed that it was AP&P’s double booking
that prevented him from completing the interview, not his
tardiness. Lindsey also reported that he had been unable to
reschedule the appointment because he needed to be re-referred
from the court. Finally, Lindsey informed the court that ‚even if
my packet had been filled out, . . . [AP&P] told me it was not
enough‛ time because ‚the PSI would take six weeks from‛ the
date of the interview.
In response, the court stated, ‚If that’s true‛—meaning
AP&P’s six-week delay in generating reports—‚you’re*+
probably not responsible for there being no pre-sentence report
available today,‛ because the sentencing hearing was just four
weeks after Lindsey’s original AP&P appointment. (Emphasis
added.) The court, however, found Lindsey to be ‚responsible
(continued...)

20120962-CA 6 2014 UT App 288
State v. Lindsey

continuance and contrary to his attorney’s advice to obtain the
PSI, Lindsey advised the court that he ‚would prefer
sentencing‛ to occur sooner without the PSI than later with it.
Lindsey then waited until two weeks later, on the eve of the
rescheduled sentencing hearing, to inform the court that he did
want to continue sentencing until the PSI was completed.3 By
that time, however, it was too late to notify the victim and her
family, who had traveled two hours to attend the rescheduled
hearing. Given that Lindsey elected to waive the PSI and then
sought to undo that waiver only at a point where a delay would
impose further burdens on the victim and her family, who had
traveled a long way for an emotionally difficult proceeding, the
district court did not abuse its discretion in denying Lindsey’s
request for a continuance to obtain the PSI. See id.

¶12 Furthermore, the absence of a PSI did not mean that the
district court failed to have all legally relevant information

for there not being a pre-sentence report two weeks from today,‛
a date six weeks from Lindsey’s original AP&P appointment.
The court further faulted Lindsey for ‚tak*ing+ any risks with
that appointment‛ when he was aware that ‚it takes 30 days to
get into Adult Probation and Parole.‛ The court was also
dissatisfied with Lindsey’s failure to take reasonable measures to
reschedule the AP&P appointment ‚because the way *he+
approached this meant that . . . if they were going to schedule
another appointment for [Lindsey], [the appointment] would
have been about today.‛ The court’s statements indicate that it
was willing to excuse a two-week delay that was beyond
Lindsey’s control. It was holding Lindsey responsible, however,
for creating a situation where, in order to now complete the PSI,
sentencing would have to be delayed for more than two months
from the date originally set for sentencing because the process
would have to begin anew.

3. At that point, Lindsey stated that he was willing to be taken
into custody until the PSI could be completed.

20120962-CA 7 2014 UT App 288
State v. Lindsey

available for sentencing, as Lindsey claims. ‚A sentence in a
criminal case should be appropriate for the defendant in light of
his background and the crime committed and also serve the
interests of society which underlie the criminal justice system.‛
State v. McClendon, 611 P.2d 728, 729 (Utah 1980). Thus, ‚the
court shall receive any testimony, evidence, or information the
defendant or the prosecuting attorney desires to present
concerning the appropriate sentence.‛ Utah Code Ann. § 77-18-
1(7).

¶13 Lindsey urges us to interpret the language that ‚the court
shall receive any testimony, evidence, or information the
defendant . . . desires to present,‛ see id., to mean that the district
court was required to consider the information that would be
contained in a PSI if the defendant desired to present it. But as
we previously discussed, district courts have considerable
discretion in deciding whether or not to order a PSI in the first
instance, see Madsen, 2002 UT App 345, ¶ 14, and we have
already concluded that the court’s decision to deny Lindsey’s
requested continuance to allow him to obtain one was within the
court’s discretion as well. Moreover, the district court received
all of the information that both the prosecutor and Lindsey
wanted to present, including information regarding the nature of
the crime, Lindsey’s relationship with the victim and her family,
Lindsey’s health, his prior criminal history, and his rehabilitation
efforts and needs. The district court also heard from Lindsey
himself, who responded to the family’s negative description of
his behavior toward them with his own explanation of his
conduct and description of their relationships and also expressed
regret for his treatment of the victim.

¶14 Accordingly, we conclude that the district court did not
abuse its discretion by sentencing Lindsey without a PSI. See id.
¶ 15; see also State v. Waterfield, 2011 UT App 27, ¶ 5 n.2, 248 P.3d
57 (stating that there was no basis for setting aside the sentence
where ‚consultation of a PSI *in sentencing+ is not mandatory‛
and the ‚*d+efendant waived his right to a PSI . . . [when] he
agreed to be immediately ‘resentenced’ without the benefit of a
PSI‛).

20120962-CA 8 2014 UT App 288
State v. Lindsey

II. The Claimed Breach of the Plea Agreement

¶15 Lindsey’s next challenges relate to the plea agreement.
First, Lindsey contends that the district court plainly erred when
it failed to recognize that the prosecutor had breached the plea
agreement by not recommending that Lindsey’s sentence be
served in jail rather than in prison. To prevail on plain error
review, the appellant must demonstrate: ‚(i) An error exists; (ii)
the error should have been obvious to the trial court; and (iii) the
error is harmful, i.e., absent the error there is a reasonable
likelihood of a more favorable outcome for the appellant, or,
phrased differently, our confidence in the verdict is
undermined.‛ State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).
‚If any one of these requirements is not met, plain error is not
established.‛ Id. at 1209. Lindsey has not established any error.

¶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.‛ State v. Garfield, 552 P.2d 129, 130 (Utah 1976) (citing
Santobello v. New York, 404 U.S. 257, 262 (1971)). If the prosecutor
breaches the agreement, then the court must afford the
defendant a remedy, either by permitting the withdrawal of the
plea or requiring the State to perform. State v. Smit, 2004 UT App
222, ¶ 17, 95 P.3d 1203. At the sentencing hearing, however,
Lindsey’s defense counsel agreed that the prosecutor’s
obligation to recommend jail instead of prison was conditioned
upon the completion of a PSI. Lindsey concedes as much in his
appellate brief: ‚Mr. Lindsey’s plea agreement came with the
understanding that the prosecution would recommend jail time
in lieu of prison if Mr. Lindsey would undergo the PSI and the
resulting report was used in sentencing.‛ It is undisputed that a
PSI was not completed prior to sentencing. Because Lindsey
never obtained a PSI, the prosecutor was not bound to
recommend jail instead of prison. See State v. Dunn, 2009 UT App
308U, para. 4 (explaining that because the defendant had failed
to perform his end of the bargain, ‚the State’s obligation under
the plea agreement was never triggered‛). Thus, there was no
breach, and the district court had no obligation to take any

20120962-CA 9 2014 UT App 288
State v. Lindsey

corrective measures. Without a showing of error, Lindsey has
not carried his burden of demonstrating that the district court
committed plain error.

¶17 Next, Lindsey argues that the prosecutor’s breach of the
plea agreement violated his right to due process. Because we
have rejected his contention that a breach occurred, we need not
consider the constitutional question.

¶18 Finally, Lindsey contends that the requirement that he
obtain a PSI was only an implied condition and that ‚*t+o allow
the prosecution to change a material portion of the plea
agreement‛—the recommendation of jail instead of prison—
‚based upon an implied condition . . . is unjust, and
demonstrates a lack of good faith and fair dealing.‛ This
argument was raised for the first time in Lindsey’s reply brief,
and for that reason, we need not consider it. See Allen v. Friel,
2008 UT 56, ¶ 8, 194 P.3d 903. In any event, the argument is not
persuasive because Lindsey admitted, at both sentencing and on
appeal, that he was aware that completing the PSI was a
prerequisite to the prosecutor recommending that he serve his
sentence in jail.

III. The Court’s Consideration of the Non-Victims’ Letters

¶19 Finally, Lindsey asserts that the district court abused its
discretion when it allowed, over Lindsey’s objection, the
prosecutor to read letters from three people—Lindsey’s
neighbor, a babysitter, and a crisis center representative—who
were not victims or witnesses of his offense. According to
Lindsey, Utah law limits the right to be heard at sentencing to
the defendant and the victim or victims. We review a district
court’s sentencing decisions for abuse of discretion. State v.
Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d 1167.

¶20 When imposing a sentence, the district court should
‚consider all legally relevant factors.‛ State v. Ricks, 2014 UT App
85, ¶ 8, 325 P.3d 845 (per curiam). To facilitate the court’s
consideration of these factors, the court ‚shall receive any

20120962-CA 10 2014 UT App 288
State v. Lindsey

testimony, evidence, or information the defendant or the
prosecuting attorney desires to present concerning the
appropriate sentence.‛ Utah Code Ann. § 77-18-1(7) (LexisNexis
2012); see also Utah R. Crim. P. 22(a) (‚Before imposing sentence
the court shall afford . . . [t]he prosecuting attorney . . . an
opportunity to present any information material to the
imposition of sentence.‛). In other words, ‚trial judges may
receive and consider a wide range of evidence concerning the
defendant in fixing the penalty to be imposed,‛ so long as that
information is ‚reasonably reliable and relevant.‛ State v. Howell,
707 P.2d 115, 118 (Utah 1985). Thus, Lindsey’s contention that
the district court was barred from considering the non-victims’
statements finds no support in either statute or precedent.

¶21 The information in the letters satisfies the requirements
that it be ‚reasonably reliable and relevant.‛ See id. Certainly,
information regarding the extent of harm to a victim, a
defendant’s attitude regarding the offense, and other violent acts
is relevant to the district court’s determination of the appropriate
sentence for the violent crime of child abuse. And the crisis
center representative’s belief that Lindsey had followed the
family to a safe shelter is relevant to the court’s assessment of
whether a defendant like Lindsey ought to serve his sentence in
the jail, on a term of probation, rather than in the more secure
setting of a prison. Indeed, Lindsey himself does not challenge
the relevance of these statements, nor does he claim that the
statements were unreliable or inaccurate. Cf. id. (concluding that
the district court did not abuse its discretion in considering
evidence of the defendants’ sexual abuse of their children while
sentencing them on physical abuse convictions because the
evidence ‚had indicia of reliability and was relevant in
sentencing‛).

¶22 Rather, Lindsey’s only complaint about the court’s
consideration of the letters is that they ‚had the potential to be
highly inflammatory and prejudicial‛ and that because they
were ‚presented to the defense on the day of sentencing,‛ it was
‚extremely difficult to present rebuttal evidence.‛ But although
Lindsey seems to be making a claim of surprise, implicating his

20120962-CA 11 2014 UT App 288
State v. Lindsey

right to due process, Lindsey has not offered any explanation of
what evidence he could have presented to rebut the statements
had he had an opportunity to do so, nor has he identified any
other specific harm from the late notice.4 See Salt Lake City v.
Almansor, 2014 UT App 88, ¶ 11, 325 P.3d 847 (explaining that to
demonstrate that the failure to allow an opportunity to present
additional evidence was harmful, an appellant must address the
anticipated content of that evidence and demonstrate how it
would have supported his position); cf. State v. Creviston, 646
P.2d 750, 752 (Utah 1982) (affirming the denial of a motion for
continuance on the basis that the defendant had failed to show
that the testimony he sought to present was material and
admissible when he had claimed only that the missing witness’s
testimony was ‚‘vital’‛ and was expected to be beneficial to him
but did not provide any information about what the witness
would say). Thus, Lindsey has not demonstrated that he was
harmed by any unfair surprise stemming from the prosecutor’s
reading the letters. See Utah R. Crim. P. 30(a) (explaining that the
appellant must show that his ‚substantial rights‛ were affected
to warrant a remedy on appeal).

4. We note, as well, that Lindsey did not request a continuance in
the district court, despite the court’s indication that it would be
willing to consider such a request. In response to Lindsey’s
objection to the court’s consideration of the letters, the court said
if it ‚determine*d+ that there’s something here that would be a
surprise to *Lindsey+,‛ the court would afford him ‚a chance to
present evidence to counter it.‛ The failure to seek a continuance
can be fatal in and of itself to Lindsey’s ‚surprise‛ claim because
the failure to seek appropriate relief in the district court results
in a failure to properly preserve the claim. See, e.g., Salt Lake City
v. Almansor, 2014 UT App 88, ¶ 10, 325 P.3d 847 (concluding that
the defendant had failed to preserve his claim that the trial court
abused its discretion in proceeding to trial even though a
defense witness was not present because the defendant had not
sought a continuance).

20120962-CA 12 2014 UT App 288
State v. Lindsey

IV. Conclusion

¶23 In summary, Lindsey has not demonstrated that the
district court abused its discretion in denying his motion for a
continuance to obtain the PSI or in making its decision to
sentence him to prison. He also has not demonstrated that the
prosecutor breached the plea agreement, a precondition for each
of his claims relating to the performance of the plea agreement.
Finally, he has not shown that the district court abused its
discretion in considering written submissions from three people
who were not victims of his offense. As a result, we affirm his
sentence.

_____________

20120962-CA 13 2014 UT App 288