State v. Pelton

2015 UT App 150
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Plaintiff and Appellee,
v.
R OBERT F RANK PELTON ,
Defendant and Appellant.
Memorandum Decision
No. 20131100-CA
Filed June 11, 2015
Fifth District Court, St. George Department
The Honorable Eric A. Ludlow1
The Honorable James L. Shumate
No. 091502003
Scott N. Weight, Attorney for Appellant
Sean D. Reyes and Brett J. DelPorto, Attorneys
for Appellee
JUDGE K ATE A. TOOMEY authored this Memorandum Decision, in
which JUDGES GREGORY K. O RME and M ICHELE M. C HRISTIANSEN
concurred.
TOOMEY, Judge:
¶1 	Robert Frank Pelton appeals his sentence after pleading
guilty to driving under the influence, a third-degree felony. He
argues that the two-and-one-half-year period between his guilty
plea and his sentencing violated his right to a speedy trial. He
also argues that the district court erred by failing to sentence him
1. 	Judge 	Eric 	A. 	Ludlow 	presided 	over 	Pelton’s 	case 	until
sentencing, and Judge James L. Shumate sentenced him.

State v. Pelton
20131100-CA 	2 	2015 UT App 150
concurrently with a sentence he was already serving out of state.
We affirm.
¶2 	On 	September 	19, 	2009, 	Pelton 	was 	arrested 	for
aggravated driving under the influence in Mohave County,
Arizona 	(the 	Arizona 	DUI). 	Two 	months 	later, 	Pelton 	was
arrested again for driving under the influence in Washington
County, Utah (the Utah DUI).
¶3 	Pelton pled guilty to the Utah DUI on November 9, 2010.
As part of his plea agreement, Pelton acknowledged that if he
was awaiting sentencing on another offense for which he was
found guilty, this guilty plea could result in a consecutive
sentence. 	Pelton 	further 	consented 	to 	a 	pre-sentence
investigation 	with 	Adult 	Probation 	and 	Parole 	(AP&P), 	he
waived the statutory forty-five-day sentencing deadline set out
in rule 22(a) of the Utah Rules of Criminal Procedure so the
investigation could take place, and the State recommended the
minimum 	statutory 	sentence. 	The 	court 	scheduled 	Pelton’s
sentencing for February 1, 2011.
¶4 	Shortly after he pled guilty in Utah, Pelton was convicted
of the Arizona DUI, taken into custody, and sentenced to thirty
months in prison. Consequently, Pelton was not present for his
sentencing in Utah, and the court issued a $25,000 cash-only
warrant to help ensure Pelton would be brought back to Utah for
sentencing once he had finished his Arizona sentence.
¶5 	After several months of incarceration in Arizona, Pelton
wrote a letter, filed September 6, 2011 with the Utah Fifth
Judicial District Court, requesting “to be sent to the state of
Utah” for sentencing or in the alternative, to be sentenced in
absentia “to a concurrent Jail term to be served along with his
[Arizona] prison sentence.” But Pelton’s letter did not mention
his right to a speedy trial. The judge denied his request with a
handwritten note that said, “Once he has finished his sentence in
AZ—he will be brought back to Utah for sentencing.”

State v. Pelton
20131100-CA 	3 	2015 UT App 150
¶6 	In early 2013, Pelton addressed a letter to the Utah court
in which he explicitly raised his right to a speedy trial and again
requested to be sentenced in absentia and to have his Utah
sentence run concurrently with his Arizona sentence. The judge
also denied this request.
¶7 	On March 25, 2013, Pelton was released from prison in
Arizona on parole, and Arizona officials transferred his parole to
Utah. One month later Pelton violated the terms of his parole by
drinking 	alcohol. 	AP&P 	updated 	Pelton’s 	pre-sentence
investigation addendum report to reflect the violation and to
indicate that Pelton presented a high risk to reoffend, had ten
prior DUIs, had a history of alcohol abuse, and continued to use
alcohol during his parole term. AP&P then recommended that
the court sentence Pelton to a zero-to-five year prison term. On
June 11, 2013, approximately two-and-one-half years after he
pled guilty to the Utah DUI, the court sentenced Pelton to an
indeterminate term not to exceed five years. Pelton appeals.
¶8 	Pelton contends, “The sentencing court committed plain
error by failing to comply with its legal duty to provide [him]
with a speedy trial pursuant to [his] rights under both the
United States and Utah Constitutions.” In particular, Pelton
argues the court violated his right to a speedy trial by not
“retriev[ing] him from the state of Arizona” for sentencing
because he “lost his right to have all or a part of his sentence run
concurrently with the sentence he was serving in Arizona.”
Moreover, 	Pelton 	argues 	the 	court’s 	error 	entitles 	him 	to
dismissal of the charges against him. We are not persuaded.
¶9 	“Whether a defendant’s right to a speedy trial has been
violated 	presents 	a 	question 	of 	law, 	which 	we 	review 	for
correctness.” State v. Steele, 2010 UT App 185, ¶ 14, 236 P.3d 161.
But, 	“[b]ecause 	trial 	courts 	are 	afforded 	wide 	latitude 	in
sentencing, a court’s sentencing decision is reviewed for an
abuse of discretion.” State v. Epling, 2011 UT App 229, ¶ 8, 262
P.3d 440 (citations and internal quotation marks omitted). “A
court abuses its discretion in imposing consecutive sentences

State v. Pelton
20131100-CA 	4 	2015 UT App 150
only if no reasonable person would take the view taken by the
sentencing court.” Id. (citation and internal quotation marks
omitted).
¶10 	The standard for evaluating whether a defendant’s right
to a speedy trial, including a prompt sentencing, was violated
under the Utah Constitution is the same as the federal standard
articulated in Barker v. Wingo, 407 U.S. 514 (1972). See State v.
Trafny, 799 P.2d 704, 708 (Utah 1990); State v. Banks, 720 P.2d
1380, 1385 (Utah 1986). In Barker, the Supreme Court articulated
four factors to consider when evaluating whether a defendant’s
speedy trial right has been violated: the court must consider the
“length of the delay, the reason for the delay, the defendant’s
assertion of his right, and prejudice to the defendant.” 407 U.S. at
530. These factors, along with other circumstances that may be
relevant, must be balanced to determine whether a violation has
occurred. Id. at 533.
¶11 	A two-and-one-half-year period between conviction and
sentencing is presumptively prejudicial which weighs in favor of
Pelton’s claim. Compare Trafny, 799 P.2d at 706 (concluding that a
forty-two-day 	delay 	in 	sentencing 	is 	not 	presumptively
prejudicial), with Banks, 720 P.2d at 1385–86 (determining that
there is “no question” that an eighteen-month delay “raised
legitimate questions” regarding the right to a speedy disposition
of a case). But the reason for delay factor weighs heavily against
Pelton because he largely caused the delay in sentencing. In State
v. Leyva this court analyzed the Barker factors and discerned no
violation of the right to a speedy trial when a defendant’s
sentencing was continued five times over the course of four
years because the delay was caused by the defendant’s own
actions, not the State’s. 906 P.2d 910, 911–13 (Utah Ct. App. 1995)
(per curiam). Although the delay in sentencing was lengthy, the
delay in Leyva’s sentencing was caused by his failure to meet
with 	AP&P, 	his 	failure 	to 	appear 	at 	sentencing, 	and 	his
incarceration in another state. Id. at 912. Accordingly, because
Leyva 	caused 	the 	circumstances 	that 	led 	to 	the 	delay 	in
sentencing, the court weighed this factor against him. Id.

State v. Pelton
20131100-CA 	5 	2015 UT App 150
¶12 	Similar to Leyva, the delay in sentencing in this case was
caused 	by Pelton’s failure to appear at sentencing and 	his
incarceration in Arizona. Pelton asserts “the delay [was] the
result of failure of the trial court to sentence [him], rather than
[his] lack of cooperation” because he explicitly requested to be
sentenced and the court refused to “bring [Pelton] back for
sentencing and should have done so.” Although Pelton knew of
the pending trial in Arizona, he did not assert his right to a
speedy trial at any time before the scheduled February 2011
sentencing hearing. Instead, Pelton voluntarily waived his forty-
five-day sentencing deadline. He then spent nearly eight months
in prison before asking the Utah court to sentence him in
absentia. Pelton only explicitly asserted his right to speedy trial
after he spent more than two years incarcerated in Arizona. The
State of Utah did not cause Pelton to miss his sentencing date or
cause his incarceration in Arizona. Pelton “cannot absent himself
and prevent the imposition of sentence until after that time has
expired, and then take advantage of his own wrong” by insisting
the court violated his speedy trial right. Cf. State v. Saxton, 519
P.2d 1340, 1342 (Utah 1974) (holding that a defendant cannot
take advantage of his own failure to appear for sentencing).
Accordingly, in considering these factors, the delay in sentencing
is outweighed by the reason for the delay.
¶13 	Pelton asserts that the district court’s refusal to sentence
him when he requested it prejudiced him by “preclud[ing him]
from the opportunity to serve concurrent sentences” and caused
him to serve more jail time than necessary.2 Specifically, he
argues that “[had] the trial court sentenced [him,] he may have
been allowed to serve concurrent sentences” because “the factors
outlined 	in 	[Utah 	Code] 	section 	76-3-401, 	all 	support[ed]
2. Pelton also asserts that after he sent the September 2011 letter,
“the court had the duty to retrieve him 	from the state of
Arizona” to sentence him. But he has not carried his burden of
persuasion on appeal; he offers no analysis or legal authority to
support this argument. See Utah R. App. P. 24(a)(9).

State v. Pelton
20131100-CA 	6 	2015 UT App 150
concurrent sentences.” In Barker, the Supreme Court identified
three purposes for a speedy trial that a court should consider in
determining whether a delay caused prejudice to the defendant:
speedy 	trials 	help 	(1) 	to 	prevent 	oppressive 	pretrial
incarceration, 	(2) 	to 	minimize 	anxiety 	and 	concern 	of 	the
accused, and (3) to limit the possibility that the defense will be
impaired. 407 U.S. at 532. Beyond the assertion that consecutive
sentencing “disrupted his life and interfered with his liberty,”
Pelton has not presented any arguments on these points. Instead,
he argues the court failed to consider all the relevant factors for
determining 	whether 	offenses 	are 	to 	run 	concurrently 	or
consecutively. See Utah Code Ann. § 76-3-401(2) (LexisNexis
2012). 	But, 	again, 	Pelton 	fails 	to 	present 	any 	analysis 	to
demonstrate how the legally relevant factors would support
concurrent sentencing. The record indicates that Pelton has at
least 	ten 	prior 	DUIs, 	has 	a 	history 	of 	alcohol 	abuse, 	and
continues to use alcohol despite reportedly attending several
substance-abuse treatment programs. Furthermore, in the plea
affidavit, 	Pelton 	acknowledged 	the 	possibility 	of 	the 	court
imposing his Utah DUI sentence consecutively to any other
offenses for which he was awaiting sentencing. Thus, in light of
the record, we are not persuaded that the district court’s decision
to postpone sentencing prejudiced Pelton.
¶14 	In 	sum, 	the 	two-and-one-half-year 	period 	between
Pelton’s guilty plea and sentencing did not violate his right to a
speedy trial. Although he asserted his right to a speedy trial and
the length of delay weighed against the State, those factors are
heavily 	outweighed 	by 	the 	reason 	for 	delay 	and 	lack 	of
prejudice. 	Moreover, 	Pelton 	has 	not 	persuaded 	us 	that 	the
district court erred in waiting to sentence him. We therefore
affirm.