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State v. Samulski

Court of Appeals of Utah

November 17, 2016

State of Utah, Appellee,
v.
John Jacob Samulski, Appellant.

         Second District Court, Farmington Department The Honorable Thomas L. Kay No. 141701346

          Scott L. Wiggins, Attorney for Appellant

          Sean D. Reyes and John J. Nielsen, Attorneys for Appellee

          Judge Kate A. Toomey authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen concurred.

          OPINION

          TOOMEY, Judge

         ¶1 In this appeal, John Jacob Samulski challenges his prison sentence by alleging the district court erred in failing first, to recognize a breach of the plea agreement, and second, to address errors in the presentence investigation report. In addition, Samulski raises an ineffective-assistance-of-counsel claim. We hold there was no breach of the plea agreement or ineffective assistance of counsel, but we remand for the limited purpose of resolving Samulski's objections to the presentence investigation report.

         BACKGROUND

         ¶2 Samulski was charged with domestic violence against his ex-girlfriend. After receiving documents related to this charge, Samulski went to his ex-girlfriend's house and threatened her. Samulski was later arrested. During a search in connection with that arrest, the police found a knife Samulski was not permitted to carry due to his status as a convicted felon. The State charged Samulski with tampering with a witness, a third degree felony, and possession of a dangerous weapon by a restricted person, a class A misdemeanor. See Utah Code Ann. §§ 76-8-508(1), 76-10-503(3)(b) (LexisNexis 2012 & Supp. 2016). The tampering-with-a-witness charge was later amended to a retaliation-against-a-witness charge, also a third degree felony. See id. § 76-8-508.3 (2012).

         ¶3 After plea negotiations, Samulski agreed to plead guilty to the retaliation felony in exchange for the State's dismissal of the misdemeanor charge, the recommendation that Samulski receive "no prison time" for his conviction, and the reduction of the retaliation felony to a misdemeanor if there were "no further violations of law."

         ¶4 The district court requested a presentence investigation report (PSI). Adult Probation and Parole (AP&P) filed a PSI addendum on February 10, 2015, with a copy of an earlier PSI dated December 27, 2012.[1] AP&P recommended "prison commitment."

         ¶5 The court held a sentencing hearing on February 12, 2015. At the beginning of the hearing, defense counsel indicated there were corrections to be made to the PSI, including Samulski's proper address, source of income, and ability to pay taxes. Additionally, defense counsel objected that the PSI erroneously indicated that Samulski had a drug addiction and was a gang member.[2] The court acknowledged each proposed correction by commenting, "Okay."

         ¶6 After hearing from defense counsel, the court asked for the State's response. The prosecutor noted that he was "bound by what's in the plea agreement, " but pointed out that "the victim is here, and . . . it's my understanding that she is on board with AP&P's recommendation and supports the prison sentence." The prosecutor also stated that the court "has the ability to do whatever it pleases."

         ¶7 Defense counsel expressed concern that the prosecutor was "stepping away from [the] stipulated sentence." The prosecutor then qualified his prior remarks by stating that he had only conveyed the victim's recommendation, but he also reiterated that he was bound by the plea agreement. In response, the court explained that it was not bound by the agreement and that nothing the prosecutor said had changed its view. The ...


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