District Court, Salt Lake Department The Honorable Royal I.
Hansen No. 141905983
M. Nelson and Jessica A. Jacobs, Attorneys for Appellant.
D. Reyes and Thomas B. Brunker, Attorneys for Appellee.
Judges Stephen L. Roth, Kate A. Toomey, and David N.
Amelia Suzanne Hoffman appeals the sentence for her
conviction of attempted possession of a controlled substance,
a class A misdemeanor. We affirm.
Hoffman argues that the district court erred by ordering her
to complete twelve months of supervised probation and
requiring her to complete a substance abuse evaluation and
recommended treatment, as well as requiring her to comply
with the other standard terms and conditions of probation.
Hoffman concedes that the issue she raises on appeal was not
preserved. However, she asserts that the claims may be
reached either under rule 22(e) of the Utah Rules of Criminal
Procedure or under the doctrine of plain error. She concedes
that where an error is invited, it may not be reviewed under
a claim of plain error. See State v. Alfatlawi, 2006
UT App 511, ¶ 26, 153 P.3d 804.
Hoffman was charged by information with possession or use of
a controlled substance, a third degree felony. She entered a
no contest plea to an amended charge of attempted possession
or use of a controlled substance, a class A misdemeanor.
Hoffman's defense counsel and the State jointly
recommended that Hoffman serve "[twelve] months Salt
Lake County probation, " "that she obtain a
substance abuse eval[uation] and do any recommended
treatment, that she complete 50 hours of community service[,
] and that she pay a $50 recoupment fee." The district
court sentenced Hoffman to serve 365 days in jail and pay a
fine of $4, 625. The court then suspended the jail sentence
and fine, placing Hoffman on twelve months of probation
supervised by Salt Lake County Probation Services. The
district court ordered Hoffman to obtain a substance abuse
evaluation and to follow through with all recommended
treatment within ninety days thereafter, to complete fifty
hours of community service, and to pay a $50 recoupment fee.
The district court also ordered Hoffman not to commit any new
offenses, not to consume drugs or alcohol, not to be in
places where drugs and alcohol were bought, sold, or used or
in the company of persons who buy, sell, or use drugs and
alcohol, and to submit to random drug testing. Hoffman
responded "okay" after the district court imposed
the probation conditions.
Hoffman's claim that the district court erred in imposing
the sentence was not preserved for appeal. To establish plain
error and obtain appellate review of an unpreserved claim, a
defendant must show that "(i) [a]n error exists; (ii)
the error should have been obvious to the trial court; and
(iii) the error [was] harmful." Id. ¶ 12
(first alteration in original) (citation and internal
quotation marks omitted). However, the doctrine of plain
error is not available to a party who has invited the error
that he or she later seeks to raise on appeal. See
id. ¶ 26 (stating that under the invited error
doctrine, a party cannot take advantage of an error committed
at trial when that party led the trial court to commit the
claimed error). The district court imposed the sentence that
was jointly recommended by the State and the defense.
Hoffman's brief provides no meaningful analysis of the
claim that the district court plainly erred in imposing the
sentence that was jointly recommended, along with other usual
and customary conditions of probation. Instead, the brief
describes Hoffman's subjective belief that placing her on
probation supervised by Salt Lake County Probation Services,
as opposed to placing her on unsupervised or court probation,
was excessive. Because any claimed error in sentencing
Hoffman in accordance with the joint recommendation or in
imposing additional probation conditions without receiving
any objection from the defense was invited, the plain error
doctrine is not available to Hoffman. Thus, her claim of
error will not be reviewed on the merits.
Finally, Hoffman argues that her claim on appeal may be
reviewed under rule 22(e) of the Utah Rules of Criminal
Procedure, which allows review of a claim raised for the
first time on appeal that the sentence imposed was illegal.
"While rule 22(e) allows a court to review an illegal
sentence at any time, it must be 'narrowly
circumscribed' to prevent abuse." State v.
Thorkelson, 2004 UT App 9, ¶ 15, 84 P.3d 854
(quoting State v. Telford, 2002 UT 51, ¶ 5, 48
P.3d 228(per curiam)). An illegal sentence "generally
occurs in one of two situations: (1) where the sentencing
court has no jurisdiction, or (2) where the sentence is
beyond the authorized statutory range." Id.
Hoffman's challenge to her sentence involves neither of
these situations. Without meaningful analysis, Hoffman argues
that she "believes" that the sentence imposed by
the district court was "fundamentally unfair and
violative of due process" and must be vacated. Merely
claiming that a sentence is "illegal" does not
avoid preservation requirements for a
"run-of-the-mill" challenge to a sentence. See
id.; see also State v. Jaeger, 1999 UT 1,
¶ 31, 973 P.2d 404 (stating that rule 24(a)(9) of the
Utah Rules of Appellate Procedure "'[i]mplicitly . .
. requires not just bald citation to authority but
development of that authority and reasoned analysis based on
that authority" (alternation and omission in original)
(quoting State v. Thomas, 961 P.2d 299, 305 (Utah
Accordingly, we affirm.
In the recent case of State v.
Prater, the Utah Supreme Court ...