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State v. Samul

Court of Appeals of Utah

September 13, 2018

State of Utah, Appellee,
v.
Theodore James Samul, Appellant.

          Third District Court, Salt Lake Department The Honorable Judith S.H. Atherton No. 021913406

          Teresa L. Welch and Robin K. Ljungberg, Attorneys for Appellant

          Sean D. Reyes and Tera J. Peterson, Attorneys for Appellee

          Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen Forster and Jill M. Pohlman concurred.

          HARRIS, Judge:

         ¶1 Theodore James Samul pled guilty to attempted aggravated sexual assault and kidnapping, and was sentenced to consecutive prison sentences. He appeals those sentences, raising two general issues for our review. First, Samul argues that the terms of the plea agreement called for concurrent sentences, and that the State breached that agreement when the prosecutor failed to affirmatively argue for concurrent sentences. Samul asserts that his attorney rendered ineffective assistance, and that the district court committed plain error, by failing to require the State to abide by the plea agreement. Second, Samul asserts that the district court plainly erred by imposing consecutive (rather than concurrent) sentences without adequately considering his history, character, and rehabilitative needs. We affirm Samul's sentences.

         BACKGROUND

         ¶2 In December 2002, Samul was charged with aggravated sexual assault and aggravated kidnapping, both first degree felonies, in connection with an incident in which his sister accused him of raping her while driving her home from a family party. A few months later, Samul pled guilty to attempting to commit both offenses, admitting that he "seized [the victim] against her will with the intent to attempt to rape her." No recording of the change of plea hearing at which Samul pled guilty has been preserved, but the details of Samul's guilty plea were set forth on a written plea agreement form. In a section entitled "Plea bargain," that agreement states that "[a]ll the promises, duties, and provisions of the plea bargain . . . are fully contained in this statement, including those explained below," and states that Samul will plead to amended charges. Immediately beneath that statement, the form contains two handwritten words: "CONCURRENT SENTENCES."

         ¶3 After accepting Samul's plea, the district court scheduled a sentencing hearing to be held nearly two months later. In the meantime, Adult Probation and Parole (AP&P) prepared a pre-sentence report. In that report, AP&P noted several mitigating factors that worked in Samul's favor, including that he had a fiancé and a child, that he had a history of drug and alcohol problems for which he had sought treatment, that he was gainfully employed, and that he expressed contrition and accepted full responsibility for his actions. The pre-sentence report also noted several aggravating factors, however, including that Samul's actions in this case were particularly egregious and harmful, that he continued to use drugs and alcohol despite access to treatment options, and that in AP&P's estimation he posed a continuing "danger to the community." AP&P thus recommended that Samul be sentenced to two prison terms of three-years-to-life, to run consecutively.

         ¶4 At the sentencing hearing, the court first noted that it had reviewed the pre-sentence report. Samul's attorney then addressed the court and emphasized Samul's supportive family and "strong employment record," as well as the fact that his troubles appeared to be related to drug and alcohol use. Counsel did not explicitly argue for a sentence other than prison, but implied that Samul would be amenable to treatment, and argued that, "if the Court is inclined" to impose prison sentences, the sentences should be imposed concurrently, asserting that AP&P's recommendation for consecutive sentences was "not appropriate."

         ¶5 The prosecutor then addressed the court, and argued that "prison is the absolute appropriate sentence in this case. It's the wish of the victim. I believe that [prison] is really the only appropriate response to what happened here, and I do encourage the Court to follow the pre-sentence report recommendation." In her next sentence, the prosecutor stated that, "[a]s part of the plea bargain, I agree to not speak to the issue of consecutive and concurrent, but I will leave that to the court's decision." Samul's attorney did not express any concern with the prosecutor's statements during the sentencing hearing.

         ¶6 At the conclusion of the sentencing hearing, the district court told Samul his offense was "disturbing in a number of different ways," and noted that the violence Samul inflicted on his sister was "extreme." The court then indicated that it would "keep you in prison as long as I possibly can because I think it's the only safe way to sentence you for your victim and for the community at large." Accordingly, the court sentenced Samul to consecutive prison terms.

         ¶7 Samul did not initially appeal his sentence. Nine years later, in 2012, Samul filed a pro se motion seeking to correct alleged errors in his sentence. Samul's motion included a claim that his right to file a direct appeal should be reinstated, pursuant to Manning v. State, 2005 UT 61, 122 P.3d 628, and rule 4(f) of the Utah Rules of Appellate Procedure, because he was not made aware of his right to appeal at his sentencing hearing as required by rule 22(c) of the Utah Rules of Criminal Procedure. The district court corrected one error in Samul's sentence, reducing his sentence for attempted kidnapping to one-to-fifteen-years (as opposed to three-years-to-life), but denied Samul's remaining claims. Samul appealed, and we reversed in part, remanding the case for a determination of whether the district court, back in 2003, had "neglected to inform [Samul] of his right to appeal and of the time period in which to do so." See State v. Samul, 2015 UT App 23, ¶ 35, 343 P.3d 719. On remand, the ...


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