Opinion
Case No. 20080576-CA.
Filed October 29, 2009. Not For Official Publication
Appeal from the First District, Logan Department, 071100069 The Honorable Clint S. Judkins.
David M. Perry, Logan, for Appellant.
Mark L. Shurtleff and J. Frederic Voros Jr., Salt Lake City, for Appellee.
Before Judges Greenwood, Bench, and Thorne.
MEMORANDUM DECISION
Defendant Larry Douglas Dunn Jr. appeals the district court's denial of his motion to withdraw his plea to eleven counts of theft by deception and the court's decision to run some of his sentences consecutively. We affirm.
Defendant also claims that the factual basis for his plea was insufficient. See generally Utah R. Crim. P. 11(e)(4)(B). This issue was not preserved below, however, and Defendant does not articulate an exception justifying this court's review of an unpreserved issue in his opening brief. See State v. Pinder, 2005 UT 15, ¶ 45, 114 P.3d 551. We therefore do not address this issue. We will also not address other claims Defendant attempts to raise on appeal because they were inadequately briefed, being unsupported by legal citation or argument. See West Jordan City v. Goodman, 2006 UT 27, ¶ 29, 135 P.3d 874.
Defendant first claims that the district court abused its discretion when it denied his motion to withdraw his plea. Defendant entered a plea agreement providing that he would plead to eleven counts of theft by deception. The plea agreement also provided that if Defendant returned 1.3 million dollars to his victim as restitution, the State would consent to the withdrawal of the plea and dismissal of the charges. At the time of the plea hearing, Defendant was incarcerated on an unrelated charge. Defendant's counsel represented to the court that Defendant had recently been before the parole board and anticipated that he would be released, enabling him to arrange the restitution payment. The State agreed to write a letter to the parole board, recommending Defendant's release for the purpose of complying with the plea agreement. The court cautioned Defendant that it had no control over the other case and the related incarceration. Yet all parties seemed confident that Defendant would be released, the money would be returned to the victim, and the case would be resolved according to the terms of the plea agreement. Defendant was initially given ninety days to return the money to his victim. After nine months of extensions, during which time Defendant had not returned the money — despite his brief release to a half-way house — the court stated that it would "not be manipulated further" and sentenced Defendant to prison.
Defendant seems to suggest that the State breached the plea agreement by not consenting to Defendant's motion to withdraw his guilty plea. "[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)). Thus, if "the State reneges on a promise that formed the basis for a plea agreement," State v. Moss, 921 P.2d 1021, 1026 (Utah Ct. App. 1996), or if "a plea agreement is breached by the prosecutor," State v. Smit, 2004 UT App 222, ¶ 17, 95 P.3d 1203, a defendant may either withdraw the plea or seek specific performance of the plea agreement, subject to the court's discretion, see id.
Here, the State neither breached the plea agreement nor reneged on a promise. Under the plea agreement, the State agreed to consent to withdrawal of the plea and dismissal of the charges after Defendant returned the money to his victim. Defendant did not return the money to his victim, and the State's obligation under the plea agreement was never triggered. Accordingly, the district court properly exercised its discretion in denying Defendant's motion to withdraw his plea. See id. ¶ 7.
Defendant next claims that his sentence is excessive because the district court abused its discretion by ordering partially consecutive sentences. "Trial courts are vested with wide latitude and discretion in sentencing. . . ., [and] we review a trial court's imposition of consecutive sentences for an abuse of discretion." State v. Fedorowicz, 2002 UT 67, ¶ 63, 52 P.3d 1194 (internal quotation marks omitted). "A trial court abuses its discretion in sentencing when . . . it fails to consider all legally relevant factors" under Utah Code section 76-3-401. See State v. Helms, 2002 UT 12, ¶ 8, 40 P.3d 626 (internal quotation marks omitted);see also Utah Code Ann. § 76-3-401(2) (2008) ("In determining whether state offenses are to run concurrently or consecutively, the court shall consider the gravity and circumstances of the offenses, the number of victims, and the history, character, and rehabilitative needs of the defendant.").
Specifically, the district court ordered that of eleven counts of theft by deception, counts one through three would run consecutively to counts four through seven, which would also run consecutively to counts eight through eleven. Functionally, Defendant was sentenced to three consecutive sentences, with the remaining counts running concurrently.
Trial courts are not required to make specific findings of fact in a sentencing order. See Helms, 2002 UT 12, ¶ 12. And "we will not assume that the trial court's silence, by itself, presupposes that the court did not consider the proper factors as required by law." Id. ¶ 11. Further, we are unable to determine whether the district court abused its discretion because Defendant has failed to provide this court with the presentence report. See State v. Wetzel, 868 P.2d 64, 67 (Utah 1993) ("Parties claiming error below and seeking appellate review have the duty and responsibility to support their allegations with an adequate record."). Because Defendant leaves us "without an adequate record, we must assume the regularity of the proceedings below." See Gorostieta v. Parkinson, 2000 UT 99, ¶ 16, 17 P.3d 1110.
Accordingly, we affirm.
WE CONCUR: Pamela T. Greenwood, Presiding Judge, William A. Thorne Jr., Judge