2015 UT App 91

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

GRACE C. KELSON,

Defendant and Appellant.

Memorandum Decision

No. 20100299-CA

Filed April 16, 2015

Third District Court, Salt Lake Department

The Honorable Judith S.H. Atherton

No. 041901548

Stephen W. Howard, Attorney for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys

for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision, 

in which JUDGES JAMES Z. DAVIS and JOHN A. PEARCE concurred.

ORME, Judge:

¶1 This case returns to us on remand from the Utah Supreme 

Court. See State v. Kelson (Kelson II), 2014 UT 50, ¶ 27. The sole 

issue on remand is whether the trial court violated Defendant 

Grace C. Kelson’s due process rights and rule 22(a) of the Utah 

Rules of Criminal Procedure when it sentenced her without 

receiving or reviewing certain documents. We conclude it did 

not.

¶2 In 2009, Defendant was convicted of one count of offering

or selling unregistered securities, a third degree felony; one 

count of sale by an unlicensed broker-dealer, agent, or 

investment advisor, a third degree felony; three counts of 

securities fraud, each a second degree felony; and one count of 
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20100299-CA 2 2015 UT App 91

pattern of unlawful activity, a second degree felony. Defendant

appealed.

¶3 On appeal, we concluded that one of the jury instructions

at Defendant’s trial unconstitutionally shifted the burden of 

persuasion from the State to Defendant, that Defendant’s trial 

counsel was ineffective for stipulating to the jury instruction, 

and that the trial court erred in denying Defendant’s motion for 

a directed verdict with respect to the pattern-of-unlawfulactivity charge because Defendant’s activities did not constitute 

a pattern of unlawful activity as a matter of law. See State v. 

Kelson (Kelson I), 2012 UT App 217, ¶ 49, 284 P.3d 695. 

Consequently, we vacated Defendant’s conviction for pattern of 

unlawful activity and reversed and remanded for a new trial on 

the remaining charges. See id. The State filed a petition for 

certiorari, which the Utah Supreme Court granted. See Kelson II, 

2014 UT 50, ¶ 10.

¶4 The Supreme Court upheld the jury instruction as an 

accurate statement of law, reversed our decision on the 

ineffective assistance of counsel issue, and rejected Defendant’s 

plain error argument regarding the jury instruction.

1 See id. ¶ 14. 

The Court remanded the case to us for consideration of one issue 

that we declined to address in Kelson I because our resolution of 

the aforementioned issues was dispositive of the case. See id. 

¶ 27; Kelson I, 2012 UT App 217, ¶ 48 n.14. We now consider that 

issue.

¶5 Defendant argues that the trial court violated her due 

process rights and rule 22(a) of the Utah Rules of Criminal 

Procedure by ‚failing to receive or review . . . documents offered 

by [her] at sentencing,‛ which failure, she contends, undermined 

 

1. The State did not challenge our reversal of Defendant’s 

conviction for pattern of unlawful activity. See Kelson II, 2014 UT 

50, ¶ 10 n.1.
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20100299-CA 3 2015 UT App 91

her right of allocution. Defendant’s arguments present questions

of law, ‚which we review for correctness, granting no particular 

deference to the conclusions of the trial court.‛ State v. Wanosik

(Wanosik I), 2001 UT App 241, ¶ 9, 31 P.3d 615, aff’d, 2003 UT 46, 

79 P.3d 937.

¶6 The right of allocution allows a defendant to ‚make a 

statement in mitigation or explanation after conviction but 

before sentencing.‛ State v. Wanosik (Wanosik II), 2003 UT 46, 

¶ 18, 79 P.3d 937. ‚In Utah, allocution is both a constitutional 

and statutory right.‛ State v. Udy, 2012 UT App 244, ¶ 25, 286 

P.3d 345. Our Supreme Court has ‚explained that the right to 

allocution ‘is an inseparable part of the right to be present’ 

guaranteed by the Utah Constitution.‛ Id. (quoting State v. 

Anderson, 929 P.2d 1107, 1111 (Utah 1996)). The right of 

allocution is also codified in the Utah Rules of Criminal 

Procedure: ‚Before imposing sentence the court shall afford the 

defendant an opportunity to make a statement and to present 

any information in mitigation of punishment, or to show any 

legal cause why sentence should not be imposed.‛ Utah R. Crim. 

P. 22(a).

¶7 Our Supreme Court has identified two purposes for the 

right to allocution: (1) ‚to provide the defendant personally with 

an opportunity to address the court‛ and (2) ‚to ensure that the 

judge is provided with reasonably reliable and relevant 

information regarding sentencing.‛ Wanosik II, 2003 UT 46, ¶ 19. 

The ‚defendant’s right to allocution is satisfied ‘so long as the 

[sentencing] hearing was held in [the defendant’s+ presence and 

[the] defendant had an opportunity to speak.’‛ State v. Tingey, 

2014 UT App 228, ¶ 9, 336 P.3d 608 (alterations in original) 

(quoting State v. Rodrigues, 2009 UT 62, ¶ 40, 218 P.3d 610).

¶8 At Defendant’s sentencing hearing on March 5, 2010, she 

said that she ‚would like to ask for a continuance and to prepare 

for [her] sentencing‛ and that she had ‚some motions that [she] 

would like to present‛ and ‚some new documents and evidence 
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20100299-CA 4 2015 UT App 91

that needs to be seen before‛ sentencing. The trial court denied 

Defendant’s request for a continuance:

The motion . . . is denied. You made the 

motion last week, I set it over, I told you [that you]

would be sentenced, making the observation that 

this matter was set for sentencing April 17th of 

2009, and I have been prepared to go forward since 

[that] date and I believe the State has as well.[2]

 

2. Defendant’s sentencing hearing was originally set for 

April 17, 2009. On that date, the trial court granted Defendant’s 

then-counsel’s motion to withdraw and appointed a public 

defender. The trial court continued sentencing to May 1, 2009, on 

which date it granted Defendant’s request for a continuance so 

that her counsel could research the possibility of filing a motion 

to arrest judgment, and the court set the matter for a scheduling 

conference on July 31, 2009. When that day came, the trial court 

granted Defendant’s request for another continuance. On 

October 16, 2009, the trial court again granted Defendant’s 

request for a continuance. On November 6, 2009, the trial court 

granted Defendant’s motion for a further continuance ‚for three 

weeks for her to file a motion for arrest of judgment‛ and set the 

matter for January 29, 2010. On the latter date, Defendant’s 

counsel reported to the trial court that filing a motion to arrest 

judgment was not in Defendant’s best interest but that 

Defendant was not prepared to be sentenced that day. The trial 

court then granted Defendant’s request for yet another 

continuance.

At Defendant’s sentencing hearing on February 26, 2010, 

she requested that she be allowed to represent herself. The trial 

court strongly advised Defendant against representing herself

but ultimately accepted Defendant’s waiver of counsel. The trial 

court continued sentencing to March 5, 2010, and appointed 

standby counsel. Before the February 26 hearing concluded, 

Defendant told the trial court that she needed ‚about a month to 

prepare‛ for sentencing, to which the trial court responded, ‚No. 

(continued<)
State v. Kelson

20100299-CA 5 2015 UT App 91

¶9 Defendant then spoke, uninterrupted, at some length:

Your Honor, I have some documents and 

some new evidence that needs to be seen before 

sentencing . . . . I have documents that even my 

son, who is here in Court, has brought these 

documents, I have not had a chance to meet with 

my standby counsel, but he is here with the 

documents that I would like to present to the Court 

so you can take a look at this, because I—I think it’s 

very important.

. . . I have been prevented to—from 

testifying. I have proof of that. And I would like to 

present that to the Court. . . .

Through the whole trial and before, I was 

prepared to testify. My attorney prevented me 

from testifying, very actively. I would like to also 

subpoena Officer Jason, I have spoken with him, to 

testify that he saw me arguing with my attorney in 

order to testify.

Also, Attorney Kim Clark is going to testify 

for me that my attorney did not even pick up the 

boxes of documents, he was not prepared, he lied 

to me. . . .

. . . .

. . . And I would like to have a chance to 

meet with the prosecutor to present these 

documents because I think the prosecutor should 

see, not only these documents, but other 

documents that my attorney did not present 

during the trial and they would clear my name.

. . . .

 

(<continued)

This thing has been prepared for . . . close to a year, and I know 

that you know what’s going on.‛ Defendant was finally 

sentenced on March 5, 2010.
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20100299-CA 6 2015 UT App 91

So, I’m asking your Honor, please, to give 

me a chance to see these things, will be just a very 

short time, I am totally ready to have this move 

forward very fast, because I have all the documents 

and if your Honor can please look at this, I would 

respectfully [suggest] that these documents need[]

to be seen by your Honor and by the prosecutor 

and they are readily available for the Court[] to see 

it.

And so, I would, please, your Honor, 

request that you give me a—an extension, a very 

short extension, so I can get these things presented 

to you properly, the way it should be done. . . .

The trial court did not respond to Defendant’s statements; 

rather, it then asked the prosecutor if the State had any 

recommendations for sentencing. After hearing from the 

prosecutor, the trial court announced Defendant’s sentences.

¶10 After reviewing the transcript of Defendant’s sentencing 

hearing, we conclude that she was not denied her right of

allocution. Defendant was present for her sentencing hearing 

and the trial court afforded her an opportunity to address the 

court. She spoke at length, without interruption. Although 

Defendant stated that she had information in the form of 

documents that she wanted the trial court to see before 

sentencing, indicating that the documents were in the courtroom 

with her son, she never actually attempted to give those 

documents to the trial court. Instead, she sought to postpone her 

sentencing yet again by asking for an additional continuance so 

that she could present the documents to the prosecutor and the 

trial court ‚properly.‛

¶11 It is far from clear that the documents had anything to do 

with sentencing. Defendant did not contend that the documents 

bore on her rehabilitative prospects, remorse, determination to 

make full restitution, lack of a prior criminal record, or anything 

else germane to sentencing. See State v. Samul, 2015 UT App 23, 
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20100299-CA 7 2015 UT App 91

¶ 20, 343 P.3d 719 (concluding that the defendant’s right to 

allocution was satisfied where the defendant himself had an 

opportunity to speak and his counsel also urged the court to 

consider mitigating factors such as the defendant’s ‚claimed 

remorse for his conduct, his efforts at rehabilitation, and his 

character and work ethic‛). See also United States v. Kellogg, 955 

F.2d 1244, 1250 (9th Cir. 1992) (noting that the right to allocution 

‚is not unlimited‛ and concluding that the defendant’s right to 

allocution was not violated when the district court interrupted 

defendant as he spoke of ‚giant loopholes‛ in the tax laws, 

‚scorned the IRS as incompetent,‛ and discussed ‚the problem 

of the national debt*+ and the fall of Eastern Europe‛). Instead, 

Defendant asserted that the documents established that she had 

been wrongly convicted because, according to her, the 

documents demonstrated her innocence but were ignored by her 

attorney, who allegedly precluded her from testifying at trial.

¶12 Beyond Defendant’s bald assertions at sentencing that she 

had proof that her attorney prevented her from testifying and 

documents that would clear her name, we simply do not know 

what those documents actually said. Under rule 30 of the Utah 

Rules of Criminal Procedure, an appellant is required to show 

that her ‚substantial rights‛ were affected by an error to warrant 

a remedy on appeal. See Utah R. Crim. P. 30(a) (‚Any error, 

defect, irregularity or variance which does not affect the 

substantial rights of a party shall be disregarded.‛). Here, 

Defendant has neither entered the documents into the record nor 

explained how they would likely have led to a lesser sentence 

than the one that was imposed. Thus, even assuming the court 

erred by not accepting documents that were never offered and 

even assuming, despite appearances, that the documents 

somehow bore on sentencing, Defendant has failed to 

demonstrate how she was harmed by the fact that the trial court 

did not receive or consider the documents. To be clear, we are 

unable to determine whether the documents were even relevant 

to sentencing, much less whether Defendant’s substantial rights 

were affected when the trial court did not consider them. See 

Wanosik II, 2003 UT 46, ¶ 19, 79 P.3d 937 (stating that one of the 
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20100299-CA 8 2015 UT App 91

purposes of the right to allocution is ‚to ensure that the judge is 

provided with reasonably reliable and relevant information 

regarding sentencing‛).

¶13 But even if the documents had some relevance to the 

business at hand, namely the proper sentence to be imposed on 

Defendant, the documents were in the courtroom during the 

sentencing hearing. A continuance was unnecessary. Defendant

simply needed to actually offer the documents to the trial court if 

they bore on matters relevant to sentencing. Had Defendant

presented the documents to the trial court, there is no reason to 

assume the trial court would have rejected them.

3

¶14 Because Defendant never sought to submit her documents 

to the trial court for its consideration, the court did not err when 

it did not receive or consider them prior to sentencing. And 

Defendant has not provided any explanation regarding how she 

was harmed by the court’s ‚failure‛ to receive or review the 

documents, which, as she described them, had no direct 

relevance to sentencing. Defendant was present at her 

sentencing hearing, had the opportunity to speak before she was 

sentenced, and, in fact, did speak. Accordingly, we conclude that 

the trial court fulfilled its obligation of affording Defendant her 

right to allocution. Her sentence is affirmed.

 

3. Even if Defendant is correct in arguing that the plain language 

of rule 22(a) ‚contemplates more than the defendant’s right to 

make an oral statement‛ because the right includes the right to 

‚present any information,‛ including documents, the fact 

remains that Defendant simply did not offer the documents or 

proffer their contents to the trial court for its consideration in

imposing sentence. See Utah R. Crim. P. 22(a). Instead, she used 

them as a basis for requesting a further continuance. Because she 

never sought to submit her documents to the trial court, the 

court could not have erred by failing to consider them.