2016 UT App 226

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

JOHN JACOB SAMULSKI,

Appellant.

Opinion

No. 20150178-CA

Filed November 17, 2016

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.

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.
State v. Samulski

20150178-CA 2 2016 UT App 226

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-awitness charge was later amended to a retaliation-against-awitness 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.”

 

1. The December 2012 PSI was completed for different charges. 

The PSI addendum for the charges in this case indicates that the 

“addendum does not constitute a complete report without the 

attached presentence/postsentence report.” Thus, both reports 

together constitute the PSI for purposes of this case.
State v. Samulski

20150178-CA 3 2016 UT App 226

¶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 court 

sentenced Samulski to prison for “an indeterminate term of zero 

to five years.” Samulski appeals.

ISSUES AND STANDARDS OF REVIEW

¶8 First, Samulski contends the court erred by failing to 

recognize a breach of the plea agreement because “the 

 

2. Defense counsel made this clarification but did not ask that the 

information be struck.
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20150178-CA 4 2016 UT App 226

prosecutor’s comments at sentencing constituted a 

recommendation or plea for the imposition of prison time.” 

Samulski’s “failure to preserve this claim results in our 

reviewing it for plain error.” State v. Diaz, 2002 UT App 288,

¶ 11, 55 P.3d 1131.

¶9 Second, Samulski alleges the court erred by failing to 

consider and resolve his objections to the PSI. “Whether the trial 

court properly complied with a legal duty to resolve on the 

record the accuracy of contested information in sentencing 

reports is a question of law that we review for correctness.” State 

v. Scott, 2008 UT App 68, ¶ 5, 180 P.3d 774 (citation and internal 

quotation marks omitted).

¶10 Third, Samulski claims that by failing “to articulate a 

proper objection regarding the breach” and not affirmatively 

requesting resolution of the PSI concerns, defense counsel 

“deprived [him] of his Sixth Amendment right to the effective 

assistance of counsel.” “We review claims of ineffective 

assistance of counsel raised for the first time on appeal for 

correctness.” State v. Jaramillo, 2016 UT App 70, ¶ 24, 372 P.3d 34

(citation and internal quotation marks omitted).

ANALYSIS

I. The District Court Did Not Err Because There Was No Breach 

of the Plea Agreement.

¶11 Samulski contends the “court erred by failing to recognize

that the prosecutor had breached the stipulated plea agreement 

by recommending prison.” Because Samulski did not raise this 

issue below, it is unpreserved. See 438 Main St. v. Easy Heat, Inc., 

2004 UT 72, ¶ 51, 99 P.3d 801 (requiring that an issue “be 

presented to the trial court in such a way that the trial court has 

an opportunity to rule on that issue” in order to be preserved). 

“The mere mention of an issue without introducing supporting 
State v. Samulski

20150178-CA 5 2016 UT App 226

evidence or relevant legal authority does not preserve that issue 

for appeal.” State v. Brown, 856 P.2d 358, 361 (Utah Ct. App. 

1993) (citation and internal quotation marks omitted). 

Accordingly, we review this issue for plain error. See Diaz, 2002 

UT App 288, ¶ 11.

¶12 “To demonstrate plain error, a defendant must establish 

that (i) an error exists; (ii) the error should have been obvious to 

the trial court; and (iii) the error is harmful.” State v. Saenz, 2016 

UT App 69, ¶ 8, 370 P.3d 1278 (citation and internal quotation 

marks omitted). Here, Samulski “must prove that the State 

actually breached the plea agreement, that the breach should 

have been obvious to the district court, and that had the district 

court recognized and remedied the breach, there is a reasonable 

likelihood that [his] sentence would have been more favorable.” 

State v. Gray, 2016 UT App 87, ¶ 15, 372 P.3d 715.

¶13 Whether the court erred in failing to recognize a breach of 

the plea agreement depends on whether a breach occurred. A 

plea agreement is breached when the State fails to act in accord 

with its promise. See State v. Lindsey, 2014 UT App 288, ¶ 16, 340 

P.3d 176 (“‘[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.’” (quoting State v. Garfield, 662 P.2d 129, 130 (Utah 

1976)); see also United States v. Burke, 633 F.3d 984, 994 (10th Cir. 

2011) (holding that the government did not breach a plea 

agreement because it “complied with its end of the contractual 

bargain”); State v. Monson, 2016 UT App 1, ¶ 16, 365 P.3d 1234 

(determining the State did not breach the plea agreement 

because the “State kept [its] promise”); State v. Hale, 2005 UT 

App 305 (concluding the State did not breach the plea agreement 

because the State did what it agreed to do). In addition, “[w]hen 

a defendant alleges that the State violated a plea agreement by 

making inappropriate statements at sentencing . . . , we consider 

the prosecutor’s statements in the context of the entire hearing.” 
State v. Samulski

20150178-CA 6 2016 UT App 226

State v. Gray, 2016 UT App 87, ¶ 16, 372 P.3d 715 (citation and 

internal quotation marks omitted).

¶14 Here, there is no error because there was no breach. In the 

plea agreement the State agreed that in exchange for a guilty 

plea to retaliation against a witness, it would dismiss the second 

charge of possession of a dangerous weapon by a restricted 

person, recommend that there would be no prison time, and 

reduce the retaliation felony to a misdemeanor on the condition 

that Samulski successfully complete probation without further 

violations of law.

¶15 Although the prosecutor accurately observed that AP&P 

and the victim supported a prison sentence, the statements do

not rise to a level of breach. We acknowledge that these 

statements may have, to some extent, undermined the force or 

weight of the recommendation. Nevertheless, the prosecutor also 

maintained that the “[plea agreement] was a recommendation 

for no prison,” affirming three times that the State was bound by 

the agreement. By confirming that it had stipulated to 

recommend “no prison time,” and by repeatedly acknowledging 

the State’s obligation to abide by the agreement, the State 

fulfilled its contractual obligations. “If the prosecutor promises 

to recommend a certain sentence and does so, []he has not 

breached the bargain by also bringing all relevant facts to the 

attention of the court.” State v. Shaffer, 2010 UT App 240, ¶ 26, 

239 P.3d 285 (citation and internal quotation marks omitted). In 

“the context of the hearing as a whole,” the “statement[s] did not 

undermine the recommendation so as to constitute a plain 

breach of the plea agreement.” Gray, 2016 UT App 87, ¶¶ 16–17. 

“And even assuming the prosecutor’s statement[s] transgressed, 

any breach would not have been obvious to the district court.” 

Id. ¶ 17.

¶16 Because there was no breach of the plea agreement, we 

conclude the district court did not err.
State v. Samulski

20150178-CA 7 2016 UT App 226

II. The District Court Failed to Sufficiently Resolve Samulski’s 

Objections to the PSI.

¶17 Samulski also contends “the court failed to duly consider 

and resolve” inaccuracies contained in the PSI. “Any alleged 

inaccuracies in the presentence investigation report, which have 

not been resolved by the parties and the department prior to 

sentencing, shall be brought to the attention of the sentencing 

judge . . . .” Utah Code Ann. § 77-18-1(6)(a) (LexisNexis 2012). 

Our supreme court has explained that “section 77-18-1(6)(a) 

requires the sentencing judge to consider the party’s objections 

to the report, make findings on the record as to whether the 

information objected to is accurate, and determine on the record 

whether that information is relevant to the issue of sentencing.” 

State v. Jaeger, 1999 UT 1, ¶ 44, 973 P.2d 404. Making “findings on 

the record” requires more than accepting corrections to the PSI; 

rather, the court must enter specific findings of fact resolving the 

objections. Compare State v. Waterfield, 2011 UT App 27, ¶ 9, 248 

P.3d 57 (concluding that the “district court’s statement that it 

would accept” corrections to the PSI raised by the defendant 

“did not satisfy its duty to resolve objections to the PSI on the 

record” (alteration and internal quotation marks omitted), with

State v. Veteto, 2000 UT 62, ¶ 15, 6 P.3d 1133 (stating that the 

statute mandates the trial court “to make specific findings on the 

record”).

¶18 In this case, Samulski challenged the accuracy of some of 

the information in the PSI, including his address, income, ability 

to pay taxes, drug dependency, and gang affiliation. These

objections were not sufficiently addressed with findings. The 

district court acknowledged the objections and stated, “Okay,” 

but failed to make any determinations on the record. This does 

not satisfy the statutory duty imposed by section 77-18-1(6)(a). 

“[B]ecause the statements in [a defendant’s] PSI may be utilized 

in future settings, such as parole hearings, it is necessary that 
State v. Samulski

20150178-CA 8 2016 UT App 226

[the defendant’s] objections be resolved on the record.” 

Waterfield, 2011 UT App 27, ¶ 11.

¶19 Nevertheless, we are not persuaded that the court’s 

failure to adequately resolve the objections to the PSI on the 

record negatively affected Samulski’s sentence. Indeed, it 

appears that the district court accepted Samulski’s corrections to 

the PSI for sentencing purposes. We therefore uphold Samulski’s

sentence but “remand for the limited purpose of resolving [his]

objections to the PSI that were not adequately addressed on the 

record by the district court.” Id.

III. Samulski Did Not Receive Ineffective Assistance of Counsel.

¶20 Finally, Samulski asserts that he received ineffective 

assistance of counsel, depriving him of his Sixth Amendment 

right to representation. “To succeed on his ineffective-assistance 

claim, [a defendant] is required to prove ‘that counsel’s 

representation fell below an objective standard of 

reasonableness’ and ‘that there is a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.’” State v. Potter, 2015 UT 

App 257, ¶ 7, 361 P.3d 152 (quoting Strickland v. Washington, 466 

U.S. 668, 687–88, 694 (1984)). “Because failure to establish either 

prong of the test is fatal to an ineffective assistance of counsel 

claim,” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182, “a 

reviewing court can dispose of an ineffectiveness claim on either 

ground,” State v. Bair, 2012 UT App 106, ¶ 49, 275 P.3d 1050 

(citation and internal quotation marks omitted).

¶21 Samulski first claims he received ineffective assistance of 

counsel when his defense attorney failed “to articulate a proper 

objection regarding the breach.” Because we have determined 

that there was no breach of the plea agreement, counsel’s failure 

to object was objectively reasonable. See State v. Christensen, 2014 

UT App 166, ¶ 10, 331 P.3d 1128 (“The failure to raise futile 
State v. Samulski

20150178-CA 9 2016 UT App 226

objections does not constitute ineffective assistance of counsel.”

(citation and internal quotation marks omitted)).

¶22 Next, Samulski claims that “[b]y failing to request that the 

sentencing court exercise its fact finding function to resolve the 

inaccuracies in the [PSI], trial counsel rendered ineffective 

assistance of counsel.” Samulski contends that if counsel had 

requested that the court resolve the PSI inaccuracies, it “would 

have allowed the sentencing court to more fully and accurately 

consider the options for ultimately imposing sentence.”

¶23 In this case, defense counsel made objections on the

record to inaccuracies in the PSI. While defense counsel should 

have gone one step further and asked the district court to make 

specific findings on the record, “that mistake will be fixed with 

the limited remand we have ordered and thus is of no 

consequence.” See State v. Monroe, 2015 UT App 48, ¶ 11, 345 

P.3d 755.

CONCLUSION

¶24 We conclude there was no breach of the plea agreement 

and Samulski has not shown ineffective assistance of counsel. 

We remand for the limited purpose of resolving Samulski’s

objections to the PSI and affirm in all other respects.