2015 UT App 109

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

DAVID DEVOY CARTER,

Defendant and Appellant.

Memorandum Decision

No. 20130897-CA

Filed April 30, 2015

Fifth District Court, St. George Department

The Honorable John J. Walton

No. 121501442

Gary G. Kuhlmann and Nicolas D. Turner, Attorneys

for Appellant

Sean D. Reyes and Brett J. DelPorto, Attorneys

for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision, 

in which JUDGES J. FREDERIC VOROS JR. and KATE A. TOOMEY

concurred.

ORME, Judge:

¶1 Defendant David Devoy Carter appeals his sentences for 

two counts of distributing or arranging to distribute a controlled 

substance, second degree felonies. See Utah Code Ann. § 58-37-

8(1)(a)(ii), (b)(i) (LexisNexis 2012). We affirm.

¶2 In 2012, Defendant was charged in two separate cases 

with one count of distributing methamphetamine in a drug-free 

zone, first degree felonies.1 See id. § 58-37-8(4)(a)(i)–(xi), (b)(i). 

Defendant agreed to plead guilty to two counts of distributing or 

 

1. The two cases have been consolidated on appeal.
State v. Carter

20130897-CA 2 2015 UT App 109

arranging to distribute a controlled substance, in exchange for 

the State’s agreement to drop the drug-free zone enhancements 

and to not file three pending controlled-buy cases. Under the 

plea agreements, Defendant was also required to submit to a 

presentence investigation with Adult Probation and Parole

(AP&P).

¶3 At Defendant’s plea hearing on December 3, 2012, the 

district court conducted the usual colloquy before accepting 

Defendant’s guilty pleas. The court reviewed the written plea 

agreements with Defendant and then asked him, ‚Is there 

anything that’s been promised to you that [you] didn’t get in 

your plea agreement[s]?‛ Defendant’s then-counsel replied: 

‚Your Honor, I think that there’s a recommendation that the 

State would not be seeking prison time and that upon successful 

completion of probation that the State would not object to a 

double 402.‛2 Defense counsel also told the court that the State 

had agreed to release Defendant on his own recognizance.

 

2. Under section 76-3-402 of the Utah Code, 

[i]f the court suspends the execution of the 

sentence and places the defendant on probation, 

whether or not the defendant is committed to jail 

as a condition of probation, the court may enter a 

judgment of conviction for the next lower degree of 

offense . . . after the defendant has been 

successfully discharged from probation . . . . 

Utah Code Ann. § 76-3-402(2)(a) (LexisNexis 2012). The statute 

allows only one reduction absent prosecutorial consent, but with 

the consent of the prosecutor, an offense may be reduced by two 

degrees. See id. § 76-3-402(3)(a), (b). For example, if a defendant 

was convicted of a second degree felony and the sentencing 

court granted the defendant’s motion to reduce the charge, the 

‚second degree felony, . . . when reduced, becomes a third 

degree felony.‛ State v. Barrett, 2005 UT 88, ¶ 39, 127 P.3d 682. If 

(continued<)
State v. Carter

20130897-CA 3 2015 UT App 109

¶4 The original prosecutor who had negotiated the plea 

agreements with Defendant’s counsel was not present at the plea 

hearing, because he was in another courtroom for a preliminary 

hearing. The State was instead represented by a substitute

prosecutor. The substitute prosecutor told the court that his 

copies of the plea agreements did not contain those provisions 

and that the original prosecutor did not tell him about these

alleged provisions. The court noted, ‚That’s the understanding

of the defense at this point apparently so we do have a record of 

that if it becomes relevant.‛

¶5 The court recessed so that the substitute prosecutor could 

clarify with the original prosecutor what had been promised. 

When the court reconvened, the substitute prosecutor told the 

court that the original prosecutor had agreed to Defendant’s

release on his own recognizance but made no mention of a noprison recommendation or section 402 reduction. Defense 

counsel made no inquiry about what the original prosecutor had 

said concerning the no-prison recommendation or 402 reduction, 

nor did he interpose any objection to the accuracy of the 

substitute prosecutor’s statements. The district court told 

Defendant that his two cases had ‚the potential for two 

sentences to the prison for one to 15 years‛ and that ‚it’s also a 

possibility the sentencing judge would make those consecutive, 

one after the other.‛3 The court asked Defendant if he still 

wanted to plead guilty, and Defendant replied, ‚Yes, your 

Honor.‛ The court accepted Defendant’s guilty pleas and 

ordered that Defendant be ‚released on recognizance.‛

 

(<continued)

the prosecutor consented and the court approved, it could be 

further reduced to a class A misdemeanor.

3. Judge G. Rand Beacham conducted Defendant’s plea hearing 

on December 3, 2012. Judge Beacham retired before Defendant’s 

sentencing hearing on September 5, 2013. Judge John J. Walton 

sentenced Defendant.
State v. Carter

20130897-CA 4 2015 UT App 109

¶6 At Defendant’s sentencing hearing nine months later, the 

original prosecutor was present. The court noted that the State’s 

recommendation was for prison. Defendant’s then-counsel did 

not raise the claimed agreement for a no-prison recommendation 

but responded as follows: ‚Yes, your Honor. And I’d like to ask 

the Court to perhaps consider some jail in lieu of that and let me 

explain why.‛ Defense counsel then stated that he thought 

Defendant should be sentenced to jail instead of prison because

Defendant knew what he did was wrong, he had come to terms 

with his guilt, and defense counsel believed that Defendant had 

‚finally turned the corner.‛ The original prosecutor stated that 

the State was recommending prison based on the facts that 

Defendant had been to prison before, he had ‚poor performance 

on probation,‛ he ‚didn’t show up for his first appointment with 

AP&P,‛ and he had ‚prior convictions for similar types of 

offenses.‛ The court then told Defendant, ‚*I]n light of all of this 

or after all of this you committed two different offenses 

involving distribution of controlled substances. You’ve left the 

Court with no reasonable alternatives but to send you to prison.‛ 

The district court sentenced Defendant to two consecutive terms 

of imprisonment of one to fifteen years. Defendant appeals.

¶7 Defendant first argues that the State breached the plea 

agreements by recommending prison time and that the district

court erred when it failed to ensure that his expectations 

regarding the plea agreements were fulfilled. Defendant 

concedes that this claim was not preserved and seeks review 

under the plain error exception to the preservation requirement. 

To establish plain error, an appellant must show that ‚(i) *a+n 

error exists; (ii) the error should have been obvious to the trial 

court; and (iii) the error is harmful.‛ State v. Dunn, 850 P.2d 1201, 

1208 (Utah 1993). ‚If any one of these requirements is not met, 

plain error is not established.‛ Id. at 1209. Here, we conclude that 

Defendant has not established plain error.

¶8 First, it is far from clear that an error occurred. See id. at 

1208. While not dispositive in and of itself, the State’s alleged 

promise not to recommend prison is not mentioned in the 
State v. Carter

20130897-CA 5 2015 UT App 109

written plea agreements, and Defendant concedes ‚that the 

record does not contain an actual affirmation from the State that 

[it] had promised to not seek prison time in exchange for [his]

guilty pleas.‛4

¶9 Nevertheless, Defendant argues that an error occurred 

because he ‚entered his pleas with the understanding that the 

State would not seek prison time, and the trial court was aware 

of [his] understanding at the time he entered his pleas.‛ 

Defendant compares his situation to that of the defendant in 

State v. Garfield, 552 P.2d 129 (Utah 1976), and argues that, like 

the defendant in Garfield, he has the right to receive the benefit of 

his bargain, i.e., ‚to be sentenced without a State 

recommendation of prison time.‛ However, in Garfield, the 

record ‚unequivocally‛ established that the prosecutor promised 

to recommend probation in return for the defendant’s guilty 

plea. Id. at 130. Here, unlike in the Garfield case, there is no 

record of a promise by the State to refrain from recommending 

prison time. And as the Utah Supreme Court noted in State v. 

Bero, 645 P.2d 44 (Utah 1982), ‚*a+ ‘plea agreement’ that was 

never agreed upon need not be fulfilled.‛ Id. at 46. See also id. at 

47 (‚A reasonable belief is not equal to a promise.‛).

Consequently, because there is no evidence that the State ever 

agreed not to seek prison time, Defendant has not established 

that an error occurred.

¶10 However, even if we were to agree that an error occurred, 

Defendant has failed to establish that the error should have been 

obvious to the district court. See Dunn, 850 P.2d at 1208. Again, 

beyond defense counsel’s single assertion at the plea hearing 

 

4. Nothing in this decision should be taken to suggest that the 

absence of a particular provision from a written plea agreement 

conclusively establishes that the parties never agreed to the 

provision. In this case, there is simply nothing to suggest that the 

parties ever reached an agreement regarding a no-prison 

recommendation.
State v. Carter

20130897-CA 6 2015 UT App 109

that the State promised not to recommend prison, the record is 

silent as to whether the State actually promised to refrain from 

seeking prison time for Defendant. But more importantly, once 

the question arose at the plea hearing, the district court and 

counsel took actions to clarify the terms of Defendant’s plea 

agreements. See Bero, 645 P.2d at 47 (‚The court should 

understand clearly and make sure the parties understand clearly 

the terms which they have agreed to before acting upon the 

*plea+ agreement.‛). After defense counsel mentioned that the 

State agreed not to seek prison time and that Defendant could be 

released on his own recognizance, the district court briefly 

adjourned so that the substitute prosecutor and the original

prosecutor could confer to clarify the terms of the plea 

agreements. When the court reconvened, the substitute 

prosecutor stated only that the original prosecutor had agreed to 

Defendant’s being released that day on his own recognizance.5

 

5. Defendant also argues that ‚the mere existence of the 

State’s promise to stipulate to *D+efendant’s *own-recognizance] 

release, indicates that the State had previously agreed not to seek 

prison time at sentencing.‛ He asserts, ‚Otherwise, one must ask 

why the State would bother to stipulate to *Defendant’s+ release 

at the time the court accepts his guilty pleas, only to ask that 

*Defendant+ be put back into custody at sentencing?‛ We think 

that the answer to Defendant’s question is fairly obvious. After 

the district court acknowledged the State’s recommendation that 

Defendant be released on his own recognizance, the court stated 

that there was ‚some kind of a warrant from Cedar City . . . so 

you’d be transported to Cedar City instead of being released 

from [the Purgatory Correctional Facility] here, but at least 

you’d be free to go to Cedar City and do whatever needs to be 

done up there.‛ Thus, by stipulating to Defendant’s release on 

his own recognizance, the State was presumably furthering its 

interest in having Defendant respond, as required, to the 

outstanding warrant in Cedar City.

Contrary to Defendant’s assertion, the fact that the State 

stipulated to Defendant’s own-recognizance release does not 

(continued<)
State v. Carter

20130897-CA 7 2015 UT App 109

The court acknowledged this clarification of the plea agreements

on the record, stating: ‚And *Defendant+, the prosecutor has 

clarified there was an agreement for you to be released on your 

own recognizance on these cases if you entered a plea.‛ Defense

counsel did not object or reassert that the State had additionally 

promised not to seek prison time. The district court then warned 

Defendant that his two cases had ‚the potential for two 

sentences to the prison for one to 15 years‛ and that ‚it’s also a 

possibility the sentencing judge would make those consecutive, 

one after the other.‛ When the court asked Defendant if he still 

wanted to plead guilty, Defendant said, ‚Yes, your Honor.‛ 

Based on these events, we think that the district court could 

appropriately conclude that the State had not agreed to the noprison recommendation defense counsel initially raised. 

Consequently, the error, if any, was not obvious.

¶11 Defendant cannot demonstrate either that an error 

occurred or that the error, if any existed, should have been 

obvious to the district court. Therefore, we conclude that 

 

(<continued)

establish that the State had also previously agreed not to seek 

prison time. It may well be that the parties never reached an 

agreement before the plea hearing regarding either provision 

raised by defense counsel. It is possible that the original 

prosecutor, perhaps realizing the practicality in doing so, agreed 

to stipulate to Defendant’s own-recognizance release only when 

that possibility was raised by the substitute prosecutor during 

the short recess in the plea hearing. Moreover, based on the 

record before us, we think it is possible, given the qualified way 

in which defense counsel suggested the two provisions and his 

silence regarding the no-prison recommendation after the court 

reconvened, that defense counsel realized during the recess that 

he was thinking about a different case entirely and that the 

prosecutor never agreed to a no-prison recommendation as part 

of the plea agreements in this case.
State v. Carter

20130897-CA 8 2015 UT App 109

Defendant has not demonstrated plain error.6 See Dunn, 850 P.2d 

at 1208.

¶12 Defendant, represented by new counsel on appeal, next 

argues that his trial counsel’s performance was constitutionally 

deficient because he did not object to the State’s

recommendation that Defendant be sentenced to prison. ‚An 

ineffective assistance of counsel claim raised for the first time on 

appeal presents a question of law.‛ State v. Clark, 2004 UT 25, ¶ 6, 

89 P.3d 162. To prove ineffective assistance of counsel, ‚a 

defendant must show that counsel’s performance was deficient‛ 

and that ‚the deficient performance prejudiced the defense.‛ 

Strickland v. Washington, 466 U.S. 668, 687 (1984). ‚If a defendant 

 

6. In the alternative, Defendant argues that we should consider 

his claims under the exceptional circumstances exception to the 

preservation requirement. See State v. Dunn, 850 P.2d 1201, 1209 

n.3 (Utah 1993). Specifically, he argues that he was prejudiced by 

the change in judge between the plea hearing at which he 

entered his guilty pleas and the sentencing hearing. The 

exceptional circumstances doctrine ‚is used sparingly, properly 

reserved for truly exceptional situations . . . involving ‘rare 

procedural anomalies.’‛ State v. Irwin, 924 P.2d 5, 11 (Utah Ct. 

App. 1996) (quoting Dunn, 850 P.2d at 1209 n.3). Utah courts 

have previously recognized that ‚two judges, while different 

persons, constitute a single judicial office.‛ Gillmor v. Wright, 850 

P.2d 431, 439–40 (Utah 1993) (Orme, J., concurring). Accord In re 

R.B.F.S., 2012 UT App 132, ¶ 12, 278 P.3d 143. Accordingly, we 

conclude that the change of judges between the plea and 

sentencing hearings is not the kind of rare procedural anomaly 

contemplated by the exceptional-circumstances doctrine and that 

Defendant was not prejudiced by the reassignment of his case to 

another judge. This is especially so given that the change of 

judges was occasioned by the routine occurrence of a retirement 

and that the first judge specifically warned Defendant of the 

possibility that his sentence would be exactly the one that was 

imposed by the second judge.
State v. Carter

20130897-CA 9 2015 UT App 109

fails to establish either of the two parts of the Strickland test, 

counsel’s assistance was constitutionally sufficient, and we need 

not address the other part of the test.‛ State v. Medina-Juarez, 

2001 UT 79, ¶ 14, 34 P.3d 187.

¶13 To satisfy the first part of the Strickland test, Defendant 

must ‚overcome a strong presumption that [his] trial counsel 

rendered adequate assistance.‛ State v. Crosby, 927 P.2d 638, 644 

(Utah 1996). Given this ‚strong presumption of competence, we 

need not come to a conclusion that counsel, in fact, had a specific 

strategy in mind.‛ State v. Tennyson, 850 P.2d 461, 468 (Utah Ct. 

App. 1993). ‚Instead, we need only articulate some plausible 

strategic explanation for counsel’s behavior.‛ Id. 

¶14 In this case, there is a plausible explanation for counsel’s 

failure to object to the State’s prison recommendation, namely, 

that the State never promised to refrain from recommending 

prison time for Defendant. And indeed, there is no evidence of 

such an agreement by the State. In any event, defense counsel 

was not required to object to the State’s recommendation of 

prison if such an objection would have been futile. See State v. 

Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52. If defense counsel had 

pursued his objection to the State’s prison recommendation, the 

State would likely have responded that it never agreed not to 

recommend prison. And the district court would have consulted 

the written, signed plea agreements, and it would have seen that 

the agreements said nothing about a promise by the State to not

recommend prison. Moreover, both plea agreements stated that 

‚*a+ll the promises, duties, and provisions of the plea agreement 

. . . are fully contained in this statement.‛ And as previously 

indicated, after initially sharing his thought ‚that there’s a 

recommendation that the State would not be seeking prison 

time,‛ defense counsel may have realized he had that wrong. See

supra note 5. Thus, defense counsel’s failure to make futile and 

possibly unethical arguments about the no-prison 

recommendation does not constitute deficient performance.

¶15 There is a ‚plausible strategic explanation‛ for defense 

counsel’s failure to object to the State’s recommendation of 
State v. Carter

20130897-CA 10 2015 UT App 109

prison. See Tennyson, 850 P.2d at 468. Therefore, Defendant 

cannot demonstrate that his counsel’s performance was deficient 

under part one of the Strickland test. See 466 U.S. at 687. Because 

Defendant has failed to establish part one of the Strickland test, 

‚we need not address the *prejudice+ part of the test.‛ MedinaJuarez, 2001 UT 79, ¶ 14.

¶16 We conclude that Defendant’s claim of plain error fails 

because he cannot demonstrate that an error occurred or that the 

error, if any, should have been obvious to the district court. In 

addition, we reject Defendant’s argument that he received 

ineffective assistance of counsel. His sentences are affirmed.