2018 UT App 177

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

THEODORE JAMES SAMUL,

Appellant.

Opinion

No. 20160465-CA

Filed September 13, 2018

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 
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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 presentence 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.”
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20160465-CA 3 2018 UT App 177

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 
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20160465-CA 4 2018 UT App 177

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 district court determined that Samul was not 

properly advised of his right to appeal during his sentencing 

hearing, and therefore reinstated the thirty-day time period 

within which Samul could file a direct appeal. Samul 

subsequently initiated the present appeal. 

ISSUES, STANDARDS OF REVIEW, AND PRESERVATION

¶8 Samul raises two general issues for our review. First, 

Samul contends that the State was obligated, under the terms of 

the plea agreement, to affirmatively argue for concurrent 

sentences at the sentencing hearing, and that the State breached 

the plea agreement by failing to do so. Second, Samul contends 

that the district court erred by imposing consecutive (rather than 

concurrent) sentences without adequately considering his 

history, character, and rehabilitative needs.1

 

1. In his brief, Samul also asked for alternative relief in the form 

of a remand to “reconstruct the record” regarding Samul’s 

change of plea hearing. However, Samul’s appellate counsel 

appeared to abandon this position at oral argument. Moreover, 

and in any event, we are not persuaded by Samul’s request for a 

(continued...)
State v. Samul

20160465-CA 5 2018 UT App 177

¶9 Samul acknowledges that he did not alert the district 

court that the State had allegedly breached the plea agreement, 

and therefore concedes that he failed to preserve his first issue.

“When a party fails to raise and argue an issue in the trial court, 

it has failed to preserve the issue, and an appellate court will not 

typically reach that issue absent a valid exception to 

preservation.” State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443. 

Our supreme court “has recognized three distinct exceptions to 

preservation: plain error, ineffective assistance of counsel, and 

exceptional circumstances.” Id. ¶ 19. Samul asks for review of his 

first issue under two of these exceptions: plain error and 

ineffective assistance of counsel. 

¶10 Samul contends that the district court plainly erred by 

failing to require the State to affirmatively argue for concurrent 

sentences. To prevail on such a claim, Samul must show that: “(i) 

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

court; and (iii) . . . absent the error, there is a reasonable 

likelihood of a more favorable outcome for [Samul].” State v. 

Bedell, 2014 UT 1, ¶ 20, 322 P.3d 697 (quotation simplified).

¶11 Samul also contends that his attorney was constitutionally 

ineffective in failing to object to the State’s characterization of the 

 

(...continued)

remand, because the only way such a reconstruction could 

benefit Samul is if Samul’s previous attorney were able to testify 

that his recollection of the terms of the plea bargain in this case 

differs from the State’s position, and that the State actually did 

agree to affirmatively argue for concurrent sentences. We know, 

however, that Samul’s attorney cannot so testify, because 

Samul’s attorney has already testified in this case that, not only 

does he not remember the precise terms of the fifteen-year-old 

plea bargain, he has “no independent recollection” of the case at 

all, and has destroyed his files pertinent to this case. Under these 

circumstances, a remand to reconstruct the record would be 

futile even if Samul had not abandoned his request. 
State v. Samul

20160465-CA 6 2018 UT App 177

plea agreement at the sentencing hearing. “When a claim of 

ineffective assistance of counsel is raised for the first time on 

appeal, there is no lower court ruling to review and we must 

decide whether the defendant was deprived of the effective 

assistance of counsel as a matter of law.” Layton City v. Carr, 2014 

UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified).

¶12 With regard to the second issue—whether the district 

court erred by imposing consecutive sentences—Samul asserts

that he preserved the issue, but in the alternative asks us to 

review the issue for plain error. We agree with the State’s 

position that Samul failed to preserve this issue for appellate 

review. Samul contends that he preserved the issue by asking for 

concurrent sentences and presenting mitigating evidence at 

sentencing. However, to preserve an issue for appellate review, a 

defendant must first “present the issue to the trial court in such a 

way that the court had the opportunity to resolve it.” State v. 

Gailey, 2015 UT App 249, ¶ 5, 360 P.3d 805. In order to preserve 

for appellate review an argument that a sentencing court “erred 

by imposing consecutive sentences without considering all of the 

relevant statutory factors and by failing to give adequate weight 

to various mitigating factors,” a defendant must specifically raise 

that issue with the sentencing court and must provide that court 

with supporting evidence and relevant legal authority. Id. at 

¶¶ 4-5. Merely presenting mitigating evidence and asking the 

sentencing court for a different sentence, without more, does not 

preserve the issue for appellate review. Id. ¶¶ 4–5; see also State v. 

Tingey, 2014 UT App 228, ¶ 3, 336 P.3d 608 (noting that where a 

defendant could not “demonstrate[] that he specifically objected 

to or otherwise brought to the trial court’s attention the court’s 

alleged failure to consider the requisite statutory factors in 

imposing sentence,” the issue was not preserved for appellate 

review). In this case, Samul did nothing more than ask for 

concurrent sentences and present mitigating evidence. 

Accordingly, under Gailey and Tingey, Samul failed to preserve 

this issue. We therefore review this issue for plain error in 

accordance with Samul’s alternative request. 
State v. Samul

20160465-CA 7 2018 UT App 177

ANALYSIS

A

¶13 First, Samul argues that the State breached the plea 

agreement by failing to argue affirmatively for concurrent 

sentences, and asserts that his attorney rendered ineffective 

assistance, and that the district court plainly erred, by failing to 

require the State to abide by the terms of the plea agreement. 

This argument, in both of its iterations, fails because the plea 

agreement is ambiguous.2

¶14 Under Samul’s interpretation of the words 

“CONCURRENT SENTENCES,” the State agreed to 

affirmatively argue for the imposition of concurrent rather than 

consecutive sentences. Under another at least equally reasonable 

interpretation, the State agreed to do nothing more than refrain 

from opposing Samul’s advocacy for concurrent sentences. 

Samul vigorously argues that the plea agreement is 

 

2. We acknowledge that principles of plea agreement 

interpretation generally favor the defendant, and that “courts 

may in certain circumstances hold the government to a higher 

standard than the defendant.” See State v. Patience, 944 P.2d 381, 

387 (Utah Ct. App. 1997). Had it been brought to the court’s 

attention at the sentencing hearing that there was a dispute 

about the meaning of the plea agreement, the court may have 

been obligated in that context to construe any ambiguity against 

the State. See, e.g., 21 Am.Jur.2d Criminal Law § 617 (2018) 

(stating that “[a]ny ambiguities in a plea agreement in a criminal 

case are construed against the government”). However, because 

the issue was not brought to the court’s attention, we review this 

issue only for plain error and for ineffective assistance of 

counsel, and in those contexts, for the reasons discussed below, 

the presence of unacknowledged ambiguity works against 

Samul. See State v. Gray, 2016 UT App 87, ¶ 21 n.6, 372 P.3d 715; 

State v. Friel, 2015 UT App 95, ¶ 8, 347 P.3d 724. 
State v. Samul

20160465-CA 8 2018 UT App 177

unambiguous and cannot possibly encompass the second 

interpretation, but we are not persuaded. Plea agreements are 

generally interpreted using principles of contract law. See State v. 

Terrazas, 2014 UT App 229, ¶¶ 26–27, 336 P.3d 594 (stating that 

“principles of contract law provide a useful analytic framework” 

to assist in determining “what the parties reasonably understood 

to be the terms of [a plea] agreement” (quotation simplified)).

With regard to ambiguities, “courts are particularly willing to 

identify ambiguities in plea agreements because of the 

significant constitutional rights the defendant waives by 

entering a guilty plea.” Id. ¶ 27 (quotation simplified). Under 

contract law, an agreement is ambiguous “if it is capable of more 

than one reasonable interpretation because of uncertain 

meanings of terms, missing terms, or other facial deficiencies.” 

Novell, Inc. v. Canopy Group, Inc., 2004 UT App 162, ¶ 20, 92 P.3d 

768 (quotation simplified). However, “terms are not ambiguous 

simply because one party seeks to endow them with a different 

interpretation according to his or her own interests.” See Mind 

& Motion Utah Investments, LLC v. Celtic Bank Corp., 2016 UT 6, 

¶ 24, 367 P.3d 994. Instead, both interpretations “must be 

plausible and reasonable in light of the language used.” Id. In 

this case, it strikes us as an entirely reasonable interpretation for 

the words “CONCURRENT SENTENCES” to mean that Samul 

will argue for concurrent sentences, and the State will not 

oppose that argument. Because both possible interpretations are 

reasonable, we consider the plea agreement to be ambiguous. 

¶15 The presence of ambiguity defeats Samul’s argument that 

his counsel was ineffective. In order to prove that counsel was 

constitutionally ineffective, Samul must establish both (1) that 

counsel’s performance was objectively deficient; and (2) that 

there is a reasonable probability that, but for counsel’s deficient 

performance, Samul would have received a more favorable 

outcome. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).

To prevail on the first element, Samul must “overcome the 

strong presumption that trial counsel rendered adequate 

assistance and exercised reasonable professional judgment,” 

State v. Burnett, 2018 UT App 80, ¶ 21 (quotation simplified), “by 
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20160465-CA 9 2018 UT App 177

persuading the court that there was no conceivable tactical basis for 

counsel’s actions.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 

(quotation simplified).

¶16 Here, we can easily conceive of a reasoned basis for 

counsel’s decision not to object to the State’s remarks at 

sentencing: counsel may have believed that the State was 

accurately describing the terms of the plea agreement. Given the 

ambiguity of the phrase “CONCURRENT SENTENCES,” it is 

plausible that counsel believed that the plea agreement simply 

secured the State’s promise not to oppose Samul’s argument for 

concurrent sentences, an interpretation that would have 

mirrored the State’s. Samul has advanced no argument to 

undermine this potential explanation for counsel’s actions, and 

therefore has fallen short of overcoming the strong presumption 

that counsel rendered adequate assistance and exercised 

reasonable professional judgment. Accordingly, Samul has not 

demonstrated that counsel was constitutionally ineffective for 

failing to object to the State’s remarks at sentencing.

¶17 The presence of ambiguity likewise defeats Samul’s 

argument that the district court committed plain error. While 

Samul is certainly correct that district courts can and should take 

action when a prosecutorial breach of a plea agreement is 

brought to its attention, see State v. Smit, 2004 UT App 222, ¶ 17, 

95 P.3d 1203 (determining that “when a plea agreement is 

breached by the prosecutor, the proper remedy is either specific 

performance of the plea agreement or withdrawal of the guilty 

plea both at the discretion of the trial judge”), those agreements 

are contracts between the State and the defendant, and district 

courts typically do not participate in their negotiation. When 

their terms are ambiguous, district courts naturally depend on 

the parties and their attorneys to help the court understand what 

the terms of the agreement are, and whether there exists any 

disagreement about their meaning. When the State characterizes 

the agreement in a particular way in open court, and the defense 

attorney fails to take issue with the State’s characterization, a 

district court may reasonably assume that the attorneys are 
State v. Samul

20160465-CA 10 2018 UT App 177

proceeding in accordance with their agreement. At a minimum, 

it is a far cry from obvious error for the district court to rely on 

the attorneys’ characterization of an ambiguous plea agreement.3

¶18 This conclusion is bolstered by State v. Gray, 2016 UT App 

87, 372 P.3d 715. In that case, a defendant pled guilty to six 

felony charges pursuant to a plea agreement in which the 

prosecutor agreed to recommend that five of the defendant’s 

sentences run concurrently, while reserving the right to 

recommend that the sixth run consecutively. Id. ¶ 2. At the 

sentencing hearing, the prosecutor stated that he had agreed to 

recommend that five sentences run concurrently but that he had

“stated all along” that he would ask for the sixth sentence to run 

consecutively. Id. ¶ 7 (quotation simplified). The prosecutor then 

asked the court to “hand out the maximum punishment in this 

case.” Id. (quotation simplified). The defendant’s counsel raised 

no objection to the prosecutor’s statements, id. ¶ 21 n.6, and the 

court subsequently ordered that all of the defendant’s sentences 

run consecutively, id. ¶ 11. The defendant appealed to this court, 

arguing that the prosecutor breached the plea agreement when 

he asked the court to impose the “maximum punishment,” and 

that the court had committed plain error by allowing the breach. 

Id. ¶¶ 12, 14. This court disagreed, noting that because the 

 

3. Samul also argues that the prosecutor breached the plea 

agreement by encouraging the district court “to follow the presentence report recommendation.” We disagree with this 

characterization. The prosecutor’s statement was referring to 

that part of the report that recommended that Samul be 

sentenced to prison rather than jail and probation. This was 

made clear by the prosecutor’s next statement that, “[a]s part of 

the plea bargain, I agree to not speak to the issue of consecutive 

and concurrent.” Considered in the “context of the entire 

hearing,” see State v. Gray, 2016 UT App 87, ¶ 16, 372 P.3d 715, 

we do not read the prosecutor’s statements as encouraging the 

district court to follow the presentence report’s recommendation 

of consecutive (as opposed to concurrent) sentences. 
State v. Samul

20160465-CA 11 2018 UT App 177

prosecutor clarified the terms of the plea agreement before his 

“maximum punishment” request, the “context of the hearing as 

a whole [did] not support [the defendant’s] claim” that it would 

have been obvious to the district court that the State breached 

the plea agreement. Id. ¶¶ 15–17. This court further noted that,

“[w]hile defense counsel’s inaction is certainly not dispositive, 

his silence suggests that he saw no error in the prosecutor’s 

presentation worthy of correction and reinforces our conclusion 

that the alleged breach, if any, was not obvious.” Id. ¶ 21 n.6; see 

also State v. Friel, 2015 UT App 95, ¶ 8, 347 P.3d 724 (noting that 

where a defendant “never alerted the district court” that she 

believed a prosecutor’s description of a plea agreement during 

sentencing was incorrect, that disagreement “would not have 

been obvious” to the court).

¶19 In this case, as in Gray, it is far from clear—in the context 

of the entire hearing—that the State breached the plea agreement 

during its sentencing argument. Likewise, as in Gray, defense 

counsel’s inaction following the State’s remarks strongly 

suggests that he “saw no error in the prosecutor’s presentation 

worthy of correction,” and strongly indicates that any breach 

would not have been obvious to the district court even had one 

occurred. Accordingly, the district court did not plainly err when 

it did not take issue with the prosecutor’s remarks at the 

sentencing hearing.4

 

4. In his brief, Samul tries to evade this conclusion by citing to 

State v. King, 576 N.W.2d 369 (Iowa 1998). In that case, a 

prosecutor promised as part of a plea agreement to remain 

entirely silent at sentencing, but nonetheless spoke at the 

defendant’s sentencing and recommended defendant receive a 

harsh sentence. Id. at 370. On appeal, the Supreme Court of Iowa 

vacated the sentence and remanded the case for resentencing, 

holding that “the prosecutor’s promise to remain silent at 

sentencing, a commonly bargained-for component of a plea 

agreement, was ignored” and that this amounted to a breach that 

(continued...)
State v. Samul

20160465-CA 12 2018 UT App 177

B

¶20 Second, Samul argues that the district court erred by 

sentencing him without adequately considering his history, 

character, and rehabilitative needs. As noted above, due to 

Samul’s failure to raise this issue below, we review it here for 

plain error, and we conclude that Samul has fallen well short of 

demonstrating that the district court plainly erred. 

¶21 Under Utah law, sentencing courts considering whether 

to impose concurrent or consecutive prison sentences are

required to consider “the gravity and circumstances of the 

offenses, the number of victims, and the history, character, and 

rehabilitative needs of the defendant.” See Utah Code Ann. § 76-

3-401(2) (LexisNexis 2017). This is not to say, however, that a 

sentencing court must always expressly mention these factors on 

the record at the sentencing hearing. Indeed, as a “general rule” 

we will “uphold[] the [sentencing] court even if it failed to make 

findings on the record whenever it would be reasonable to 

assume that the court actually made such findings.” State v. 

Helms, 2002 UT 12, ¶ 11, 40 P.3d 626 (quotation simplified). 

Moreover, “we will not assume that the [sentencing] court’s 

silence, by itself, presupposes that the court did not consider the 

proper factors as required by law.” Id. Instead, it is a defendant’s 

“burden to demonstrate that the [sentencing] court failed to 

properly consider legally relevant factors,” State v. Bunker, 2015 

UT App 255, ¶ 3, 361 P.3d 155, and this burden cannot be met 

“by merely pointing to a lack of written findings or the existence 

 

(...continued)

“tainted the entire sentencing proceeding.” Id at 371. This case 

does not save Samul’s argument for two reasons: first, because 

Samul has not demonstrated that the State made argument on an 

issue on which it agreed to remain silent, or that the State 

remained silent on an issue on which it agreed to make 

argument, and second, because Gray and Friel (rather than King) 

are binding precedent in Utah. 
State v. Samul

20160465-CA 13 2018 UT App 177

of mitigating circumstances,” id. (citing Helms, 2002 UT 12, ¶ 16); 

see also id. (stating that “neither our case law nor our statutes 

require a [sentencing] court to make specific findings of fact in a 

sentencing order” (quotation simplified)). Instead, when 

reviewing a court’s sentencing decision against a challenge that 

it failed to consider the required statutory factors, “we begin 

with the presumption” that the court properly considered the 

factors. See State v. Valdez, 2017 UT App 185, ¶ 17, 405 P.3d 952.

¶22 On this record, Samul fails to persuasively rebut this 

presumption. Here, Samul argues that the district court did not 

take various mitigating factors into account during his 

sentencing, including that Samul’s adult criminal history was 

not extensive, that Samul was remorseful and accepted 

responsibility for his crime, that Samul had struggled with drug 

and alcohol abuse and had previously voluntarily attended 

treatment programs, and that Samul had a good employment 

record and strong family connections. However, these mitigating 

factors were noted in AP&P’s pre-sentence report, and the

district court stated at the beginning of the sentencing hearing

that it had reviewed that report. In addition, as Samul

acknowledges, the district court was further made aware of 

these mitigating factors during the sentencing hearing, when 

Samul’s counsel discussed them at some length. 

¶23 Under these circumstances, Samul has failed to rebut the 

presumption that the district court considered the gravity and 

circumstance of Samul’s offenses, the number of victims, and 

Samul’s history, character, and rehabilitative needs. All of these 

issues were covered in the pre-sentence report, which the district 

court reviewed, and most of these factors were expressly 

discussed at the hearing. See State v. Monzon, 2016 UT App 1, 

¶ 22, 365 P.3d 1234 (stating that, where “the mitigating evidence 

that [defendant] believes the district court should have 

considered was discussed at the first sentencing hearing or was 

set forth in the [pre-sentence report] . . . , we presume that the 

district court considered that information prior to sentencing”). 

Accordingly, Samul has not demonstrated that the district court 
State v. Samul

20160465-CA 14 2018 UT App 177

plainly erred by failing to consider the required statutory factors

in the course of making its decision to sentence Samul to 

consecutive sentences.5

CONCLUSION

¶24 Samul has not established that the district court plainly 

erred, or that his attorney rendered ineffective assistance, when 

they did not challenge the prosecutor’s remarks at Samul’s 

sentencing hearing. Samul has also failed to establish that the 

district court did not adequately consider his history, character, 

and rehabilitative needs, and Samul therefore falls short of 

demonstrating that the district court plainly erred by imposing 

consecutive (rather than concurrent) sentences. Accordingly, we

affirm Samul’s sentences.

 

5. Samul argues that three cases—State v. Galli, 967 P.2d 930 

(Utah 1998), State v. Smith, 909 P.2d 236 (Utah 1995), and State v. 

Strunk, 846 P.2d 1297 (Utah 1993)—require the conclusion that 

the district court’s sentencing decision was erroneous. The State 

asserts that those cases have been superseded by statute, but we 

need not reach that argument because, even if those cases remain 

good law, we are not persuaded that they apply here in any 

event. In those cases, our supreme court held that courts had 

abused their discretion by imposing lengthy consecutive 

sentences that—under the statutory scheme then in effect—

effectively prevented the Board of Pardons from considering 

parole for decades. See Gray, 2016 UT App 87, ¶ 30 (discussing 

Galli, Smith, and Strunk, which imposed combined minimum 

sentences of fifteen to sixty years). In this case, after the district 

court corrected the sentencing error, Samul faced one sentence of 

three-years-to-life, and another sentence of one-to-fifteen-years, 

for a combined minimum sentence of four years. This sentence 

does not unduly impact the Board of Pardons’ ability to review 

Samul’s eligibility for parole. Accordingly, Samul’s reliance on 

Galli, Smith, and Strunk is misplaced.