No.

20190292-CA

IN THE UTAH COURT OF APPEALS

__________________

THE STATE OF UTAH,

Plaintiff/Appellee,
v.
BOBBIE JOE SHARP, JR.,
Defendant/Appellant.

Appellant is incarcerated
__________________

BRIEF OF APPELLANT
__________________

Appeal from a guilty plea to one count of aggravated sexual abuse of a child, a
first degree felony in violation of Utah Code section 76-5-404.1(4). A motion to
withdraw the guilty plea was denied by the Honorable Mark Kouris, in the Third
Judicial District, in and for Salt Lake County, State of Utah.
_________________

WENDY M. BROWN (16208)

Salt Lake Legal Defender Assoc.
SEAN D. REYES (7969) 424 East 500 South, Suite 300
Utah Attorney General Salt Lake City, Utah 84111
160 East 300 South, 6th Floor appeals@sllda.com
P.O. Box 140854 (801) 532-5444
Salt Lake City, Utah 84114-0854

Attorney for Appellee Attorney for Appellant

__________________
 TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................................................................ iv

INTRODUCTION ............................................................................................................. 1

STATEMENT OF THE ISSUE ......................................................................................... 3

Issue One: Whether the district court abused its discretion when
it denied Sharp’s motion to withdraw his guilty plea .................... 3

Issue Two: Whether the district court abused its discretion when
it forced Sharp to go forward with sentencing. ................................ 4

Issue Three: Whether the district court imposed an illegal sentence

when it denied Sharp his right to allocution. .................................. 4

STATEMENT OF THE CASE.......................................................................................... 5

A. Allegations Against Sharp ............................................................................ 5

B. Guilty Plea ........................................................................................................ 6

C. Motions to Withdraw ...................................................................................... 7

D. Sentencing Hearing ........................................................................................ 9

SUMMARY OF THE ARGUMENT ............................................................................. 14

ARGUMENT ................................................................................................................... 15

I. The District Court Should Have Granted Sharp’s Motion to

Withdraw His Guilty Plea .................................................................................. 16

i
 A. Utah’s Plea-Withdrawal Case Law Contemplates Withdrawal
of a Plea Made when Evidence Indicating Innocence is
Discovered Prior to Sentencing ................................................................. 17

B. To Conclude That The Circumstances of This Case Do Not

Warrant Withdrawal of a Guilty Plea Would Deprive
Sharp of a Remedy for Factual Innocence ............................................... 25

C. Any Factual Findings Made by the Court Were Clearly

Erroneous ..................................................................................................... 26

D. Given the Law and the Evidence Before the District Court,
it Was an Abuse of Discretion to Deny Sharp’s Motion to
Withdraw His Guilty Plea.......................................................................... 33

II. Alternatively, the District Court Should Have Continued

Sentencing ............................................................................................................. 35

III. The District Court Denied Sharp His Right to Allocution ............................ 41

A. This Issue Was Preserved........................................................................... 42

B. Alternatively, Rule 22(e) Provides Relief ................................................. 44

1. Recent amendments to ruled 22(e) do not alter

this Court’s analysis of the issue. ................................................... 44

2. Denial of Sharp’s right to allocution renders his

sentence illegal .................................................................................. 46

C. Prejudice ....................................................................................................... 49

CONCLUSION ................................................................................................................ 50

CERTIFICATE OF COMPLIANCE .............................................................................. 51

ii
CERTIFICATE OF DELIVERY...................................................................................... 52

Addendum A: Sentence, Judgment, Commitment

Addendum B: Relevant Provisions

Addendum C: Plea Withdrawal Hearing Transcript

Addendum D: Sentencing Transcript

iii
 TABLE OF AUTHORITIES

Cases

Chavez v. State, 2007 UT App 400U............................................................................... 39

Chen v. Stewart, 2004 UT 82, 100 P.3d 1177.................................................................... 4

Clement v. State, No. 12-14-00204-CR, 2015 WL 5157520

(Tex. App. Sept. 2, 2015) ............................................................................................ 40

Gillmor v. Wright, 850 P.2d 431 (Utah 1993) ................................................................ 26

Goggin v. Goggin, 2011 UT 76, 267 P.3d 885 ................................................................. 34

Grimmett v. State, 2007 UT 11, 152 P.3d 306 ................................................................ 20

In re Baby Girl T., 2012 UT 78, 298 P.3d 1251 ............................................................... 42

In re Reise, 192 P.3d 949 (Wash. Ct. App. 2008) .................................................... 23, 24

In re State ex. rel. K.M., 2006 UT App 74, 136 P.3d 1230............................................. 20

Magallanes v. South Salt Lake City, 2015 UT App 154, 353 P.3d 621.................... 18, 23

Medel v. State, 2008 UT 32, 184 P.3d 1226 .................................................................... 32

Menzies v. Galetka, 2006 UT 81, 150 P.3d 480 ............................................................... 34

State ex rel. K.M., 2007 UT 93, 173 P.3d 1279 ............................................................... 20

State in Interest of B.J.V., 2017 UT App 57, 397 P.3d 78 ........................................ 28, 29

State in Interest of R.W., 693 So. 2d 257 (La. Ct. App. 1997) ....................................... 40

State v. Alexander, 2012 UT 27, 279 P.3d 371 .................................................... 16, 20, 39

State v. Archuleta, 2019 UT App 136, 449 P.3d 223 ................................... 20, 21, 22, 23

State v. Barber, 2009 UT App 91, 206 P.3d 1223 ........................................................... 39

State v. Candedo, 2010 UT 32, 232 P.3d 1008 ................................................................ 48

iv
State v. Carr, 881 N.W.2d 192 (Neb. 2016) ............................................................. 21, 24

State v. Dana, 2010 UT App 374, 246 P.3d 756............................................................. 46

State v. Dean, 2004 UT 63, 95 P.3d 276 .......................................................................... 20

State v. Enriquez-Meza, 2019 UT App 154, 450 P.3d 1177 ...................................... 3, 34

State v. Fairchild, 2016 UT App 205, 385 P.3d 696 ....................................................... 45

State v. Ferretti, 2011 UT App 321, 263 P.3d 553 ......................................................... 37

State v. Galindo, 2017 UT App 117, 402 P.3d 8............................................................. 40

State v. Gallegos, 738 P.2d 1040 (Utah 1987) ............................................... 17, 19, 20, 24

State v. Gomez, 887 P.2d 853 (Utah 1994) ..................................................................... 38

State v. Goodwin, 2009 WL 4646417 (Wash. App. Div. 2,

December 8, 2009) ....................................................................................................... 24

State v. Guadarrama, 2003 UT App 329U ...................................................................... 21

State v. H.J.A., No. A-5592-12T3, 2014 WL 4232336

(N.J. Super. Ct. App. Div. Aug. 28, 2014) ................................................................ 40

State v. Harris, 585 P.2d 450 (Utah 1978) ...................................................................... 32

State v. Houston, 2015 UT 40, 353 P.3d 55 ...................................................................... 5

State v. Howell, 707 P.2d 115 (Utah 1985) ..................................................................... 47

State v. Humphrey, 2003 UT App 333, 79 P.3d 960 ...................................................... 19

State v. Lindsey, 2014 UT App 288, 340 P.3d 176 .......................................................... 4

State v. Magness, 2017 UT App 130, 402 P.3d 105 ................................................. 19, 23

State v. Martinez, 925 P.2d 176 (Utah Ct. App. 1996) ................................................. 39

State v. McDaniel, 2015 UT App 135, 351 P.3d 849 ..................................................... 40

State v. Mills, 2012 UT App 367, 293 P.3d 1129 ........................................................... 44

v
State v. Richardson, 2009 UT App 40, 204 P.3d 872 ............................................... 41, 49

State v. Ruiz, 2012 UT 29, 282 P.3d 998 ............................................................. 17, 20, 24

State v. Sanchez, 2018 UT 31, 422 P.3d 866 ................................................................... 44

State v. Taylor, 2005 UT 40, 116 P.3d 360 ................................................................ 36, 39

State v. Udy, 2012 UT App 244, 286 P.3d 345 .............................................................. 49

State v. Walker, 2013 UT App 198, 308 P.3d 573 .................................................... 18, 20

State v. Wanosik, 2003 UT 46, 79 P.3d 937 ........................................................ 41, 46, 47

State v. Whittle, 1999 UT 96, 989 P.2d 52 ...................................................................... 41

State v. Wright, 2019 UT App 66, 442 P.3d 1185 .............................................. 26, 27, 29

State v. Wynn, 2017 UT App 211, 407 P.3d 1113 ......................................................... 45

State v. Yazzie, 2009 UT 14, 203 P.3d 984 ...................................................................... 45

United States v. Doyle, 857 F.3d 1115 (11th Cir. 2017) ................................................. 39

West Valley City v. Walljasper, 2012 UT App 252, 286 P.3d 948 ................................... 4

Statutes

Utah Code § 76-4-401 ....................................................................................................... 5

Utah Code § 76-5-402.1 .................................................................................................... 5

Utah Code § 76-5-403.1 .................................................................................................... 5

Utah Code § 76-5-404.1 .................................................................................................... 5

Utah Code § 77-13-6 ................................................................................................. 16, 36

Utah Code § 77-18-1 ................................................................................................. 46, 48

Utah Code § 78B-9-401.5 ................................................................................................ 26

Utah Code § 78B-9-402 ............................................................................................. 25, 26

vi
 Other Authorities

John H. Blume, Rebecca K. Helm, The Unexonerated: Factually Innocent Defendants

Who Plead Guilty, 100 Cornell L. Rev. 157 (2014) .................................................... 32

Rules

Utah Const. art. 1, § 7 ..................................................................................................... 47

Utah R. Crim. P. 22 ....................................................................... 5, 41, 44, 45, 46, 48, 49

vii
 No. 20190292-CA

IN THE UTAH COURT OF APPEALS

__________________

THE STATE OF UTAH,

Plaintiff/Appellee,
v.
BOBBIE JOE SHARP, JR.,
Defendant/Appellant.
__________________

BRIEF OF APPELLANT

INTRODUCTION

Defendant Bobbie Joe Sharp, Jr., pled guilty to one count of aggravated

sexual abuse of a child. After pleading guilty but before being sentenced, Sharp

filed a timely motion to withdraw his guilty plea based on the alleged victim’s

recantation of her allegations against him. The motion followed the jail’s seizing

of a letter addressed to Sharp and purporting to be from the alleged victim.

Without reviewing the letter, the district court concluded that Sharp’s guilty plea

was knowingly and voluntarily made, reasoning that an innocent person would

not have pled guilty.

On the date set for sentencing, defense counsel represented to the court that

sentencing should not go forward; there was an ongoing investigation into the
letter that should be concluded before Sharp was sentenced. The district court,

over defense counsel’s objection, nevertheless mandated that Sharp be sentenced

that day. Sentencing proceeded with little input from defense counsel, the district

court cutting off allocution in favor of hearing from the prosecutor and the alleged

victim’s mother. The district court thereafter sentenced Sharp to an indeterminate

prison term of fifteen years to life, telling Sharp he should die in prison.

Now, on appeal, Sharp seeks reversal. The trial court abused its discretion

in denying the motion to withdraw the guilty plea based on newly discovered

evidence. To conclude otherwise would deprive Sharp of a remedy for factual

innocence under Utah’s current post-conviction framework. Furthermore, the

district court’s factual findings underlying its denial of Sharp’s motion to

withdraw the plea were clearly erroneous.

Alternatively, this Court should remand for resentencing, where the district

court forced Sharp to proceed with sentencing when it should have instead

granted a continuance, and where the court’s actions toward defense counsel

deprived Sharp of his right to allocution.

2
 STATEMENT OF THE ISSUES, STANDARDS OF REVIEW,
PRESERVATION

Sharp raises three issues for this Court’s review.

Issue One

The first issue on appeal is whether the district court abused its discretion

when it denied Sharp’s motion to withdraw his guilty plea.

This Court reviews

the ultimate decision to deny a motion to withdraw a guilty plea under an

abuse of discretion standard. The district court’s findings of fact are
reviewed for clear error, and its conclusion regarding substantial
compliance with constitutional and procedural requirements for entry of a
guilty plea is reviewed for correctness.

State v. Enriquez-Meza, 2019 UT App 154, ¶ 8, 450 P.3d 1177 (cleaned up).

This issue was preserved when Sharp filed a written motion to withdraw

his guilty plea and, at the hearing on that motion, defense counsel offered an

additional ground for withdrawing the plea: A letter apparently from the alleged

victim in this case had been intercepted by the jail. R.288. The letter recanted all

allegations against Sharp. R.288. The district court reserved ruling on the verbal

motion until the sentencing hearing. R.290–91. At sentencing, the court denied the

motion to withdraw the guilty plea. R.311.

3
Issue Two

The second issue on appeal is whether the district court abused its discretion

when it forced Sharp to go forward with sentencing.

This Court generally “will disturb a district court’s decision to deny a

motion to continue only if the court abused its discretion.” State v. Lindsey, 2014

UT App 288, ¶ 10, 340 P.3d 176.

Defense counsel preserved this issue when she twice argued at sentencing

that “we cannot go forward.” R.298, 300. After the second objection, the district

court ruled, “I accept your objection. You’ve made your record. Let’s move

forward.” R.301.

Issue Three

The third issue on appeal is whether the district court imposed an illegal

sentence when it denied Sharp his right to allocution.

“The denial of the right to allocution is an issue of law that [this Court]

review[s] for correctness.” West Valley City v. Walljasper, 2012 UT App 252, ¶ 6, 286

P.3d 948 (citing Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177).

This issue was preserved when defense counsel began discussing evidence

supporting Sharp’s claim that he is innocent and the district court, disagreeing but

4
not allowing further discussion, directed that the prosecutor begin speaking in

favor of sentence. R.304. Then, following the prosecutor’s statement to the court,

defense counsel began, “Your Honor, I dispute some of those facts.” R.306. Rather

than allowing counsel to expound on the dispute, the court responded, “[T]hat’s

fine. If you wouldn’t mind moving off to the side there,” to allow the alleged

victim’s mother to begin speaking. R.306.

Alternatively, the issue of an illegal sentence can be reviewed in the first

instance by this Court, under rule 22(e) of the Utah Rules of Criminal Procedure.

See State v. Houston, 2015 UT 40, ¶ 20, 353 P.3d 55 (explaining that “Rule 22(e)

operates as a[] limited exception to the preservation doctrine”).

STATEMENT OF THE CASE

A. Allegations Against Sharp

The State charged Sharp with two counts of rape of a child, Utah Code

section 76-5-402.1, three counts of sodomy on a child, Utah Code section 76-5-

403.1, one count aggravated sexual abuse of a child, Utah Code section 76-5-

404.1(4), and one count enticing a minor, Utah Code section 76-4-401. R.1–3. After

a preliminary hearing, in anticipation of a motion from the defense, the State

moved to amend Count Six (aggravated sexual abuse of a child), conceding that

5
the State had not presented enough evidence to show that the count should be

aggravated. R.266. The State also moved to amend Count Two (rape of a child) to

an alternative count of sodomy on a child. R.267.

B. Guilty Plea

Pursuant to plea negotiations, the State filed a second amended information,

dismissing all charges but one count of aggravated sexual abuse of a child. R.186–

87; see Addendum B. Sharp pled guilty to the one count charged in the second

amended information, a first-degree felony. R.189–96. In so doing, he agreed to be

sentenced to an indeterminate prison term of fifteen years to life. R.192. The factual

basis for the plea was included in a plea affidavit, setting forth the following:

On or about June 1, 2017, through December 21, 2017, in Salt Lake

County, Mr. Sharp under circumstances not amounting to rape of a
child, object rape of a child, sodomy upon a child, or an attempt to
commit any of these offenses, touched the buttocks of a child, H.B.,
with the intent to arouse the sexual desire of any person and Mr.
Sharp was in a position of special authority that allowed him to
exercise undue influence over H.B.

R.190. The record further reflects that at the time of the alleged incident, the child

was eleven years old, and the position of special authority was “akin to a

babysitter.” R.278. The court informed Sharp, “If you want to ask to withdraw this

plea, you’ll need to do so in writing to me sometime prior to your sentencing.”

6
R.280. Sharp said he understood, and the court ordered a presentence report and

set a date for sentencing. R.280–81.

C. Motions to Withdraw

After entering his guilty plea and before sentencing, Sharp sent a pro se

filing to the district court, informing the court that he “would like to cancel [his]

plea deal and go to trial.” R.205. Shortly thereafter, defense counsel filed a formal

motion to withdraw on Sharp’s behalf. R.206. She referenced Sharp’s letter,

attached it to the motion, and requested the court postpone sentencing until it

could hear Sharp’s motion to withdraw. R.206. The district court accordingly set a

hearing on the motion. R.213; Addendum C.

At the hearing, the district court began by asking Sharp if there was

anything he would like to add to his written motion. R.288. Defense counsel

advised the court:

Your Honor, there is something that the court should be made aware
of. There was a letter that was intercepted at the jail. It was written to
my client. It is purportedly from the victim in this case. And it is an
exculpatory letter basically, which I believe would, if it is verified as
being from the victim, would be another basis to withdraw his plea.
This was just recently brought to my attention.

R.288. The court asked whether defense counsel had the letter with her, and she

explained the State had it; the State indicated it had asked Unified Police to

7
investigate, believing the letter was a forgery. R.288. The court decided to deal first

with the original, written, motion to withdraw. R.289. The motion based on the

letter would be dealt with when an investigation could determine where the letter

came from. R.289.

The court asked Sharp to expound on the written motion to withdraw.

R.2893. Sharp explained,

Well, for one, I misunderstood you at the last hearing when you
said I had something like 45 days to do something. I misinterpreted
that. You meant I had, like, 45 days to withdraw my guilty plea and
just go to trial.
...
Well, one, another one is I talked to my family here, and I was
talking to my family outside of Utah, and they all think that I should
let [defense counsel] go and bring on another attorney to represent
me.

R.289.

After countering that was not what the court had said at the time of plea

and determining that Sharp did not have money to hire a private attorney, the

court found the written motion did not present a basis for allowing Sharp to

withdraw his guilty plea. 1 R.289–290. Sentencing was reset, and the court informed

the parties that it would

1 The present appeal does not challenge this ruling.

8
 get something from the prosecution talking about the letter that was
allegedly intercepted, and we’ll see what the investigator has to say
about that. And if—if I’m thinking—well, based on what happens
there, obviously, that will make our determination as to whether
we’re going to go forward or not.

R.291.

D. Sentencing Hearing

Given the district court’s indication that the investigation into the letter

would determine whether to proceed with sentencing, defense counsel began the

sentencing hearing by explaining, “Your Honor, we cannot go forward. There’s a

letter from the victim that I—purportedly from the victim that I referenced in the

motion to withdraw his guilty plea.” 2 R.298; Addendum D. She reminded the

court that Unified Police was investigating the letter and asserted, “I think that

2At sentencing, there were three separate letters referenced, and the record is not
always clear which letter the district court is referring to. Compare R.298–299
(defense counsel discussing a letter from the alleged victim and the district court
replying, “Which I’ve had an opportunity to view”), with R.300 (defense counsel
clarifying, “You mentioned when we first called the case this morning that we had
the letter. Well, you don’t have the letter,” and the district court acknowledging,
“No, I don’t. . . . You’re right about that. I was thinking of the letter [Sharp] sent
me . . . .”). However, this brief does its best to differentiate between the letters
based on context.

9
investigation needs to be completed before we can go forward with sentencing.”

R.299. The district court disagreed. R.299. 3

The district court instead turned its attention to whether any victims were

present and wanting to be heard. R.299. When the prosecutor indicated. “[O]h,

apparently they are here,” the court said, “Well, if that’s the case, then let’s go

ahead and go forward.” R.299.

Defense counsel told the district court that she had not yet had an

opportunity to review the presentence report with Sharp. She was told, “Go back

there and we’ll get that done, and we’ll bring you back in 15 minutes.” R.299. After

a brief recess, the court asked defense counsel whether there were factual

inaccuracies in the presentence report that needed to be corrected. R.300. When

3Defense counsel also explained that she did not think sentencing should proceed
because she might not continue representing Sharp; “He wrote a letter to the bar
complaining about [the judge], [the prosecutor], and [defense counsel].” R.298. She
thought his case might get reassigned by her office. R.299. The district court did
not think a letter to the bar or any internal administrative procedures at defense
counsel’s office, the Salt Lake Legal Defender Association, were sufficient to create
a barrier to defense counsel’s representation of Sharp, concluding, “Well, I think
you can represent him.” R.298, 299. Before concluding the hearing, the court took
the time to place on the record its view that the letter Sharp wrote to the bar
concerning defense counsel had “absolutely no basis.” R.313.

10
she said there were not, the court urged her to go forward with argument

regarding sentencing. R.300.

Again, defense counsel urged, “Your Honor, I did not think that we could

go forward today.” R.300. Defense counsel pointed out that the court did not yet

have the letter, and the court acknowledged, “No, I don’t. I have the implication

to what the letter is, though. You’re right about that.” R.300. Defense counsel then

proffered on the record: “[T]here was a letter that was purported to be from the

victim, that was sent to my client, and intercepted by the jail. That letter, item by

item, is exculpatory in every event that was alleged in this case.” R.300–01. When

asked “how that letter has anything to do with a person giving a knowing,

voluntary, and intentional plea,” defense counsel said, “it’s completely

exculpatory.” R.301.

Without further discussion, the court indicated, “I accept your objection.

You’ve made your record. Let’s move forward.” R.301. At that point, the court did

not make a ruling on the pending motion to withdraw the guilty plea. See R.301.

Sentencing proceeded with defense counsel reading into the record the

letter Sharp wrote to the bar, R.302–04, making argument that Sharp took

responsibility at the time of the plea and now argued that he was innocent, and

11
noting that there was evidence to support that. R.304. The district court disagreed

that there was evidence supporting Sharp’s innocence and told the prosecutor to

begin speaking:

[DEFENSE COUNSEL]: However, now he’s saying he’s innocent --

THE COURT: I understand.
[DEFENSE COUNSEL]: -- and there’s evidence to support that.
THE COURT: Okay. Well, I don't agree with the last part. But go
ahead, counselor.
[PROSECUTOR]: I’d like to thank [defense counsel] . . . .

The court then heard from the prosecution, which detailed the allegations

underlying this case. R.304–06. When the prosecutor finished, defense counsel

asserted, “I dispute some of those facts.” R.306. Before defense counsel could

explain, the court stopped her, saying “that’s fine. If you wouldn’t mind moving

off to the side there . . . ,“ before hearing from the alleged victim’s mother. R.306,

307–08.

Next, the court turned its attention to the alleged victim, who was seated in

the courtroom but did not address the court. R.308–09. The court talked at length

directly to the alleged victim, thanking her for coming forward, letting her know

that the judge saw her as a hero, and encouraging her to continue in therapy.

R.308–09. Sharp thereafter declined to address the court. R.310.

12
 The court then made a record of what it deemed to be the lengthy history of

this case: filed in January 2018 and sentencing taking place March 2019. R.310. It

further opined that defense counsel had “done an outstanding job” in this case and

that Sharp had entered a guilty plea “knowingly, voluntarily, intelligently. He

knew exactly what he was pleading guilty to. He had the form read to him. As

well I went over the rights with him in all of the form, confirmed the fact that he

knew all those rights, and he did tell me in open court that was the case.” R.311.

The court then denied Sharp’s motion to withdraw the guilty plea, concluding that

the motion “didn’t list any of these—said there’s some alleged letter out there that

really, in my opinion, doesn’t have any effect on anything, particularly in the state

it’s in right now. But nonetheless, he made that motion . . . and I said that’s—the

motion is denied. It wasn’t based on any legal reasons, we can do that.” R.311.

The court sentenced Sharp to fifteen years to life in prison, see Addendum

A, indicating the district court judge would “write a personal letter to the Board

of Pardons and that letter is going to indicate that you should never, ever walk on

this earth outside of that prison again. I expect that you’ll die in prison, which I

think that’s what you should do.” R.312.

13
 Finally, the last comment made by the court seemed to address Sharp’s

claim that the alleged victim’s letter was exculpatory and supported a conclusion

that he was innocent: “When you entered that plea, if, in fact, you knew this was

all false, you wouldn’t have entered the plea, but you did. Good luck to you.”

R.313.

Sharp filed a timely notice of appeal. R.243.

SUMMARY OF THE ARGUMENT

The district court abused its discretion when it denied Sharp’s motion to

withdraw his guilty plea based on a letter which supported a conclusion that

Sharp was actually innocent of the alleged crime. While district courts have

discretion in deciding whether to grant motions to withdraw guilty pleas, the

district court in this case based its decision on clearly erroneous factual findings

and a misapprehension of Utah law. Given these errors, the ultimate denial of

Sharp’s motion exceeded the district court’s discretion.

Similarly, the actions taken by the district court exceeded the discretion

typically afforded courts at sentencing. The court forced the parties to proceed

with sentencing before the investigation into the letter had been completed. The

court forced defense counsel to move forward with sentencing despite her

14
concerns that she was not adequately prepared to do so. And the court imposed

an illegal sentence when it denied Sharp his right to allocution. While the court

invited Sharp to speak on his own behalf, it limited defense counsel’s ability to

discuss evidence supporting actual innocence and to challenge the prosecution’s

proffered evidence of the underlying crimes.

This Court should reverse the denial of Sharp’s motion to withdraw his

guilty plea, or it should remand with directions to the district court to reconsider

the motion only after the State concludes its investigation into the letter.

Alternatively, this Court should vacate Sharp’s sentence and remand for a new

sentencing, where the current sentence was imposed both prematurely and

illegally.

ARGUMENT

It was undisputed below that, after Sharp entered his guilty plea, the jail

intercepted a letter purporting to be from the alleged victim in this case. R.288. It

is also undisputed that the district court never saw that letter, and at the time of

sentencing the State’s investigation into the letter had not yet concluded. R.299,

300. Despite these facts and the fact that the letter was potentially exculpatory, the

district court refused to allow Sharp to withdraw his guilty plea. Doing so was an

15
abuse of discretion. Similarly, the court abused its discretion by forcing Sharp to

move forward with sentencing, and it committed reversible error when it imposed

sentence without allowing Sharp the chance to fully allocute through defense

counsel.

I. The District Court Should Have Granted Sharp’s Motion to Withdraw His
Guilty Plea.

Sharp’s motion to withdraw his guilty plea, made by defense counsel at the

plea-withdrawal hearing and renewed at sentencing, demonstrated that his guilty

plea was not knowing and voluntary. As such, the district court should have

granted the motion to withdraw.

A guilty plea may be withdrawn upon “a showing that it was not knowingly

and voluntarily made.” Utah Code § 77-13-6(2)(a) (Addendum B). Part of a plea

being knowing and voluntary is the defendant having “sufficient awareness of the

relevant circumstances.” State v. Alexander, 2012 UT 27, ¶ 16, 279 P.3d 371. Relevant

circumstances involve the State’s evidence against the defendant and the

correlation between that evidence and the elements of the charged offenses. See id.

¶ 35 (explaining that a knowing and voluntary plea requires not only “a

conceptual understanding of the nature of the offense” but “an understanding of

the law in relation to the facts” (cleaned up)). The letter intercepted at the jail

16
altered the evidentiary landscape to such a degree that Sharp cannot be said to

have had sufficient awareness of the relevant circumstances or an understanding

of the law in relation to the facts when he pled guilty. See id. ¶¶ 16, 35.

A. Utah’s Plea-Withdrawal Case Law Contemplates Withdrawal of a

Plea Made when Evidence Indicating Innocence is Discovered Prior
to Sentencing

In 2003, the legislature amended the plea withdrawal statute, “chang[ing]

the standard for withdrawal of guilty pleas from good cause to a showing that the

plea was not knowingly and voluntarily entered (which of course would have

always constituted good cause under the former standard).” State v. Ruiz, 2012 UT

29, ¶ 39, 282 P.3d 998 (Durham, J., concurring in part and dissenting in part).

Before the 2003 amendment, Utah cases held that circumstances similar to

Sharp’s presented good cause for the withdrawal of guilty pleas. See State v.

Gallegos, 738 P.2d 1040, 1042 (Utah 1987) (holding it was an abuse of discretion to

deny the motion to withdraw the guilty plea where “the district court was

apprised of critical new evidence which cast doubt on defendant’s guilt, evidence

which, if believed by the finder of fact at trial, could result in acquittal”), superseded

by statute as discussed in State v. Ruiz, 2012 UT 29, ¶ 37, 282 P.3d 998 (holding that

the 2003 amendment made no longer applicable Gallegos’s instruction that motions

17
to withdraw guilty pleas should be “liberally granted”); but see State v. Walker, 2013

UT App 198, ¶ 27, 308 P.3d 573. 4

Reviewing caselaw issued after the 2003 amendment, Sharp has found no

case from this Court or the Utah Supreme Court considering a motion to withdraw

a guilty plea based on newly discovered evidence tending to support factual

innocence, under the current plea-withdrawal statute. But several cases help

illustrate how such a scenario should be resolved: Where post-plea but pre-

sentence newly discovered evidence demonstrates the defendant’s innocence, the

plea was involuntary and should thus be set aside upon the defendant’s request.

In Magallanes v. South Salt Lake City, a PCRA case, this Court directed,

“Guilty pleas may be shown to be involuntary on the basis that the prosecution

failed to disclose material exculpatory evidence.” 2015 UT App 154, ¶ 7, 353 P.3d

4 Though Walker involved a claim of factual innocence, it is distinguishable from

this case. Walker, decided after the 2003 amendment but applying the pre-
amendment statute, considered a motion to withdraw a guilty plea based, in part,
on a claim of factual innocence. 2013 UT App, ¶ 27. In that case, there was evidence
contradicting the victim’s post-plea recantations, the trial court engaged in a
detailed view of all relevant available documents, and the State would have been
prejudiced—given a decades-long passage of time—if it were to retry the matter.
Id. ¶¶ 32, 30. Under these circumstances, the trial court did not abuse its discretion
in determining that there was not good cause to allow withdrawal of the
defendant’s guilty plea. Id. ¶ 32.

18
621. For such to be the case, the evidence must either demonstrate factual

innocence or shake the Court’s confidence in the outcome of the proceedings. See

id. While the Magallanes court was not considering a pre-sentence motion to

withdraw a guilty plea, it did not limit its discussion of involuntariness to only

certain types of proceedings.

In line with this rationale, the court in State v. Magness held that a

prosecutor’s misstatements—whether intentional or not—regarding a victim’s

sentencing wishes undermine the voluntariness of a guilty plea. See 2017 UT App

130, ¶¶ 19–25, 402 P.3d 105.

Furthermore, relevant pre-amendment cases do not foreclose the possibility

that what was once considered good cause for withdrawing a guilty plea might

also satisfy the current statute’s requirement that a moving defendant show his

plea was not knowing and voluntary. See generally Gallegos, 738 P.2d 1040 (Utah

1987). This is especially true where voluntariness has always been part of good-

cause considerations. See State v. Humphrey, 2003 UT App 333, ¶ 10, 79 P.3d 960

(considering a motion made under the old statute, explaining that “good cause

exists where the plea was entered involuntarily,” and holding that once new

evidence related to voluntariness “is presented to the court, the court needs to

19
assess the credibility of the evidence and make detailed findings on all relevant

facts” (cleaned up)). Thus, while our supreme court has declared the “liberally

granted” instruction in State v. Gallegos, 738 P.2d 1040 (Utah 1987), to have been

abrogated by the 2003 amendments, the supreme court’s case law has done

nothing to suggest that the outcome of Gallegos would be different under the

current statute. See Ruiz, 2012 UT 29, ¶ 37. In fact, since the 2003 amendment,

Gallegos has been cited ten times, and in none of those cited cases was the ultimate

result of Gallegos overturned. 5

5 See generally State v. Ruiz, 2012 UT 29, ¶ 38, 282 P.3d 998 (where the central inquiry
was whether, after the 2003 amendment, “presentence motions to withdraw guilty
pleas should still be liberally granted”); see also State v. Alexander, 2012 UT 27, ¶ 19
n.23, 279 P.3d 371 (citing Gallegos for the proposition, “Withdrawal of a plea of
guilty is a privilege, not a right.” (cleaned up)); Grimmett v. State, 2007 UT 11,
¶¶ 10–11, 152 P.3d 306 (concluding that Gallegos was inapplicable, where the
motion at issue was not made before sentencing and the amended version of the
statute imposed a jurisdictional time limitation); State v. Dean, 2004 UT 63, ¶ 11, 95
P.3d 276 (considering the pre-amendment statute and citing Gallegos for the
proposition, “Withdrawal is a privilege, not a right, that is left to the trial court’s
sound discretion.” (cleaned up)); State v. Archuleta, 2019 UT App 136, ¶ 32 n.9, 449
P.3d 223 (discussing Ruiz overruling Gallegos’s “liberally granted” instruction);
Walker, 2013 UT App 198, ¶ 27 (applying the pre-2003 statute and distinguishing
Gallegos based on Ruiz’s clarification that the victim’s recantation in Gallegos was
not refuted by any other evidence); State v. Ruiz, 2009 UT App 121, ¶ 11, 210 P.3d
955 (citing Gallegos for the idea that motions to withdraw guilty pleas should be
liberally granted), rev’d, 2012 UT 29, ¶ 11, 282 P.3d 998; In re State ex. rel. K.M., 2006
UT App 74, ¶ 14, 136 P.3d 1230 (citing Gallegos as quoted in Dean), rev’d sub nom.
State ex rel. K.M., 2007 UT 93, ¶ 14, 173 P.3d 1279; State v. Guadarrama, 2003 UT App

20
 Recently, this Court decided State v. Archuleta, which does not change the

analysis. In Archuleta, the Court considered an ineffective-assistance claim

premised on the argument that trial counsel “performed deficiently by failing to

sufficiently investigate a potential exculpatory witness, and for failing to take

some action (such as filing a motion to withdraw the plea, a motion to arrest

judgment, or a motion for a new trial) in connection with the investigation.” 2019

UT App 136, ¶ 30. The ultimate holding of Archuleta was simply that the defendant

had not adequately demonstrated either that his plea was not knowing and

voluntary or that his trial counsel was ineffective for not pursuing, among other

avenues for relief, a motion to withdraw his guilty plea. Id. ¶ 35. But Archuleta is

distinguishable.

The first difference between this case and Archuleta is the posture in which

the cases reached the Court. See id. ¶ 30. The Archuleta court was considering an

unpreserved challenge to trial counsel’s failure to file a motion to withdraw a

329U, para. 3 (citing Gallegos for the proposition, “Withdrawal of a plea of guilty
is a privilege, not a right.” (cleaned up)); State v. Carr, 881 N.W.2d 192, 197–98 &
n.8 (Neb. 2016) (citing Gallegos for the proposition, “Newly discovered evidence
can be a fair and just reason to withdraw a guilty or no contest plea before
sentencing,” while noting that it had been superseded by statute as recognized in
Ruiz).

21
guilty plea, while this case presents a preserved challenge to the denial of such a

motion. See id. ¶ 17 (noting that in ineffective-assistance cases, “there is no lower

court ruling to review” (cleaned up)). Also different, in Archuleta, the defendant

“failed to introduce into the record any actual exculpatory evidence that his trial

counsel should have discovered after the plea hearing.” Id. ¶ 31. Here, defense

counsel proffered evidence of a letter that was “completely exculpatory.” R.301.

And, in Archuleta, the defendant’s claim that trial counsel could have pursued a

motion to withdraw armed with such exculpatory evidence, if it existed, was “not

well-developed.” Archuleta, 2019 UT App 136, ¶ 31. Thus, without the benefit of

well-developed argument, actual exculpatory evidence to consider, or a denied

motion to review, this Court was left only to conclude that the defendant had

“fallen short of convincing us that [a motion to withdraw] would have been

viable.” Id.

This conclusion was premised in part on the defendant’s failure to “direct[]

[the Court’s] attention to a single Utah case decided under the auspices of our

current plea withdrawal statute that allows the withdrawal of a guilty plea based

upon the post-plea discovery of additional evidence.” Id. ¶ 32. But, as discussed

22
above, analogous Utah cases direct exactly that result. See Magness, 2017 UT App

130, ¶¶ 19–25; Magallanes, 2015 UT App 154, ¶ 7.

Ultimately, the Court suggested that “evidence discovered after entry of a

plea does not necessarily go to whether the plea was knowingly and voluntarily

made at the time it was entered,” Archuleta, 2019 UT App 136, ¶ 32 (second

emphasis added), and held that trial counsel was not ineffective for failing to make

a motion to withdraw under the facts of that case, id. Said more explicitly, Archuleta

did not foreclose the possibility that sometimes, evidence discovered post-plea

might go to whether the plea was knowing and voluntary. See id.

The court also mentioned in dicta “that other jurisdictions appear reluctant

to allow the withdrawal of guilty pleas under such circumstances.” Id. But this

observation was made by citing a single Washington case, In re Reise, 192 P.3d 949,

955 (Wash. Ct. App. 2008). While the Washington court in In re Reise did observe

that “a guilty plea . . . generally bars a later collateral attack based on newly

discovered evidence,” it also acknowledged that there are exceptions to this

general rule. See id. at 956. “For example,” the court noted, “newly discovered

DNA evidence demonstrating innocence would change the factual basis for the

plea.” Id. (emphasis added).

23
 Importantly, the newly discovered evidence relied on by Reise was a

witness statement that would have supported his self-defense claim—a claim

known before his plea was entered and which induced the State to offer the plea

deal that it did. See id. at 953. This is unlike the evidence here, which was a

complete recanting of the victim’s allegations; indeed, the evidence presented

post-plea in this case is more akin to newly discovered DNA evidence, where it

demonstrates innocence and thus changed the factual basis for Sharp’s plea. See id.

at 956; see also State v. Goodwin, 2009 WL 4646417, at *1, *3 (Wash. App. Div. 2,

December 8, 2009) (Washington case decided after In re Reise, upholding the denial

of a motion to withdraw the guilty plea where the trial court found “that although

the father’s statement was not available until after the entry of Goodwin’s guilty

plea, the statement was ambiguous, and thus did not justify withdrawal of the

plea”). Furthermore, at least one jurisdiction has suggested that circumstances

such as are present in this case may in fact warrant withdrawal of a guilty plea.

See State v. Carr, 881 N.W.2d 192, 197–98 & n.8 (Neb. 2016) (relying on Gallegos,

post-Ruiz, to assert, “Newly discovered evidence can be a fair and just reason to

withdraw a guilty or no contest plea before sentencing”).

24
 All of these cases work together to establish a rule that new evidence related

to factual innocence can render a plea involuntary.

B. To Conclude That The Circumstances of This Case Do Not Warrant

Withdrawal of a Guilty Plea Would Deprive Sharp of a Remedy for
Factual Innocence

If this Court were to conclude that the facts of this case did not warrant

withdrawal of Sharp’s plea, it would likely deprive Sharp of any recourse for

obtaining relief for factual innocence. Utah’s factual-innocence statute provides

the most obvious possible avenue for an individual who pleads guilty but is

innocent:

(1) A person who has been convicted of a felony offense may

petition the district court in the county in which the person was
convicted for a hearing to establish that the person is factually
innocent of the crime or crimes of which the person was convicted.
(2)(a) The petition shall contain an assertion of factual
innocence under oath by the petitioner and shall aver, with
supporting affidavits or other credible documents, that [among other
things]:
(i) newly discovered material evidence exists that, if credible,
establishes that the petitioner is factually innocent[.]

Utah Code § 78B-9-402 (Addendum B). But the statute defines newly discovered

material evidence only as “evidence that was not available to the petitioner at trial

or during the resolution on the merits by the trial court of any motion to withdraw a guilty

25
plea or motion for new trial and which is relevant to the determination of the issue

of factual innocence.” Id. § 78B-9-401.5(3) (emphasis added) (Addendum B).

If the letter in this case had been intercepted after sentencing, it seems clear

from the language of the PCRA that Sharp would have grounds to pursue

postconviction relief for newly discovered evidence. See id. § 78B-9-402. But

because of the timing of the letter, it appears such a pursuit is barred by the statute.

See id. § 78B-9-401.5(3). Thus, if the district court’s ruling were to stand as legally

correct, it would create a scenario where a factually innocent person could be

exonerated only if new evidence comes to light after sentencing; but that same

person who receives new evidence after pleading but before sentencing would

have no remedy in the law.

C. Any Factual Findings Made by the Court Were Clearly Erroneous

While the district court never meaningfully engaged with Sharp’s verbal

motion to withdraw his guilty plea, it did conclude that (1) there was not evidence

to support Sharp’s claim, at the time of sentencing, that he was innocent, R.304;

(2) “some alleged letter out there . . . doesn’t have any effect on anything,” R.311;

and (3) when Sharp “entered that plea, if, in fact, [he] knew this was all false, [he]

wouldn’t have entered the plea, but [he] did,” R.313. These conclusions amount to

legal reasoning. Gillmor v. Wright, 850 P.2d 431, 433 (Utah 1993) (“On appeal, we

26
disregard the labels attached to findings and conclusions and look to the

substance.”). But even if they are considered findings of fact, such findings were

clearly erroneous in that they are not supported by the evidence.

To challenge findings of fact, it is Sharp’s burden to

point to evidence in the record demonstrating that the court’s factual

findings were clearly erroneous. On appeal, a defendant cannot
simply restate or review evidence that points to an alternate finding
or a finding contrary to the trial court’s finding of fact. Rather, to show
clear error, he must identify the supporting evidence and explain why
the trial court’s factual finding is nonetheless against the clear weight
of the evidence.

State v. Wright, 2019 UT App 66, ¶ 22, 442 P.3d 1185 (cleaned up). The facts pointed

to by the court in denying the motion to withdraw were as follows:

• Sharp “knew exactly what he was pleading guilty to”;

• Sharp “had the form read to him”;
• the court “went over the rights with him in all of the form”;
• the court “confirmed the fact that he knew all those rights”;
• Sharp said “in open court that was the case”;
• shortly after pleading, “he had a little bit of buyer’s remorse”;
• Sharp “then filed something saying he wanted to withdraw his plea”;
and
• Sharp “he refused to be interviewed by the probation folks.”

R.311. All but the last of these facts were the same one relied on by the court in

denying Sharp’s first motion to withdraw. See R.290 (the State arguing that there

had been no basis shown for withdrawal of the guilty plea; “His letter just says he

wants to cancel it. He’s changed his mind, basically. . . . I got a copy of the colloquy

27
with Mr. Sharp when he entered his plea. Rule 11 and his rights was complied

with and his rights were explained to him. So there’s no basis to withdraw the

plea,” and the court mirroring this language in its conclusion). As for Sharp’s

refusal to be interviewed by probation staff, it is unclear how this could have

informed the court’s decision to deny the motion.

The only proffer of additional evidence from the State, and the only fact

relevant to the motion to withdraw at issue on appeal, is that the State “believ[ed]”

the letter was a forgery. R.288. Despite that belief, the State also acknowledged

“we don’t have any word [from police] yet on the status of that investigation.”

R.289. At the time of sentencing, the State provided no information about the letter.

See generally R.299, 304-06 (the prosecutor’s remarks at sentencing, never

discussing the letter).

The record thus does not support the district court’s findings, if they are

deemed such. “A finding of fact is clearly erroneous when the court failed to

consider all of the facts . . . .” State in Interest of B.J.V., 2017 UT App 57, ¶ 2, 397 P.3d

78 (cleaned up). At the outset, is apparent the district court failed to consider all of

the facts, where it made findings without having the opportunity to view the letter

that had been intercepted at the jail and which formed the basis for Sharp’s motion

28
to withdraw his guilty plea. See R.300. Defense counsel pointed out, “Well, you

don’t have the letter.” R.300. The district court responded, “No, I don’t.” R.300. Yet

the court went on to make findings that were dependent on what was included in

the letter. R.304 (finding there was no evidence supporting Sharp’s claim that he

was innocent); 311 (finding that the letter “doesn’t have any effect on anything”);

313 (finding that if Sharp had known the allegations were false, he “wouldn’t have

entered the plea, but [he] did”). The district court’s failure to consider all of the

facts—namely, the letter—renders its findings clearly erroneous. See State in

Interest of B.J.V., 2017 UT App 57, ¶ 2.

Furthermore, given the information about the letter proffered on the record,

the district court’s findings were “against the clear weight of the evidence.” See

Wright, 2019 UT App 66, ¶ 22. The court appeared to base its findings on Sharp’s

initial, written motion to withdraw:

Mr. Sharp entered his plea. He entered it knowingly,

voluntarily, intelligently. He knew exactly what he was pleading
guilty to. He had the form read to him. As well I went over the rights
with him in all of the form, confirmed the fact that he knew all those
rights, and he did tell me in open court that was the case.
Soon after, I guess, he had a little bit of buyer’s remorse. He
then filed something saying he wanted to withdraw his plea, but he
didn’t list any of these— said there’s some alleged letter out there that
really, in my opinion, doesn’t have any effect on anything,
particularly in the state it’s in right now. But nonetheless, he made

29
 that motion and he refused to be interviewed by the probation folks,
and I said that’s—the motion is denied.
It wasn’t based on any legal reasons, we can do that.

R.311. Even if Sharp’s initial motion to withdraw could have been interpreted as

expressing “a little bit of buyer’s remorse” or not listing “any legal reasons” for

withdrawing the plea, see R.311, that motion was heard and dealt with at the plea-

withdrawal hearing. It had no lingering effect on sentencing, when the district

court made these findings.

Instead, the district court’s focus should have been on the “alleged letter out

there,” which the court seemed to lump in with the earlier motion to withdraw.

See R.311. By doing so, the court ignored its own preliminary ruling that it would

“get something from the prosecution talking about the letter that was allegedly

intercepted, and we’ll see what the investigator has to say about that. And . . .

based on what happens there, obviously, that will make our determination as to

whether we’re going to go forward or not.” R.291. Rather than following through

with this decided course of action, at sentencing, the district court reasoned that it

was immaterial whether Unified Police was still investigating the letter. R.301.

Instead, the court forced the parties to move forward with sentencing. R.301.

It did so in the face of all parties agreeing a letter had been intercepted at the

jail. See R.288 (defense counsel representing that the “State has the letter” and the

30
State acknowledging that it had “asked Unified Police Department to investigate,”

believing “it’s a forgery”). Thus, the court was not dealing with an “alleged letter,”

as it stated, R.311, but instead an actual letter—the only question about which was

its authenticity. Furthermore, the court heard proffered evidence at the plea-

withdrawal hearing that (1) the letter was possibly “from the victim in this case,”

R.288; (2) the letter was exculpatory, R.288; and (3) if the letter was “verified as

being from the victim, would be another basis to withdraw his plea,” R.288. At

sentencing, the court further received proffers from defense counsel that (1) “UPD

is investigating the source of that letter,” R.299; (2) the “investigation needs to be

completed before we can go forward with sentencing,” R.299; (3) and the letter,

“item by item, is exculpatory in every event that was alleged in this case,” R.301.

There was a disconnect between this evidence and the facts the district court

referenced in ruling on Sharp’s motion to withdraw. See R.311. Specifically, where

the motion to withdraw was based on newly discovered evidence that

demonstrated factual evidence, it was clearly erroneous to base findings only on

what happened at the time of the plea. See R.311.

It is also worth noting that the third factual finding set forth at the beginning

of this section—that if Sharp had known the allegations against him were false, he

31
would not have pled guilty, R.313—is unsupported by the facts of this case as well

as human experience. Sharp was initially charged with six first-degree felonies and

one second-degree felony. R.1–3. The State thereafter offered Sharp the chance to

plead to a single first-degree felony. R.186–87. That Sharp took this offer does not

alone foreclose the possibility that he could subsequently claim and demonstrate

innocence.

Our supreme court has “acknowledge[d] the possibility that an innocent

individual may nevertheless plead guilty.” Medel v. State, 2008 UT 32, ¶ 43, 184

P.3d 1226. District courts therefore have “an undoubted duty to guard against the

possibility that an accused who is innocent of the crime charged may be induced

to plead guilty without sufficient understanding of the nature of the charge or the

consequence of his plea, or that the plea may be improperly induced . . . .” State v.

Harris, 585 P.2d 450, 452 (Utah 1978). It can be no surprise that “[i]n this system,

innocent people plead guilty to crimes they did not commit, and join the

‘unexonerated,’ often with severe, life-altering (and sometimes life-ending)

consequences.” John H. Blume, Rebecca K. Helm, The Unexonerated: Factually

Innocent Defendants Who Plead Guilty, 100 Cornell L. Rev. 157, 191 (2014).

32
 The district court’s finding ignores this reality and, more critically, ignored

the fact that there exists actual evidence that could establish Sharp’s innocence—

evidence the district court failed to view or otherwise consider in any meaningful

way.

D. Given the Law and the Evidence Before the District Court, it Was
an Abuse of Discretion to Deny Sharp’s Motion to Withdraw His
Guilty Plea

It was an abuse of discretion for the district court to deny Sharp’s motion to

withdraw his guilty plea. See R.311. 6

Utah case law supports a determination that exculpatory evidence, newly

discovered after a plea is entered but before sentencing, can demonstrate that a

plea was not knowing and voluntary. See supra Section I.A. To conclude otherwise

would leave a factually innocent person in Sharp’s shoes without a remedy for

relief from his conviction. See supra Section I.B. The evidence available to the

6 It is unclear whether the district court used the phrase, “It wasn’t based on any
legal reasons,” to refer to the initial written motion to withdraw or to the verbal
motion made based on the letter at issue in this case. See R.311. But aside from “the
motion is denied,” and, “there’s some alleged letter out there that really, in my
opinion, doesn’t have any effect on anything,” R.311, there is little said at the
sentencing hearing that explains the court’s rationale for denying the verbal
motion. Taking these statements together, it seems apparent that the district court
saw no legal reason to allow withdrawal of the plea. Thus, whether the actual
quotation on R.311 relates to the written or the verbal motion, the outcome remains
the same—the motion was denied.

33
district court was that there was a pending investigation into a letter intercepted

at the jail. See R.288. Depending on the results of that investigation, the letter could

be entirely exculpatory. R.301. Yet without allowing the investigation to conclude

or even viewing the letter in question, the district court decided that the letter had

no impact on the case and did not support a conclusion that Sharp was innocent.

R.304, 311. These findings were clearly erroneous. See supra Section I.C.

The district court had discretion in its ultimate decision whether to grant or

deny Sharp’s motion to withdraw his guilty plea. See State v. Enriquez-Meza, 2019

UT App 154, ¶ 8, 450 P.3d 1177. “An error of law by the district court, however,

would be an abuse of discretion.” Goggin v. Goggin, 2011 UT 76, ¶ 26, 267 P.3d 885.

Likewise, “[i]f a district court’s ruling . . . is based on clearly erroneous factual

findings . . . , the district court has likely abused its discretion.” Menzies v. Galetka,

2006 UT 81, ¶ 55, 150 P.3d 480. Given the erroneous interpretation of law

underlying the district court’s conclusion that newly discovered evidence could

not affect the plea-withdrawal inquiry, and given the district court’s clearly

erroneous factual findings, its decision to deny Sharp’s motion to withdraw his

guilty plea was an abuse of discretion. See id.

34
 It similarly follows that it was an abuse of discretion not to, at the very least,

reserve ruling on the motion until the investigation into the letter was completed

and the district court could personally review the letter. Thus, if this Court were

not inclined to reverse outright, an alternative remedy would be to (1) remand to

properly consider the motion to withdraw at a new motion hearing when the

relevant evidence is available, and (2) instruct the district court to grant the motion

if the letter is determined to be authentic.

II. Alternatively, the District Court Should Have Continued Sentencing

Separate from all of the above, the district court abused its discretion when

it forced the parties to proceed with sentencing, given the specific circumstances

of this case. Over objections and explanations why sentencing should be

postponed, the district court seemed intent on rushing this case to a conclusion.

Defense counsel informed the trial court at the outset that sentencing should not

proceed on the scheduled date. R.298. She explained that there was an outstanding

motion to withdraw based on the State’s ongoing investigation into potentially

exonerating evidence, R.298, she expressed concern over continuing to represent

Sharp given his letter to the bar, R.298, she had not had an adequate opportunity

35
to review the presentence report with Sharp, R.299, and she did not believe the

case could proceed before the district court reviewed the letter in question, R.300.

“An abuse of discretion occurs when a trial court denies a continuance and

the resulting prejudice affects the substantial rights of the defendant, such that a

review of the record persuades the court that without the error there was a

reasonable likelihood of a more favorable result for the defendant.” State v. Taylor,

2005 UT 40, ¶ 8, 116 P.3d 360 (cleaned up).

First, the district court abused its discretion by ordering that sentencing

proceed before the motion to withdraw was resolved. See R.301. Utah’s plea-

withdrawal statue directs, “Sentence may not be announced unless the motion is

denied.” Utah Code § 77-13-6(2)(b). But the district court ordered that sentencing

proceed before denying the pending motion to withdraw. R.301 (noting defense

counsel’s objection but directing, “Let’s move forward.”).

Second, the district court abused its discretion by forcing Sharp to proceed

with sentencing where there were questions about whether defense counsel would

continue to represent him and where defense counsel had not previously had the

opportunity to review the presentence report with Sharp. R.299, 304. Defense

counsel explicitly informed the court, “I don’t think I can represent Mr. Sharp

36
effectively in the sentencing.” R.304. The court’s only response was, “Okay. I

appreciate that. Let’s go forward with the sentencing then. Go ahead.” R.304.

In this regard, this case is akin to State v. Ferretti, 2011 UT App 321, 263 P.3d

553. There, the district court forced the defendant and his attorney to proceed with

sentencing rather than allowing them the opportunity to prepare and file a written

motion to withdraw the defendant’s guilty plea. Id. ¶¶ 8–9. Forcing the case to

move forward “compromised [the defendant’s] rights both to effective assistance

of counsel and to the meaningful opportunity to identify and provide grounds for

withdrawal.” Id. ¶ 16. This Court accordingly held “that the district court exceeded

its permitted discretion when it failed to continue . . . sentencing to allow for

adequate briefing in support of [the defendant’s] plea-withdrawal request.” Id.

Similarly, here, the district court’s refusal to continue sentencing had

effective-assistance and due process ramifications. See id. Not only did defense

counsel express concerns about her ability to effectively represent Sharp if

sentencing took place that day, but also continuing sentencing would have

allowed for the investigation into the letter to conclude. If nothing else, a letter

from an alleged victim recanting her story might affect a district court’s sentencing

determination. And it certainly would have provided defense counsel an

37
argument to make on Sharp’s behalf. Instead, given the dichotomy between the

plea that was entered and the outstanding, potentially exculpatory letter, defense

counsel could argue only that Sharp

did take responsibility for what happened here. He did plead guilty.
He agreed that he would go to prison, 15 to life. That is not an easy
thing to do. And other than that, I don’t know what to tell you. He[]
accepted responsibility at the time of [the plea]. However, now he’s
saying he’s innocent . . . and there’s evidence to support that.

R.304. The district court’s refusal to continue sentencing forced defense counsel to

take an internally inconsistent position regarding mitigation and limited the

argument she could make on behalf of Sharp at sentencing.

Third, the district court abused its discretion by making factual findings, if

they are considered such, without first reviewing the letter and learning of its

authenticity, see supra Section I.C., which could have only happened if the court

had agreed to continue sentencing.

As a criminal defendant, Sharp should have been afforded various rights at

sentencing. “Fundamental principles of procedural fairness in sentencing require

that a defendant have the right to examine and challenge the accuracy and

reliability of the factual information upon which his sentence is based.” State v.

Gomez, 887 P.2d 853, 855 (Utah 1994). It is also “well settled that sentencing is a

critical stage in a criminal proceeding and that defendants have a right to counsel

38
during sentencing.” State v. Martinez, 925 P.2d 176, 178 (Utah Ct. App. 1996).

Furthermore, defendants have the right to “present any information in mitigation

of punishment” at sentencing. Utah R. Crim. P. 22. These are substantial rights.

And the district court’s refusal to continue sentencing prejudiced those rights. See

Taylor, 2005 UT 40, ¶ 8. 7

A continuance would have allowed the State to conclude its investigation

into the letter. Regardless of the results of that investigation, defense counsel

would have been able to make a clear argument at sentencing. She could have

argued that Sharp took responsibility for his crime by pleading guilty—a

7 It is unclear from Utah case law whether Sharp bears the burden of
demonstrating prejudice under the circumstances of this case. Cf. State v.
Alexander, 2012 UT 27, ¶ 46 n.84, 279 P.3d 371 (not reaching the question of whether
“the phrase ‘affect substantial rights’ is always synonymous with prejudice[e]” but
holding that no showing of prejudice was required for a rule 11 violation); State v.
Barber, 2009 UT App 91, ¶ 55, 206 P.3d 1223 (“where the right to be assisted by
counsel of one’s choice is wrongly denied, it is unnecessary to conduct an
ineffectiveness or prejudice inquiry” (cleaned up)); United States v. Doyle, 857 F.3d
1115, 1120 (11th Cir. 2017) (a defendant denied his right to allocution is “entitled
to a presumption of prejudice”); but see Chavez v. State, 2007 UT App 400U, para.5
(noting that the defendant could not show prejudice in denial of right to allocution
where he would have used allocution only to request to withdraw his plea, and
there were no grounds to so withdraw). Sharp nevertheless addresses prejudice in
case this Court concludes that such a showing is required.

39
circumstance considered to be mitigating for purposes of sentencing. See State v.

Galindo, 2017 UT App 117, ¶ 21, 402 P.3d 8; State v. McDaniel, 2015 UT App 135,

¶ 10, 351 P.3d 849. Or she could have argued that the alleged victim had

withdrawn her allegations against Sharp—which could also be considered in

mitigation. Clement v. State, No. 12-14-00204-CR, 2015 WL 5157520, at *2 (Tex. App.

Sept. 2, 2015) (suggesting that a statement from a victim recanting allegations, if

found to be authentic, could be used as mitigation evidence to reduce

punishment); State v. H.J.A., No. A-5592-12T3, 2014 WL 4232336, at *3 (N.J. Super.

Ct. App. Div. Aug. 28, 2014) (referencing defense counsel’s use of a victim’s

recantation as mitigation at sentencing); cf. State in Interest of R.W., 693 So. 2d 257,

258 (La. Ct. App. 1997) (affirming juvenile court’s conclusion that victim’s desire

to give defendants a second chance was good cause to dismiss a delinquency

petition).

Instead, defense counsel was forced to take an untenable position: that

Sharp had taken responsibility for his actions but also that the victim had recanted,

thereby showing that Sharp was factually innocent of the crime pled to. R.304.

Continuing sentencing and allowing the investigation into the letter to be

completed would have thus provided counsel with the ability to make a cohesive,

40
logical argument in support of Sharp. This would have been more favorable to

Sharp than the actual sentencing hearing ended up being. There was thus a

reasonable likelihood of a more favorable result if sentencing had been continued.

See State v. Richardson, 2009 UT App 40, ¶ 9, 204 P.3d 872 (“An error is harmful if

absent the error there is a reasonable likelihood of a more favorable outcome for

the defendant.” (cleaned up)).

Given all of this, the court’s decision to proceed with sentencing on the day

scheduled was unreasonable. And as is well established, “A trial court abuses its

discretion if it acts unreasonably.” State v. Whittle, 1999 UT 96, ¶ 20, 989 P.2d 52.

Denying a continuance of the time set for sentencing was therefore an abuse of

discretion.

III. The District Court Denied Sharp His Right to Allocution

Sharp’s sentence should be vacated for the additional reason that it was

imposed in violation of the right to allocution, rendering the sentence illegal. See

State v. Wanosik, 2003 UT 46, ¶ 18, 79 P.3d 937 (explaining that rule 22 codifies a

defendant’s right to allocution—“to make a statement in mitigation or explanation

after conviction but before sentencing”). While the district court offered Sharp the

41
right to speak in his own behalf, it limited defense counsel’s discussion of relevant

information that bore on mitigation.

A. This Issue Was Preserved

Defense counsel twice tried to speak on Defendant’s behalf at sentencing

and was denied the ability to do so—once for the district court to instead hear from

the prosecutor and once for defense counsel to physically move aside and be

replaced by the alleged victim’s mother. R.304, 306. By defense counsel attempting

to speak, she preserved this issue for the Court’s review. See In re Baby Girl T., 2012

UT 78, ¶ 34, 298 P.3d 1251 (explaining that to preserve an issue for appeal, the

party raising the issue must give the district court the opportunity to rule on the

issue).

The first time the district court refused to hear from defense counsel arose

in the context of the letter and the argument that Sharp was factually innocent.

R.304. After a mere six transcript lines of being able to speak on Sharp’s behalf,

defense counsel was interrupted by the district court asserting that it did not

“agree with the” idea that there was evidence to support a claim of innocence.

R.304. The court then says, “But go ahead, counselor,” and it is apparent from the

42
transcript that the counselor the court has turned the time over to is the prosecutor.

R.304.

The second limitation on defense counsel’s address to the court followed the

prosecutor’s statement in support of the requested sentence. The prosecutor

spends a page and a half in the transcript talking about the allegations in this case

before beginning to argue about the appropriate sentence. The district court stops

her to ask for more details: “Before we get to that, however, I’d like you to just to

make the record clear of the items that happened . . . . If you would, I mean, you

don’t have to be explicit, but if you wouldn’t mind explaining what Mr. Sharp

actually participated in with this young girl.” R.305–06. The prosecutor obliges,

provides additional details about the allegations against Sharp, and when she

finishes, defense counsel interjects, “Your Honor, I dispute some of those facts.”

R.306. Rather than allowing defense counsel to explain, the district court responds,

in its entirety: “If you wouldn’t mind—that’s fine. If you wouldn’t mind moving

off to the side there, and who was it that would like—Good morning, ma’am,” and

the district court’s focus is then on the alleged victim’s mother. R.306–07.

The contrast between the district court’s engagement with the State and its

witnesses on one hand, and defense counsel on the other, is stark. Pages 304

43
through 310 in the record are full of the district court listening to the prosecutor

and the alleged victim’s mother, asking them questions and prompting them for

more information, and addressing the victim directly. R.304–10. Those pages also

feature the two attempts by defense counsel, mentioned above, to present the court

with information on Sharp’s behalf and the court’s immediate dismissal of them.

Under these circumstances, defense counsel’s attempts to offer information

preserved the allocution issue. See State v. Sanchez, 2018 UT 31, ¶ 31, 422 P.3d 866

(discussing preservation and looking at whether trial counsel attempted to add an

argument to a list being compiled by the parties below); State v. Mills, 2012 UT App

367, ¶ 26, 293 P.3d 1129 (considering preservation and looking at whether

defendant attempted to raise an issue below); see also Utah R. Crim. P. 20 (“If a

party has no opportunity to object to a ruling or order, the absence of an objection

shall not thereafter prejudice the party.”).

B. Alternatively, Rule 22(e) Provides Relief

A sentence imposed in violation of a defendant’s right to allocution is illegal,

and a challenge to that sentence need not be preserved.

1. Recent amendments to rule 22(e) do not alter this Court’s

analysis of the issue

44
 This Court has construed the recently amended version of rule 22(e) to

apply as broadly as it did before its amendment when the rule applied simply to

correct an “illegal sentence.” See State v. Wynn, 2017 UT App 211, ¶ 13 n.2, 407 P.3d

1113. The rule’s six enumerated factors merely describe the circumstances this

Court and the Utah Supreme Court have previously held constitute an illegal

sentence. Id. (explaining regardless of which version of the rule applied, the

outcome would be the same because the court “would consider the same factors”);

State v. Yazzie, 2009 UT 14, ¶ 13, 203 P.3d 984 (adopting the definition of an illegal

sentence to be “one which is ambiguous with respect to the time and manner in

which it is to be served, is internally contradictory, omits a term required to be

imposed by statute, is uncertain as to the substance of the sentence, or is a sentence

which the judgment of conviction did not authorize”).

Distinction between errors reached under rule 22(e) and those that are not

is whether the error alleged rendered an illegal sentence or merely presents a “run-

of-the-mill” sentencing challenge. State v. Fairchild, 2016 UT App 205, ¶ 30, 385

P.3d 696. The errors asserted in Fairchild and rejected there as run-of-the-mill

included the sentencing court’s reliance on the misrepresentation of evidence by

the prosecutor, evidentiary discrepancies, and generalized as opposed to specific

45
facts. Id. While Fairchild made clear that rule 22(e) does not apply to run-of-the-

mill sentencing errors, it also made clear that the rule does apply to correct

“patently or manifestly illegal sentence[s].” Id. ¶ 29 (alteration in original) (citation

omitted).

A denial of the right to allocution is not “run-of-the-mill” but rather is

“patently or manifestly illegal.” See id. The district court imposed an illegal

sentence because it “failed to comply with the plain and unambiguous”

requirement that Sharp be given the opportunity to fully allocute. See State v. Dana,

2010 UT App 374, ¶ 7, 246 P.3d 756.

2. Denial of Sharp’s right to allocution renders his sentence

illegal

“Rule 22(a) codifies the common-law right of allocution, allowing a

defendant to make a statement in mitigation or explanation after conviction but

before sentencing.” State v. Wanosik, 2003 UT 46, ¶ 18, 79 P.3d 937 (citation

omitted). It says that “[b]efore imposing sentence the court must 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). Section 77-18-1 of the Utah Code further

reiterates the right of allocution, dictating: “At the time of sentence, the court shall

46
receive any testimony, evidence, or information the defendant or the prosecuting

attorney desires to present concerning the appropriate sentence. This testimony,

evidence, or information shall be presented in open court on record and in the

presence of the defendant.” Utah Code § 77-18-1(7) (Addendum B).

Compliance with the right to allocution requires the trial court to provide

“the defendant personally with an opportunity to address the court.” Wanosik,

2003 UT 46, ¶¶ 19, 23. Compliance also “requires that defense counsel be given an

opportunity to make a statement and present any information in mitigation of

punishment.” Id. (citation omitted). “Often the specific arguments of defense

counsel are critical in ensuring the court is presented with such information and

with some context in which to consider it.” Id. ¶ 19.

The right to allocution safeguards due process by “ensur[ing] that the judge

is provided with reasonably reliable and relevant information regarding

sentencing.” Id. (citing State v. Howell, 707 P.2d 115, 118 (Utah 1985) (“The due

process clause of Article 1, Section 7 of the Utah Constitution, requires that a

sentencing judge act on reasonably reliable and relevant information in exercising

discretion in fixing a sentence.”)). The right to allocution thus requires district

courts, at the time of sentencing, “to affirmatively provide the defense”—meaning

47
the defendant and his attorney—“an opportunity to address the court and present

reasonably reliable and relevant information in the mitigation of a sentence.” Id.

¶ 23.

A sentence imposed in violation of the right to allocution, as delineated in

rule 22(a) and section 77-18-1(6), is an illegal sentence that can be corrected under

rule 22(e). See State v. Candedo, 2010 UT 32, ¶ 14, 232 P.3d 1008; cf. State v. Telford,

2002 UT 51, ¶ 6, 48 P.3d 228. Further, a sentence that is imposed without the

opportunity for allocution, and thus in violation of due process, is a sentence

imposed in an illegal manner. See Utah R. Crim. P. 22(e) (Addendum B).

In this case, when the district court refused to hear from defense counsel, see

supra Section III.A., the district court denied Sharp—through defense counsel—the

right to allocution. The court refused to hear (1) what evidence supported Sharp’s

contention that he was factually innocent, or (2) what facts alleged by the

prosecutor were at issue. See supra Section III.A. The result was a district court that

had not fully heard from defense counsel and lacked information defense counsel

deemed to be relevant and reliable. Worse, the court relied on information defense

counsel deemed irrelevant and unreliable. Where the district court announced

48
Sharp’s sentence without honoring Sharp’s right to allocution, this Court should

vacate the sentence under rule 22(e) and remand for a new sentencing hearing.

C. Prejudice

This Court should reverse without requiring a showing of prejudice. See

generally State v. Udy, 2012 UT App 244, ¶ 29, 286 P.3d 345 (vacating defendant’s

sentence and remanding because the denial of defendant’s allocution right

rendered his sentence illegal, without considering prejudice).

But if this Court were to determine that Sharp is required to make a showing

of prejudice for the issue presented in Section III, see supra note 7, the error was

prejudicial for the same reasons set forth in Section II. Furthermore, the denial of

Sharp’s right to allocution prohibited defense counsel from making a record

disputing the underlying facts relied on by the district court in imposing sentence.

See R.304, 306. Where even at the time of sentencing there was a question as to

Sharp’s guilt, allowing development of the record on that point could have only

benefited Sharp, and not allowing it was therefore prejudicial. See Richardson, 2009

UT App 40, ¶ 9 (“An error is harmful if absent the error there is a reasonable

likelihood of a more favorable outcome for the defendant.” (cleaned up)).

49
 CONCLUSION

This Court should reverse Sharp's conviction with an order to grant Sharp's

motion to withdraw his guilty plea. This Court could also remand with

instructions to hold a new hearing on the motion to withdraw once investigation

into the letter is completed. Alternatively, this Court should vacate Sharp's

sentence and remand for a new sentencing hearing to be held after investigation

into the letter can be completed.

. r.fn
SUBMITTED this - ~- - day of December 2019.

WENDYM. BRiWN
Attorney for Defendant/Appellant

50
 CERTIFICATE OF COMPLIANCE

In compliance with the type-volume limitation of Utah R. App. P. 24(g)(l), I

certify that this brief contains 11,292 words, excluding the table of contents, table

of authorities, addenda, and certificates of compliance and delivery. In

compliance with the typeface requirements of Utah R. App. P. 27(b), I certify that

this brief has been prepared in a proportionally spaced font using Microsoft Word

2016 in Palantino Linotype 13 point.

In compliance with rule 21(g), Utah Rules of Appellate Procedure, and rule

4-202.09(9)(A), Utah Code of Judicial Administration, I certify that, upon

information and belief, all non-public information has been omitted from the

foregoing brief of defendant/appellant.

51
 CERTIFICATE OF DELIVERY

I, WENDY M. BROWN, hereby certify that I have caused to be hand-

delivered an original and five copies of the foregoing to the Utah Court of Appeals,

450 South State Street, 5th Floor, Salt Lake City, Utah 84114; and two copies to the

Utah Attorney General's Office, 160 East 300 South, 6th Floor, PO Box 140854, Salt

Lake City, Utah 84114, this _5-f'¥\ day of December 2019. A searchable pd£ will be

emailed to the Utah Court of Appeals at courtofappeals@utcourts.gov and to the

Utah Attorney General's Office at crirninalappeals@agutah.gov within 14 days,

pursuant to Utah Supreme Court Standing Order No. 8.

DELIVERED this _ _ day of December 2019.

52
ADDENDUM A
 The Order of the Court is stated below:
Dated: March 04, 2019 At the direction of:
10:59:18 AM /s/ MARK KOURIS
District Court Judge
by
/s/ REENA PARTOLA
District Court Clerk

3RD DISTRICT COURT - SALT LAKE

SALT LAKE COUNTY, STATE OF UTAH
______________________________________________________________________________________

STATE OF UTAH, : MINUTES

Plaintiff, : SENTENCE, JUDGMENT, COMMITMENT
:
vs. : Case No: 181900319 FS
BOBBIE JOE JR SHARP, : Judge: MARK KOURIS
Defendant. : Date: March 4, 2019
Custody: Salt Lake County Jail

______________________________________________________________________________________
PRESENT
Clerk: reenap
Prosecutor: KELLY, DONNA M
Defendant Present
The defendant is in the custody of the Salt Lake County Jail
Defendant's Attorney(s): BUGDEN, TAWNI H

DEFENDANT INFORMATION
Date of birth: December 23, 1957
Sheriff Office#: 405927
Audio
Tape Number: W48 Tape Count: 9:31;10:36

CHARGES
1. AGGRAVATED SEXUAL ABUSE OF A CHILD - 1st Degree Felony
Plea: Guilty - Disposition: 11/02/2018 Guilty
2. RAPE OF A CHILD - 1st Degree Felony
- Disposition: 11/02/2018 Dismissed w/ Prejudi
3. SODOMY ON A CHILD - 1st Degree Felony
- Disposition: 11/02/2018 Dismissed w/ Prejudi
4. SODOMY ON A CHILD - 1st Degree Felony
- Disposition: 11/02/2018 Dismissed w/ Prejudi
5. SODOMY ON A CHILD - 1st Degree Felony
- Disposition: 11/02/2018 Dismissed w/ Prejudi
6. SEX ABUSE OF A CHILD - 2nd Degree Felony
- Disposition: 11/02/2018 Dismissed w/ Prejudi
7. ENTICE SOLICIT SEDUCE OR LURE A MINOR BY INTERNET OR TEXT - 2nd Degree Felony

00239
Printed: 03/04/19 10:59:17 Page 1 of 4
Case No: 181900319 Date: Mar 04, 2019
______________________________________________________________________________________

- Disposition: 11/02/2018 Dismissed w/ Prejudi

HEARING

The above entitled case comes before the court for Sentencing.

9:34 AM: Ms. Bugden addresses the Court and informs the Court that she is not ready to
proceed with today's hearing.

Court responds.

10:36 AM: Ms. Bugden addresses the Court regarding proceedings.

10:41 AM: Court proceeds with Sentencing.

State addresses the Court.

10:44 AM: Victim's Mother addresses the Court.

10:47 AM: Court addresses Victim.

10:50 AM: Court addresses all parties.

SENTENCE PRISON
Based on the defendant's conviction of AGGRAVATED SEXUAL ABUSE OF A CHILD a 1st Degree
Felony, the defendant is sentenced to an indeterminate term of not less than fifteen
years and which may be life in the Utah State Prison.

COMMITMENT is to begin immediately.

To the SALT LAKE County Sheriff: The defendant is remanded to your custody for
transportation to the Utah State Prison where the defendant will be confined.

00240
Printed: 03/04/19 10:59:17 Page 2 of 4
Case No: 181900319 Date: Mar 04, 2019
______________________________________________________________________________________

SENTENCE RECOMMENDATION NOTE

Court recommends no release to parole on this matter.

ALSO KNOWN AS (AKA) NOTE

BOB SHARP

SENTENCE TRUST NOTE

Restitution is to remain open for the statutory period.

End Of Order - Signature at the Top of the First Page

Case No: 181900319 Date: Mar 04, 2019

00241
Printed: 03/04/19 10:59:17 Page 3 of 4
______________________________________________________________________________________

CERTIFICATE OF NOTIFICATION

I certify that a copy of the attached document was sent to the following people for
case 181900319 by the method and on the date specified.

EMAIL: PRISON RECORDS udc-records@utah.gov

03/04/2019 /s/ REENA PARTOLA

Date: ____________________ ______________________________

Deputy Court Clerk

00242
Printed: 03/04/19 10:59:17 Page 4 of 4
ADDENDUM B
Utah Code

Effective 5/14/2019
76-5-404.1 Sexual abuse of a child -- Aggravated sexual abuse of a child.
(1) As used in this section:
(a) "Adult" means an individual 18 years of age or older.
(b) "Child" means an individual under the age of 14.
(c) "Position of special trust" means:
(i) an adoptive parent;
(ii) an athletic manager who is an adult;
(iii) an aunt;
(iv) a babysitter;
(v) a coach;
(vi) a cohabitant of a parent if the cohabitant is an adult;
(vii) a counselor;
(viii) a doctor or physician;
(ix) an employer;
(x) a foster parent;
(xi) a grandparent;
(xii) a legal guardian;
(xiii) a natural parent;
(xiv) a recreational leader who is an adult;
(xv) a religious leader;
(xvi) a sibling or a stepsibling who is an adult;
(xvii) a scout leader who is an adult;
(xviii) a stepparent;
(xix) a teacher or any other individual employed by or volunteering at a public or private
elementary school or secondary school, and who is 18 years of age or older;
(xx) an instructor, professor, or teaching assistant at a public or private institution of higher
education;
(xxi) an uncle;
(xxii) a youth leader who is an adult; or
(xxiii) any individual in a position of authority, other than those individuals listed in Subsections
(1)(c)(i) through (xxiii), which enables the individual to exercise undue influence over the
child.
(2) An individual commits sexual abuse of a child if, under circumstances not amounting to rape
of a child, object rape of a child, sodomy on a child, or an attempt to commit any of these
offenses, the actor touches the anus, buttocks, pubic area, or genitalia of any child, the
breast of a female child, or otherwise takes indecent liberties with a child, with intent to cause
substantial emotional or bodily pain to any individual or with the intent to arouse or gratify the
sexual desire of any individual regardless of the sex of any participant.
(3) Sexual abuse of a child is a second degree felony.
(4) An individual commits aggravated sexual abuse of a child when in conjunction with the offense
described in Subsection (2) any of the following circumstances have been charged and
admitted or found true in the action for the offense:
(a) the offense was committed by the use of a dangerous weapon as defined in Section
76-1-601, or by force, duress, violence, intimidation, coercion, menace, or threat of harm, or
was committed during the course of a kidnapping;
(b) the accused caused bodily injury or severe psychological injury to the victim during or as a
result of the offense;

Page 1
Utah Code

(c) the accused was a stranger to the victim or made friends with the victim for the purpose of
committing the offense;
(d) the accused used, showed, or displayed pornography or caused the victim to be
photographed in a lewd condition during the course of the offense;
(e) the accused, prior to sentencing for this offense, was previously convicted of any sexual
offense;
(f) the accused committed the same or similar sexual act upon two or more victims at the same
time or during the same course of conduct;
(g) the accused committed, in Utah or elsewhere, more than five separate acts, which if
committed in Utah would constitute an offense described in this chapter, and were committed
at the same time, or during the same course of conduct, or before or after the instant offense;
(h) the offense was committed by an individual who occupied a position of special trust in relation
to the victim;
(i) the accused encouraged, aided, allowed, or benefitted from acts of prostitution or sexual acts
by the victim with any other individual, or sexual performance by the victim before any other
individual, human trafficking, or human smuggling; or
(j) the accused caused the penetration, however slight, of the genital or anal opening of the child
by any part or parts of the human body other than the genitals or mouth.
(5) Aggravated sexual abuse of a child is a first degree felony punishable by a term of
imprisonment of:
(a) except as provided in Subsection (5)(b), (5)(c), or (6), not less than 15 years and which may
be for life;
(b) except as provided in Subsection (5)(c) or (6), life without parole, if the trier of fact finds that
during the course of the commission of the aggravated sexual abuse of a child the defendant
caused serious bodily injury to another; or
(c) life without parole, if the trier of fact finds that at the time of the commission of the aggravated
sexual abuse of a child, the defendant was previously convicted of a grievous sexual offense.
(6) If, when imposing a sentence under Subsection (5)(a) or (b), a court finds that a lesser term
than the term described in Subsection (5)(a) or (b) is in the interests of justice and states the
reasons for this finding on the record, the court may impose a term of imprisonment of not less
than:
(a) for purposes of Subsection (5)(b), 15 years and which may be for life; or
(b) for purposes of Subsection (5)(a) or (b):
(i) 10 years and which may be for life; or
(ii) six years and which may be for life.
(7) The provisions of Subsection (6) do not apply when an individual is sentenced under
Subsection (5)(c).
(8) Subsections (5)(b) and (5)(c) do not apply if the defendant was younger than 18 years of age at
the time of the offense.
(9) Imprisonment under this section is mandatory in accordance with Section 76-3-406.

Amended by Chapter 146, 2019 General Session

Page 2
Utah Code

77-13-6 Withdrawal of plea.

(1) A plea of not guilty may be withdrawn at any time prior to conviction.
(2)
(a) A plea of guilty or no contest may be withdrawn only upon leave of the court and a showing
that it was not knowingly and voluntarily made.
(b) A request to withdraw a plea of guilty or no contest, except for a plea held in abeyance, shall
be made by motion before sentence is announced. Sentence may not be announced unless
the motion is denied. For a plea held in abeyance, a motion to withdraw the plea shall be
made within 30 days of pleading guilty or no contest.
(c) Any challenge to a guilty plea not made within the time period specified in Subsection (2)(b)
shall be pursued under Title 78B, Chapter 9, Postconviction Remedies Act, and Rule 65C,
Utah Rules of Civil Procedure.

Amended by Chapter 3, 2008 General Session

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Utah Code

Effective 5/14/2019
77-18-1 Suspension of sentence -- Pleas held in abeyance -- Probation -- Supervision
-- Presentence investigation -- Standards -- Confidentiality -- Terms and conditions --
Termination, revocation, modification, or extension -- Hearings -- Electronic monitoring.
(1) On a plea of guilty or no contest entered by a defendant in conjunction with a plea in abeyance
agreement, the court may hold the plea in abeyance as provided in Chapter 2a, Pleas in
Abeyance, and under the terms of the plea in abeyance agreement.
(2)
(a) On a plea of guilty, guilty with a mental illness, no contest, or conviction of any crime or
offense, the court may, after imposing sentence, suspend the execution of the sentence and
place the defendant:
(i) on probation under the supervision of the Department of Corrections except in cases of class
C misdemeanors or infractions;
(ii) on probation under the supervision of an agency of local government or with a private
organization; or
(iii) on court probation under the jurisdiction of the sentencing court.
(b)
(i) The legal custody of all probationers under the supervision of the department is with the
department.
(ii) The legal custody of all probationers under the jurisdiction of the sentencing court is vested
as ordered by the court.
(iii) The court has continuing jurisdiction over all probationers.
(iv) Court probation may include an administrative level of services, including notification to the
court of scheduled periodic reviews of the probationer's compliance with conditions.
(c) Supervised probation services provided by the department, an agency of local government, or
a private organization shall specifically address the offender's risk of reoffending as identified
by a validated risk and needs screening or assessment.
(3)
(a) The department shall establish supervision and presentence investigation standards for all
individuals referred to the department based on:
(i) the type of offense;
(ii) the results of a risk and needs assessment;
(iii) the demand for services;
(iv) the availability of agency resources;
(v) public safety; and
(vi) other criteria established by the department to determine what level of services shall be
provided.
(b) Proposed supervision and investigation standards shall be submitted to the Judicial Council
and the Board of Pardons and Parole on an annual basis for review and comment prior to
adoption by the department.
(c) The Judicial Council and the department shall establish procedures to implement the
supervision and investigation standards.
(d) The Judicial Council and the department shall annually consider modifications to the
standards based upon criteria in Subsection (3)(a) and other criteria as they consider
appropriate.
(e) The Judicial Council and the department shall annually prepare an impact report and submit it
to the appropriate legislative appropriations subcommittee.

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Utah Code

(4) Notwithstanding other provisions of law, the department is not required to supervise the
probation of an individual convicted of a class B or C misdemeanor or an infraction or to
conduct presentence investigation reports on a class C misdemeanor or infraction. However,
the department may supervise the probation of a class B misdemeanant in accordance with
department standards.
(5)
(a) Before the imposition of any sentence, the court may, with the concurrence of the defendant,
continue the date for the imposition of sentence for a reasonable period of time for the
purpose of obtaining a presentence investigation report from the department or information
from other sources about the defendant.
(b) The presentence investigation report shall include:
(i) a victim impact statement according to guidelines set in Section 77-38a-203 describing the
effect of the crime on the victim and the victim's family;
(ii) a specific statement of pecuniary damages, accompanied by a recommendation from
the department regarding the payment of restitution with interest by the defendant in
accordance with Chapter 38a, Crime Victims Restitution Act;
(iii) findings from any screening and any assessment of the offender conducted under Section
77-18-1.1;
(iv) recommendations for treatment of the offender; and
(v) the number of days since the commission of the offense that the offender has spent in the
custody of the jail and the number of days, if any, the offender was released to a supervised
release or alternative incarceration program under Section 17-22-5.5.
(c) The contents of the presentence investigation report are protected and are not available
except by court order for purposes of sentencing as provided by rule of the Judicial Council or
for use by the department.
(6)
(a) The department shall provide the presentence investigation report to the defendant's
attorney, or the defendant if not represented by counsel, the prosecutor, and the court for
review, three working days prior to sentencing. 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, and the judge may
grant an additional 10 working days to resolve the alleged inaccuracies of the report with the
department. If after 10 working days the inaccuracies cannot be resolved, the court shall
make a determination of relevance and accuracy on the record.
(b) If a party fails to challenge the accuracy of the presentence investigation report at the time of
sentencing, that matter shall be considered to be waived.
(7) At the time of sentence, the court shall receive any testimony, evidence, or information the
defendant or the prosecuting attorney desires to present concerning the appropriate sentence.
This testimony, evidence, or information shall be presented in open court on record and in the
presence of the defendant.
(8) While on probation, and as a condition of probation, the court may require that a defendant
perform any or all of the following:
(a) provide for the support of others for whose support the defendant is legally liable;
(b) participate in available treatment programs, including any treatment program in which the
defendant is currently participating, if the program is acceptable to the court;
(c) if on probation for a felony offense, serve a period of time, not to exceed one year, in a county
jail designated by the department, after considering any recommendation by the court as to
which jail the court finds most appropriate;

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(d) serve a term of home confinement, which may include the use of electronic monitoring;
(e) participate in compensatory service restitution programs, including the compensatory service
program provided in Section 76-6-107.1;
(f) pay for the costs of investigation, probation, and treatment services;
(g) make restitution or reparation to the victim or victims with interest in accordance with Chapter
38a, Crime Victims Restitution Act; and
(h) comply with other terms and conditions the court considers appropriate to ensure public
safety or increase a defendant's likelihood of success on probation.
(9) The department shall collect and disburse the accounts receivable as defined by Section
77-32a-101, with interest and any other costs assessed under Section 64-13-21 during:
(a) the parole period and any extension of that period in accordance with Subsection 77-27-6(4);
and
(b) the probation period in cases for which the court orders supervised probation and any
extension of that period by the department in accordance with Subsection (10).
(10)
(a)
(i) Except as provided in Subsection (10)(a)(ii), probation of an individual placed on probation
after December 31, 2018:
(A) may not exceed the individual's maximum sentence;
(B) shall be for a period of time that is in accordance with the supervision length guidelines
established by the Utah Sentencing Commission under Section 63M-7-404, to the extent
the guidelines are consistent with the requirements of the law; and
(C) shall be terminated in accordance with the supervision length guidelines established by
the Utah Sentencing Commission under Section 63M-7-404, to the extent the guidelines
are consistent with the requirements of the law.
(ii) Probation of an individual placed on probation after December 31, 2018, whose maximum
sentence is one year or less may not exceed 36 months.
(iii) Probation of an individual placed on probation on or after October 1, 2015, but before
January 1, 2019, may be terminated at any time at the discretion of the court or upon
completion without violation of 36 months probation in felony or class A misdemeanor
cases, 12 months in cases of class B or C misdemeanors or infractions, or as allowed
pursuant to Section 64-13-21 regarding earned credits.
(b)
(i) If, upon expiration or termination of the probation period under Subsection (10)(a), there
remains an unpaid balance upon the accounts receivable as defined in Section 77-32a-101,
the court may retain jurisdiction of the case and continue the defendant on bench probation
for the limited purpose of enforcing the payment of the account receivable. If the court
retains jurisdiction for this limited purpose, the court may order the defendant to pay to the
court the costs associated with continued probation under this Subsection (10).
(ii) In accordance with Section 77-18-6, the court shall record in the registry of civil judgments
any unpaid balance not already recorded and immediately transfer responsibility to collect
the account to the Office of State Debt Collection.
(iii) Upon motion of the Office of State Debt Collection, prosecutor, victim, or upon its own
motion, the court may require the defendant to show cause why the defendant's failure to
pay should not be treated as contempt of court.
(c)

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(i) The department shall notify the court, the Office of State Debt Collection, and the
prosecuting attorney in writing in advance in all cases when termination of supervised
probation is being requested by the department or will occur by law.
(ii) The notification shall include a probation progress report and complete report of details on
outstanding accounts receivable.
(11)
(a)
(i) Any time served by a probationer outside of confinement after having been charged with a
probation violation and prior to a hearing to revoke probation does not constitute service
of time toward the total probation term unless the probationer is exonerated at a hearing to
revoke the probation.
(ii) Any time served in confinement awaiting a hearing or decision concerning revocation of
probation does not constitute service of time toward the total probation term unless the
probationer is exonerated at the hearing.
(iii) Any time served in confinement awaiting a hearing or decision concerning revocation of
probation constitutes service of time toward a term of incarceration imposed as a result of
the revocation of probation or a graduated sanction imposed under Section 63M-7-404.
(b) The running of the probation period is tolled upon the filing of a violation report with the court
alleging a violation of the terms and conditions of probation or upon the issuance of an order
to show cause or warrant by the court.
(12)
(a)
(i) Probation may be modified as is consistent with the supervision length guidelines and the
graduated sanctions and incentives developed by the Utah Sentencing Commission under
Section 63M-7-404.
(ii) The length of probation may not be extended, except upon waiver of a hearing by the
probationer or upon a hearing and a finding in court that the probationer has violated the
conditions of probation.
(iii) Probation may not be revoked except upon a hearing in court and a finding that the
conditions of probation have been violated.
(b)
(i) Upon the filing of an affidavit, or an unsworn written declaration executed in substantial
compliance with Section 78B-5-705, alleging with particularity facts asserted to constitute
violation of the conditions of probation, the court shall determine if the affidavit or unsworn
written declaration establishes probable cause to believe that revocation, modification, or
extension of probation is justified.
(ii) If the court determines there is probable cause, it shall cause to be served on the defendant
a warrant for the defendant's arrest or a copy of the affidavit or unsworn written declaration
and an order to show cause why the defendant's probation should not be revoked, modified,
or extended.
(c)
(i) The order to show cause shall specify a time and place for the hearing and shall be served
upon the defendant at least five days prior to the hearing.
(ii) The defendant shall show good cause for a continuance.
(iii) The order to show cause shall inform the defendant of a right to be represented by counsel
at the hearing and to have counsel appointed if the defendant is indigent.
(iv) The order shall also inform the defendant of a right to present evidence.
(d)

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(i) At the hearing, the defendant shall admit or deny the allegations of the affidavit or unsworn
written declaration.
(ii) If the defendant denies the allegations of the affidavit or unsworn written declaration, the
prosecuting attorney shall present evidence on the allegations.
(iii) The persons who have given adverse information on which the allegations are based shall
be presented as witnesses subject to questioning by the defendant unless the court for
good cause otherwise orders.
(iv) The defendant may call witnesses, appear and speak in the defendant's own behalf, and
present evidence.
(e)
(i) After the hearing the court shall make findings of fact.
(ii) Upon a finding that the defendant violated the conditions of probation, the court may order
the probation revoked, modified, continued, or reinstated for all or a portion of the original
term of probation.
(iii)
(A) Except as provided in Subsection (10)(a)(ii), the court may not require a defendant
to remain on probation for a period of time that exceeds the length of the defendant's
maximum sentence.
(B) Except as provided in Subsection (10)(a)(ii), if a defendant's probation is revoked and later
reinstated, the total time of all periods of probation the defendant serves, relating to the
same sentence, may not exceed the defendant's maximum sentence.
(iv) If a period of incarceration is imposed for a violation, the defendant shall be sentenced
within the guidelines established by the Utah Sentencing Commission pursuant to
Subsection 63M-7-404(4), unless the judge determines that:
(A) the defendant needs substance abuse or mental health treatment, as determined by a
validated risk and needs screening and assessment, that warrants treatment services that
are immediately available in the community; or
(B) the sentence previously imposed shall be executed.
(v) If the defendant had, prior to the imposition of a term of incarceration or the execution
of the previously imposed sentence under this Subsection (12), served time in jail as a
condition of probation or due to a violation of probation under Subsection (12)(e)(iv), the
time the probationer served in jail constitutes service of time toward the sentence previously
imposed.
(13) The court may order the defendant to commit the defendant to the custody of the Division of
Substance Abuse and Mental Health for treatment at the Utah State Hospital as a condition of
probation or stay of sentence, only after the superintendent of the Utah State Hospital or the
superintendent's designee has certified to the court that:
(a) the defendant is appropriate for and can benefit from treatment at the state hospital;
(b) treatment space at the hospital is available for the defendant; and
(c) individuals described in Subsection 62A-15-610(2)(g) are receiving priority for treatment over
the defendants described in this Subsection (13).
(14) Presentence investigation reports are classified protected in accordance with Title 63G,
Chapter 2, Government Records Access and Management Act. Notwithstanding Sections
63G-2-403 and 63G-2-404, the State Records Committee may not order the disclosure of a
presentence investigation report. Except for disclosure at the time of sentencing pursuant to
this section, the department may disclose the presentence investigation only when:
(a) ordered by the court pursuant to Subsection 63G-2-202(7);

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(b) requested by a law enforcement agency or other agency approved by the department for
purposes of supervision, confinement, and treatment of the offender;
(c) requested by the Board of Pardons and Parole;
(d) requested by the subject of the presentence investigation report or the subject's authorized
representative;
(e) requested by the victim of the crime discussed in the presentence investigation report or the
victim's authorized representative, provided that the disclosure to the victim shall include only
information relating to statements or materials provided by the victim, to the circumstances of
the crime including statements by the defendant, or to the impact of the crime on the victim or
the victim's household; or
(f) requested by a sex offender treatment provider who is certified to provide treatment under the
program established in Subsection 64-13-25(3) and who, at the time of the request:
(i) is providing sex offender treatment to the offender who is the subject of the presentence
investigation report; and
(ii) provides written assurance to the department that the report:
(A) is necessary for the treatment of the offender;
(B) will be used solely for the treatment of the offender; and
(C) will not be disclosed to an individual or entity other than the offender.
(15)
(a) The court shall consider home confinement as a condition of probation under the supervision
of the department, except as provided in Sections 76-3-406 and 76-5-406.5.
(b) The department shall establish procedures and standards for home confinement, including
electronic monitoring, for all individuals referred to the department in accordance with
Subsection (16).
(16)
(a) If the court places the defendant on probation under this section, it may order the defendant
to participate in home confinement through the use of electronic monitoring as described in
this section until further order of the court.
(b) The electronic monitoring shall alert the department and the appropriate law enforcement unit
of the defendant's whereabouts.
(c) The electronic monitoring device shall be used under conditions which require:
(i) the defendant to wear an electronic monitoring device at all times; and
(ii) that a device be placed in the home of the defendant, so that the defendant's compliance
with the court's order may be monitored.
(d) If a court orders a defendant to participate in home confinement through electronic monitoring
as a condition of probation under this section, it shall:
(i) place the defendant on probation under the supervision of the Department of Corrections;
(ii) order the department to place an electronic monitoring device on the defendant and install
electronic monitoring equipment in the residence of the defendant; and
(iii) order the defendant to pay the costs associated with home confinement to the department
or the program provider.
(e) The department shall pay the costs of home confinement through electronic monitoring only
for an individual who is determined to be indigent by the court.
(f) The department may provide the electronic monitoring described in this section either directly
or by contract with a private provider.

Amended by Chapter 28, 2019 General Session

Amended by Chapter 429, 2019 General Session

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78B-9-401.5 Definitions.
As used in this part:
(1) "Bona fide and compelling issue of factual innocence" means that the newly discovered
material evidence presented by the petitioner, if credible, would clearly establish the factual
innocence of the petitioner.
(2) "Factual innocence" or "factually innocent" means a person did not:
(a) engage in the conduct for which the person was convicted;
(b) engage in conduct relating to any lesser included offenses of the crime for which the person
was convicted; or
(c) commit any other felony arising out of or reasonably connected to the facts supporting the
indictment or information upon which the person was convicted.
(3) "Newly discovered material evidence" means evidence that was not available to the petitioner
at trial or during the resolution on the merits by the trial court of any motion to withdraw a guilty
plea or motion for new trial and which is relevant to the determination of the issue of factual
innocence, and may also include:
(a) evidence which was discovered prior to or in the course of any appeal or postconviction
proceedings that served in whole or in part as the basis for vacatur or reversal of the
conviction of petitioner; or
(b) evidence that supports the claims within a petition filed under Part 1, General Provisions,
which is pending at the time of the court's determination of factual innocence.
(4) "Period of incarceration" means any sentence of imprisonment, including jail, which was served
after judgement of conviction.

Enacted by Chapter 153, 2010 General Session

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Utah Code

78B-9-402 Petition for determination of factual innocence -- Sufficient allegations --

Notification of victim -- Payment to surviving spouse.
(1) A person who has been convicted of a felony offense may petition the district court in the
county in which the person was convicted for a hearing to establish that the person is factually
innocent of the crime or crimes of which the person was convicted.
(2)
(a) The petition shall contain an assertion of factual innocence under oath by the petitioner and
shall aver, with supporting affidavits or other credible documents, that:
(i) newly discovered material evidence exists that, if credible, establishes that the petitioner is
factually innocent;
(ii) the specific evidence identified by the petitioner in the petition establishes innocence;
(iii) the material evidence is not merely cumulative of evidence that was known;
(iv) the material evidence is not merely impeachment evidence; and
(v) viewed with all the other evidence, the newly discovered evidence demonstrates that the
petitioner is factually innocent.
(b) The court shall review the petition in accordance with the procedures in Subsection (9)(b),
and make a finding that the petition has satisfied the requirements of Subsection (2)(a). If
the court finds the petition does not meet all the requirements of Subsection (2)(a), it shall
dismiss the petition without prejudice and send notice of the dismissal to the petitioner and
the attorney general.
(3)
(a) The petition shall also contain an averment that:
(i) neither the petitioner nor the petitioner's counsel knew of the evidence at the time of trial
or sentencing or in time to include the evidence in any previously filed post-trial motion or
postconviction motion, and the evidence could not have been discovered by the petitioner or
the petitioner's counsel through the exercise of reasonable diligence; or
(ii) a court has found ineffective assistance of counsel for failing to exercise reasonable
diligence in uncovering the evidence.
(b) Upon entry of a finding that the petition is sufficient under Subsection (2)(a), the court shall
then review the petition to determine if Subsection (3)(a) has been satisfied. If the court finds
that the requirements of Subsection (3)(a) have not been satisfied, it may dismiss the petition
without prejudice and give notice to the petitioner and the attorney general of the dismissal,
or the court may waive the requirements of Subsection (3)(a) if the court finds the petition
should proceed to hearing based upon the strength of the petition, and that there is other
evidence that could have been discovered through the exercise of reasonable diligence by
the petitioner or the petitioner's counsel at trial, and the other evidence:
(i) was not discovered by the petitioner or the petitioner's counsel;
(ii) is material upon the issue of factual innocence; and
(iii) has never been presented to a court.
(4) If the conviction for which the petitioner asserts factual innocence was based upon a plea of
guilty, the petition shall contain the specific nature and content of the evidence that establishes
factual innocence. The court shall review the evidence and may dismiss the petition at any
time in the course of the proceedings, if the court finds that the evidence of factual innocence
relies solely upon the recantation of testimony or prior statements made by a witness against
the petitioner, and the recantation appears to the court to be equivocal or selfserving.
(5) A person who has already obtained postconviction relief that vacated or reversed the person's
conviction or sentence may also file a petition under this part in the same manner and form as
described above, if no retrial or appeal regarding this offense is pending.

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Utah Code

(6) If some or all of the evidence alleged to be exonerating is biological evidence subject to DNA
testing, the petitioner shall seek DNA testing pursuant to Section 78B-9-301.
(7) Except as provided in Subsection (9), the petition and all subsequent proceedings shall be in
compliance with and governed by Rule 65C, Utah Rules of Civil Procedure, and shall include
the underlying criminal case number.
(8) After a petition is filed under this section, prosecutors, law enforcement officers, and crime
laboratory personnel shall cooperate in preserving evidence and in determining the sufficiency
of the chain of custody of the evidence which is the subject of the petition.
(9)
(a) A person who files a petition under this section shall serve notice of the petition and a copy of
the petition upon the office of the prosecutor who obtained the conviction and upon the Utah
attorney general.
(b) The assigned judge shall conduct an initial review of the petition. If it is apparent to the court
that the petitioner is either merely relitigating facts, issues, or evidence presented in previous
proceedings or presenting issues that appear frivolous or speculative on their face, the court
shall dismiss the petition, state the basis for the dismissal, and serve notice of dismissal
upon the petitioner and the attorney general. If, upon completion of the initial review, the
court does not dismiss the petition, it shall order the attorney general to file a response to the
petition. The attorney general shall, within 30 days after receipt of the court's order, or within
any additional period of time the court allows, answer or otherwise respond to all proceedings
initiated under this part.
(c) After the time for response by the attorney general under Subsection (9)(b) has passed, the
court shall order a hearing if it finds the petition meets the requirements of Subsections (2)
and (3) and finds there is a bona fide and compelling issue of factual innocence regarding the
charges of which the petitioner was convicted. No bona fide and compelling issue of factual
innocence exists if the petitioner is merely relitigating facts, issues, or evidence presented
in a previous proceeding or if the petitioner is unable to identify with sufficient specificity the
nature and reliability of the newly discovered evidence that establishes the petitioner's factual
innocence.
(d) If the parties stipulate that the evidence establishes that the petitioner is factually innocent,
the court may find the petitioner is factually innocent without holding a hearing. If the state
will not stipulate that the evidence establishes that the petitioner is factually innocent, no
determination of factual innocence may be made by the court without first holding a hearing
under this part.
(10) The court may not grant a petition for a hearing under this part during the period in which
criminal proceedings in the matter are pending before any trial or appellate court, unless
stipulated to by the parties.
(11) Any victim of a crime that is the subject of a petition under this part, and who has elected to
receive notice under Section 77-38-3, shall be notified by the state's attorney of any hearing
regarding the petition.
(12) A petition to determine factual innocence under this part, or Part 3, Postconviction Testing of
DNA, shall be filed separately from any petition for postconviction relief under Part 1, General
Provisions. Separate petitions may be filed simultaneously in the same court.
(13) The procedures governing the filing and adjudication of a petition to determine factual
innocence apply to all petitions currently filed or pending in the district court and any new
petitions filed on or after June 1, 2012.
(14)
(a) As used in this Subsection (14) and in Subsection (15):

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(i) "Married" means the legal marital relationship established between a man and a woman and
as recognized by the laws of this state; and
(ii) "Spouse" means a person married to the petitioner at the time the petitioner was found guilty
of the offense regarding which a petition is filed and who has since then been continuously
married to the petitioner until the petitioner's death.
(b) A claim for determination of factual innocence under this part is not extinguished upon the
death of the petitioner.
(c) If any payments are already being made to the petitioner under this part at the time of
the death of the petitioner, or if the finding of factual innocence occurs after the death of
the petitioner, the payments due under Section 78B-9-405 shall be paid according to the
schedule under Section 78B-9-405 to the petitioner's surviving spouse. Payments cease upon
the death of the spouse.
(15) The spouse under Subsection (14) forfeits all rights to receive any payment under this part if
the spouse is charged with a homicide established by a preponderance of the evidence that
meets the elements of any felony homicide offense in Title 76, Chapter 5, Offenses Against
the Person, except automobile homicide, applying the same principles of culpability and
defenses as in Title 76, Utah Criminal Code, including Title 76, Chapter 2, Principles of Criminal
Responsibility.

Amended by Chapter 46, 2013 General Session

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Rule 22. Sentence, judgment and commitment.

(a) Time for sentencing. Upon the entry of a plea or verdict of guilty or plea of no contest, the court must set a time for
imposing sentence which may be not less than two nor more than 45 days after the verdict or plea, unless the court, with the
concurrence of the defendant, otherwise orders. Pending sentence, the court may commit the defendant or may continue or
alter bail or recognizance. Before imposing sentence the court must 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.
The prosecuting attorney must also be given an opportunity to present any information material to the imposition of sentence.

(b) Defendant’s absence. On the same grounds that a defendant may be tried in defendant's absence, defendant may
likewise be sentenced in defendant's absence. If a defendant fails to appear for sentence, a warrant for defendant's arrest may
be issued by the court.

(c) Sentencing advisories.

(c)(1) Upon a verdict or plea of guilty or plea of no contest, the court must impose sentence and must enter a judgment of
conviction which must include the plea or the verdict, if any, and the sentence. Following imposition of sentence, the court
must advise the defendant of defendant's right to appeal, the time within which any appeal must be filed and the right to
retain counsel or have counsel appointed by the court if indigent.

(c)(2) If the defendant is convicted of a misdemeanor crime of domestic violence, as defined in Utah Code § 77-36-1, the
court must advise the defendant orally or in writing that, if the case meets the criteria of 18 U.S.C. § 921(a)(33) or Utah Code
§ 76-10-503, then pursuant to federal law or state law it is unlawful for the defendant to possess, receive or transport any
firearm or ammunition. The failure to advise does not render the plea invalid or form the basis for withdrawal of the plea.

(d) Commitment. When a jail or prison sentence is imposed, the court must issue its commitment setting forth the sentence.
The officer delivering the defendant to the jail or prison must deliver a true copy of the commitment to the jail or prison and
must make the officer's return on the commitment and file it with the court.

(e) Correcting a sentence.

(e)(1) Types of sentences. The court must correct a sentence when the sentenced imposed:

(e)(1)(A) exceeds the statutorily authorized maximums;

(e)(1)(B) is less than statutorily required minimums;

(e)(1)(C) violates Double Jeopardy;

(e)(1)(D) is ambiguous as to the time and manner in which it is to be served;

(e)(1)(E) is internally contradictory; or

(e)(1)(F) omits a condition required by statute or includes a condition prohibited by statute.

(e)(2) Post-sentence appellate decisions. The court must correct the sentence of a defendant who can prove that the sentence
is unconstitutional under a rule established or ruling issued by the United States Supreme Court, the Utah Supreme Court, or
the Utah Court of Appeals after sentence was imposed, and the rule or ruling was not dictated by precedent existing at the
time the defendant’s conviction or sentence became final.

(e)(3) Time for filing. A motion under (e)(1)(C), (e)(1)(D), or (e)(1)(E) must be filed no later than one year from the date the
facts supporting the claim could have been discovered through the exercise of due diligence. A motion under the other
provisions may be filed at any time.

(f) Sentencing and mentally ill offenders. Upon a verdict or plea of guilty and mentally ill, the court must impose sentence
in accordance with Title 77, Chapter 16a, Utah Code. If the court retains jurisdiction over a mentally ill offender committed
to the Department of Human Services as provided by Utah Code § 77-16a-202(1)(b), the court must so specify in the
sentencing order.
Effective July 1, 2019

Committee Note
A defendant may rely on subparagraph (e)(2) only when the rule or ruling is to be applied retroactively.
ADDENDUM C
 THIRD JUDICIAL DISTRICT COURT
FOR SALT LAKE COUNTY, STATE OF UTAH
____________________________________
)
STATE OF UTAH, )
)
)
PLAINTIFF, )
) Case No. 181900319
VS. )
) Transcript of:
BOBBIE JOE SHARP, JR., )
) MOTION TO WITHDRAW PLEA
)
DEFENDANT. )
____________________________________)

BEFORE THE HONORABLE MARK KOURIS

SCOTT M. MATHESON COURTHOUSE

450 SOUTH STATE STREET
SALT LAKE CITY, UTAH 84111

JANUARY 22, 2019

TRANSCRIBED BY: Susan S. Sprouse, RPR, CSR

Noteworthy Reporting, LLC (801) 634-5549

00286
1 A P P E A R A N C E S
2 FOR THE PLAINTIFF:
3 Donna M. Kelly
SALT LAKE COUNTY DISTRICT ATTORNEY'S OFFICE
4 35 East 500 South
Salt Lake City, Utah 84111
5
FOR THE DEFENDANT:
6
Tawni H. Bugden
7 SALT LAKE LEGAL DEFENDER ASSOCIATION
424 East 500 South
8 Salt Lake City, Utah 84111
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Noteworthy Reporting, LLC (801) 634-5549 2

00287
1 January 22, 2019
2 P R O C E E D I N G S
3 * * *
4 THE COURT: Let's call the case of the State of Utah
5 vs. Mr. Bobbie Joe Sharp. Good afternoon, Mr. Sharp.
6 MR. SHARP: Okay.
7 THE COURT: This is Mr. Sharp's Motion to Withdraw
8 his plea. Is there anything that you'd like to add to that,
9 Mr. Sharp?
10 THE DEFENDANT: Well --
11 MS. BUGDEN: Your Honor, there is something that the
12 court should be made aware of. There was a letter that was
13 intercepted at the jail. It was written to my client. It is
14 purportedly from the victim in this case. And it is an
15 exculpatory letter basically, which I believe would, if it is
16 verified as being from the victim, would be another basis to
17 withdraw his plea. This was just recently brought to my
18 attention.
19 THE COURT: You don't have the letter with you?
20 MS. BUGDEN: The State has the letter, and I have it
21 on -- I have an electronic copy.
22 THE COURT: Oh. Okay.
23 MS. KELLY: We have asked Unified Police Department
24 to investigate. We believe it's a forgery.
25 THE COURT: Okay.

Noteworthy Reporting, LLC (801) 634-5549 3

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1 MS. KELLY: And we don't have any word for them yet
2 on the status of that investigation.
3 THE COURT: Okay. Well, let's do this then. Let's
4 handle the original motion to withdraw. And during that
5 investigation then we can figure out where that letter came
6 from.
7 What is the basis, Mr. Sharp, that you want to
8 withdraw your plea?
9 MR. SHARP: Well, for one, I misunderstood you at the
10 last hearing when you said I had something like 45 days to do
11 something. I misinterpreted that. You meant I had, like, 45
12 days to withdraw my guilty plea and just go to trial.
13 THE COURT: That's not what I said, though. Right?
14 MR. SHARP: Pardon me?
15 THE COURT: That's not what I said, obviously. Is
16 there anything else that you -- is there any other reason that
17 you -- you think that you can withdraw the plea at this time?
18 MR. SHARP: Well, one, another one is I talked to my
19 family here, and I was talking to my family outside of Utah,
20 and they all think that I should let Ms. Bugden go and bring on
21 another attorney to represent me.
22 THE COURT: You plan to hire an attorney then? You
23 have the money to hire one?
24 MR. SHARP: No, I don't.
25 THE COURT: Well, where are you going to bring one on

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1 from then?
2 MR. SHARP: Because I was told by somebody from her
3 office that I can hire -- I can let her go and bring on
4 somebody else.
5 THE COURT: Well, that -- that's not true. Your
6 response to these things would be what?
7 MS. KELLY: There's -- there's been no basis for --
8 shown by the Defense for why his plea should be allowed to be
9 withdrawn. His letter just says he wants to cancel it. He's
10 changed his mind, basically.
11 And there's a written police statement in the file
12 and the Court -- you know, I got a copy of the colloquy with
13 Mr. Sharp when he entered his plea. Rule 11 and his rights was
14 complied with and his rights were explained to him. So there's
15 no basis to withdraw the plea.
16 THE COURT: All right. Well, Mr. Sharp, I find that
17 your plea was entered knowingly and voluntarily. I find that
18 the Rule 11 colloquy was given in its entirety by reference to
19 the actual plea form itself, which your attorney went over with
20 you, and I see no other possible reason, no other basis
21 possible, that -- that, in fact, your plea could be withdrawn.
22 What I'm going to do, is I'm going to schedule a
23 sentencing. They're going to be down to visit with you in the
24 jail. You'll need to talk to them. For May -- I'm sorry March
25 4th at 8:30. They'll prepare a presentence report. They'll

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1 come back here. And I'll get something from the prosecution
2 talking about the letter that was allegedly intercepted, and
3 we'll see what the investigator has to say about that. And if
4 -- if I'm thinking -- well, based on what happens there,
5 obviously, that will make our determination as to whether we're
6 going to go forward or not.
7 So we'll plan on seeing you back here on the 4th.
8 Okay?
9 MS. SHARP: Okay. Now I already had AP&P come and
10 see me.
11 I already had AP&P come and see me once.
12 MS. BUGDEN: He states that AP&P should have come --
13 that they did come and see him. I asked that sentencing be
14 postponed so that wouldn't happen.
15 THE COURT: I'm sorry?
16 MS. BUGDEN: AP&P has already come to see him.
17 THE COURT: I didn't think he talked to them, though.
18 MR. SHARP: Yeah. They did. They came and seen me.
19 And I told them that --
20 THE COURT: Well, we're going to do another referral.
21 So if they have all the information they have, they won't need
22 to come and talk to you. If they need information, they'll
23 come and talk to you. Okay?
24 MR. SHARP: Okay.
25 THE COURT: All right. Good luck to you.

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1 MS. BUGDEN: Your Honor, that's all I have before
2 you.
3 THE COURT: Thank you.
4 MS. BUGDEN: Thank you.
5 (Proceedings were concluded.)
6
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1 C E R T I F I C A T E
2 STATE OF UTAH )
) SS
3 COUNTY OF UTAH )
4
5 I, Susan S. Sprouse, a Certified Shorthand Reporter
6 in and for the State of Utah, do hereby certify that I received
7 the audio recording in the above-entitled matter, and that I
8 transcribed it into typewriting and that a full, true and
9 correct transcription of said audio recording so recorded and
10 transcribed is set forth in the foregoing pages, inclusive
11 except where it is indicated that the tape recording was
12 inaudible.
13
14 DATED this 18th day of May, 2019.
15
16 Susan S. Sprouse
_______________________________________
17 SUSAN S. SPROUSE, RPR, CSR
LICENSE NO. 5965543-7801
18
19
20
21
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25

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 before [2] 1/12 7/1 forward [1] 6/6
being [1] 3/16 full [1] 8/8
MR. SHARP: [8]
believe [2] 3/15 3/24
MS. BUGDEN: [6] G
BOBBIE [2] 1/7 3/5
MS. KELLY: [3]
bring [3] get [1] 6/1
MS. SHARP: [1] 6/8
brought [1] 3/17 given [1] 5/18
THE COURT: [17]
Bugden [2] 2/6 4/20 go [4]
THE DEFENDANT: [1] 3/9
going [6]
1 C Good [2] 3/5 6/25
call [1] 3/4 got [1] 5/12
11 [2] 5/13 5/18
came [2] 4/5 6/18 guilty [1] 4/12
181900319 [1] 1/6
can [4]
18th [1] 8/14 H
cancel [1] 5/9
2 case [3] had [4]
Certified [1] 8/5 handle [1] 4/4
2019 [3]
certify [1] 8/6 happen [1] 6/14
22 [2] 1/18 3/1
changed [1] 5/10 happens [1] 6/4
3 CITY [3] has [3]
35 [1] 2/4 client [1] 3/13 have [10]
colloquy [2] 5/12 5/18 he [4]
4 come [8] He's [1] 5/9
424 [1] 2/7 complied [1] 5/14 hearing [1] 4/10
45 [2] 4/10 4/11 concluded [1] 7/5 her [2] 5/2 5/3
450 [1] 1/15 copy [2] 3/21 5/12 here [3]
4th [2] 5/25 6/7 correct [1] 8/9 hereby [1] 8/6
could [1] 5/21 him [3]
5 COUNTY [3] hire [3]
500 [2] 2/4 2/7 court [3] his [8]
5965543-7801 [1] 8/17 COURTHOUSE [1] 1/14 Honor [2] 3/11 7/1
CSR [2] 1/22 8/17 HONORABLE [1] 1/12
7
D I
7801 [1] 8/17
DATED [1] 8/14 I'll [1] 6/1
8 day [1] 8/14 I'm [5]
84111 [3] days [2] 4/10 4/12 inaudible [1] 8/12
8:30 [1] 5/25 DEFENDANT [2] 1/9 2/5 inclusive [1] 8/10
DEFENDER [1] 2/7 indicated [1] 8/11
A Defense [1] 5/8 information [2] 6/21 6/22
about [2] 6/2 6/3 Department [1] 3/23 intercepted [2] 3/13 6/2
above [1] 8/7 determination [1] 6/5 investigate [1] 3/24
above-entitled [1] 8/7 did [2] 6/13 6/18 investigation [2] 4/2 4/5
actual [1] 5/19 didn't [1] 6/17 investigator [1] 6/3
add [1] 3/8 DISTRICT [2] 1/1 2/3 is [13]
afternoon [1] 3/5 do [5] it [8]
all [5] don't [3] it's [1] 3/24
allegedly [1] 6/2 Donna [1] 2/3 its [1] 5/18
allowed [1] 5/8 down [1] 5/23 itself [1] 5/19
already [3] during [1] 4/4
J
another [4]
any [2] 4/1 4/16
E jail [2] 3/13 5/24
anything [2] 3/8 4/16 East [2] 2/4 2/7 JANUARY [2] 1/18 3/1
AP [4] electronic [1] 3/21 JOE [2] 1/7 3/5
are [1] 4/25 else [2] 4/16 5/4 JR [1] 1/7
as [2] 3/16 6/5 entered [2] 5/13 5/17 JUDICIAL [1] 1/1
asked [2] 3/23 6/13 entirety [1] 5/18 just [3]
ASSOCIATION [1] 2/7 entitled [1] 8/7
except [1] 8/11 K
attention [1] 3/18
attorney [3] exculpatory [1] 3/15 Kelly [1] 2/3
ATTORNEY'S [1] 2/3 explained [1] 5/14 know [1] 5/12
audio [2] 8/7 8/9 knowingly [1] 5/17
F KOURIS [1] 1/12
aware [1] 3/12
fact [1] 5/21
B family [2] 4/19 4/19 L
back [2] 6/1 6/7 figure [1] 4/5 LAKE [6]
based [1] 6/4 file [1] 5/11 last [1] 4/10
basically [2] 3/15 5/10 find [2] 5/16 5/17 LEGAL [1] 2/7
basis [5] foregoing [1] 8/10 let [2] 4/20 5/3
be [8] forgery [1] 3/24 let's [3]
Because [1] 5/2 form [1] 5/19 letter [7]
been [1] 5/7 forth [1] 8/10 LICENSE [1] 8/17

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L right [3] UTAH [10]
rights [2] 5/13 5/14
like [3] V
RPR [2] 1/22 8/17
luck [1] 6/25
Rule [2] 5/13 5/18 verified [1] 3/16
M victim [2] 3/14 3/16
S visit [1] 5/23
made [1] 3/12
said [4] voluntarily [1] 5/17
make [1] 6/5
SALT [6]
March [1] 5/24 W
say [1] 6/3
MARK [1] 1/12
says [1] 5/9 want [1] 4/7
MATHESON [1] 1/14
schedule [1] 5/22 wants [1] 5/9
matter [1] 8/7
SCOTT [1] 1/14 was [11]
May [2] 5/24 8/14
see [6] we [4]
me [5]
seeing [1] 6/7 we'll [2] 6/3 6/7
meant [1] 4/11
seen [1] 6/18 we're [2] 6/5 6/20
mind [1] 5/10
sentencing [2] 5/23 6/13 well [9]
misinterpreted [1] 4/11
set [1] 8/10 went [1] 5/19
misunderstood [1] 4/9
SHARP [7] were [2] 5/14 7/5
money [1] 4/23
Sharp's [1] 3/7 what [7]
motion [3]
Shorthand [1] 8/5 when [2] 4/10 5/13
Mr [7]
should [4] where [3]
Ms [1] 4/20
shown [1] 5/8 whether [1] 6/5
my [5]
so [5] which [2] 3/15 5/19
N somebody [2] 5/2 5/4 why [1] 5/8
something [4] will [1] 6/5
need [3]
sorry [2] 5/24 6/15 withdraw [8]
no [7]
SOUTH [3] withdrawn [2] 5/9 5/21
not [4]
Sprouse [3] won't [1] 6/21
Now [1] 6/9
SS [1] 8/2 word [1] 4/1
O STATE [7] would [3]
obviously [2] 4/15 6/5 statement [1] 5/11 wouldn't [1] 6/14
office [2] 2/3 5/3 states [1] 6/12 written [2] 3/13 5/11
Oh [1] 3/22 status [1] 4/2
STREET [1] 1/15 Y
Okay [8]
Susan [3] Yeah [1] 6/18
once [1] 6/11
yet [1] 4/1
one [5] T you [23]
original [1] 4/4
talk [3] you'd [1] 3/8
other [3]
talked [2] 4/18 6/17 You'll [1] 5/24
our [1] 6/5
talking [2] 4/19 6/2 your [7]
out [1] 4/5
outside [1] 4/19 tape [1] 8/11
over [1] 5/19 Tawni [1] 2/6
Thank [2] 7/3 7/4
P that [31]
pages [1] 8/10 that's [4]
Pardon [1] 4/14 them [4]
PLAINTIFF [2] 1/5 2/2 then [4]
plan [2] 4/22 6/7 there [6]
plea [12] there's [4]
police [2] 3/23 5/11 these [1] 5/6
possible [2] 5/20 5/21 they [8]
postponed [1] 6/14 they'll [3]
prepare [1] 5/25 They're [1] 5/23
presentence [1] 5/25 things [1] 5/6
Proceedings [1] 7/5 think [3]
prosecution [1] 6/1 thinking [1] 6/4
purportedly [1] 3/14 THIRD [1] 1/1
this [6]
R though [2] 4/13 6/17
reason [2] 4/16 5/20 time [1] 4/17
received [1] 8/6 told [2] 5/2 6/19
recently [1] 3/17 transcribed [3]
recorded [1] 8/9 Transcript [1] 1/7
recording [3] transcription [1] 8/9
reference [1] 5/18 trial [1] 4/12
referral [1] 6/20 true [2] 5/5 8/8
report [1] 5/25 typewriting [1] 8/8
Reporter [1] 8/5 U
represent [1] 4/21
response [1] 5/6 Unified [1] 3/23

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ADDENDUM D
 THIRD JUDICIAL DISTRICT COURT
FOR SALT LAKE COUNTY, STATE OF UTAH
____________________________________
)
STATE OF UTAH, )
)
)
PLAINTIFF, )
) Case No. 181900319
VS. )
) Transcript of:
BOBBIE JOE SHARP, JR., )
) SENTENCING
)
DEFENDANT. )
____________________________________)

BEFORE THE HONORABLE MARK KOURIS

SCOTT M. MATHESON COURTHOUSE

450 SOUTH STATE STREET
SALT LAKE CITY, UTAH 84111

MARCH 4, 2019

TRANSCRIBED BY: Susan S. Sprouse, RPR, CSR

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1 A P P E A R A N C E S
2 FOR THE PLAINTIFF:
3 Donna M. Kelly
SALT LAKE COUNTY DISTRICT ATTORNEY'S OFFICE
4 35 East 500 South
Salt Lake City, Utah 84111
5
FOR THE DEFENDANT:
6
Tawni H. Bugden
7 SALT LAKE LEGAL DEFENDER ASSOCIATION
424 East 500 South
8 Salt Lake City, Utah 84111
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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1 March 4, 2019
2 P R O C E E D I N G S
3 * * *
4 MS. BUGDEN: Your Honor, can we call the Bobbie Sharp
5 matter, please?
6 THE COURT: Sure. Let's call the case of the State
7 of Utah vs. Bobbie Sharp.
8 Who is prosecuting this case? Oh, there she is.
9 Thank you.
10 Let's call the case of State of Utah vs. Mr. Bobbie
11 Sharp.
12 Good morning, Mr. Sharp. This is the time and place
13 set for sentencing.
14 Ms. Bugden, have you had an opportunity to review the
15 presentence report with your client?
16 MS. BUGDEN: Your Honor, we cannot go forward.
17 There's a letter from the victim that I -- purportedly from the
18 victim that I referenced in the motion to withdraw his guilty
19 plea. Also Mr. Sharp, his case seems to be reassigned in my
20 office. He wrote a letter to the bar complaining about you,
21 Ms. Kelly, and me. I don't feel like I can represent him.
22 THE COURT: I don't think a letter will do that. Is
23 there any other reason?
24 MS. BUGDEN: Well, yes. The -- there's the letter
25 from the -- purportedly from the victim --

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1 THE COURT: Which I've had an opportunity to view.
2 MS. BUGDEN: From --
3 THE COURT: It was included in his motion?
4 MS. BUGDEN: And UPD is investigating the source of
5 that letter. I think that investigation needs to be completed
6 before we can go forward with sentencing.
7 THE COURT: Okay. I don't think I agree.
8 Are any of the victims here today and want to be
9 heard from?
10 MS. KELLY: No. They -- they -- oh, apparently they
11 are here.
12 THE COURT: Okay. Well, if that's the case, then
13 let's go ahead and go forward.
14 Have you had a chance to review the presentence
15 report with your client?
16 MS. BUGDEN: No, Your Honor.
17 THE COURT: Okay. Go back there and we'll get that
18 done, and we'll bring you back in 15 minutes.
19 MS. BUGDEN: Your Honor, I can't represent him. It's
20 being reassigned in my office.
21 THE COURT: Well, I think you can represent him. The
22 fact that he filed a bar complaint, to me -- I mean, he filed
23 one against me. He filed one against the prosecutor. I don't
24 think that has any bearing on this.
25 So go ahead and review that with him and come back

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1 out and we'll sentence him.
2 MS. BUGDEN: All right.
3 (Recess for this matter.)
4 THE COURT: Let's call the case of State of Utah vs.
5 Mr. Bobbie Sharp. This is the time and place set for
6 sentencing.
7 Have you had an opportunity to review the presentence
8 report with the client?
9 MS. BUGDEN: Yes, I have.
10 THE COURT: Are there any factual inaccuracies that
11 need to be addressed?
12 MS. BUGDEN: No, Your Honor.
13 THE COURT: Thank you. If that's the case, go ahead
14 and proceed.
15 MS. BUGDEN: Your Honor, I did not think that we
16 could go forward today. You mentioned when we first called the
17 case this morning that we had the letter. Well, you don't have
18 the letter.
19 THE COURT: No, I don't. I have the implication to
20 what the letter is, though. You're right about that. I was
21 thinking of the letter he sent me indicating --
22 MS. BUGDEN: Right. And so I just want the record to
23 reflect that Mr. Sharp, he wrote a letter that I submitted as
24 part of the motion to withdraw his plea. After -- after I
25 filed that and before we had the hearing, there was a letter

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1 that was purported to be from the victim, that was sent to my
2 client, and intercepted by the jail. That letter, item by
3 item, is exculpatory in every event that was alleged in this
4 case.
5 THE COURT: And how does that affect -- how does that
6 affect him knowing the plea?
7 MS. BUGDEN: And Judge, that's being investigated by
8 UPD.
9 THE COURT: No, no, no. That's not being
10 investigated. How is that -- how does that affect the fact
11 that the person --
12 MS. BUGDEN: No, Judge. It is being investigated.
13 THE COURT: What?
14 MS. BUGDEN: It is being investigated.
15 THE COURT: No, no, no, no, no. I'm not asking you
16 that. I'm asking you how that letter has anything to do with a
17 person giving a knowing, voluntary, and intentional plea?
18 Guilty.
19 MS. BUGDEN: Well, Your Honor, it's completely
20 exculpatory, and that is being investigated by UPD.
21 THE COURT: Okay. All right.
22 MS. BUGDEN: And so with that being --
23 THE COURT: With that then I -- I -- I accept your, I
24 accept your objection. You've made your record. Let's move
25 forward.

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1 MS. BUGDEN: Okay. With regard to going forward with
2 me as his counsel, I would like to read into the record the
3 letter that he wrote to OPC.
4 "To whom it may concern: I, Bobbie Sharp, am filing
5 a formal complaint on every officer in my courtroom. I have
6 been treated very poorly and unprofessional by my attorney,
7 Tawni Hanseen Bugden, and also the prosecutor, and last but not
8 least, the Judge Kouris as well.
9 "I was tried -- "I was tricked by my attorney to sign
10 for a plea. My attorney also lied to me. She said last year
11 that when she canceled all my court dates, that the city
12 prosecutor was waiting on new evidence. But then she told me
13 last month that it was her that wasn't ready. Also she said
14 that if I go to jury trial that I'm going to lose and go to
15 prison. She doesn't want to fight my case and never as since
16 the beginning, and now that new evidence came up on my behalf
17 that can clear my name in trial.
18 But the city prosecutor said that it is a fraud. I
19 told my attorney and the judge that I wanted to withdraw my
20 plea deal and they denied me and said it was too late.
21 "I find that very hard to believe. I'm not even
22 sentenced yet. I know it's my constitution rights under the
23 Bill of Rights, bad faith" -- I can't read that next word, I
24 think it says found in due process of law. "I do have the
25 legal right to withdraw my plea, and I feel that every officer

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1 of the court is lying to me. And my lawyer, prosecutor, judge
2 are taking advantage of me by abusing their power of the
3 authority over me. I feel they are infringing on my
4 constitutional rights.
5 "So please, I truly need someone from the office of
6 professional conduct, the Utah State Bar Association to
7 intervene on my behalf, and help remedy my current case and see
8 now that I have a conflict of interest and ineffective
9 assistance of counsel.
10 "I feel that I'm sitting at a huge disadvantage now
11 that I filed a formal complaint against my attorney,
12 prosecutor, and judge. I fear a fatal retaliation against me.
13 Please help deliver me from this huge injustice.
14 "Thank you. Respectfully submitted, Bobbie Sharp.
15 P.S. I go back to court on March 4 at 8:30 so I'm hoping to
16 hear from you real soon. My sentencing is coming up and I need
17 to stop it ASAP.
18 "P.S.S. Also, since it has been lies since the
19 beginning, and since my prelim was back in April, the first
20 time that all evidence the prosecutor got after that should be
21 dismissed because of all the lying from my attorney and
22 prosecutor. I really think my case should be dismissed because
23 of all the unprofessional by everyone.
24 "So again, I please ask for your help. I am also
25 asking for a new attorney and for the judge to release himself

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1 from my case because I feel that he and city prosecutor and my
2 lawyer are bias. Also, I want a new attorney, but they say I
3 have to pay for one."
4 So, Your Honor, I don't think I can represent Mr.
5 Sharp effectively in the sentencing.
6 THE COURT: Okay. I appreciate that. Let's go
7 forward with the sentencing then. Go ahead.
8 MS. BUGDEN: Your Honor, Mr. Sharp did take
9 responsibility for what happened here. He did plead guilty.
10 He agreed that he would go to prison, 15 to life. That is not
11 an easy thing to do. And other than that, I don't know what to
12 tell you. He's accepted responsibility at the time of plead.
13 However, now he's saying he's innocent --
14 THE COURT: I understand.
15 MS. BUGDEN: -- and there's evidence to support that.
16 THE COURT: Okay. Well, I don't agree with the last
17 part. But go ahead, counselor.
18 MS. KELLY: I'd like to thank Ms. Bugden, and from my
19 observations in this case, she has been very effective. She
20 has explored all of the issues raised by the investigation and
21 they've all led to the point where Mr. Sharp pled guilty.
22 Mr. Sharp bought a cellphone for the victim and gave
23 it to her, and was communicating with her on the cellphone
24 saying the things that he was going to do sexually to her.
25 THE COURT: Will you move that microphone closer to

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1 you. Thank you.
2 MS. KELLY: Do you want me to start over?
3 THE COURT: Thank you. No. But keep going. I just
4 want to make sure this is all -- start with the cellphone part
5 if you wouldn't mind.
6 MS. KELLY: Okay. So Mr. Sharp bought a cellphone
7 and gave it to this 11-year old girl. He was communicating
8 with her on the cellphone about all the things he was going to
9 sexually to her, including admissions to many of the counts of
10 the information.
11 The night that the police became involved, he went to
12 the victim's home to try -- because he knew how relevant those
13 messages to the victim were. He tried to get the cellphone
14 back from the mother. She said, "No. You can't have the
15 cellphone back," and she turned it over to the police.
16 Mr. Sharp is guilty not only of the crime he pled
17 guilty to, but all of the crimes in the information. We agree
18 with AP&P that this is a very appropriate sentence. It's the
19 sentence that he agreed to when he entered his plea.
20 The presumptive sentence of 15 to life would be
21 entered for -- for that aggravated sexual abuse of a child.
22 So we do have the -- the victim and the mother here.
23 The mother would like to speak.
24 THE COURT: Thank you. Before we get to that,
25 however, I'd like you to just to make the record clear of the

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1 items that happened, this was just not a cellphone case. There
2 was actually some -- some action that happened because of that
3 cellphone. If you would, I mean, you don't have to be
4 explicit, but if you wouldn't mind explaining what Mr. Sharp
5 actually participated in with this young girl.
6 MS. KELLY: He participated in anal sodomy, numerous
7 attempts to have sexual intercourse with her, inserting his
8 penis into her until it hurt, and he couldn't complete that act
9 but it was penetration. That meets the requirements of the
10 statute.
11 He did multiple instance of having this 11-year old
12 girl perform oral sex on him. And all of those things happened
13 within the period of time after he gave her the cellphone and
14 until the family discovered it.
15 THE COURT: Very good. I apologize for making you
16 drag through that.
17 MS. KELLY: No. It's okay.
18 MS. BUGDEN: Your Honor, I dispute some of those
19 facts.
20 THE COURT: If you wouldn't mind -- that's fine. If
21 you wouldn't mind moving off to the side there, and who was it
22 that would like --
23 Good morning, ma'am.
24 MS. MARTIN: Your Honor.
25 THE COURT: I know it's a little frustrating and

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1 sometimes intimidating to talk in front of a courtroom. I get
2 that.
3 MS. MARTIN: Yes.
4 THE COURT: I want you to take some deep breaths slow
5 and relax. This all is being tape-recorded. So you -- if you
6 wouldn't mind by starting by introducing yourself, and then
7 you're welcome to tell me anything you want me to know.
8 MS. MARTIN: Okay. Your Honor. I am Stephanie
9 Martin.
10 THE COURT: Would you grab that microphone and move
11 it close to you? Thank you. Thank you, Ms. Martin.
12 MS. MARTIN: How's that?
13 THE COURT: Perfect.
14 MS. MARTIN: Better?
15 THE COURT: Thank you. Yes.
16 MS. MARTIN: Okay. I'm Stephanie Martin. I am
17 H.M.'s mom. And I don't know about all the letter stuff, but I
18 would like to say that this inmate is a violent, dangerous,
19 conniving, manipulative, child rapist, child sodomizer, and I
20 hope today that you can sentence him to -- um -- sorry. I'm
21 nervous.
22 THE COURT: It's okay. Take your time. Take your
23 time. You're fine.
24 MS. MARTIN: Sentence him because if it were up to
25 me, I'd like him to stay in prison for the rest of his life.

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1 What he put H.M. through was devastating and we're still
2 dealing with it. And she's a very strong, resilient little
3 girl. And as you can see, I have a large family that love all
4 of us, and she's going to be okay.
5 And I just know if he gets out of prison, he's going
6 to do this to another family. That's my feeling. And I hope
7 he doesn't get that chance.
8 THE COURT: Talk to me about H.M. How's she doing in
9 school otherwise?
10 MS. MARTIN: School's a little challenging, going.
11 Her attendance isn't so great, but she's in trauma therapy
12 every week.
13 THE COURT: Good.
14 MS. MARTIN: We have an excellent therapist.
15 THE COURT: Good.
16 MS. MARTIN: And we have since the beginning of this.
17 THE COURT: Good.
18 MS. MARTIN: He was arrested January 5th of '18, and
19 just explained that this was not her fault. And she -- if she
20 had her way, would not let him get out of prison either, but
21 she's here today and that says a lot.
22 THE COURT: She is in this courtroom today?
23 MS. MARTIN: She is.
24 THE COURT: Oh, okay. Well, I -- I don't want to
25 embarrass her, but H.M., I'm not going to look over there

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1 because I don't want to embarrass you. Okay? Well, I'll look
2 over there.
3 Our society these days are so fouled up that we don't
4 have heroes like we used to have. We used to have war heroes
5 and all these people who did these wonderful things, and now we
6 have a bunch of goofy people that get on the internet. Right?
7 But I have to tell you that I believe that you are a
8 hero. The fact that you came forward and said what you did,
9 which wasn't easy, there's nothing easy about this. These
10 despicable acts this person did, you have absolutely no blame
11 for any of that, and you have to understand that. This is all
12 him. This is none you.
13 I hope that you continue. I will tell you this. I
14 have done a few of these cases, and I can tell you that
15 counseling really does help. We're going to put something to
16 make him pay for that. But nonetheless, the counseling does
17 help. So I hope you'll take advantage of it. I know there'll
18 be a time when you're feeling much better about yourself and so
19 forth, and that's wonderful. I know that's going to happen and
20 that you will be successful. But if you kind of stick with
21 that, that helps, because we don't know how it comes in and
22 out. Good luck to you. Thank you for all the hard work you
23 did. Thank you for coming forward.
24 None of this is pleasant. None of it is easy to talk
25 about. But you know what, you're the hero in this courtroom

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1 this morning. Thank you very much.
2 MS. MARTIN: And then just one quick last thing. It
3 seems like all these hoops and stuff that he's trying to jump
4 through, it's just a way for him to sneak his way out and not
5 pay for what he's done.
6 THE COURT: Okay.
7 MS. MARTIN: So, Your Honor, thank you for the time
8 to talk to you.
9 THE COURT: Thank you. Thank you, all of you.
10 Ms. Bugden, you may bring your client back over.
11 Mr. Sharp, is there anything you would like me to
12 know before I sentence you, Sir?
13 MR. SHARP: No.
14 THE COURT: You don't have anything to say?
15 MR. SHARP: No, sir.
16 THE COURT: Well, let me make the -- the record
17 fairly clear, at least from my perspective. As this case has
18 been trying along, it's been in the system for a long time now,
19 we're not in, what, March of 2019 and this case was filed way
20 back in January of 2018, which I know was painful, particularly
21 for the family, watching it take its slow ride through the
22 system.
23 I think that Ms. Bugden, in my opinion, at least,
24 with I've seen how she's handed this case, I think she's done
25 an outstanding job. I think she's pushed as she does on every

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1 case, quite frankly, I have to tell you, I think she's pushed
2 the State on every issue that was important. I think the State
3 was able to answer on what she asked them for, but whatever
4 reason, ultimately I thought this was -- quite frankly, given
5 what he's done, this was almost a favorable plea in his -- in
6 his stead, so to speak, if we don't account for the fact that
7 poor little H.M. would have to take the stand and do all of
8 those other things.
9 Mr. Sharp entered his plea. He entered it knowingly,
10 voluntarily, intelligently. He knew exactly what he was
11 pleading guilty to. He had the form read to him. As well I
12 went over the rights with him in all of the form, confirmed the
13 fact that he knew all those rights, and he did tell me in open
14 court that was the case.
15 Soon after, I guess, he had a little bit of buyer's
16 remorse. He then filed something saying he wanted to withdraw
17 his plea, but he didn't list any of these -- said there's some
18 alleged letter out there that really, in my opinion, doesn't
19 have any effect on anything, particularly in the state it's in
20 right now. But nonetheless, he made that motion and he refused
21 to be interviewed by the probation folks, and I said that's --
22 the motion is denied.
23 It wasn't based on any legal reasons, we can do that.
24 I ordered the presentence report again, and they went down
25 there today, which is March 4th.

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1 The victim, her mother, and a wonderful, supporting
2 family is here today.
3 When I see these terrible, terrible cases, and these
4 are terrible, terrible cases, the only thing that gives me
5 solace sometimes is to know that this little person has such a
6 wonderful support group. There's a good chance she's going to
7 be leaning on a lot of you. She's gone through what, you know,
8 something extremely terrible, but I'm sure with the help of her
9 family and the help of her doctors, and it looks like she's a
10 very, very sharp person herself to help herself, she's going to
11 get through this.
12 With that, I'm going to sentence you to 15 years to
13 life in the Utah State Penitentiary. All restitution will
14 remain open. That goes for the counseling. I'm also going --
15 you're 61 years old right now, which means the first time you
16 would be up for probation will be when you're 76. I'm going to
17 write a personal letter to the Board of Pardons and that letter
18 is going to indicate that you should never, ever walk on this
19 earth outside of that prison again. I expect that you'll die
20 in prison, which I think that's what you should do.
21 What you've done here is unbelievable. What you've
22 done here is unforgivable. And the only bright side, if there
23 is a bright side, is this little person is so resilient and has
24 such a family that a lot of people you have ruined, you haven't
25 ruined her. You certainly tried, but you haven't ruined her.

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1 That sentence will begin forthwith. Thank you.
2 Oh, one more thing. I apologize. Go on. I need the
3 record for one more -- one more issue.
4 I didn't -- I didn't address the letter that Ms.
5 Bugden wrote me -- I'm sorry that read in the court concerning
6 the bar complaint. I find absolutely no basis for any part of
7 that letter. I've been involved with this case as well as
8 anyone. I believe it's another little trick to kind of push
9 the system out. This case has been going now for 14 months. I
10 see it nothing more than that, and that's the reason I gave it
11 the credence it did.
12 When you entered that plea, if, in fact, you knew
13 this was all false, you wouldn't have entered the plea, but you
14 did.
15 Good luck to you.
16 (Proceedings were concluded.)
17
18
19
20
21
22
23
24
25

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1 C E R T I F I C A T E
2 STATE OF UTAH )
) SS
3 COUNTY OF UTAH )
4
5 I, Susan S. Sprouse, a Certified Shorthand Reporter
6 in and for the State of Utah, do hereby certify that I received
7 the audio recording in the above-entitled matter, and that I
8 transcribed it into typewriting and that a full, true and
9 correct transcription of said audio recording so recorded and
10 transcribed is set forth in the foregoing pages, inclusive
11 except where it is indicated that the tape recording was
12 inaudible.
13
14 DATED this 18th day of May, 2019.
15
16
Susan S. Sprouse
_______________________________________
17 SUSAN S. SPROUSE, RPR, CSR
LICENSE NO. 5965543-7801
18
19
20
21
22
23
24
25

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 agreed [2] 9/10 10/19 called [1] 5/16
ahead [5] came [2] 7/16 14/8
MR. SHARP: [2] 15/12 15/14
all [25] can [10]
MS. BUGDEN: [21]
alleged [2] 6/3 16/18 can't [3] 4/19 7/23 10/14
MS. KELLY: [6]
almost [1] 16/5 canceled [1] 7/11
MS. MARTIN: [14]
along [1] 15/18 cannot [1] 3/16
THE COURT: [42]
also [8] case [23]
' am [4] 7/4 8/24 12/8 12/16 cases [3] 14/14 17/3 17/4
'18 [1] 13/18 anal [1] 11/6 cellphone [10]
another [2] 13/6 18/8 certainly [1] 17/25
1 answer [1] 16/3 Certified [1] 19/5
11-year [2] 10/7 11/11 any [9] certify [1] 19/6
14 [1] 18/9 anyone [1] 18/8 challenging [1] 13/10
15 [4] 4/18 9/10 10/20 17/12 anything [5] chance [3] 4/14 13/7 17/6
181900319 [1] 1/6 AP [1] 10/18 child [3] 10/21 12/19 12/19
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apparently [1] 4/10 clear [3] 7/17 10/25 15/17
2 appreciate [1] 9/6 client [5]
2018 [1] 15/20 appropriate [1] 10/18 close [1] 12/11
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are [9] come [1] 4/25
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5965543-7801 [1] 19/17 attorney [8] concluded [1] 18/16
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8 basis [1] 18/6 couldn't [1] 11/8
84111 [3] 1/15 2/4 2/8 be [16] counsel [2] 7/2 8/9
8:30 [1] 8/15 bearing [1] 4/24 counseling [3] 14/15 14/16 17/14
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A because [8] counts [1] 10/9
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after [5] bunch [1] 14/6 DEFENDANT [2] 1/9 2/5
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aggravated [1] 10/21 C denied [2] 7/20 16/22
agree [3] 4/7 9/16 10/17 call [4] 3/4 3/6 3/10 5/4 despicable [1] 14/10

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D first [3] 5/16 8/19 17/15 hope [4] 12/20 13/6 14/13 14/17
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fine [2] 11/20 12/23

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K Ms [7] plead [2] 9/9 9/12
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Mr [14]

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sure [3] 3/6 10/4 17/8 used [2] 14/4 14/4
RPR [2] 1/22 19/17
Susan [3] 1/22 19/5 19/17 UTAH [13]
ruined [3] 17/24 17/25 17/25
system [3] 15/18 15/22 18/9
S V
T very [9]
said [9]
take [7] victim [8]
SALT [6]
taking [1] 8/2 victim's [1] 10/12
say [3] 9/2 12/18 15/14
talk [4] 12/1 13/8 14/24 15/8 victims [1] 4/8
saying [3] 9/13 9/24 16/16
tape [2] 12/5 19/11 view [1] 4/1
says [2] 7/24 13/21
tape-recorded [1] 12/5 violent [1] 12/18
school [1] 13/9
Tawni [2] 2/6 7/7 voluntarily [1] 16/10
School's [1] 13/10
tell [7] voluntary [1] 6/17
SCOTT [1] 1/14
terrible [5]
see [4] 8/7 13/3 17/3 18/10 W
than [2] 9/11 18/10
seems [2] 3/19 15/3
thank [17] waiting [1] 7/12
seen [1] 15/24
that [119] walk [1] 17/18
sent [2] 5/21 6/1
that's [11] want [10]
sentence [9]
their [1] 8/2 wanted [2] 7/19 16/16
sentenced [1] 7/22
them [1] 16/3 war [1] 14/4
sentencing [7]
then [7] was [33]
set [3] 3/13 5/5 19/10
therapist [1] 13/14 wasn't [3] 7/13 14/9 16/23
sex [1] 11/12
therapy [1] 13/11 watching [1] 15/21
sexual [2] 10/21 11/7
there [13] way [4] 13/20 15/4 15/4 15/19
sexually [2] 9/24 10/9
there'll [1] 14/17 we [19]
sharp [20]
there's [6] we'll [3] 4/17 4/18 5/1
she [17]
these [9] we're [3] 13/1 14/15 15/19
she's [12]
they [7] week [1] 13/12
Shorthand [1] 19/5
they've [1] 9/21 welcome [1] 12/7
should [4] 8/20 8/22 17/18 17/20
thing [4] 9/11 15/2 17/4 18/2 well [12]
side [3] 11/21 17/22 17/23
things [5] went [3] 10/11 16/12 16/24
sign [1] 7/9
think [15] were [3] 10/13 12/24 18/16
since [5]
thinking [1] 5/21 what [17]
sir [2] 15/12 15/15
THIRD [1] 1/1 whatever [1] 16/3
sitting [1] 8/10
this [42] when [7]
slow [2] 12/4 15/21
those [5] where [2] 9/21 19/11
sneak [1] 15/4
though [1] 5/20 which [6]
so [18]
thought [1] 16/4 who [3] 3/8 11/21 14/5
society [1] 14/3
through [6] whom [1] 7/4
sodomizer [1] 12/19
time [11] will [7]
sodomy [1] 11/6
today [7] withdraw [5]
solace [1] 17/5
told [2] 7/12 7/19 within [1] 11/13
some [5]
too [1] 7/20 wonderful [4] 14/5 14/19 17/1 17/6
someone [1] 8/5
transcribed [3] 1/22 19/8 19/10 word [1] 7/23
something [3] 14/15 16/16 17/8
Transcript [1] 1/7 work [1] 14/22
sometimes [2] 12/1 17/5
transcription [1] 19/9 would [12]
soon [2] 8/16 16/15
trauma [1] 13/11 wouldn't [6]
sorry [2] 12/20 18/5
treated [1] 7/6 write [1] 17/17
source [1] 4/4
trial [2] 7/14 7/17 wrote [4] 3/20 5/23 7/3 18/5
SOUTH [3] 1/15 2/4 2/7
trick [1] 18/8
speak [2] 10/23 16/6
tricked [1] 7/9 Y
Sprouse [3] 1/22 19/5 19/17 year [3] 7/10 10/7 11/11
tried [3] 7/9 10/13 17/25
SS [1] 19/2 years [2] 17/12 17/15
true [1] 19/8
stand [1] 16/7 yes [4] 3/24 5/9 12/3 12/15
truly [1] 8/5
start [2] 10/2 10/4 yet [1] 7/22
try [1] 10/12
starting [1] 12/6 you [86]
trying [2] 15/3 15/18
state [13] you'll [2] 14/17 17/19
turned [1] 10/15
statute [1] 11/10 you're [7]
typewriting [1] 19/8
stay [1] 12/25 you've [3] 6/24 17/21 17/21
stead [1] 16/6 U young [1] 11/5
Stephanie [2] 12/8 12/16 your [22]
ultimately [1] 16/4
stick [1] 14/20 yourself [2] 12/6 14/18
um [1] 12/20
still [1] 13/1
unbelievable [1] 17/21
stop [1] 8/17
under [1] 7/22
STREET [1] 1/15
understand [2] 9/14 14/11
strong [1] 13/2
unforgivable [1] 17/22
stuff [2] 12/17 15/3
unprofessional [2] 7/6 8/23
submitted [2] 5/23 8/14
until [2] 11/8 11/14
successful [1] 14/20
up [5]
such [2] 17/5 17/24
UPD [3] 4/4 6/8 6/20
support [2] 9/15 17/6

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