author: Christiansen Forster, Judge:

text:
    STATE of Utah, Appellant, v. James Robert CUTTLER Sr., Appellee.
    No. 20170396-CA
    Court of Appeals of Utah.
    Filed September 7, 2018
    Sean D. Reyes and Jeffrey S. Gray, Salt Lake City, Attorneys for Appellant
    Emily Adams and Cherise M. Bacalski, Attorneys for Appellee
    Opinion
   Christiansen Forster, Judge:

¶ 1 The State charged James Robert Cuttler Sr. with six first-degree felonies, including rape of a child, sodomy upon a child, and aggravated sexual abuse of a child. Due to a previous conviction for sodomy upon a child, each count potentially subjected Cuttler to an enhanced penalty of life in prison without the possibility of parole. Cuttler ultimately agreed to plead guilty to one count of rape of a child without the enhancement, which carried a 25-years-to-life prison sentence. Before sentencing, Cuttler moved to withdraw his guilty plea and the district court granted that motion after an evidentiary hearing. The State appeals. We agree with the State that the district court exceeded its discretion in granting Cuttler's motion to withdraw his guilty plea, and we therefore reverse.

BACKGROUND

¶ 2 In October 2012, a seven-year-old child reported to authorities that Cuttler engaged in sexual intercourse with her. Soon after the report, the State charged Cuttler with two counts each of rape of a child, Utah Code Ann. § 76-5-402.1 (LexisNexis 2012) ; sodomy on a child, id. § 76-5-403.1; and aggravated sexual abuse of a child, id. § 76-5-404.1. Because Cuttler has a prior conviction of sodomy on a child, each of the six charges carried the possibility of an enhanced penalty, subjecting Cuttler to life in prison without the possibility of parole. See id. §§ 76-5-402.1(2)(b)(ii), -403.1(2)(b)(ii), -404.1(5)(c).

¶ 3 The State notified Cuttler of its intent to introduce evidence of his prior conviction for sexually molesting two different victims in another state, but the district court concluded that the evidence would be excluded at trial. On interlocutory appeal, the Utah Supreme Court reversed the district court's order. See generally State v. Cuttler , 2015 UT 95, 367 P.3d 981. Pending disposition of the evidentiary issue in the supreme court, Cuttler allegedly fled from Utah while on pretrial release, resulting in the State filing additional charges against him.

¶ 4 Following the supreme court's decision and the new charges, the State offered Cuttler a plea deal for global resolution of all charges. It offered to let him plead guilty to one count of rape of a child in exchange for the State's agreement to remove the enhanced life-without-parole penalty on that charge, to dismiss the remaining five charges, and to dismiss the separate case for fleeing the jurisdiction. Cuttler agreed to these terms. In the written plea agreement, Cuttler acknowledged that "[he] did have sexual intercourse with a child under the age of 14," which constituted a first-degree-felony rape of a child and carried a punishment of "25 years to life."

¶ 5 At the plea hearing, the prosecutor informed the court that Cuttler intended to plead guilty to rape of a child, identifying it as "Count I without the enhancement. That is a mandatory 25 to life, however." During the plea colloquy, the district court identified the sentence as "25 years to life ... in the Utah State Prison" and asked Cuttler if he understood that the charge carries a "mandatory 25 years to life" sentence. Cuttler responded "Yes." The district court also stated that the charge required mandatory imprisonment, which Cuttler acknowledged he understood. At the conclusion of the hearing, the court found Cuttler to be "proceeding voluntarily, knowingly[,] and with full understanding," and it subsequently endorsed his guilty plea.

¶ 6 Prior to sentencing, conflict counsel appeared on behalf of Cuttler and moved to withdraw his guilty plea, which motion the State opposed. The district court held an evidentiary hearing at which Cuttler and his prior Plea Counsel testified. Cuttler explained, "[W]e discussed 25 to life, not mandatory 25 to life." Cuttler could not recall whether his Plea Counsel had ever used the word "mandatory" in their discussions of the sentence or if counsel had advised him that the judge would have the ability to reduce the sentence below 25 years. Cuttler argued that his plea was not knowingly made, because "he did not understand that the Court lost discretion to reduce his sentence below 25 years in prison."

¶ 7 The district court ultimately agreed that Cuttler's plea was not made knowingly. Specifically, the court determined that, by entering the plea,

[Cuttler] was subjecting himself to a mandatory sentence that included time in the Utah State Prison for a term of 25 years to life. However, he did not know that he was subjecting himself to a minimum mandatory sentence of 25 years. He understood that the sentence was mandatory, but in no part of the record was he made aware that the sentence was a minimum mandatory sentence that took away all discretion from the judge or the State of Utah Board of Pardons.

The district court further concluded that it fully complied with rule 11 of the Utah Rules of Criminal Procedure in taking the plea. The State timely appealed. See Utah Code Ann. § 77-18a-1(3)(c) (LexisNexis 2017).

ISSUE AND STANDARDS OF REVIEW

¶ 8 The State contends that the district court erroneously granted Cuttler's motion to withdraw his guilty plea. We review the district court's resolution of a motion to withdraw a guilty plea for abuse of discretion, and we review the district court's related findings of fact for clear error. State v. Beckstead , 2006 UT 42, ¶ 7, 140 P.3d 1288. The district court abuses its discretion when its decision is "beyond the limits of reasonability," State v. Olsen , 860 P.2d 332, 334 (Utah 1993) (quotation simplified), or where the district court made a mistake of law, see State v. Barrett , 2005 UT 88, ¶ 17, 127 P.3d 682. "Appellate courts must also determine ... whether the defendant actually understood the charges, the constitutional rights, and the likely consequences of the plea and voluntarily chose to plead guilty." State v. Candland , 2013 UT 55, ¶ 16, 309 P.3d 230.

ANALYSIS

¶ 9 In this case, the State challenges the district court's decision to grant Cuttler's motion to withdraw his guilty plea. Particularly, the State asserts that the district court erred in determining that the applicable sentence was a "minimum mandatory sentence." See Utah R. Crim. P. 11(e)(5). Because the court concluded that the sentence to be imposed in this case required a minimum mandatory period of incarceration, it determined that Cuttler's guilty plea was not entered knowingly. That is, the district court concluded that, because Cuttler never heard the words "minimum mandatory" uttered during the plea hearing, Cuttler could not understand the "minimum mandatory nature" of his sentence. See id. We first consider the applicable sentence in this case, and then we review the guilty plea and the district court's authorization of withdrawal of that plea.

I. The Applicable Sentence

¶ 10 Rape of a child, a first-degree felony, is "punishable by a term of imprisonment of ... not less than 25 years and which may be for life." Utah Code Ann. § 76-5-402.1(2), (2)(a) (LexisNexis 2017). Under the circumstances of this case, imprisonment is mandatory after conviction. Id. § 76-5-402.1(5) ("Imprisonment under this section is mandatory...."); see also id. § 76-3-406(1), (1)(f) (providing that "probation may not be granted, the execution or imposition of sentence may not be suspended, the court may not enter a judgment for a lower category of offense, and hospitalization may not be ordered, the effect of which would in any way shorten the prison sentence for any person who commits ... rape of a child"). Consequently, by pleading guilty, Cuttler subjected himself to a sentence of mandatory imprisonment of 25 years to life. The written plea agreement between the parties set forth the applicable punishment for the crime of rape of a child. The district court also explained, and confirmed that Cuttler understood, that conviction for rape of a child would subject Cuttler to mandatory imprisonment for 25 years to life.

II. The Guilty Plea

¶ 11 Having been informed of the applicable sentence, Cuttler pleaded guilty to one count of rape of a child. A guilty plea is valid "only if it is made 'voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences.' " State v. Alexander , 2012 UT 27, ¶ 16, 279 P.3d 371 (quoting Bradshaw v. Stumpf , 545 U.S. 175, 183, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005) ); see also Utah Code Ann. § 77-13-6(2)(a) (LexisNexis 2017) ("A plea of guilty ... may be withdrawn only upon leave of the court and a showing that it was not knowingly and voluntarily made."). Utah law requires that the district court inform defendants of the direct consequences of a guilty plea, "but not necessarily every collateral consequence of [the] plea." See State v. Smit , 2004 UT App 222, ¶ 29, 95 P.3d 1203 (quotation simplified). A direct consequence of a guilty plea "is one that will have a 'definite, immediate and largely automatic effect on the range of the defendant's punishment' such as lack of eligibility for parole." Id. (quoting Cuthrell v. Director, Patuxent Inst. , 475 F.2d 1364, 1366 (4th Cir. 1973) ). A collateral consequence is one that is discretionary and unrelated to the length and nature of the sentence imposed on the basis of the plea-"such as the possibility of a concurrent state sentence ..., or the possibility of revocation of parole." Id.

¶ 12 Before accepting a guilty plea, the court must advise defendants of the constitutional rights they will be giving up and explain the charges and direct consequences of pleading guilty. "To aid district courts, ... rule 11 of the Utah Rules of Criminal Procedure... provides a roadmap for ensuring that defendants receive adequate notice of their rights and for examining defendants' subjective understanding and intent." State v. Candland , 2013 UT 55, ¶ 14, 309 P.3d 230. Relevant to our review, rule 11(e)(5) of the Utah Rules of Criminal Procedure requires the court to ensure that "the defendant knows the minimum and maximum sentence, and if applicable, the minimum mandatory nature of the minimum sentence, that may be imposed for each offense to which a plea is entered." The court must explain and a defendant must understand the penalty that will be imposed upon conviction of the charged crime. The imposition of that penalty is a direct consequence of pleading guilty.

¶ 13 Here, when considering whether to accept Cuttler's guilty plea, the district court progressed through the requirements of rule 11 in open court. The court also received a written plea agreement supporting Cuttler's guilty plea. This agreement stated that Cuttler was pleading guilty to rape of a child, a first-degree felony. Under the heading "Punishment Min/Max and/or Minimum Mandatory," Cuttler was notified that pleading guilty subjected him to a sentence of "25 years to life." In the plea agreement, Cuttler further acknowledged:

I know the maximum sentence that may be imposed for each crime to which I am pleading guilty.... I know that by pleading guilty ... to a crime that carries a mandatory penalty, I will be subjecting myself to serving a mandatory penalty for that crime. I know my sentence may include a prison term, fine, or both.

¶ 14 The district court accepted Cuttler's guilty plea, apparently satisfied that "[h]e knew that he was subjecting himself to a mandatory sentence that included time in the Utah State Prison for a term of 25 years to life." The direct penal consequence of Cuttler's guilty plea for rape of a child included exactly that which was explained to him: a mandatory, indeterminate "term of imprisonment of ... not less than 25 years and which may be for life." Utah Code Ann. § 76-5-402.1(2), (2)(a) (LexisNexis 2017).

III. The Plea Withdrawal

¶ 15 Despite finding that Cuttler understood the applicable sentence and that "the Court's colloquy was comprehensive and followed the Rule 11 plea requirements," the district court set aside Cuttler's guilty plea. It determined that because no one clarified for Cuttler during the plea colloquy that his 25-years-to-life sentence was a "minimum mandatory sentence," "Cuttler could have been left with the reasonable understanding that even though there was a mandatory sentence, the Court or the Board of Pardons retained some discretion to reduce, but not eliminate, that mandatory sentence." The court concluded that Cuttler met his burden and demonstrated that his plea was not knowingly made because he was not "made aware that the sentence was a minimum mandatory sentence that took away all discretion from the judge or the State of Utah Board of Pardons." The State asserts that the district court erred as a matter of law in reaching this conclusion. We agree.

¶ 16 The court erroneously determined that Cuttler was subject to a minimum mandatory term of imprisonment and that, in order for his plea to be knowingly entered, the court was required to advise Cuttler that the court lacked discretion to sentence Cuttler below the minimum term-25 years-set forth in the statute. We first address the district court's discretion to deviate from the applicable sentence. Then, we consider whether the Utah Board of Pardons and Parole (Board) retained discretion to parole Cuttler before the minimum prison term has been served.

A. The District Court's Lack of Discretion to Sentence below the Mandatory Prison Term

¶ 17 Under Utah's indeterminate sentencing scheme, which has been in place in some form since 1913, a sentencing court "has no discretion in fixing the term of imprisonment. [It] simply imposes the statutorily prescribed range of years, and the Board of Pardons determines exactly how long the prisoner is to be confined." Labrum v. Utah State Board of Pardons , 870 P.2d 902, 907 (Utah 1993) (quotation simplified); see also Padilla v. Utah Board of Pardons & Parole , 947 P.2d 664, 669 (Utah 1997) (explaining that the district court has the power to sentence and "must set an indeterminate sentence as provided by statute"); cf. State v. Thorkelson , 2004 UT App 9, ¶ 15, 84 P.3d 854 (explaining that an illegal sentence generally occurs where the court lacks jurisdiction, or "where the sentence is beyond the authorized statutory range"). In accordance with our sentencing scheme, the Utah Supreme Court has consistently held that "the power to reduce or terminate sentences is exclusive with the Board." State v. Schreuder , 712 P.2d 264, 277 (Utah 1985) (citing cases), superseded by statute on other grounds as stated in State v. Smith , 2014 UT 33, ¶ 14 & n.14-15, 344 P.3d 573. In other words, the Board, not the district court, "determines the actual number of years a defendant is to serve," Labrum , 870 P.2d at 907 (quotation simplified), because the Board "functions as a sentencing entity and decides the term of incarceration," id. at 908. Indeed, the number of years a defendant will serve under an indeterminate sentence "is left to the unfettered discretion of the board of pardons, which performs a function analogous to that of the trial judge in jurisdictions that have a determinate sentencing scheme." Id. (quotation simplified).

¶ 18 To fairly inform Cuttler of the consequences of his guilty plea to rape of a child, the district court was not required to first notify him of the court's inability to reduce the sentence below the mandatory indeterminate range. As the State points out, "the rape-of-a-child statute's use of the 'not less than' language is similar to the language used for other indeterminate sentences." Thus, the sentence to be imposed for a child rape conviction is treated the same as any other indeterminate term, and the only significant difference is the limit on the district court's authority to order probation or suspend the sentence rather than impose the prison sentence. See supra ¶10. As noted, the district court need not inform a defendant of every collateral consequence of a guilty plea. See State v. Smit , 2004 UT App 222, ¶ 29, 95 P.3d 1203. Indeed, this particular bit of information-the court's lack of discretion to reduce the sentence-is not a collateral or even likely consequence of his guilty plea, but rather of no consequence. Because the court properly informed Cuttler of the likely consequences of his guilty plea, the court, at least initially, correctly determined that his guilty plea was knowingly entered. The court made a mistake of law, however, in concluding that, to knowingly enter a guilty plea, Cuttler needed to understand that the district court lacked any room for leniency with regard to the minimum term of the indeterminate sentence.

B. The Board's Discretion to Parole Cuttler before he Serves the Minimum Term in Prison

¶ 19 The Utah Board of Pardons generally retains discretion to determine the actual number of years of imprisonment a defendant serves, which may be less than the minimum term of the sentence. See Padilla v. Utah Board of Pardons & Parole , 947 P.2d 664, 669 (Utah 1997). Subject to certain exceptions, the Board may pardon or parole an offender convicted of rape of a child "before the minimum term has been served." See Utah Code Ann. § 77-27-9(1)(b) (LexisNexis 2017). The Board is given this broad authority, "[w]ith the exception of certain minimum mandatory sentences where the Board is specifically prohibited from paroling an offender before service of the minimum term of years." Labrum v. Utah State Board of Pardons , 870 P.2d 902, 907 (Utah 1993). This is not such a sentence.

¶ 20 The Utah Code of Criminal Procedure provides that a defendant sentenced to prison

prior to April 29, 1996, for a first degree felony involving ... rape of a child, a violation of Section 76-5-402.1... or a prior offense as described in Section 76-3-407, may not be eligible for release on parole by the Board of Pardons and Parole until the offender has fully completed serving the minimum mandatory sentence imposed by the court.

Utah Code Ann. § 77-27-9(2)(a). Cuttler argues that this exception would apply in his case. The Board could not release him in less than 25 years, Cuttler asserts, because (1) he was sentenced in New York before 1996, for (2) a prior sexual offense. We do not read this provision so expansively. By its plain language, the statute restricts the Board's authority to release a defendant before the minimum term is served on a sentence imposed prior to 1996. Even assuming that Cuttler's New York conviction and sentence applies under this statute, which we do not decide, Cuttler does not contend that he is still serving that sentence, that it is a minimum mandatory sentence, or that the Board has authority to parole him on the New York sentence. Absent application of this exception, the Board generally retains discretion to determine the actual time served for the applicable sentence in this case, even if that amount is less than the statutory minimum term. Because the Board is not specifically prohibited from considering an early release, the sentence applicable to Cuttler pursuant to his guilty plea is not strictly a minimum mandatory sentence. See Labrum , 870 P.2d at 907 ; see also State v. Gray , 2016 UT App 87, ¶ 43, 372 P.3d 715.

¶ 21 In allowing Cuttler to withdraw his guilty plea, the district court erroneously concluded that the sentence applicable in this case was a minimum mandatory sentence. Relatedly, the court erred in determining that Cuttler's guilty plea could not have been knowingly made because Cuttler did not understand that this was a minimum mandatory sentence. It was not. The sentence applicable to Cuttler's guilty plea is subject to the Board's discretion to consider early release before Cuttler has served the minimum term. Accordingly, to knowingly plead guilty in this case, Cuttler was not required to first hear the clearly isolated phrase 'minimum mandatory' in relation to his sentence.

CONCLUSION

¶ 22 The district court found, and our review of the record confirms, that Cuttler was properly informed of the direct consequences of pleading guilty. The court, Plea Counsel, and the written plea agreement accurately communicated, multiple times, that pleading guilty would subject Cuttler to mandatory imprisonment for 25 years to life. Cuttler confirmed that he understood this sentence. With regard to explaining the applicable sentence, no more was required in this case. Consequently, Cuttler's guilty plea was knowingly and voluntarily entered.

¶ 23 That Cuttler did not understand the district court's lack of discretion to reduce the minimum term does not render his guilty plea unknowing. Further, Cuttler's guilty plea remains effective even though he was not told that the Board lacked discretion to parole him early. Indeed, this explanation would have been simply incorrect. The Board retains the discretion to parole Cuttler before he has served the minimum term of his sentence, and therefore the sentence he understood would be imposed is not a minimum mandatory sentence. In granting Cuttler's motion to withdraw his guilty plea, the district court made mistakes of law and therefore exceeded its discretion. We reverse.

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and Kate A. Toomey concurred.

      Two attorneys represented Cuttler at the plea hearing. For convenience, we will refer to them collectively as Plea Counsel. We note, however, that only one testified at the plea withdrawal hearing.

      The punishment is enhanced to life without parole if "the defendant was previously convicted of a grievous sexual offense." Utah Code Ann. § 76-5-402.1(2)(b)(ii) (LexisNexis 2017). Although the State originally charged Cuttler with enhancements under this section, the State agreed to strike those as part of the plea agreement.

      We cite to the current version of the statute here because, although this section has been modified, the language of this provision has not changed.

      We note that the legislature has made available an exception to imprisonment in certain circumstances under which eligible offenders can avoid mandatory imprisonment if particular statutory requirements are met. See Utah Code Ann. §§ 76-5-406.5, -402.1(4)(a). Cuttler was not eligible for this exception.

      Cuttler's understanding that the court and the Board retained discretion to reduce the minimum term is not challenged on appeal, and we accordingly decline to disturb the district court's findings. We note, however, that the record reflects no affirmative statement, passing comment, or suggestion, which might have led Cuttler to develop this understanding. He certainly did not bring it to the court's attention at the change-of-plea hearing. In any event, Cuttler explains that, when he pleaded guilty, he simply "did not know what he did not know. How could he?" See McAdams v. Town of Barnard , 2007 VT 61, ¶ 13 n.5, 182 Vt. 259, 936 A.2d 1310 (noting that the "conundrum of known unknown roads brings to mind one of former Secretary of Defense Donald Rumsfeld's famous existential musings: 'As we know, there are known knowns. There are things we know we know. We also know there are known unknowns. That is to say we know there are some things we do not know. But there are also unknown unknowns, the ones we don't know we don't know' " (quotation simplified)). Cuttler appears to argue that someone should have told him what he did not know he did not know-and they did not.


source: Caselaw Access Project

author: POHLMAN, Judge:

license: Public Domain

text:
    Claude C. BLANCH, Appellant, v. Jan FARRELL, Marilyn Royce, Donene Briscoe, and Barbara Stuart, Appellees.
    No. 20160792-CA
    Court of Appeals of Utah.
    Filed September 7, 2018
    Jason M. Yancey, Layton, Richard W. Jones, Ogden, Taylor R. Jones, Bryce M. Froerer, and Zane S. Froerer, Ogden, Attorneys for Appellant
    Paul K. Bachman and Dana T. Farmer, Ogden, Attorneys for Appellees
    Judge Jill M. Pohlman authored this Opinion, in which Judges Kate A. Toomey and David N. Mortensen concurred.
    Opinion
   POHLMAN, Judge:

¶1 Claude C. Blanch, Jan Farrell, Marilyn Royce, Donene Briscoe, and Barbara Stuart are all equal members of a dissolved member-managed limited liability company named Five Blanch Property LLC (the Company). When four of the five members agreed to list certain assets for sale as part of the Company's winding up, Blanch objected, filing a petition opposing the sale and seeking to partition one-fifth of the assets for himself. The district court dismissed Blanch's petition with prejudice. Blanch appeals, and we affirm.

BACKGROUND

¶2 The family of the parties-Blanch, Farrell, Royce, Briscoe, and Stuart-historically owned certain assets, including real property in Weber County, Utah, and a number of shares in an irrigation company (collectively, the Assets). In 2005, the Assets were conveyed to the Company, a then newly formed, member-managed limited liability company.

¶3 Each party is an equal member of the Company. Though the Company never executed an operating agreement, its articles of organization stated that the Company would exist for three years, during which time the members were to meet and determine how to manage the Assets. The members held meetings, but they never agreed on the management of the Assets.

¶4 In 2008, the Company expired with the Assets still titled in its name. Since its dissolution, however, the Company has not wound up its affairs or distributed the Assets. In October 2015, as part of its winding up, all of the Company's members except Blanch voted to list the Assets for sale.

¶5 Shortly thereafter, Blanch filed suit against Farrell, Royce, Briscoe, and Stuart (collectively, Appellees). Blanch petitioned the court to stop the sale of the Assets and to carve out his twenty-percent interest so that he could keep that portion in his name. As an exhibit to his original petition, Blanch attached a document titled, "Written Consent of More Than 2/3 of the Members of [the Company]" (the Written Consent).

¶6 The Written Consent was signed in October 2015 by Appellees, who together held an eighty-percent interest in the Company. In its recitals, the Written Consent stated that Appellees desired "to wind up the affairs of the Company"; "to sell all of the [Assets] owned by the Company as part of the winding-up of the Company, and thereafter distribute the net proceeds of the sale to the members ... according to their interests"; and "to designate Jan Farrell to negotiate and enter into any and all agreements necessary to sell all of the [Assets]." The Written Consent stated that Appellees adopted the resolutions to, among other things, authorize Farrell to negotiate agreements and take actions necessary to sell the Assets.

¶7 Blanch filed an amended petition in January 2016 in which he noted that Appellees "have attempted to list all of the [Assets] ... for sale," explaining that they "have proposed and are desirous of selling [the Assets] and distributing the cash sales proceeds." Blanch alleged that under the Utah Revised Uniform Limited Liability Company Act, effective January 1, 2016 (the New Act), all members of the Company had to unanimously agree to sell the Assets and that because he did not consent, Appellees lacked authority to approve the sale. See generally Utah Code Ann. §§ 48-3a-101 to -1405 (LexisNexis 2015).

¶8 Blanch asked the court to enjoin the sale of the Assets and to require that any sale be approved by the court or the unanimous agreement of the Company's five members. He also asked the court to order the settling of the Company's capital accounts and the distribution of the Assets in proportion to the members' respective interests. Alternatively, Blanch asked the court to partition the Assets, separating his twenty-percent share.

¶9 Appellees moved to dismiss Blanch's petition, asserting that he had failed to state a claim upon which relief could be granted. In support, Appellees attached the Written Consent and asserted that they had authority to sell the Assets and that the Written Consent, which resolved to sell the Assets, was valid. According to Appellees, when they signed the Written Consent in October 2015, the Utah Revised Limited Liability Company Act (the Old Act) applied. See generally id. §§ 48-2c-100 to -1902 (2010). And rather than requiring the unanimous approval of members to sell the Company's assets, the Old Act required only two-thirds of its members to act. Id. § 48-2c-803(3). Accordingly, Appellees contended that because they held eighty percent of the interest in the Company, the Written Consent was properly executed and was not voided by the New Act.

¶10 In so arguing, Appellees noted that the Written Consent expressly stated that "the authority given [under the Written Consent] shall be effective until revoked by [Appellees] and shall continue notwithstanding the automatic application of [the New Act] on January 1, 2016." Although Appellees "fully acknowledge[d] that [the New Act] now governs the wind-up of [the Company]," they contended that "the Written Consent remains effective as to the authorization of [the Company] to sell the Assets in the wind-up" and that Blanch had failed "to allege any facts to show that the Written Consent was not authorized at the time of its execution."

¶11 In the alternative, Appellees asserted that, even if the Written Consent was no longer effective, the remedy Blanch sought-the distribution of the Assets in the Company's winding up-was barred under the New Act, given that those distributions "must be paid in money." See id. § 48-3a-711(4) (2015). Appellees further argued that the Company owned the real property at issue and that because Blanch was not a joint tenant or tenant in common, he could not bring an action to partition that real property.

¶12 The district court granted Appellees' motion. The court first determined that because the Company had expired, it "ha[d] no power other than to wind up its affairs, pay its bills, and distribute its assets." The court then determined that the Old Act controlled, that "no language within [the New Act] ha[d] been cited which [made] its provisions retroactive," and that the Company's members had not agreed to be bound by the New Act. The court explained that under the Old Act, "members holding at least two-thirds interest in the company are required to bind [the Company]" and that, in this case, "a written consent was signed by all of the members ... other than [Blanch], evidencing four-fifths of the voting members, to list [the Assets] for sale and then to distribute the assets as the last step to winding up." The district court then reasoned that "four-fifths is 80%, sufficiently in excess of two-thirds of the voting members," and that the members signed the Written Consent in October 2015-before the application of the New Act to the Company. Further, the court determined that the Written Consent was "a permitted function" and the controlling member-managers had "the power to wind up [the Company] as they [saw] fit, including the sale of [the Assets], payment of all bills and obligations, and distribution of the proceeds to the members."

¶13 Based on these determinations, the district court concluded that Blanch could not "legally prevail as it pertains to the objection to sale and to the partitioning of [the Assets]." Additionally, it concluded that Blanch "was not a joint tenant or a tenant in common owner of the real property" and that the Company's ownership of the real property "excluded that possibility [of partition]." Accordingly, the court dismissed Blanch's petition with prejudice. Blanch appeals.

ISSUE AND STANDARD OF REVIEW

¶14 Blanch contends that the district court erred in granting Appellees' motion to dismiss his petition. "A Rule 12(b)(6) motion to dismiss admits the facts alleged in the complaint but challenges the plaintiff's right to relief based on those facts." Oakwood Village LLC v. Albertsons, Inc. , 2004 UT 101, ¶ 8, 104 P.3d 1226 (quotation simplified). "Under a rule 12(b)(6) dismissal, our inquiry is concerned solely with the sufficiency of the pleadings, and not the underlying merits of the case." Id. (quotation simplified). We assume the truth of the factual allegations in the complaint and draw "all reasonable inferences therefrom in the light most favorable to the plaintiff."

Hudgens v. Prosper, Inc. , 2010 UT 68, ¶ 14, 243 P.3d 1275 (quotation simplified). "We review a decision granting a motion to dismiss for correctness, granting no deference to the decision of the district court." Bylsma v. R.C. Willey , 2017 UT 85, ¶ 10, 416 P.3d 595 (quotation simplified). We likewise review for correctness the district court's subsidiary legal determinations, including its interpretation and application of statutes. See DePatco, Inc. v. Teton View Golf Estates, LLC , 2014 UT App 266, ¶ 6, 339 P.3d 126 ("The proper interpretation and application of a statute is a question of law, and we afford no deference to the [district] court in reviewing its interpretation of applicable statutes." (quotation simplified) ).

ANALYSIS

¶15 Blanch challenges the district court's dismissal of his petition on a number of grounds. We begin by addressing his argument regarding the propriety of the district court's consideration of the Written Consent in resolving Appellees' motion to dismiss. We then turn to Blanch's arguments regarding the enforceability of the Written Consent. Finally, we address his contention that the district court erred in dismissing his petition without considering his request for judicial supervision of the Company's winding up.

I. The District Court's Consideration of the Written Consent on Appellees' Motion to Dismiss

¶16 Blanch first contends that in ruling on Appellees' motion to dismiss, the district court erred either by failing to exclude documents outside of his petition or by failing to convert the motion to one for summary judgment. See generally Utah R. Civ. P. 12(b) (explaining that if, on a motion to dismiss for failure to state a claim upon which relief can be granted, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56"). He focuses this challenge on the district court's consideration of the Written Consent itself, asserting that the court's decision is unsustainable without reference to it. Appellees counter that the Written Consent was properly before the court because it was either referenced in or was central to Blanch's petition.

¶17 This court generally will not consider an issue on appeal unless it has been preserved or the appellant asserts that a valid exception to the preservation rule applies. See State v. Johnson , 2017 UT 76, ¶ 18, 416 P.3d 443. To preserve an issue, the appellant must present it to the district court "in such a way that the court has an opportunity to rule on it." Id. (quotation simplified). This means that "the issue must be specifically raised, in a timely manner, and must be supported by evidence and relevant legal authority." Donjuan v. McDermott , 2011 UT 72, ¶ 20, 266 P.3d 839.

¶18 Here, Blanch attached the Written Consent as an exhibit to his original petition, and then he alleged in his amended petition that Appellees "have proposed and are desirous of selling [the Assets] and distributing the cash sales proceeds" and that they "have attempted to list all of the assets ... for sale." Appellees responded with a motion to dismiss and attached the Written Consent.

¶19 But Blanch did not object to Appellees' reliance on the Written Consent and he never asserted that the district court could not consider it in ruling on the motion to dismiss or that the court should treat the motion as one for summary judgment under rule 56. As a result, Blanch did not raise the issue of whether the Written Consent was a matter outside the pleading requiring the motion to be converted, and he did not give the district court the opportunity to rule on it. See Johnson , 2017 UT 76, ¶ 18, 416 P.3d 443. He therefore did not preserve this issue for appeal.

II. The Enforceability of the Written Consent

¶20 Blanch contends that the Written Consent is unenforceable, raising several arguments in support. We first identify which of his arguments have been preserved. We then address whether the authority granted to Farrell under the Written Consent-to sell the Assets for the purpose of winding up the Company-survives the application of the New Act.

A. Whether the Written Consent Was Void Ab Initio

¶21 On appeal, Blanch makes three arguments seeking to undermine the validity of the Written Consent. First, Blanch suggests that the Written Consent was void ab initio when signed "because [it] is really a defective attempt to amend the Articles of Organization and change the management structure from member-managed to manager-managed," and it therefore "would have been deemed ineffective since it would require unanimous consent of the members" to make such changes. Second, Blanch asserts that the Written Consent was adopted "without any notice" to him, as required by the Old Act, and that this lack of notice "invalidates the Written Consent." Third, Blanch complains that, because two of the signatures on the Written Consent were those of "assignees/transferees of the members who could not [validly provide] consent," the "Written Consent is not valid and never was." But he did not make any of these arguments to the district court and thus he has not preserved them for appeal. Because he did not preserve these arguments or assert any exception to the preservation rule, we do not consider them further. See State v. Johnson , 2017 UT 76, ¶ 18, 416 P.3d 443.

B. The Continuing Force of the Written Consent

¶22 Blanch next challenges the district court's conclusion that the Written Consent has continuing force, thus giving Farrell the authority to carry out the sale of the Assets even after the New Act became effective. According to Blanch, the district court erred in concluding that the Written Consent has binding "effect after January 1, 2016 when the New Act required the approval of all members" for such an action. He asserts that "at best, the Written Consent was [in] effect until it was superseded by the terms and provisions of the [New] Act." In other words, "if the Written Consent was ever valid ..., it was only valid until January 1, 2016-after which time, the New Act and its provisions applied to all [limited liability companies]." By ruling that the Written Consent is still operative, Blanch asserts, "the Court is allowing the Company to continue ... operat[ing] under the [Old] Act."

¶23 To resolve this issue, we must answer two questions. The first is whether the Written Consent-representing the Company's approval of the sale of the Assets as part of its winding up-required the unanimous consent of its members or the consent of only two-thirds of its members. The answer to this question turns on whether the Written Consent had to comply with the voting requirements of the Old Act or the New Act. The second question is whether the New Act, which became effective as to all limited liability companies three months after the Written Consent was passed, deprived the Written Consent of its force as of January 1, 2016.

¶24 For a member-managed limited liability company like the Company, the Old Act provided that "authorizing a member or any other person to do any act on behalf of the company that is not in the ordinary course of the company's business" required "the affirmative vote, approval, or consent of members holding 2/3 of the profits interests in the company." Utah Code Ann. § 48-2c-803(3)(a)(i) (LexisNexis 2010). In contrast, the New Act provides that "[a]n act outside the ordinary course of the activities and affairs of the limited liability company may be undertaken only with the affirmative vote or consent of all members ." Id. § 48-3a-407(2)(d) (2015) (emphasis added). The parties agree that authorizing the sale of assets as part of the winding-up process falls outside the ordinary course of business.

¶25 Originally passed in 2013, the New Act was phased in gradually. See generally id. §§ 48-3a-101 to -1405. Section 48-3a-1405 sets forth the New Act's scheduled applicability.

It provides that before January 1, 2016, the New Act "governs only: (a) a limited liability company formed on or after January 1, 2014; and (b) ... a limited liability company formed before January 1, 2014, which elects, in the manner provided in its operating agreement or by law for amending the operating agreement, to be subject to [the New Act]." Id. § 48-3a-1405(1); see also id. § 48-2c-100 (Supp. 2013) ("Until [the Old Act] is repealed January 1, 2016, [it] applies only to a limited liability company formed on or before December 31, 2013, that has not elected to be governed by [the New Act], as provided in Section 48-3a-1405."). On or after January 1, 2016, however, the New Act "governs all limited liability companies." Id. § 48-3a-1405(2) (2015) (emphasis added).

¶26 Neither one of the circumstances under subsection 48-3a-1405(1)(a) or (b) is applicable here. The Company was formed before January 1, 2014, and, as Blanch explains, by October 2015, "the Company had not chosen to be governed by [the New] Act and the effective date imposing [the New] Act had yet to occur." Thus, at the time Appellees approved the Written Consent in October 2015, the Old Act still governed, and because Appellees hold four-fifths of "the profits interests in the company," they had more than the necessary two-thirds vote to approve the Written Consent. See id. § 48-2c-803(3) (2010). Accordingly, the Written Consent complied with the voting requirements of the Old Act.

¶27 The Written Consent also appears to comply with the Old Act's provisions regarding the designation of an agent for the winding-up process. Utah Code section 48-2c-1303 directed that for a member-managed company, "the following persons ... shall have the right to wind up the business of a dissolved company: ... first, the existing members or, second, an agent designated by the existing members." Id. § 48-2c-1303(1)(b). That section further provided that the

person who winds up the business and affairs of a dissolved company ... shall ... become a trustee for the members and creditors of the company and, in that capacity, may sell or distribute any company property discovered after dissolution, convey real estate, and take any other necessary action on behalf of and in the name of the company.

Id. § 48-2c-1303(2)(a). This statute thus authorized the members of this dissolved company to designate Farrell as an agent to wind up the Company and also authorized Farrell to then sell the Assets.

¶28 Blanch contends that when the New Act became effective as to all limited liability companies on January 1, 2016, the Written Consent became void, thereby depriving Farrell of any authority to carry out the sale of the Assets, and that the sale of the Assets would require the unanimous approval of the Company's members under the New Act. We read section 48-3a-1405 to mean that, after January 1, 2016, the New Act, including its unanimity requirement under section 48-3a-407, applies to all limited liability companies and all actions they take. But we see nothing in section 48-3a-1405's plain language or anything else in the New Act that supports the proposition on which Blanch's argument depends, namely, that the New Act's broad implementation on January 1, 2016, had the effect of invalidating previous actions taken by a limited liability company. See generally Bagley v. Bagley , 2016 UT 48, ¶ 10, 387 P.3d 1000 (stating that "the primary objective of statutory interpretation is to ascertain the intent of the legislature"

and that "since the best evidence of the legislature's intent is the plain language of the statute itself, we look first to the plain language of the statute" (quotations simplified) ). Moreover, Blanch has not identified any pertinent authority in support of his reading of the New Act. See Bank of Am. v. Adamson , 2017 UT 2, ¶ 13, 391 P.3d 196 (explaining that an appellant will not carry his burden of persuasion on appeal if he fails to "cite the legal authority on which [his] argument is based and then provide reasoned analysis of how that authority should apply in [this] particular case"). We therefore conclude that the district court did not err in deciding that Blanch did not state a claim in light of the Written Consent.

III. Blanch's Request for Judicial Supervision

¶29 Finally, Blanch contends that the district court erred by dismissing his alleged claim for judicial supervision of the Company's winding up. In particular, he asserts that, to state such a claim under Utah Code section 48-3a-703 of the New Act, "all [he] was required to [do was] plead good cause" and that the petition's factual allegations constituted "prima facie good cause to have the Court supervise the winding up process."

¶30 Section 48-3a-703 of the New Act provides that a "district court may order judicial supervision of the winding up of a dissolved limited liability company, including the appointment of a person to wind up the limited liability company's activities and affairs: (a) on application of a member, if the applicant establishes good cause ." Utah Code Ann. § 48-3a-703(5)(a) (LexisNexis 2015) (emphasis added).

¶31 Blanch's amended petition labeled a cause of action "Dissolution of [the Company]," and it requested that the district court require "the winding up of [the Company to] follow the applicable statute found in [ section] 48-3a-703 ; [and] that the assets be distributed to the members of the expired [Company] in proportion to their respective interests." Although Blanch sought judicial relief, he did not specifically ask the court to oversee the winding-up process. But even if Blanch's claim could be construed as an application for judicial supervision of that process, his request was tied to his attendant request for distribution of the Assets, which was based on his contentions that they could not be sold without his approval and that the Written Consent has no force or effect under the New Act. Blanch did not alert the court to the fact that he sought judicial supervision of the process generally, as he now seems to claim on appeal. See generally State v. Johnson , 2017 UT 76, ¶ 18, 416 P.3d 443 (explaining that to preserve an issue, the appellant must present it to the district court "in such a way that the court has an opportunity to rule on it" (quotation simplified) ). Thus, having rejected Blanch's claims for distribution and partition of the Assets, we cannot fault the district court for dismissing his petition without addressing whether he had demonstrated good cause to warrant ongoing judicial supervision of the winding-up process.

CONCLUSION

¶32 We conclude that Blanch has waived all but one of his arguments challenging the district court's dismissal of his petition by failing to preserve them. On his only properly presented issue, we conclude that Blanch has not carried his burden of demonstrating that the district court erred. Accordingly, we affirm.

      Because this case is before us on appeal from the motion to dismiss Blanch's petition for failure to state a claim, we, like the district court, "accept the factual allegations in the complaint as true and consider them and all reasonable inferences to be drawn from them in a light most favorable to the plaintiff." Biedermann v. Wasatch County , 2015 UT App 274, ¶ 2, 362 P.3d 287 (quotation simplified). Accordingly, we state the facts in a light most favorable to Blanch. See id.

      Because Blanch does not raise any specific arguments connected to the district court's dismissal of his claim for partition, we do not address that claim further.

      Given Blanch's failure to properly challenge the district court's consideration of the Written Consent in ruling on the motion to dismiss, we likewise consider the Written Consent in reviewing the district court's decision.

      The Old Act allowed limited liability companies, through the articles of organization or an operating agreement, to modify the applicable default rule requiring "the affirmative vote, approval, or consent of members holding 2/3 of the profits interests in the company." Utah Code Ann. § 48-2c-803(3)(a)(i) (LexisNexis 2010); see also id. § 48-2c-803 (setting forth the default rules for management by members "unless otherwise provided in this chapter, in the articles of organization, or an operating agreement"); OLP, LLC v. Burningham , 2008 UT App 173, ¶ 18, 185 P.3d 1138 (noting that "the provisions of the LLC Act serve as default positions that govern an LLC if its members do not include contrary language in their operating agreement or in the LLC's articles of organization"), aff'd , 2009 UT 75, 225 P.3d 177. The Company's articles of organization made no such modification, and the Company did not have an operating agreement. Consequently, the Old Act's default rule applies.

      Even if the New Act somehow invalidated the Written Consent and the authority granted thereunder to proceed with the sale of the Assets, Blanch has not demonstrated that he would be entitled to the relief he seeks, that is, the distribution of the Assets. To the contrary, the default rules under the New Act provide that, in winding up a company, any surplus assets must be distributed "in equal shares among members and dissociated members" and all such distributions "must be paid in money ." Utah Code Ann. § 48-3a-711(2) -(4) (LexisNexis 2015) (emphasis added). Given this provision, we agree with Appellees that Blanch has not explained how the court could give him "land and water in lieu of money."

      In his reply brief, Blanch complains that the district court erred in dismissing his petition with prejudice . We do not consider issues that are raised for the first time in a reply brief. See Allen v. Friel , 2008 UT 56, ¶ 8, 194 P.3d 903. Blanch noted in his opening brief that "by dismissing the claims with prejudice, the [District] Court has permanently barred [him] from requesting the Court judicially administer the winding up of the company." But he does not assert until his reply brief that the district court committed error in this regard. As a result, we do not consider this issue further, except to note that at oral argument before this court, Appellees' counsel stated, "Even if [this court affirms] on the Written Consent, if there's some basis for [Blanch] to come in and still ask for judicial dissolution with the Written Consent in place, ... theoretically, ... he should have the opportunity to be able to do that. ... His ability to ask for supervision, as long as he can state good cause and the court finds good cause, is there."


author: TOOMEY, Judge: HARRIS, Judge (concurring):

text:
    Gary Lynn ARMENDARIZ, Appellant, v. Pixie Marie ARMENDARIZ, Appellee.
    No. 20160997-CA
    Court of Appeals of Utah.
    Filed September 7, 2018
    Opinion
   TOOMEY, Judge:

¶1 Gary Lynn Armendariz and Pixie Marie Armendariz divorced in 2005 after almost twenty-nine years of marriage. Gary entered early retirement in 2015, claiming that physical pain prevented him from working in a position similar to his employment during the marriage. As a result, Gary's income decreased after he retired, and he petitioned the district court to modify the divorce decree by terminating Pixie's award of alimony (the Petition to Modify). The district court denied the Petition to Modify, concluding that Gary's retirement was foreseeable at the time of divorce and that his early retirement was voluntary and therefore did not constitute a material and substantial change of circumstances. Gary appeals, and we affirm.

¶2 Gary and Pixie's 2005 divorce decree identified three events that would terminate Gary's alimony obligation: (1) Pixie's remarriage, (2) "her creation of a cohabitation relationship with a person of either sex," or (3) "her death." It also provided that Pixie would receive a "50% distributive share of [Gary's] federal civilian employment civil service retirement account as of and not beyond the entry date of the decree of divorce." Gary had worked as an aircraft mechanic at Hill Air Force Base for thirty-five years before retiring at the age of sixty-one.

¶3 Near the end of 2014, Gary filed the Petition to Modify, asking the court to modify the divorce decree and terminate his alimony obligation, based on his planned retirement the next year. According to the Petition to Modify, he wanted to retire early because he was "simply unable to continue [working]." Because of his retirement, Gary asserted that, "[f]or some reason, [Pixie] believes she is entitled to her alimony, and her appropriate share of [Gary's] retirement accounts, which would obviously be inappropriate and inequitable."

¶4 During the bench trial, Gary testified that he suffered an injury in a car accident in 1998 that broke all of the metatarsal bones in his foot. Then, in 2011 and 2012, Gary underwent shoulder surgeries to repair torn rotator cuffs in each shoulder. As a result of these injuries, Gary claimed it was too painful to continue working and therefore sought early retirement.

¶5 After the bench trial, the court entered an order with supporting findings of facts and conclusions of law. The court concluded that it "[did] not have jurisdiction to terminate alimony" because Gary's retirement was foreseeable at the time of divorce and nothing in the divorce decree provided that retirement would terminate his alimony obligations. It found that the divorce decree allocated half of Gary's retirement account accrued during the time of the marriage to Pixie, but the decree did not provide that receipt of the retirement funds would "modify, terminate, or amend the award of alimony to [Pixie]." In its oral ruling, the court also found that there was no evidence, other than Gary's anecdotal statements, that his injuries rendered him disabled and unable to continue working. It further found that Gary "admitted under cross-examination that he didn't even seek alternative employment or reassignment," and he did not provide any information that his employer had "talked to him about the quality of his work" or his ability to continue working. Without additional evidence to support his inability to continue working, the court concluded that his early retirement was voluntary. For these reasons, the court denied the Petition to Modify. Gary appeals.

¶6 Gary contends the district court erred in determining that his retirement was foreseeable at the time the divorce decree was entered. "In a divorce action, the district court is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity." Anderson v. Anderson , 2018 UT App 19, ¶ 19, 414 P.3d 1069 (quotation simplified). We review a district court's determination regarding a petition to modify a divorce decree for an abuse of discretion. Macdonald v. Macdonald , 2017 UT App 136, ¶ 7, 402 P.3d 178, aff'd , 2018 UT 48, 430 P.3d 612 ; see also Earhart v. Earhart , 2015 UT App 308, ¶ 5, 365 P.3d 719 ("A district court's determination regarding whether a substantial change of circumstances has occurred is presumptively valid, and our review is therefore limited to considering whether the district court abused its discretion.").

¶7 The district court "has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not foreseeable at the time of the divorce." Utah Code Ann. § 30-3-5(8)(i)(i) (LexisNexis Supp. 2017) (emphasis added). In Macdonald , this court addressed the "foreseeability standard" and determined that, rather than use "the verb 'foresee' in its past tense, 'foreseen,' " the "legislature employed the adjective 'foreseeable,' which includes not only those circumstances which the parties or the court actually had in mind, but also circumstances that could 'reasonably be anticipated' at the time of the decree." 2017 UT App 136, ¶ 11, 402 P.3d 178. Our supreme court has affirmed our interpretation of section 30-3-5-(8)(i)(i) and clarified that "the foreseeability inquiry requires a threshold determination of the relevant scope of information to be considered" and that "it is not enough to simply note that something is foreseeable if it can be reasonably anticipated." See Macdonald v. Macdonald , 2018 UT 48, ¶ 31, 430 P.3d 612. "The inquiry of foreseeability is therefore limited to the universe of information that was presented in the record at the time the district court entered the divorce decree." Id. ¶ 5.

¶8 Here, the fact of Gary's retirement was a foreseeable event at the time of the divorce. Gary contributed to a retirement account during the marriage, and a provision of the divorce decree provided that Pixie was entitled to half of that account accrued during their marriage. The fact of Gary's retirement was therefore "foreseeable under the express terms of the decree." See id. ¶¶ 5, 44. And Gary admitted at the bench trial that "[w]hen [he] divorced [Pixie] in 2005 ... [he had] anticipated to work until [he] was 65." The divorce decree also identified three specific events that would terminate Pixie's alimony, but nothing in the decree "specifically call[ed] out retirement as an event which would terminate the alimony obligation." None of these provisions included language that Gary's retirement or the distribution of half of his retirement fund to Pixie would terminate Gary's alimony obligation. We therefore conclude the district court did not abuse its discretion in determining Gary's retirement was a foreseeable event at the time the divorce decree was entered and that nothing in the decree supports the conclusion that retirement was a triggering event for termination of his alimony obligation.

¶9 We conclude that Gary's retirement was foreseeable at the time the divorce decree was entered and the decree did not provide that Gary's alimony obligation would terminate upon his retirement. Accordingly, we affirm.

HARRIS, Judge (concurring):

¶10 I concur in full with the majority opinion, because in my view the result in this case is compelled by the plain language of Utah Code section 30-3-5(8)(i)(i), which allows district courts to modify alimony orders only where there exists a change in circumstances that is both (a) substantial and material, and (b) "not foreseeable at the time of the divorce." (LexisNexis Supp. 2017); see also Macdonald v. Macdonald , 2017 UT App 136, ¶ 12, 402 P.3d 178 (interpreting the statute to require that "a change in circumstances, even a substantial one, can only form the basis for the modification of alimony if that circumstance was not foreseeable -as opposed to actually foreseen-at the time of the divorce" (quotation simplified) ), aff'd , 2018 UT 48, 430 P.3d 612. As the majority opinion recognizes, retirement will usually be foreseeable, and clearly was in this case. See supra ¶7. Accordingly, I agree that the district court did not abuse its discretion in determining that the requirements of the statute were not met, and therefore did not err in declining to consider a modification to the applicable alimony order.

¶11 I write separately for two reasons. First, I wonder whether this result-especially as applied to retirement-is truly what our legislature intended. While it is of course the legislature's task-and not ours-to weigh competing policy considerations and craft legislation, it seems to me that there are compelling policy reasons to prefer the rule discussed in our previous decision in Bolliger v. Bolliger , 2000 UT App 47, 997 P.2d 903, interpreting the statutory language in effect prior to the 1995 statutory amendment discussed in Macdonald , 2017 UT App 136, ¶ 12 n.4, 402 P.3d 178. Under the previous rule, "a party's retirement or receipt of social security, unless expressly foreseen at the time of the divorce, may amount to a substantial material change of circumstances entitling the petitioner to a determination of whether the alimony [order] should be modified." Bolliger , 2000 UT App 47, ¶ 20, 997 P.2d 903. The language of the current statute, by contrast, could give rise to situations in which payor spouses are saddled with alimony obligations that were computed based on pre-retirement income but that, subsequent to their retirement, they may not realistically be able to meet. If that result is not what the legislature intended, then it should consider amending the statute.

¶12 Second, assuming that the current statutory scheme remains in place, I urge family law practitioners and district judges, when negotiating and drafting alimony provisions in decrees of divorce, to make a practice of taking into account the parties' likely future retirement, and making appropriate ex ante adjustments to the payor spouse's future payment obligations to account for significant foreseeable post-retirement changes in the parties' financial situation, including the extent to which the payee spouse will receive significant retirement benefits, and including any changes in the payor spouse's income.

      "As is our practice in cases where both parties share a last name, we refer to the parties by their first name with no disrespect intended by the apparent informality." Smith v. Smith , 2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.

      Similar to the appellant in Macdonald , Gary argues that Bolliger v. Bolliger , 2000 UT App 47, 997 P.2d 903, is controlling and that this court should apply the standard from a prior version of Utah Code section 30-3-5(8)(i)(i). But Macdonald explicitly stated that, although the Bolliger court "did not address whether the 1995 amendment [to this statute] altered the applicable standard ... the standard did change and we apply that standard today." 2017 UT App 136, ¶ 16, 402 P.3d 178 ; see also Macdonald , 2018 UT 48, ¶¶ 27-29, 430 P.3d 612. As a result, any reliance on cases that do not apply the current foreseeability standard for a petition to modify alimony is misplaced.

      Because we conclude Gary's retirement was a foreseeable event at the time of divorce and nothing in the divorce decree provided that retirement would terminate Gary's alimony obligation, we decline to address the remainder of Gary's arguments that relate to whether his early retirement was voluntary.

      This latter proposition is not surprising as a legal matter, although it is perhaps counterintuitive at first blush. Alimony is a form of support, terminable on remarriage and other specific occurrences, limited to the duration of the marriage, and subject to adjustment in the event of a material change of circumstances. See generally Utah Code Ann. § 30-3-5(8) -(10) (LexisNexis Supp. 2017). In contrast, retirement benefits are a property interest, allocable to the named beneficiary if separate property or distributed as marital property if part of the marital estate. See Johnson v. Johnson , 2012 UT App 22, ¶¶ 11-13, 270 P.3d 556, aff'd in part and rev'd in part on other grounds by 2014 UT 21, 330 P.3d 704. Entitlement to retirement benefits is not a function of need, and that entitlement does not end with remarriage or cohabitation. See id. ¶ 11 (providing that "an employee spouse's retirement benefits are subject to equitable distribution in a divorce proceeding, provided that the benefits accrued in whole or in part during the marriage" (quotation simplified) ). But there is an indirect connection between the two. Alimony is a function of need and ability to pay. See Utah Code Ann. § 30-3-5(8)(a)(i)-(iii). To the extent that a spouse otherwise entitled to alimony becomes eligible for retirement benefits, her actual need may well be reduced. And by the same token, if the spouse obligated to pay alimony receives less in retirement than he earned while working, his ability to pay may likewise be reduced. Seen from this perspective, Judge Harris makes an excellent point: where a payor spouse experiences a drop in income at retirement, or where a payee spouse receives significant benefits associated with either spouse's retirement, such changes may well make alimony unnecessary or at least suggest that the amount of alimony be reduced. Thus, anticipating such changes and adjusting alimony accordingly, either prospectively or at the time they occur, makes a great deal of sense. See infra ¶¶10-12. But the majority does not see any need for amendment of the applicable statute. Family law practitioners need only recognize that in all but a handful of divorce cases, retirement is inevitable, and thus a foreseeable, event. As such, it should routinely be dealt with explicitly in the divorce decree.


author: HARRIS, Judge:

text:
    STATE of Utah, Appellee, v. Theodore James SAMUL, Appellant.
    No. 20160465-CA
    Court of Appeals of Utah.
    Filed September 13, 2018
    Teresa L. Welch, Salt Lake City, and Robin K. Ljungberg, Attorneys for Appellant
    Sean D. Reyes and Tera J. Peterson, Attorneys for Appellee
    Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen Forster and Jill M. Pohlman concurred.
    Opinion
   HARRIS, Judge:

¶1 Theodore James Samul pled guilty to attempted aggravated sexual assault and kidnapping, and was sentenced to consecutive prison sentences. He appeals those sentences, raising two general issues for our review. First, Samul argues that the terms of the plea agreement called for concurrent sentences, and that the State breached that agreement when the prosecutor failed to affirmatively argue for concurrent sentences. Samul asserts that his attorney rendered ineffective assistance, and that the district court committed plain error, by failing to require the State to abide by the plea agreement. Second, Samul asserts that the district court plainly erred by imposing consecutive (rather than concurrent) sentences without adequately considering his history, character, and rehabilitative needs. We affirm Samul's sentences.

BACKGROUND

¶2 In December 2002, Samul was charged with aggravated sexual assault and aggravated kidnapping, both first degree felonies, in connection with an incident in which his sister accused him of raping her while driving her home from a family party. A few months later, Samul pled guilty to attempting to commit both offenses, admitting that he "seized [the victim] against her will with the intent to attempt to rape her." No recording of the change of plea hearing at which Samul pled guilty has been preserved, but the details of Samul's guilty plea were set forth on a written plea agreement form. In a section entitled "Plea bargain," that agreement states that "[a]ll the promises, duties, and provisions of the plea bargain ... are fully contained in this statement, including those explained below," and states that Samul will plead to amended charges. Immediately beneath that statement, the form contains two handwritten words: "CONCURRENT SENTENCES."

¶3 After accepting Samul's plea, the district court scheduled a sentencing hearing to be held nearly two months later. In the meantime, Adult Probation and Parole (AP&P) prepared a presentence report. In that report, AP&P noted several mitigating factors that worked in Samul's favor, including that he had a fiancé and a child, that he had a history of drug and alcohol problems for which he had sought treatment, that he was gainfully employed, and that he expressed contrition and accepted full responsibility for his actions. The pre-sentence report also noted several aggravating factors, however, including that Samul's actions in this case were particularly egregious and harmful, that he continued to use drugs and alcohol despite access to treatment options, and that in AP&P's estimation he posed a continuing "danger to the community." AP&P thus recommended that Samul be sentenced to two prison terms of three-years-to-life, to run consecutively.

¶4 At the sentencing hearing, the court first noted that it had reviewed the pre-sentence report. Samul's attorney then addressed the court and emphasized Samul's supportive family and "strong employment record," as well as the fact that his troubles appeared to be related to drug and alcohol use. Counsel did not explicitly argue for a sentence other than prison, but implied that Samul would be amenable to treatment, and argued that, "if the Court is inclined" to impose prison sentences, the sentences should be imposed concurrently, asserting that AP&P's recommendation for consecutive sentences was "not appropriate."

¶5 The prosecutor then addressed the court, and argued that "prison is the absolute appropriate sentence in this case. It's the wish of the victim. I believe that [prison] is really the only appropriate response to what happened here, and I do encourage the Court to follow the pre-sentence report recommendation." In her next sentence, the prosecutor stated that, "[a]s part of the plea bargain, I agree to not speak to the issue of consecutive and concurrent, but I will leave that to the court's decision." Samul's attorney did not express any concern with the prosecutor's statements during the sentencing hearing.

¶6 At the conclusion of the sentencing hearing, the district court told Samul his offense was "disturbing in a number of different ways," and noted that the violence Samul inflicted on his sister was "extreme." The court then indicated that it would "keep you in prison as long as I possibly can because I think it's the only safe way to sentence you for your victim and for the community at large." Accordingly, the court sentenced Samul to consecutive prison terms.

¶7 Samul did not initially appeal his sentence. Nine years later, in 2012, Samul filed a pro se motion seeking to correct alleged errors in his sentence. Samul's motion included a claim that his right to file a direct appeal should be reinstated, pursuant to Manning v. State , 2005 UT 61, 122 P.3d 628, and rule 4(f) of the Utah Rules of Appellate Procedure, because he was not made aware of his right to appeal at his sentencing hearing as required by rule 22(c) of the Utah Rules of Criminal Procedure. The district court corrected one error in Samul's sentence, reducing his sentence for attempted kidnapping to one-to-fifteen-years (as opposed to three-years-to-life), but denied Samul's remaining claims. Samul appealed, and we reversed in part, remanding the case for a determination of whether the district court, back in 2003, had "neglected to inform [Samul] of his right to appeal and of the time period in which to do so." See State v. Samul , 2015 UT App 23, ¶ 35, 343 P.3d 719. On remand, the district court determined that Samul was not properly advised of his right to appeal during his sentencing hearing, and therefore reinstated the thirty-day time period within which Samul could file a direct appeal. Samul subsequently initiated the present appeal.

ISSUES, STANDARDS OF REVIEW, AND PRESERVATION

¶8 Samul raises two general issues for our review. First, Samul contends that the State was obligated, under the terms of the plea agreement, to affirmatively argue for concurrent sentences at the sentencing hearing, and that the State breached the plea agreement by failing to do so. Second, Samul contends that the district court erred by imposing consecutive (rather than concurrent) sentences without adequately considering his history, character, and rehabilitative needs.

¶9 Samul acknowledges that he did not alert the district court that the State had allegedly breached the plea agreement, and therefore concedes that he failed to preserve his first issue. "When a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation." State v. Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443. Our supreme court "has recognized three distinct exceptions to preservation: plain error, ineffective assistance of counsel, and exceptional circumstances." Id. ¶ 19. Samul asks for review of his first issue under two of these exceptions: plain error and ineffective assistance of counsel.

¶10 Samul contends that the district court plainly erred by failing to require the State to affirmatively argue for concurrent sentences. To prevail on such a claim, Samul must show that: "(i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) ... absent the error, there is a reasonable likelihood of a more favorable outcome for [Samul]." State v. Bedell , 2014 UT 1, ¶ 20, 322 P.3d 697 (quotation simplified).

¶11 Samul also contends that his attorney was constitutionally ineffective in failing to object to the State's characterization of the plea agreement at the sentencing hearing. "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." Layton City v. Carr , 2014 UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified).

¶12 With regard to the second issue-whether the district court erred by imposing consecutive sentences-Samul asserts that he preserved the issue, but in the alternative asks us to review the issue for plain error. We agree with the State's position that Samul failed to preserve this issue for appellate review. Samul contends that he preserved the issue by asking for concurrent sentences and presenting mitigating evidence at sentencing. However, to preserve an issue for appellate review, a defendant must first "present the issue to the trial court in such a way that the court had the opportunity to resolve it." State v. Gailey , 2015 UT App 249, ¶ 5, 360 P.3d 805. In order to preserve for appellate review an argument that a sentencing court "erred by imposing consecutive sentences without considering all of the relevant statutory factors and by failing to give adequate weight to various mitigating factors," a defendant must specifically raise that issue with the sentencing court and must provide that court with supporting evidence and relevant legal authority. Id. at ¶¶ 4-5. Merely presenting mitigating evidence and asking the sentencing court for a different sentence, without more, does not preserve the issue for appellate review. Id . ¶¶ 4-5 ; see also State v. Tingey , 2014 UT App 228, ¶ 3, 336 P.3d 608 (noting that where a defendant could not "demonstrate[ ] that he specifically objected to or otherwise brought to the trial court's attention the court's alleged failure to consider the requisite statutory factors in imposing sentence," the issue was not preserved for appellate review). In this case, Samul did nothing more than ask for concurrent sentences and present mitigating evidence. Accordingly, under Gailey and Tingey , Samul failed to preserve this issue. We therefore review this issue for plain error in accordance with Samul's alternative request.

ANALYSIS

A

¶13 First, Samul argues that the State breached the plea agreement by failing to argue affirmatively for concurrent sentences, and asserts that his attorney rendered ineffective assistance, and that the district court plainly erred, by failing to require the State to abide by the terms of the plea agreement. This argument, in both of its iterations, fails because the plea agreement is ambiguous.

¶14 Under Samul's interpretation of the words "CONCURRENT SENTENCES," the State agreed to affirmatively argue for the imposition of concurrent rather than consecutive sentences. Under another at least equally reasonable interpretation, the State agreed to do nothing more than refrain from opposing Samul's advocacy for concurrent sentences. Samul vigorously argues that the plea agreement is unambiguous and cannot possibly encompass the second interpretation, but we are not persuaded. Plea agreements are generally interpreted using principles of contract law. See State v. Terrazas , 2014 UT App 229, ¶¶ 26-27, 336 P.3d 594 (stating that "principles of contract law provide a useful analytic framework" to assist in determining "what the parties reasonably understood to be the terms of [a plea] agreement" (quotation simplified) ). With regard to ambiguities, "courts are particularly willing to identify ambiguities in plea agreements because of the significant constitutional rights the defendant waives by entering a guilty plea." Id. ¶ 27 (quotation simplified). Under contract law, an agreement is ambiguous "if it is capable of more than one reasonable interpretation because of uncertain meanings of terms, missing terms, or other facial deficiencies." Novell, Inc. v. Canopy Group, Inc. , 2004 UT App 162, ¶ 20, 92 P.3d 768 (quotation simplified). However, "terms are not ambiguous simply because one party seeks to endow them with a different interpretation according to his or her own interests." See Mind & Motion Utah Investments, LLC v. Celtic Bank Corp. , 2016 UT 6, ¶ 24, 367 P.3d 994. Instead, both interpretations "must be plausible and reasonable in light of the language used." Id. In this case, it strikes us as an entirely reasonable interpretation for the words "CONCURRENT SENTENCES" to mean that Samul will argue for concurrent sentences, and the State will not oppose that argument. Because both possible interpretations are reasonable, we consider the plea agreement to be ambiguous.

¶15 The presence of ambiguity defeats Samul's argument that his counsel was ineffective. In order to prove that counsel was constitutionally ineffective, Samul must establish both (1) that counsel's performance was objectively deficient; and (2) that there is a reasonable probability that, but for counsel's deficient performance, Samul would have received a more favorable outcome. Strickland v. Washington , 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on the first element, Samul must "overcome the strong presumption that trial counsel rendered adequate assistance and exercised reasonable professional judgment," State v. Burnett , 2018 UT App 80, ¶ 21, 427 P.3d 288 (quotation simplified), "by persuading the court that there was no conceivable tactical basis for counsel's actions." State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162 (quotation simplified).

¶16 Here, we can easily conceive of a reasoned basis for counsel's decision not to object to the State's remarks at sentencing: counsel may have believed that the State was accurately describing the terms of the plea agreement. Given the ambiguity of the phrase "CONCURRENT SENTENCES," it is plausible that counsel believed that the plea agreement simply secured the State's promise not to oppose Samul's argument for concurrent sentences, an interpretation that would have mirrored the State's. Samul has advanced no argument to undermine this potential explanation for counsel's actions, and therefore has fallen short of overcoming the strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment. Accordingly, Samul has not demonstrated that counsel was constitutionally ineffective for failing to object to the State's remarks at sentencing.

¶17 The presence of ambiguity likewise defeats Samul's argument that the district court committed plain error. While Samul is certainly correct that district courts can and should take action when a prosecutorial breach of a plea agreement is brought to its attention, see State v. Smit , 2004 UT App 222, ¶ 17, 95 P.3d 1203 (determining that "when a plea agreement is breached by the prosecutor, the proper remedy is either specific performance of the plea agreement or withdrawal of the guilty plea both at the discretion of the trial judge"), those agreements are contracts between the State and the defendant, and district courts typically do not participate in their negotiation. When their terms are ambiguous, district courts naturally depend on the parties and their attorneys to help the court understand what the terms of the agreement are, and whether there exists any disagreement about their meaning. When the State characterizes the agreement in a particular way in open court, and the defense attorney fails to take issue with the State's characterization, a district court may reasonably assume that the attorneys are proceeding in accordance with their agreement. At a minimum, it is a far cry from obvious error for the district court to rely on the attorneys' characterization of an ambiguous plea agreement.

¶18 This conclusion is bolstered by State v. Gray , 2016 UT App 87, 372 P.3d 715. In that case, a defendant pled guilty to six felony charges pursuant to a plea agreement in which the prosecutor agreed to recommend that five of the defendant's sentences run concurrently, while reserving the right to recommend that the sixth run consecutively. Id . ¶ 2. At the sentencing hearing, the prosecutor stated that he had agreed to recommend that five sentences run concurrently but that he had "stated all along" that he would ask for the sixth sentence to run consecutively. Id. ¶ 7 (quotation simplified). The prosecutor then asked the court to "hand out the maximum punishment in this case." Id . (quotation simplified). The defendant's counsel raised no objection to the prosecutor's statements, id. ¶ 21 n.6, and the court subsequently ordered that all of the defendant's sentences run consecutively, id. ¶ 11. The defendant appealed to this court, arguing that the prosecutor breached the plea agreement when he asked the court to impose the "maximum punishment," and that the court had committed plain error by allowing the breach. Id . ¶¶ 12, 14. This court disagreed, noting that because the prosecutor clarified the terms of the plea agreement before his "maximum punishment" request, the "context of the hearing as a whole [did] not support [the defendant's] claim" that it would have been obvious to the district court that the State breached the plea agreement. Id . ¶¶ 15-17. This court further noted that, "[w]hile defense counsel's inaction is certainly not dispositive, his silence suggests that he saw no error in the prosecutor's presentation worthy of correction and reinforces our conclusion that the alleged breach, if any, was not obvious." Id . ¶ 21 n.6 ; see also State v. Friel , 2015 UT App 95, ¶ 8, 348 P.3d 724 (noting that where a defendant "never alerted the district court" that she believed a prosecutor's description of a plea agreement during sentencing was incorrect, that disagreement "would not have been obvious" to the court).

¶19 In this case, as in Gray , it is far from clear-in the context of the entire hearing-that the State breached the plea agreement during its sentencing argument. Likewise, as in Gray , defense counsel's inaction following the State's remarks strongly suggests that he "saw no error in the prosecutor's presentation worthy of correction," and strongly indicates that any breach would not have been obvious to the district court even had one occurred. Accordingly, the district court did not plainly err when it did not take issue with the prosecutor's remarks at the sentencing hearing.

B

¶20 Second, Samul argues that the district court erred by sentencing him without adequately considering his history, character, and rehabilitative needs. As noted above, due to Samul's failure to raise this issue below, we review it here for plain error, and we conclude that Samul has fallen well short of demonstrating that the district court plainly erred.

¶21 Under Utah law, sentencing courts considering whether to impose concurrent or consecutive prison sentences are required to consider "the gravity and circumstances of the offenses, the number of victims, and the history, character, and rehabilitative needs of the defendant." See Utah Code Ann. § 76-3-401(2) (LexisNexis 2017). This is not to say, however, that a sentencing court must always expressly mention these factors on the record at the sentencing hearing. Indeed, as a "general rule" we will "uphold[ ] the [sentencing] court even if it failed to make findings on the record whenever it would be reasonable to assume that the court actually made such findings." State v. Helms , 2002 UT 12, ¶ 11, 40 P.3d 626 (quotation simplified). Moreover, "we will not assume that the [sentencing] court's silence, by itself, presupposes that the court did not consider the proper factors as required by law." Id . Instead, it is a defendant's "burden to demonstrate that the [sentencing] court failed to properly consider legally relevant factors," State v. Bunker , 2015 UT App 255, ¶ 3, 361 P.3d 155, and this burden cannot be met "by merely pointing to a lack of written findings or the existence of mitigating circumstances," id. (citing Helms , 2002 UT 12, ¶ 16, 40 P.3d 626 ); see also id. (stating that "neither our case law nor our statutes require a [sentencing] court to make specific findings of fact in a sentencing order" (quotation simplified) ). Instead, when reviewing a court's sentencing decision against a challenge that it failed to consider the required statutory factors, "we begin with the presumption" that the court properly considered the factors. See State v. Valdez , 2017 UT App 185, ¶ 17, 405 P.3d 952.

¶22 On this record, Samul fails to persuasively rebut this presumption. Here, Samul argues that the district court did not take various mitigating factors into account during his sentencing, including that Samul's adult criminal history was not extensive, that Samul was remorseful and accepted responsibility for his crime, that Samul had struggled with drug and alcohol abuse and had previously voluntarily attended treatment programs, and that Samul had a good employment record and strong family connections. However, these mitigating factors were noted in AP&P's pre-sentence report, and the district court stated at the beginning of the sentencing hearing that it had reviewed that report. In addition, as Samul acknowledges, the district court was further made aware of these mitigating factors during the sentencing hearing, when Samul's counsel discussed them at some length.

¶23 Under these circumstances, Samul has failed to rebut the presumption that the district court considered the gravity and circumstance of Samul's offenses, the number of victims, and Samul's history, character, and rehabilitative needs. All of these issues were covered in the pre-sentence report, which the district court reviewed, and most of these factors were expressly discussed at the hearing. See State v. Monzon , 2016 UT App 1, ¶ 22, 365 P.3d 1234 (stating that, where "the mitigating evidence that [defendant] believes the district court should have considered was discussed at the first sentencing hearing or was set forth in the [pre-sentence report] ..., we presume that the district court considered that information prior to sentencing"). Accordingly, Samul has not demonstrated that the district court plainly erred by failing to consider the required statutory factors in the course of making its decision to sentence Samul to consecutive sentences.

CONCLUSION

¶24 Samul has not established that the district court plainly erred, or that his attorney rendered ineffective assistance, when they did not challenge the prosecutor's remarks at Samul's sentencing hearing. Samul has also failed to establish that the district court did not adequately consider his history, character, and rehabilitative needs, and Samul therefore falls short of demonstrating that the district court plainly erred by imposing consecutive (rather than concurrent) sentences. Accordingly, we affirm Samul's sentences.

      In his brief, Samul also asked for alternative relief in the form of a remand to "reconstruct the record" regarding Samul's change of plea hearing. However, Samul's appellate counsel appeared to abandon this position at oral argument. Moreover, and in any event, we are not persuaded by Samul's request for a remand, because the only way such a reconstruction could benefit Samul is if Samul's previous attorney were able to testify that his recollection of the terms of the plea bargain in this case differs from the State's position, and that the State actually did agree to affirmatively argue for concurrent sentences. We know, however, that Samul's attorney cannot so testify, because Samul's attorney has already testified in this case that, not only does he not remember the precise terms of the fifteen-year-old plea bargain, he has "no independent recollection" of the case at all, and has destroyed his files pertinent to this case. Under these circumstances, a remand to reconstruct the record would be futile even if Samul had not abandoned his request.

      We acknowledge that principles of plea agreement interpretation generally favor the defendant, and that "courts may in certain circumstances hold the government to a higher standard than the defendant." See State v. Patience , 944 P.2d 381, 387 (Utah Ct. App. 1997). Had it been brought to the court's attention at the sentencing hearing that there was a dispute about the meaning of the plea agreement, the court may have been obligated in that context to construe any ambiguity against the State. See, e.g. , 21 Am.Jur.2d Criminal Law § 617 (2018) (stating that "[a]ny ambiguities in a plea agreement in a criminal case are construed against the government"). However, because the issue was not brought to the court's attention, we review this issue only for plain error and for ineffective assistance of counsel, and in those contexts, for the reasons discussed below, the presence of unacknowledged ambiguity works against Samul. See State v. Gray , 2016 UT App 87, ¶ 21 n.6, 372 P.3d 715 ; State v. Friel , 2015 UT App 95, ¶ 8, 348 P.3d 724.

      Samul also argues that the prosecutor breached the plea agreement by encouraging the district court "to follow the presentence report recommendation." We disagree with this characterization. The prosecutor's statement was referring to that part of the report that recommended that Samul be sentenced to prison rather than jail and probation. This was made clear by the prosecutor's next statement that, "[a]s part of the plea bargain, I agree to not speak to the issue of consecutive and concurrent." Considered in the "context of the entire hearing," see State v. Gray , 2016 UT App 87, ¶ 16, 372 P.3d 715, we do not read the prosecutor's statements as encouraging the district court to follow the presentence report's recommendation of consecutive (as opposed to concurrent) sentences.

      In his brief, Samul tries to evade this conclusion by citing to State v. King , 576 N.W.2d 369 (Iowa 1998). In that case, a prosecutor promised as part of a plea agreement to remain entirely silent at sentencing, but nonetheless spoke at the defendant's sentencing and recommended defendant receive a harsh sentence. Id. at 370. On appeal, the Supreme Court of Iowa vacated the sentence and remanded the case for resentencing, holding that "the prosecutor's promise to remain silent at sentencing, a commonly bargained-for component of a plea agreement, was ignored" and that this amounted to a breach that "tainted the entire sentencing proceeding." Id. at 371. This case does not save Samul's argument for two reasons: first, because Samul has not demonstrated that the State made argument on an issue on which it agreed to remain silent, or that the State remained silent on an issue on which it agreed to make argument, and second, because Gray and Friel (rather than King ) are binding precedent in Utah.

      Samul argues that three cases-State v. Galli , 967 P.2d 930 (Utah 1998), State v. Smith , 909 P.2d 236 (Utah 1995), and State v. Strunk , 846 P.2d 1297 (Utah 1993) -require the conclusion that the district court's sentencing decision was erroneous. The State asserts that those cases have been superseded by statute, but we need not reach that argument because, even if those cases remain good law, we are not persuaded that they apply here in any event. In those cases, our supreme court held that courts had abused their discretion by imposing lengthy consecutive sentences that-under the statutory scheme then in effect-effectively prevented the Board of Pardons from considering parole for decades. See Gray , 2016 UT App 87, ¶ 30, 372 P.3d 715 (discussing Galli , Smith , and Strunk , which imposed combined minimum sentences of fifteen to sixty years). In this case, after the district court corrected the sentencing error, Samul faced one sentence of three-years-to-life, and another sentence of one-to-fifteen-years, for a combined minimum sentence of four years. This sentence does not unduly impact the Board of Pardons' ability to review Samul's eligibility for parole. Accordingly, Samul's reliance on Galli , Smith , and Strunk is misplaced.