author: ORME, Judge:

text:
    2003 UT App 212
    STATE of Utah, Plaintiff and Appellee, v. Edwin Birdhand LEHI, Defendant and Appellant.
    No. 20020590-CA.
    Court of Appeals of Utah.
    June 26, 2003.

      Kristine M. Rogers, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., and Jeffrey S. Gray, Asst. Atty. Gen., Salt Lake City, for Appellee.
   OPINION

ORME, Judge:

1 1 Defendant appeals the trial court's denial of his motion to withdraw his guilty plea to the charge of Driving Under the Influence of Alcohol (DUI). We reverse.

BACKGROUND

[ 2 Defendant was charged with DUI (with two prior convictions), a violation of Utah Code Ann. § 41-6-44 (Supp.2000); Driving on Suspended or Revoked Operator's License, a violation of Utah Code Ann. § 58-3-227(8)(a) (1998); and Driving Without Registration, a violation of Utah Code Ann. § 41-12-1303(1) (Supp.1998). The information described the DUI offense, which is the only offense at issue in this appeal, as follows:

[O]n or about 8-25-2000, the defendant did operate or was in actual physical control of a vehicle, and
(i) had sufficient alcohol in his body that a chemical test given within two hours of the alleged operation or physical control showed that the defendant had a blood or breath alcohol concentration of .08 grams or greater; or (i) was under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree which rendered the defendant incapable of safely operating a vehicle;
and the defendant has at least two or more prior convictions under Utah Code § 41-6-44 within six years of this violation.

T3 At a preliminary hearing, two witnesses for the State-a convenience store manager who observed Defendant at the store for several minutes prior to his arrest and an investigating police offieer-testified about Defendant's behavior at the time of the incident that led to his arrest. The store manager testified that Defendant's driving appeared to be very impaired while he was on the store property, he had great difficulty in maintaining his balance, his eyes were "glazed over," and "he was obviously way past anything reasonable." The police officer also testified to Defendant's lack of balance and added that Defendant's speech was "very slurred" and that he had a "[sitrong odor of alcohol." The officer further stated that he asked Defendant to take a breathalyzer test, but Defendant refused.

14 Defendant entered into a plea agreement with the prosecutor, wherein Defendant agreed to plead guilty to the DUI charge. In exchange, the prosecutor agreed to recommend that the other two charges be dismissed and that Defendant be sentenced to ninety days in jail. Pursuant to this agreement, Defendant filed a plea affidavit with the trial court, which contained the following relevant provisions (handwritten portions are emphasized):

I have received a copy of the ... Information against me. I have read it, or had it read to me, and I understand the nature and the elements of erime{[ ] to which I am pleading guilty....
The elements of the crime[ ] to which I am pleading guilty ... are:
ACTUAL PHYSICAL CONTROL OF A VEHICLE W/ BAC OF .08 OR GREATER W/ 2 OR MORE PRIOR DUIS WII 6 YEARS.
I understand that by pleading guilty I will be admitting that I committed the crimes listed above.... I stipulate and agree ... that the following facts describe my conduct and the conduct of other persons for which I am criminally Hable. These facts provide a basis for the court to accept my guilty ... pleal ] and prove the elements of the erime[ ] to which I am pleading guilty ...:
I WAS DRIVING MY CAR
I HAD BEEN DRINKING
I HAVE TWO PRIOR DUS WII LAST 6 YEARS.

T5 After Defendant filed his affidavit, the trial court conducted a plea colloquy with Defendant, which went, in part, as follows:

THE COURT: Mr. Lehi, did you read this [affidavit]?
MR. LEHI: Yes, Your Honor.
THE COURT: Did you understand what you read?
MR. LEHI: Yes.
THE COURT: Do you swear to me that these statements are the truth?
MR. LEHI: Yes, Your Honor.
THE COURT: I'm required to personally advise you that I do not have to follow any sentencing recommendation the prosecutor may have agreed to make and I can impose the maximum sentence of up to five years in prison; do you understand that?
MR. LEHI: Yes, Your Honor.
THE COURT: I also need to be sure that you are acting of your own free will. Are you? '
MR. LEHI: Yes.
THE COURT: To the charge of Driving Under The Influence Of Alcohol With Two Previous Convictions, a Third Degree Felony, how do you plead?
MR. LEHI: Ab, guilty.
THE COURT: I find the defendant is aware of his legal and constitutional rights and that he has knowingly and voluntarily waived those rights and tendered those-this plea. I order that the plea be entered. The remaining counts are dismissed, pursuant to the plea agreement.

1 6 In accordance with the plea agreement, the prosecutor recommended to the trial court a sentence of ninety days in jail. However, when the trial court declined to follow the prosecutor's recommendation and instead sentenced Defendant "to a term in the Utah State Prison not to exceed five years," Defendant moved to withdraw his guilty plea on the ground that, among other things, it was taken in violation of rule l1(e)(4)(A) of the Utah Rules of Criminal Procedure. The trial court denied his motion, and Defendant now appeals.

ISSUE AND STANDARD OF REVIEW

T7 The issue in this case is whether the trial court sufficiently ensured, in taking Defendant's guilty plea, that Defendant "un-derst[ood] the nature and elements" of the DUI charge, as required by rule 11(e)(4)(A) of the Utah Rules of Criminal Procedure. The Utah Supreme Court has set forth the following standard of review for rule 11 cases:

We review a trial court's denial of a motion to withdraw a guilty plea under an "abuse of discretion" standard, incorporating the "clearly erroneous" standard for the trial court's findings of fact made in conjunction with that decision. However, the ultimate question of whether the trial court strictly complied with constitutional and procedural requirements for entry of a guilty plea is a question of law that is reviewed for correctness.

State v. Holland, 921 P.2d 480, 488 (Utah 1996) (quoting State v. Blair, 868 P.2d 802, 805 (Utah 1993)).

GOVERNING LAW

T8 The Utah Supreme Court requires trial courts to comply strictly with rule 11 in the taking of guilty pleas. See State v. Maguire, 880 P.2d 216, 217 (Utah 1992); State v. Gibbons, 740 P.2d 1809, 1812-14 (Utah 1987). Strict compliance, however, does not require trial courts to rely solely on the plea colloquy in ensuring that defendants understand their rights, see Maguire, 830 P.2d at 218 ("[S]triet compliance can be accomplished by multiple means [.]"), nor does it "relegate[courts] to rote recitation of the rule 11 elements" during the colloquy. State v. Abeyta, 852 P.2d 993, 996 (Utah 1998) (per curiam).

T9 Rather, in determining whether a defendant understands his or her rule 11 rights, a trial court is allowed to rely, to a certain extent, upon plea affidavits and other documents, see, e.g., State v. Smith, 777 P.2d 464, 465-66 (Utah 1989), so long as the court establishes on the record at the time the plea is entered that the defendant has read and understood those affidavits and documents. See Maguire, 830 P2d at 217-18 & n. 2 (articulating this requirement as to plea affidavits and stating that other documents can also be used if they are "similarly incorporated into the record"); Gibbons, 740 P.2d at 1312-18 ("Rule 11(e) squarely places on trial courts the burden of ensuring that constitutional and Rule 11(e) requirements are complied with when a guilty plea is entered.... 'There is no adequate substitute for demonstrating in the record at the time the plea is entered the defendant's understanding of the nature of the charge against him.' ") (emphasis in original) (quoting McCarthy v. United States, 394 U.S. 459, 470, 89 S.Ct. 1166, 1173, 22 LEd.2d 418 (1969); State v. Mora, 2003 UT App 117,191 19-20, 69 P.3d 838 (reiterating this requirement and holding that defendant's "affidavit was not properly incorporated into the record" because "the trial court made no inquiry into whether [defendant] had read, understood, and acknowledged the affidavit"). See also State v. Smith, 812 P.2d 470, 476-77 (Utah Ct.App.1991) (analyzing "the affidavit and colloquy together" since "the trial court carefully reviewed appellant's plea affidavit with appellant during the plea colloquy, and then incorporated the affidavit into the record of the plea hearing"), cert. denied, 886 P.2d 1388 (Utah 1992)

110 However, such affidavits and other documents must be treated as "only the starting point.... The trial judge should [still] review the statements in the affidavit with the defendant, question the defendant concerning his understanding of it, and fulfill the other requirements imposed by [rule 11] on the record before accepting the guilty plea." Gibbons, 740 P.2d at 1818-14. Furthermore, " '[alny omissions or ambiguities in the affidavit must be clarified during the plea hearing " Maguire, 880 P.2d at 217 (quoting Smith, 812 P.2d at 477). Accord Mora, 2008 UT App 117 at 1 19, 69 P.3d 888.

ANALYSIS

{11 Based on the above principles, we conclude that Defendant's plea affidavit was properly incorporated into the plea record. The trial court specifically asked Defendant if he had read and understood it, and Defendant replied that he had. The contents of the information filed against Defendant were also properly incorporated into the record, as Defendant acknowledged the information in his affidavit. See, eg., State v. Penman, 964 P.2d 1157, 1161 (Utah Ct.App.1998) (looking to information after acknowledging "the affidavits stated that [defendant] had received a copy of the information").

{12 However, neither the plea colloquy nor the affidavit contains any mention of the preliminary hearing. Therefore, we cannot use the convenience store manager's or the investigating officer's testimony to judge the legal adequacy of Defendant's understanding of the nature and elements of his DUI charge. See State v. Maguire, 830 P.2d 216, 217 (Utah 1992). Rather, in assessing his understanding, we must limit ourselves to the plea colloquy, the affidavit, and the information.

118 A review of the information and affidavit reveals that an ambiguity existed. The information accurately describes both alternative prongs of the DUI crime: the "blood or breath aleohol concentration" prong and the "incapable of safely operating a vehicle" prong. See Utah Code Ann. § 41-6-44(2)(a) (Supp.2000). However, the affidavit, which is the document in which Defendant formally demonstrated his understanding of "[t]he elements of the crime[ ] to which [he was] pleading guilty," refers only to the "blood or breath alcohol concentration" prong. This is problematic because Defendant could not have been convicted under this prong in the absence of a blood or breath test. Since he could not have been convict, ed under the "blood or breath alcohol concentration" prong, he could have been convicted only under the "incapable of safely operating a vehicle" prong, and that prong was not referenced in the affidavit.

1 14 A plain reading of the affidavit clearly evidences some confusion regarding the crime of DUI as allegedly committed by Defendant. On the one hand, it says, "I have read [the information], or had it read to me, and I understand the nature and elements of [the] crime[ ] to which I am pleading guilty...." However, that statement is then followed by an inapplicable list of DUI elements, ie., the elements pertaining to the "blood or breath alcohol concentration" prong. Based on that portion of the affidavit, we must conclude that the record does not adequately demonstrate that Defendant understood the nature and elements of the DUI charge actually applicable to him.

15 Another problem exists in the affidavit. It states that the fact that Defendant drove his car after he "had been drinking" "prove[s] the elements of the erime[ ] to which [he was] pleading guilty." However, that statement is not correct. Drinking alcohol and then driving, without more, is not a crime in Utah, One commits the crime of DUI only if one drives, having consumed enough aleohol to register "a blood or breath alcohol concentration of .08 grams or greater," as demonstrated by a subsequent chemical test, or drives when "under the influence of aleohol ... to a degree that renders the person incapable of safely operating a vehicle." Utah Code Ann. § 41-6-44(2)(a)(i)-(ii) (Supp.2000). Therefore, Defendant's statement that his driving after he "had been drinking" satisfies the elements of DUI demonstrates a misunderstanding of the nature and elements of the DUI crime.

4 16 The trial court was obligated to clarify these discrepancies during the plea colloquy. See State v. Maguire, 880 P.2d 216, 217 (Utah 1992). It should have acknowledged the inconsistency between the information and the affidavit, informed Defendant that the affidavit's description of the DUI elements was inapplicable to his case, described to Defendant the "incapable of safely operating a vehicle" prong, and asked Defendant if he would admit the facts required by that prong, i.e., that he operated or was in actual physical control of a vehicle while intoxicated to such a degree that he was incapable of safely operating a vehicle. Since the court failed to make these clarifications, it did not strictly comply with rule 11 in accepting Defendant's guilty plea. Therefore, the trial court exceeded its discretion in denying Defendant's motion to withdraw his guilty plea.

CONCLUSION

1 17 Because the trial court failed to comply strictly with rule 11(e)(4)(4) of the Utah Rules of Criminal Procedure in taking Defendant's guilty plea, we reverse the trial court's denial of his motion. We remand with instructions to allow Defendant to withdraw his guilty plea and for such other proceedings as may now be appropriate.

« 18 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and WILLIAM A. THORNE JR., Judge.

      . Section 41-6-44 has been amended since the time of Defendant's arrest, and for that reason, throughout this opinion, we cite to the 2000 version of the statute, the version in effect at the time of the arrest, unless otherwise indicated.
      The pertinent portion of that version reads as follows:
      A person may not operate or be in actual physical control of a vehicle within this state if the person:
      (i) has sufficient alcohol in his body that a chemical test given within two hours of the alleged operation or physical control shows that the person has a blood or breath alcohol concentration of .08 grams or greater; or (ii) is under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders the person incapable of safely operating a vehicle.
      Utah Code Ann. § 41-6-44(2)(a) (Supp.2000).
      The current version of the statute differs from the 2000 version in certain respects. Subsection (i) now simply requires "a subsequent chemical test" rather than "a chemical test given within two hours of the alleged operation or physical control," and it clarifies that the offender must have the requisite blood or breath alcohol concentration "at the time of the test." Utah Code Ann. § 41-6-44(2)(a)(i) (Supp.2002). The current version makes no changes to subsection (i), but it adds a new subsection (iii), which prohibits a person from operating or controlling a vehicle if the person "has a blood or breath alcohol concentration of .08 grams or greater at the time of operation or actual physical control." Id. § 41-6-44(2)(a)(iii).

      . Defendant's motion also alleged (1) violations of Utah R.Crim. P. 11(e)(4)(B), the United States Constitution, and the Utah Constitution; (2) ineffective assistance of counsel; (3) breach of the plea agreement by the State; and (4) involuntary entry of the plea. He then filed an amended motion in which he alleged an additional violation of the plea agreement by the prosecutor. The trial court rejected both motions. The only issues Defendant raises on appeal are the rule 11 issues and the alleged breach of the plea agree- - ment that is contained in Defendant's amended motion. Because we decide this case on rule 11(e)(4)(A) grounds, we do not address either the rule 11(e)(4)(B) argument or the argument based on the alleged breach of the plea agreement.

      . - We acknowledge the case of Salazar v. Warden, 852 P.2d 988 (Utah 1993), in which the Utah Supreme Court did not limit itself to the plea record described in the preceding text. It held: "[A] court ... is not limited to the record of the plea hearing but may look at the surrounding facts and circumstances, including the information the petitioner received from his or her attorneys before entering the plea." Id. at 992.
      However, Salazar is inapplicable here because it was not a rule 11 case. It was a habeas corpus case, involving the issue of whether the defendant had been deprived of a constitutional right, see id. at 991, which is "more than a violation of the prophylactic provisions of rule 11." Id. at 992. Accord Haase v. United States, 800 F.2d 123, 127 (7th Cir.1986); State ex rel. Vernatter v. Warden, 207 W.Va. 11, 528 S.E.2d 207, 215-16 (1999). The Court explicitly distinguished "collateral attack" cases like Salazar from cases involving "a direct appeal from denial of a motion to withdraw a guilty plea." 852 P.2d at 991 n. 6. Since it was looking for a violation of constitutional magnitude, the Salazar court did not restrict itself to reviewing only the plea record.
      Tellingly, the Utah Supreme Court has never applied Salazar's expanded-record standard to a pure rule 11 case. The Court's post-Salazar rule 11 cases have restricted themselves to the more limited record we have described. See, e.g., State v. Thurman, 911 P.2d 371, 374 (Utah 1996). Some of this court's rule 11 cases may have slightly misconstrued Selazar, citing it for the proposition that it does apply to rule 11 cases. See, e.g., State v. Ostler, 2000 UT App 28,% 17, 996 P.2d 1065, aff'd on other grounds, 2001 UT 68, 31 P.3d 528; State v. Stilling, 856 P.2d 666, 674-75 (Utah Ct.App.1993) (addressing rule 11 in the context of an Alford plea). Insofar as those cases implied that Salazar's expanded-record standard applies to rule 11 cases, such an implication may surely be questioned.

      . Utah Code Ann. § 41-6-44(2)(a)() (Supp.2000) requires the requisite blood or breath alcohol concentration to be shown by "a chemical test given within two hours of the alleged [violation]," and that requirement was not met in this case. We recognize that section 41-6-44.5 tempers this requirement somewhat. See Utah Code Ann. § 41-6-44.5(2) (1998) (allowing tardy chemical tests to be admitted into evidence, "but the trier of fact shall determine what weight is given to the result of the test"); id. § 41-6-44.5(3) (''This section does not prevent a court from receiving otherwise admissible evidence as to a defendant's blood or breath alcohol level[.]"). However, the circumstances described in section 41-6-44.5 do not apply to this case. No chemical test, not even a tardy one pursuant to subsection (2), was ever given. As for subsection (3), the State has not argued that we should interpret it to permit non-test evidence to establish that a defendant's blood or breath alcohol concentration exceeded .08, nor does the plea record contain any such evidence.

      . We emphasize that this conclusion is based upon the limited record that we can consider, i.e., the plea colloquy, the affidavit, and the information. We acknowledge it is quite possible that on a purely subjective level, Defendant actually did understand the nature and elements of the DUI charge. However, since such an understanding is not evident from the plea record before us, we cannot conclude that the trial court adequately ensured that Defendant understood the charge. See State v. Maguire, 830 P.2d 216, 218 (Utah 1992) ("The record before an appellate court must contain a basis for [the] findings [required by rule 11.]") (emphasis added); State v. Gibbons, 740 P.2d 1309, 1314 (Utah 1987) {emphasizing the importance for trial courts to take the time to "produce{ ] a clearly adequate record for review"). Cf. State v. Thurston, 781 P.2d 1296, 1301-02 (Utah Ct.App.1989) (stating that if the record reflects that the trial court accurately informed defendant about the maximum possible sentence, defendant's "mere subjective belief as to a potential [lighter] sentence is insufficient to invalidate a guilty plea as involuntary or unknowing").

      . The current version of section 41-6-44 has slightly altered these DUI elements. See note 1.

      . In making this observation, the comments we made in note 5 bear repeating.

      . The State mentioned at oral argument that Defendant "had eight [prior] DUIs." Its stated intent in bringing this to our attention was to persuade us that "it goes beyond rationality to believe that this man did not understand what he was pleading to." - Intuitively, there is some logic to this claim. However, Defendant's past arrests were not mentioned during the plea colloquy; other than the State's passing reference to a DUI arrest in New Mexico, they are not otherwise included in the record; and we have no additional information about them. See note 5. Cf. State v. Snyder, 860 P.2d 351, 357-58 (Utah Ct.App. 1993) (holding that an arrested police officer was entitled to be read his Miranda rights, despite his admitted familiarity with them). Therefore, we do not consider Defendant's prior criminal record in evaluating whether he understood the nature and elements of the criminal offense charged in this case.


source: Caselaw Access Project

author: DAVIS, Judge:

license: Public Domain

text:
    2003 UT App 214
    STATE of Utah, Plaintiff and Appellee, v. Rodolfo SOTOLONGO, Defendant and Appellant.
    No. 20020528-CA.
    Court of Appeals of Utah.
    June 26, 2003.

      John K. West and Kent R. Hart, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Atty. Gen., Kenneth A. Bronston, Asst. Atty. Gen., and Jeffrey T. Colemere, Smart, Schofield, Shorter & Lunceford, Salt Lake City, for Appellee.
    Before JACKSON, P.J., DAVIS, and THORNE. JJ.
   OPINION

DAVIS, Judge:

{1 Defendant Rodolfo Sotolongo appeals from a zero- to five-year prison sentence imposed following his guilty plea to third degree felony aggravated assault. See Utah Code Ann. § 76-5-103(8) (1999). We affirm.

T 2 Defendant argues the sentencing judge exceeded his discretion by sentencing Defendant to prison where another judge imposed a jail sentence and probation upon Defendant's "more culpable" codefendant who pleaded guilty to a greater offense, second degree felony aggravated assault. See id. § 76-5-103(2).

T8 The sentencing judge "has broad discretion in imposing [a] sentence within the statutory seope provided by the legislature." State v. Rhodes, 818 P.2d 1048, 1051 (Utah Ct.App.1991). We will not overturn a sentence unless it exceeds statutory or constitutional limits, the judge failed to consider "all the legally relevant factors," State v. Schweitzer, 948 P.2d 649, 651 (Utah Ct.App.1997), or "the actions of the judge were so inherently unfair as to constitute abuse of discretion." Rhodes, 818 P.2d at 1051 (emphasis omitted).

T4 Defendant concedes his sentence was within statutory and constitutional limits. However, he in essence argues that the code-fendant's lesser sentence and greater culpability were legally relevant mitigating factors and that the sentencing judge exceeded his discretion by failing to consider the same.

T5 Utah Code Ann. § 77-18-1(7) (Supp. 2002) provides that "[alt the time of sentence, the court shall receive any testimony, evidence, or information the defendant ... desires to present concerning the appropriate sentence." Information concerning the appropriate sentence should relate to factors courts may consider in making sentencing determinations, - including - "rehabilitation," "deterrence, punishment, restitution, and incapacitation." Rhodes, 818 P.2d at 1051.

T6 The Utah Supreme Court has recognized in dicta that a defendant may not "complain" solely on the basis that an " "identical sentence[ ] " was not imposed on a co-defendant. State v. Kish, 28 Utah 2d 430, 503 P.2d 1208, 1209 (Utah 1972) (quoting Cusick v. State, 4 Ariz.App. 455, 421 P.2d 537, 588 (1966)). Further, the court has held that Utah Code Ann. § 76-1-104 (1999) does not require "comparative review" of "other criminals and their crimes." State v. Gardner, 789 P.2d 273, 287 (Utah 1989).

17 However, the Utah Sentence and Release Guidelines include as a mitigating cireumstance that the defendant "was [a] less active participant in the crime." Utah Sentence and Release Guidelines app. D, form 4, The Utah Supreme Court has also recognized that a trial court has the discretion to arrest judgment imposed on a defendant where a "similarly situated" codefendant pleads to a lesser crime. State v. Garcia, 29 Utah 2d 52, 504 P.2d 1015, 1015-16 (Utah 1972).

18 In the present case, evidence in regard to the relevant factors was presented "through defendant's testimony{,] his counsel's arguments,] [a] letter{[ ] from ... [the viectim][,] ... the Pre-sentence Investigation Report[,]" and the Diagnostic Evaluation. Schweitzer, 943 P.2d at 652. The record shows the sentencing judge did not fail to consider any relevant information offered by Defendant concerning an appropriate sentence. The judge listened to defense counsel's arguments regarding Defendant's participation in the crime and the codefendant's sentence. Further, the judge stated he had read the "evaluation." The Diagnostic Evaluation and the Presentence Investigation Report indicate Defendant's lesser role in the crime as a mitigating factor. That the judge stated that he did not "know why the co-defendant received the sentence that he did" does not establish that the judge did not consider Defendant's participation in the crime or the codefendant's sentence. Rather, the statement suggests that the judge "could not fully evaluate whether [Defendant and the codefendant] were similarly situated offenders" with respect to their suitability for probation. United States v. Blackwell, 127 F.3d 947, 953 (10th Cir.1997).

19 We also disagree with Defendant's assertion that his prison sentence is "inherently unfair" because his more culpable code-fendant pleaded to a greater offense but received probation. "The sentencing philosophy of the eriminal law is that the punishment should not only fit the crime but the defendant as well." State v. Lipsky, 608 P.2d 1241, 1248 (Utah 1980). "[MJany different ingredients factor into the sentencing process, and ... the discretionary imposition of probation rests in many cases upon subtleties not apparent on the face of a cold record[.]" Rhodes, 818 P.2d at 1051.

{10 Defendant does not argue that denying him probation independent of his codefendant's sentence is "inherently unfair." The record indicates that Defendant was more than just an accomplice to a serious offense. - Defendant wore rubber gloves, gave the codefendant a belt, and held the victim down while the codefendant strangled the victim to the point of unconsciousness. Defendant also threatened to kill the vietim and did not summon authorities. The record further indicates that Defendant was unwilling to take responsibility for his behavior, minimized the injuries, the victim suffered, continued to engage in eriminal activity, and "demonstrated little willingness to benefit from treatment." The record establishes the sentencing judge's decision to deny Defendant probation was not "inherently unfair."

T 11 It was not clear to the trial court, nor is it clear from the record before this court, why the codefendant received probation and jail time. It could be that "[tlhe problem here is not that [Defendant's] sentence should be reduced but, rather, that the [State] should have appealed [the codefend-ant's] sentence because it was too lenient." State v. Morrow, 220 Neb. 247, 869 NW.2d 89, 92 (1985) (per curiam).

112 Accordingly, we affirm Defendant's sentence.

13 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and WILLIAM A. THORNE JR., Judge.

      . "Defendant lodged no objection to the imposition ... of ... restitution.... He thus waived the right ... to challenge the order" that he pay restitution. State v. Snyder, 747 P.2d 417, 421 (Utah 1987).

      . The codefendant received a prison sentence of one to fifteen years. The prison sentence was suspended and the codefendant was sentenced to a year in jail with credit for time served, was placed on probation, and was ordered to perform one hundred hours of community service.

      . The State relies upon cases in which the Utah Supreme Court held that neither the Utah nor the United States Constitution requires comparative or case-by-case proportionality review with respect to imposition of the death penalty. See, e.g., State v. Lafferty, 2001 UT 19,%115, 20 P.3d 342; State v. Archuleta, 850 P.2d 1232, 1249 (Utah 1993); see also Herman v. State, 821 P.2d 457, 458 (Utah 1991) (per curiam) (concluding proof that defendants "were tried, convicted, and sentenced while others who were convicted of the same crime went unpunished does not show a violation of [defendants'] rights to equal protection of the law").
      However, in this case Defendant does not claim that any constitutional provision entitles him to comparative proportionality review. Further, the Utah Supreme Court "review[s the imposition of the death penalty] generally to prevent - disproportionality," including reviewing whether the penalty "was proportionate to [the] defendant's level of culpability." Lafferty, 2001 UT 19 at 11115, 20 P.3d 342.

      . In relevant part, Utah Code Ann. § 76-1-104 (1999) provides:
      The provisions of [the Utah Criminal Code] shall be construed in accordance with these general purposes:

      (3) Prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition or differences in rehabilitation possibilities among individual offenders.

      . In fact, after defense counsel made his argument, he asked to approach the bench, apparently to give the judge something. The judge stated, "I'll take your word for it but I'll be happy to look at it."

      . Defendant argues the sentencing judge exceeded his discretion because he did not explain the sentence disparity on the record. "Neither our case law nor our statutes require a [sentencing judge] to make specific findings of fact in a sentencing order." State v. Helms, 2002 UT 12,-T 12, 40 P.3d 626. Further, "we will not assume that the [sentencing judge's] silence, by itself, presupposes that the [judge] did not consider ... proper factors." Id. at 111. The present case is unlike State v. Strunk, 846 P.2d 1297 (Utah 1993), where the findings expressly established that the trial court did not consider a mitigating factor. See id. at 1300. Here, "the brevity of the sentencing order does not make the order and the facts surrounding the order so ambiguous that it would be unreasonable for us to conclude that the [sentencing judge] ... considered [proper] factors." Helms, 2002 UT 12 at 112, 40 P.3d 626.


author: VOIGT, Justice.

text:
    2003 WY 90
    Leon PULLAR and Linda Pullar, Appellants (Defendants), v. Gerald HUELLE and Cinda Lou Huelle, husband and wife, Appellees (Plaintiffs).
    No. 02-192.
    Supreme Court of Wyoming.
    July 31, 2003.
    Tassma A. Powers of Perkins & Powers, P.C., Casper, Wyoming, Representing Appellants.
    Ken McCartney of the Law Offices of Ken McCartney, P.C., Cheyenne, Wyoming, Representing Appellees.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[¶ 1] Leon and Linda Pullar (appellants) appeal from a summary judgment granted to Gerald and Cinda Lou Huelle (appellees) in a dispute over a real estate purchase contract. The district court found that the contract did not violate the statute of frauds, and that the appellants had anticipatorily breached the contract. We reverse.

ISSUES

[T2] Both parties identify the following issues:

I. - Whether the District Court erred as a matter of law in finding that the Contract was legally binding on [the appellants] and [that] they were required to perform.
II. Whether the District Court erred as a matter of law in finding that the [appellants] anticipatorily breached or repudiated the Contract.
TII. Whether the District Court erred as a matter of law in finding that the contract was ambiguous but appropriate for summary judgment.
IV. Whether the District Court erred as a matter of law in finding that the legal description did not violate the statute of frauds.
V. Whether the District Court erred as a matter of law in awarding Appellees the $40,000.00 without a finding of reasonableness or presentation of actual damages and without providing the [appellants] with due process.

FACTS

[T3] The appellants contacted a realtor about purchasing land in Fremont County. The realtor showed them property owned by the appellees. On April 3, 2001, the appellants signed a Contract to Buy and Sell Real Estate (the contract). Significant terms of the contract included:

1. The property was described as "the following described real estate situate in the City or Town of Pavillion, County of Fremont, Wyoming, commonly known as and more particularly described as ... [a] parcel of land in the NW1/ASW1/4, See. 16, TSN,, R2E., W.R.M., Fremont County, Wyoming."

2. The purchase price was $148,500.00.

3. An - earnest money - deposit of $40,000.00 was required, and in case of default by the appellants, the appellees "may elect to terminate the Contract and retain all payments made hereunder as liquidated damages, such amount being agreed by the parties hereto to constitute compensation for the loss of opportunity suffered by [the ap-pellees] due to such breach."

4. - On April 6, 2001, the appellees were to produce a commitment for a title insurance policy in the amount of the purchase price.

5. The appellants' offer was "contingent upon property appraising for at least the sale price."

6. - Closing was to occur on April 10, 2001, with the appellants having the right to pre-closing possession on April 7, 2001.

[T4] The appellees accepted the appellants' offer by signing the contract on April 4, 2001. On April 5, 2001, before they were informed of the contract's acceptance, the appellants told the realtor that they wanted to rescind their offer. The realtor told them that rescission was not possible. The appellants followed up their oral "rescission" with a letter to the realtor that read:

This letter is to confirm the rejection of the [appellees'] property. Make the cashier check out to both Leon & I and deliver to us now.
As you are the listing agent this contract is not valid.

[¶ 5] The appellants did not purchase the land. The appellees brought this action, seeking a declaration by the district court that the appellants had breached the contract and that the appellees were entitled to the earnest money deposit plus attorney's fees.

STANDARD OF REVIEW

[16] Summary judgment is appropriate in a declaratory judgment action so long as there are no genuine issues of material Snake River Brewing Co., Inc. v. Town of Jackson, 2002 WY 11, 14, 39 P.3d 397, 402 (Wyo.2002). We recently repeated our standard for review of summary judgments rendered under W.R.C.P. 56:

When a motion for summary judgment is before this court, assuming there is a complete record, we have exactly the same duty and materials as did the district court and must follow the same standards. Hoblyn v. Johnson, 2002 WY 152, 11 11, 55 P.3d 1219, 111 (Wyo.2002). The propriety of granting summary judgment depends upon the correctness of a court's dual findings that there is no genuine issue as to any material fact and the prevailing party is entitled to judgment as a matter of law. Id. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all the favorable inferences which may be drawn from the facts contained in affidavits, depositions, and other materials appearing in the record. Id.
The party moving for summary judgment bears the initial burden of establishing a prima facie case for a summary judgment. If the movant carries this burden, the party opposing the summary judgment must come forward with specific facts to demonstrate that a genuine issue of material fact does exist. Eklund v. PRI Emvironmental, Inc., 2001 WY 55, 1 10, 25 P.3d 511, 110 (Wyo.2001). A material fact has been defined as a fact upon which the outcome of the litigation depends in whole or in part. Hoblyn, 2002 WY 152, T 11, 55 P.3d 1219, T 11.

Bertagnolli v. Louderback, 2008 WY 50, T110-11, 67 P.8d 627, 630-31 (Wyo.2003).

DISCUSSION

[17] We find the fourth-listed issue to be determinative in this case. The statute of frauds requires contracts for the sale of real property to be in writing. The appellants contend that the contract in this case fails to satisfy the statute of frauds because the legal description of the land is insufficient. The legal description in the contract reads as follows:

[Thhe following described real estate situate in the City or Town of Pavillion, County of Fremont, Wyoming, commonly known as and more particularly described as ... [a] parcel of land in the NW1/4SW1/4, See. 16, T.SN., R.2E., W.R.M., Fremont County, Wyoming.

[¶ 8] This Court has on several occasions addressed the question of the sufficiency of a property description to meet the statute of frauds. Noland v. Haywood, 46 Wyo. 101, 283 P.2d 845, 845 (1988), was an action for specific performance of a real estate sales contract in which the land was described as "280 acres of Land on Clear Creek in Town ship [sic] 54-Range 79 ... in Sheridan Co...." In concluding that this description was insufficient under the statute, we held that the writing must contain an adequate description or must furnish the means by which the land can be identified. Id. at 848-49. The simple problem in Noland was that the writing did not specify what 280 acres were intended. Id. at 850.

[¶ 9] In Flygare v. Brundage, 76 Wyo. 350, 802 P.2d 759, 761 (1956), the property to be sold was described as 13 acres of land in the NE1/ANW1/4, See. 22, T. 41N., R. 116W., 6th P.M., Teton County, Wyoming, lying west of U.S. Highway 89 and 187. Upon examination of the abstract of title, it was discovered that the tract of land in that section lying west of the highway was only 7.9 acres. Id. at 760. We held that the error in total acreage did not make the de-seription too vague to comply with the statute of frauds because there was no mistaking the land to be sold. Id. at 768.

[T10] We most recently dealt with this issue in Matter of Estate of Jackson, 892 P.2d 786 (Wyo.1995). In Matter of Estate of Jackson, we first held that whether a writing's property description is sufficient under the statute of frauds is a question of law. Id. at 788. We then relied on Noland, 28 P.2d at 845, 846, 850-51, for the following propositions of law:

1. A written memorandum purporting to convey real estate must sufficiently describe the property so as to comply with the requirements of the statute of frauds and permit specific performance.

2. A valid contract to convey land must expressly contain a description of the land, certain in itself or capable of being rendered certain by reference to an extrinsic source which the writing itself designates.

3. The writing's essential provisions may not be supplied by inferences or presumptions deduced from oral testimony. Parol evidence is admissible to identify described property, but parol evidence may not supply a portion of the description. Matter of Estate of Jackson, 892 P.2d at 789.

[¥11] In addition, specifically in regard to the facts in Matter of Estate of Jackson, 892 P.2d at 789-90, we also held:

4. Where a writing purports to convey land, but reserves a portion of it, if the description of the reserved tract is indefinite and uncertain, then the general deseription of the land to be conveyed is also indefinite and uncertain, and the conveyance fails under the statute of frauds.

5. Where a writing only states the total acreage and does not describe the location of the land, the statute of frauds is not satisfied.

[T12] The description of the land in the contract in the instant case simply does not pass muster under these rules of law. The operative portion of the description is "[a] parcel of land in the NW1/ASW1/4, See. 16. ..." The phrase "a parcel of land" identifies neither the size nor the specific location of the land. And there is nothing within the contract that guides us to specific extrinsic evidence of those facts. Nothing is attached to the contract, incorporated into the contract, or even referred to in the contract that would provide the missing information. To go beyond the contract to determine both the size and location of the land being sold would undermine the very purpose of the statute of frauds.

CONCLUSION

[T 13] The Contract to Buy and Sell Real Estate was void because its insufficient property description violated Wyoming's statute of frauds. Reversal of the summary judgment on that ground renders the other issues moot, although such reversal also requires reversal of the district court's damage award. We reverse and remand to the district court for entry of a judgment in favor of the appellants consistent with this opinion.

      . These facts are being presented in the light most favorable to the appellants. The appellants contend that they attempted to "rescind [their] offer...." The realtor testified by affidavit that the appellants attempted to "cancel the Contract."

      . Wyo. Stat. Ann. § 1-37-103 (LexisNexis 2003) states: "Any person interested under a ... contract ... may have any question of construction or validity arising under the instrument determined and obtain a declaration of rights, status or other legal relations." While there is some question whether a declaratory judgment action is an appropriate method to seek damages for breach of contract, that issue has not been raised and the parties have generally treated this as a breach of contract action. See Porcelain Enamel & Manufacturing Co. of Baltimore v. Jeffrey Mfg. Co., 177 Md. 677, 11 A2d 451, 453 (1940); Jacobsen v. King County Medical Service Corp., 23 Wash.2d 324, 160 P.2d 1019, 1021 (1945); and Annotation, 26 C.J.S., Declaratory Judgments § 57 (2001). But see, Rocky Mountain Oil and Gas Ass'n v. State, 645 P.2d 1163, 1167-68 (Wyo. 1982) ("the existence of another adequate remedy will not, of itself, preclude declaratory judgment relief.").

      . Wyo. Stat. Ann. § 1-23-105(a) (LexisNexis 2003) states, in pertinent part:
      In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith:

      (v) Every agreement or contract for the sale of real estate, or the lease thereof, for more than one (1) year[.]