Memorandum Decision
2011 UT App 108
Filed April 7, 2011
Kragh was charged with eight counts of exploitation of a vulnerable adult. He agreed to plead guilty to four counts and to pay restitution in exchange to the State’s dismissal of the other four charges and recommendation that he not serve any prison time. The prosecutor and Kragh’s counsel met with the trial judge to determine whether the court would accept this plea agreement. The court said that it was “highly likely” that it would go along with the plea deal but that it was “not willing to tie [it’s] hands.”
Kragh pled no contest to four counts as agreed, and signed a Statement of Defendant in Support of Guilty Plea. The statement warned that the court was not bound by any sentencing recommendation made by the prosecution. At the hearing where the plea was entered, the court explained to Kragh, “If factors warrant it, I can sentence you to something other than what may have been discussed. Do you understand that?” Kragh answered that he understood.
The presentence report recommended that Kragh serve prison time and revealed details about Kragh’s history: He had an extensive criminal record: he had stolen before, he had repeatedly violated parole, he had not paid restitution orders, and he was on probation when he committed the current crimes. It also explained the distress caused to Kragh’s victim. At sentencing, the victim’s son further testified of the impact to the victim. Considering all these details, the trial court sentenced Kragh to restitution and concurrent prison terms of zero to four years on each of the four counts.
Kragh filed a motion to correct an illegal sentence arguing that the trial court was “conditionally bound” and had not allowed him to “affirm or withdraw” his plea when the plea agreement wasn’t followed. His motion was denied and he appealed to the Utah Court of Appeals.
The Court of Appeals agreed with the trial court. In reasoned that Utah Rule of Criminal Procedure 11(i)(2) requires that if a judge decides a different outcome is warranted after approving a plea agreement, the judge must give the defendant an opportunity to either affirm or withdraw his plea. In this case, however, the court never approved the agreement. Instead, the trial court was clear that it would likely go along with the plea agreement but that it was not required to do so.
