Categories: Utah Court Opinions

STATE v. BACON, 2008 UT App 297

State of Utah, Plaintiff and Appellee, v. Michael A. Bacon, Defendant and Appellant.

Case No. 20080217-CA.Utah Court of Appeals.
Filed August 7, 2008. Not For Official Publication

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the Sixth District, Richfield Department, 071600082 The Honorable David L. Mower.

Michael A. Bacon, Draper, Appellant Pro Se.

Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee.

Before Judges Bench, Davis, and Orme.

MEMORANDUM DECISION
PER CURIAM:

Michael A. Bacon appeals the trial court’s denial of his motion to set aside his sentence and plea based on an alleged breach of the plea agreement. This is before the court on its own motion for summary disposition based on the lack of a substantial question for review.

Bacon argued in the trial court that the prosecutor breached the agreement that no officer would make a recommendation to the Board of Pardons when Adult Probation and Parole (APP) filed a postsentencing report recommending that Bacon serve the maximum time. It is well settled that APP is not bound by a prosecutor’s agreement for any sentencing recommendation as part of a plea agreement. See State v.Smit, 2004 UT App 222, ¶ 19 n. 4, 95 P.3d 1203; State v. Thurston, 781 P.2d 1296, 1299-1300 (Utah Ct.App. 1989). Because the plea agreement did not bind APP, there is no breach of the agreement. Accordingly, the trial court did not err in denying Bacon’s motion.

In response to this court’s motion, Bacon argues that the prosecutor’s promise was illusory, thereby making Bacon’s plea involuntary. Bacon does not now argue that the APP report breached the agreement. Instead, he relies on case law to argue

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that the prosecutor could not bind other agencies. See Smit, 2004 UT App 222, ¶ 19 n. 4; Thurston, 781 P.2d at 1299-1300. Accordingly, he claims, the prosecutor misrepresented his authority in the plea agreement and prevented Bacon from entering the plea voluntarily. Bacon raises this issue for the first time on appeal. Below, he argued an alleged breach of the plea agreement. Here, he changes his focus to the voluntariness of the plea. Generally, this court does not review issues raised for the first time on appeal. See Salt Lake City v. Ohms, 881 P.2d 844, 847
(Utah 1994). As a result, we decline to address this issue further.

Affirmed.

Russell W. Bench, Judge, James Z. Davis, Judge, Gregory K. Orme, Judge.

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