Opinion
Case No. 20021006-CA.
Filed December 18, 2003. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Leslie A. Lewis.
John K. West and Kent R. Hart, Salt Lake City, for Appellant.
Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee.
Before Judges Jackson, Billings, and Greenwood.
MEMORANDUM DECISION
Defendant, Wesley David Wright, appeals a judgment of conviction for aggravated assault, a third degree felony, in violation of Utah Code Annotated section 76-5-103 (1999). We affirm.
Defendant first argues that this court should remand the case for resentencing because the prosecutor made remarks during the sentencing hearing that resulted in the trial court imposing a jail sentence "in direct violation of [a] plea agreement." However, Defendant failed to object to the prosecutor's remarks at the time they were made and raises this issue for the first time on appeal.
"It is a well-established rule that a defendant who fails to bring an issue before the trial court is generally barred from raising it for the first time on appeal." State v. Irwin, 924 P.2d 5, 7 (Utah Ct.App. 1996) (footnote omitted); see also State v. Archambeau, 820 P.2d 920, 922 (Utah Ct. App. 1991). However, an exception to this rule exists if an appellant can demonstrate that: "(1) the trial court committed `plain error;' or (2) there are `exceptional circumstances.'" Archambeau, 820 P.2d at 922 (citations omitted).
Defendant does not argue that exceptional circumstances exist which would allow this court to review his claim. Moreover, while Defendant argues in his reply brief that the trial court's failure to correct the breach of the plea agreement constituted plain error, he failed to make this argument in his opening brief. As a general rule, an issue that is raised for the first time in a reply brief will not be considered on appeal. See Romrell v. Zions First Nat'l Bank, 611 P.2d 392, 395 (Utah 1980); see also Utah R. App. P. 24(c) ("Reply briefs shall be limited to answering any new matter set forth in the opposing brief."). Therefore, we decline to review Defendant's breach of plea agreement claim.
Defendant next argues that when the trial court sentenced him to sixty days in jail, it failed to adequately consider relevant mitigating evidence such as Defendant's lack of a prior criminal history, his willingness to take responsibility for his actions, and his strong prospects for rehabilitation. The sentencing decision of a trial court is reviewed for abuse of discretion. See State v. Houk, 906 P.2d 907, 909 (Utah Ct.App. 1995) (per curiam). "An abuse of discretion results when the judge `fails to consider all legally relevant factors' or if the sentence imposed is `clearly excessive.'" State v. McCovey, 803 P.2d 1234, 1235 (Utah 1990) (citations omitted). However, "the trial court's silence, by itself, [does not] presuppose that the court did not consider the proper factors as required by law" and an appellate court will uphold the sentencing decision of a trial court "even if [the trial court] 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 (quotations and citations omitted).
In this case, we conclude that when the trial court sentenced Defendant to sixty days in jail, it considered "all legally relevant factors."McCovey, 803 P.2d at 1235 (quotations and citation omitted). Although the trial court did not explicitly weigh any mitigating evidence at the time of Defendant's sentencing, it "is reasonable to assume," Helms, 2002 UT 12 at ¶ 11 (quotations and citations omitted), that such evidence factored into the court's sentencing decision. Mitigating evidence was presented to the trial court through Defendant's testimony and his attorney's arguments. Defendant's background, character, and personal history were described in detail in the Presentence Investigation Report (PSI) submitted to the trial court. Specifically, the PSI listed, as mitigating circumstances, Defendant's youth, his willingness to assist law enforcement, his amenability to supervision, his good employment and family relationships, and his absence of prior criminal history. The trial court read the PSI prior to the sentencing hearing and gave Defendant the opportunity to correct any inaccuracies that the PSI might have contained. Although the trial court did not reference the contents of the PSI, the Utah Supreme Court has noted that a similar review of presentence information by a trial court was sufficient to demonstrate that a defendant's history, character, and rehabilitative needs had been considered at the time of sentencing. See id. at ¶ 13.
Moreover, in light of the nature of Defendant's offense, we cannot say that the sentence the trial court imposed was "clearly excessive."McCovey, 803 P.2d at 1235 (quotations and citation omitted). During the assault, Defendant placed a buck knife on the victim's neck and threatened him while he was stopped at a red light. In addition, Defendant pleaded guilty to a third degree felony that could have resulted in Defendant being imprisoned for up to five years. See Utah Code Ann. § 76-3-203 (1999 Supp. 2002). Therefore, we hold that the trial court considered "all legally relevant factors" at the time of Defendant's sentencing, and that Defendant's sentence was not "clearly excessive." McCovey, 803 P.2d at 1235 (quotations and citations omitted). Accordingly, the trial court did not abuse its sentencing discretion.
Finally, Defendant argues that the court exhibited hostility toward him at his sentencing hearing and that this created an appearance of judicial bias. However, "`[a] party alleging judicial bias or prejudice must first file an affidavit to that effect in the trial court,'" Campbell, Maack Sessions v. Debry, 2001 UT App 397, ¶ 24, 38 P.3d 984 (quotingWade v. Stangl, 869 P.2d 9, 11 (Utah Ct.App. 1994)); see also State v. Tueller, 2001 UT App 317, ¶ 8, 37 P.3d 1180. Defendant failed to file such an affidavit.
As noted earlier, an appellate court will not consider an issue which is raised for the first time on appeal. See State v. Archambeau, 820 P.2d 920, 922 (Utah Ct.App. 1991). "This principle applies where the bias or prejudice of a trial judge is alleged." Sukin v. Sukin, 842 P.2d 922, 926 (Utah Ct.App. 1992). Therefore, "[h]aving failed to properly preserve the issue of judicial bias for our review, Defendant must show either `plain error' or `exceptional circumstances'" before this court can review the issue. Tueller, 2001 UT App 317 at ¶ 9 (citation omitted).
In this case, Defendant does not argue either plain error or exceptional circumstances. Therefore, we decline to review Defendant's claim of judicial bias.
Affirmed.
WE CONCUR: Norman H. Jackson, Presiding Judge, and Judith M. Billings, Associate Presiding Judge.