State v. Swogger

306 P.3d 840

738 Utah Adv. Rep. 70

STATE of Utah, Plaintiff and Appellee,

v.Charles Adam SWOGGER, Defendant and Appellant.

No. 20120043–CA.

Court of Appeals of Utah.

July 5, 2013.

Gary G. Kuhlmann and Nicolas D. Turner, for Appellant.

John E. Swallow and Kris C. Leonard, Salt Lake City, for Appellee.

Judge STEPHEN L. ROTH authored this Memorandum Decision, in which Judges JAMES Z. DAVIS and CAROLYN B. McHUGH concurred.

Memorandum Decision

ROTH, Judge:

¶ 1 Charles Adam Swogger pleaded guilty with a mental illness at the time of the offenses to aggravated sexual assault, attempted murder, and aggravated burglary. The district court imposed statutory prison terms for each offense, and Swogger appeals the court's sentencing decision. We affirm.

¶ 2 Swogger raises two issues. First, he contends that the district court plainly erred when it failed to conduct a hearing to determine his present mental state. Second, he argues that the court committed plain error when it decided to sentence him to the Utah State Prison rather than commit him to the Utah State Hospital. Specifically, Swogger contends that under the guilty with a mental illness statutes, the court was required to first determine whether the state hospital was an appropriate placement before it could sentence him to prison and that the court failed to do so. “To prevail under plain error review, a defendant must demonstrate that [1] an error exists; [2] the error should have been obvious to the trial court; and [3] the error was harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome.” State v. Low, 2008 UT 58, ¶ 20, 192 P.3d 867 (alterations in original) (citation and internal quotation marks omitted).

I. Swogger Invited the District Court To Accept His Pleas Without Holding a Hearing.

¶ 3 Swogger first contends that the district court erred when it failed to conduct a hearing to assess whether he currently had a mental illness, as required by Utah Code section 77–16a–103 (section 103). Section 103 reads, “Upon a plea of guilty with a mental illness at the time of the offense being tendered by a defendant to any charge, the court shall hold a hearing within a reasonable time to determine whether the defendant currently has a mental illness.” Utah Code Ann. § 77–16a–103(1) (LexisNexis 2012).¹ At the time Swogger entered his pleas, however, he represented to the court, through counsel, that “the State is willing to stipulate that [Swogger] is suffering from a mental illness which would take away the necessity for the Court to have a hearing on whether he's currently suffering from a mental illness.” (Emphasis added.) The State affirmed its agreement, and the court accepted the stipulation, stating, “[T]hat's sufficient, then.” Thus, if the district court erred in failing to hold a hearing, it did so at Swogger's invitation. It is well settled that “a party cannot take advantage of an error committed at trial when the party led the trial court into committing the error,” and accordingly, we “decline[ ] to engage in even plain error review when counsel, either by statement or act, affirmatively represented to the [trial] court that he or she has no objection to the [proceedings].” Pratt v. Nelson, 2007 UT 41, ¶¶ 16–17, 164 P.3d 366 (alterations in original) (citations and internal quotation marks omitted).

¶ 4 In his reply brief, Swogger “concedes that the invited error doctrine may apply to [his] first claim.” He argues that we should nevertheless overlook the invitation because he did not intentionally mislead the court so as to “ ‘preserve a hidden ground for reversal on appeal.’ ” (Quoting id. ¶ 17.) The invited error doctrine, however, serves an additional purpose beyond preventing a defendant from taking advantage of an error he or she created: it allows the district court an opportunity to address the issue in the first instance. State v. Geukgeuzian, 2004 UT 16, ¶ 12, 86 P.3d 742. This second purpose has been the basis for application of the invited error doctrine even when the statement inviting the error was “likely inadvertent and not a conscious attempt to mislead the trial court.” Id. (refusing to review a claim that a jury instruction was erroneous because it did not contain a mens rea requirement where defense counsel had “affirmatively purported to list all ‘essential elements' ” in the proposed instruction). We therefore conclude that Swogger's representation to the court that no hearing was required, even if not intended to mislead, falls within the realm of invited error. Accordingly, we will not consider Swogger's claim that the court plainly erred by not holding a hearing regarding his mental condition as a part of his plea process. Instead, we turn to Swogger's claim that the district court erred in sentencing him directly to prison rather than first to the state hospital.

II. The District Court Did Not Plainly Err in Sentencing Swogger to Prison Rather than to the State Hospital.

¶ 5 Applicable law requires that once the district court has concluded that a defendant who offers to enter a plea of guilty with a mental illness actually suffers from a mental illness, it must accept the plea and then sentence the defendant “in accordance with Section 77–16a–104” (section 104). Utah Code Ann. § 77–16a–103(4). Section 104 directs the court to “impose any sentence that could be imposed under law upon a defendant who does not have a mental illness and who is convicted of the same offense” and then to determine how that sentence will be served: (1) at the state hospital, (2) on probation, or (3) if “commitment to the [state hospital] or probation ... is not appropriate,” in prison. Id.§ 77–16a–104(3). Swogger contends that the plain language of the statute contemplates that imprisonment be the placement of last resort, an option available only after the court determines that the state hospital is not an appropriate placement.²

A. The District Court Did Eliminate the State Hospital as an Appropriate Placement Prior to Sentencing Swogger to Prison.

¶ 6 This court need not decide whether Swogger's interpretation of section 104 is correct because it appears that the district court actually engaged in an evaluation of the sentencing options in accordance with the statutory interpretation Swogger advances. Specifically, in connection with deciding that Swogger should serve his time at the prison, the district court determined that placement at the state hospital was not appropriate. From the time of Swogger's initial appearance on the charges, concerns arose about his competency to stand trial. The court immediately ordered an examination of Swogger's competency, and over the next twenty-one months Swogger was evaluated by a neuropsychiatric physician and three psychologists, including one state hospital psychologist who examined Swogger while he was housed at the state hospital in an effort to restore his competency. All of these reports were available to the court at the time of sentencing. Furthermore, at sentencing, the court also had a presentence investigation report from Adult Probation and Parole and statements from both victims of Swogger's crimes. In addition, the judge who sentenced Swogger had the opportunity to observe and interact with Swogger over a period of nearly two years and was able to apply this experience to his determination of where Swogger should serve his sentence.

¶ 7 After examining the extensive information available, the court made an explicit determination that committing Swogger to the state hospital was clearly inappropriate. Under the statute, commitment to the state hospital is an option only if the court finds both that the defendant's mental illness causes “an immediate physical danger to self or others, including jeopardizing the defendant's own or others' safety, health, or welfare if placed in a correctional ... setting,” and that the state hospital is equipped to provide the defendant with the appropriate “treatment, care, custody, and security.” Id.§ 77–16a–104(3)(a)(ii) (emphasis added). The information before the court, however, did not demonstrate that Swogger would be too dangerous to deal with in prison and supported a conclusion that the state hospital itself was not equipped to provide either adequate treatment or security. For example, the court described Swogger's crimes as “savage and brutal,” even drawing a comparison to “an attack by a wild animal” but “worse than that” because “[i]t was premeditated, and it was heartless.” The court also noted Swogger's menacing behavior toward staff and other patients when previously committed to the state hospital as a basis for its conclusion that the state hospital was not a viable placement option. Specifically, in its written report to the court, the state hospital had expressed serious concerns about its ability to safely house Swogger because he “had at least five incidents of physical aggression toward patients and [state hospital] staff (including spitting in his social worker's face)” and he had made explicit threats to “attack and rape staff.” As a result, the staff was administering psychotropic medication to Swogger and restricting his physical movement with “wrist-to-waist restraints.” ³ The other information available to the court suggested, as well, that the state hospital would not be able to effectively treat Swogger's condition. In their competency reports, two psychologists explained that although Swogger appeared to be suffering from antisocial personality disorder and exhibited some symptoms of psychosis, they were concerned that his more severe symptoms were the product of malingering. A psychologist at the state hospital shared that concern, stating that Swogger's scores on a test “used to assess ... exaggerated psychopathology” indicated an increased likelihood of feigning.

¶ 8 Based on this information, the court found,

His rehabilitative needs, well, ... I suppose we could hope...