Does a disjunctive invitation satisfy Utah's allocution requirements? State v. Graziano Explained

In State v. Graziano, the Utah Court of Appeals addressed whether a trial court’s disjunctive invitation for comments from “defendant or defense counsel” satisfies the constitutional and statutory right to allocution at sentencing.

Background and Facts
Defendant Daryl Graziano pled guilty to two counts of attempted sexual exploitation of a minor, both third-degree felonies. At sentencing, Adult Probation and Parole recommended prison, while defense counsel argued for continued therapy based on a psychologist’s assessment showing progress in treatment. Before imposing concurrent prison terms of zero to five years, the trial court asked: “All right. Comments from the defendant or defense counsel?” Defense counsel responded on behalf of both himself and defendant, saying “we would ask the Court to depart from the recommendation,” but defendant did not personally address the court.

Key Legal Issues
The primary issue was whether the trial court’s disjunctive invitation violated defendant’s right to allocution under Utah Rule of Criminal Procedure 22(a) and the Utah Constitution. Defendant also raised an ineffective assistance of counsel claim, arguing his attorney should have specifically requested a personal opportunity for defendant to address the court.

Court’s Analysis and Holding
The Court of Appeals applied plain error review since the issue was unpreserved. The court explained that Rule 22(a) requires trial courts to “affirmatively provide the defense an opportunity” for allocution through a “simple verbal invitation.” While acknowledging the court’s invitation was technically disjunctive, the court found that in context, both defendant and counsel understood they could speak. The use of “we” by defense counsel indicated prior consultation and agreement on how to proceed. The court concluded no error occurred because defendant received an adequate opportunity to allocute, even though he chose not to speak personally.

Practice Implications
This decision clarifies that allocution requirements can be satisfied even with disjunctive language, provided the context shows both defendant and counsel understood their opportunity to speak. However, practitioners should be cautious about relying on ambiguous invitations and should ensure the record clearly reflects that clients understood their right to personally address the court at sentencing.