Can prosecutors argue against probation while honoring plea agreement sentencing recommendations? State v. Heward Explained

In State v. Heward, the Utah Court of Appeals addressed whether a prosecutor breached a plea agreement by arguing against probation while simultaneously fulfilling the obligation to “affirmatively recommend” the agreed-upon prison sentence.

Background and Facts

Benjamin Heward pled guilty to two counts of aggravated sexual abuse of his minor daughters. The plea agreement required the State and victims to “affirmatively recommend” concurrent sentences of six years to life, while Adult Probation and Parole recommended fifteen years to life. At sentencing, the prosecutor argued that Heward was ineligible for probation under the narrow statutory exception, citing the severe psychological harm to the victims and Heward’s juvenile record. The prosecutor also explained that the victims had changed their minds about supporting the lenient sentence. However, the prosecutor twice explicitly stated that six years to life “is the State’s recommendation” and that the “State is still bound and still recommending 6 to life.”

Key Legal Issues

Heward claimed the prosecutor breached the plea agreement in two ways: first, by failing to “affirmatively recommend” the six-years-to-life sentence, and second, by implying the State regretted the agreement when discussing the victims’ changed position. Heward also alleged ineffective assistance of counsel for failing to object to the prosecutor’s statements.

Court’s Analysis and Holding

The court rejected both claims. Regarding the alleged breach, the court emphasized that an “affirmative recommendation” does not require enthusiasm or highlighting mitigating factors. The prosecutor’s arguments against probation were consistent with recommending a prison term and did not undermine the agreed-upon sentence. The court noted that prosecutors may bring “all relevant facts to the attention of the court, so long as the statements are neutral and do not imply that the information makes the State regret entering into the plea agreement.” The court also found reasonable strategic bases for counsel’s decision not to object, including that any objection would likely be futile and could jeopardize the favorable plea agreement.

Practice Implications

This decision clarifies that prosecutors can argue against alternative dispositions like probation while still fulfilling plea agreement obligations, provided they explicitly affirm their sentencing recommendation. Defense counsel should carefully consider the strategic risks of objecting to prosecutorial statements that may technically constitute breaches, as successful objections could result in plea withdrawal rather than specific performance. The case also demonstrates that victim impact statements contradicting plea agreements do not automatically constitute State breaches, as victims’ positions do not inherently reflect the State’s recommendations.