The Appellate Group

State v. Hurwitz

State v. Hurwitz, 2021 UT App 112 (Harris, J.)


Defendant’s sentencing hearing was conducted remotely, by videoconference, and Defendant appeared from the county jail, which had a poor audio connection. Defendant appealed, arguing that he was not provided an adequate opportunity to allocate, that his sentence was therefore illegal under rule 22(e) of the Utah Rules of Criminal Procedure, and that his counsel provided ineffective assistance in failing to object to the poor audio quality. The court of appeals affirmed, holding:

  • Rule 22(e)(1)(F) requires the court to correct a sentence that “omits a condition required by statute,” but this provision refers to “the substance of the punishments to which a defendant is sentenced . . . and not the procedures observed by a court during a sentencing hearing.” Here, Defendant was not entitled to relief under rule 22(e) based on his argument that the court had “omit[ted]” providing him with the requisite opportunity to make a statement due to the poor audio quality.
  • Defendant’s counsel did not perform deficiently in failing to object to the poor audio quality because even though the transcript indicated that the defendant’s statement was unintelligible, on the actual audio recording, although “the quality of the audio is not ideal, nearly all of Huwitz’s words are audible and intelligible.”       

Read the full court opinion