State v. James

                This opinion is subject to revision before final
                     publication in the Pacific Reporter
                                

                                   IN THE

      SUPREME COURT OF THE STATE OF UTAH

                             STATE OF UTAH,
                               Petitioner,
                                      v.
                            FRANKLIN JAMES,
                              Respondent.

                            No. 20230883
                      Heard December 11, 2024
                      Filed November 13, 2025

            On Certiorari to the Utah Court of Appeals

              Third District Court, Salt Lake County
               The Honorable Randall N. Skanchy
                          No. 201914105

                                Attorneys:
  Derek E. Brown, Att’y Gen., Daniel W. Boyer, Asst. Solic. Gen.,
                  Salt Lake City, for petitioner
           Erick Grange, Salt Lake City, for respondent

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court,
     in which JUSTICE PETERSEN and JUSTICE POHLMAN joined.
      JUSTICE HAGEN authored a dissenting opinion, in which
                 CHIEF JUSTICE DURRANT joined.


   JUSTICE PEARCE, opinion of the Court:
                          INTRODUCTION
    ¶1 As part of a plea bargain, Franklin James pleaded guilty to
multiple felony counts. In exchange, the State dropped several
charges against James and agreed to recommend probation. The
district court rejected that recommendation and sentenced James to
prison. Our court of appeals reversed for a new sentencing
                            STATE v. JAMES
                        Opinion of the Court

proceeding because James was not invited to allocute—that is, to
personally address the district court prior to sentencing. Although
James did not ask the court for the opportunity to speak, our court of
appeals nevertheless concluded that the district court’s error merited
reversal under our plain error test. To reach this result, the court of
appeals borrowed a holding from the United States Court of Appeals
for the Tenth Circuit that defendants may shoulder their burden of
demonstrating prejudice by showing that the district court failed to
offer them the opportunity to allocute. We decline to adopt such a
rule. The Tenth Circuit based its holding on data from federal
sentencing proceedings. Whatever the implications of that data, they
do not carry over to Utah’s sentencing regime, which differs in
important ways from its federal counterpart. Accordingly, we
reverse and remand the case for the court of appeals to consider
James’s remaining challenge to his sentence—that the district court
abused its discretion in sentencing him to prison.
                          BACKGROUND
    ¶2 A police search of Franklin James’s apartment turned up
illegal drugs, drug paraphernalia, and firearms. The State originally
charged James with eleven counts of various drug- and firearmrelated offenses. Later, in exchange for a guilty plea on three of those
counts, the State agreed to drop the other charges. As part of the
same deal, the parties agreed to “jointly recommend that the prison
sentences be run concurrent to each other and suspended” in favor
of probation. The parties recommended probation over prison in
part to enable James to receive treatment for drug addiction. Before
his change of plea hearing, James wrote two letters to the district
court expressing remorse for his actions.
   ¶3 At that hearing, the district court expressed skepticism
about the parties’ recommendation, noting that James was “not the
sort of person” the court typically sent to “a therapeutic community
without some . . . compelling reason.” To aid in its decision, the court
requested a presentence investigation report from Adult Probation
and Parole (AP&P).
    ¶4 AP&P’s recommendation largely tracked that of the parties.
AP&P endorsed supervised release to a residential treatment facility
as soon as a bed opened, with prison until that time or until James
had served a total of 300 days (including time served while awaiting
his sentence).
   ¶5 Both parties spoke in favor of AP&P’s recommendation at
sentencing. James’s attorney argued that James’s “eloquent” letters,

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the support of community members, and the approval of the target
recovery facility all weighed in favor of accepting the presentence
report. The State agreed and called James’s addiction recovery “an
investment worth taking.”
    ¶6 The district court disagreed. It sentenced James to prison for
the indeterminate terms set by statute, with the sentences to run
concurrently. The court pointed to James’s extensive criminal history
to explain its decision. It also noted its belief that treatment for drug
addiction would be “accessible and available” to James in prison.
   ¶7 At no time during the sentencing proceeding did the district
court ask James to speak. Nor did James ask to address the court.
   ¶8 James appealed his sentence. Before the court of appeals, he
argued that the district court violated his constitutional and statutory
right to allocution when the court failed to ask him to speak before
delivering its sentence. James further argued that the district court
abused its discretion by ignoring the unanimous recommendation of
the State, the defendant, and AP&P.
    ¶9 The court agreed with James’s allocution argument and
vacated his sentence. See State v. James, 

, 

. Because the allocution argument was unpreserved, the court of
appeals reviewed it for plain error. See 

 ¶¶ 7–8. A defendant must
ordinarily show three things to establish plain error: (1) an error
occurred; (2) the error should have been obvious to the district court;
and (3) the error was prejudicial—that is, there is a reasonable
probability that the error affected the outcome of the proceedings.
See id. ¶¶ 7, 22 n.5.
    ¶10 The court of appeals held that the district court made an
obvious error when it failed to “afford [James] an opportunity to
make a statement and to present any information in mitigation of
punishment” before imposing sentence. Id. ¶ 18 (quoting UTAH R.
CRIM. P. 22(a)); see State v. Wanosik, 

, 

(recognizing allocution as “an inseparable part of the right to be
present” under the state constitution (cleaned up)). This satisfied the
first two elements of plain error.
    ¶11 The court of appeals then held that James had proved the
third element by proving the first two. That is, the court of appeals
held that defendants “necessarily demonstrate[]” prejudice merely
by establishing a violation of their right to allocution, James, 

 (cleaned up)—unless they already received “the lightest
possible sentence” or some other “extraordinary circumstance”


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                             STATE v. JAMES
                         Opinion of the Court

applies, id. ¶ 24 (cleaned up). Where James’s case did not reflect any
extraordinary circumstance, he demonstrated prejudice by showing
that the court did not, on its own initiative, invite him to allocute. See
id. ¶ 27.
    ¶12 To reach that result, our court of appeals adopted the United
States Court of Appeals for the Tenth Circuit’s approach, as
articulated in United States v. Bustamante-Conchas, 

 (10th
Cir. 2017) (en banc). James, 

. Bustamante-Conchas
determined that a reasonable probability exists that allocution
matters in “the usual case.” 

. Following the lead of a
then-recent United States Supreme Court case, Bustamante-Conchas
permitted defendants to substitute a statistical probability that an
error mattered to the outcome of a proceeding for a case-specific
showing of prejudice. See 

 (discussing Molina-Martinez v. United
States, 

 (2016)).
    ¶13 Because the court of appeals resolved the case on James’s
allocution claim, it did not reach his abuse-of-discretion argument.
See James, 

, ¶ 7 n.1.
              ISSUE AND STANDARD OF REVIEW
    ¶14 We granted certiorari to determine whether “the [c]ourt of
[a]ppeals erred when it concluded that [James] had necessarily
demonstrated prejudice when he established that the district court
had denied his right to allocution.” “On a writ of certiorari, we
review the decision of the court of appeals, not that of the district
court, and apply the same standards of review used by the court of
appeals. We conduct that review for correctness, ceding no deference
to the court of appeals.” State v. Gallegos, 

, 

 (cleaned up).
                              ANALYSIS
    ¶15 We begin by clarifying the question presented for our
review. Our court of appeals left some doubt as to which of two
possible tests it meant to adopt from the Tenth Circuit. That
ambiguity trickles down to the parties’ arguments. We believe the
test the Tenth Circuit adopted—and the one for which we granted
certiorari review—is that, when a failure to allocute is on the line, the
mere existence of the error can suffice to demonstrate prejudice.
   ¶16 We next address the State’s argument that our caselaw
prevents us from adopting this test and conclude that it does not. But
we need not decide whether to adopt the test in this appeal because,
as we next explain, state-level allocution errors do not meet the

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preconditions of the Tenth Circuit’s test. Because of differences
between state and federal sentencing regimes, we are skeptical that
a reasonable probability exists that allocution errors change the
outcome of the typical Utah sentencing proceeding.
   ¶17 Finally, we conclude that James has presented no case-specific evidence of prejudice.
I. THE QUESTION UNDER REVIEW
    ¶18 The State argues that the court of appeals erred when it
adopted the Tenth Circuit Court of Appeals’ approach to prejudice
related to unpreserved allocution errors. But before we address the
merits of that contention, we must clarify what exactly the Tenth
Circuit’s approach is. The State characterizes it in at least three ways:
(1) as “do[ing] away with harmlessness analysis altogether”; (2) as
creating a presumption of prejudice; and (3) as establishing that
defendants “necessarily demonstrate[] harm” by establishing a
denial of the right to allocution.
    ¶19 Each of these purported glosses on the Tenth Circuit’s
approach describes a distinct exception to the ordinary standard of
plain error prejudice. While federal courts have made use of all three
exceptions, only one—the third—maps onto the rule the Tenth
Circuit set forth in United States v. Bustamante-Conchas, 

(10th Cir. 2017) (en banc). A close reading of Bustamante-Conchas
illustrates this point. But to properly understand Bustamante-Conchas, we must first chart the firmament of federal plain error
review in which that decision resides.
   A. The Federal Plain Error Standard
    ¶20 The “starting point” for understanding the federal plain
error standard is the United States Supreme Court’s decision in
United States v. Olano, 

 (1993). Molina-Martinez v. United
States, 

 (2016). Olano divided plain error review into
“four steps, or prongs.” Puckett v. United States, 

(2009). First, there must have been an error in the district court
proceedings, with “error” defined as an un-waived deviation from a
legal rule. See Olano, 507 U.S. at 732–34. Second, the error must be
plain, or “clear under current law.” Id. at 734; see also Henderson v.
United States, 

 (2013) (clarifying that the error need
only be plain as of “the time of appellate review”). Third, the error
must “affect substantial rights.” Olano, 

 (cleaned up)
(citing rule 52(b) of the Federal Rules of Criminal Procedure). “[I]n
most cases,” this third prong “means that the error must have been


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                             STATE v. JAMES
                         Opinion of the Court

prejudicial.” 

 Finally, if the first three prongs are present, a court
of appeals may exercise its discretion to correct the error. 

 at 735–
36. It should exercise this discretion only where the error is one that
“seriously affects the fairness, integrity or public reputation of
judicial proceedings.” 

 (cleaned up); Puckett, 

.
    ¶21 We pause to say a few more words about the prejudice
requirement, since that is at issue in this appeal. Which party bears
the burden of persuasion is “one important difference” separating
the standards for preserved and unpreserved error in the federal
system. Olano, 

. When an error is preserved, the
government generally bears the burden of persuading an appellate
court that the error was harmless. Molina-Martinez, 578 U.S. at 202–
03. When an error is unpreserved, however, the burden shifts to the
defendant to demonstrate “a reasonable probability that, but for the
error claimed, the result of the proceeding would have been
different.” 1 United States v. Dominguez Benitez, 

, 81–82
(2004) (cleaned up).
    ¶22 The Supreme Court has emphasized that it is—and “should
be”—difficult to establish plain error. Puckett, 

 (cleaned
up). This policy flows from the standard’s “careful balancing of [the]
need to encourage all trial participants to seek a fair and accurate trial
the first time around against [the] insistence that obvious injustice be
promptly redressed.” Johnson v. United States, 

 (1997)
(cleaned up). The rigor of the plain error test induces “the timely
raising of claims and objections” before the district court. Puckett, 556
 __________________________________________________________
   1 Allocation of the burden of persuasion on the prejudice prong is

not the only difference separating the treatment of preserved and
unpreserved error under the federal standard. See United States v.
Olano, 

 (1993). Another is the “distinction between
automatic and discretionary reversal,” with preserved error subject
to automatic reversal (if not show to be harmless) and unpreserved
error subject to appellate court discretion under the fourth prong of
Olano. 

 (Stevens, J., dissenting).
    In Utah, we have not differentiated between preserved and
unpreserved claims as sharply. Except when an error is “of
constitutional dimension,” the defendant bears the burden of
demonstrating harm on appeal, regardless of preservation. State v.
Leech, 

, ¶ 43 n.7, 

; see also State v. Reece,

, 

. Utah also lacks a corollary to the
discretionary fourth element of the federal test. State v. Bond, 

, ¶ 42 n.15, 

.

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U.S. at 134. This is desirable because district courts can address
errors in the first instance and can, unlike appellate courts, correct
errors before they are able to “affect the ultimate outcome.” See 

Additionally, the difficulty of demonstrating plain error discourages
litigants from “sandbagging the court—remaining silent about
[their] objection[s] and belatedly raising the error only if the case
does not conclude in [their] favor.” 

 (cleaned up); see also 

(“Requiring [contemporaneous] objection means the defendant
cannot ‘game’ the system, waiting to see if the sentence later strikes
him as satisfactory.” (cleaned up)).
    ¶23 The Supreme Court has “repeatedly cautioned” against the
creation of “unjustified exception[s]” to plain error review, 

 at 135–
36, or to any of its component prongs, see 

. Indeed, even
some “essential” and “highly desirable” features of criminal
procedure are not so essential or desirable as to trump the
defendant’s “usual burden of showing prejudice.” 

 (cleaned up).
    ¶24 Nevertheless, federal courts have recognized three
exceptions that can justify relieving a defendant from the
requirement of making a case-specific showing of prejudice. First, “a
special category of forfeited errors . . . can be corrected regardless of
their effect on the outcome” because the errors are not amenable to
harmless-error review. Olano, 

. Second, some errors
“should be presumed prejudicial if the defendant cannot make a
specific showing of prejudice.” 

 Third, for some errors, “the error
itself can, and most often will, be sufficient to show a reasonable
probability of a different outcome absent the error.” Molina-Martinez,

.
       1. Structural Errors
    ¶25 Since Olano, the Court has continued to entertain the
possibility that some errors can “automatically satisfy the third
prong of the plain error test.” See Puckett, 

 (collecting
cases). Most often, the Court has linked this exception to the concept
of “structural error” articulated in Arizona v. Fulminante, 

(1991). See Puckett, 556 U.S. at 140–41. Fulminante divided
constitutional errors into trial and structural types. 499 U.S. at 309–
10. Structural errors differ from trial errors in that they “defy analysis
by ‘harmless-error’ standards” because they affect “[t]he entire
conduct of the trial from beginning to end” or “the framework within
which the trial proceeds.” 

 at 309–10. Put differently, they
“transcend[] the criminal process.” 

. Errors deemed
structural include total deprivation of the right to counsel, lack of an


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                             STATE v. JAMES
                         Opinion of the Court

impartial trial judge, unlawful exclusion of grand jurors of the
defendant’s race, denial of the right to self-representation at trial,
denial of the right to a public trial, and an erroneous reasonabledoubt jury instruction. See Johnson, 520 U.S. at 468–69.
    ¶26 Fulminante identified two primary hallmarks of structural
error: (1) a lack of comparable, admissible evidence against which to
measure the effect of the error; and (2) a tendency for the error to
compromise the trial’s reliability “as a vehicle for determination of
guilt or innocence,” such that it is difficult to regard any criminal
punishment as “fundamentally fair.” 499 U.S. at 307–08, 310 (cleaned
up). The Court has since suggested structural errors need not carry
both hallmarks as long as they bear one—or if there is some other
compelling reason to deem an error structural. See United States v.
Gonzalez-Lopez, 

, 149 n.4 (2006). In some cases, the Court
has “rest[ed] [its] conclusion” solely on “the difficulty of assessing
the effect of the error,” while in others fundamental unfairness was
the dominant consideration. 

 Still others have relied on the
“irrelevance of harmlessness.” 

    ¶27 The Court has also explained that its approach to structural
error tends to be “categorical.” Neder v. United States, 

(1999). That is, for an error to qualify as structural, it must “produce[]
consequences that are necessarily unquantifiable and indeterminate,”

 (emphasis added), or “necessarily render a criminal trial
fundamentally unfair,” 

. These are the sort of errors that
“deprive defendants of ‘basic protections’ without which a criminal
trial cannot reliably serve its function as a vehicle for determination
of guilt or innocence and no criminal punishment may be regarded
as fundamentally fair.” 

 at 8–9 (cleaned up). In so holding, the
Court rejected a proposal to divide a single kind of constitutional
error into trial and structural subtypes based on an initial factual
determination, explaining that the proposal was incompatible with
the concept of structural error. See 

 at 13–14 (criticizing a party for
“import[ing] into the initial structural-error determination . . . a case-by-case approach that is more consistent with our traditional
harmless-error inquiry”).
   ¶28 As noted, the Court has in several cases considered the claim
that structural errors should be exempt from the plain error
standard’s prejudice inquiry. Puckett, 

 (collecting
cases). However, in each case, the Court rejected the argument that
the constitutional violation at issue was structural, obviating any
need to rule on the ultimate question. See 

 at 140–41.


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       2. Errors Entitled to a Presumption of Prejudice
    ¶29 In contrast to its frequent discussion of a potential
relationship between structural error and the prejudice requirement
of plain error, the Court has not revisited the possibility of
presuming prejudice post-Olano. Several circuit courts, however,
have adopted such presumptions. To determine whether a
presumption of prejudice is appropriate, courts have typically
looked to (1) whether “the inherent nature of the error [makes] it
exceptionally difficult for the defendant to demonstrate” prejudice,
United States v. Barnett, 

, 526–27 (6th Cir. 2005), and
sometimes also (2) whether the error affects an important right, such
that the trial or sentencing process has been rendered
“presumptively unreliable” or has had its “legitimacy . . . called into
question,” United States v. Adams, 

 (3d Cir. 2001).
    ¶30 Astute readers may notice these are similar to the criteria
most often used to distinguish between trial and structural error. See
supra ¶ 26; cf. Gonzalez-Lopez, 

 n.4. Despite that
important overlap between the two inquiries, however, the question
of whether to presume prejudice differs in several important ways
from a structural error determination. First, structural errors are a
subset of constitutional errors, whereas the presumption of prejudice
can cover non-constitutional errors as well. See Adams, 

. Second, errors presumed prejudicial need not have a pervasive,
all-encompassing effect on the proceedings—there is no requirement
that the errors affect “[t]he entire conduct of the trial from beginning
to end” or “the framework within which the trial proceeds.” See
Fulminante, 499 U.S. at 309–10.
    ¶31 Third, the presumption of prejudice is not always
categorical. Compare Neder, 

, with Adams, 

n.10. Some errors to which the presumption has been applied are not
capable of causing prejudice in every case. For example, some courts
have reasoned that when a judge hands down the lowest permissible
sentence, there is no possibility that exercise of the right to allocution
could have produced a lower sentence. See, e.g., Adams, 

 n.10 (“[W]hen the defendant is sentenced at the bottom of a
Guidelines range, there is [generally] no opportunity for a violation
of the right of allocution to have played a role in the district court’s
sentencing decision . . . .”); United States v. Reyna, 

, 351
n.6 (5th Cir. 2004) (en banc) (“[Several circuits] have concluded that
resentencing is not required if the defendant received the lowest
possible sentence at the bottom of the guideline range and no


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                             STATE v. JAMES
                         Opinion of the Court

arguments were made to the sentencing court that the range was
incorrect for any reason.”). Accordingly, depending on the right at
issue, a defendant may need to make a threshold showing that the
right “could have” influenced the outcome of the proceedings had it
been properly exercised. See United States v. Luepke, 

(7th Cir. 2007); see also, e.g., Adams, 

 (“[W]e should
presume prejudice when a defendant shows a violation of the right
[to allocution] and the opportunity for such a violation to have
played a role in the district court’s sentencing decision.”); Barnett, 

 (presuming prejudice where a “distinct possibility”
existed that the defendant might have received a lesser sentence
absent the error).
    ¶32 Flowing from this non-categorical approach, many courts
permit the government to offer evidence to rebut the presumption of
prejudice—effectively shifting the burden to the government to
prove any error was harmless. See, e.g., United States v. Greenspan, 

, 156–57 (3d Cir. 2019) (specifying that the presumption of
prejudice is rebuttable); United States v. Syme, 

, 154–55
(3d Cir. 2002) (same); Barnett, 

 (same). As the Sixth
Circuit explained, “while an appellate court will normally be unable
to assess the significance of any . . . error that might have been made,
we can imagine cases where the trial record contains clear and
specific evidence” that exercise of the right would not have made a
difference. Barnett, 

 (cleaned up).
       3. Errors That Demonstrate Prejudice by Themselves
    ¶33 While the Supreme Court has yet to ratify either Olano
exception, it did adopt a quasi-exception to plain error prejudice in
Molina-Martinez, 

. Molina-Martinez dealt with a challenge
to a criminal sentence calculated under an incorrect guidelines range.
See 

. Under the federal sentencing scheme, the United States
Probation Office calculates a sentencing range based on the Federal
Sentencing Guidelines and factors described in rule 32 of the Federal
Rules of Criminal Procedure. See 

. The district court must
consult this Guidelines range but retains discretion to depart from it.

    ¶34 The question in Molina-Martinez was whether a defendant
could demonstrate plain-error prejudice when the Probation Office
calculated the incorrect Guidelines range and the district court
handed down a sentence within that range. See 

 at 194–95. The
United States Court of Appeals for the Fifth Circuit held that Molina-Martinez could not demonstrate prejudice because he had not


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                         Opinion of the Court

pointed to any “additional evidence” in the record that “the
Guidelines range was a primary factor in sentencing”—such as a
statement from the judge to that effect. 

 (cleaned up).
   ¶35 On appeal to the Supreme Court, Molina-Martinez argued
that Guidelines errors should be subject to a presumption of
prejudice under Olano. Brief for Petitioner at 13, Molina-Martinez v.
United States, 

 (2016) (No. 14-8913), 

.
Molina-Martinez’s understanding of Olano differed somewhat from
that of many federal circuits. He agreed that to qualify for a
presumption of prejudice, an error must be of such a type that a
defendant will likely not be able to make “a specific showing of
prejudice.” 

 at 12 (quoting Olano, 

). But in his view,
something more was required. He argued that “any presumption of
harm should be based upon empirical evidence and experience that
the ‘natural effect’ of a particular type of error is to affect substantial
rights.” 

 at 27 (citing Shinseki v. Sanders, 

 (2009)
and Kotteakos v. United States, 

, 765–66 (1946)). Molina-Martinez accordingly marshalled empirical evidence to argue that
Guidelines errors affect the typical federal sentence. 

 at 31–38.
    ¶36 The Supreme Court ruled in Molina-Martinez’s favor and
adopted his empirical mode of reasoning—but it pointedly refused
to describe its approach as a presumption. It held that “[w]hen a
defendant is sentenced under an incorrect Guidelines range . . . the
error itself can, and most often will, be sufficient to show a reasonable
probability of a different outcome absent the error.” Molina-Martinez,

 (emphasis added). The Court based this rule on its
view that the Federal Sentencing Guidelines exercise a “real and
pervasive effect” on sentencing outcomes. 

. Although
federal sentencing is ultimately discretionary, the Guidelines
“anchor the district court’s discretion.” 

 at 198–99 (cleaned up).
District courts “understand that they must begin their analysis with
the Guidelines and remain cognizant of them throughout the
sentencing process.” 

 (cleaned up). Thus, as a general
matter, the Guidelines are “not only the starting point for most
federal sentencing proceedings but also the lodestar.” 

.
Taking up Molina-Martinez’s invitation, the Court relied on statistics
to support its conclusion, noting that, in the preceding decade, more
than 80% of federal sentences fell within the recommended
Guidelines range absent a government motion for a sentence outside
of that range. 

.




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                         Opinion of the Court

    ¶37 Accordingly, the Court held that “[a]bsent unusual
circumstances,” a defendant may “satisfy his burden to show
prejudice by pointing to the application of an incorrect, higher
Guidelines range and the sentence he received thereunder.” 

. The government remains free to point to record evidence to
“counter” the defendant’s “ostensible” prejudice showing. 

 at 200–
01 (cleaned up). But where “the record is silent,” the defendant will
prevail—at least “in most instances.” 

. The Court concluded
that this rule was necessary because in “a significant number of cases
the sentenced defendant will lack” specific evidence of the judge’s
thought process. 

 In other words, it will typically be difficult for a
defendant to prove prejudice flowing from Guidelines errors using
record evidence. See 

    ¶38 Molina-Martinez fits somewhat uneasily within the Court’s
plain error jurisprudence. On the one hand, it conceived of
defendants as satisfying their burden to show prejudice, see 

,
rather than, as under the Olano categories, qualifying for a
presumption that shifts the prejudice burden to the government or
else provides a categorical exemption from harmlessness review, see

. On the other hand, Molina-Martinez recognized that
allowing “the error itself” to speak to prejudice had the effect of
awarding “most” ties—cases where “the record is silent”—to the
defendant. 

 at 198–99, 201. Despite the Court’s caveat limiting the
implications of a silent record to “most” cases, it is not readily
apparent how the government could counter the systemic likelihood
of prejudice from Guidelines error without direct evidence.
Nevertheless, Molina-Martinez insisted that its holding did not
amount to a burden-shifting presumption but merely foreclosed
operation of “a categorical rule” against demonstrating prejudice
through non-record evidence. See 

.
   B. Plain Error and the Right to Allocute in the Federal Circuits
    ¶39 The majority of federal circuits have declined to require the
ordinary prejudice showing from defendants on plain error review
of denial of the right to allocution. See United States v. Bustamante-Conchas, 850 F.3d at 1137–38 (collecting cases). But their approaches
differ. Some circuits apply a tradition of per se reversal that predates
Olano and thus does not situate the exception within more recent
plain error jurisprudence. See, e.g., United States v. De Alba Pagan, 

, 129–30 (1st Cir. 1994) (tracing per se reversal back to a 1689
English common law decision); see also Adams, 

 n.7
(collecting cases).


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   ¶40 Other circuits employ some version of the Olano
presumption. See, e.g., Adams, 

; United States v.
Haygood, 

 (6th Cir. 2008). These circuits have
tended to ground this result in “the nature of the right” to allocution
and “the difficulty of proving prejudice from its violation.” Adams,

. On the nature of the right, the Third Circuit reasoned
that allocution is “the type of important safeguard” without which a
sentencing proceeding’s “legitimacy is called into question.” 

. To deny the right of allocution is “tantamount to denying [a
defendant’s] . . . most persuasive and eloquent advocate,” 

because, as a plurality of the Supreme Court once put it, “[t]he most
persuasive counsel may not be able to speak for a defendant as the
defendant might, with halting eloquence, speak for himself,” 

(quoting Green v. United States, 

 (1961) (plurality
opinion)). A sentence rendered without the benefit of a defendant’s
“unique perspective on the circumstances relevant to his sentence,
delivered by his own voice,” is, some circuits have concluded,
“presumptively unreliable.” 

    ¶41 Relative to the difficulty of proving prejudice, various
circuits have noted that “the impact of the omission [of allocution]
on a judge’s discretionary sentencing decision is usually enormously
difficult to ascertain.” Id. at 288 (cleaned up); accord Reyna, 

 (concluding that a defendant would have an “onerous
burden” establishing prejudice under the traditional standard);
Haygood, 

 (explaining that “prejudice is effectively
presumed when allocution is overlooked because of the difficulty in
establishing that the allocution error affected the outcome of the
district court proceedings” (cleaned up)); Luepke, 

(noting “the immense practical difficulty facing a defendant who
otherwise would have to attempt to prove that a violation affected a
specific sentence”).
    ¶42 Many of these decisions posit a correlation between a
sentencing court’s degree of discretion and a defendant’s ability to
demonstrate prejudice: generally speaking, the greater a court’s
discretion, the harder it will be for a defendant to prove prejudice.
See, e.g., Adams, 

; Luepke, 

. The Seventh
Circuit drew out this relationship the most explicitly. It noted that
the argument for presuming prejudice stemming from allocution
errors “ha[d] even more to recommend it” in the wake of a Supreme
Court decision that rendered the federal sentencing Guidelines
advisory. Luepke, 

 (discussing United States v. Booker,

 (2005)). That decision left district courts to the

                                  13
                             STATE v. JAMES
                         Opinion of the Court

“reasonable exercise of [their] discretion” in sentencing. See 

 Under
such a regime, the Seventh Circuit reasoned, it is “almost
impossible” to determine the likely effect of a hypothetical allocution
statement on sentencing. 

    ¶43 The Tenth Circuit charted a different course in Bustamante-Conchas. Prior to that decision, the Tenth Circuit treated allocution
errors as either per se or presumptively prejudicial. 

.
However, it came to view these descriptors as “technically
inaccurate.” 

. Instead, it reconceived its approach under a
framework inspired by Molina-Martinez, holding that “a defendant
who shows he has been denied the right to allocute has met his burden
of demonstrating prejudice absent some extraordinary
circumstance.” 

 (emphasis added).
    ¶44 Bustamante-Conchas mirrored Molina-Martinez every step of
the way. Where the latter cited statistics showing more than 80% of
federal sentences fall within the recommended Guidelines range
(absent a government motion to depart from it), 

, the
former cited a survey that found that over 80% of federal district
judges consider allocution “at least ‘somewhat important’ in arriving
at a final sentence,” 

 (citation omitted). Just as Molina-Martinez reasoned that the “ordinary” impact of the Guidelines
range on sentencing may substitute for a more direct showing of
prejudice, so Bustamante-Conchas held that the likelihood that
allocution matters in “the usual case” may satisfy the prejudice
requirement without additional, case-specific evidence. See 

    ¶45 Bustamante-Conchas acknowledged that in some cases, there
may be “exceptionally good reason to doubt” that allocution would
have mattered. See 

. This bucket of “exceptional
circumstance[s]” includes, but is not necessarily limited to, cases
where the defendant is sentenced at or below the statutory
minimum. 

 This language tracks, although it is somewhat more
restrictive than, Molina-Martinez’s allowance that the government
may “counter” a defendant’s error-alone prejudice showing with
record evidence. Compare 

 with Molina-Martinez, 578 U.S. at 200–
01.
   C. The Utah Court of Appeals’ Opinion
    ¶46 Our court of appeals wanted to “adopt” Bustamante-Conchas’s approach to prejudice for allocution errors. See James, 

. But, perhaps because Bustamante-Conchas is a bit
slippery in its analysis, it is not always easy to discern what portion
of Bustamante-Conchas the court of appeals sought to import into

                                   14
                          Cite as: 

                         Opinion of the Court

Utah law. At times, the court of appeals quotes Bustamante-Conchas
for the rule that, absent extraordinary circumstances, defendants
may “satisfy” or “me[e]t” their burden of prejudice merely by
showing that they have been deprived of the right to allocute. 

 ¶ 24
(quoting 

). But at other times, the court of
appeals describes Bustamante-Conchas as holding that allocution
errors are “per se or presumptively prejudicial.” See id. ¶¶ 24, 27
(cleaned up).
    ¶47 As explained above, we do not read Bustamante-Conchas to
have adopted a presumption of prejudice framework. Rather, the
language the court of appeals quotes to that effect comes from
Bustamante-Conchas’s descriptions of the Tenth Circuit’s prior
approach, which Bustamante-Conchas itself disavowed. See 

, 1141 n.7, 1142. Bustamante-Conchas instead tracked the
approach of Molina-Martinez, 

 at 1139–40, which had also rejected
a presumption framework, see Molina-Martinez, 

.
Ultimately, the court of appeals’ opinion can be read to have adopted
both approaches Bustamante-Conchas discussed—an Olano
presumption of prejudice and a Molina-Martinez-type rule that error
alone can demonstrate prejudice.
    ¶48 The haziness surrounding Bustamante-Conchas is
understandable. The Tenth Circuit’s opinion is not always precise
about whether it is announcing a new rule or merely putting old
wine in a new bottle—that is, recasting the existing rule in different
language while leaving its substance intact. Compare 

(describing Molina-Martinez language as “a more precise description
of our jurisprudence” than the Olano framework), with 

 at 1141 n.7
(“choos[ing] not to accept” the “position that prejudice should be
presumed”). Additionally, the opinion drew two dissents, each of
which refused to credit the majority’s fine distinctions. One declared
that the majority had “effectively” shifted the burden to the
government by not requiring a specific showing of prejudice “based
on the record on appeal.” 

 at 1145–46 (Tymkovich, C.J., dissenting)
(cleaned up). The other averred that it could not distinguish the rule
the majority adopted from a presumption. See 

 (Hartz, J.,
dissenting).
   ¶49 It may be true that Molina-Martinez error-alone prejudice
and the Olano presumption of prejudice differ little in practical effect.
But the two are distinguished by different substantive concerns and
require different showings to persuade a court to adopt them. The
two rules share an initial consideration in common: it must be


                                   15
                             STATE v. JAMES
                         Opinion of the Court

difficult for a defendant to prove prejudice from record evidence, at
least in the typical case. Compare Molina-Martinez, 

(noting that in “a significant number of cases . . . defendants will
lack” evidence of a sentencing judge’s view of the federal
Guidelines), with Adams, 

 (holding that “some errors
to which no objection was made should be ‘presumed prejudicial’ if
the defendant cannot make a specific showing of prejudice” (quoting
Olano, 

)).
     ¶50 From there, however, the standards diverge. The
characteristic feature of Molina-Martinez error is that prejudice must
be likely in the “usual,” Molina-Martinez, 

, or
“ordinary,” Bustamante-Conchas, 

, case. That
likelihood—deduced from system-wide surveys or other data—
justifies a court in concluding that a defendant has in fact shown a
reasonable probability that the error mattered to the outcome. See
Molina-Martinez, 

 (concluding that the Guidelines
range affects “most” federal sentences and that this probability “is
all that is needed” to establish a reasonable probability of a different
outcome in most cases); Bustamante-Conchas, 

 (finding
“a reasonable probability that allocution matters in the usual case”
and concluding that this probability is enough to demonstrate
prejudice absent extraordinary circumstances).
    ¶51 The Olano presumption, on the other hand, tends not to
involve statistical probabilities of prejudice. Instead, it employs a less
restrictive version of the framework often used for structural error.
See supra ¶¶ 29–32. When weighing whether to apply an Olano
presumption, courts consider the relative importance of the right at
issue and the effect of its absence on the reliability and integrity of
proceedings alongside the difficulty of proving prejudice from the
record. See, e.g., Adams, 

 (finding it “appropriate to
presume prejudice because the sentencing process itself was
rendered presumptively unreliable” by deprivation of the right to
allocute); Syme, 

 (discussing Adams and concluding
that “[l]ike a denial of the right of allocution, a constructive
amendment [to an indictment] also violates a basic right of criminal
defendants”).
    ¶52 All of this leaves some question as to the nature of the task
before us. Under which of these rubrics should we evaluate denial of
Utah’s constitutional right to allocute at sentencing? Ultimately, we
think the applicability of the Molina-Martinez framework is what is
properly under our review. The court of appeals found the Tenth


                                   16
                         Cite as: 

                        Opinion of the Court

Circuit’s approach “compelling,” James, 

, so we
turn directly to Bustamante-Conchas to see whether we also find its
approach compelling. We do so bearing in mind that Bustamante-Conchas used Molina-Martinez as its blueprint and explicitly rejected
the Olano presumption framework prevalent in other circuits. See
Bustamante-Conchas, 850 F.3d at 1138–39, 1141 n.7.
    ¶53 Accordingly, we address the State’s arguments to the extent
they touch on our reading of the Tenth Circuit test—that is, to the
extent they militate against treating allocution error as a species of
Molina-Martinez error. We first take up the State’s claim that our
caselaw precludes adoption of the Tenth Circuit test by asking
whether we have ever barred defendants from demonstrating plain
error prejudice through non-record or systemic evidence. We
conclude that we have not and next consider whether prejudice is so
likely in the typical Utah sentencing proceeding that a defendant can
be said to have demonstrated prejudice merely by presenting an
appellate court with “an ordinary denial” of the right to allocute. See
Bustamante-Conchas, 

.
II. THIS CASE PRESENTS AN ISSUE OF FIRST IMPRESSION
    ¶54 The State argues that we have foreclosed adoption of a
Bustamante-Conchas-style rule through two lines of caselaw. Most
directly, the State contends that our allocution cases establish that
even preserved allocution errors are reviewed “for harmlessness by
examining what potential effect the defendant’s proffered allocution
would have had in light of the sentencing record as a whole.” This
line of cases is inconsistent with the court of appeals’ opinion, the
State argues, because it would not make sense to impose a higher
burden on preserved claims than unpreserved claims of the same
type. But even were we to “revisit” those cases, the State maintains
that our plain error doctrine would still dispose of James’s claim
because that doctrine requires a showing of “actual prejudice” for all
unpreserved claims. We address each argument in turn.
   A. We Have Not Foreclosed an Indirect Showing of Prejudice for
      Denials of the Right to Allocution
    ¶55 The State points to State v. Young, 

 (Utah 1993),
for the proposition that preserved allocution errors are subject to
harmless error review. But the State misidentifies the controlling
holding of Young. The State’s brief cites to Young’s lead opinion,
which would have held that denial of the right to allocution is always
subject to harmlessness review and was harmless in Young’s case.


                                  17
                            STATE v. JAMES
                         Opinion of the Court

(Citing Young, 853 P.2d at 359–60.) But the lead opinion lost the
majority on the allocution issue.
     ¶56 Instead, three justices, writing across three separate
opinions, held that the allocution error required reversal. Justice
Durham wished to subject preserved allocution errors in capital
cases to per se reversal—i.e., to reverse without any inquiry into
harmlessness. 

 (Durham, J., concurring in part and
dissenting in part). The other two justices did not think they needed
to go that far. 

 at 417–18 (Zimmerman, J., concurring in part and
dissenting in part); 

 (Stewart, J., concurring in part and
dissenting in part). They believed that the denial of allocution had
prejudiced Young, and so the court could reverse without deciding
whether allocution error “warrants an automatic reversal or whether
it is to be appraised under our usual harmless error rule.” 

 at 417–
18 (Zimmerman, J., concurring in part and dissenting in part); see 

 (Stewart, J., concurring in part and dissenting in part).
Although Justice Durham favored a per se rule, she agreed that, even
without one, reversal of Young’s death-penalty sentence was
required because a different outcome was reasonably likely in the
event Young had been permitted to speak. 

 (Durham, J.,
concurring in part and dissenting in part).
   ¶57 That narrower ground represents Young’s controlling
reasoning on allocution. But it is not extraordinarily useful here,
since it rested on Young’s facts and deferred the legal question of
whether allocution errors are exempt from harmlessness review.
    ¶58 The State relies on State v. Anderson, 

 (Utah
1996), for the same proposition—that preserved allocution errors are
subject to a prejudice requirement. But Anderson did not decide that
question either. In Anderson, we held that a defendant waived his
right to be present at sentencing when, despite having adequate
notice and an opportunity to appear, he voluntarily absented himself
from proceedings. 

. As one “practical consideration[]”
weighing in favor of our holding, we noted that the Eleventh Circuit
had “held that a showing of prejudice is necessary to uphold a due
process challenge against an in absentia proceeding” and that
Anderson had failed to make such a showing. 

 (citing Dasher v.
Stripling, 

, 387–88 (11th Cir. 1982)). The parties spill much
ink debating whether our brief discussion of the Eleventh Circuit’s
rule constituted an independent basis for our holding or dicta.
   ¶59 But we need not resolve that dispute. Even if we did adopt
the Eleventh Circuit’s rule in Anderson, it would not help the State.


                                   18
                          Cite as: 

                         Opinion of the Court

First, all we discussed in the disputed passage of Anderson was the
threshold question of whether a prejudice requirement applied to a
claim at all. We did not list every way in which that requirement
might be satisfied.
    ¶60 Second, Anderson did not deal with the same kind of error
we confront in this case. We decided Anderson on the basis of waiver.
Id. at 1111. But plain error rests on principles of forfeiture, not
waiver. See United States v. Olano, 

 (1993) (explaining
that “[m]ere forfeiture, as opposed to waiver, does not extinguish an
‘error’” for purposes of plain error review); see also 

 (“Whereas
forfeiture is the failure to make the timely assertion of a right, waiver
is the intentional relinquishment or abandonment of a known right.”
(cleaned up)); accord State v. Bond, 

, 

(discussing Olano). Therefore, Anderson does not dictate our
resolution of this appeal.
   B. We Have Not Foreclosed an Indirect Showing of Prejudice for
      All Plain Error Claims
   ¶61 The State relies principally on State v. Bond, 

, 

, for the proposition that all unpreserved claims require a
defendant to show “actual prejudice.” If we take the State’s use of
“actual prejudice” to mean a record-specific showing of a reasonable
probability of a different outcome, then the State inflates the scope of
Bond’s holding.
   ¶62 The appellant in Bond argued that when a defendant raises
an unpreserved claim arising under the U.S. Constitution, the
burden shifts to the State to prove that the error was “harmless
beyond a reasonable doubt.” Id. ¶¶ 35, 37. This proposed rule
involved two distinct components: burden-shifting and the
imposition of a “heightened review standard” on the State. See id.
¶¶ 37–39, 44. Whereas the default plain error standard requires the
defendant to show a reasonable probability that an error was
harmful, the appellant’s preferred rule—derived from the Supreme
Court’s test in Chapman v. California, 

 (1967)—would have
the State prove constitutional error harmless beyond a reasonable
doubt.
    ¶63 In rejecting the defendant’s proposed application of
Chapman’s “heightened standard of review,” Bond did no more than
affirm that unpreserved federal constitutional claims are, like other
unpreserved claims, “to be reviewed under our plain error doctrine.”
Bond, 2015 U5 88, ¶ 44. But see 

 ¶ 38 n.11 (noting that Bond’s
holding does not necessarily extend to capital cases, “which may

                                   19
                             STATE v. JAMES
                         Opinion of the Court

garner unique review under our case law”). Notably, Bond did not
say that under plain error review, the burden can never shift to the
State to show a lack of prejudice under the mirror image of the
defendant’s standard—i.e., that there is no reasonable probability of
a different outcome. Nor did Bond discuss whether defendants might
ever employ non-record evidence to demonstrate prejudice.
    ¶64 In sum, we see no reason to read Bond as deciding anything
more than what was necessary to dispose of the briefed argument
that “preservation is immaterial” when a claimed error arises under
the federal constitution. Preservation would remain material even
under a burden-shifting presumption. Under such a presumption, it
is true that the State would bear the burden of proof for both
preserved and unpreserved errors. But the standard of proof would
differ: harmlessness beyond a reasonable doubt for preserved errors
and no reasonable probability of harm for unpreserved ones.
    ¶65 Bond’s use of federal case law reinforces our reading. Bond
framed its holding as updating Utah law to track more recent federal
cases. See id. ¶ 41. One of these federal cases, Johnson v. United States,

 (1997), had determined that even structural errors are
subject to plain error review. See 

. That is, as we parsed
Johnson’s holding in Bond, unpreserved constitutional claims are
neither “per se reversible” nor are they reviewed “under the
heightened Chapman standard.” See Bond, 

. They are
instead “subject to preservation requirements,” including “a
harmlessness analysis.” 

    ¶66 But Johnson did not limit the ways in which harm might be
shown under the plain error test. See 520 U.S. at 468–69. To the
contrary: it entertained an argument that structural errors are per se
prejudicial. See 

 Ultimately, Johnson did not rule on that argument
because it resolved the case on the discretionary fourth prong of the
federal plain error standard. See 

 at 469–70. But the Supreme Court
has continued to consider similar arguments. See Puckett v. United
States, 

, 140–41 (2009) (collecting cases). And the Court
has never imposed the kind of strict, record-specific prejudice
requirement onto defendants that the State reads into Bond. Indeed,
it did just the opposite in Molina-Martinez—the very case that
inspired Bustamante-Conchas.
    ¶67 And that takes us to the critical flaw in the State’s argument.
It does not make much sense to read Bond as adopting any rule more
stringent than the federal standard upon which it “[b]ased” its
holding. See 

. It makes even less sense to take a case


                                   20
                         Cite as: 

                        Opinion of the Court

which endeavored to keep Utah law current with its federal
counterpart, see id. ¶ 41, to foreclose our adoption of a federal
standard promulgated subsequent to Bond. 2
    ¶68 We have not decided whether defendants may meet their
prejudice burden through the kind of indirect, system-wide evidence
at issue in Bustamante-Conchas and Molina-Martinez. We now turn to
whether application of the Bustamante-Conchas rule is warranted for
denials of the right to allocution in state criminal proceedings.
III. THE COURT OF APPEALS ERRED WHEN IT ADOPTED BUSTAMANTE-CONCHAS’S APPROACH TO PREJUDICE
    ¶69 While we have left the door open to Molina-Martinez error,
we decline to walk through it in this case. Allocution errors in state
sentencing proceedings do not meet that exception’s key
requirement: a high probability of prejudice in the ordinary case. The
court of appeals was not presented with any evidence that exercise
of the right to allocution affects the typical Utah sentence. And we
have reason to doubt that it does, given important differences
between Utah and federal sentencing schemes.
   ¶70 Federal district courts sentence defendants to a fixed term of
imprisonment in a version of what is known as a determinate
sentencing regime. See United States v. Booker, 

, 235–36
(2005). Judges retain wide discretion under this regime and can vary


 __________________________________________________________
   2 The State also relies on State v. Holgate, 

, 

.

Holgate is not dispositive for the same reason Bond is not: it merely
states the elements of plain error without addressing the question of
whether prejudice might ever be shown through indirect or non-record evidence. See id. ¶ 13. Notably, in reciting the plain error
standard, Holgate quotes a case wherein we qualified that the burden
to establish prejudice rests on the appellant “[i]n general.” State v.
Dunn, 

, 1208–09 (Utah 1993), abrogated on other grounds
by State v. Silva, 

, 

; see Holgate, 

. This phrasing aligns with federal cases that specify the
defendant bears the burden of showing prejudice only in “the
ordinary case” or in “most cases.” See, e.g., Molina-Martinez v. United
States, 

 (2016); Olano, 

. By its terms,
such language leaves open the possibility that the burden may
appropriately shift or that the element may be met through non-record evidence.

                                  21
                             STATE v. JAMES
                         Opinion of the Court

the duration of a sentence by as little as one month. 3 By contrast,
Utah employs an indeterminate sentencing regime, under which
“the trial judge [ordinarily] has no discretion in fixing the term of
imprisonment.” 4 Labrum v. Utah State Bd. of Pardons, 

(Utah 1993) (cleaned up). Instead, the trial judge “simply imposes the
statutorily prescribed range of years, and the Board of Pardons
determines exactly how long the prisoner is to be confined.” 

(cleaned up). As such, the Board of Pardons “performs a function
analogous to that of the trial judge in jurisdictions that have a
determinate sentencing scheme.” 5 

 (cleaned up). Utah trial
judges still have some discretion, but it is largely confined to two
binary determinations: between probation and prison, see UTAH
CODE § 77-18-105(2), and between consecutive and concurrent
sentencing when a defendant is convicted of multiple crimes, see id.
§ 76-3-401.
   ¶71 The gulf in discretion granted state and federal judges
undercuts the persuasive value of Bustamante-Conchas’s reasoning.
Even if Bustamante-Conchas were correct that “allocution matters in
the usual [federal] case,” 

, we see no warrant for

 __________________________________________________________
   3 See U.S. SENT’G GUIDELINES MANUAL § 5A (Sentencing Table)

(U.S.      SENT’G       COMM’N          2025),   available at
https://www.ussc.gov/guidelines/2025-guidelines-manual/annot
ated-2025-chapter-5 (last visited Nov. 4, 2025).
   4 The Legislature has excepted certain crimes from this general

rule, permitting trial judges some discretion to hand down a lower
sentence if they find that doing so is “in the interests of justice.” See
UTAH CODE §§ 76-5-302(5) (aggravated kidnapping), -402.1(5) (rape
of a child), -402.3(4) (object rape of a child), -403.1(5) (sodomy on a
child). Notably, a court “may not grant probation” for any of the
crimes for which such an exception has been adopted. Id. § 76-3-
406(2).
   5 After sentencing, the Board of Pardons generally schedules an

“original hearing” where it fixes the length of an offender’s prison
term. See UTAH ADMIN. CODE R671-201. By rule, offenders have a
“right to be present” at this hearing (as long as they are “housed in
the state”). Id. R671-301-1(2). As part of the right to be present, “[t]he
offender may speak, present documents, ask questions of the hearing
official, and answer questions.” Id. This right may serve some of the
informational functions that allocution tends to serve in determinate
sentencing regimes.

                                   22
                         Cite as: 

                        Opinion of the Court

concluding that allocution matters in the same way or to the same
extent in the typical Utah case. The sources Bustamante-Conchas relied
upon do not include any Utah data, see 

 and the differences
between our sentencing regimes sharply limit any inferences that
might be drawn from federal data. At no point below has James cited
additional sources, Utah-based or otherwise, tending to show that
allocution makes a difference in the typical indeterminate sentencing
proceeding.
    ¶72 And we are skeptical that it does. As a general rule, the
wider a sentencing judge’s discretion, the greater the chance that any
information presented “in mitigation of punishment,” including an
allocution statement, see UTAH R. CRIM. P. 22(a), might affect a
sentence. Cf. Luepke, 

. Because Utah judges are
confined to largely binary decisions at sentencing, the odds that
allocution will affect a given sentence are relatively small. Allocution
certainly might matter, particularly in a close case. But that is not
enough for us to conclude that the existence of an allocution error,
where a defendant has not asked to allocute, by itself demonstrates
prejudice flowing from that error. 6 Where we cannot conclude that
an error matters in the typical case, Bustamante-Conchas and Molina-Martinez have no application.
IV. JAMES HAS NOT PROVIDED ANY DIRECT EVIDENCE OF PREJUDICE
    ¶73 Our default rule for unpreserved state constitutional claims
is that a defendant must demonstrate prejudice. See State v. Bond,

, ¶ 41 n.14, 

. Although we explained above
that plain error prejudice might be demonstrated indirectly, James
has not done so here, because, in Utah, allocution errors are not of
the type that generally affect the outcome of sentencing proceedings.
The State argues that, at this stage, James’s remaining route to
sustaining the court of appeals’ judgment lies in demonstrating

 __________________________________________________________
   6 That is not to say that allocution is an unimportant part of

sentencing in Utah. To the contrary, allocution has many potentially
important roles. It can be salutary for victims to hear a defendant
take responsibility for his actions and acknowledge the harm his
crimes have caused. Allocution can help a defendant, who may have
been largely silent throughout the proceedings, feel seen and heard
by the criminal justice system. What we cannot conclude, on the
briefing before us, is that prejudice generally occurs when a Utah
defendant who has not asked for the opportunity to address the
court is sentenced without allocuting.

                                  23
                            STATE v. JAMES
                        Opinion of the Court

prejudice through case-specific evidence. We agree and conclude
that James has failed to make such a showing. 7
    ¶74 To demonstrate prejudice in this setting, a defendant must
establish what they would have said had they been permitted to
allocute. In some cases, this can be done using material that is already
in the record, such as statements from counsel or letters from the
defendant to the court. The idea is to point to mitigating
circumstances or expressions of remorse that could conceivably
influence sentencing. Since the material is already in the record, the
district court is presumed to have been aware of it when it handed
down its sentence. But a defendant is free to point to evidence that
the court failed to take adequate account of this information or to
argue the court would have metabolized the same information
differently if it had been presented in the defendant’s own voice.
    ¶75 Other times, there may not be enough information in the
record to establish the content of an allocution statement. In these
cases, our decision might be aided by a record supplemented to
include more information about the allocution the defendant would
have made. To the extent that the Utah Rules of Appellate Procedure
do not currently account for all circumstances in which a defendant
in James’s position would want to supplement the record, we
encourage our appellate rules committee to consider changes to the
rules.
    ¶76 Here, James has pointed to some record evidence that
fleshes out a likely allocution statement. Counsel below told the
district court that James’s crimes had their roots in opioid addiction,
and James himself wrote letters to the court expressing contrition
and asking for a chance to “prove [his] valiancy in truly wanting to

 __________________________________________________________
   7 As explained above, federal caselaw recognizes three potential

exceptions to the ordinary plain error burden. Our holding in this
case is limited to the application of a Molina-Martinez exception for
allocution error. As outlined in section II, supra, we have not
previously decided whether allocution errors are structural, nor
whether they should be entitled to a rebuttable presumption of
prejudice. Given the briefing and procedural posture of this case, we
do not think it is wise to reach these questions. Thus, per our default
rule, James is limited to showing prejudice from the record. But a
future party should feel free to brief the applicability of the
remaining federal exceptions to plain error prejudice or to advocate
for a different test on state law grounds.

                                  24
                          Cite as: 

                         Opinion of the Court

change.” On the basis of these statements, James contends that “there
is a reasonable likelihood of a more favorable result if [he had been]
permitted to personally express his desire to change and receive
treatment.”
    ¶77 We disagree. The district court rejected the unanimous
request of James, the State, and AP&P to grant probation—in large
part because it believed that James’s long criminal history
undermined his claims of remorse. Under these circumstances, we
are hard-pressed to conclude that a spoken statement of contrition,
however emotional, would have changed the court’s mind. As such,
we conclude that James has failed to establish a reasonable
probability of receiving a lesser sentence had he been permitted to
allocute. 8



 __________________________________________________________
   8 We readily concede the dissent’s point that it can be difficult for

a defendant to demonstrate prejudice related to denial of the chance
to allocute. See infra ¶¶ 87–93. But the same is true for many kinds of
errors that occur during trial. This is why the inquiries into whether
to presume prejudice or to deem an error structural tend to be
comparative. See, e.g., United States v. Syme, 

 (3d Cir.
2002) (“Like a denial of the right of allocution, a constructive
amendment also violates a basic right of criminal defendants . . . .”);
Puckett v. United States, 

 (2009) (declining to consider
breach of a plea agreement structural error because “it shares no
common features with errors we have held structural”).
    That is, the question to be answered is whether the difficulty of
assessing the effect of allocution error is “greater . . . than with
respect to other procedural errors at sentencing,” see Puckett, 

, or whether “the inherent nature of [allocution] error [makes]
it exceptionally difficult for the defendant to demonstrate that the
outcome of the lower court proceeding would have been different
had the error not occurred,” United States v. Barnett, 

,
526–27 (6th Cir. 2005) (emphasis added). The briefing has not done
the work to situate allocution within the pantheon of rights—to
establish whether the effect of its deprivation is more or less
amenable to proof than its cousins. While acknowledging the
dissent’s careful reasoning, we are reluctant to decide that question
ourselves without the benefit of briefing focused on that inquiry. See
supra note 7.

                                   25
                            STATE v. JAMES
                         HAGEN, J., dissenting

                           CONCLUSION
    ¶78 The court of appeals erred when it adopted the Tenth
Circuit’s approach to conclude that James demonstrated that he was
prejudiced when he showed that the district court did not invite him
to allocute at sentencing. James has failed to establish the third
element of plain error—that the error caused him to suffer
prejudice—through either direct or indirect evidence. He is therefore
not entitled to a new sentencing proceeding on his argument
concerning the failure of the court to invite him to allocute. We
remand to the court of appeals to consider James’s claim that the
district court abused its discretion when it sentenced James to prison
instead of probation.


   JUSTICE HAGEN, dissenting in the Opinion of the Court:
                          INTRODUCTION
     ¶79 The majority holds that the court of appeals erred in
adopting the Tenth Circuit’s approach to prejudice for allocutionrelated errors. See supra ¶¶ 69–72; see also United States v. Bustamante-Conchas, 

 (10th Cir. 2017) (en banc). We appreciate the
majority’s thoughtful discussion of federal plain error and the Tenth
Circuit’s Bustamante-Conchas rule. And we agree that the significant
differences between our federal and state sentencing schemes make
it less likely that affording a defendant the right to allocute would
alter the sentence ultimately imposed in a state proceeding. For those
reasons, we, too, would reject the Tenth Circuit’s rule that the denial
of the right to allocute is presumptively prejudicial because it is
reasonably likely to have affected the sentence.
    ¶80 But we would affirm the court of appeals decision on other
grounds. 9 See Bailey v. Bayles, 

, 

(recognizing that we may affirm “on any legal ground or theory
 __________________________________________________________
   9 The majority indicates that its holding is cabined—at least in

part—by the briefing and procedural posture of the case. See supra
¶ 73 n.7. We granted certiorari to determine “[w]hether the court of
appeals erred when it concluded that the defendant had necessarily
demonstrated prejudice when he established that the district court
had denied his right to allocution.” So long as we have granted
review on a particular issue, the way in which we articulate our
certiorari grant should not prevent us from affirming on that issue if
the court of appeals reached the right result for the wrong reasons.

                                   26
                           Cite as: 

                         HAGEN, J., dissenting

apparent on the record” (cleaned up)). Instead of presuming that
there is a reasonable probability that allocution would have resulted
in a lower sentence, we would not require a showing of prejudice
based on the likelihood of a different outcome. Allocution serves
important purposes beyond mere sentence mitigation. Those
purposes do not necessarily lead to a more favorable result but
protect less outcome-driven goals of sentencing, the perception of
procedural fairness, and a defendant’s constitutional right to appear
in a meaningful way. Because of the unique nature of allocution
errors, we believe this is a rare instance in which it is “unnecessary
and ill-advised to pursue a case-by-case inquiry to weigh actual
prejudice.” State v. Arguelles, 

 (Utah 1996) (cleaned
up).
   ¶81 That said, we are sensitive to the danger of developing
exceptions to the plain error rule through case law, and we respect
our colleagues’ objection to doing so in this case. Going forward, we
support amending Utah Rule of Criminal Procedure 22 to allow
defendants to obtain a new sentencing hearing when the district
court fails to comply with its obligations under rule 22(a). We would
welcome recommendations from our Advisory Committee on the
Rules of Criminal Procedure on whether such a rule is advisable and
under what circumstances resentencing should be permitted. To
begin that conversation, we offer our thoughts on why the failure to
invite allocution should be treated differently than other sentencing
errors.
                              ANALYSIS
    ¶82 Allocution errors will almost always be unpreserved. It
would be a rare case indeed where a defendant raises the issue at
sentencing and the court nonetheless denies an opportunity to
allocute. Given the affirmative obligation placed on district courts
under rule 22(a), see State v. Wanosik, 

, 

,
these errors are invariably raised under the plain error exception to
preservation.
    ¶83 Under our test for plain error, a defendant must ordinarily
show that “(i) an error exists; (ii) the error should have been obvious
to the trial court; and (iii) the error is harmful.” State v. Holgate, 

, 

 (cleaned up). No one disputes that the court’s
failure to comply with rule 22(a) was error and “that the law
governing the error was clear at the time the alleged error was
made.” State v. Dean, 

, 

. The dispute turns
on the third prong.


                                    27
                              STATE v. JAMES
                          HAGEN, J., dissenting

    ¶84 To show that an error was harmful, a defendant must
ordinarily show “a reasonable likelihood of a more favorable
outcome” but for the error. Holgate, 

 (cleaned up).
But we have previously recognized that, “pursuant to our inherent
supervisory power over the courts, we may presume prejudice in
circumstances where it is unnecessary and ill-advised to pursue a
case-by-case inquiry to weigh actual prejudice.” State v. Arguelles, 

 (Utah 1996) (cleaned up).
    ¶85 For example, in State v. Brown, the defendant argued for the
first time on appeal that his constitutional rights were violated by the
appointment of a part-time prosecutor as his defense counsel. 

, 856 & n.2 (Utah 1992). This court relieved the defendant of
the burden to prove prejudice on appeal because the alleged error
was not susceptible to a traditional showing of prejudice. 

.
In part, this court explained:
         Because a concrete showing of prejudice would be very
         difficult to make when a prosecutor is appointed to
         assist in the defense of an accused, we conclude that it
         is unnecessary and ill-advised to pursue a case-by-case
         inquiry to weigh actual prejudice. Instead, we
         announce a per se rule of reversal wherever such dual
         representation is undertaken so as to prevent its
         recurrence.

    ¶86 We would adopt a similar per se rule of reversal for the type
of allocution error that occurred here. We would do so because the
traditional showing of prejudice—that “there is a reasonable
likelihood of a more favorable outcome” but for the error—is a poor
fit when a defendant’s right to allocute is at issue. We reach this
conclusion for three reasons: (1) the inherent difficulty in proving the
likelihood of a different result in cases of allocution error, (2) the
purposes served by allocution beyond sentence mitigation, and
(3) the weaker justification for strict adherence to preservation rules
in the case of allocution.
      A. The Lack of a Record on Appeal Leaves an Appellate Court to
         Speculate Regarding the Prejudicial Impact of an Error
         Denying the Right to Allocute
    ¶87 Allocution errors do not lend themselves to a traditional
prejudice analysis. The denial of a defendant’s constitutional right to
allocute necessarily means that the defendant’s statement will be


                                    28
                          Cite as: 

                         HAGEN, J., dissenting

absent from the record. And without a record of what a defendant
would have said, “a concrete showing of prejudice would be very
difficult to make.” Brown, 

.
    ¶88 The majority opinion proposes two solutions to this
problem. First, it suggests that a defendant use “material that is
already in the record, such as statements from counsel or letters from
the defendant to the court,” to identify “mitigating circumstances or
expressions of remorse that could conceivably influence sentencing.”
See supra ¶ 74. But, by definition, evidence in the record was already
presented to the district court and resulted in the sentence imposed.
Although the majority points out that “a defendant is free . . . to
argue the court would have metabolized the same information
differently if it had been presented in the defendant’s own voice,”
supra ¶ 74, without any evidence of how the defendant would have
presented the information differently, establishing a reasonable
probability of a different result would be practically impossible.
    ¶89 Second, the majority suggests that the defendant could
supplement the record with “more information about the allocution
the defendant would have made.” Supra ¶ 75. But there is no
mechanism to supplement the record on appeal with new material
not previously presented to the district court. On appellate review,
we are limited to the facts in the record, which “consists of the
documents and exhibits filed in or considered by the trial court.”
UTAH R. APP. P. 11(a). “We do not consider documents that fall
outside the appellate record, no matter how much they might pique
our interest.” Montes v. Nat’l Buick GMC, Inc., 

, ¶ 39 n.8,

. Although rule 11(d) of the Utah Rules of Appellate
Procedure speaks of “supplementing” the record on appeal, the rule
is limited to correcting material “omitted from or misstated in the
record” to ensure “that the record accurately reflects the proceedings
before the trial court.” UTAH R. APP. P. 11(d)(1)–(2). The only instance
in which new material can be added to the record on appeal is found
in rule 23B(a), which allows for a temporary remand to the district
court “for entry of findings of fact, necessary for the appellate court’s
determination of a claim of ineffective assistance of counsel.” 

 R.
23B.
   ¶90 The majority proposes that, if the Utah Rules of Appellate
Procedure “do not currently account for all circumstances in which
a defendant in James’s position would want to supplement the
record,” we should consider modifying the rules. See supra ¶ 75. But
even if we could discover the content of a defendant’s allocution—


                                   29
                            STATE v. JAMES
                        HAGEN, J., dissenting

either by extrapolating from material already in the record or by
supplementing the record through a yet-to-be-enacted rule—we
would still have no way of discerning how that information would
have been presented to the district court.
    ¶91 The right to allocute is not merely about the content
conveyed in the statement; its impact lies in how it is conveyed and
by whom. Defense counsel could just as easily present the
information from an allocution statement to the court, but that “does
not fulfill the requirements” of rule 22(a). See United States v. Lewis,

 (4th Cir. 1993). “[M]uch of the value of an
allocution statement lies in its ability to convey sincere remorse.”
United States v. Bustamante-Conchas, 

 (10th Cir.
2017) (en banc). As Justice Frankfurter explained, “The most
persuasive counsel may not be able to speak for a defendant as the
defendant might, with halting eloquence, speak for himself.” Green
v. United States, 

 (1961) (plurality opinion). As a
defendant presents their statement to the court “[i]t is not only the
content of the defendant’s words that can influence a court, but also
the way [the defendant] says them.” United States v. Noel, 

 (7th Cir. 2009). Before sentence is imposed, the sentencing
court should see “the teary eye and trembling hand, hear[] the
quaking voice” and consider the defendant’s “passionate pledge that
this crime was the last.” United States v. McIntosh, 

(7th Cir. 2000) (Rovner, J., dissenting in part). Appellate courts are
simply in a poor position to assess such a proffer because “sincerity
and credibility are difficult to discern from a cold record.”
Bustamante-Conchas, 

.
    ¶92 We likewise cannot assess the probability that the
sentencing court would have been moved by the defendant’s words.
As federal appellate courts have noted, “defendants who have been
denied allocution face a practical difficulty under the [prejudice]
prong because appellate courts ‘cannot speculate as to the persuasive
ability of anything a defendant may have said in his statement to the
court.’” 

 at 1139 (quoting United States v. O’Hallaren, 

 (7th Cir. 2007)). Appellate courts have no place “speculat[ing]
about the persuasive force of a hypothetical allocution.” 

 But even
if an appellate court somehow could speculate as to a defendant’s
persuasive abilities, it “could not say with any assurance that the
denial of [the defendant’s] right to allocution did not affect [the
defendant’s] sentence.” O’Hallaren, 

.




                                  30
                         Cite as: 

                        HAGEN, J., dissenting

     ¶93 Without a record to review, we are left to speculate about
what a defendant might have said in allocution. And even if we
could determine the substance of the allocution statement, we are
still left to speculate about how the defendant would have presented
the statement and the persuasive force it would have had on the
sentencing court. As a result, not only will the defendant face the
practical difficulty of proving prejudice on appeal, but appellate
courts will face similar difficulty in properly engaging in appellate
review. We therefore believe that allocution is a circumstance where
it is “unnecessary and ill-advised to pursue a case-by-case inquiry to
weigh actual prejudice.” See Brown, 

.
   B. In Modern Criminal Procedure, the Right to Allocute Plays a
      Larger Role in Sentencing than Mere Mitigation
    ¶94 If the difficulty of showing prejudice was our only concern,
we might be inclined to adopt the rule followed by the Tenth Circuit
and rejected by the majority. That rule provides that “a defendant
who shows he has been denied the right to allocute has met his
burden of demonstrating prejudice absent some extraordinary
circumstance.” Bustamante-Conchas, 

; see also supra
¶ 43. The Tenth Circuit explained that this rule was not a per se rule
or presumption of prejudice that shifted the burden of proof to the
government. Bustamante-Conchas, 

. Rather, under the
Bustamante-Conchas rule, absent extraordinary circumstances,
defendants would “meet this burden simply by showing that they
were denied the right to meaningfully address the court.” 

(emphasis added).
    ¶95 We agree with the majority that the Bustamante-Conchas rule
relies on a statistical approach from federal sentencing that does not
apply in the same way to Utah’s nondiscretionary system. See 

 at
1139–40; see also supra ¶¶ 44–45. We further agree that under Utah
law, “the odds that allocution will affect a given sentence are
relatively small.” Supra ¶ 72. But our greater concern with the rule is
that it assumes that the function of allocution is limited to the
opportunity to speak in favor of mitigation. Cf. Bustamante-Conchas,

 (explaining that an “allocution error is not
prejudicial if a defendant receives the lowest possible sentence”).
    ¶96 Sentence mitigation may be the primary purpose of
allocution, see Wanosik, 

 (explaining that allocution
allows the court to receive information regarding sentencing); UTAH
R. CRIM. P. 22(a) (allowing a defendant to “present any information
in mitigation of punishment”), but it plays a larger role in the


                                  31
                            STATE v. JAMES
                         HAGEN, J., dissenting

modern sentencing process. Even defendants who face mandatory
sentences have a right to allocute. See State v. Maestas, 

, 

; UTAH CONST. art. I, § 12. And in Utah, despite the
limited sentencing discretion afforded to district courts, we have
recognized the right to allocution as a right of constitutional
dimension. See State v. Anderson, 

 (Utah 1996).
“Even in situations where a defendant’s comments stand little
chance of influencing the sentencing judge, the right retains a
symbolic significance.” Bustamante-Conchas, 

 (cleaned
up).
    ¶97 The Utah Constitution guarantees criminal defendants the
“right to appear and defend in person” any criminal charges levied
against them. UTAH CONST. art. I, § 12. While the right to allocute is
not expressly granted in either the state or federal constitution, we
have recognized that “[i]t is an inseparable part of the right to be
present” granted in article I, section 12 of the Utah Constitution.
Anderson, 

. And a majority of this court later stated
that Anderson “clearly and thoughtfully recognized a constitutionally
guaranteed right to allocution.” Maestas, 

; see also
State v. Udy, 

, ¶ 25 n.7, 

 (explaining the
plurality opinion in Maestas, and that a majority of the court
recognized a constitutional right to allocute). Due to its
constitutional underpinnings, the right to allocute maintains
symbolic significance because it furthers a defendant’s personal
participation in the proceedings against them.
   ¶98 We are also persuaded by other jurisdictions that have
recognized that “allocution today serves purposes beyond that of
sentence mitigation.” State v. Chow, 

 (Haw. Ct. App.
1994). For instance, allocution is “the first step towards satisfying the
sentencing objective of rehabilitation” because it presents a
defendant with the opportunity to “acknowledge wrongful conduct”
even where a mandatory sentence is imposed. 

 Such an
acknowledgement can also “deter[] others from similar conduct.” 

    ¶99 An allocution statement can serve an important therapeutic
benefit for the defendant. As courts have noted, “the right of
allocution has survived more for its therapeutic effect on the
defendant than its practical effect on the judge’s determination.”
United States v. Jackson, 

 (5th Cir. 1983) (cleaned up).
As the Court of Appeals of Michigan stated:
       Standing convicted of a crime, the defendant should be
       accorded the right to speak regardless of whether it


                                   32
                          Cite as: 

                         HAGEN, J., dissenting

       will actually affect the sentence ultimately impose[d].
       While any statement the defendant may make might be
       ‘meaningless’ in terms of the sentence to be received,
       we cannot say that the individual defendant would
       regard his or her remarks as meaningless.
People v. Smith, 

 (Mich. Ct. App. 1980).
   ¶100 In some cases, allocution can be beneficial for victims as
well. A defendant who admits wrongdoing and expresses remorse
can promote healing and closure for victims, “purging, to some
extent, feelings of any felt need for retribution in a victim, a victim’s
family, or the community as a whole.” Chow, 

.
    ¶101 Allocution is also an important element of procedural
fairness. See 

 (“[W]e regard allocution to be a significant aspect of
the fair treatment which should be accorded a defendant in the
sentencing process.”). In cases where the defendant has been
convicted at trial, allocution provides an opportunity for the
defendant to either admit wrongdoing or maintain his innocence.
And because many defendants choose to either plead guilty or
exercise their constitutional right to remain silent at trial, allocution
may be the only time that a defendant is an active participant in the
court proceedings against them. See Kimberly A. Thomas, Beyond
Mitigation: Towards a Theory of Allocution, 75 FORDHAM L. REV. 2641,
2642–43 (2007). As Maryland’s highest court explained, “the
allocutory process provides a unique opportunity for the defendant
himself to face the sentencing body, without subjecting himself to
cross-examination, and to explain in his own words the
circumstances of the crime and his feelings regarding his conduct,
culpability, and sentencing.” Harris v. State, 

 (Md.
1986). 10
   ¶102 Additionally, many courts have noted that affording the
right to allocute preserves the perceived equity of the sentencing
process. “Allocution provides a defendant the opportunity to
meaningfully participate in the sentencing process and to show that
he or she is a complex individual and not merely an object to be acted
upon.” Chow, 

 (cleaned up). As a court makes a
sentencing decision, “the defendant’s right to be heard must never
 __________________________________________________________
   10 Prior to 2022, Maryland’s highest court was referred to as the

Court of Appeals of Maryland. See MD. CONST. art. IV, pt. I, § 1 (1867).
It has since been renamed the Maryland Supreme Court. See MD.
CONST. art. IV, pt. I, § 1.

                                   33
                             STATE v. JAMES
                          HAGEN, J., dissenting

be reduced to a formality” and the court should “be cautious to avoid
the appearance of dispensing assembly-line justice.” United States v.
Barnes, 

 (7th Cir. 1991). The personal nature of the
right to allocute humanizes a procedure that could otherwise be a
cold and perfunctory judicial action.
    ¶103 We have no way of assessing, nor does a defendant have
any way of proving, the harm done to these interests when allocution
is denied. We can only speculate as to whether allocution would
have had a therapeutic effect on a defendant, would have aided in
their rehabilitation or deterred others from engaging in similar
conduct, and to what extent a defendant’s allocution will have a
positive impact on a victim. And we cannot assess the damage to
public confidence when procedural fairness is not afforded in
violation of a defendant’s constitutional rights. But because these
harms are not outcome determinative, they cannot be assessed under
a traditional prejudice analysis.
   C. The Traditional Policies Underlying the Preservation Rule
      Are Not as Strong in the Context of Allocution Errors
    ¶104 Beyond the additional purposes of allocution explained
above, the policies underlying the preservation rule are not as strong
in cases of allocution error. This further supports our view that a
traditional showing of prejudice should not be required in this
narrow category of cases.
    ¶105 We have recognized two primary policies for the
preservation rule. First, “in the interest of orderly procedure, the trial
court ought to be given an opportunity to address a claimed error
and, if appropriate, correct it.” Holgate, 

 (cleaned up).
Ordinarily, our adversarial system charges parties with raising
issues. State v. Johnson, 

, 

. But allocution
is unique in that “it is the court which is responsible for raising the
matter.”11 Wanosik, 

. The obligation imposed on the
district court requires that “both the defendant and counsel shall be
 __________________________________________________________
   11 Although our caselaw places the burden on the district court to

affirmatively afford a defendant the opportunity to speak, that
direction is not in the rule itself. The federal rule, in contrast, requires
sentencing courts to “address the defendant personally in order to
permit the defendant to speak or present any information to mitigate
the sentence.” FED. R. CRIM. P. 32(i)(4)(A)(ii) (emphasis added).
Given the constitutional magnitude of the right at issue, we would
support adding similar language to our rule 22.

                                    34
                          Cite as: 

                         HAGEN, J., dissenting

affirmatively afforded an opportunity to make a statement, present
any information in mitigation of punishment, or show any legal
cause why sentence should not be imposed.” 

 Thus, our usual
insistence that the parties either bring the matter to the attention of
the district court or establish an exception to preservation on appeal
should give way when the court itself is charged with avoiding the
error.
    ¶106 The second policy rationale for preservation is that it
guards against the possibility that a party will deliberately choose to
forgo an objection, knowing that it can be raised on appeal if the
outcome is less favorable than hoped. See Holgate, 

.
But in the case of allocution, this scenario can be easily avoided if the
district court simply complies with its affirmative obligation under
rule 22(a). As the Supreme Court has stated “[t]rial judges before
sentencing should, as a matter of good judicial administration,
unambiguously address themselves to the defendant” and “trial
judges should leave no room for doubt that the defendant has been
issued a personal invitation to speak prior to sentencing.” Green, 

. The burden of administering the right is minimal and
simply requires the court to inquire of the defendant: “Do you, the
defendant, . . . have anything to say before I pass sentence?” 

.
    ¶107 Although automatic reversal for allocution errors would
undermine the legitimate interest in finality, that interest is not
strong in this context. The remedy for a violation is simply a new
sentencing hearing in which the defendant is properly afforded the
right to allocute. An allocution error does not affect a guilty plea, nor
does it overturn a guilty verdict. It does not require a new trial or
present the possibility of acquittal.
   ¶108 In cases involving victims, we recognize that resentencing
might be painful and places a particular burden on those victims
who wish to exercise their rights to attend or be heard. But a
defendant’s allocution has the potential to benefit victims as well. See
supra ¶ 72 n.6. A defendant who admits wrongdoing and expresses
remorse can provide the victim, their family, or their community
with some measure of closure. See Chow, 

. Correcting
these errors promptly by filing a stipulated motion to remand for
immediate resentencing would mitigate the impact on victims.
¶109      To that end, we support amending the Utah Rules of
Criminal Procedure to provide a mechanism to promptly correct an
allocution error in the district court to avoid the need for time


                                   35
                            STATE v. JAMES
                        HAGEN, J., dissenting

consuming and costly appeals. While a change to our rules will
ensure that allocution errors are more easily remedied moving
forward, we would not allow the error in this case to go uncorrected.
James was denied his well-established right—a right guaranteed by
the Utah Constitution—to address the court and offer any
information in mitigation of his sentence. And the result in this case
was far from a foregone conclusion where both the State and Adult
Probation and Parole joined in recommending that James be granted
probation. But regardless of the likelihood of a different outcome,
James was denied his most meaningful opportunity to personally
participate in the judicial proceedings against him. He was denied
the opportunity to publicly express remorse for his actions,
acceptance of responsibility, and a commitment to rehabilitation. The
harm resulting from those lost opportunities cannot be measured by
assessing the likelihood of a different sentence.
                           CONCLUSION
    ¶110 In short, we believe the denial of the right to allocute is one
of those rare instances in which “it is unnecessary and ill-advised to
pursue a case-by-case inquiry to weigh actual prejudice.” State v.
Arguelles, 

 (Utah 1996) (cleaned up). We would
instead adopt a per se rule of reversal and remand for resentencing.




                                  36