The Utah Supreme Court has rejected the appeal of a Chicago man sentenced to life in prison for the 1988 murder of a truck driver at an I-15 rest stop near Beaver.
Tracy Eugene Smith, 26, appealed a state judge's recommendation that Smith not even be considered for parole until the year 2008. Tracy shot Kentucky truck driver James G. Bray in the head with a 9mm gun as part of a planned robbery.Smith's appeal appears to be the first time a defendant has challenged a judge's right to recommend when the first parole hearing should be held, said Craig Cook, attorney for Smith.
The court referred the matter back to state court. After a state judge has looked at the appeal, it may go before the Utah Supreme Court again.
Bray, 53, was killed inside a restroom at the Pine Creek rest area about 18 miles north of Beaver.
Smith and his companion, Timothy Michael Miller of New York, were arrested about four hours later in Salina.
Smith pleaded guilty to murder after he learned that Miller was going to tell the jury that Smith planned to rob Bray. Murder committed during a felony such as robbery is capital murder and pun-ish-able by death.
Smith's attorney told 5th District Judge Philip J. Eves that Smith wouldn't appeal his sentence as long as he didn't get the death sentence.
Eves sentenced Smith to life in prison, then added the recommendation that Smith not even be considered for parole until he had served at least 20 years of that sentence.
Smith appealed. First, the killer tried to withdraw his guilty plea, saying the court shouldn't have accepted a plea to capital murder because he hadn't intended to rob Bray.
Eves denied Smith's motion.
Last year, Smith appealed his sentence to the Utah Supreme Court, saying his attorney had provided ineffective counsel during the sentencing portion of the case.
The Supreme Court referred the appeal to 3rd District Judge David Young.
Smith's new attorney, Cook, told the Supreme Court that Eves overstepped his boundaries by recommending a parole hearing in 20 years. The judge had no basis for that recommendation because no presentence report was done on Smith, Cook told the Supreme Court. Such a report would have examined Smith's background and personality.
With no trial, Eves knew little about Smith, Cook said. At the sentencing, "The family wasn't given an opportunity to testify. There was no presentence report presented. It was all over in three minutes," Cook said.
Eves didn't give enough attention to the case before sending Smith to prison for at least 20 years, Cook said.
Cook asked the Utah Supreme Court to rule on whether a trial judge could make a recommendation on when a defendant should get a parole hearing.
"We refuse to address the issue," the court said in a brief 5-0 decision released this week.
Instead, the court also referred that issue back to Young. Smith can only raise that question with the high court after Young has first looked at the matter, the ruling says.
Miller pleaded guilty to second-degree murder and was sentenced to one to 15 years in prison.