District Court, West Jordan Department The Honorable Bruce C.
Lubeck No. 151400319
E. Landau and Daniel M. Torrence, Attorneys for Appellant
D. Reyes and Jeanne B. Inouye, Attorneys for Appellee
Jill M. Pohlman authored this Memorandum Decision, in which
Judges Gregory K. Orme and Stephen L. Roth concurred.
Landin Dee Moosman pleaded guilty to violating a protective
order, resulting in his third conviction for that offense.
While Moosman requested "another chance to go back on
probation, " the district court imposed a term of
imprisonment and revoked Moosman's probation for his
prior offenses. Moosman appeals, asserting that the district
court's sentencing decision was inherently unfair and
based on irrelevant and unreliable information. We affirm.
In 2013 a woman (Mother) obtained a protective order against
Moosman, with whom she shares a child. The protective order
contained a condition, to which Moosman and Mother
stipulated, that they would not communicate except for text
messages regarding their child. Moosman violated that
provision several times by sending text messages to Mother
about subjects other than their child. In 2014 Moosman twice
pleaded guilty to violating a protective order, both third
degree felonies. The two resulting sentences were suspended
in favor of probation. In 2015, while on probation for those
offenses, Moosman again sent text messages to Mother
regarding subjects other than their child. Moosman
subsequently pleaded guilty to violating a protective order,
again a third degree felony.
At sentencing the district court revoked Moosman's
probation for his two prior offenses and imposed both
previously suspended sentences, which were for indeterminate
prison terms not to exceed five years. For the latest
offense, Moosman was likewise sentenced to prison for an
indeterminate term not to exceed five years. All three
sentences were to run concurrently. On appeal, Moosman
asserts that the district court abused its discretion by
imposing "a prison sentence over
"We have traditionally afforded trial courts wide
latitude and discretion in sentencing, recognizing that they
are best situated to weigh the many intangibles of character,
personality and attitude, of which the cold record gives
little inkling." State v. Killpack, 2008 UT 49,
¶ 58, 191 P.3d 17 (citations and internal quotation
marks omitted). A trial court's sentencing decision
generally "will not be overturned unless it exceeds
statutory or constitutional limits, the judge failed to
consider all the legally relevant factors, or the actions of
the judge were so inherently unfair as to constitute abuse of
discretion." Id. ¶ 59 (citation and
internal quotation marks omitted).
Moosman first challenges the district court's sentencing
decision as inherently unfair and disproportionate to the
allegedly "benign" conduct that gave rise to his
three convictions. The offenses involved what Moosman deems
relatively minor infractions. The latest violation was
perhaps the most innocuous, and Moosman asserts he should
have again been placed on probation. Moosman also points to
other considerations that were before the district court and
allegedly weighed in favor of probation.
At sentencing the district court expressed concern over the
difficulty of the situation, in which there was "no
[really] good answer for anyone." While Moosman
presented the court with an explanation to downplay each
violation-asserting that it "was a mistake" or that
it "wasn't a threat"-Moosman's repeated
violations of the protective order had put him before the
court "time and time and time again." Thus,
following the recommendation of Adult Probation and Parole
(AP&P) as provided in its presentence report, the court
imposed a term of imprisonment.
"A defendant is not entitled to probation, but rather
the trial court is empowered to place the defendant on
probation if it thinks that will best serve the ends of
justice and is compatible with the public interest."
State v. Valdovinos, 2003 UT App 432, ¶ 23, 82
P.3d 1167 (brackets, citation, and internal quotation marks
omitted). Although the district court could have taken a
different approach and again placed Moosman on probation, the
court's sentencing decision was neither inherently unfair
nor disproportionate to the underlying conduct and thus did
not constitute an abuse of discretion. Cf. State v.
Wimberly, 2013 UT App 160, ¶¶ 20-22, 305 P.3d
1072 (concluding that the district court acted within its
broad discretion in sentencing the defendant to prison rather
than suspending the sentence and placing him on probation).
Moosman also asserts that the district court abused its
discretion by relying on irrelevant and unreliable
information. During sentencing the court referred to a
"dynamic[, ] . . . pretty well known in the literature
and in experience, " which suggests that Moosman is
"indeed a danger to" Mother. The court stated,
without further elaboration, that "there is a great deal
of literature about the simple fact of not letting go, [and]
continued efforts at control, however innocuous [that] may
seem, " it is nonetheless "dangerous."
"The due process clause of Article 1, Section 7 of the
Utah Constitution, requires that a sentencing judge act on
reasonably reliable and relevant information in exercising
discretion in fixing a sentence." State v.
Howell, 707 P.2d 115, 118 (Utah 1985). "When there
is evidence in the record showing a sentencing judge's
reliance on specific information, we will not consider it
improper for a judge to rely on such information if the
evidence in question had indicia of reliability and was
relevant in sentencing." State v. Moa, 2012 UT
28, ¶ 36, 282 P.3d 985 (citation and internal quotation