District Court, Salt Lake Department The Honorable Paul B.
Parker No. 151913764
Alexandra S. McCallum and David P.S. Mack, Attorneys for
D. Reyes and Jennifer Paisner Williams, Attorneys for
Judges Michele M. Christiansen, Kate A. Toomey, and David N.
Shane Wells Landon appeals the sentences on his convictions
of attempted assault against a police officer, a third degree
felony; failure to stop or respond at the command of an
officer, a third degree felony; and driving under the
influence of alcohol or drugs, a class B misdemeanor. We
Landon argues that the district court abused its discretion
by sentencing him to prison rather than probation and by
sentencing him to serve two consecutive terms of zero to five
years in prison. Specifically,
Landon contends that the sentencing court abused its
discretion "when it sentenced him to prison despite the
intangible factors supporting probation, including his
character, attitude, [and] rehabilitative needs."
Alternatively, he argues that the sentencing court abused its
discretion by imposing consecutive sentences on his two
felony convictions because the court did not give adequate
weight to these factors.
"In general, a trial court's sentencing decision
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."
State v. Killpack, 2008 UT 49, ¶ 59, 191 P.3d
17 (citation and internal quotation marks omitted). Trial
courts are afforded "wide latitude and discretion in
sentencing, recognizing that they are best situated to weigh
the many intangibles of character, personality and
attitude." Id. ¶ 58 (citation and internal
quotation marks omitted). "An appellate court will find
an abuse of discretion only if it can be said that 'no
reasonable person could adopt the view of the trial
court.'" State v. Miera, 2015 UT App 46,
¶ 5, 345 P.3d 761 (quoting State v. Daniels,
2014 UT App 230, ¶ 7, 336 P.3d 1074).
After being stopped for a traffic violation, Landon chose to
drive off. During the ensuing pursuit, Landon rammed the
police officer's vehicle with his vehicle, and the
officer sustained minor injuries. The Presentence
Investigation Report (PSI) recommended a prison sentence,
noting "the egregious nature of the instant offenses,
[his] past criminal history indicating high risk behaviors,
and his unsuccessful attempts at community supervision-the
defendant committed the instant offenses while on probation
for felony offenses." The PSI scored Landon in the
"intermediate sanctions" category under the
sentencing guidelines, but he was considered to be in a high
risk category of the Level of Service Inventory assessment.
The State asked for a prison sentence. Landon asked the court
to place him on probation, arguing that he took
responsibility for his actions, expressed remorse, was
committed to addressing his alcohol issues, had been
attending Alcoholics Anonymous while jailed, had family
support, and would have a job if placed on probation. Landon
argued that his adult criminal history was not extensive and
that this incident represented his only probation violation.
The district court sentenced Landon to prison, citing the
recommendation from the PSI, stating that Landon deliberately
attempted to injure the police officer, and noting that
Landon had exhibited a poor attitude toward supervision and
had only nominal success while on probation. While
acknowledging Landon's remorse and his desire to improve
his life, the district court stated that it needed to
"balance the interest of society against Landon's
interest." In sentencing Landon to consecutive prison
terms, the district court stated that it based its decision
upon Landon's "poor performance on probation and the
violent, deliberate nature of this attack on a public
The district court did not abuse its discretion in sentencing
Landon to prison rather than placing him on probation. A
defendant is not entitled to probation as a matter of right.
See State v. Sibert, 310 P.2d 388, 393 (Utah 1957).
Because "[t]he granting or withholding of probation
involves considering intangibles of character, personality
and attitude, " id., "[t]he decision
whether to grant probation is within the complete discretion
of the trial court, " State v. Rhodes, 818 P.2d
1048, 1049 (Utah Ct. App. 1991); see also State v.
Valdovinos, 2003 UT App 432, ¶ 23, 82 P.3d 1167
(stating that due to the consideration of "intangibles,
" "the problem of probation must of necessity rest
within the discretion of the judge who hears the case"
(citation and internal quotation marks omitted)).
Landon's core argument is that the district court did not
adequately consider, or give appropriate weight to, his
character, personality, and rehabilitative needs. The record
demonstrates otherwise. The district court considered the
PSI, the arguments of counsel, and statements by Landon and
the victim. The sentence was within the statutory range and
was not inherently unfair. Under the circumstances, this
court will not disturb the sentencing decision.
Landon's alternative argument is that the district court
abused its discretion by sentencing him to serve consecutive
prison terms. Landon argues that this issue was preserved for
appeal by his argument that he should be placed on probation.
"Generally, in order to preserve an issue for appellate
review, a party must make a timely and specific objection
before the trial court." State v. Tingey, 2014
UT App 228, ¶ 3, 336 P.3d 608 (citation and internal
quotation marks omitted). Landon "has not demonstrated
that he specifically objected to or otherwise brought to the
trial court's attention the court's alleged failure
to consider the requisite statutory factors in imposing
sentence." See id. Landon's argument for
probation was not directed to the issues related to the
imposition of concurrent or consecutive sentences and was
"insufficient to alert the trial court to the specific
error [Landon] now claims on appeal-that the court failed to
consider relevant statutory factors before it imposed"
consecutive prison terms. Id.
Accordingly, we review the claim that the district court
erred in imposing consecutive sentences under Landon's
claim of plain error. In order to prevail under a plain error
analysis, a party must establish that an error occurred, that
the error should have been obvious to the trial court, and
that the error was harmful. See id. ¶ 7. Landon
has not satisfied this burden. In determining whether to
impose consecutive sentences, "the court shall consider
the gravity and circumstances of the offenses, the number of
victims and the history, character, and rehabilitative needs
of the defendant." Utah Code Ann. § 76-3-401(2)
(LexisNexis 2012). However, a court is not required to
specifically refer to each of these factors in its ruling in
order to demonstrate its consideration of the factors.
See State v. Thorkelson, 2004 UT App 9, ¶ 13,
84 P.3d 854. The record reflects that the district court
relied upon a PSI that specifically considered the statutory
factors. After reviewing the PSI and the information received
at sentencing, the district court identified the specific
factors that it concluded supported the imposition of
consecutive sentences as Landon's "poor performance
on probation and the violent, deliberate nature of the"
offense. Furthermore, Landon's argument is not that the
district court failed to consider the statutory factors but
that the court failed to afford appropriate weight to the
factors of character, history, and rehabilitative needs.
However, an argument that the court erred in its balancing of
the factors is not an argument that supports a finding of any
plain error. It is unnecessary to consider the remaining
factors of the plain error analysis.
Finally, Landon's argument that the imposition of
consecutive sentences resulted in an illegal sentence that
should be corrected under rule 22(e) of the Utah Rules of
Criminal Procedure lacks merit. An illegal sentence
"generally occurs in one of two situations: (1) where
the sentencing court has no jurisdiction, or (2) where the
sentence is beyond the authorized statutory range."
Id. ¶ 15. Landon's challenges to the
imposition of ...