District Court, Salt Lake Department The Honorable Robin W.
Reese No. 131905428
M. Nelson, Attorney for Appellant.
D. Reyes and Jeffrey D. Mann, Attorneys for Appellee.
Judges J. Frederic Voros Jr., Stephen L. Roth, and David N.
Gary Lynn Phillips appeals his sentences after pleading
guilty to various crimes. Phillips asserts that the district
court erred in sentencing him to prison and requiring some of
the sentences to be served consecutively with others.
We review the sentencing decision of the district court,
including the decision to grant or deny probation, for abuse
of discretion. See State v. Valdovinos, 2003 UT App
432, ¶ 14, 82 P.3d 1167. "An abuse of discretion
results when the judge fails to consider all legally relevant
factors, or if the sentence imposed is clearly
excessive." Id. (citation and internal
quotation marks omitted). Furthermore, "[a]n appellate
court may only find abuse if it can be said that no
reasonable [person] would take the view adopted by the trial
court." Id. (second alteration in original)
(citation and internal quotation marks omitted).
Utah Code section 76-3-401 states the legally relevant
sentencing factors a district court must consider before
determining whether sentences will be imposed concurrently or
consecutively: "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). As a general rule,
a district court's consecutive sentencing decision will
be upheld "whenever it would be reasonable to assume
that the court" considered the statutory factors, even
if the court "failed to make findings on the
record." State v. Helms, 2002 UT 12, ¶ 11,
40 P.3d 626 (citation and internal quotation marks omitted).
"If the record shows that the trial court has reviewed
information regarding the relevant legal factors, we can
infer that the trial court adequately considered those
factors." State v. Bunker, 2015 UT App 255,
¶ 3, 361 P.3d 155. Accordingly, it is the
defendant's burden to demonstrate that the district court
did not properly consider the relevant factors, and appellate
courts "will not assume that the trial court's
silence, by itself, presupposes that the court did not
consider the proper factors as required by law."
Helms, 2002 UT 12, ¶ 11.
Phillips presents no evidence that the district court failed
to consider all legally relevant factors in sentencing him.
First, the district court noted that it had reviewed the
Pre-Sentence Investigation Report (PSI) multiple times, which
included information concerning "the very factors that
section 76-3-401(2) requires sentencing courts to
consider." See State v. Gailey, 2015 UT App
249, ¶ 10, 360 P.3d 805. The district court also heard
arguments from Phillips's attorney and from Phillips
himself, detailing the factors Phillips wished the court to
consider before imposing a sentence. Thus, Phillips's
disagreement with the trial court's decision is not truly
over whether the district court failed to consider all
relevant factors, but rather the application of those factors
to the case.
Based upon the circumstances, we cannot say that the district
court abused its discretion in imposing the sentence it did.
Phillips had an extensive criminal record, much of which
consisted of crimes similar to those at issue in this case.
Further, Phillips's history on probation was poor, which
was demonstrated in this case when Phillips was charged with
other crimes during his pre-sentencing release. Phillips
acknowledged his extensive record but argued that allowing
him to pursue treatment for his drug addiction better fit his
rehabilitative needs. However, Phillips had been released
pending sentencing for nearly a year after entering his
guilty pleas. During that time not only was he charged with
additional crimes, but he failed to enroll at Odyssey House
as required by the terms of his pre-sentence release.
Ultimately, it is clear that the district court carefully
examined all of the relevant factors in making its sentencing
decision. In fact, the trial court did not fully adopt the
PSI's recommendation or the State's which would have
resulted in five consecutive zero-to-five year sentences.
Instead, the district court ran only two sentences