District Court, Provo Department The Honorable Samuel D.
McVey No. 151402564
Adams, Attorney for Appellant
D. Reyes and Jennifer Paisner Williams, Attorneys for
J. Frederic Voros Jr. authored this Opinion, in which Judges
Michele M. Christiansen and Jill M. Pohlman concurred.
After his conviction for attempted computer crimes, Bradley
Keith Beagles received probation with conditions, including
that he serve 60 days in jail. On appeal he challenges that
condition of probation. We affirm.
Beagles and his then-wife were clients of an accounting firm
that prepared their joint tax returns. As clients of the
firm, they could access the firm's online portal to view
their tax returns. After the couple divorced, his ex-wife
continued as a client of the firm, but Beagles did not. The
firm thus terminated his access to the online portal. A few
months later, Beagles accessed the online portal three times
by using his ex-wife's email address as the login name
and correctly guessing the answers to her security questions.
He then changed her password. He also sent emails to the
accounting firm with screenshots of the online portal
containing confidential information about his ex-wife and his
former business partners.
Beagles was charged with three counts of computer crimes,
third degree felonies. See Utah Code Ann. §
76-6-703(1)(e) (LexisNexis 2012). Beagles pleaded guilty to
three counts of the reduced charge of attempted computer
crimes, class A misdemeanors. See id. §
76-6-703(1)(b). The district court sentenced Beagles to three
consecutive one-year jail sentences. The court then suspended
the sentences and placed Beagles on probation for 36 months
with conditions. One condition was that Beagles serve a
60-day jail term. Beagles challenges that condition.
Beagles contends that the district court "abused its
discretion in imposing a jail term on [him]." Because we
traditionally afford a sentencing court wide latitude and
discretion, we will reverse a sentencing decision "only
if it is an abuse of the judge's discretion."
State v. Moa, 2012 UT 28, ¶ 34, 282 P.3d 985
(citation and internal quotation marks omitted). A sentence
constitutes an abuse of discretion when the district court
"fails to consider all legally relevant factors, or . .
. the sentence imposed is clearly excessive." LeBeau
v. State, 2014 UT 39, ¶ 16, 337 P.3d 254 (citation
and internal quotation marks omitted). We will find an abuse
of discretion only if no reasonable person would take the
view adopted by the sentencing court. State v.
Monzon, 2016 UT App 1, ¶ 8, 365 P.3d 1234.
A defendant is not entitled to probation; rather, "the
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.
Rhodes, 818 P.2d 1048, 1051 (Utah Ct. App. 1991). The
"'granting or withholding of probation involves
considering intangibles of character, personality and
attitude, of which the cold record gives little
inkling.'" State v. Cline, 2017 UT App 50,
¶ 7 (quoting State v. Sibert, 310 P.2d 388, 393
(Utah 1957)). And "as a condition of probation, the
court may require that the defendant . . . serve a period of
time, not to exceed one year, in a county jail." Utah
Code Ann. § 77-18-1(8)(a)(v) (LexisNexis Supp. 2016).
Beagles presents two arguments in support of his contention
that the district court abused its discretion in ordering 60
days jail time as a condition of probation. First, he argues
that the district court "gave inadequate reasons for
imposing a jail term." He claims that his hacking was
not "fairly brazen, " as described by the district
court, and points to alleged errors in the pre-sentence
investigation report (PSI). Second, he argues that the
district court "did not give sufficient weight to the
mitigating circumstances in this case." He lists several
mitigating factors, including that his conduct "was a
product of mental illness and substance abuse"; that he
received treatment at a psychiatric hospital and medication;
that he did not commit new crimes for 18 months prior to
sentencing; that he has strong family support; and that he
has a history of successfully completing probation.
We generally presume that the sentencing court "made all
the necessary considerations when making a sentencing
decision." Moa, 2012 UT 28, ¶ 35.
"Although courts must consider all legally relevant
factors in making a sentencing decision, not all aggravating
and mitigating factors are equally important, and one factor
in mitigation or aggravation may weigh more than several
factors on the opposite scale." State v.
Killpack, 2008 UT 49, ¶ 59, 191 P.3d 17 (brackets,
citation, and internal quotation marks omitted),
abrogated on other grounds as recognized by State v.
Lowther, 2017 UT 24.
We recently addressed a challenge similar to this one in
State v. Cline, 2017 UT App 50. There Cline argued
that "the district court did not adequately consider his
character, attitude, and rehabilitative needs" in its
sentencing decision. Id. ¶ 8 (internal
quotation marks omitted). While the precise nature of
Cline's argument was unclear, we rejected any challenge
that the court "failed to consider [mitigating]
factors" and that it "improperly weighed the
aggravating and mitigating factors." See id.
First, we concluded that, because the mitigating factors were
discussed at the sentencing hearing, "[t]o the extent
Cline argues the court did not consider these factors, this
is inaccurate." Id. ¶ 9. Second, we noted
that any argument "that the district court improperly
weighed the aggravating and mitigating factors" appeared
to be a "disagreement with the court's balancing
efforts." Id. ¶ 10. We then concluded that
"the court acted well within its discretion" when
it "gave more weight to the aggravating factors
presented during the sentencing hearing." See
id. ¶¶ 10-11. We held that "[b]ecause the
court adequately considered all the relevant factors, the
sentence imposed was not an abuse of discretion."
Id. ¶ 11.
Like Cline, Beagles argues that the district court either
failed to consider or improperly weighed aggravating and
mitigating factors. See id. ¶ 8. The district
court noted several aggravating factors at the sentencing
hearing. The court determined that Beagles's offenses
were "fairly aggravated by the brazen attempts of
hacking, " in that "he tried to hack [the online
portal] a couple of times" and "was successful
hacking a couple of times." The court also concluded
that Beagles was at a "high risk to reoffend" given
his belief that he had done nothing wrong and that he had the
right to do whatever he wanted to his ex-wife. Lastly, the
court noted the likely effect of Beagles's crime on the
victim: "knowing that he's using her security
questions . . . to access her information . . . would be