District Court, Salt Lake Department The Honorable Richard D.
McKelvie No. 141904309
E. Landau, Christopher J. Jones, and Marshall Thompson,
Attorneys for Appellant.
D. Reyes and John J. Neilsen, Attorneys for Appellee.
Gregory K. Orme authored this Opinion, in which Judge Jill M.
Pohlman concurred. Judge J. Frederic Voros Jr. concurred in
the result, with opinion. 
Francisco Javier Alvarez pled guilty to aggravated sexual
abuse of a child, a first degree felony. See Utah
Code Ann. § 76-5-404.1(4), (5) (LexisNexis Supp. 2016).
Alvarez appeals his sentence, arguing that the sentencing
court abused its discretion when it imposed the presumptive
sentence of fifteen years to life. We review sentencing
decisions for an abuse of discretion, see State v.
Neilson, 2017 UT App 7, ¶ 15, 391 P.3d 398, and
will conclude that such an abuse occurred only "if it
can be said that no reasonable [person] would take the view
adopted by the [sentencing] court, " State v.
Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d 1167
(first alteration in original) (citation and internal
quotation marks omitted).
Aggravated sexual abuse of a child is punishable "by a
term of imprisonment . . . not less than 15 years and which
may be for life." Utah Code Ann. §
76-5-404.1(5)(a). The sentencing court may, however, impose
one of two lesser sentences-six-to-life or ten-to-life-if the
court finds that it would be "in the interests of
justice." Id. § 76-5-404.1(6). When
considering whether a lesser sentence is in the interests of
justice, the court must consider the "rehabilitative
potential of individual defendants" and the
proportionality of the sentence in relation to the severity
of the offense. LeBeau v. State, 2014 UT 39,
¶¶ 36-37, 337 P.3d 254. Moreover, the court should
compare the sentence being imposed to "the sentences
imposed for more and less serious crimes in order to ensure
that a particular defendant's sentence is not
arbitrary." Id. ¶ 47.
Relying on State v. Jaramillo, 2016 UT App 70, 372
P.3d 34, Alvarez argues that remand is warranted. In
Jaramillo, we remanded for resentencing because the
Utah Supreme Court announced LeBeau's
proportionality requirement after Jaramillo was sentenced.
See id. ¶ 34. Thus, because the sentencing
court had not been aware of LeBeau's
proportionality requirement in sentencing Jaramillo, we
remanded so that Jaramillo's sentence could "be
reviewed through LeBeau's interests-of-justice
analysis." Id. ¶ 43.
That rationale does not apply to Alvarez, who was sentenced
well after LeBeau was issued. "As a general
rule, Utah courts presume that the [sentencing] court made
all the necessary considerations when making a sentencing
decision." State v. Monzon, 2016 UT App 1,
¶ 21, 365 P.3d 1234 (citation and internal quotation
marks omitted). "[W]e will not assume that the
[sentencing] court's silence, by itself, presupposes that
the court did not consider the proper factors as required by
law." State v. Helms, 2002 UT 12, ¶ 11, 40
P.3d 626. Because LeBeau and its proportionality
requirement predated Alvarez's sentence, and because
Alvarez has not demonstrated that our presumption of
appropriate sentencing consideration is inapplicable,
assume that the sentencing court duly considered the
proportionality of Alvarez's sentence.
Moreover, while Alvarez did generally argue that "the
interests of justice" required a lesser sentence, he did
not invoke the proportionality rubric in making his argument.
Had he done so, the sentencing court's proportionality
analysis would likely have moved from the presumed to the
expressed. Thus, he will not now be heard to argue that the
sentencing court was remiss in not articulating its views on
proportionality. And although the State does not argue that
Alvarez failed to preserve his proportionality issue for
appeal, we do not disagree with Judge Voros that the appeal
could also be decided on that basis alone.
The remainder of Alvarez's argument amounts to a
disagreement with how the sentencing court weighed
aggravating and mitigating factors. As we have previously
stated, this is insufficient to demonstrate an abuse of
discretion. See State v. Bunker, 2015 UT App 255,
¶ 5, 361 P.3d 155.
We conclude that the sentencing court did not abuse its
discretion in sentencing Alvarez. Accordingly, his sentence
Judge (concurring in the result):
I concur in the result. I would affirm on the ground that
Alvarez did not preserve at sentencing the ...