District Court, West Jordan Department The Honorable Bruce C.
Lubeck No. 151401934
Kathryn Pierson and Christine Seaman, Attorneys for Appellant
D. Reyes and Kris C. Leonard, Attorneys for Appellee
Judges Michele M. Christiansen, Jill M. Pohlman, and Diana
Vance Karren appeals his sentence of zero-to-five years in
prison following his conviction for attempted sexual abuse of
a child, a third degree felony. We affirm.
We review sentencing decisions for an abuse of discretion,
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). A district court has broad
discretion in deciding whether to order probation, because
the "granting or withholding of probation involves
considering intangibles of character, personality and
attitude." State v. Rhodes, 818 P.2d 1048, 1049
(Utah Ct. App. 1991) (citation and internal quotation marks
omitted). "The defendant is not entitled to probation,
but 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."
Id. at 1051.
Karren entered a guilty plea to the amended charge of
attempted sexual abuse of a child as a third degree felony,
and the State agreed not to affirmatively recommend a prison
sentence. Adult Probation and Parole (AP&P) prepared a
presentence investigation report (PSI), which recommended
that Karren be placed on supervised probation for 36 months
on conditions that included serving 146 days with credit for
146 days already served, having no contact with children,
completing a psychosexual evaluation and any recommended
treatment, and satisfying "Group A Sex Offender"
requirements. The PSI attached letters from the child's
therapist and her biological mother, who was not the
child's custodian. In addition to information about the
child's condition, the therapist's letter contained
statements characterizing Karren's conduct toward the
child as "grooming" and included the
therapist's opinion regarding an appropriate sentence.
The letter from the biological mother recounted additional
alleged incidents between Karren and the child and other
children, made statements regarding the impact of
Karren's conduct on the child, and gave the mother's
opinion on the sentence the court should impose.
At sentencing, the district court stated that it had reviewed
the PSI and its attachments. The court found that the
therapist's letter exceeded the proper role of providing
information about a patient. The court therefore struck the
letter from the record and stated that the court would not
consider it. The district court also refused to hear from a
third person who wished to address the court about uncharged
allegations. Finally, noting that the child was in the
custody and guardianship of her grandmother (Grandmother),
the court allowed only Grandmother to address the court.
Defense counsel argued that the court should adopt
AP&P's recommendation to place Karren on probation
and emphasized Karren's remorse, cooperative attitude,
willingness to participate in treatment, lack of any criminal
history, and stable residence and family support. Counsel
argued that Karren would benefit from sex offender treatment.
The prosecutor acknowledged the State's agreement not to
recommend a prison term but stated that additional jail time
and treatment were appropriate.
Grandmother addressed the court, stating that, since the
events, the child was fearful of being separated from
Grandmother, did not feel safe, and experienced nightmares.
Citing specific examples of his conduct, Grandmother gave her
opinion that Karren "had no self-control when it comes
to children." Grandmother stated that her family needed
time to heal and requested that the judge consider the
child's needs at sentencing. Addressing the court at
sentencing, Karren expressed remorse for the trauma that the
child suffered. He stated that he was "being
over-affectionate" and "crossed a boundary that
[he] shouldn't have."
The district court acknowledged AP&P's probation
recommendation and Karren's need for treatment, but the
court did not agree that Karren should be released from jail
and placed on probation at that time. The court reiterated
that it was "looking at what happened with this child
and Mr. Karren." The court stated that prison would not
help Karren and "probation and treatment would help him
more." However, the court stated that "overriding
all of that is my view that this sort of thing just deserves
a serious punishment." Despite Karren's lack of
criminal record and the other mitigating circumstances, the
court concluded that, even if Karren's unadmitted
psychosexual report were "perfectly glowing, " the
offense required a prison term, and it declined to follow
AP&P's recommendation of probation. The district
court stated that, although it did not fully accept the
representations regarding the impact on the child, the court
did not believe that the conduct supported placing Karren on
Karren argues that the district court abused its discretion
by sentencing him to prison instead of placing him on
probation without adequately considering "the intangible
factors supporting probation, including his character,
attitude, and rehabilitative needs." But a defendant in
a criminal case "is not entitled to probation."
State v. Rhodes, 818 P.2d 1048, 1051 (Utah Ct. App.
1991. An appellate court will not overturn the denial of
probation unless it is "clear that the actions of the
judge were so inherently unfair as to constitute an abuse of
discretion, " id. (emphasis omitted) (citation
and internal quotation marks omitted), and Karren
has not demonstrated that the district court's decision
to sentence him to the statutory prison term, rather that
placing him on probation, was inherently unfair. Karren's
argument is essentially that the district court did not
appropriately weigh the factors that supported probation.
This "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." State v. Alvarez, 2017 UT
App 145, ¶ 6.
Karren also argues that the district court relied on
unreliable and irrelevant accusations of uncharged child
abuse. This claim lacks support in the record. The record
reflects that the district court limited its consideration to
the conduct that formed the basis for the present charges,
going so far as striking the ...