District Court, Provo Department The Honorable Samuel D.
McVey No. 161401074
Adams, Attorney for Appellant
D. Reyes and Marian Decker, Attorneys for Appellee
Judges Gregory K. Orme, Jill M. Pohlman, and Diana Hagen.
Appellant Michael Shaun Irey appeals his sentence to
concurrent prison terms of five-years-to-life on his
conviction for operation or possession of a clandestine
laboratory, a first degree felony, zero-to-five years on his
conviction for distribution of a controlled substance, a
third degree felony, and zero-to-365 days on his conviction
for attempted aggravated assault, a class A misdemeanor.
We review sentencing decisions for an abuse of discretion,
State v. Neilson, 2017 UT App 7, ¶ 15, 391 P.3d
398, and we will find abuse 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.
Irey raises two claims on appeal. First, he contends that the
district court failed to satisfy its statutory obligation
under Utah Code section 77-18-1(6)(a) to resolve alleged
inaccuracies in the presentence investigation report (PSI).
See Utah Code Ann. § 77-18-1(6)(a) (LexisNexis
Supp. 2016). Second, he contends that the district court
abused its discretion in sentencing him to prison rather than
granting him probation. The State concedes that the district
court failed to resolve alleged inaccuracies in the PSI and
that this case should be remanded for the limited purpose of
resolving the alleged inaccuracies. However, the State also
contends that Irey's sentence should be affirmed because
the inaccuracies in need of correction were brought to the
district court's attention at the time of sentencing.
At sentencing, Irey's counsel noted that the PSI
incorrectly stated that Irey had an extensive history of
substance abuse related arrests. Defense counsel also claimed
that the PSI incorrectly stated that Irey had three
probations that were terminated unsuccessfully, while
elsewhere stating that Irey had "no history of previous
supervised probation on record as an adult." The PSI
included no statements regarding the duration or outcome of
any juvenile probation. Defense counsel also took issue with
the PSI's assessment of Irey's attitude and lack of
remorse. The district court asked if Irey wanted a new PSI
"because there are obviously a couple of errors in
here." However, defense counsel declined, asking to
"go forward with this report given the fact that
[counsel had] made the corrections." The State also
agreed on the record that the score for Irey's criminal
history in the sentencing recommendation should be reduced
from "one" to "zero."
"Whether the trial court properly complied with a legal
duty to resolve on the record the accuracy of contested
information in sentencing reports is a question of law that
we review for correctness." State v. Samulski,
2016 UT App 226, ¶ 9, 387 P.3d 595 (citation and
internal quotation marks omitted). The State agrees that this
case should be remanded for the limited purpose of resolving
alleged inaccuracies in the PSI. While the district court
considered and acknowledged Irey's objections at
sentencing, the district court did not indicate on the record
its determinations of accuracy and relevance. Because
"the PSI will follow [Irey] through the justice system .
. . it is important to make appropriate corrections to the
report." State v. Monroe, 2015 UT App 48,
¶ 10, 345 P.3d 755. Accordingly, a limited remand is
necessary to allow the district court to resolve that issue.
Although we agree that Irey's objections were not
adequately resolved on the record, we conclude that the
district court properly considered the objections before it
sentenced Irey. See id. ¶ 8 ("We are not
convinced that the district court's failure to resolve
Defendant's objections requires reversal and
resentencing."). The record reflects that the district
court "accepted the general accuracy of [the]
corrections for purposes of imposing sentence."
Id. ¶ 9. There is no indication in the record
that the district court relied on the allegedly inaccurate
information at sentencing. Furthermore, Irey does not
specifically argue that the inaccuracies in the PSI
prejudiced him in sentencing, although Irey does argue that
this court should not affirm his sentence on other grounds.
The district court identified two aggravating circumstances:
unusually extensive property damage-in the approximate amount
of $90, 000-as a result of a fire caused by Irey's
operation of a clandestine lab and Irey's threatening a
potential drug purchaser with a gun. The district court
identified the mitigating circumstance that Irey was a fairly
youthful offender. Based upon the information before it,
including the inaccuracies in the PSI brought to the
court's attention, the district court concluded that Irey
was not an appropriate candidate for probation.
Irey argues that the district court abused its discretion by
failing to adequately weigh aggravating and mitigating
circumstances. 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). Irey has not demonstrated
that the district court's decision to sentence him to the
statutory prison term was inherently unfair. His argument
essentially "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.
We remand for the limited purpose of resolving Irey's
objections to the PSI and affirm in all other respects.