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State v. Akers

Court of Appeals of Utah

December 20, 2018

State of Utah, Appellee,
Jason Reed Akers, Appellant.

          Fourth District Court, Provo Department The Honorable Thomas Low No. 171401387

          Leah Jordana Aston and Dallas B. Young, Attorneys for Appellant

          Sean D. Reyes and Jonathan S. Bauer, Attorneys for Appellee

          Judge Gregory K. Orme authored this Opinion, in which Judges Kate Appleby [1] and Ryan M. Harris concurred.


          ORME, Judge:

         ¶1 Defendant Jason Reed Akers appeals his sentences, arguing that the district court abused its discretion by relying on allegedly irrelevant and unreliable information contained in his presentence investigation report (the PSIR) when it imposed sentence. Alternately, Akers contends that his defense counsel rendered ineffective assistance by failing to object to the challenged information in the PSIR prior to sentencing. We affirm.


         ¶2 In April 2017, 38-year-old California resident Jason Reed Akers used a social media platform to "message" a teenager. The profile he reached out to indicated that it belonged to a 13-year-old girl who resided in Utah, but in reality it belonged to an undercover Special Agent with Homeland Security Investigations.[2] Akers told the girl that he would be in Utah in two days and wanted to meet her. She quickly asked whether he was "cool" with her only being 13 years old. He answered, "Leave age out of this. Nobody should know, right?," and shortly thereafter he asked if she was a virgin. After she confirmed that she was, he told her that he wished to "take" her virginity and named the sexual acts he wanted the two of them to perform. Akers twice unsuccessfully requested that the girl send him pictures of her genitals, but her refusal did not prevent him from sending her a pornographic video and two photographs depicting a penis.

         ¶3 Akers and the girl arranged to meet at a park in Utah County. At the girl's request, Akers agreed to bring condoms, lubricant, an energy drink, and cookies. Akers also asked the girl whether she drank or smoked, to which she replied that she never had but would "be curious." Akers then told her that he would bring "special gummy worms, . . . THC special."[3]

         ¶4 Authorities arrested Akers as he waited for the girl at the arranged meeting place. Officers found a pipe containing methamphetamine in his vehicle, in plain view, and Akers subsequently admitted to smoking the drug during his drive from California to Utah. A more thorough search of the vehicle also produced lubricant, THC gummy worms, and a handgun. During interrogation, Akers admitted sending the messages and pornographic images to the girl and possessing the pipe and illegal substances found in his vehicle.

         ¶5 The State charged Akers with six felony and three misdemeanor counts. Akers and the State entered into a plea agreement in which Akers agreed to plead guilty to three of the nine charges. He pled guilty to one count of enticing a minor, a second degree felony; one count of dealing in materials harmful to a minor, a third degree felony; and one count of possession of a firearm by a restricted person, a third degree felony. In exchange, the State agreed to drop the remaining six charges, including a charge for possession of the THC gummy worms.

         ¶6 Prior to sentencing, Adult Probation and Parole prepared the PSIR. It recited the circumstances surrounding Akers's arrest, including a single mention that officers located a gun, a pipe containing methamphetamine, and "marijuana gummy [worms]" in Akers's vehicle. The PSIR recommended a sentence of only 105 days, with credit for time served, followed by 36 months of supervised probation.

         ¶7 At the sentencing hearing, the district court began by inquiring whether the PSIR contained any errors. Akers's defense counsel replied that it did not, stating, "[W]e don't have any corrections with the pre-sentence report," and he urged the court to follow the PSIR's sentencing recommendation. The State asked the court to deviate from the recommendation, arguing that Akers's case was not a "typical enticement of a minor case." In support of this assertion, the State recounted how, among other things, authorities had apprehended Akers with the THC gummy worms, methamphetamine, and a handgun in his possession. Akers's counsel responded that the district court should not consider such "ancillary incidences" because they were unsubstantiated and Akers had not pled guilty to them. Counsel emphasized that this was Akers's first offense and once more urged the district court to follow the PSIR's sentencing recommendation.

         ¶8 Following these arguments, the district court asked Akers why he was in possession of the gun and THC gummy worms while waiting to meet his intended victim. Akers replied that he had forgotten the gun was in the vehicle and that he was "certified in California for medicinal marijuana." The district court then noted that it appeared that the THC gummy worms were intended for the girl.

         ¶9 The district court deviated from the PSIR's recommendation and imposed concurrent sentences of 1 to 15 years imprisonment on the enticement of a minor count and 0 to 5 years each on the remaining two counts. It explained that of the many enticement-of-a-minor cases to which it had previously been assigned, this case stood out because "this is the first one [it had] ever seen with a gun and with THC gummy [worms]," as well as methamphetamine. As such, it appeared to the court that Akers was "going to kidnap a child, maybe kill it." The district court explained, "Had any of those circumstances been different, even the two states away is disconcerting but not enough to send [Akers] to prison for. It's the gun and the gummy [worms] that really concerns the Court so much."

          ¶10 After the district court explained its sentencing decision, Akers's counsel requested that the district court reconsider its decision without relying on "activity that [Akers] did not plead guilty to, such as the methamphetamine or the THC." Counsel argued that the district court's consideration of that information put Akers "in a position where he cannot defend himself, where he cannot assert his innocence to those issues." The district court responded that it was ordinary practice for courts to consider the facts contained in presentence investigation reports, which often include "uncharged criminal activity." It further explained that for that reason presentence investigation reports are either stipulated to, or ...

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