District Court, Provo Department The Honorable Thomas Low No.
Jordana Aston and Dallas B. Young, Attorneys for Appellant
D. Reyes and Jonathan S. Bauer, Attorneys for Appellee
Gregory K. Orme authored this Opinion, in which Judges Kate
Appleby  and Ryan M. Harris concurred.
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.
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. 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.
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, . . .
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.
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.
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.
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.
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.
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
¶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 ...