Opinion
Case No. 20030554-CA.
Filed November 12, 2004. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, The Honorable J. Dennis Frederick.
Kent R. Hart and Robert K. Heineman, Salt Lake City, for Appellant.
Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Appellee.
Before Judges Billings, Davis, and Greenwood.
MEMORANDUM DECISION
In a consolidated appeal, Kyle Joseph Lehman requests that this court reverse and remand the sentencing decision of the trial court. The trial court sentenced Lehman to two consecutive prison terms of one-to-fifteen years for two separate counts of sexual abuse of a child to which Lehman had pleaded guilty. See Utah Code Ann. § 76-5-404.1 (2000). We affirm.
On appeal, Lehman argues that the trial court abused its discretion by imposing consecutive sentences because it failed to consider certain mitigating evidence. "This court traditionally affords the trial court wide latitude and discretion in sentencing." State v. Helms, 2002 UT 12, ¶ 8, 40 P.3d 626 (quotations and citations omitted). "[A] sentence imposed by the trial court should be overturned only when it is inherently unfair or clearly excessive." Id. at ¶ 14. Therefore, we review the trial court's sentencing decision for abuse of discretion.
"A trial court abuses its discretion in sentencing when, among other things, it fails to consider all legally relevant factors."Id. at ¶ 8 (quotations and citation omitted). Specifically, a trial court "abuses its discretion in imposing consecutive sentences only if `no reasonable [person] would take the view by the [sentencing] court.'" State v. Thorkelson, 2004 UT App 9, ¶ 12, 84 P.3d 854 (alterations in original) (quoting State v. Gerrard, 584 P.2d 885, 887 (Utah 1978)).
Pursuant to Utah Code section 76-3-401, a trial court has the discretion to impose consecutive sentences when a defendant has been convicted of more than one felony offense. See Utah Code Ann. § 76-3-401(1) (2000). Before a trial court may impose consecutive sentences, it "shall consider the gravity and circumstances of the offenses and the history, character, and rehabilitative needs of the defendant." Id. § 76-3-401(4). The defendant has the burden to demonstrate that the trial court did not consider the factors set forth in section 76-3-401(4). See Helms, 2002 UT 12 at ¶ 16.
Lehman argues that the trial court failed to consider relevant mitigating evidence such as Lehman's remorse, acceptance of responsibility, favorable psychological profile, amenability to treatment, and good attitude. Lehman contends that the trial court's failure to mention this evidence in its sentencing order demonstrates that the trial court did not take them into account.
"[A]s a general rule this court upholds the trial court even if it failed to make findings on the record whenever it would be reasonable to assume that the court actually made such findings."Id. at ¶ 11 (quotations and citations omitted). In Helms, the defendant asserted that the trial court, in sentencing the defendant to five consecutive sentences, abused its discretion by neglecting to consider the factors enumerated in section 76-3-401(4). See id. at ¶¶ 6-7. The defendant argued that the failure of the trial court "to state the extent to which it considered each of the factors in the sentencing order" demonstrated its neglect to consider the statutory factors. Id. at ¶ 10. The Utah Supreme Court refused to "assume that the trial court's silence, by itself, presupposes that the [trial] court did not consider the proper factors as required by law." Id. Conversely, the court noted that at the sentencing hearing, the trial court did state that it had reviewed the presentence report carefully. See id. at ¶ 13. The court held that the defendant's "history, character, and rehabilitative needs" were presented in the presentence report as demonstrated by the report's accounts of the defendant's criminal behavior; two psychological evaluations; sentencing recommendations; and "several statements by [the defendant] recognizing the seriousness of his crimes, remorse for his actions, and willingness to make restitution."Id.; see also State v. Valdovinos, 2003 UT App 432, ¶ 30, 82 P.3d 1167 (holding that "[a]lthough the trial court did not explicitly address the enumerated factors in section 76-3-401(4), there [was] ample evidence in the record that the court considered these factors at the time of the Defendant's sentencing").
Similarly, in this case, we conclude that the trial court's failure to state explicitly the extent to which it considered each of the factors in the sentencing order does not demonstrate that it neglected to consider all legally relevant factors. In its sentencing order, the trial court stated,
[The court doesn't] know that there are any more repulsive crimes than adults sexually abusing children, unless it is the abuse by a relative of those children. You not only violated the trust of these small four and five-year-old girls, but you engaged in a course, a pattern of activity which consisted of multiple incidents, and in [the court's] judgment that is reprehensible, Mr. Lehman.
You present a danger to society, and you cannot be allowed to remain out. You are subject, for whatever reason, be it your self-reported abuse when you were a child, or otherwise, it really doesn't make a whole lot of difference, because you must be placed in a confined setting so that you cannot prey on small children in this society anymore.
In addition, the trial court noted in the sentencing order that the "presentence report has been . . . reviewed." As in Helms, Lehman's presentence report contains information indicating the gravity and circumstances of the offenses, the number of victims, as well as the history, character, and rehabilitative needs of Lehman. See Utah Code Ann. § 76-3-401(4).
Lehman relies on State v. Strunk, 846 P.2d 1297 (Utah 1993), in which the defendant, a sixteen-year-old boy, pleaded guilty to first-degree murder, child kidnaping, and aggravated sexual abuse of a child. See id. at 1299. The trial court sentenced the defendant to three consecutive sentences. See id. at 1301. The defendant was sentenced to life imprisonment for the first-degree murder offense and received minimum mandatory fifteen-year and nine-year sentences for the kidnaping and sexual abuse offenses.See id. The Utah Supreme Court held that the trial court had abused its discretion "in failing to consider defendant's rehabilitative needs in light of his extreme youth and the absence of prior violent crimes." Id. at 1302. Additionally, the court stated that "the twenty-four year [minimum] term rob[bed] the Board of Pardons of any flexibility to parole [the defendant] sooner." Id. at 1301.
Here, the facts are easily distinguishable. First, Lehman was twenty-two years old, not of extreme youth, when he committed the crimes for which he was sentenced. See State v. Montoya, 929 P.2d 356, 359 (Utah Ct.App. 1996) (noting that the defendant's age of twenty-three distinguished the facts from Strunk). Second, unlike the defendant in Strunk, Lehman has a criminal history involving sexual abuse and sexual assault. Finally, "[u]nlike the defendant in Strunk, [Lehman] does not face two additional mandatory minimum sentences on top of a life sentence." Valdovinos, 2003 UT 432 at ¶ 33 (finding Strunk to be inapposite where defendant received three consecutive sentences of five years to life with no mandatory minimum term).
Finally, Lehman argues that the trial judge's reliance on the presentence report without considering a psychologist's evaluation of Lehman's fitness for pretrial release demonstrated a failure to give adequate weight to the mitigating evidence. However, we have previously held that "there [is] nothing illegal about [a trial court] foregoing [a psychologist's] report" and relying on the presentence report. State v. Thorkelson, 2004 UT App 9, ¶ 11, 84 P.3d 854. "[A] court is not compelled to consider additional psychological information, even if relevant and helpful, if the court otherwise has sufficient information to impose a sentence." Id. (citing State v. Gentlewind, 844 P.2d 372, 375 (Utah Ct.App. 1992)).
In conclusion, we assume the court considered all legally relevant factors prior to issuing Lehman's sentencing order. Thus, the sentence imposed by the trial court was reasonable and not clearly excessive or inherently unfair. Accordingly, we affirm.
WE CONCUR: Judith M. Billings, Presiding Judge, James Z. Davis, Judge and Pamela T. Greenwood, Judge.