State v. Do ( 2015 )

2015 UT App 147THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
TIM TRONG DO,
Defendant and Appellant.
Memorandum Decision
No. 20140298-CA
Filed June 11, 2015
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 131900057
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Deborah L. Bulkeley, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and J. FREDERIC VOROS JR.
concurred.
ROTH, Judge:
¶1 Tim Trong Do appeals his prison sentence for burglary, a
second degree felony. Do contends that in ordering him to serve
the prison sentence rather than placing him on probation, the
district court relied on a misunderstanding of Do’s previous
probation history and failed to adequately consider his drug
addiction. We affirm.
¶2 Do entered an Alford plea to burglary1 in exchange for the
State’s dismissal of other charges arising from the same criminal
1. “By entering an Alford plea, a defendant does not admit guilt.
Rather, the defendant enters a guilty plea because he recognizes
(continued…)
State v. Do
episode and the State’s agreement that it would not object to
Do’s being sentenced to probation or his later seeking a
reduction of his conviction.2 Prior to sentencing, the court
referred Do to Adult Probation and Parole (AP&P) to complete a
presentence investigation report (the PSI). According to the PSI,
Do had a criminal history dating back to “when he was a
juvenile.” The criminal history included a number of arrests,
primarily for theft, violent crime, and drug and alcohol offenses.
On two previous occasions, Do had been supervised by AP&P
and had been “discharged as successful.” At the time of the PSI’s
completion, Do was awaiting sentencing on another theft crime
as well as on the burglary conviction at issue here. The PSI
further indicated that Do “takes no responsibility for his actions”
in the current case. Finally, the PSI addressed Do’s drug
addiction, noting that Do had received treatment in the past but
had continued to use drugs. At the time of the PSI, he claimed to
be participating in treatment again. Because it “believe*d+ the
defendant [was] an appropriate candidate for supervised
probation,” AP&P recommended an intermediate sanction of
one year in jail, restitution, and supervised probation.
¶3 At the sentencing hearing, Do asked the court to deviate
from AP&P’s recommendation by either ordering probation for
less than the recommended term or setting a review hearing for
the purpose of considering early termination of probation. In
support of his position, Do highlighted the prominent role his
drug addiction played in his criminal history and emphasized
his recent efforts to turn his life around. He also expressed a
desire to receive further substance abuse treatment. The State, in
(…continued)
that a prosecutor has enough evidence to obtain a guilty
verdict.” State v. Ott, 2010 UT 1, ¶ 9 n.2, 247 P.3d 344.
2. As part of the plea agreement, the State agreed to “leave open
a 402(2) 2-step reduction pending performance on probation.”
See Utah Code Ann. § 76-3-402(2)–(3) (LexisNexis 2012).
20140298-CA 2 2015 UT App 147State v. Do
accordance with the plea agreement, submitted the issue on
AP&P’s recommendation. The district court rejected both Do’s
and AP&P’s recommendations and sentenced Do to “one to 15
years at the Utah State Prison.” Do appeals, contending that the
district court abused its discretion in sentencing him to prison.
¶4 “On a plea of guilty, . . . the court may, after imposing
sentence, suspend the execution of sentence and place the
defendant on probation.” Utah Code Ann. § 77-18-1(2)
(LexisNexis Supp. 2014).3 In other words, a “defendant is not
entitled to probation, but rather the [district] court is empowered
to place the defendant on probation.” State v. Rhodes, 818 P.2d
1048, 1051 (Utah Ct. App. 1991). The court may exercise this
prerogative “if it thinks that *probation+ will best serve the ends
of justice and is compatible with the public interest.” Id. District
courts, therefore, have “substantial discretion in conducting
sentencing hearings and imposing a sentence.” State v. Bryant,
2012 UT App 264, ¶ 9, 290 P.3d 33 (citation and internal
quotation marks omitted); see also Rhodes, 818 P.2d at 1049(explaining that “probation must of necessity rest within the
discretion of the judge who hears the case” because “*t+he
granting or withholding of probation involves considering
intangibles of character, personality and attitude” (citation and
internal quotation marks omitted)). Consequently, “we review a
trial court’s decision to deny probation under an abuse of
discretion standard and will overturn a sentencing decision only
if it is clear that the actions of the [trial] judge were so inherently
unfair as to constitute an abuse of discretion.” State v. Killpack,
2008 UT 49, ¶ 18, 191 P.3d 17 (alteration in original) (emphasis,
citation, and internal quotation marks omitted). Under this
standard, we will reverse only if “no reasonable *person+ would
take the view adopted by the trial court.” State v. Valdovinos, 2003
3. Subsection 77-18-1(2) has not been amended since Do
committed the burglary in 2012. Accordingly, we cite the most
recent edition of the Utah Code Annotated as a convenience for
the reader.
20140298-CA 3 2015 UT App 147State v. Do
UT App 432, ¶ 14, 82 P.3d 1167 (alteration in original) (citation
and internal quotation marks omitted).
¶5 Do argues that the district court abused its discretion in
two ways when it sentenced him to prison. First, he contends
that the court “failed to consider his success at probation” and in
fact relied on a misbelief that “Do had never been successful at
probation.” Do points to two previous successful terms of
probation and asserts that given his previous successes, the
district court’s failure to impose probation in this case was
inexplicable, particularly where “all of the parties, the State
included, recommended a probationary sentence.”
¶6 The district court, however, did not deny probation
because it believed that Do’s previous probation attempts had
failed. Rather, the court denied probation because the earlier
“successful” probations had not deterred future criminal
behavior of the same nature. Indeed, the court noted that Do
successfully completed probation on a 2001 conviction only to be
placed on probation again from 2008 to 2010 for aggravated
assault. Two years after a successful end to that probation, “he’s
got a series of three *more+ offenses.” The court observed that the
judicial system had “given *Do+ chance after chance” and yet it
was just “not getting his attention” because each time Do
completed probation, he went “back out and commit*ted] more
crimes.” Thus, the court expressed concern that “putting *Do+ on
probation is kind of asking the probation department to do
something that nobody else has had any luck or success with. It
just never quits . . . .” In other words, under the circumstances,
the district court did not believe that probation would “best
serve the ends of justice” or be “compatible with the public
interest” because Do’s previous probation successes had not
yielded success in the long run; rather, after each release from
probation, Do had soon returned to criminal activity. See Rhodes,
818 P.2d at 1051. An assessment of this kind involves
“considering intangibles of character, personality and attitude”
that a district court is uniquely positioned to make. See id. at 1049(citation and internal quotation marks omitted). After
20140298-CA 4 2015 UT App 147State v. Do
considering these intangibles here, the district court apparently
did not believe that Do was any more likely to be successful at
avoiding criminal behavior after probation ended in this case
than he had been in the past. The court’s refusal to give Do
another opportunity to complete probation, despite his previous
successes, was therefore not an abuse of discretion.
¶7 Do’s second contention is that the district court abused its
discretion by failing to view his drug addiction as a significant
mitigating factor that favored probation. According to Do, the
failure “to give adequate weight to certain mitigating
circumstances” constitutes an abuse of discretion. (Citation and
internal quotation marks omitted.) We conclude that the district
court did not abuse its discretion in failing to treat Do’s drug
addiction solely as a mitigating factor.
¶8 Do explained to the district court at sentencing that he
committed the latest series of crimes after a relapse and that he
would be more capable of turning his life around if he were able
to get drug treatment. The PSI likewise recommended that
substance abuse treatment be part of Do’s conditions of
probation. On appeal, Do cites a number of articles that discuss
the likelihood of relapse among drug addicts as support for his
position that drug abuse is a mitigating factor.
¶9 It is first worth noting that Do did not present these
articles to the district court at sentencing. But more importantly,
the district court did take into account the nature of Do’s
addiction before imposing a prison sentence. The court noted
that in connection with the 2008 sentencing, Do had likely told
the court, “I need help, I need treatment,” to obtain probation
and was making essentially the same plea for treatment rather
than incarceration in connection with his current case. In other
words, rather than seeing addiction as the source of Do’s
problems that treatment would likely correct, the court instead
judged that it was an excuse Do used for his repeated criminal
behavior. The court observed that Do failed to “take
responsibility for anything” and instead blamed his drug
addiction for the negative arc of his life. Indeed, as discussed
20140298-CA 5 2015 UT App 147State v. Do
above, probation and previous opportunities for drug treatment
had failed to deter future criminal conduct. Thus, while the court
might have seen Do’s addiction as a factor weighing in favor of
probation and treatment, the circumstances certainly supported
the court’s alternative conclusion. See State v. Rhodes, 818 P.2d
1048, 1049, 1051 (Utah Ct. App. 1991) (noting that the district
court is uniquely positioned to make a decision about probation
because such a decision “involves considering intangibles of
character, personality and attitude” to determine if probation
will “best serve the ends of justice and is compatible with the
public interest”). The court therefore acted within its discretion
in declining to weigh Do’s drug addiction in favor of probation.
¶10 We conclude that the district court did not abuse its
substantial discretion in denying Do’s request for probation in
this case on the basis that previous probation sentences and drug
treatment opportunities had not had the desired effect of
deterring him from criminal activity. We therefore affirm the
court’s sentencing decision.
20140298-CA 6 2015 UT App 147