State v. Valdez , 810 Utah Adv. Rep. 51 ( 2016 )

2016 UT App 74THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JERRY R. VALDEZ,
Appellant.
Per Curiam Decision
No. 20150402-CA
Filed April 14, 2016
Second District Court, Ogden Department
The Honorable Ernie W. Jones
No. 141902131
Samuel P. Newton , Attorney for Appellant
Sean D. Reyes and Laura B. Dupaix, Attorneys
for Appellee
Before JUDGES GREGORY K. ORME, MICHELE M. CHRISTIANSEN, and
KATE A. TOOMEY.
PER CURIAM:
¶1 Jerry R. Valdez appeals from his sentences after pleading
guilty to one count of failure to register as a sex offender and
two counts of attempted unlawful sexual activity with a minor.
Valdez asserts that the district court erred in imposing
consecutive sentences
¶2 We review the sentencing decision of the district court,
including the decision to grant or deny probation, for an abuse
of discretion. See State v. Valdovinos, 2003 UT App 432, ¶ 14, 82
P.3d 1167. “An abuse of discretion results when the judge fails to
consider all legally relevant factors, or if the sentence imposed is
clearly excessive.” Id. (citation and internal quotation marks
omitted). Furthermore, “[a]n appellate court may only find
State v. Valdez
abuse if it can be said that no reasonable [person] would take the
view adopted by the trial court.” Id. (second alteration in
original) (citation and internal quotation marks omitted).
¶3 Utah Code section 76-3-401 states the legally relevant
sentencing factors a trial court must consider before determining
whether sentences will be imposed concurrently or
consecutively: “the gravity and circumstances of the offenses, the
number of victims, and the history, character, and rehabilitative
needs of the defendant.” Utah Code Ann. § 76-3-401(2)
(LexisNexis 2012). However, as a general rule, a district court’s
decision to impose consecutive sentences is upheld “whenever it
would be reasonable to assume that the court” considered the
statutory factors, even if the court “failed to make findings on
the record.” State v. Helms, 2002 UT 12, ¶ 11, 40 P.3d 626 (citation
and internal quotation marks omitted). Accordingly, it is the
defendant’s burden to demonstrate that the district court did not
properly consider the relevant factors, and appellate courts “will
not assume that the trial court’s silence, by itself, presupposes
that the court did not consider the proper factors as required by
law.” Id. To do otherwise “would trample on the deference this
court usually gives to the sentencing decisions of a trial court.”
Id.
¶4 Valdez asserts that the district court failed to adequately
consider his character and rehabilitative needs when it imposed
consecutive sentences. Contrary to Valdez’s assertions, the
record, taken as a whole, reveals that the district court did
consider Valdez’s rehabilitative needs prior to sentencing. For
example, Valdez presented the court with several letters from
individuals supporting Valdez’s character and describing
positive changes they had seen in him over the previous few
years. The district court took a recess to read the letters. The
district court also reviewed the Presentence Investigation Report
and provided Valdez with an opportunity to address the court.
Further, prior to pronouncing its sentence the district court
20150402-CA 2 2016 UT App 74State v. Valdez
acknowledged that Valdez had “a lot of support from family and
friends.” Valdez points us to no information that he attempted to
present to the court that it refused to consider. Thus, it is clear
that the issue of Valdez’s potential rehabilitative needs was
presented to and considered by the court. The district court
simply concluded that the other factors supporting consecutive
sentences outweighed those factors favoring concurrent
sentences.
¶5 Specifically, the court focused on the fact that Valdez had
been convicted of a similar crime some years before. Following
that conviction, Valdez was “given a break” and sentenced to
probation. However, Valdez was eventually sent to prison for
violating probation. He subsequently was paroled on three
separate occasions and returned to prison each time for violating
the terms of his parole. Accordingly, the court was concerned by
the fact that Valdez not only did poorly on supervised release,
but ultimately committed another crime involving a minor.
Under the totality of the circumstances, we cannot say that the
district court abused its discretion.
¶6 Affirmed.
20150402-CA 3 2016 UT App 74