State v. Coombs , 438 P.3d 967 ( 2019 )

2019 UT App 7THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
KELLY BRUCE COOMBS,
Appellant.
Opinion
No. 20151063-CA
Filed January 10, 2019
Fourth District Court, Provo Department
The Honorable Derek P. Pullan
Nos. 151401748 and 151402149
Emily Adams, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN
concurred.
MORTENSEN, Judge:
¶1 Kelly Bruce Coombs was charged with two counts of
child rape, two counts of child sodomy, and eleven counts of
sexual exploitation of a minor for possession of child
pornography. In exchange for Coombs’s guilty pleas to
attempted child rape, attempted child sodomy, and sexual
exploitation of a minor, the State dismissed the child rape and
child sodomy charges. Coombs was sentenced to two concurrent
terms of fifteen years to life. On appeal, Coombs argues that his
counsel performed deficiently by not arguing for the application
of an interests-of-justice proportionality analysis at his
sentencing. Coombs asserts that such an analysis would have
revealed his sentence to be arbitrary in comparison with the
State v. Coombs
seriousness of his crimes and the sentences for other offenses in
Utah. Coombs argues that the sentencing court would have
imposed a lighter sentence had it come to this realization. We are
unpersuaded and affirm the sentence Coombs received.
BACKGROUND
¶2 Coombs was charged in two separate cases. One involved
the sexual abuse of his stepdaughter (Victim); the other
concerned his possession of child pornography. The two cases
were consolidated in the sentencing court and on appeal.
Sexual Abuse of Victim
¶3 Coombs repeatedly raped and sodomized Victim from the
time she was six years old until she turned nine. He committed
this abuse knowing that Victim had been sexually abused
previously by a different family member.
¶4 The abuse began when Victim lived with her mother, two
brothers, and Coombs. Victim stated that since she did not have
her “real dad,” she and Coombs “decided that [they] were going
to do something as father and daughter”—a “father/daughter
day.” While Coombs and Victim were sitting on Coombs’s bed,
Victim stated that Coombs showed her a picture on the Internet
of a girl “sucking a penis.” Coombs suggested to Victim that it
was “one of the options” for the two of them as a father and
daughter activity. Victim testified that Coombs then took off his
clothes, made her remove her clothes, and “touched” her vagina
with his penis. Victim also testified that on the following day,
Coombs “touched” her vagina with his penis a second time. On
another occasion, Victim stated that Coombs “made” her go to
his bedroom and “take off [her] clothes.” Coombs then “took off
all his clothes” and “made [her] suck his penis.”
¶5 Coombs stopped his abuse of Victim for a brief time, but
he resumed when the family moved to a new home in a
20151063-CA 2 2019 UT App 7State v. Coombs
neighboring town. Victim testified that Coombs’s abuse started
again “like a switch had turned back on” after the move. Victim
stated that Coombs entered her bedroom one day while her
mother was working. While Victim was on her bed and her
clothes were off, Coombs’s “penis touched [her] vagina” for a
third time.
¶6 Victim also said that, while she was sleeping, Coombs
snuck into her bedroom on numerous occasions in the new
home, pulled down her shorts and underwear, and took
photographs of her. When this intrusion caused her to wake,
Victim recalled seeing Coombs “running out of her room.”
¶7 When Victim was nine years old, she disclosed to her
grandmother that Coombs was sexually abusing her. Victim’s
grandmother reported the abuse to local police a few days later.
Possession of Child Pornography
¶8 While Coombs was being investigated for sexually
abusing Victim, an independent, parallel investigation into
Coombs’s possession of child pornography was in progress.
Coombs had downloaded at least eleven images of prepubescent
females engaged in explicit sexual activity. These same images
were later located on Coombs’s cell phone when it was seized
incident to his arrest for sexually abusing Victim. Upon
discovering that Coombs was in possession of child
pornography, law enforcement officers suspected he might be
involved in manufacturing pornography involving Victim.
Summary of the Proceedings
¶9 For his sexual abuse of Victim, the State originally
charged Coombs with two counts each of child rape and child
sodomy, each carrying a presumptive prison sentence of
twenty-five years to life. He was also charged with eleven counts
of sexual exploitation of a minor for his possession of child
pornography.
20151063-CA 3 2019 UT App 7State v. Coombs
¶10 But Coombs agreed to a plea deal with the State in
exchange for reduced charges. He pled guilty to one count of
attempted child rape, one count of attempted child sodomy, and
eleven counts of sexual exploitation of a minor. As a factual basis
to support the plea, the State cited evidence that Coombs “had
attempted to have vaginal and oral sex with his nine-year-old
step daughter,” that he had “put [Victim’s] mouth on his penis,”
and that he possessed “at least 11 pictures/videos of child
pornography depicting prepubescent children engaged in sexual
activity.” In his plea affidavit, Coombs acknowledged that
(1) “[his] penis touched [Victim’s] vagina, and [Victim’s] mouth
touched [his] penis,” (2) “[Victim] was under 14 years of age,”
and (3) “[he] uploaded 11 images of child pornography to an
online storage account.” In addition to accepting a guilty plea in
exchange for reduced charges, the State agreed to recommend
concurrent sentencing.
¶11 At the sentencing hearing, the court clarified that the
presumptive sentence for attempted child rape and attempted
child sodomy is a prison term of “15 years to life and with the
provision that the court may impose a lesser sentence, 10 years
to life, six years to life, or three years to life, if the interests of
justice so require.”
¶12 Coombs’s counsel asked the sentencing court to impose
the minimum sentence of three years to life, asserting that
Coombs’s case represented “one of the rare instances where the
[sentencing court] should deviate” from the presumptive
sentence of fifteen years to life. Counsel argued that the
following mitigating factors supported a “lesser punishment” for
Coombs: (1) his minimal criminal history; (2) his age of
twenty-six with “a significant life ahead of him” including
“goals” and “aspirations”; (3) his openness to receiving
treatment; (4) his employment prospects and strong family
support; and (5) his desire to complete college-type courses.
¶13 The State asked for the presumptive sentence of fifteen
years to life, arguing that the longer sentence would give
20151063-CA 4 2019 UT App 7State v. Coombs
Victim time to grow into adulthood without having “to
look over her shoulder at parole hearings” for Coombs. The State
also asserted that “no amount of mitigating circumstances”
could outweigh the circumstances of the abuse Coombs
committed. The State noted that Coombs was in a position of
trust and knew of prior abuse that Victim had suffered.
Furthermore, Victim was of a “truly . . . vulnerable age” and was
abused over a three-year period. And the abuse was not
momentary or incidental but involved grooming and repeated
instances of oral sex and rape. The State summarized its position
in regard to mitigation: “[T]his is not a momentary touching in
passing. This was a calculated thing knowing that he had a
vulnerable victim that he preyed upon. . . . [Y]ou’ve got . . . three
to four years of sexual offending. So again this is not a just
momentary bad day.”
¶14 Before imposing the sentence, the court specifically
considered whether to “depart from the presumptive sentence”
of fifteen years to life “in order to achieve the interests of
justice.” The court acknowledged Coombs’s limited
criminal history, acceptance of responsibility, strong family
support, relative youth, amenability to supervision, desire for
treatment, and remorse as mitigating circumstances. But the
court also recognized aggravating circumstances, including the
number of charges, the young age and vulnerability of Victim,
the severity of Coombs’s actions (i.e., repeated attempts to
commit rape and sodomy on a child), Coombs’s knowledge of
Victim having been abused in the past, showing pornography to
Victim in an attempt to normalize the behavior, and Coombs’s
possession of child pornography where other minors were
victimized. The court advised Coombs that its sentence was “not
about imposing a judgment that [found him] one hundred
percent evil,” but the court clarified that what Coombs “did to
this child was evil.” Thus, the trial judge concluded, “In good
conscience, I cannot find that the interests of justice are
served by a lower range. You have committed great harm to this
child, and you need to be—society needs to hold you
accountable for that.”
20151063-CA 5 2019 UT App 7State v. Coombs
¶15 The court sentenced Coombs to: (1) fifteen years to life for
attempted rape of a child; (2) fifteen years to life for attempted
sodomy on a child; and (3) eleven terms of one to fifteen years
for sexual exploitation of a minor. All the sentences were
ordered to run concurrently with each other.
ISSUES AND STANDARDS OF REVIEW
¶16 On appeal, Coombs challenges the sentences he received
for attempted rape and attempted sodomy 1 by asserting that his
plea counsel was ineffective in failing to argue for
proportionality in sentencing under the interests-of-justice
framework articulated by the Utah Supreme Court in LeBeau v.
State, 2014 UT 39, 337 P.3d 254. 2 “An ineffective assistance of
counsel claim raised for the first time on appeal presents a
question of law,” which we review for correctness. State v. Clark,
2004 UT 25, ¶ 6, 89 P.3d 162.
¶17 While not specifically identifying it as a separate issue on
appeal, Coombs also advances the argument that the sentencing
court “erred . . . when it did not engage in the proportionality
analysis” required by LeBeau. This argument differs from
Coombs’s ineffective assistance of counsel argument in that it
alleges error in how the district court sentenced Coombs. “When
evaluating a sentencing determination, we traditionally afford
1. Coombs does not challenge the sentences he received for
sexual exploitation of a minor.
2. LeBeau requires sentencing courts to consider “(1) the
seriousness of the defendant’s conduct in relation to the severity
of the sentence imposed” and “(2) the severity of the sentence
imposed in light of sentences imposed for other crimes in the
same jurisdiction” when conducting a statutorily required
“interests-of-justice analysis.” LeBeau v. State, 2014 UT 39, ¶ 41,
337 P.3d 254.
20151063-CA 6 2019 UT App 7State v. Coombs
the [sentencing] court wide latitude and discretion. Thus, we
will reverse a . . . court’s sentencing decision only if it is an abuse
of the judge’s discretion.” State v. Moa, 2012 UT 28, ¶ 34, 282 P.3d
985 (cleaned up).
ANALYSIS
I. Coombs Fails to Show That His Counsel Performed Deficiently
¶18 To establish that his attorney was ineffective, Coombs
must prove both prongs of the Strickland test, namely, (1) that his
counsel performed deficiently and (2) that he was prejudiced as
a result. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Coombs first “must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment. Second,
[Coombs] must show that the deficient performance prejudiced
the defense.” See id.¶19 “It is not necessary to address both parts of the [Strickland]
test when the defendant makes an insufficient showing on one.”
State v. Veale, 2012 UT App 131, ¶ 5, 278 P.3d 153. Specifically,
“there is no reason for a court deciding an ineffective assistance
claim to approach the inquiry in the same order or even to
address both components of the inquiry if the defendant makes
an insufficient showing on one.” Strickland, 466 U.S. at 697.
Because we conclude that Coombs has failed to show that his
counsel performed deficiently, we will refrain from analyzing
the second prong.
¶20 To succeed on the first prong of the Strickland test,
Coombs “must overcome the strong presumption that his trial
counsel rendered adequate assistance by persuading the court
that there was no conceivable tactical basis for counsel’s actions.
The court gives trial counsel wide latitude in making tactical
decisions and will not question such decisions unless there is no
20151063-CA 7 2019 UT App 7State v. Coombs
reasonable basis supporting them.” State v. Clark, 2004 UT 25,
¶ 6, 89 P.3d 162 (cleaned up). Therefore, Coombs must overcome
the presumption that his counsel’s actions at sentencing might
conceivably be considered sound trial strategy. See Benvenuto v.
State, 2007 UT 53, ¶ 19, 165 P.3d 1195. Furthermore, “counsel’s
representation must be only objectively reasonable, not flawless
or to the highest degree of skill.” Dows v. Wood, 211 F.3d 480, 487
(9th Cir. 2000); see State v. King, 2018 UT App 190, ¶ 14 (“This
standard does not guarantee an error-free trial.”). Performance is
deficient under Strickland only when “no competent attorney”
would have so acted. Premo v. Moore, 562 U.S. 115, 124 (2011).
Thus, if this court is able to conceive of a reasonable tactical basis
for trial counsel’s actions, then Coombs has not rebutted the
strong presumption that his counsel performed reasonably. See
Clark, 2004 UT 25, ¶ 7.
¶21 And this court can readily conceive of a reasonable
tactical basis for Coombs’s counsel’s decision not to prompt the
sentencing court to engage in the proportionality analysis
discussed in LeBeau. See LeBeau v. State, 2014 UT 39, ¶ 37, 337
P.3d 254. 3 We can formulate a tactical basis for trial counsel’s
3. In State v. Martin, 2017 UT 63, 423 P.3d 1254, the Utah
Supreme Court declined to reverse a sentencing court for failure
to apply the framework of LeBeau where a formal
proportionality analysis was not undertaken on the record.
Recognizing the “daunting task” involved in undertaking a
proportionality analysis, the Martin court stated: “[I]t is certainly
not a task that we can require our district courts to perform
without prompting or guidance from counsel.” Id. ¶ 66. We
cannot read LeBeau and Martin as removing from defense
counsel the discretion not to make certain arguments at
sentencing. See generally Martin, 2017 UT 63; LeBeau, 2014 UT 39.
Every case is different and defense counsel must retain wide
discretion in determining what arguments will best benefit a
client under the totality of the circumstances.
20151063-CA 8 2019 UT App 7State v. Coombs
decision to avoid the topic of proportionality regarding (1) the
potential relation to the gravity of Coombs’s crimes and (2) the
potential comparison to the sentences imposed for other crimes
in Utah. Because there are conceivable tactical bases for counsel’s
decision to avoid the topic of proportionality, we conclude that
Coombs has failed to show deficient performance and
accordingly the claim of ineffective assistance fails. We address
each of Coombs’s grievances in turn.
A. The Gravity of Coombs’s Crimes
¶22 Coombs first argues that his counsel acted deficiently in
failing to direct the sentencing court’s attention to its duty to
compare the gravity of Coombs’s offenses with the harshness of
the penalty he might receive. See LeBeau v. State, 2014 UT 39,
¶ 42, 337 P.3d 254. 4 However, we conclude that it was reasonable
for counsel to avoid comparing Coombs’s conduct with the
severity of his sentencing, focusing instead on highlighting
mitigating factors, namely, Coombs’s remorse, family support,
willingness to engage in treatment, and lack of criminal history.
¶23 Arguing proportionality would not only have
undermined the attempt to focus on Coombs’s positive
attributes, but it would have necessitated counsel to delve into
the gravity of Coombs’s sexual abuse of Victim. Over the course
of several years, Coombs raped and sodomized Victim. He
groomed her into fulfilling his sexual depravities by showing her
pornographic pictures. He warped her perception of normal
father-daughter activities by conning her into believing that
sexual intimacy between father and daughter is normal and
acceptable. He snuck into her room to take nude photographs of
4. In our view, LeBeau constitutes blatant policy-based ad hoc
review of legislative action not typically undertaken by the
judicial branch. See LeBeau, 2014 UT 39, ¶¶ 26–37. We would
hope that, given the appropriate opportunity, our supreme court
will revisit whether LeBeau’s approach should continue.
20151063-CA 9 2019 UT App 7State v. Coombs
her while she slept. He also victimized other children by
downloading images of child pornography. And his abuse
would have continued indefinitely but for Victim’s courage to
inform others of the violence she had been suffering. 5
5. On appeal, Coombs makes much of the fact that his crimes
against Victim were not “violent.” His brief states that while
Coombs “did admit to having oral and vaginal sex with
[Victim], . . . there were never allegations of threats or physical
harm.” This court strongly disagrees with this characterization
of child sexual abuse. While there may have been no threats of
physical harm, Victim stated in the original police report that
Coombs threatened to leave the family if Victim, who was six
years old at the time, did not agree to perform oral sex on him.
Victim refrained from telling her mother about the abuse
because she feared doing so would ruin her brothers’ lives,
presumably because Coombs would be forced to leave the
family. And even if there were no threats of bruise-causing
violence, attempting to sodomize and rape a child is violent per
se. Our own supreme court has noted that the Utah Legislature,
in establishing a sentencing scheme for sexual offenses,
“signaled its judgment that sexual crimes, which intrude on the
fundamental bodily integrity of the victim like no others short of
murder, are serious enough to warrant a sentence of [life
without the possibility of parole].” LeBeau, 2014 UT 39, ¶ 49
(emphasis added). “And sexual crimes, particularly those
involving children, represent an especially heinous form of bodily
insult.” Id. ¶ 50 (emphasis added). The facts in this case support
the conclusion that the abuse Victim suffered constituted a
violent assault on the dignity of her person. Victim continues to
suffer psychological and emotional harm from Coombs’s years
of abuse. Victim is “still mad, angry,” has “really bad outbursts,”
and “goes through [pain] every day.” Victim will likely suffer
from the effects of Coombs’s abuse for the rest of her life. As the
State aptly notes in its appellate brief, “[T]he fact that [Coombs]
may not have drawn blood or threatened [Victim] with a
(continued…)
20151063-CA 10 2019 UT App 7State v. Coombs
¶24 Had Coombs’s counsel argued for an interests-of-
justice proportionality analysis, he would have been forced to
address and thereby highlight the profound gravity of Coombs’s
sexual abuse of Victim. LeBeau requires a sentencing court to
consider the “proportionality of the defendant’s sentence in
relation to the severity of his offense.” Id. ¶ 37 (emphasis added).
Thus, Coombs’s counsel would have necessarily been required
to promote the questionable assertion that Coombs’s abuse of
Victim proportionately deserved only a three-year sentence.
Acknowledging the gravity of Coombs’s crimes while requesting
a minimum sentence may have stretched the bounds of credulity
well beyond the breaking point. Such an approach would have
carried with it the significant risk that the sentencing court
would conclude that, because Coombs failed to appreciate the
gravity of his crimes, it should seriously consider the imposition
of consecutive sentences. Indeed, focusing on Coombs’s positive
attributes—the mitigating factor approach—to the exclusion of a
proportionality exercise was by far the more persuasive and
reasonable strategy given the extent of Coombs’s abuse of
Victim.
B. Sentences Imposed for Other Crimes
¶25 Coombs also argues that his counsel was ineffective for
failing to alert the court to its duty to “compare the sentence
being imposed [on Coombs] to the sentences imposed for other
crimes in Utah.” LeBeau v. State, 2014 UT 39, ¶ 47, 337 P.3d 254.
But we reach a contrary conclusion because it was reasonable for
counsel to avoid comparing the sentence for Coombs’s crimes
with those imposed for similar crimes in Utah. Comparing
Coombs’s sentence with the statutory sentences for more or less
serious crimes would have, again, served only to highlight the
(…continued)
weapon to get her to submit does not mean that his crimes were
non-violent and did not harm [Victim].”
20151063-CA 11 2019 UT App 7State v. Coombs
gravity of Coombs’s crimes and the favorable plea deal he
received.
¶26 Any discussion of sentencing comparison for similar
crimes would have necessarily included the sentencing schemes
for child rape and child sodomy. These are the very crimes with
which Coombs was originally charged and which he admitted to
committing. The Utah Code states that “any touching, however
slight, is sufficient to constitute the relevant element of . . . rape
of a child.” Utah Code Ann. § 76-5-407(2)(b) (LexisNexis 2017);
see also id. § 76-5-402.1(1) (defining rape of a child). 6 And “any
touching, even if accomplished through clothing, is sufficient to
constitute the relevant element of . . . sodomy on a child.” Id.
§ 76-5-407(3); see also id. § 76-5-403.1(1) (defining sodomy on a
child). The sentence for these offenses is twenty-five years to life.
See id. §§ 76-5-402.1(2)(a), 76-5-403.1(2)(a). Given that Coombs
was originally charged with two counts of each crime related to
his abuse of Victim, he faced a possible sentence guaranteed to
have almost twice as long a prison stay before parole could be
considered. See State v. Gray, 2016 UT App 87, ¶ 27, 372 P.3d 715(“The legislature has explicitly empowered sentencing courts to
impose consecutive sentences.”). In contrast to the effective life
sentence that Coombs could have received for the sexual abuse
he admitted inflicting on Victim, he received a fifteen-year-to-life
sentence, making him eligible for parole at a relatively young
age given the gravity of his crimes.
¶27 We conclude that Coombs’s counsel acted reasonably in
focusing on mitigating factors rather than comparing sentencing
options for his crimes with statutory sentencing schemes for
other crimes. The State would have likely responded to a
6. Because the relevant statutory provisions in effect when
Coombs asserts that his counsel provided ineffective assistance
(i.e., at sentencing in December 2015) do not differ in any
material way from those now in effect, we cite the current
version of the Utah Code for convenience.
20151063-CA 12 2019 UT App 7State v. Coombs
proportionality argument by pointing out that Coombs had
already avoided a much longer sentence in his plea deal—and
now had the audacity to argue that the “proportionality
principle” of “fairness” mandated the court to incarcerate him
for a minimum sentence of three years to life. See LeBeau, 2014
UT 39, ¶ 47. Indeed, such a comparison would have highlighted
the favorable plea deal Coombs received. And it could have
resulted in the sentencing court deciding to impose consecutive
sentences against the State’s recommendation, thinking that the
defendant did not appreciate the gravity of his actions. Thus,
there was a conceivable tactical basis for counsel’s actions
because arguing mitigation represented the safer course for
Coombs.
II. The Sentencing Court Was Not Required to Engage in an
Explicit LeBeau Analysis Without Prompting from Counsel
¶28 Coombs also argues that the sentencing court “erred . . .
when it did not engage in the proportionality analysis” required
by LeBeau. But courts can be presumed to have engaged in the
proportionality analysis. See State v. Alvarez, 2017 UT App 145,
¶ 4, 402 P.3d 191. It is well-established that, “[a]s a general rule,
Utah courts presume that the [sentencing] court made all the
necessary considerations when making a sentencing decision.”
State v. Monzon, 2016 UT App 1, ¶ 21, 365 P.3d 1234 (cleaned up);
see also State v. Moa, 2012 UT 28, ¶ 35, 282 P.3d 985 (same); State
v. Helms, 2002 UT 12, ¶ 11, 40 P.3d 626 (“[W]e will not assume
that the [sentencing] court’s silence, by itself, presupposes that
the court did not consider the proper factors as required by
law.”); Alvarez, 2017 UT App 145, ¶ 4 (stating that the sentencing
court’s silence does not necessarily indicate the court did not
consider required factors).7
7. In support of his argument that under LeBeau the sentencing
court must conduct an explicit interests-of-justice analysis,
Coombs cites State v. Jaramillo, 2016 UT App 70, ¶ 39, 372 P.3d
(continued…)
20151063-CA 13 2019 UT App 7State v. Coombs
¶29 Furthermore, to the extent Coombs argues that the
sentencing court plainly erred by not explicitly conducting on
the record a proportionality analysis sua sponte, we agree with
our supreme court that sentencing courts are required to
conduct the analysis only when the parties raise the issue. See
State v. Martin, 2017 UT 63, ¶ 66, 423 P.3d 1254. “Ranging across
the criminal code in an effort to (1) identify similar offenses and
(2) compare their sentencing schemes to the sentence [Coombs]
received . . . . is certainly not a task that we can require our
[sentencing] courts to perform without prompting or guidance
from counsel.” Id. And LeBeau itself implicitly acknowledges this
limitation of the requirement to conduct a proportionality
analysis, stating, “[C]ourts should consider all relevant facts
raised by the parties about the defendant’s crime in relation to the
harshness of the penalty.” LeBeau v. State, 2014 UT 39, ¶ 42, 337
P.3d 254 (emphasis added); see also State v. Norton, 2018 UT App
82, ¶ 79, 427 P.3d 312 (“[W]e will not fault the court for failing to
conduct a sua sponte review of the Utah Code to identify similar
offenses and then compare their sentencing schemes to the
sentence it intended to impose on [the defendant].” (cleaned
up)), cert. granted, 429 P.3d 465 (Utah 2018).
¶30 As we noted in the previous section analyzing the
ineffective assistance claim, Coombs’s counsel had a conceivably
rational tactical basis for not advancing a proportionality
argument before the sentencing court. But it does not follow that
(…continued)
34. As we explained in State v. Alvarez, 2017 UT App 145,
402 P.3d 191, Jaramillo’s rationale does not apply to defendants
who were sentenced after LeBeau was issued: “Because LeBeau
and its proportionality requirement predated [the defendant’s]
sentence, and because [the defendant] has not demonstrated
that our presumption of appropriate sentencing consideration
is inapplicable, we assume that the sentencing court duly
considered the proportionality of [the defendant’s] sentence.”
Id. ¶ 4.
20151063-CA 14 2019 UT App 7State v. Coombs
the sentencing court did not engage in a proportionality analysis
just because Coombs’s counsel did not ask it to do so. Indeed,
nothing in the record overcomes the presumption that the
sentencing court engaged in a proportionality analysis before
imposing the sentence. 8 To the contrary, the sentencing court
specifically considered the question of whether to depart from
the presumptive sentence of fifteen years to life “in order to
achieve the interests of justice.” The court also addressed the
severity of Coombs’s conduct when it advised him that what he
“did to this child was evil.” The severity of Coombs’s abuse was
further highlighted when the court told Coombs that “society
needs to hold [him] accountable for” the “great harm to this
child.”
¶31 Thus, we conclude that Coombs has failed to overcome
the presumption of appropriate sentencing consideration by the
sentencing court.
CONCLUSION
¶32 This court finds Coombs’s arguments unpersuasive. First,
Coombs has not shown deficient performance of his counsel in
highlighting mitigating circumstances and foregoing a request
that the sentencing court engage in a proportionality analysis.
Second, we conclude that the presumption of appropriate
sentencing considerations has not been overcome.
¶33 Affirmed.
8. Coombs suggests that the sentencing court’s failure to use the
term “proportionality” indicates that the presumption of
appropriate sentencing consideration has been overcome.
However, we note that LeBeau nowhere requires the court to
invoke the term “proportionality” as an incantation to fulfill its
obligations at sentencing. See generally LeBeau, 2014 UT 39.
20151063-CA 15 2019 UT App 7