State v. Naves , 2020 UT App 156 ( 2020 )

2020 UT App 156THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
RANDY THOMAS NAVES,
Appellant.
Opinion
No. 20180343-CA
Filed November 13, 2020
Third District Court, Salt Lake Department
The Honorable Homer F. Wilkinson
No. 971900998
Andrea J. Garland, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
HARRIS, Judge:
¶1 Randy Thomas Naves pled guilty to three counts of
sexual abuse of a child, one count of dealing in harmful material
to a minor, and one count of lewdness involving a child. The
district court sentenced Naves to prison, ordering that the
sentences on two of the counts run concurrently and the
remainder run consecutively. Naves now appeals, arguing that
his attorney rendered ineffective assistance at sentencing, and
asserting that the district court abused its discretion in ordering
some of his sentences to run consecutively. We affirm.
State v. Naves
BACKGROUND
¶2 In 1997, Naves—a long-haul truck driver—invited several
neighborhood boys, all of whom were younger than fourteen, to
spend the night with him in the sleeper part of his truck cab.
Naves taught the boys to play a sexually explicit card game,
showed them how to put on a condom by putting one on his
own penis, masturbated in front of the boys, had mutual
“manual contact with each other[’]s penises,” and asked one of
the boys to perform oral sex on him. Naves was charged with
nine criminal counts related to these events, including three first-
degree felonies.
¶3 With counsel’s help, Naves negotiated a plea agreement
with the State, whereunder the State agreed to dismiss four of
the counts and Naves agreed to plead guilty to five others, as
amended: three counts of sexual abuse of a child, all second-
degree felonies; one count of dealing in harmful material to a
minor, a third-degree felony; and one count of lewdness
involving a child, a class A misdemeanor. In the plea agreement,
Naves admitted that he showed the boys pornographic material,
exposed his own penis to them, “touched the penis” of two of
the boys, and had one of the boys touch his penis.
¶4 Following the entry of Naves’s plea, Adult Probation and
Parole (AP&P) prepared a twenty-one-page presentence report
for the benefit of the district court at sentencing. The report
summarized the events leading to the criminal charges, and
included Naves’s own statement acknowledging that much of
the behavior he had been accused of had in fact occurred.
However, AP&P concluded that Naves did not appear to take
full responsibility for what happened, and that he continued to
“den[y] any sexual intent, and [gave] the impression he was
drawn into sexual activity by the children.” In the report, AP&P
also noted that Naves had a history of sexually abusing other
children: he had previously been convicted of committing a lewd
act in the presence of a child in California, and he admitted to
AP&P officers during an interview that he had “a few [other]
victims over the years,” including as many as three victims
20180343-CA 2 2020 UT App 156State v. Naves
under the age of fifteen. The report included input from the
investigating officer, who opined that he had “never run into a
pedophile who has gone to these lengths” to involve children in
sexual activity. The report also made note of the fact that Naves
himself had been sexually abused as a young boy and as a
teenager. In addition, the report discussed Naves’s psychosexual
evaluation, including the evaluator’s opinions that Naves had “a
poor treatment prognosis” and posed “a significant risk to
reoffend.” Ultimately, AP&P recommended that Naves be
sentenced to prison and that his sentences all run consecutively.
¶5 At the sentencing hearing, in addition to hearing
argument from Naves’s attorney and from the prosecutor, the
court allowed the parents of one of the victims to address the
court. Also, Naves addressed the court directly and offered an
allocution, in which he read, in part, from a letter he had written
to the court.
¶6 During his presentation to the court, Naves’s counsel
began by noting that Naves objected “to the recommendation of
prison, and certainly object[ed] to the recommendation of
consecutive time.” Counsel pointed to a number of
considerations that, in his view, weighed against Naves being
sentenced to prison, including the fact that Naves had a family—
a wife and two young children—who relied on him, that Naves
had been a productive and employed member of society as an
adult, and that Naves had himself been a victim of sexual abuse
as a child. Counsel argued that Naves was a particularly good
candidate for treatment options, and urged the court, in lieu of a
prison term, to put Naves on probation and send him to a
residential facility that would provide “long-term, intensive”
psychological treatment. “In the alternative,” counsel urged the
court, if it was set on sending Naves to prison, to impose
concurrent rather than consecutive sentences. Counsel noted that
the imposition of concurrent sentences would give the Board of
Pardons more flexibility to decide how long Naves should serve.
Finally, as a “last alternative,” counsel asserted that, at
minimum, the court should run the first two counts concurrently
20180343-CA 3 2020 UT App 156State v. Naves
because those counts involved “the same victim” as part of “the
same incident.”
¶7 In the course of making his argument, Naves’s counsel
attempted to rebut AP&P’s position that Naves had not
sufficiently accepted responsibility for his actions. To this end,
counsel asserted that Naves “definitely had some deep
problems” and had “been a pedophile,” but that Naves “knows
that,” has “admitted that,” and has “accepted responsibility
throughout,” as indicated by his “totally honest and open”
demeanor in both of “his interviews that took place in this case”
and his psychological treatment.
¶8 Before announcing its ruling, the court stated that it had
read the presentence report, as well as “a number of letters” sent
in support of Naves, including Naves’s own letter. The court
noted Naves’s history of having been sexually abused himself
and stated that it had “empathy for” Naves, but opined that
Naves’s personal history was “not justification for” his recent
behavior. The court also considered how imposition of a prison
sentence upon Naves would affect Naves’s family, and noted the
“poor treatment prognosis” Naves was given in the
psychosexual evaluation. Ultimately, the court rejected Naves’s
request for probation, and sentenced Naves to prison on all
counts. With regard to whether those sentences would be
imposed concurrently or consecutively, the court adopted
counsel’s suggested “last alternative,” and imposed concurrent
sentences on the first two sexual abuse of a child counts but
consecutive sentences on the other counts.
ISSUES AND STANDARDS OF REVIEW
¶9 Naves now appeals, 1 and asks us to consider two issues.
First, Naves argues that his attorney rendered ineffective
1. For those readers wondering how Naves is able to now appeal
a sentence imposed in 1997, the district court ruled in 2018, upon
(continued…)
20180343-CA 4 2020 UT App 156State v. Naves
assistance. “When a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court ruling
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of
law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587(quotation simplified). Second, Naves asserts that the district
court abused its discretion when it failed to impose concurrent
sentences on all of the counts to which Naves had pled guilty.
“We afford the [district] court wide latitude in sentencing and,
generally, will reverse a [district] court’s sentencing decision
only if it is an abuse of the judge’s discretion.” State v. Reece, 2015
UT 45, ¶ 81, 349 P.3d 712 (quotation simplified). Because—as we
explain below—Naves failed to properly preserve his specific
challenge for appellate review, we examine it here for plain
error. “The plain error standard of review requires an appellant
to show the existence of a harmful error that should have been
obvious to the district court.” State v. Hansen, 2020 UT App 17,
¶ 10, 460 P.3d 560 (quotation simplified).
ANALYSIS
I
¶10 Naves first asserts that his attorney rendered
constitutionally ineffective assistance in two respects: first, by
(…continued)
motion from Naves, that following imposition of his sentence,
Naves had not been advised of his right to appeal, and that he
would have exercised that right had he been so advised. Thus,
pursuant to rule 4(f) of the Utah Rules of Appellate Procedure,
and applicable case law, the district court reinstated Naves’s
thirty-day window within which to file a valid notice of appeal.
See Utah R. App. P. 4(f); Manning v. State, 2005 UT 61, ¶ 31, 122
P.3d 628. Naves filed a notice of appeal within the reinstated
thirty-day window.
20180343-CA 5 2020 UT App 156State v. Naves
telling the court that Naves had “been a pedophile” in the course
of oral argument during the sentencing hearing, and second, by
suggesting that, as a “last alternative,” the court could choose to
run the sentences for two of Naves’s counts concurrently and
impose his remaining sentences consecutively.
¶11 To establish ineffective assistance, Naves must show both
(1) that his counsel’s performance was deficient, in that it “fell
below an objective standard of reasonableness,” and (2) that this
“deficient performance prejudiced the defense” in such a way
that there exists “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 687–88,
694 (1984); see also State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350;
State v. Ray, 2020 UT 12, ¶ 24, 469 P.3d 871. Because “[f]ailure to
satisfy either part of the ineffective assistance test is fatal to a
defendant’s claim,” State v. Popp, 2019 UT App 173, ¶ 48, 453
P.3d 657 (quotation simplified), we need not “address both
components of the inquiry if we determine that [Naves] has
made an insufficient showing on one,” see Archuleta v. Galetka,
2011 UT 73, ¶ 41, 267 P.3d 232 (quotation simplified).
¶12 The first part of this test—deficient performance—
requires Naves to establish that his attorney’s performance “fell
below an objective standard of reasonableness.” Scott, 2020 UT
13, ¶ 31 (quotation simplified). We “indulge a strong
presumption that counsel’s conduct [fell] within the wide range
of reasonable professional assistance” when evaluating counsel’s
performance under this standard. Strickland, 466 U.S. at 689. In
doing so, we ask “whether counsel’s assistance was reasonable
considering all the circumstances” of the case, recognizing that
the “reasonableness of counsel’s challenged conduct must be
judged on the facts of the particular case, viewed as of the time
of counsel’s conduct.” Ray, 2020 UT 12, ¶ 31 (quotation
simplified). As our supreme court has noted, the federal
constitution demands that attorneys provide “reasonable
assistance” to be effective. See id. ¶ 34. In evaluating counsel’s
performance, we “often include an analysis of whether there
could have been a sound strategic reason for counsel’s”
20180343-CA 6 2020 UT App 156State v. Naves
challenged action because, when a valid strategic reason for the
action exists, “it follows that counsel did not perform
deficiently.” Scott, 2020 UT 13, ¶ 35; see also Ray, 2020 UT 12, ¶ 34
(“If it appears counsel’s actions could have been intended to
further a reasonable strategy, a defendant has necessarily failed
to show unreasonable performance.” (quotation simplified)).
¶13 The second part of the ineffective assistance test—
prejudice—requires Naves to show that there is a reasonable
probability that the case would have come out differently had
counsel not performed deficiently. See State v. Garcia, 2017 UT 53,
¶ 48, 424 P.3d 171. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome” of the
proceeding. Strickland, 466 U.S. at 694. In undertaking a
prejudice analysis, we “consider the totality of the evidence
before the judge or jury and then ask if the defendant has met
the burden of showing that the decision reached would
reasonably likely have been different absent the errors.” Garcia,
2017 UT 53, ¶ 28 (quotation simplified). In attempting to show
that there was a “reasonable probability of a different outcome”
absent counsel’s deficient performance, Naves faces “a relatively
high hurdle to overcome.” See id. ¶ 44.
A
¶14 Naves first argues that his attorney rendered ineffective
assistance when, during the sentencing hearing, counsel
acknowledged that Naves “definitely had some deep problems”
and had “been a pedophile.” Counsel made these statements in
the context of rebutting AP&P’s contention that Naves had not
accepted responsibility for his wrongdoing. Indeed, counsel also
told the court, in the same narrative, that Naves had admitted to
the present crimes and acknowledged that he had “other
victims,” that Naves had “accepted responsibility throughout”
the proceedings, and that Naves had exhibited a “totally honest
and open” demeanor in both “his interviews that took place in
this case” and his psychological treatment. In this context, we are
not necessarily persuaded that counsel’s use of the term
20180343-CA 7 2020 UT App 156State v. Naves
“pedophile” was unreasonable, especially given the presence of
the term in the presentence report.
¶15 However, even assuming, without deciding, that counsel
performed deficiently by stating that Naves had “been a
pedophile,” Naves has not demonstrated a reasonable
probability that the outcome of the sentencing hearing would
have been different had counsel not used that term. At
sentencing, the district court was, of course, aware that Naves
had just pled guilty to five counts of inappropriate sexual
behavior with underage boys, including three counts of sexual
abuse of a child. The court had reviewed AP&P’s presentence
report, in which the investigating officer referred to Naves as a
“pedophile” and in which AP&P recommended consecutive
prison sentences. The court was also aware of Naves’s criminal
history, specifically that Naves had been convicted once before
of lewdness involving a child in California, and that Naves had
admitted that he had “a few [other] victims over the years,”
including as many as three victims under the age of fifteen. In
this context, Naves’s attorney’s use of the term “pedophile”
during the sentencing hearing was highly unlikely to have
affected the ultimate outcome of the proceeding. Stated another
way, Naves has not carried his burden of demonstrating that,
but for his counsel’s single, discrete use of the term “pedophile,”
there is a reasonable probability that Naves would have received
a more lenient sentence. Accordingly, Naves’s first claim of
ineffective assistance fails for lack of prejudice.
B
¶16 Naves next asserts that his counsel rendered ineffective
assistance when he suggested that the court may, as a “last
alternative,” allow two of his sentences to run concurrently, and
impose the remainder of Naves’s sentences consecutively. We
note that “[t]here are countless ways to provide effective
assistance in any given case,” and that “[e]ven the best criminal
defense attorneys would not defend a particular client in the
same way,” so “a court must indulge a strong presumption that
20180343-CA 8 2020 UT App 156State v. Naves
counsel’s conduct falls within the wide range of reasonable
professional assistance.” See Strickland, 466 U.S. at 689.
¶17 In this instance, we cannot agree with Naves that his
attorney acted unreasonably by choosing to lay out various
alternative options for the court at sentencing. In many cases,
including this one, an attorney might make a reasonable
strategic decision to offer a court various sentencing options. In
this case, given AP&P’s recommendation for consecutive prison
sentences on all counts, counsel could have believed it in his
client’s best strategic interests to offer the court several options
that were all more lenient than AP&P’s recommendation. In this
case, the strategy appears to have borne fruit, given that the
court accepted the “last alternative” and ran two of the sentences
concurrently, rather than running all of them consecutively.
¶18 As a reviewing court, “we will not second-guess a trial
attorney’s legitimate use of judgment as to trial tactics or
strategy.” State v. Wilson, 2020 UT App 30, ¶ 41, 461 P.3d 1124(quotation simplified). In any event, given the circumstances of
Naves’s case, and judging counsel’s actions by a reasonableness
standard informed by “the facts of the particular case, viewed as
of the time of counsel’s conduct,” we cannot conclude that
counsel performed deficiently. See Ray, 2020 UT 12, ¶ 31
(quotation simplified). Accordingly, Naves’s second claim of
ineffective assistance fails under the first part of the test.
II
¶19 Next, Naves asserts that the district court abused its
discretion when it imposed consecutive rather than concurrent
sentences on some of the counts to which Naves pled guilty. We
begin by assessing whether Naves properly preserved his
particular challenge for our review, and we conclude that he did
not. We then proceed to review this issue for plain error, and
conclude that the district court did not plainly err.
20180343-CA 9 2020 UT App 156State v. Naves
A
¶20 “Generally speaking,” a litigant must make “a timely and
specific objection . . . in order to preserve an issue for appeal.”
State v. Pinder, 2005 UT 15, ¶ 45, 114 P.3d 551 (quotation
simplified). That is, the litigant must “present the issue to the
[district] court in such a way that the court had the opportunity
to resolve it.” State v. Gailey, 2015 UT App 249, ¶ 5, 360 P.3d 805.
When a litigant fails to raise a timely and specific objection to the
district court, the issue remains unpreserved for appellate
review. See id. We “will not consider an issue to which no timely
and specific objection has been made unless the [district] court
committed plain error or exceptional circumstances exist.” State
v. Martin, 2017 UT 63, ¶ 25, 423 P.3d 1254 (quotation simplified).
¶21 In this case, Naves’s specific challenge to the district
court’s sentencing decision is that the district “court did not
adequately weigh [the] statutory factors prior to imposing
consecutive sentences.” We have previously explained that this
particular sentencing challenge is not adequately preserved by
“[m]erely presenting mitigating evidence and asking the
sentencing court for a different sentence.” See State v. Samul, 2018
UT App 177, ¶ 12, 436 P.3d 298 (quotation simplified). Rather,
“[i]n order to preserve for appellate review an argument that a
sentencing court erred by imposing consecutive sentences
without considering all of the relevant statutory factors and by
failing to give adequate weight to various mitigating factors, a
defendant must specifically raise that issue with the sentencing
court and must provide that court with supporting evidence and
relevant legal authority.” Id. (quotation simplified).
¶22 Naves cannot “demonstrate[] that he specifically objected
to or otherwise brought to the [district] court’s attention the
court’s alleged failure to consider the requisite statutory factors
in imposing [the] sentence.” See State v. Tingey, 2014 UT App 228,
¶ 3, 336 P.3d 608. Rather, Naves merely “ask[ed] for concurrent
sentences” or probation “and present[ed] mitigating evidence at
sentencing” below. See Samul, 2018 UT App 177, ¶ 12. There is no
indication in the record that Naves specifically objected to his
20180343-CA 10 2020 UT App 156State v. Naves
sentence on the basis that the district court had failed to
appropriately consider the statutory factors. And per our
precedent, this leaves his challenge to the district court’s
sentencing decision unpreserved for appellate review. See id.B
¶23 Although the issue is unpreserved, Naves asks us to
review it for plain error. As noted above, even outside the plain
error context, a district court enjoys wide discretion in
fashioning an appropriate sentence. See State v. Reece, 2015 UT
45, ¶ 81, 349 P.3d 712 (“We afford the [district] court wide
latitude in sentencing and, generally, will reverse a [district]
court’s sentencing decision only if it is an abuse of the judge’s
discretion.” (quotation simplified)). “A court abuses its
discretion in sentencing when it fails to consider all legally
relevant factors or if the sentence imposed is clearly excessive.”
State v. Sanchez, 2017 UT App 229, ¶ 2, 409 P.3d 156 (quotation
simplified). However, “we 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.” State v. Helms,
2002 UT 12, ¶ 11, 40 P.3d 626. Rather, “[i]t is the defendant’s
burden to demonstrate that the [sentencing] court failed to
properly consider legally relevant factors,” and this burden
cannot be met “by merely pointing to a lack of written findings
or the existence of mitigating circumstances.” State v. Bunker,
2015 UT App 255, ¶ 3, 361 P.3d 155. “Instead, when reviewing a
court’s sentencing decision against a challenge that it failed to
consider the required statutory factors, we begin with the
presumption that the court properly considered the factors.”
Samul, 2018 UT App 177, ¶ 21 (quotation simplified).
¶24 This already-deferential standard of review becomes even
tougher for a defendant who has failed to preserve the issue for
our review. “To demonstrate plain error, a defendant must
establish that (1) an error exists; (2) the error should have been
obvious to the [district] court; and (3) the error is harmful, i.e.,
absent the error, there is a reasonable likelihood of a more
favorable outcome for the appellant, or phrased differently, our
20180343-CA 11 2020 UT App 156State v. Naves
confidence in the verdict is undermined.” State v. Munguia, 2011
UT 5, ¶ 12, 253 P.3d 1082 (quotation simplified). In this context,
then, we will reverse only if the district court plainly and
obviously failed to appropriately consider the statutory factors
in imposing sentence.
¶25 Under the applicable statute, a district court considering
the appropriate sentence to impose upon a defendant must
“consider the gravity and circumstances of the offenses and the
history, character, and rehabilitative needs of the defendant in
determining whether to impose consecutive sentences.” Utah
Code Ann. § 76-3-401(4) (Michie Supp. 1997). Based upon our
review of the record in this case, the district court appears to
have considered and appropriately weighed these factors. In
announcing its sentencing decision, the court discussed the
presentence report, Naves’s personal and family history, the
statements made by the victims’ parents, Naves’s own letter and
statement, and the recommendations made by experts who had
interacted with Naves over the course of the proceeding. The
court also noted that it had reviewed the presentence report,
something that strongly indicates that the court considered all of
the required factors. See State v. Perkins, 2014 UT App 176, ¶ 5,
332 P.3d 403 (per curiam) (stating that, where a “court utilized a
detailed presentence investigation report (PSI), there is no basis
from which to assume that the . . . court failed to consider all
relevant statutory factors”).
¶26 As noted above, “[i]t is the defendant’s burden to
demonstrate that the [sentencing] court failed to properly
consider legally relevant factors” in making its sentencing
decision. See Bunker, 2015 UT App 255, ¶ 3. Naves has not
carried this burden here, and has not carried his burden of
demonstrating that the court abused its discretion at all—let
alone clearly or obviously—in the manner in which it considered
and weighed the various factors.
¶27 Finally, Naves argues that the district court should have
better articulated its reasoning for imposing consecutive, rather
than concurrent, sentences for certain of his crimes, and asserts
20180343-CA 12 2020 UT App 156State v. Naves
that the court’s failure to do so constitutes an abuse of discretion.
In support of this contention, Naves points to the language of the
then-current Utah Code, which stated that “[s]entences for state
offenses shall run concurrently unless the court states in the
sentence that they shall run consecutively.” Utah Code Ann.
§ 76-3-401(1). He notes that the relevant language evidenced a
statutory preference for concurrent sentences, see State v. Strunk,
846 P.2d 1297, 1301 (Utah 1993) (stating that this statute “favors
concurrent sentences”), and claims that the statute implied a
requirement that any court choosing to impose consecutive
sentences specifically “address the statutory preference” and
explain why it has chosen to deviate therefrom. But Naves can
point to no statutory language expressly setting forth any such
requirement, nor has he directed us to any case law interpreting
the statute in that way. 2 As we interpret the applicable statute, a
sentencing court is—as discussed above—required to consider
the statutory factors when imposing sentence and, if the court
fails to specify whether the sentences on the various counts will
run concurrently or consecutively, the sentences will be deemed
to run concurrently. But we perceive no requirement for the
court to specifically address any statutory preference, present in
2. Naves’s citations to State v. Galli, 967 P.2d 930 (Utah 1998), and
State v. Strunk, 846 P.2d 1297 (Utah 1993), are unavailing. We do
not read Galli and Strunk as establishing any requirement for a
court to specifically address the statutory language favoring
concurrent sentences. Those cases—as concerns consecutive
versus concurrent sentencing—were about preserving flexibility
for the Board of Pardons in making parole decisions. See Galli,
967 P.2d at 938; Strunk, 846 P.2d at 1301–02. Although both cases
reference the statutory language at issue, and even note that the
“’statute favors concurrent sentences,’” see Galli, 967 P.2d at 938
(quoting Strunk, 846 P.2d at 1301), neither case references any
requirement that a court, in imposing sentence, must specifically
address the statutory language favoring concurrent sentences,
and neither case suggests—or even implies—that a court’s
failure to do so would call its sentencing decision into question.
20180343-CA 13 2020 UT App 156State v. Naves
the then-applicable statute, for concurrent sentences. The court
therefore did not err, let alone plainly so, when it did not
specifically discuss any such statutory preference.
¶28 Accordingly, Naves has not carried his burden of
demonstrating that the court obviously abused its discretion in
imposing sentence upon him.
CONCLUSION
¶29 Naves has not carried his burden of demonstrating that
his attorney rendered ineffective assistance at sentencing, either
by using the term “pedophile” or by providing sentencing
alternatives to the district court. Naves has also not
demonstrated that the court obviously abused its discretion
when it imposed consecutive sentences for certain of his crimes.
¶30 Affirmed.
20180343-CA 14 2020 UT App 156