State v. Akers , 438 P.3d 70 ( 2018 )

2018 UT App 235THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JASON REED AKERS,
Appellant.
Opinion
No. 20170713-CA
Filed December 20, 2018
Fourth District Court, Provo Department
The Honorable Thomas Low
No. 171401387
Leah Jordana Aston and Dallas B. Young,
Attorneys for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES KATE APPLEBY 1 and RYAN M. HARRIS concurred.
ORME, Judge:
¶1 Defendant Jason Reed Akers appeals his sentences,
arguing that the district court abused its discretion by relying on
allegedly irrelevant and unreliable information contained in his
presentence investigation report (the PSIR) when it imposed
sentence. Alternately, Akers contends that his defense counsel
rendered ineffective assistance by failing to object to the
challenged information in the PSIR prior to sentencing. We
affirm.
1. Judge Kate A. Toomey has resumed the use of her birth name
and is now known as Judge Kate Appleby.
State v. Akers
BACKGROUND
¶2 In April 2017, 38-year-old California resident Jason Reed
Akers used a social media platform to “message” a teenager. The
profile he reached out to indicated that it belonged to a
13­year­old girl who resided in Utah, but in reality it belonged to
an undercover Special Agent with Homeland Security
Investigations. 2 Akers told the girl that he would be in Utah in
two days and wanted to meet her. She quickly asked whether he
was “cool” with her only being 13 years old. He answered,
“Leave age out of this. Nobody should know, right?,” and
shortly thereafter he asked if she was a virgin. After she
confirmed that she was, he told her that he wished to “take” her
virginity and named the sexual acts he wanted the two of them
to perform. Akers twice unsuccessfully requested that the girl
send him pictures of her genitals, but her refusal did not prevent
him from sending her a pornographic video and two
photographs depicting a penis.
¶3 Akers and the girl arranged to meet at a park in Utah
County. At the girl’s request, Akers agreed to bring condoms,
lubricant, an energy drink, and cookies. Akers also asked the girl
whether she drank or smoked, to which she replied that she
never had but would “be curious.” Akers then told her that he
would bring “special gummy worms, . . . THC special.” 3
2. To better facilitate recounting the facts of this case, we refer to
the Special Agent by her undercover persona, “the girl,” in this
opinion.
3. “THC” is an acronym for “tetrahydrocannabinol,” which is a
“crystalline compound that is the main active ingredient of
cannabis.” Tetrahydrocannabinol, New Oxford American
Dictionary 1794 (3d ed. 2010). In Utah, THC is categorized as a
(continued…)
20170713-CA 2 2018 UT App 235State v. Akers
¶4 Authorities arrested Akers as he waited for the girl at the
arranged meeting place. Officers found a pipe containing
methamphetamine in his vehicle, in plain view, and Akers
subsequently admitted to smoking the drug during his drive
from California to Utah. A more thorough search of the vehicle
also produced lubricant, THC gummy worms, and a handgun.
During interrogation, Akers admitted sending the messages and
pornographic images to the girl and possessing the pipe and
illegal substances found in his vehicle.
¶5 The State charged Akers with six felony and three
misdemeanor counts. Akers and the State entered into a plea
agreement in which Akers agreed to plead guilty to three of the
nine charges. He pled guilty to one count of enticing a minor, a
second degree felony; one count of dealing in materials harmful
to a minor, a third degree felony; and one count of possession of
a firearm by a restricted person, a third degree felony. In
exchange, the State agreed to drop the remaining six charges,
including a charge for possession of the THC gummy worms.
¶6 Prior to sentencing, Adult Probation and Parole prepared
the PSIR. It recited the circumstances surrounding Akers’s arrest,
including a single mention that officers located a gun, a pipe
containing methamphetamine, and “marijuana gummy
[worms]” in Akers’s vehicle. The PSIR recommended a sentence
of only 105 days, with credit for time served, followed by 36
months of supervised probation.
¶7 At the sentencing hearing, the district court began by
inquiring whether the PSIR contained any errors. Akers’s
defense counsel replied that it did not, stating, “[W]e don’t have
(…continued)
Schedule I controlled substance. See Utah Code Ann.
§ 58­37­4(2)(a)(iii)(AA) (LexisNexis Supp. 2018).
20170713-CA 3 2018 UT App 235State v. Akers
any corrections with the pre-sentence report,” and he urged the
court to follow the PSIR’s sentencing recommendation. The State
asked the court to deviate from the recommendation, arguing
that Akers’s case was not a “typical enticement of a minor case.”
In support of this assertion, the State recounted how, among
other things, authorities had apprehended Akers with the THC
gummy worms, methamphetamine, and a handgun in his
possession. Akers’s counsel responded that the district court
should not consider such “ancillary incidences” because they
were unsubstantiated and Akers had not pled guilty to them.
Counsel emphasized that this was Akers’s first offense and once
more urged the district court to follow the PSIR’s sentencing
recommendation.
¶8 Following these arguments, the district court asked Akers
why he was in possession of the gun and THC gummy worms
while waiting to meet his intended victim. Akers replied that he
had forgotten the gun was in the vehicle and that he was
“certified in California for medicinal marijuana.” The district
court then noted that it appeared that the THC gummy worms
were intended for the girl.
¶9 The district court deviated from the PSIR’s
recommendation and imposed concurrent sentences of 1 to 15
years imprisonment on the enticement of a minor count and 0 to
5 years each on the remaining two counts. It explained that of
the many enticement-of-a-minor cases to which it had previously
been assigned, this case stood out because “this is the first one [it
had] ever seen with a gun and with THC gummy [worms],” as
well as methamphetamine. As such, it appeared to the court that
Akers was “going to kidnap a child, maybe kill it.” The district
court explained, “Had any of those circumstances been different,
even the two states away is disconcerting but not enough to send
[Akers] to prison for. It’s the gun and the gummy [worms] that
really concerns the Court so much.”
20170713-CA 4 2018 UT App 235State v. Akers
¶10 After the district court explained its sentencing decision,
Akers’s counsel requested that the district court reconsider its
decision without relying on “activity that [Akers] did not plead
guilty to, such as the methamphetamine or the THC.” Counsel
argued that the district court’s consideration of that information
put Akers “in a position where he cannot defend himself, where
he cannot assert his innocence to those issues.” The district court
responded that it was ordinary practice for courts to consider the
facts contained in presentence investigation reports, which often
include “uncharged criminal activity.” It further explained that
for that reason presentence investigation reports are either
stipulated to, or evidentiary hearings are held to “get the final
set of facts [to which] everybody agrees.” The district court
declined to reconsider the sentence. Akers appeals.
ISSUES AND STANDARDS OF REVIEW
¶11 Akers asserts that the district court erred by largely
basing its sentencing decision on the fact that he was in
possession of THC gummy worms at the time of his arrest. 4 “The
4. Akers additionally contends that the district court had a
statutory duty to make findings on the record regarding the
accuracy and relevance of the information when his defense
counsel objected to its reliance on the THC gummy worms in
imposing sentence. Because the district court allegedly failed to
meet its obligation, Akers argues that his case “should be
remanded with instructions that the [district] court resolve
[Akers’s] objections to the inclusion of the irrelevant information
in [the PSIR].” Although Utah Code section 77-18-1(6)(a)
requires the district court to “make a determination of relevance
and accuracy on the record” when parties object to the inclusion
of unresolved information in presentence investigation reports,
section 77­18­1(6)(b) requires the party to make the challenge “at
(continued…)
20170713-CA 5 2018 UT App 235State v. Akers
sentencing decision of a trial court is reviewed for abuse of
discretion.” State v. Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d
1167. Although “we traditionally afford the district court wide
latitude and discretion” in sentencing, a district court abuses its
discretion when it relies on irrelevant or unreliable information
when imposing sentence. State v. Moa, 2012 UT 28, ¶¶ 34, 36, 282
P.3d 985 (quotation simplified).
¶12 Alternatively, Akers argues that he received ineffective
assistance when his defense counsel failed to object to the
inclusion of the gummy worm information in the PSIR but
instead affirmatively told the court that there were no errors in
the PSIR. “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
(…continued)
the time of sentencing.” See Utah Code Ann. § 77­18­1(6)(a)–(b)
(LexisNexis Supp. 2018). Otherwise, “that matter shall be
considered to be waived.” Id. § 77-18-1(6)(b). Because Akers’s
defense counsel stated that the PSIR did not contain errors
immediately before sentencing and challenged the inclusion of
the information about THC gummy worms only after the district
court imposed sentence, Akers waived any objections to the
inclusion of the information in the PSIR. See State v. Franz, 2007
UT App 297U, para. 6 (“[W]hen trial counsel stated that he had
reviewed the PSI with Defendant and ‘there were no errors’ in
the PSI, he statutorily waived any objections to the document.”).
The district court therefore had no duty to hold an evidentiary
hearing to address the objections belatedly made by Akers’s
defense counsel. On the record before us, it appears that the
objections would have been unavailing in any event. The
presence of the THC gummy worms in his vehicle was solidly
documented.
20170713-CA 6 2018 UT App 235State v. Akers
law.” State v. Craft, 2017 UT App 87, ¶ 15, 397 P.3d 889(quotation simplified).
ANALYSIS
I. Abuse of Discretion in Sentencing
¶13 District courts are permitted to “consider a wide range of
evidence” when fashioning an appropriate sentence. State v.
Howell, 707 P.2d 115, 118 (Utah 1985). But the latitude afforded to
district courts is not without limit. The due process clause of the
Utah Constitution requires district courts to base sentencing
decisions “on reasonably reliable and relevant information.” Id.See Utah Const. art. I, § 7. And “when there is evidence in the
record showing a sentencing judge’s reliance on specific
information, we will not consider it improper for a judge to rely
on such information if the evidence in question had indicia of
reliability and was relevant in sentencing.” State v. Moa, 2012 UT
28, ¶ 36, 282 P.3d 985 (quotation simplified). Thus, to show an
abuse of discretion, a defendant bears the burden of establishing
that the information the district court said it relied on in reaching
its sentencing decision was unreliable or irrelevant. Id. ¶¶ 35–36.
¶14 In the present case, there is ample evidence in the
record supporting the district court’s reliance, when
imposing sentence, on the information about Akers’s
possession of THC gummy worms. In explaining its decision to
deviate from the PSIR’s recommendation, the district court
first noted that the combination of the gun, the THC
gummy worms, and the methamphetamine made it appear
that Akers intended to “kidnap a child, maybe kill it.” The
court further stated that it would not have sentenced Akers to
prison “[h]ad any of those circumstances been different.” But
it was “the gun and the gummy [worms] that really concern[ed]
the Court so much.” This affirmative representation by the
20170713-CA 7 2018 UT App 235State v. Akers
court satisfies the first requirement for a possible showing
that the district court abused its discretion. See id. ¶ 35
(requiring a defendant to show “evidence of reliance, such as an
affirmative representation in the record that the judge
actually relied on the specific information in reaching her
decision”). Nonetheless, Akers’s challenge to the district court’s
sentencing decision fails because he has not shown that the
information about the gummy worms was unreliable or
irrelevant.
A. Reliability
¶15 District courts must base sentencing decisions on
“reasonably reliable” information. State v. Howell, 707 P.2d 115,
118 (Utah 1985). Information is reasonably reliable if it has
sufficient “indicia of reliability.” Id.¶16 Here, Akers has failed to identify any substantive
evidence that challenges the reliability of the information
regarding his possession of the THC gummy worms. See State v.
Lingmann, 2014 UT App 45, ¶ 41, 320 P.3d 1063. On the contrary,
evidence in the record strongly supports the reliability of the
challenged information. Not only did Akers’s defense counsel
explicitly state that the PSIR did not contain any errors, but
Akers himself did not deny being in possession of the THC
gummy worms when the district court asked why he had
brought them to the expected encounter with the girl. Instead,
Akers essentially acknowledged their presence in his vehicle by
responding that he was “certified in California for medicinal
marijuana.” And in anticipation of his encounter with the girl, he
had promised to bring “special gummy worms, . . . THC
special.” These exchanges and the lack of evidence challenging
the information’s accuracy satisfy the “reasonably reliable”
standard of the due process clause of the Utah Constitution. See
Howell, 707 P.2d at 118.
20170713-CA 8 2018 UT App 235State v. Akers
B. Relevance
¶17 Akers pled guilty to one count of enticing a minor, one
count of dealing in harmful materials to a minor, and one count
of possession of a firearm by a restricted person. In exchange, the
State dismissed the other six charges, including two counts of
possession of a controlled substance. Akers argues that the
district court inappropriately considered the THC gummy
worms because that information was relevant only to one of the
dismissed possession charges and was irrelevant to the charges
to which he pled guilty. Like the district court, we disagree.
¶18 District courts have the latitude to consider a wide range
of evidence in reaching a sentencing decision. State v. Howell, 707
P.2d 115, 118 (Utah 1985). See also State v. Maestas, 2012 UT 46,
¶ 290, 299 P.3d 892 (“[A] sentencing body may consider evidence
beyond a defendant’s conviction when determining an
appropriate sentence.”). Akers does not cite any authority to
support his contention that information automatically becomes
irrelevant to a defendant’s sentencing on other charges if it
relates most directly to dismissed charges. On the contrary,
appellate courts have repeatedly rejected the argument that it is
an abuse of discretion for a district court to consider dismissed
charges when imposing sentence. See Howell, 707 P.2d at 118
(holding that dismissed charges of sexual abuse were “[c]learly
. . . relevant in sentencing” defendants who pled guilty to
physical abuse of their children); State v. Valdez, 2017 UT App
185, ¶ 13, 405 P.3d 952 (“[W]e disagree with [the defendant’s]
specific contention that dismissed or reduced charges are
irrelevant or unreliable information regarding the gravity and
circumstances of [the defendant’s] crime or background.”); State
v. Perkins, 2014 UT App 176, ¶ 6, 332 P.3d 403 (per curiam)
(noting that the defendant had not cited any authority
supporting his argument that a district court is precluded from
considering dismissed charges for sentencing purposes). Indeed,
we have treated a district court’s comments regarding a
20170713-CA 9 2018 UT App 235State v. Akers
defendant’s dismissed charges during sentencing as evidence
that it considered all of the legally relevant factors in reaching its
decision. See State v. Williams, 2006 UT App 420, ¶ 30, 147 P.3d
497. The information regarding the THC gummy worms
therefore cannot be deemed irrelevant solely on the basis of its
having been the subject of a dismissed charge.
¶19 Although the charge for possession of the THC
gummy worms was dismissed as part of a plea negotiation,
it still bore relevance to the remaining charges for enticement of
a minor and possession of a dangerous weapon by a restricted
person. During the course of convincing the girl to meet him in
Utah to have sex, Akers told her that he would bring “special
gummy worms, . . . THC special.” While the district court was
not necessarily aware of this promise at the time of sentencing, it
was entitled to consider the totality of the circumstances
surrounding the charged conduct and make reasonable
inferences concerning the charges to which Akers pled guilty. 5
And even absent awareness of the promise to bring the THC
gummy worms, it was not unreasonable for the district court to
infer that the THC gummy worms were “there for the child.” 6
5. Moreover, even if Akers’s defense counsel had timely objected
to the information about the THC gummy worms in the PSIR,
the State undoubtedly would have entered into evidence the
messages in which Akers promised to bring the THC gummy
worms for the girl.
6. Marijuana products that are designed to resemble
commercially available gummy products, such as bears or
worms, and other brightly colored candies are by their nature
more appealing to children than marijuana in its traditional
form. See Sean O’Connor & Sam Méndez, Concerning
Cannabis­Infused Edibles: Factors That Attract Children to Foods 4–8
(continued…)
20170713-CA 10 2018 UT App 235State v. Akers
¶20 The THC gummy worms were also relevant to the
possession­of-a-dangerous-weapon-by-a-restricted-person
charge. Akers achieved restricted status due to his unlawful
possession of a Schedule I or Schedule II controlled substance.
See Utah Code Ann. § 76­10­503(1)(b)(iv) (LexisNexis 2017) (“A
Category II restricted person is a person who . . . is in possession
of a dangerous weapon and is knowingly and intentionally in
unlawful possession of a Schedule I or II controlled substance.”).
And THC is a Schedule I controlled substance. See id.§ 58­37­4(2)(a)(iii)(AA) (Supp. 2018). Even without the presence
of methamphetamine, a Schedule II controlled substance, his
possession of the THC gummy worms alone was sufficient to
qualify him as a Category II restricted person, making the THC
gummy worms relevant to the gun possession charge and
therefore properly before the court. 7
(…continued)
(Univ. Wash. Sch. Law, Cannabis Law Policy Project, June 28,
2016), https://lcb.wa.gov/publications/Marijuana/Concerning­MJ
­Infused-Edibles-Factors-That-Attract-Children.pdf [https://perm
a.cc/2JJP-VTSM] (noting that children are attracted to foods that
are “red, green, orange, and yellow” in color, shaped like
“common candies [and] cookies” and with “sweet, fruity, and
candy-like odors”).
7. Akers argues that because he lawfully obtained the
THC gummy worms for medicinal purposes in California, they
could not form the basis for his restricted status in Utah.
To support this contention, he cites Utah Code section 58­37­2,
which states that a controlled substance does not include
“any drug intended for lawful use in the diagnosis, cure,
mitigation, treatment, or prevention of disease in human or
other animals.” Utah Code Ann. § 58-37-2(1)(f)(ii)(B) (LexisNexis
2016). But Akers fails to acknowledge that this provision is
(continued…)
20170713-CA 11 2018 UT App 235State v. Akers
¶21 For these reasons we hold that the information in the PSIR
about the THC gummy worms was both reliable and relevant to
Akers’s sentencing and that the district court did not abuse its
discretion in relying on the information when imposing
sentence.
II. Ineffective Assistance of Counsel
¶22 “Implicit in the Sixth Amendment’s guarantee of counsel
is the right to effective assistance of counsel.” Lafferty v. State,
2007 UT 73, ¶ 11, 175 P.3d 530. A criminal defendant receives
ineffective assistance when (1) “counsel’s performance was
deficient” and (2) that “deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
Defense counsel does not render deficient performance if
counsel refrains from making futile objections. See Layton City v.
Carr, 2014 UT App 227, ¶ 19, 336 P.3d 587.
¶23 Akers argues that his defense counsel performed
deficiently when he did not object to the mention of the THC
gummy worms in the PSIR. We disagree, because an objection to
the inclusion of that information in the PSIR would have proven
unsuccessful.
¶24 Utah Code section 77­18­1(6)(a) states:
(…continued)
limited to “ephedrine, pseudoephedrine, norpseudoephedrine,
or phenylpropanolamine,” that are obtained as an
“over­the­counter medication without prescription.” Id. The
limited scope of this statute does not exonerate Akers from being
illegally in possession of THC in Utah, in 2017, regardless of
whether he lawfully obtained it for medical purposes in
California. See id. § 58­37­4(2)(a)(iii)(AA) (Supp. 2018)
(categorizing THC as a Schedule I controlled substance).
20170713-CA 12 2018 UT App 235State v. Akers
Any alleged inaccuracies in the presentence
investigation report . . . shall be brought to the
attention of the sentencing judge, and the judge
may grant an additional 10 working days to
resolve the alleged inaccuracies of the report with
the department. If after 10 working days the
inaccuracies cannot be resolved, the court shall make
a determination of relevance and accuracy on the record.
Utah Code Ann. § 77-18-1(6)(a) (LexisNexis Supp. 2018)
(emphasis added). As such, had Akers’s defense counsel raised
an objection to the inclusion of the challenged information in the
PSIR, the district court would have been required to make a
determination of relevance and accuracy of the information on
the record. If the court determined the information to be both
relevant and accurate, then the information would have
remained in the PSIR and defense counsel’s objection would
have been unsuccessful.
¶25 The information in the PSIR was accurate and relevant.
When asked about the THC gummy worms, Akers essentially
acknowledged that he was in possession of them at the time of
his arrest. Rather than deny their existence, he sought to justify
his possession of them by referring to his eligibility in California
to use medical marijuana. This explanation and his counsel’s
statement that the PSIR did not contain any errors strongly
support a finding of reliability, which no doubt would have been
supported by police testimony and the evidence log, had the
State been put to its proof.
¶26 The district court also clearly considered the information
to be relevant as it affirmatively represented that the THC
gummy worms significantly factored into its sentencing
decision—and we have determined that it did not abuse its
discretion in doing so. See supra Part I.B. Akers’s defense counsel
20170713-CA 13 2018 UT App 235State v. Akers
therefore did not perform deficiently when he did not raise an
objection that would have ultimately proven to be futile. 8
CONCLUSION
¶27 We conclude that the district court did not abuse its
discretion by relying on information relating to the dismissed
charges when it sentenced Akers. The information regarding his
possession of THC gummy worms that he brought to his
expected encounter with the girl was both reliable and relevant.
Also, Akers did not receive ineffective assistance from his
defense counsel because any objection to the inclusion of that
information in the PSIR would have proven unsuccessful.
¶28 Affirmed.
8. Because we conclude that the performance of Akers’s defense
counsel was not deficient, we do not reach the prejudice prong
of the ineffective assistance of counsel inquiry. See State v. Reid,
2018 UT App 146, ¶ 19, 427 P.3d 1261 (“A defendant’s inability
to establish either element defeats a claim for ineffective
assistance of counsel.”).
20170713-CA 14 2018 UT App 235