State v. Welborn

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20090264‐CA
)
v. ) FILED
) (January 6, 2012)
Gary L. Welborn, )
) 2012 UT App 5Defendant and Appellant. )
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Eighth District, Vernal Department, 031800339, 031800159
The Honorable A. Lynn Payne
Attorneys: Scott L. Wiggins, Salt Lake City, for Appellant
Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges Davis, Roth, and Christiansen.
ROTH, Judge:
¶1 Gary L. Welborn appeals the sentence of mandatory imprisonment imposed after
he pleaded guilty to aggravated sexual abuse of a child, a first degree felony, see Utah
Code Ann. § 76‐5‐404.1(4)‐(5) (2008).1 Welborn asserts that the sentencing court
committed plain error in interpreting Utah Code section 76‐5‐406.5 (the probation
provision) to require imprisonment and that his trial counsel provided ineffective
assistance by failing to assert that the probation provision allows an intermediate
1. Welborn was sentenced in 2004. Because the relevant provisions of the pertinent
statutes have not been substantively amended, we cite to the current version of the
code.
sanction between probation and imprisonment. Welborn also contends that his counsel
was ineffective in failing to present critical witnesses and documentary evidence at
sentencing. We affirm.
I. Statutory Interpretation
¶2 When a person is convicted of aggravated sexual abuse of a child,
“[i]mprisonment . . . is mandatory in accordance with [s]ection 76‐3‐406.” Id. § 76‐5‐
404.1(8). Section 76‐3‐406 reemphasizes the imprisonment mandate by prohibiting any
action by the sentencing judge that would “in any way shorten the prison term” and
identifying the probation provision as the sole exception to mandatory imprisonment.2
See id. § 76‐3‐406 (Supp. 2011). And the probation provision itself defines the exception
in very narrow terms, permitting the sentencing court to “suspend execution of
sentence and consider probation to a residential sexual abuse treatment center only if all
of [twelve enumerated] circumstances are found by the court to be present . . . .” Id.
§ 76‐5‐406.5(1) (2008) (emphasis added). Even if the defendant proves all the required
circumstances, the court may then only suspend the prison sentence if “considering the
circumstances of the offense . . . and considering the best interests of the public and the
child victim, [it] finds probation to a residential sexual abuse treatment center to be
proper.” Id. The defendant has the burden of proving the circumstances required to
permit the sentencing court’s consideration of probation. See id. § 76‐5‐406.5(5) (placing
the burden on the defendant to show by a preponderance of the evidence that all twelve
enumerated circumstances are present).
¶3 The district court found that Welborn had failed to bear his burden of
demonstrating that all twelve of the required circumstances were present and therefore
concluded that probation in lieu of mandatory imprisonment was not an available
2. Section 76‐3‐406 states,
[E]xcept as provided in [the probation provision], probation shall
not be granted, the execution or imposition of sentence shall
not be suspended, the court shall not enter a judgment for a
lower category of offense, and hospitalization shall not be
ordered, the effect of which would in any way shorten the
prison sentence for any person who commits . . . a first
degree felony involving . . . aggravated sexual abuse of a
child . . . .
Utah Code Ann. § 76‐3‐406(12) (Supp. 2011) (emphasis added).
20090264‐CA 2
sentencing option. Welborn asserts that the court erred when it interpreted the
probation provision to limit the alternatives to prison to only probation to a residential
sexual abuse treatment center. To support this contention, Welborn argues that the
probation provision does not expressly prohibit the imposition of a sentence
“somewhere between outright probation as dictated by the terms of the [probation
provision] and the prison term [mandated by the aggravated sexual abuse of a child
statute].”
¶4 Welborn did not challenge the district court’s interpretation of the probation
provision below but contests it on appeal on the grounds of plain error and ineffective
assistance of counsel. See generally State v. Lee, 2006 UT 5, ¶ 24, 128 P.3d 1179 (listing
plain error and ineffective assistance of counsel as exceptions to the preservation
requirement). Ordinarily, when we review a district court’s interpretation of a statute
for plain error, we consider whether “(i) [a]n error exists; (ii) the error should have been
obvious to the trial court; and (iii) the error is harmful.” State v. Dunn, 850 P.2d 1201,
1208 (Utah 1993). Welborn’s trial counsel, however, agreed with the court’s
interpretation of the probation provision:
THE COURT: Well, and correct me if I’m wrong, but as I
read the statute, . . . [it] requires a term of imprisonment
except if the defendant proves the factors under [the
probation provision]; and he must prove each of those
factors. Are we agreed upon that?
[DEFENSE COUNSEL]: Yes, your Honor.
The court then found that several criteria had not been established by a preponderance
of the evidence. See generally Utah Code Ann. § 76‐5‐406.5(5). Consequently, the court
informed trial counsel, “[A]s I see things at this time, there’s no use in you arguing for
probation where the statute doesn’t allow it at this point, based upon my findings.”
Counsel again agreed, stating, “I understand that,” and indicated that the only issue he
would like to address was “whether or not the term will be consecutive or concurrent.”
Thus, any error by the district court in interpreting the probation provision was invited,
and we do not review it, even under the plain error doctrine. See generally State v.
Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171 (“[U]nder the doctrine of invited error, we have
declined to engage in even plain error review when counsel, either by statement or act,
affirmatively represented to the [trial] court that he or she had no objection to the
[proceedings].” (second and third alterations in original) (internal quotation marks
omitted)).
20090264‐CA 3
¶5 “Invited error does not, however, preclude our review of a claim of ineffective
assistance of counsel.” State v. Sellers, 2011 UT App 38, ¶ 13, 248 P.3d 70. To succeed on
a claim of ineffective assistance of counsel, the defendant must demonstrate that
counsel’s performance was deficient and that he was prejudiced as a result. See
Strickland v. Washington, 466 U.S. 668, 687‐88 (1984). A defendant has not established
ineffective assistance if he fails to demonstrate that both elements have been met. See
State v. Millard, 2010 UT App 355, ¶ 15, 246 P.3d 151 (“[I]t is not necessary to address
both components of the inquiry if [Defendant] makes an insufficient showing on one.”
(second alteration in original) (internal quotation marks omitted)). “To satisfy the first
part of the test, defendant must overcome the strong presumption that [his] trial
counsel rendered adequate assistance.” State v. Ott, 2010 UT 1, ¶ 22, 247 P.3d 344(alteration in original) (internal quotation marks omitted). The prejudice component
can be shown by demonstrating that there is “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Millard, 2010 UT App 355, ¶ 14 (internal quotation marks omitted); see also
State v. Chacon, 962 P.2d 48, 51 (Utah 1998) (stating that prejudice must be “a
demonstrable reality and not a speculative matter” (internal quotation marks omitted)).
¶6 According to Welborn, trial counsel was deficient because he did not argue to the
sentencing court that the probation provision, “by virtue of its plain language, leaves
open the possibility of the court imposing something short of a complete suspension of
the sentence and probation[, i]n other words, . . . a sentence somewhere between a total
suspension of the prison term and outright probation to a residential sexual abuse
treatment center.” Although Welborn alludes to an intermediate option in his briefing,
he never identifies what form it might take or points us to any authority to support his
contention. At oral argument, he suggested that one such option would be partial
suspension of the prison sentence, that is, a sentence of one year in jail, followed by
probation. Our reading of the plain language of the relevant statutes, as well as our
understanding of the statutory relationship between a prison sentence and probation,
however, leads us to a contrary conclusion.
¶7 The aggravated sexual abuse of a child statute punishes a convicted defendant
with mandatory imprisonment in accordance with section 76‐3‐406. See Utah Code
Ann. § 76‐5‐404.1(8) (2008). Section 76‐3‐406 then identifies all the usual options
available to the court at sentencing and expressly prohibits any deviation from the
mandatory imprisonment requirement unless provided for by the probation provision.
See id. § 76‐3‐406 (Supp. 2011). And the plain language of the probation provision
clearly permits only a single alternative to mandatory imprisonment:
20090264‐CA 4
In a case involving a conviction for . . . aggravated sexual
abuse of a child, the court may suspend execution of sentence
and consider probation to a residential sexual abuse treatment
center only if all of [twelve enumerated mitigating]
circumstances are found by the court to be present and the
court in its discretion, considering the circumstances of the
offense, including the nature, frequency, and duration of the
conduct, and considering the best interests of the public and
the child victim, finds probation to a residential sexual abuse
treatment center to be proper . . . .
Id. § 76‐5‐406.5(1) (emphasis added). The probation provision simply does not identify
any alternative to mandatory imprisonment other than “probation to a residential
sexual abuse treatment center.” Id.
¶8 Indeed, Utah’s statutory approach to sentencing plainly limits a district court’s
choices. Generally, “a court may sentence a person convicted of an offense to any one
. . . sentence[] or combination of” sentences, including imprisonment or “probation
unless otherwise specifically provided by law.”3 Utah Code Ann. § 76‐3‐201(2)(c)‐(d)
(Supp. 2011). Further, “[o]n a plea of guilty, . . . the court may, after imposing [a prison]
sentence, suspend the execution of the sentence and place the defendant on probation.”
Utah Code Ann. § 77‐18‐1(2)(a) (Supp. 2011). Thus, the options available to a sentencing
court under the circumstances of this case are effectively binary: imprisonment for the
prescribed term or suspension of the prison sentence in favor of probation to a
residential sexual abuse treatment center. While a sentencing court has a number of
options as to how to craft probation (including a period of incarceration at a jail4),
3. The statute also provides for imposition of “a fine,” “removal or disqualification
from public or private office,” “life in prison without parole,” and “death” as alternative
sentencing options, none of which are relevant to the circumstances of this case. See
Utah Code Ann. § 76‐3‐201(2)(a)‐(b), (e)‐(f) (Supp. 2011).
4. Welborn’s counsel suggested at oral argument that an intermediate alternative
between prison and probation could involve the sentencing court suspending all but a
year of the prison sentence. A stint in jail is a common component of probation,
however, and there is no provision in Utah law that allows a sentencing court to
suspend a portion of a prison sentence. Welborn’s suggested alternative, therefore,
really amounts to no more than probation with a jail component, something that the
(continued...)
20090264‐CA 5
Welborn’s interpretation of the statutory scheme as permitting a third alternative
between prison and probation is simply not plausible. For the type of crime Welborn
was convicted of, the district court’s discretion to suspend imprisonment and place him
on probation is constrained, as “specifically provided by law,” see Utah Code Ann. § 76‐
3‐201(2)(c), to a single kind of probation (involving residential sexual offender
treatment) that is available only if all the statutory conditions are met, see id. § 76‐5‐
406.5(1). Because we conclude that Welborn’s claim that the probation provision
permits a third sentencing option between imprisonment and probation is not
supported by the language of the relevant statutes, any objection by his trial counsel to
the district court’s interpretation of the statute on this basis would have been futile.
Failure to make such an objection therefore could not constitute deficient performance.
See generally State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile
objections does not constitute ineffective assistance of counsel.”).
II. Evidence at Sentencing
¶9 We now turn to Welborn’s contention that his trial counsel was ineffective
because he failed to present certain evidence at sentencing, including the testimony of
four witnesses and two reports that he claims would have aided him in establishing the
mitigating circumstances necessary to be eligible for probation. The sentencing court
held that Welborn failed to establish, by a preponderance of the evidence, the following
three mitigating factors:
(a) the defendant did not use a weapon, force, violence,
substantial duress or menace, or threat of harm, in committing
the offense or before or after committing the offense, in an attempt
to frighten the child victim or keep the child victim from reporting
the offense;
(b) the defendant did not cause bodily injury to the child
victim during or as a result of the offense and did not cause
the child victim severe psychological harm;
4. (...continued)
applicable statutes clearly prohibit, except in combination with residential sexual
offender treatment and only then when all the identified conditions have been fulfilled.
See Utah Code Ann. § 76‐5‐404.1(8) (2008); id. § 76‐3‐406 (Supp. 2011); id. § 76‐5‐406.5
(2008).
20090264‐CA 6
....
(j) prior to being sentenced, the defendant has undergone a
complete psychological evaluation conducted by a
professional approved by the Department of Corrections
and;
(i) the professional’s opinion is that the defendant is
not an exclusive pedophile and does not present an
immediate and present danger to the community if released
on probation and placed in a residential sexual abuse
treatment center; and
(ii) the court accepts the opinion of the professional.
Utah Code Ann. § 76‐5‐406.5(1) (2008) (emphases added); see also id. § 76‐5‐406.5(5)
(placing the burden on the defendant to establish all twelve factors by a preponderance
of the evidence).
¶10 With regard to the witnesses, Welborn faults his trial counsel with failing to
present the testimonies of Ted Cilwick, a private investigator; Rose Anna Miller, a social
worker who worked with Welborn’s family when he was a teenager; and William
Gardiner and Dr. Edward Gardiner, his treatment providers at the time. Welborn
argues that had his trial counsel presented the testimony of Cilwick, whom he hired to
interview potential defense witnesses, Welborn could have established that his victim
had not been severely psychologically harmed as a result of the sexual abuse under
subsection (1)(b). See id. § 76‐5‐406.5(1)(b). Welborn proffered that Cilwick would have
testified about interviews he conducted with two schoolmates of the victim who had
reported that she had a boyfriend, that she publicly held hands with and hugged the
boyfriend, and that she was “‘outgoing, upbeat, unafraid of boys, [and] talkative.’” The
victim’s own therapist, however, testified at the sentencing that the victim had been
“harmed severely” as a consequence of the abuse, leading her to attempt suicide on four
occasions. To rebut the testimony of the victim’s therapist that she had suffered severe
psychological harm, Welborn asserts that his counsel should have presented testimony
from Cilwick that two of the victim’s schoolmates had witnessed her acting normally.
However, there is nothing in Cilwick’s proposed testimony regarding the victim’s
interactions with boys or her social personality that is necessarily inconsistent with her
therapist’s assessment that she had suffered severe psychological harm as a result of the
sexual abuse. Rather, the reports of her schoolmates amount to anecdotal, isolated
20090264‐CA 7
observations. Furthermore, Cilwick is neither an expert on manifestations of
psychological harm nor did he observe the victim firsthand, and the defense has not
identified any portion of his proposed testimony, or any other witness’s testimony, that
would have established that the victim’s apparently normal actions on these limited
occasions were materially inconsistent in a person who had suffered severe
psychological harm and attempted suicide. Thus, his testimony, at best, would have
invited the sentencing court to speculate about the victim’s psychological health
following the sexual abuse, and speculation cannot establish by a preponderance of the
evidence that the victim had not experienced severe psychological harm from the sexual
abuse. The failure to present that testimony was therefore not prejudicial to Welborn’s
defense and cannot form the basis for a determination that counsel provided ineffective
assistance.
¶11 Because Welborn could not establish subsection 1(b) and, for that reason, was not
eligible for probation, any deficiencies in performance by trial counsel with regard to
the establishment of the other mitigating factors would not be prejudicial, as they could
not have changed the result. Cf. State v. Tryba, 2000 UT App 230, ¶ 13, 8 P.3d 274(“Because a defendant has the burden of meeting all twelve requirements of [the
probation provision], we need not review all the criteria for eligibility if our inquiry
reveals that any single requirement is not satisfied.”). See generally State v. Millard, 2010
UT App 355, ¶ 14, 246 P.3d 151 (defining prejudice as “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different” (internal quotation marks omitted)). We observe, however, that even with
the additional testimonies and documentary evidence, Welborn could not have
established subsections (1)(a) or (1)(j).
¶12 With respect to subsection (1)(a), Welborn claims that, if trial counsel had called
Miller, his family’s social worker, as a witness, he could have demonstrated that he did
not use force or violence in committing aggravated sexual abuse of a child or make a
threat of harm after its commission to instill fear in the victim. See generally Utah Code
Ann. § 76‐5‐406.5(1)(a). According to Welborn, he could have rebutted a letter from his
stepsister, in which the stepsister alleged that Welborn violently raped her when she
was a child and he was a teenager, with Miller’s testimony that neither the stepsister
nor Welborn’s mother had ever mentioned this incident during the years in which
Miller had contact with the family. Welborn asserts that this testimony was critical
because the district court “alluded that the . . . stepsister[’s letter] tipped the scale in
favor of the victim’s claim that force and threats had been utilized in the course of the
offense.”
20090264‐CA 8
¶13 Welborn has not established that Miller’s testimony was material. First,
Welborn’s statement that the stepsister’s letter “tipped the scale” with regard to the
court’s assessment of the credibility of the victim’s testimony that Welborn had been
violent does not appear to be supported by the record. While the judge questioned
Welborn’s psychologist, Dr. Ricky Hawks, about how his favorable risk assessment of
Welborn might be altered were the allegations in the stepsister’s letter true, the court
did not mention the letter in its decision, much less indicate that it had “tipped the
scale” in any way. Further, Welborn has not shown that Miller’s testimony was likely
to have changed the result in any event. As the district court noted, the victim’s
therapist had reported Welborn’s threat as a motivation for the victim attempting
suicide and the victim herself had reported the use of force and violence by Welborn.
The court then found that it “ha[dn’t] received any testimony sufficient to cause the
Court to think that the burden [of demonstrating that no force or violence had been
used] has been met.” Miller’s testimony, had it been presented, would have established
only that any violent sexual act with his stepsister had not been reported; it would not
have established that Welborn did not use violence with this victim many years later.
Welborn, therefore, has not convinced us that even with Miller’s testimony, there was a
reasonable probability that the outcome would have been different. See generally
Millard, 2010 UT App 355, ¶ 14 (requiring a showing both that counsel’s performance
was deficient and that there was “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different”).
Moreover, the substance of Miller’s information in this regard was set out in Dr.
Hawks’s testimony.
¶14 Welborn also alleges that trial counsel should have introduced the police report
and the victim’s medical examination report to establish that Welborn had not used
force or violence with the victim. Welborn claims that the police report contains “little
to no references about any threats or violence” toward the victim and that the medical
examination report would have shown that the victim’s genitalia and anus were normal
and had no indications of trauma. The failure to introduce this evidence, however, can
properly be attributed to reasonable trial strategy. The police report, for instance,
detailed Welborn’s abuse of the victim, including accounts of Welborn’s multiple acts of
rape and sodomy on the preteen child and his backhanding her when she resisted his
advances on one occasion. Thus, the claim that the police report contains “little or no
references about any threats of violence” is, at best, an optimistic characterization of its
contents in the first place, and whatever questionable support it might have given
would have to be assessed against the clearly prejudicial information it contained. The
medical examination report, which was performed nearly three years after the abuse,
likewise contains a litany of Welborn’s sexual abuse of the victim and includes multiple
20090264‐CA 9
allegations of the use of violence, force, and threats by Welborn against the victim.
Counsel was thus confronted with the need to balance a significant potential for
prejudice against the tenuous support that negative physical findings three years after
the fact might give to Welborn’s claim that he used no force or violence in his sexual
abuse of the victim. Counsel’s decisions about whether to introduce either report
therefore clearly implicate strategic judgment and cannot be gainsaid on appeal. See
generally State v. Sellers, 2011 UT App 38, ¶ 16, 248 P.3d 70 (stating that because we
assume that counsel provided adequate assistance, “the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered
sound trial strategy” (internal quotation marks omitted)).
¶15 Welborn’s final contention is that trial counsel was ineffective in failing to call his
treatment providers, Dr. Edward Gardiner and William Gardiner, for the purpose of
establishing subsection (1)(j), that is, that he was not an exclusive pedophile and did not
present an immediate and present danger to the community if he was not imprisoned.
See Utah Code Ann. § 76‐5‐406.5(1)(j) (2008). We disagree. First, Dr. Hawks’s testimony
related the substance of what the Gardiners’ testimonies would have entailed, including
their opinions that Welborn’s existing treatment plan was adequately mitigating any
risk he presented to the victim and the community. Second, Dr. Gardiner’s progress
notes were included as attachments to the presentence investigation report and were
therefore available for the court’s review prior to sentencing. Welborn has not
demonstrated that presenting this information in testimonial form would likely have
changed the result. Further, calling Dr. Gardiner to testify would have entailed obvious
risk: one of the mandatory conditions of the probation provision was that the
defendant have had no prior conviction for a sex offense, but Dr. Gardiner had
identified, in his written communications, Welborn’s juvenile conviction for a sex
offense. The State had already conceded this condition in Welborn’s favor because it
had no evidence of such a prior offense without Dr. Gardiner’s testimony; calling him
as a witness at the sentencing hearing would have raised the risk that the prior sex
offense would have been revealed under cross‐examination. Because counsel’s
decisions with regard to this evidence involved striking a strategic balance between the
potential benefit and the potential harm, we cannot conclude that counsel was deficient
in failing to present it. See Sellers, 2011 UT App 38, ¶ 16.
¶16 In summary, we have declined to engage in plain error review of the district
court’s interpretation of the probation provision where trial counsel affirmatively
represented to the court that its interpretation was correct. Moreover, trial counsel was
not ineffective in failing to object to the court’s interpretation because the plain
language of the probation provision does not support Welborn’s proposed
20090264‐CA 10
interpretation. Nor was counsel ineffective for failing to present additional testimony
or documentary evidence to establish the mitigating factors necessary for eligibility for
probation because the evidence proffered to demonstrate that the victim was not
severely psychologically harmed was speculative and the failure to establish even one
mitigating factor precludes suspension of sentence in favor of probation to a residential
sexual abuse treatment center. We therefore affirm Welborn’s sentence of five years to
life in prison.
____________________________________
Stephen L. Roth, Judge
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¶17 WE CONCUR:
____________________________________
James Z. Davis, Judge
____________________________________
Michele M. Christiansen, Judge
20090264‐CA 11