State v. Rivera

2016 UT App 202THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
LAUREN AILEE MAISON RIVERA,
Appellant.
Opinion
No. 20140083-CA
Filed September 22, 2016
First District Court, Logan Department
The Honorable Kevin K. Allen
No. 121101240
David M. Perry, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and KATE A. TOOMEY concurred.
ORME, Judge:
¶1 Lauren Ailee Maison Rivera committed financial fraud
against her then-best friend (Victim), opening several credit
cards in Victim’s name using Victim’s personal and financial
information. Various other charges were pending against Rivera,
and she entered into a “global” resolution of all charges by
pleading “guilty with a mental illness” to one count of forgery
and three counts of identity fraud, all third degree felonies. See
Utah Code Ann. §§ 76-6-1102(3)(a), -501(5)(a) (LexisNexis Supp.
State v. Rivera
2016). 1 The trial court sentenced her to four prison terms of up to
five years. She appeals; we affirm.
BACKGROUND
¶2 While on probation from a conviction on similar charges
in Colorado, Rivera befriended Victim, who was a coworker, and
the two spent increasing amounts of time together. Rivera
eventually obtained Victim’s financial and personal information,
including her Social Security number, and used it to obtain
several credit cards by mail. Rivera, who was brazen in her use
of these cards, later bragged that she purchased Victim gifts and
took Victim out to lunch while using the cards she had
fraudulently obtained in Victim’s name.
¶3 This continued for some time until Victim received notice
from a debt collector that she had failed to pay her credit card
bill when due and that it was being sent to collections. Confused,
Victim asked for and received more information, eventually
deducing that Rivera had obtained a credit card in Victim’s
name. Victim subsequently learned that Rivera had obtained at
least five credit cards in Victim’s name. Victim contacted the
police, who opened an investigation that ultimately resulted in
Rivera being charged with several counts of identity fraud and
forgery in this and two other cases.
¶4 Rivera’s competency to stand trial was reviewed by two
alienists, 2 and while she had bipolar disorder, she was found
1. Although various statutes at issue in this case have been
amended, the changes are inconsequential in the context of this
case. Therefore, for ease of reference, we cite the most recent
codification of these statutes.
2. According to Black’s Law Dictionary, “alienist” is an archaic
word for “psychiatrist.” Alienist, Black’s Law Dictionary 85 (9th
(continued…)
20140083-CA 2 2016 UT App 202State v. Rivera
competent to stand trial. The alienists noted that her condition
was stable with medication and recommended that she continue
a regimen of medication and therapy.
¶5 One year later, Rivera agreed to a plea deal in which all
but the three counts of identity fraud and one count of forgery
were dropped in exchange for her plea of “guilty with a mental
illness” to those charges. At that time, the trial court requested
that a presentence investigation report (PSI) be prepared before
sentencing, which was scheduled for two months later.
¶6 On the day of sentencing, defense counsel requested a
ten-day continuance, alleging that he had received the PSI only
two working days before the hearing rather than three as
required by statute. 3 See Utah Code Ann. § 77-18-1(6)(a)
(LexisNexis Supp. 2016) (“The department shall provide the
presentence investigation report to the defendant’s attorney, or
the defendant if not represented by counsel, the prosecutor, and
the court for review, three working days prior to sentencing.”).
See also id. (allowing a trial court to grant a continuance of ten
days “to resolve the alleged inaccuracies” in the PSI). According
to Rivera, “[t]he trial court was apparently unaware of the three
day prior to sentencing requirement and stated there are no set
rules on how quickly you have the presentence report, it’s just
within what is reasonable.” Defense counsel sought the
continuance in order to prepare “a written response to what
[Rivera] believes were factual errors . . . [in] the report.” The trial
(…continued)
ed. 2009). At least one of our statutes continues to use the archaic
expression. See Utah Code Ann. § 77-27-7 (LexisNexis 2012).
3. Almost four months after the hearing, defense counsel averred
in a court filing that “[t]he PSI was served three business days
before sentencing.” Given our disposition of this appeal, there is
no need for us to reconcile this discrepancy.
20140083-CA 3 2016 UT App 202State v. Rivera
court denied the requested continuance but granted Rivera an
extra ninety minutes to assemble any appropriate corrections or
clarifications to the PSI.
¶7 Defense counsel then presented a number of items that
Rivera believed to be discrepancies in the PSI. These
discrepancies fell into two broad categories. First, Rivera
challenged a number of small, relatively insignificant factual
details, such as whether her various married names qualified as
aliases (as well as the spelling of those names), the number of
counts of each type of offense to which she pled guilty (she
believed there were two counts of identity fraud and two counts
of forgery instead of three and one, respectively), whether any
other victims existed, and the PSI’s characterization of her work
history as “sporadic.” She further denied having had access to
customers’ personal financial information in her previous jobs
and having had access to the personal information of callers
while working as a volunteer for a nonprofit entity.
¶8 The corrections in the second category were less
corrections, per se, than quibbles with the PSI investigator’s
characterization of Rivera’s behavior and attitude. He believed
that she did not express remorse for her crimes; she insisted that
she did. He noted that she “[j]ustifie[d] her ongoing criminal
behavior because she was off her medications”; she insisted that
she did not. All of these “corrections” were included in a hand-
corrected PSI submitted to the court. 4 In that submission, Rivera
also noted that Victim requested “RETRIBUTION, not
restitution,” and attempted to clarify the various dates
underlying her previous criminal history.
4. Significantly, Rivera does not identify on appeal any
additional corrections or clarifications to the PSI that are in order
but went unnoted at her sentencing hearing.
20140083-CA 4 2016 UT App 202State v. Rivera
¶9 The trial court listened to Rivera’s presentation and later
questioned the prosecutor about several of the points Rivera
raised. The trial court then allowed Victim, Victim’s father, and
Victim’s lawyer to address the court. Victim recounted the
devastating impact of Rivera’s betrayal of trust and disclosed
that “[Rivera has] made me scared of how I’m going to live the
rest of my life because this is still going to be on my credit.”
Victim also stated that she had to move in with her parents as a
result of the financial impact of Rivera’s crimes. Victim’s lawyer,
in her statement, explicitly asked the court to impose consecutive
prison sentences on Rivera.
¶10 Finally, the trial court sentenced Rivera. The judge noted
that this was “a very difficult case for the Court.” Although the
judge stated, “The Court has I think a pretty good
understanding of mental illness and its effects on people,” he
concluded that “the Court . . . cannot ignore the great difficulty
that this case has imposed upon the victim and her family.” As a
result, the court sentenced Rivera “to zero to five years at the
Utah State Prison” on each of the four counts but rejected the call
for consecutive sentences. After defense counsel asked, “[H]ow
can [Rivera] continue to get therapy and medication?,” the trial
court replied, “They have a very good mental health ward at the
prison. . . . I’ve witnessed it firsthand, and the Court is very
comfortable that Ms. Rivera will continue to get the help that she
needs.”
¶11 Four months later, Rivera filed a copy of her PSI with her
handwritten annotations and corrections. The trial court
submitted the corrected PSI to the Board of Pardons and Parole
before her first Board hearing. Rivera also filed a motion to
correct her sentence based on Utah Code section 77-16a-104,
which the court denied. It is from her sentence and the denial of
this motion that Rivera appeals.
20140083-CA 5 2016 UT App 202State v. Rivera
ANALYSIS
I. The Trial Court Did Not Abuse Its Discretion When It Refused
To Grant Rivera a Ten-Day Continuance To Address the
Claimed Inaccuracies in the PSI.
¶12 Rivera assails the trial court’s refusal to grant her a ten-
day continuance so she could better challenge the alleged
inaccuracies in her PSI. This court reviews decisions involving
continuances of sentencing only for abuse of discretion. See State
v. Lindsey, 2014 UT App 288, ¶ 10, 340 P.3d 176.
¶13 Rivera notes there is a statutory requirement that a
defendant “shall” be given the PSI at least “three working days
prior to sentencing.” See Utah Code Ann. § 77-18-1(6)(a)
(LexisNexis Supp. 2016). She claims that the trial court therefore
abused its discretion when it refused to grant a ten-day
continuance as authorized under the same section. See id.Although the three-day requirement exists, we nevertheless
affirm the trial court’s refusal to grant the requested continuance
because “[t]he word ‘shall’ directs the department of corrections,
not the trial court.” State v. Madsen, 2002 UT App 345, ¶ 15, 57
P.3d 1134. See also Utah Code Ann. § 77-18-1(6)(a) (“The
department shall provide the presentence investigation report to
the defendant’s attorney . . . three working days prior to
sentencing.”) (emphasis added). As we noted in Madsen,
“nothing in the plain language of this subsection limits the
discretion of the trial court.” 2002 UT App 345, ¶ 15. Thus, the
trial court was not required to give Rivera three days to review
the PSI in advance of sentencing, and its decision not to give her
a continuance of ten days to address the perceived inaccuracies
was an exercise of discretion that, as noted, we review only for
abuse.
¶14 But we need not definitively decide if the court abused its
discretion in not giving Rivera more time because, in any event,
she has failed to demonstrate that she was prejudiced by the trial
20140083-CA 6 2016 UT App 202State v. Rivera
court’s decision. As noted above, the trial court listened to the
full recitation of the PSI’s alleged inaccuracies as identified by
Rivera and asked some questions about them. It also listened to
Rivera’s mental health professionals. It took further testimony
from Victim, as well as from Victim’s father and from her
lawyer. It then imposed sentence and, while doing so, made
extensive note of Rivera’s mental health issues but balanced that
consideration with the devastating impact Rivera’s crimes had
upon Victim. See Utah Code Ann. § 77-38-4(1)(b) (LexisNexis
2012).
¶15 All these facts were before the court, and because Rivera
does not suggest—much less demonstrate—that there were any
additional errors she missed in preparing for her presentation at
the sentencing hearing, it is impossible for us to conclude that
she was prejudiced in any way. Cf. State v. Abelon, 2016 UT App
22, ¶¶ 20–21, 369 P.3d 113 (explaining that even where “the
district court fail[s] to make findings on the record as section 77-
18-6(a) requires,” its “failure to resolve [the defendant’s]
objections” does not require reversal if the defendant’s “sentence
was [not] materially affected by the matters that [the defendant]
challenged in [her] objections”) (citations and internal quotation
marks omitted). And, because the trial court already forwarded
Rivera’s handwritten PSI corrections to the Board of Pardons, we
see no basis for even a limited remand “to make appropriate
corrections to the report.” See State v. Monroe, 2015 UT App 48,
¶ 10, 345 P.3d 755.
II. Rivera’s Argument That Her Prison Sentence Was Excessive Is
Inadequately Briefed.
¶16 Rivera argues that the trial court abused its discretion by
sentencing Rivera to prison. This claim is inadequately briefed. It
is not enough to tell this court that the trial court “failed to
consider all the legally relevant factors and . . . imposed an
excessive sentence.” This “bald statement . . . shift[ed] the
burden of research and argument to this court,” LD III LLC v.
20140083-CA 7 2016 UT App 202State v. Rivera
Davis, 2016 UT App 139, ¶ 26, and thus constitutes inadequate
briefing of the issue.
¶17 Rivera’s additional claim that “the trial court failed to
consider . . . all the corrections the appellant made to [the]
presentence report” is also inadequately briefed, but for a
different reason: she entirely fails to reference the record in
making this argument—except for a single reference to the PSI’s
indication that Rivera “suffers from a bi-polar affective
disorder.” We decline “to peruse the record [to] see if we can
discern some problem with the district court’s analysis.” Id.III. Rivera Invited Any Error That Resulted from Her Insistence
That the Court Afford Her a Hearing Under Section 77-16a-104.
¶18 Rivera claims that the trial court failed to conduct a
hearing to determine whether she currently suffered from a
mental illness. This argument fails due to invited error. “It is . . .
elementary that a party may never avail himself of an invited
error” for otherwise courts would “become the mere playthings
of the parties to the actions and be controlled by their whims and
caprices.” Van Cott v. Wall, 178 P. 42, 47 (Utah 1918). Rivera
invited error because she argued below that Utah Code section
77-16a-104 applied. See Utah Code Ann. § 77-16a-104(1)
(LexisNexis 2012) (describing the procedure to follow upon
entry of “a verdict of guilty with a mental illness”). And that was
the provision the trial court considered and on which it ruled.
Now Rivera raises, for the first time on appeal, the argument
that she should instead have been afforded a mental health
hearing under Utah Code section 77-16a-103. See id. § 77-16a-
103(1)–(4) (describing the procedure for acceptance of a guilty
plea with mental illness). Having invited the trial court’s
attention to one provision, she will not now be heard to
complain that the trial court should instead have considered a
different provision that was not called to its attention.
20140083-CA 8 2016 UT App 202State v. Rivera
CONCLUSION
¶19 Any error in the trial court’s refusal to grant Rivera a ten-
day continuance of her sentencing is harmless in the absence of
any demonstrated prejudice resulting from the trial court’s
decision. Rivera’s claim that her sentence was excessive is
inadequately briefed, and her argument that she was entitled to
a formal mental health hearing is foreclosed under the doctrine
of invited error.
¶20 Affirmed.
20140083-CA 9 2016 UT App 202