State v. Wilkes

2020 UT App 175THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
PAUL CHAPMAN WILKES,
Appellant.
Opinion
No. 20190216-CA
Filed December 31, 2020
Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 161906760
Sarah J. Carlquist, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler,
Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Paul Chapman Wilkes appeals his prison sentence,
arguing that his counsel was constitutionally ineffective in
failing to object to the sentencing court’s consideration of a
psychosexual evaluation from a previous offense and that the
court abused its discretion when it sentenced him to prison
instead of probation. We affirm.
State v. Wilkes
BACKGROUND
¶2 In the summer of 2012, Wilkes, age twenty-seven,
manipulated NK, who was sixteen, into having sex with him on
three occasions in exchange for money and gifts. 1
¶3 In January 2013, after Wilkes had abused NK but before
that abuse was reported, Wilkes sexually abused a different
minor, this time a fourteen-year-old girl (SV). Wilkes was
charged in that case and pleaded guilty to sexual battery in 2013
(first case). When SV reported the abuse, she provided a
statement to police detailing the events. As part of sentencing in
the first case, Wilkes underwent a psychosexual evaluation in
September 2013. In that evaluation, Wilkes denied that he
sexually abused SV. Notably, he also denied that he “ever had
sexual contact with anyone under 17 years of age,” even though
he had committed the (then unreported) sexual abuse of NK
about one year before. Because of his denial and his failure to
take responsibility for his abuse of SV, the evaluator determined
that Wilkes was not sufficiently motivated to participate in sex-
offender treatment. The evaluator concluded that before
engaging in a sex-offender treatment program, Wilkes would
need to participate in a more general course of psychotherapy to
address his interpersonal and emotional functioning. Wilkes was
sentenced to thirty-six months of probation and ordered to
participate in a sex-offender treatment program, which he
completed in 2016.
¶4 Three years after being abused by Wilkes, NK disclosed
the abuse. The State charged Wilkes with one count of
encouraging, inducing, or purposely causing the prostitution of
a child, see Utah Code Ann. § 76-10-1306(3) (LexisNexis 2012),
1. Departing from our usual practice of referring to the victim of
abuse as “Victim,” we use initials in this opinion at the request of
the individual involved.
20190216-CA 2 2020 UT App 175State v. Wilkes
and three counts of unlawful sexual conduct with a sixteen- or
seventeen-year-old, see id. § 76-5-401.2. In August 2017, Wilkes
pleaded guilty to two counts of unlawful sexual conduct, and
the State dismissed the other two charges (second case).
¶5 In its presentence investigation report (PSI), Adult
Probation and Parole (AP&P) recommended imprisonment.
Wilkes objected to the PSI and moved to continue his sentencing
hearing, arguing that the PSI had “numerous errors” and
omitted “information which is favorable to him and which
would have a bearing on his sentence.” Specifically, Wilkes’s
counsel asserted that “the person who prepared” the PSI had
“totally ignore[d]” and “not even mention[ed]” a positive two-
page letter from Wilkes’s current sex-offender therapist. Wilkes
also objected that the PSI “revisit[ed]” the first case and the
conclusions of the therapist in that case. The sentencing court
denied the request to strike the PSI and order a new report,
concluding that “there was nothing inaccurate about the fact that
[Wilkes] did enter into treatment with other people” and
“ultimately completed the treatment.” The court then sentenced
Wilkes to concurrent terms of zero to five years.
¶6 Wilkes, represented by a different attorney (Counsel),
appealed the sentence, and based on the parties’ stipulation, this
court remanded to the sentencing court “to resolve the alleged
inaccuracies in the [PSI] and to conduct a new sentencing
hearing.” Due to a retirement, the case was reassigned to a
different judge. On remand, the court ordered Wilkes released
from prison, vacated his first sentence, ordered a new PSI, and
set a new sentencing hearing. 2
¶7 AP&P prepared a second PSI, again recommending a
prison sentence. This PSI included a letter from Wilkes’s sex-
2. At the time of his release, Wilkes had served approximately
ten months in prison.
20190216-CA 3 2020 UT App 175State v. Wilkes
offender therapist explaining that Wilkes had successfully
completed therapy over a period of thirteen months ending in
February 2016. The therapist also opined that it was unnecessary
for Wilkes to repeat treatment. This PSI included a portion of
Wilkes’s statement in which he minimized his abuse of NK,
stating that he was trying to help relieve her stomach pains
when he sexually assaulted her. Wilkes acknowledged that he
was placed on probation for a “similar offense” that had
occurred in the first case, but he asserted that he was a “changed
person” after having completed sex-offender counseling and
treatment arising from the first case.
¶8 The second PSI outlined Wilkes’s extensive criminal
history, including offenses he committed as a juvenile and a
felony drug conviction. It also noted that while Wilkes had
initially struggled to comply with the conditions of his probation
related to the first case, Wilkes had been compliant with the
terms of his probation since January 2015.
¶9 The second PSI also included statements from NK, NK’s
mother, and SV. The mother’s and NK’s statements detailed the
serious psychological and emotional toll Wilkes’s abuse had on
NK and their family.
¶10 In January 2019, at the second sentencing hearing, the
court informed the parties that it had reviewed all the
information provided for and considered during Wilkes’s first
sentencing as well as the more current information that was not
available to the original sentencing court. The court specifically
stated that it had looked at documents from the first case,
including the psychosexual evaluation and “things of that
nature” that were available to the original sentencing court, in
preparation for the new sentencing hearing. The court explained
that “it was important for [it] to look at the [first] case because
that’s part of the argument, is that [Wilkes] completed probation,
that he did well and things of that nature.” Counsel stated that
20190216-CA 4 2020 UT App 175State v. Wilkes
he did not “have a problem with that.” The sentencing judge
then informed the parties,
[I]f there are things that I’ve looked at that you
haven’t looked at, you ought to look at all those
things before . . . sentencing so that if there’s
anything you want to point out to me as far as a
correction or something like that, you should do
that . . . . So, I just want to be on the same page
with everybody. I’ve looked at both cases and all
the things that were filed in both cases . . . .
¶11 Counsel indicated that he was not familiar with the
psychosexual evaluation from the first case. Counsel then began
to identify several concerns he had with the second PSI and
expressed that he “probably should have filed an objection.” In
response, the court continued the sentencing hearing to allow
Counsel to put “in writing” his “corrections and concerns,” to
file an objection with the court, and to provide any necessary
information to AP&P. The court noted that it wanted “to make
sure AP&P addressed these things before the next hearing.”
Counsel subsequently filed objections to the manner in which
Wilkes’s criminal history had been scored in the second PSI.
¶12 Before the continued sentencing hearing, which occurred
about a month later, Counsel withdrew the objections,
explaining that after a conference with AP&P, he was satisfied
that the scoring was correct. However, Counsel raised a new
concern: Wilkes had also filed a 402 motion to reduce his prior
felony drug conviction, and that motion was still pending. See
Utah Code Ann. § 76-3-402(1) (LexisNexis 2017) (providing that
“[i]f at the time of sentencing the court,” after having considered
various enumerated circumstances, “concludes it would be
unduly harsh to record the conviction as being for that degree of
offense established by statute, the court may enter a judgment of
conviction for the next lower degree of offense and impose
sentence accordingly”). Counsel argued that if the court granted
20190216-CA 5 2020 UT App 175State v. Wilkes
the motion, it “may affect [Wilkes’s] criminal history
calculation.” But the court explained that while it had not yet
ruled on Wilkes’s 402 motion, granting it would not “make a
difference” to the outcome of the sentencing hearing because it
concerned “a drug charge . . . committed while [Wilkes] was on
probation” for the first case.
¶13 At the continued sentencing hearing, Counsel asked the
court to “place . . . Wilkes on probation . . . based on what he did
prior to being sent to prison [after the initial sentencing], what he
has done since his release[,] and based on the chronology of the
offenses.” Counsel explained that six and a half years had passed
since Wilkes sexually abused NK. After that abuse, Wilkes had
successfully completed a sex-offender treatment program and
probation, was enrolled in college, participated in weekly
therapy, had committed no offenses since completing probation,
and was the sole caregiver for his grandparents. Noting that
Wilkes had already spent ten months in prison before being
released after his successful appeal, Counsel focused on the
progress Wilkes had made:
I think the most important factor is that this offense
was prior to the previous conviction for which he
completed treatment and probation. I think in our
system we try and rehabilitate people and we don’t
rehabilitate them and then go back and put them in
prison for a similar prior offense which the
rehabilitation dealt with.
¶14 For its part, the State, considering the egregious and
predatory nature of the offense, urged the court to impose a
prison sentence and “leave it to the Board of Pardons to
determine how long” Wilkes would serve.
¶15 In announcing Wilkes’s sentence, the court reiterated that
it had reviewed “everything in the file,” including the risk
assessment and letters filed in the case. The court specifically
20190216-CA 6 2020 UT App 175State v. Wilkes
noted that, as it had previously indicated to the parties, see supra
¶ 10, “because there was reference to the [first] case, [it]
reviewed everything in the [first] case as well in preparation for
[the] hearing.” The court acknowledged that Wilkes presented
“an unusual situation because it is not often that someone is
resentenced after serving a lengthy amount of time at the Utah
State Prison.” The court recognized that Wilkes had taken
positive steps toward rehabilitation, including attending school,
serving ten months in prison, completing counseling, being able
to pay restitution, and having committed no crimes since he was
charged in the second case. However, the court noted that the
“seriousness of the offenses in this case . . . cannot be looked at in
a vacuum.” Rather, “they have to be taken into consideration
with the [first] case [and] . . . the statement of [SV] in the [first]
case that was included with the [PSI].” The court noted that
Wilkes knew his victims were high school girls and that he was
“preying on young girls at the time, offering money for sex and
things of that nature and those things make the facts of this
[second] case serious and aggravating.” The court further
considered the impact Wilkes’s conduct had on NK, specifically
identifying the “lasting effect on [her] mental health.” The court
observed that the perpetrator does not “get to decide when
somebody reports” being sexually abused, and the fact that
Wilkes had “moved on” did not mean that NK had done the
same: “So the impact on her is significant and that’s something
that should be considered in a sentence.”
¶16 The sentencing judge also considered Wilkes’s lack of
empathy:
I’m glad that you gave a statement today because I
had written in my notes that in everything I read I
did not read in one place anything that led me to
believe that you had what you learned in treatment
as victim empathy. You wrote a statement in the
presentence report—and I acknowledge that that
presentence report is old but until today, I really
20190216-CA 7 2020 UT App 175State v. Wilkes
had not read anything anywhere that would
convince me that you had any empathy for [NK],
and that’s something that I’m sure you learn in
treatment that part of your rehabilitation includes
acknowledging fully everything, not minimizing
your responsibility—and I say that because when I
read [the psychosexual evaluation from the first
case], it struck me that in [that evaluation], in the
presentence report, that you minimized your
responsibility in the conduct that you engaged in.
¶17 The court further pointed out that even though the
psychosexual evaluation from the first case was completed after
Wilkes had abused NK—but before the second case had been
filed—Wilkes denied in that evaluation “ever having sexual
conduct or contact with anyone under the age of 17.”
¶18 Finally, the court explained that while rehabilitation is an
important consideration in sentencing, “punishment is [also] an
important component” that includes “reparations to the victim
in a case and to society as a whole.” The court informed Wilkes
that he “still [had] some reparations left to make in this case”
and explained that it was sentencing Wilkes to two concurrent
zero-to-five-year prison terms as “the last part of [his]
rehabilitation, the last part of [his] reparations . . . that [he had]
to complete.” Wilkes appeals.
ISSUES AND STANDARDS OF REVIEW
¶19 Wilkes raises two main issues on appeal. First, he
contends that Counsel was constitutionally ineffective for not
objecting to the sentencing court’s consideration of the
psychosexual evaluation prepared in the first case, arguing that
not objecting allowed the court to “consider[] and rel[y] on
unreliable and irrelevant information in making its sentencing
determination.” “An ineffective assistance of counsel claim
20190216-CA 8 2020 UT App 175State v. Wilkes
raised for the first time on appeal presents a question of law.”
State v. Percival, 2020 UT App 75, ¶ 19, 464 P.3d 1184 (quotation
simplified).
¶20 Second, Wilkes asserts that the court abused its discretion
when it sentenced him to prison instead of probation. “We
review the district court’s sentencing decision, including its
decision to grant or deny probation, for abuse of discretion. An
abuse of discretion results when the judge fails to consider all
legally relevant factors or if the sentence imposed is clearly
excessive.” State v. Gasper, 2018 UT App 164, ¶ 16, 436 P.3d 200(quotation simplified). 3
ANALYSIS
I. Ineffective Assistance
¶21 Wilkes argues that Counsel provided ineffective
assistance when he failed “to object to the district court’s reliance
on” the psychosexual evaluation from the first case, asserting
that the evaluation was outdated, unreliable, and irrelevant and
prejudiced him. Wilkes argues that had Counsel successfully
objected to the court’s consideration of the psychosexual
evaluation, the court would have given more weight to the letter
from his current therapist describing the positive changes he had
made and given him a more lenient sentence.
¶22 “Utah courts, in line with the United States Supreme
Court, regard sentencing as a critical stage of criminal
3. Wilkes also argues that the “cumulative effect of the above
described errors caused prejudice.” However, “[t]here are no
errors to accumulate here, rendering the cumulative error
doctrine inapplicable in this case.” See State v. Galindo, 2019 UT
App 171, ¶ 17 n.4, 452 P.3d 519.
20190216-CA 9 2020 UT App 175State v. Wilkes
proceedings at which a defendant is entitled to the effective
assistance of counsel. The right to counsel at sentencing must,
therefore, be treated like the right to counsel at other stages of
adjudication.” State v. Cabrera, 2007 UT App 194, ¶ 11, 163 P.3d
707 (quotation simplified).
¶23 To succeed on a claim of ineffective assistance of counsel,
Wilkes must demonstrate that Counsel’s “performance was
deficient” and that “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Because failure to establish either prong of the test is fatal to an
ineffective assistance of counsel claim, we are free to address
[Wilkes’s] claims under either prong.” See Honie v. State, 2014 UT
19, ¶ 31, 342 P.3d 182.
¶24 To show deficient performance, Wilkes must overcome
the presumption that Counsel’s decision not to object to the
court’s consideration of the psychosexual evaluation prepared in
the first case “falls within the wide range of reasonable
professional assistance.” See Strickland, 466 U.S. at 689. “The
court gives trial counsel wide latitude in making tactical
decisions and will not question such decisions unless there is no
reasonable basis supporting them.” State v. Clark, 2004 UT 25,
¶ 6, 89 P.3d 162 (quotation simplified). Moreover, deficient
performance is not determined in a vacuum; rather, it involves
asking whether the strategy Counsel employed was that of a
reasonable, competent lawyer in the real-time context of the
sentencing hearing. See State v. Nelson, 2015 UT 62, ¶ 14, 355 P.3d
1031 (stating that deficient performance is evaluated in the
immediate trial context). And “even where a court cannot
conceive of a sound strategic reason for counsel’s challenged
conduct, it does not automatically follow that counsel was
deficient. . . . [T]he ultimate question is always whether,
considering all the circumstances, counsel’s acts or omissions
were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36,
462 P.3d 350; accord State v. Ray, 2020 UT 12, ¶¶ 34–36, 469 P.3d
871.
20190216-CA 10 2020 UT App 175State v. Wilkes
¶25 Here, Wilkes asserts that “it constitutes an abuse of
discretion for the district court to have relied on” the “outdated,
unreliable, and irrelevant [psychosexual evaluation]”; that “no
sound trial strategy supported . . . Counsel’s decision to not
challenge or otherwise object to the district court’s reliance on
[the psychosexual evaluation]”; and that therefore “Counsel
performed deficiently.” “In short,” Wilkes concludes, “there was
only upside in objecting to the district court’s reliance” on the
psychosexual evaluation. (Quotation simplified.) We are not
persuaded by Wilkes’s argument.
¶26 Because the psychosexual evaluation could have helped
Wilkes, Counsel had “a sound strategic reason” to encourage the
district court to consider it. See State v. Gallegos, 2020 UT 19, ¶ 56,
463 P.3d 641 (“If an attorney’s decisions can be explained by a
reasonable trial strategy, the defendant has necessarily failed to
show deficient performance.”). By allowing the court to consider
the psychosexual evaluation, Counsel was able to provide actual
support for his argument that Wilkes had made significant
progress in addressing the origin of his abusive behavior and
had taken steps to positively change his life. In other words, the
psychosexual evaluation served as a starting point or benchmark
to allow the court to discern the trajectory of Wilkes’s progress in
responding to sex-offender treatment. As Wilkes argues on
appeal, “[i]n essence, [Wilkes’s current therapist’s] letters show
how much had changed with respect to Wilkes, his treatment,
and his rehabilitation since 2013 when [the psychologist] issued
his [psychosexual evaluation].” Put simply, Counsel could have
reasonably concluded that the court needed to consider the
psychosexual evaluation to discern Wilkes’s arc of progress
toward accepting responsibility for his actions and eschewing
the thinking and behavior that led him to engage in unlawful
sexual activity with minors years earlier.
¶27 Moreover, if the psychosexual evaluation was reliable and
relevant, any objection to its consideration during sentencing
would have been futile, for it is well-established that courts are
20190216-CA 11 2020 UT App 175State v. Wilkes
allowed to rely on all relevant and reliable information in
sentencing: “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); accord State v. Akers, 2018 UT App 235,
¶ 13, 438 P.3d 70; State v. Christensen, 2015 UT App 268, ¶ 3, 362
P.3d 300 (per curiam). Thus, objecting to the court’s
consideration of a relevant and reliable psychosexual evaluation
would be futile, and “[a] futile motion necessarily fails both the
deficiency and prejudice prongs of the Strickland analysis
because it is not unreasonable for counsel to choose not to make
a motion that would not have been granted, and forgoing such a
motion does not prejudice the outcome.” State v. Makaya, 2020
UT App 152, ¶ 9, petition for cert. filed, Dec. 14, 2020 (No.
20200911).
¶28 Wilkes has not carried his burden to show that a
reasonably competent attorney would have objected to the
psychosexual evaluation as unreliable or irrelevant. His basic
argument is that the psychosexual evaluation was necessarily
“outdated, unreliable, and irrelevant to sentencing” because it
could not—given the date that it was written—“take into
account all of the rehabilitative steps Wilkes had successfully
taken prior to sentencing.” Wilkes further argues that the
psychosexual evaluation “generated nearly six years prior to
sentencing in [the second case], was not probative of who Wilkes
was at the time of sentencing” because it had been “superseded”
by the letter describing his progress from his current therapist.
But being six years old does not—standing alone—make
information unreliable or irrelevant, and Wilkes points us to no
authority supporting such a proposition. 4 Nor has Wilkes
4. Wilkes cites State v. McClendon, 611 P.2d 728 (Utah 1980), but
McClendon merely states the unarguably correct principle that
(continued…)
20190216-CA 12 2020 UT App 175State v. Wilkes
presented any authority to support his argument that newer
information “supersedes” older information such that the older
information must be disregarded as irrelevant or unreliable.
¶29 To the contrary, the information in the psychosexual
evaluation, although dated, remains reliable and relevant. As to
reliability, Wilkes makes no claim that the psychosexual
evaluation and assessment are inaccurate or were prepared by
an unqualified individual. In fact, that evaluation formed the
basis for the sex-offender treatment that Wilkes’s current
therapist points to as having successfully been completed.
Further, the evaluation was conducted by a licensed
psychologist and approved sex-offender treatment provider with
the Utah Department of Corrections.
¶30 Moreover, the psychosexual evaluation prepared for the
first case was applicable to Wilkes’s sentencing because it
contained relevant information from the time period in which
Wilkes abused NK. The evaluation was prepared after Wilkes
had abused NK but before he was charged in the second case.
Yet during the evaluation, Wilkes denied ever having sexual
contact with anyone under seventeen years of age, even though
he had abused NK a year earlier. The fact that Wilkes denied or
minimized his sexual abuse of minors after he had been
(…continued)
“[a] sentence in a criminal case should be appropriate for the
defendant in light of his background and the crime committed
and also serve the interests of society which underlie the
criminal justice system.” Id. at 729. It says nothing about the
appropriateness of a court’s consideration of a previously
generated evaluation. Rather, McClendon states that a
defendant’s juvenile court record “may reveal a pattern of law
breaking as well as a defendant’s response to previous
rehabilitative efforts which bear directly upon the
appropriateness of the sentence.” Id.
20190216-CA 13 2020 UT App 175State v. Wilkes
convicted of unlawful sexual activity with SV and after he had
sexually abused NK is certainly relevant to his sentencing for
unlawful sexual conduct involving NK. That Wilkes
downplayed his actions in 2013 around the very time he abused
NK cannot help but inform the court’s consideration of what
sentence he should receive in 2019 for that very abuse. See State
v. Monzon, 2016 UT App 1, ¶ 13, 365 P.3d 1234 (“Except for
constitutional restraints, the [district] court has broad discretion
in imposing sentence within the statutory scope. The court must
be permitted to consider any and all information that reasonably
may bear on the proper sentence for the particular defendant,
given the crime committed.” (quotation simplified)).
¶31 For the foregoing reasons, we conclude that Wilkes has
not proved that Counsel rendered deficient performance in not
objecting to the court’s consideration of the psychosexual
evaluation at sentencing.
II. Abuse of Discretion
¶32 Wilkes next argues that the court abused its discretion in
sentencing him to prison instead of probation. Specifically,
Wilkes asserts that the court did not “adequately consider his
rehabilitative needs” and that he had already been punished by
having spent ten months in prison prior to his initial appeal. 5
5. Wilkes also argues that the court abused its discretion
“because it did not adequately consider the impact Wilkes’s
then-pending 402-reduction motion would have had on his
criminal history assessment score.” See supra ¶ 12. However, the
court did consider the potential impact of granting the motion
and concluded that it would not make a difference in sentencing.
As Wilkes points out in his brief, granting the motion would
have reduced his criminal history assessment score by two
points, but his reduced score would still place him in the
(continued…)
20190216-CA 14 2020 UT App 175State v. Wilkes
¶33 “Criminal sentences should be appropriate for the
defendant in light of his background and the crime committed
and also serve the interests of society which underlie the
criminal justice system.” State v. Gasper, 2018 UT App 164, ¶ 25,
436 P.3d 200 (quotation simplified). “We afford the sentencing
court wide latitude and will reverse a sentencing decision only if
it is an abuse of the judge’s discretion.” State v. Scott, 2017 UT
App 103, ¶ 10, 400 P.3d 1172 (quotation simplified). And “an
abuse of discretion results when the judge fails to consider all
legally relevant factors or if the sentence imposed is clearly
excessive.” State v. Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d
1167 (quotation simplified). “In other words, an abuse of
discretion results only if no reasonable person would take the
view adopted by the district court.” Gasper, 2018 UT App 164,
¶ 26 (quotation simplified).
¶34 Moreover, “in considering a sentence, there is no
entitlement or right to probation, but rather, granting probation
is ‘within the complete discretion of the [district] court.’” State v.
Ward, 2009 UT App 164U, para. 2 (per curiam) (quoting State v.
Rhodes, 818 P.2d 1048, 1049 (Utah Ct. App. 1991)).
“Sentencing . . . necessarily reflects the personal judgment of the
court” and involves weighing “the many intangibles of
character, personality, and attitude, of which the cold record
gives little inkling.” State v. Duran, 2011 UT App 319, ¶ 2, 263
P.3d 538. (quotation simplified). “A sentencing court is
empowered to place a defendant on probation if it will best serve
the ends of justice and is compatible with the public interest.”
State v. Cline, 2017 UT App 50, ¶ 7, 397 P.3d 652 (quotation
(…continued)
presumptive imprisonment category on the sentencing matrix.
And as we explain, “the fact that the [district] court assessed the
relevant factors differently than [Wilkes] would have liked does
not indicate that it exceeded its discretion.” See State v. Bunker,
2015 UT App 255, ¶ 5, 361 P.3d 155 (quotation simplified).
20190216-CA 15 2020 UT App 175State v. Wilkes
simplified). Consequently, “the decision of whether to grant
probation must of necessity rest within the discretion of the
judge who hears the case.” State v. Legg, 2018 UT 12, ¶ 34, 417
P.3d 592.
¶35 Wilkes’s complaint essentially boils down to the assertion
that the court “did not adequately consider [his] rehabilitative
needs when it sentenced him to prison.” But Wilkes must set
forth more than mere disagreement with how the court weighed
mitigating and aggravating factors to show that the court abused
its discretion in imposing his sentence. After all, “not all
aggravating and mitigating factors are equally important, and
one factor in mitigation or aggravation may weigh more than
several factors on the opposite scale.” Cline, 2017 UT App 50, ¶ 7
(quotation simplified). “Ultimately, [Wilkes] can show an abuse
of discretion in the district court’s weighing of the relevant
factors only by demonstrating that no reasonable person would
take the view taken by the sentencing court.” See State v. Wood,
2018 UT App 98, ¶ 12, 427 P.3d 452 (quotation simplified).
¶36 And Wilkes cannot demonstrate that the court sentenced
him in an unreasonable fashion. As an initial matter, we note
that the court followed AP&P’s sentencing recommendation,
suggesting that the court’s weighing of the factors in sentencing
was not a view that “no reasonable person would take.” See id.(quotation simplified); see also Rita v. United States, 551 U.S. 338,
347 (2007) (explaining that when a sentencing commission and a
sentencing judge “have reached the same conclusion as to the
proper sentence in the particular case[,] that double
determination significantly increases the likelihood that the
sentence is a reasonable one” (quotation simplified)). More
specifically, the court considered the second PSI, which
recounted Wilkes’s extensive criminal history; the predatory
nature of the sexual abuse he inflicted on NK; Wilkes’s
minimization of his sexually abusive conduct toward minors; his
denial that he had sexual contact with anyone under seventeen
after he had abused NK; his longstanding lack of victim
20190216-CA 16 2020 UT App 175State v. Wilkes
empathy; and the impact of his abusive behavior on NK. On the
other hand, the court considered mitigating factors, specifically
that Wilkes had attended school, had already served
approximately ten months in prison, had completed treatment,
had demonstrated the ability to pay restitution, and had
committed no crimes since he was charged in the second case.
Ultimately, after having balanced these factors, the court decided
that the aggravating factors outweighed the mitigating factors
and sentenced Wilkes to prison rather than probation. Thus, in
the final analysis, Wilkes merely disagrees with the court’s
sentencing decision, but he has not demonstrated that the court
abused its discretion in imposing a prison sentence. See State v.
Alvarez, 2017 UT App 145, ¶ 6, 402 P.3d 191 (“[D]isagreement
with how the sentencing court weighed aggravating and
mitigating factors . . . is insufficient to demonstrate an abuse of
discretion.”).
¶37 Wilkes also asserts that the “court overemphasized the
importance of punishment.” But a review of the court’s
statements in this regard indicates otherwise. Rather than
emphasizing punishment, the court stated that punishment
plays an important role in providing reparation to victims and
society and that Wilkes “still [had] some reparations left to make
in this case.” And Wilkes fails to acknowledge that it is well-
established that “rehabilitation is not the only factor the trial
court may consider when making a sentencing determination.
Other factors include deterrence, punishment, restitution, and
incapacitation.” State v. Rhodes, 818 P.2d 1048, 1051 (Utah Ct.
App. 1991); accord State v. Sotolongo, 2003 UT App 214, ¶ 5, 73
P.3d 991; State v. Tompkins, 2002 UT App 344U, para. 2. Thus, we
are satisfied that the district court acted appropriately in
considering the reparative aspect of punishment in this context.
¶38 Because Wilkes has shown nothing more than mere
disagreement with the weighing of the evidence presented in
sentencing, we conclude that the court did not abuse its
discretion in sentencing Wilkes to prison instead of probation.
20190216-CA 17 2020 UT App 175State v. Wilkes
CONCLUSION
¶39 Counsel did not render ineffective assistance by not
objecting to the court’s appropriate consideration of the
psychosexual evaluation prepared for the first case, because
there was a sound tactical reason to rely on the information the
evaluation contained and because it was reasonable for Counsel
to view the evaluation as relevant and reliable. And because the
court was permitted to consider and weigh factors beyond
Wilkes’s rehabilitative needs during sentencing, it did not abuse
its discretion by denying probation and imposing a prison
sentence.
¶40 Affirmed.
20190216-CA 18 2020 UT App 175