State v. Karren

2017 UT App 163THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
VANCE KARREN,
Appellant.
Per Curiam Opinion
No. 20160004-CA
Filed August 31, 2017
Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 151401934
Diana Kathryn Pierson and Christine Seaman,
Attorneys for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
Before JUDGES MICHELE M. CHRISTIANSEN, JILL M. POHLMAN, and
DIANA HAGEN.
PER CURIAM:
¶1 Vance Karren appeals his sentence of zero-to-five years in
prison following his conviction for attempted sexual abuse of a
child, a third degree felony. We affirm.
¶2 We review sentencing decisions for an abuse of discretion,
State v. Neilson, 2017 UT App 7, ¶ 15, 391 P.3d 398, and will
conclude that such an abuse occurred only “if it can be said that
no reasonable [person] would take the view adopted by the
[sentencing] court,“ State v. Valdovinos, 2003 UT App 432, ¶ 14, 82
P.3d 1167 (first alteration in original) (citation and internal
quotation marks omitted). A district court has broad discretion
in deciding whether to order probation, because the “granting or
State v. Karren
withholding of probation involves considering intangibles of
character, personality and attitude.” State v. Rhodes, 818 P.2d
1048, 1049 (Utah Ct. App. 1991) (citation and internal quotation
marks omitted). “The defendant is not entitled to probation, but
rather the court is empowered to place the defendant on
probation if it thinks that will best serve the ends of justice and is
compatible with the public interest.” Id. at 1051.
¶3 Karren entered a guilty plea to the amended charge of
attempted sexual abuse of a child as a third degree felony, and
the State agreed not to affirmatively recommend a prison
sentence. Adult Probation and Parole (AP&P) prepared a
presentence investigation report (PSI), which recommended that
Karren be placed on supervised probation for 36 months on
conditions that included serving 146 days with credit for 146
days already served, having no contact with children,
completing a psychosexual evaluation and any recommended
treatment, and satisfying “Group A Sex Offender” requirements.
The PSI attached letters from the child’s therapist and her
biological mother, who was not the child’s custodian. In addition
to information about the child’s condition, the therapist’s letter
contained statements characterizing Karren’s conduct toward
the child as “grooming” and included the therapist’s opinion
regarding an appropriate sentence. The letter from the biological
mother recounted additional alleged incidents between Karren
and the child and other children, made statements regarding the
impact of Karren’s conduct on the child, and gave the mother’s
opinion on the sentence the court should impose.
¶4 At sentencing, the district court stated that it had
reviewed the PSI and its attachments. The court found that the
therapist’s letter exceeded the proper role of providing
information about a patient. The court therefore struck the letter
from the record and stated that the court would not consider it.
The district court also refused to hear from a third person who
wished to address the court about uncharged allegations.
Finally, noting that the child was in the custody and
20160004-CA 2 2017 UT App 163State v. Karren
guardianship of her grandmother (Grandmother), the court
allowed only Grandmother to address the court.
¶5 Defense counsel argued that the court should adopt
AP&P’s recommendation to place Karren on probation and
emphasized Karren’s remorse, cooperative attitude, willingness
to participate in treatment, lack of any criminal history, and
stable residence and family support. Counsel argued that Karren
would benefit from sex offender treatment. The prosecutor
acknowledged the State’s agreement not to recommend a prison
term but stated that additional jail time and treatment were
appropriate.
¶6 Grandmother addressed the court, stating that, since the
events, the child was fearful of being separated from
Grandmother, did not feel safe, and experienced nightmares.
Citing specific examples of his conduct, Grandmother gave her
opinion that Karren “had no self-control when it comes to
children.” Grandmother stated that her family needed time to
heal and requested that the judge consider the child’s needs at
sentencing. Addressing the court at sentencing, Karren
expressed remorse for the trauma that the child suffered. He
stated that he was “being over-affectionate” and “crossed a
boundary that [he] shouldn’t have.”
¶7 The district court acknowledged AP&P’s probation
recommendation and Karren’s need for treatment, but the court
did not agree that Karren should be released from jail and placed
on probation at that time. The court reiterated that it was
“looking at what happened with this child and Mr. Karren.” The
court stated that prison would not help Karren and “probation
and treatment would help him more.” However, the court stated
that “overriding all of that is my view that this sort of thing just
deserves a serious punishment.” Despite Karren’s lack of
criminal record and the other mitigating circumstances, the court
concluded that, even if Karren’s unadmitted psychosexual report
were “perfectly glowing,” the offense required a prison term,
20160004-CA 3 2017 UT App 163State v. Karren
and it declined to follow AP&P’s recommendation of probation.
The district court stated that, although it did not fully accept the
representations regarding the impact on the child, the court did
not believe that the conduct supported placing Karren on
probation.
¶8 Karren argues that the district court abused its discretion
by sentencing him to prison instead of placing him on probation
without adequately considering “the intangible factors
supporting probation, including his character, attitude, and
rehabilitative needs.” But a defendant in a criminal case “is not
entitled to probation.” State v. Rhodes, 818 P.2d 1048, 1051 (Utah
Ct. App. 1991. An appellate court will not overturn the denial of
probation unless it is “clear that the actions of the judge were so
inherently unfair as to constitute an abuse of discretion,” id.(emphasis omitted) (citation and internal quotation marks
omitted), and Karren has not demonstrated that the district
court’s decision to sentence him to the statutory prison term,
rather that placing him on probation, was inherently unfair.
Karren’s argument is essentially that the district court did not
appropriately weigh the factors that supported probation. This
“amounts to a disagreement with how the sentencing court
weighed aggravating and mitigating factors. As we have
previously stated, this is insufficient to demonstrate an abuse of
discretion.” State v. Alvarez, 2017 UT App 145, ¶ 6.
¶9 Karren also argues that the district court relied on
unreliable and irrelevant accusations of uncharged child abuse.
This claim lacks support in the record. The record reflects that
the district court limited its consideration to the conduct that
formed the basis for the present charges, going so far as striking
the therapist’s letter and refusing to receive information from a
third party regarding uncharged conduct.
¶10 Accordingly, we affirm.
20160004-CA 4 2017 UT App 163