State of Utah v. Laxton

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State of Utah,
Plaintiff and Appellee,

v.

Kelly M. Laxton,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990076-CA

F I L E D
December 9, 1999
  1999 UT App 365 -----

Seventh District, Moab Department
The Honorable Lyle R. Anderson

Attorneys:
Happy Morgan, Moab, for Appellant
Jan Graham and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Greenwood, Davis, and Orme.

ORME, Judge:

We have determined "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

Sentencing decisions rest in the sound discretion of the trial court. We will not substitute our own judgment unless the court abused its discretion, i.e., acted with inherent unfairness, failed to consider the legally relevant factors, or imposed an excessive sentence. See State v. Schweitzer, 943 P.2d 649, 651 (Utah Ct. App. 1997); State v. Montoya, 929 P.2d 356, 358 (Utah Ct. App. 1996).

Utah Code Ann. § 76-3-401(4) (1999) provides that, in determining whether to impose consecutive sentences, a trial court "shall consider the gravity and circumstances of the offenses and the history, character, and rehabilitative needs of the defendant." While defendant is correct that sentencing determinations may not be based on unreliable or inaccurate information, see State v. Howell, 707 P.2d 115, 118 n.2 (Utah 1985), we do not share defendant's view that the Presentence Investigation Report requested and relied upon by the court in determining defendant's sentence was deficient or biased. The evaluator addressed all the factors listed in section 76-3-401(4), including the defendant's rehabilitative needs, and neither mischaracterized nor overemphasized the twenty-two of defendant's thirty-two arrests that did not lead to prosecutions. See Utah Code Ann. § 76-3-401(4) (1999).

The comprehensive, ten-page presentence report was before the trial court and the record reveals defense counsel, prior to sentencing, had the opportunity to voice any concerns about the report and once again attempt to persuade the court that consecutive sentences would be inappropriate. The record before us demonstrates that the trial court properly considered all the required factors and imposed a reasonable sentence.

Defendant argues his case is similar to State v. Galli, 967 P.2d 930 (Utah 1998), and State v. Strunk, 846 P.2d 1297 (Utah 1993). We find State v. Montoya, 929 P.2d 356 (Utah Ct. App. 1996), more on point. Like in Montoya, defendant's "case presents facts dissimilar to those found determinative in . . . Strunk" and Galli. "[E]xtreme youth and the absence of prior violent crimes are not at issue." Id. In fact, defendant was thirty-six-years old at the time of sentencing and has an extensive criminal record. Including the three felony convictions underlying this appeal, defendant has been convicted of nine felonies and four misdemeanors. Although he was granted the privilege of parole on three occasions, twice his parole was revoked and he was returned to prison.

In its ruling from the bench, the trial court said, "According to the matrix, [defendant] will spend four and a half years in prison with this sentence, and that is not too much, given his history." We cannot say the trial court abused its broad discretion in making this determination.

Affirmed.
 
 
 

_____________________

Gregory K. Orme, Judge

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WE CONCUR:
 
 
 
 

_____________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 

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James Z. Davis, Judge