State of Utah v. Hansen

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State of Utah,
Plaintiff and Appellee,

v.

Craig Hansen,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000424-CA

F I L E D
December 14, 2000
  2000 UT App 365 -----

Fourth District, Provo Department
The Honorable Lynn W. Davis

Attorneys:
Ronald H. Goodman, American Fork, for Appellant
Jan Graham and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Greenwood, Orme, and Thorne.

PER CURIAM:

Appellant Craig Hansen appeals his sentence following his conviction of attempted rape, a second degree felony. This case is before the court on a sua sponte motion for summary affirmance.

Hansen claims that the district court abused its discretion in sentencing him to 36 months of supervised probation, imposing a one-year jail term, and requiring him to serve six months in jail before being eligible for work release. Even assuming Hansen's arguments were adequately preserved for appeal, we conclude the trial court did not abuse its discretion. This court will set aside a sentence only if "the sentence represents an abuse of discretion, if the trial court judge fails to consider all legally relevant factors, or if the sentence imposed exceeds the limits prescribed by law." State v. Gibbons, 779 P.2d 1133, 1135 (Utah 1989). "[T]he appellate court can properly find abuse only if it can be said that no reasonable [person] would take the view adopted by the trial court." State v. Gerrard, 584 P.2d 885, 887 (Utah 1978). The sentence imposed was within the limits prescribed by law, and was neither "clearly excessive" nor "inherently unfair." State v. Russell, 791 P.2d 188, 192 (Utah 1990).

The transcript states that the sentence imposed was as recommended in the presentence report prepared by Adult Probation and Parole. Hansen claims on appeal that the report was based upon an incorrect factual statement and did not consider all mitigating factors. The presentence report is not included in the record. An appellant "is ultimately responsible for ensuring that we receive all portions of the record necessary to his arguments on appeal." State v. Penman, 964 P.2d 1157, 1162 (Utah Ct. App. 1998). Absent an adequate record, appellant's "assignment of error stands as a unilateral allegation which the reviewing court has no power to determine." State v. Wulffenstein, 657 P.2d 289, 293 (Utah 1982). In the face of "an inadequate record on appeal, [we] must assume the regularity of the proceedings below." State v. Miller, 718 P.2d 403, 405 (Utah 1986) (per curiam). We thus are unable to consider claims regarding the presentence report.

Hansen's claims regarding denial of work release for six months are moot because Hansen is now eligible for work release.

The judgment and sentence are affirmed.
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

______________________________
Gregory K. Orme, Judge
 
 

______________________________
William A. Thorne, Jr., Judge