State of Utah v. Hodges

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Bobby Hodges,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000139-CA

F I L E D
November 24, 2000 2000 UT App 332 -----

Fifth District, Beaver Department
The Honorable J. Philip Eves

Attorneys:
Von J. Christiansen, Beaver, for Appellant
Jan Graham and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges Greenwood, Davis, and Orme.

GREENWOOD, Presiding Judge:

Defendant Bobby Hodges appeals his conviction of attempted assault by a prisoner, a class A misdemeanor, in violation of Utah Code Ann. §§ 76-5-102 and 76-5-102.5 (1999),(1) arguing that the trial court erred in ordering him to pay restitution and sentencing him to a consecutive prison term. We affirm.

Defendant first claims the trial court abused its discretion by ordering him to pay a reduced restitution amount within six months of the date of sentencing or full restitution if paid later. Under Utah's restitution statute, "[w]hen a person is convicted of criminal activity that has resulted in pecuniary damages, in addition to any other sentence it may impose, the court shall order that the defendant make restitution . . . ." Utah Code Ann. § 76-3-201(4)(a)(i) (1999) (emphasis added). This provision "impose[s] a nondiscretionary duty upon [the trial court] to order . . . restitution." State v. Stirba, 972 P.2d 918, 922 (Utah Ct. App. 1998). Once restitution is ordered, we will not disturb that order "[u]nless a trial court exceeds the authority prescribed by law or abuses its discretion." State v. Twitchell, 832 P.2d 866, 868 (Utah Ct. App. 1992). "'An abuse of discretion may be manifest if the actions of the judge in sentencing were "inherently unfair" or if the judge imposed a "clearly excessive" sentence.'" State v. Wright, 893 P.2d 1113, 1120 (Utah Ct. App. 1995). However, we "may find an abuse of discretion only if we conclude that 'no reasonable [person] would take the view adopted by the trial court.'" State v. Schweitzer, 943 P.2d 649, 651 (Utah Ct. App. 1997) (alteration in original) (citation omitted).

In the instant case, the trial court's order was based on defendant's representations at the sentencing hearing, which differed from what defendant said a month earlier at the plea hearing. During the sentencing hearing, when the court asked when defendant would pay the $10,000 under the proposed structured restitution plan, defendant's counsel responded, "Mr. Hodges informs me that the full [$]10,000 could be paid within six months." Furthermore, defendant's counsel stated: "Mr. Hodges informs me that by collecting funds from family members and from friends he's able to come up with the $10,000 which he would be able to have paid as restitution in the very near future."

Under Utah's restitution statute, the court could have ordered full restitution without offering a reduced restitution payment option. See Utah Code Ann. § 76-3-201(4)(a)(i) (1999). In this case, however, the court offered defendant a reduced restitution payment option because defendant himself represented that he could pay, and the victim, under this scenario, could have recovered $10,000 promptly if defendant had performed as he had represented.

Under these circumstances, we hold that the trial court did not abuse its discretion in ordering restitution and allowing for reduced restitution if paid earlier, i.e., within six months of the order.

Defendant also claims the trial court should not have sentenced him to a consecutive sentence. Defendant further claims that the court was obliged to make findings to support its decision to sentence him to a consecutive sentence, relying on section 76-3-401(4) of the Utah Code to support his argument.

Section 76-3-401(4), however, applies to crimes committed by persons other than those incarcerated. Compare Utah Code Ann. § 76-3-401(4) (1999) (requiring court to "consider the gravity and circumstances of the offenses and the history, character, and rehabilitative needs of the defendant in determining whether to impose consecutive sentences"), with id. at -401(2) (addressing sentences for crimes committed by inmates). The present case involves a crime committed by a prisoner; thus, section 76-3-401(4) is inapplicable, and defendant's reliance on this provision and the cases decided under it is misplaced.

Here, where the assault was committed while the defendant was imprisoned, the applicable statute presumes the term is to be consecutive unless the court finds that such a sentence would be inappropriate. See id. at -401(2) ("The court shall order that sentences for state offenses run consecutively if the later offense is committed while the defendant is imprisoned . . . unless the court finds and states on the record that consecutive sentencing would be inappropriate."). The obvious purpose of section 76-3-401(2) is to deter prisoners from committing crimes while they are incarcerated. If the court finds that a consecutive sentence is appropriate, the court need not make findings. Furthermore, the fact that another inmate provided a letter at sentencing indicating that defendant acted in self-defense does not change our analysis. The trial court is entitled to disregard or find not credible a statement that defendant acted in self-defense, especially when it surfaces belatedly. Accordingly, the trial court did not abuse its discretion in sentencing defendant to a consecutive rather than concurrent prison term.

In sum, the trial court did not abuse its discretion when it ordered defendant to pay restitution and sentenced him to a consecutive prison term. We therefore affirm.
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 
 
 

______________________________
James Z. Davis, Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge

1. Section 76-5-102 was amended after this case was heard by the trial court. See Utah Code Ann. § 76-5-102 (Supp. 2000) (adding subsection (3)(a) designation, adding subsection (3)(b), and making two related changes). However, this amendment has no bearing on the outcome of this case.