State v. Elting

State v. Elting

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Mark S. Elting,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20030388-CA

F I L E D

(November 26, 2004)

2004 UT App 446

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First District, Logan Department

The Honorable Thomas Willmore

Attorneys: David M. Perry, Logan, for Appellant

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Thorne.

THORNE, Judge:

Defendant Mark S. Elting appeals the sentence imposed by the trial court following his pleas of guilty to one count of rape of a child and one count of sodomy on a child. We affirm.

"This court does not disturb a sentence unless it exceeds that prescribed by law or unless the trial court has abused its discretion." State v. Baker, 963 P.2d 801, 810 (Utah Ct. App. 1998) (quotations and citations omitted). "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. Russell, 791 P.2d 188, 192-93 (Utah 1990) (quotations and citation omitted). "'If a statute under which the defendant was convicted mandates that one of three stated minimum terms shall be imposed, the court shall order imposition of the term of middle severity unless there are circumstances in aggravation or mitigation of the crime.'" State v. Diaz, 2002 UT App 288,¶27, 55 P.3d 1131 (quoting Utah Code section 76-3-201(6)(a) (Supp. 2001)), cert. denied, 63 P.3d 104 (Utah 2003). The trial court is not, however, required to label the circumstances it finds to be aggravating or mitigating; instead, trial courts merely are required to "'set forth on the record the facts supporting and reasons for imposing the upper or lower term.'" Id. (quoting Utah Code section 76-3-201(6)(a)). When a trial court complies with this requirement, it effectively satisfies section 76-3-201; however, a failure to set forth its departure reasons on the record amounts to a per se abuse of discretion. See Diaz, 2002 UT App 288 at ¶28.

Elting argues that the trial court failed to explain its reasons for imposing the upper term and that the court failed to account for several factors that mitigated his behavior. We disagree. As we read the record, the trial court gave Elting ample opportunity to establish his claimed mitigating circumstances, yet at every turn, Elting failed to produce any evidence to support his claims. Consequently, the trial court was faced with a host of unmitigated aggravating factors, many of which, if not all, were clearly identified on the record, any one of which was sufficient to support the trial court's sentence. See, e.g., Russell, 791 P.2d at 192 ("One factor in . . . aggravation may weigh more than several factors on the opposite scale.").

The trial court's order included findings that (1) Elting had sexually abused his oldest daughter several years prior to abusing the victim in this case, his youngest daughter; (2) he had threatened the victim after he had begun his course of sexual abuse, prolonging the abuse; (3) no residential treatment program would accept Elting; and (4) Elting's actions occurred during the time period covered under his plea in abeyance for a domestic violence offense. Ultimately, the trial court adopted the opinion of the diagnostic evaluator that Elting presented an extreme danger to society and that any hope of rehabilitation was predicated on a lengthy prison term coupled with treatment for his sexual deviance.

In contrast, although Elting argues that several mitigating circumstances existed, he presented no evidence to support these claims. Furthermore, when the trial court ordered an evaluation, it soon became clear that several, if not all of Elting's claims were untrue or totally unsupportable. Therefore, we have no difficulty in determining that the trial court's sentencing decision was well within its range of discretion and fully comported with the relevant requirements of section 76-3-201.

Accordingly, we affirm.

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William A. Thorne Jr., Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge