State v. Fretheim

State v. Fretheim

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Donald William Fretheim,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040466-CA
 

F I L E D
(September 10, 2004)
 

2004 UT App 305

 

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Fifth District, Cedar City Department

The Honorable J. Philip Eves

Attorneys: J. Bryan Jackson, Cedar City, for Appellant

Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Jackson.

PER CURIAM:

    Donald Fretheim appeals from his sentence of imprisonment on second degree and third degree felony charges. This matter is before this court on its own motion for summary disposition.

    Fretheim pleaded guilty to aggravated assault and possession of a stolen vehicle in March 2004. In exchange for the plea, multiple additional charges were dropped. A presentence investigation was done before sentencing. The report recommended that Fretheim be sentenced to prison and pay fines, based on his criminal history and his high risk to reoffend. At the sentencing hearing, the trial court announced that Fretheim would be sentenced to prison for the statutory terms, but no fines would be imposed. Restitution was held open. Fretheim's sentence was entered on June 3. In the written sentencing order, a fine was imposed in addition to a prison term on the aggravated assault charge.

    Fretheim argues that the court abused its discretion in sentencing him to prison. "A sentence will not be overturned on appeal unless the trial court has abused its discretion." State v. Elm, 808 P.2d 1097, 1099 (Utah 1991). "An abuse of discretion results when the judge fails to consider all legally relevant factors or if the sentence imposed is clearly excessive." State v. Valdovinos, 2003 UT App 432,¶14, 82 P.3d 1167 (quotations and citation omitted). An appellate court may find abuse of discretion in a sentence only if no reasonable person would take the view adopted by the trial court. See id.

    Fretheim asserts that the court was unfair and harsh in sentencing him to prison. However, a 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." State v. Rhoades, 818 P.2d 1048, 1051 (Utah Ct. App. 1991). The trial court determined that prison was appropriate for Fretheim rather than probation, based on his admitted criminal history, his high risk to reoffend, and the several crimes committed within a span of about six months.

    Fretheim was sentenced to the statutorily permitted indeterminate terms for second and third degree felonies, to run concurrently. The trial court operated within its statutory discretion in imposing imprisonment. Because the terms were in the statutory range, the sentence was not clearly excessive. Under the circumstances of this case, it cannot be said that no reasonable person would take the view of the trial court that prison was appropriate.

Fretheim notes that the trial court's sentencing order was inconsistent with the oral pronouncements from the bench at the sentencing hearing. However, an oral indication of a sentence does not constitute the imposition of sentence. See State v. Todd, 2004 UT App 266,¶18. A sentence does not become final "until it is reduced to writing and signed by the court." Id. at n.3.

    The trial court did not abuse its discretion in sentencing Fretheim to prison on second and third degree felony charges. Accordingly, the sentence is affirmed.

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

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Norman H. Jackson, Judge