State v. Olsen Jr.

State v. Olsen Jr.

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

Robert H. Olsen Jr.,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030902-CA
 

F I L E D
(March 17, 2005)
 

2005 UT App 137

 

-----

Second District, Ogden Department

The Honorable Roger S. Dutson

Attorneys: Dee W. Smith, Ogden, for Appellant

Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee

-----

Before Judges Davis, Greenwood, and Jackson.

GREENWOOD, Judge:

    Defendant Robert H. Olsen Jr. appeals his sentence after pleading no contest to possession of methamphetamine in violation of Utah Code section 58-37-8(2), a third degree felony. See Utah Code Ann. § 58-37-8(2) (2002).

    "A sentence will not be overturned on appeal unless the trial court has abused its discretion, failed to consider all legally relevant factors, or imposed a sentence that exceeds legally prescribed limits." State v. Nuttall, 861 P.2d 454, 456 (Utah Ct. App. 1993). "'[T]he exercise of discretion in sentencing necessarily reflects the personal judgment of the court and the 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.'" Id. (alteration in original) (quoting State v. Gerrard, 584 P.2d 885, 887 (Utah 1978)).

    Defendant argues that the trial court abused its discretion by sentencing him to an indeterminate prison term of zero to five years, rather than probation, because it "failed to consider all the legally relevant factors and imposed an excessive sentence."(1) Specifically, Defendant avers that the trial court failed to consider his rehabilitative needs and lack of criminal history.

    In support of this argument, Defendant relies on State v. Galli, 967 P.2d 930 (Utah 1998). However, Galli construed only the consecutive sentencing statute--Utah Code section 76-3-401--which requires the trial court to consider the Defendant's rehabilitative needs and criminal history. See Galli, 967 P.2d at 938; see also Utah Code Ann. § 76-3-401(2) (2003). The present case does not involve consecutive sentencing. Rather, for his felony conviction, Defendant was sentenced to a single indeterminate prison term of zero to five years pursuant to Utah Code section 76-3-203(3). See Utah Code Ann. § 76-3-203(3) (2003). Thus, Galli is inapplicable.

    Moreover, a "defendant is not entitled to probation, but rather the [trial] 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. Rhodes, 818 P.2d 1048, 1051 (Utah Ct. App. 1991). "'The granting or withholding of probation involves considering intangibles of character, personality[,] and attitude, of which the cold record gives little inkling.'" Id. at 1049 (citation omitted).

    In the instant case, the trial judge had the opportunity to personally observe Defendant. As such, the trial judge, rather than the appellate court, was in the best position to determine whether prison or probation was more appropriate to "serve the ends of justice and . . . the public interest." Id. at 1051. Furthermore, Defendant avowed, before pleading, that he understood that the court could impose up to a maximum penalty of zero to five years in prison. "The fact that defendant is disappointed with the sentence imposed does not mean it is
improper." State v. Wanlass, 953 P.2d 1147, 1149 (Utah Ct. App. 1998) (per curiam).

    Accordingly, Defendant's sentence is affirmed.

______________________________

Pamela T. Greenwood, Judge

-----

WE CONCUR:

______________________________

James Z. Davis, Judge

______________________________

Norman H. Jackson, Judge

1. Although Defendant argues that the trial court imposed an "excessive sentence," he does not claim that the sentence "exceeds legally prescribed limits." State v. Nuttall, 861 P.2d 454, 456 (Utah Ct. App. 1993). To be clear, it does not. Possession of methamphetamine, a Schedule II narcotic, see Utah Code Ann. § 58-37-4(b)(iii)(B) (2002), is a third degree felony. See id. § 58-37-8(2)(b)(ii) (2002). Utah Code section 76-3-203 permits indeterminate sentencing "[i]n the case of a felony of the third degree . . . for a term not to exceed five years." Id. § 76-3-203 (2003).