Katoa v. State

Alfred P. Katoa,
Appellant,

v.

State of Utah,
Appellee.
 

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981699-CA

F I L E D
(December 23, 1999)

1999 UT App 379

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Third District, Salt Lake Department
The Honorable Stephen L. Henriod

Attorneys:
Catherine E. Lilly and Deborah Kreeck Mendez, Salt Lake City, for Appellant
Jan Graham and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Greenwood, Davis, and Orme.
GREENWOOD, Associate Presiding Judge:

Defendant was convicted of two counts of automobile homicide. The trial court imposed consecutive sentences, which defendant appeals. We affirm.

Utah law confers upon trial courts the authority to impose concurrent or consecutive sentences in criminal cases. See Utah Code Ann. § 76-3-401 (1995). Although "[t]he statute . . . favors concurrent sentences," State v. Strunk, 846 P.2d 1297, 1301 (Utah 1993), the trial court may impose concurrent or consecutive sentences as long as it "consider[s] the gravity and circumstances of the offenses and the history, character, and rehabilitative needs of the defendant." Utah Code Ann. § 76-3-401(4) (1999).

Utah appellate courts have long recognized that the type of sentence imposed, unless mandated by statute, is within the sound discretion of the trial court. See, e.g., State v. Gerrard, 584 P.2d 885, 887 (Utah 1978); State v. Schweitzer, 943 P.2d 649, 651 (Utah Ct. App. 1997). A manifest abuse of that discretion may exist if the trial court fails to consider the legally relevant factors, if the sentence exceeds statutory limits, or if the sentence is otherwise inherently unfair or clearly excessive. See Schweitzer, 943 P.2d at 651. Apart from these factors, "the exercise of discretion in sentencing necessarily reflects the personal judgment of the court," Gerrard, 584 P.2d at 887, and we will find an abuse of discretion "only if we conclude that 'no reasonable [person] would take the view adopted by the trial court.'" Schweitzer, 943 P.2d at 651 (quoting Gerrard, 584 P.2d at 887) (alteration in original).

As an initial matter, we conclude that the trial court's statement, made during its sentencing ruling, noting that Akauola and defendant "had been arrested, convicted and sentenced for drinking crimes and drug crimes," was harmless error at best. Defendant is correct that sentencing determinations may not be based on unreliable or inaccurate information, see State v. Howell, 707 P.2d 115, 118 n.2 (Utah 1985), but we do not believe the trial court's statement reflects an inaccuracy in the information the trial court had before it or that it based its decision on inaccurate information. The trial court addressed both Akauola and defendant as it made its ruling and continued to differentiate each defendant's culpability and past behavior. Furthermore, defendant's presentence report indicated defendant had a long history of illegal substance use, ranging from alcohol and marijuana to methamphetamine and cocaine. Although defendant had no convictions for alcohol-related offenses, he was convicted of misdemeanor possession of a controlled substance in California. Thus, the trial court's statement, although unclear, was accurate. Any error in making that statement was therefore harmless.(1)

Furthermore, defendant has not shown that the trial court abused its discretion in considering the statutory factors listed in section 76-3-401(4) of the Utah Code. The trial court's ruling indicates that it, indeed, considered the "gravity and circumstances of the offenses and the history, character, and rehabilitative needs of the defendant." Utah Code Ann. § 76-3-401(4). Moreover, the facts of this case are inapposite to cases in which the Utah Supreme Court vacated consecutive sentences because a trial court failed to adequately consider the factors in section 76-3-401(4). See State v. Galli, 967 P.2d 930, 938 (Utah 1998); State v. Smith, 909 P.2d 236, 244-45 (Utah 1995); Strunk, 846 P.2d at 1301-02. These cases are readily distinguishable, given the nature of the crime, the defendant's age, and the length of sentence imposed in each case. See State v. Montoya, 929 P.2d 356, 359-60 (Utah Ct. App. 1996). We do not find them persuasive in this instance.

We also find no merit in defendant's argument that because consecutive sentences were vacated for intentional crimes in Galli, Smith, and Strunk, his sentence, based on less culpable conduct ("at most, . . . poor judgment"), should a fortiori be vacated. As discussed above, those cases are inapposite to our analysis. Moreover, defendant does not take into account our decision in State v. Gambrell, 814 P.2d 1136, 1140-41 (Utah Ct. App. 1991), in which we upheld three consecutive sentences for three counts of negligent homicide, a crime involving less than intentional conduct.

Thus, the trial court did not abuse its broad discretion by imposing consecutive rather than concurrent sentences for defendant's two automobile homicide convictions. In light of the trial court's determination that defendant's "total disregard for the lives and safety of other people" caused "incredible damage" and resulted in the deaths of five people, we cannot say the sentences are clearly excessive, inherently unfair, or exceed the bounds of reasonableness.
 
 
 

______________________________

Pamela T. Greenwood,

Associate Presiding Judge

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WE CONCUR:
 
 
 

______________________________

James Z. Davis, Judge
 
 
 

______________________________

Gregory K. Orme, Judge
 

1. Defendant makes much of the fact that the Utah Code differentiates controlled substances from alcoholic beverages. This distinction is irrelevant because a trial court may consider any offense, whether or not a conviction occurred, in imposing a sentence. See State v. Lipsky, 639 P.2d 174, 176 (Utah 1981).