State of Utah v. Sisk

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State of Utah v. Sisk

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Deborah Jo Ann Sisk,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 981149-CA

F I L E D

(March 11, 1999)

1999 UT App 077

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Fifth District, Cedar City Department

The Honorable Robert T. Braithwaite

Attorneys:  Floyd W. Holm and Daniel T.A. Cotts, Cedar City, for

Appellant

Scott M. Burns, Cedar City, for Appellee

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Before Judges Wilkins, Davis, and Jackson.

PER CURIAM:

When a defendant raises an ineffective assistance claim for the first time on appeal, the claim will be reviewed only if "the trial record is adequate to permit decision of the issue." State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991); see also State v. Garrett, 849 P.2d 578, 580 (Utah Ct. App.), cert. denied, 860 P.2d 943 (Utah 1993) (stating that we can only entertain an ineffective assistance of counsel claim on direct appeal "if the record is adequate to permit a decision"). There is inadequate support in the record for us to consider Sisk's claim of ineffective assistance of counsel. No transcript of the trial proceedings was ordered and the video tape in question was never made a part of the record on appeal. Accordingly, we must presume the regularity of the proceedings and cannot consider Sisk's claim of ineffective assistance.

We also reject Sisk's claim that the trial court's imposition of the probation term that she not own or possess animals constituted cruel and unusual punishment. According to the Eighth Amendment to the U.S. Constitution, "[e]xcessive bail shall not be required; excessive fines shall not be imposed; nor cruel and unusual punishment inflicted." Article I, Section 9 of the Utah Constitution similarly states that, "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Persons arrested or imprisoned shall not be treated with unnecessary rigor." The standard for cruel and unusual punishment claims is "whether the sentence imposed in proportion to the offense committed is such as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances." State v. Gardner, 947 P.2d 630, 633 (Utah 1997) (citations omitted). "[T]o avoid invalidation as cruel and unusual punishment under article I, section 9 of the Utah Constitution, a punishment inflicted by the State must be measured proportionally to the offense it is intended to punish." Id. at 639.

The suspended sentence and special conditions of probation are reasonably related to Sisk's rehabilitation and are proportional to the charges for which she was convicted. "'Probation' is an act of grace by the court suspending the imposition or execution of a convicted offender's sentence upon prescribed conditions." Utah Code Ann. § 77-27-1(10) (1995). A court "imposes probation as a privilege, not a right, in order to attempt to rehabilitate defendants rather than merely punish them." State v. Archuleta, 812 P.2d 80, 85, n.7 (Utah Ct. App. 1991). Conditions of probation may vary, "but often include forfeiting certain rights and freedoms, such as possessing a gun, communicating with the victim, drinking alcoholic beverages, and freely traveling out of state." Rawlings v. Holden, 869 P.2d 958, 961 (Utah Ct. App. 1994). The requirement that Sisk not own or possess animals during her probation is in keeping with these parameters. She was convicted of 36 counts of cruelty to animals, five of those were aggravated offenses. Given Sisk's demonstrated inability to care for animals, the requirement that she not own or possess animals for a probationary period is not disproportionate to her crime and, thus, does not constitute cruel and unusual punishment.

Sisk's original sentence is affirmed.(1)

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Michael J. Wilkins,

Presiding Judge

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James Z. Davis, Judge

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Norman H. Jackson, Judge

1. This decision only concerns Sisk's appeal of her original sentence and the original terms of her probation. After the filing of the subject appeal, the trial court has modified the terms of Sisk's probation twice, but she has not, to our knowledge, appealed from those probation modifications. See Utah Code Ann. § 77-18-1.