State of Utah v. Appis

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State of Utah v. Appis, Case No. 20000255-CA, Filed January 25, 2001 IN THE UTAH COURT OF APPEALS


State of Utah,
Plaintiff and Appellee,


Dan Appis,
Defendant and Appellant.

(Not For Official Publication)

Case No. 20000255-CA
January 25, 2001 2001 UT App 22 -----

Seventh District, Moab Department
The Honorable Lyle R. Anderson

Happy Morgan, Moab, for Appellant
Mark L. Shurtleff and Jeffrey T. Colemere, Salt Lake City, for Appellee


Before Judges Jackson, Bench, and Davis.

BENCH, Judge:

"We review the sentencing decisions of a trial court for abuse of discretion." State v. Houk, 906 P.2d 907, 909 (Utah Ct. App. 1995). A trial court abuses its discretion if it imposed a sentence "without considering all the legally relevant factors." State v. Schweitzer, 943 P.2d 649, 651 (Utah Ct. App. 1997) (citation omitted). Additionally, we find abuse of discretion "only if it can be said that no reasonable [person] would take the view adopted by the trial court." State v. Gerrard, 584 P.2d 885, 887 (Utah 1978).

A judge's discretion does not "extend to imposition of a sentence made in total ignorance of the background of the defendant." State v. Carson, 597 P.2d 862, 864 (Utah 1979). "When a judge undertakes to impose a sentence, he should be familiar with the presentence report and whatever diagnostic evaluations have been conducted." Id. at 865. Here, the three relevant reports are the pre-sentence investigation report (PSI), the diagnostic evaluation, and the psychological evaluation. The record shows that the sentencing judge was familiar with all three.

Upon review of the PSI, the judge followed the investigator's recommendation and ordered diagnostic and psychological evaluations. At the sentencing hearing, the judge heard defense counsel's objections to and corrections of alleged inaccuracies in the diagnostic evaluation report. Defense counsel also pointed out that the psychological evaluation report recommended an "inpatient substance abuse treatment program." Finally, Appis himself read a brief statement to the court. After receiving all of this information, the judge found "that where defendant takes issue with the [diagnostic evaluation] report, that his position is incorrect." The judge then concluded, "I'm impressed with the [diagnostic evaluation] report, and that it's covered all of the necessary issues and that it's accurate. . . . I'm going to follow the recommendations." Although the judge did not independently articulate a list of reasons for the imposed sentence, all of the relevant information was brought to the judge's attention through both the written reports and the oral statements of Appis and his counsel. After being fully appraised of Appis's background, the judge exercised his discretion to decide what weight should be given the various sources of information and imposed the sentence accordingly. See Carson, 597 P.2d at 864 (stating judge has discretion in determining what weight should be given to the sentencing recommendations contained in evaluation reports).

Appis cites State v. Strunk, 846 P.2d 1297 (Utah 1993), and other similar cases to support his contention that the judge's familiarity with a defendant's background is not enough; rather, the judge must consider individual aggravating and mitigating circumstances on the record. See id. at 1300. Appis argues that by briefly endorsing the diagnostic evaluation and deciding to follow its sentencing recommendation, the judge failed to properly consider the relevant aggravating and mitigating circumstances. See id. at 1299 (applying Utah Code Annotated § 76-3-201(5)(e) (1999)).(1) Appis's reliance upon Strunk and the other cited cases is misplaced. Each of the cited cases dealt with a minimum mandatory sentence, whereas Appis was sentenced to an indeterminate term of zero-to-five years. See Utah Code Ann. § 76-3-203(3) (1999). Section 76-3-201(6)(e) does not apply to indeterminate sentences, but rather, "govern[s] the procedural imposition of the minimum mandatory sentence." Strunk, 846 P.2d at 1299.

Moreover, Strunk is distinguishable from this case. The court in Strunk held that the trial court abused its discretion in sentencing a sixteen-year-old boy to a minimum mandatory term of twenty-four years without an on-the-record consideration of the defendant's "extreme youth and absence of prior violent crimes." Id. at 1301-1302. In this case, the only mitigating factor listed in the PSI is that the "[o]ffender is young." However, unlike the defendant in Strunk, extreme youth is not an issue here because Appis was twenty-four years old at the time of his crime. See State v. Montoya, 929 P.2d 356, 359 (Utah Ct. App. 1996) (stating a twenty-three-year-old defendant is distinguishable from the Strunk fact pattern).

Finally, the contention that the judge's failure to explain his reasons for sentencing violated Utah Code Annotated § 76-3-201(6)(d) (1999) is without merit. As with section 76-3-201(6)(e), section 76-3-201(6)(d) does not apply to indeterminate sentences. See Strunk, 846 P.2d at 1299. So long as the judge was familiar with Appis's background prior to imposing the sentence, the law does not require the judge to list or discuss either the aggravating and mitigating factors or the reasons for imposing an indeterminate-term sentence. See id.; Carson, 597 P.2d at 864. As previously discussed, the judge was very familiar with Appis's background prior to imposing the sentence.

Given the various aggravating circumstances contained in the PSI and the diagnostic evaluation, it cannot be said that "no reasonable [person] would take the view adopted by the trial court." Gerrard, 584 P.2d at 887. Accordingly, we affirm.

Russell W. Bench, Judge -----


Norman H. Jackson,
Associate Presiding Judge

James Z. Davis, Judge

1. Strunk refers to section 76-3-201(5). However, subsequent to Strunk, section 76-3-201(5) was renumbered as section 76-3-201(6).