State of Utah v. Herrera

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State v. Herrera

2001 UT App 393



State of Utah,
Plaintiff and Appellee,


Aaron Tomas Herrera,
Defendant and Appellant.

(Not For Official Publication)

Case No. 20010175-CA

(December 13, 2001)



Third District, Salt Lake Department
The Honorable Leslie A. Lewis

Linda M. Jones and Vernice S. Ahching, Salt Lake City, for Appellant
Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee


Before Judges Greenwood, Jackson, and Bench.

GREENWOOD, Presiding Judge:

Defendant appeals the trial court's imposition of consecutive sentences. We affirm.

Because defendant did not raise the issue below, he claims the trial court committed plain error by failing to make findings of fact on the statutory factors. This court will reverse for plain error if defendant shows: (1) "an error exists;" (2) the error should have been obvious to the trial court;" and (3) absent the error, defendant would have received a more favorable outcome. State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993). Defendant has failed to show plain error.

"Utah courts have repeatedly held that a trial court's error is not plain where there is no settled appellate law to guide the trial court." State v. Ross, 951 P.2d 236, 239 (Utah Ct. App. 1997); see also State v. Garcia, 2001 UT App 19,¶6, 18 P.3d 1123 ("To show obviousness of the error, [defendant] must show that the law was clear at the time of trial."). There is no statutory or judicial mandate requiring a trial court to make findings of fact evidencing analysis of the consecutive sentence factors contained in section 76-3-401(4).(1) Therefore, the alleged error was not obvious.

Furthermore, Utah appellate decisions that have addressed the propriety of consecutive sentences seem to indicate that as long as evidence of the factors is on the record, the reviewing court will assume that the trial court considered them. See State v Beck, 584 P.2d 870, 872 (Utah 1978) (affirming sentencing when trial court had examined the pre-sentence report); State v. Schweitzer, 943 P.2d 649, 652 (Utah Ct. App. 1997) (affirming consecutive sentences because evidence on relevant factors was in record and "defendant [did] not show trial court failed to consider these factors."). Therefore, not only was the error not obvious, it is unlikely the trial court committed error at all.

Defendant next contends that the trial court abused its discretion by failing to adequately weigh the statutory factors. In order for this court to reverse for an abuse of discretion, we must find that "no reasonable [person] would take the view adopted by the trial court." State v. Gerrard, 584 P.2d 885, 887 (Utah 1978) (citation omitted). Furthermore, we accord the trial court considerable deference because trial judges are "in the best position to assess the credibility of witnesses and to derive a sense of the proceedings as a whole, something an appellate court cannot hope to garner from a cold record." State v. Pena, 869 P.2d 932, 936 (Utah 1994).

While section 76-3-401(4) favors concurrent sentences,(2) a court may still impose consecutive sentences if the court weighs the statutory factors and determines that a defendant deserves consecutive sentences. Section 76-3-401(4) states, "A court shall consider the gravity and circumstances of the offenses and the history, character, and rehabilitative needs of the defendant in determining whether to impose consecutive sentences." Utah Code Ann. § 76-3-401(4) (1999).

Based on the evidence in the record before the trial court, we cannot say that the trial court abused its discretion. First, the trial court read the pre-sentence investigation report as corrected by defendant. Second, the trial court engaged defendant in a colloquy about many facets of the pre-sentence investigation report. Third, defendant's crime endangered many innocent people besides the victim. Fourth, defendant has a long criminal history and history of substance abuse. Finally, the trial court indicated defendant had failed to assume responsibility for his crimes. Based on the record before us, we cannot say that the trial court acted unreasonably. Therefore, because the trial court reasonably balanced these factors, the trial court did not abuse its discretion in imposing consecutive sentences.(3)

Accordingly, the trial court's sentence is affirmed.

Pamela T. Greenwood, Presiding Judge



Norman H. Jackson, Associate Presiding Judge

Russell W. Bench, Judge

1. Defendant does not argue the statute requires entry of findings of fact.

2. See Utah Code Ann. § 76-3-401(1) (1999); State v. Strunk, 846 P.2d 1297, 1301 (Utah 1993).

3. Because we hold that the trial court neither abused its discretion nor committed plain error, defendant's Rule 22(e) claim fails. See Utah R. Crim. P. 22(e) ("The court may correct an illegal sentence, or a sentence imposed in an illegal manner, at any time.").