State of Utah v. Legg

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State of Utah,
Plaintiff and Appellee,

v.

John Legg, Jr.,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000428-CA

F I L E D
June 14, 2001 2001 UT App 192  -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
Catherine E. Lilly and David V. Finlayson, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeffrey T. Colemere, Salt Lake City, for Appellee

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Before Judges Jackson, Davis, and Thorne.

DAVIS, Judge:

"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, 457 (Utah Ct. App. 1993); accord State v. Schweitzer, 943 P.2d 649, 651 (Utah Ct. App. 1997). "An abuse of discretion may be manifest if the actions of the judge in sentencing were 'inherently unfair' or if the judge imposed a 'clearly excessive' sentence." State v. Russell, 791 P.2d 188, 192-93 (Utah 1990) (citation omitted). "The 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." State v. Gerrard, 584 P.2d 885, 887 (Utah 1978). Furthermore, "this discretion is not to be surrendered to a mathematical formula by which numbers of circumstances rather than weight of circumstances are determinative. The overriding consideration is that the sentence be just. One factor in mitigation or aggravation may weigh more than several factors on the opposite scale." Russell, 791 P.2d at 192.

Defendant alleges that the trial court did not consider all of the statutorily prescribed sentencing factors. We disagree. Utah Code Ann. § 76-3-401(4) (1999) states that the "[sentencing] 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." Id. The trial court's statement at sentencing shows that the court considered the gravity and circumstances of the offenses and that it was aware of Legg's drug problem and the death of his son. Additionally, Legg acknowledges that all mitigating information was before the trial court, including the pre-sentence report, statements from defense counsel and from Legg himself, and the preliminary hearing transcript. SeeSchweitzer, 943 P.2d at 652 (holding that defendant did not "show that the trial court failed to consider [consecutive sentence] factors . . . [when] mitigating evidence was presented to the trial court through defendant's testimony; his counsel's arguments; letters from the [victims], defendant's therapist, and defendant's attorney; and the Pre-sentence Investigation Report").

Moreover, Defendant's extensive criminal history spanning more than twelve years and forty-one arrests, his disciplinary history before the Prison Disciplinary Board, and his violent and erratic behavior in this case offered sufficient basis for the trial court to impose consecutive sentences.

Therefore, the trial court did not abuse its discretion in sentencing Defendant to consecutive terms based upon the information before the court at sentencing and the reasons set out by the court.
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 

______________________________
William A. Thorne, Jr., Judge