State of Utah, v. Vigil

State of Utah, v. Vigil, Case No. 990950-CA , Filed February 1, 2001 IN THE UTAH COURT OF APPEALS
----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Larry Allen Vigil,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990950-CA

F I L E D
February 1, 2001 2001 UT App 28 -----

Seventh District, Moab Department
The Honorable Lyle R. Anderson

Attorneys:
Happy Morgan, Moab, for Appellant
Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee

-----

Before Judges Greenwood, 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. Gibbons, 779 P.2d 1133, 1135 (Utah 1989); 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) (quoting State v. Gerrard, 584 P.2d 885, 887 (Utah 1978)). "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." Gerrard, 584 P.2d at 887. 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 first alleges that the trial court did not give full consideration to all relevant sentencing factors and that his sentence was clearly excessive. We disagree. Utah Code Ann. § 76-3-201(6)(e) (1999) requires that "[i]n determining a just sentence, the court shall consider sentencing guidelines regarding aggravating and mitigating circumstances promulgated by the Sentencing Commission." Id. Here, the trial court relied upon the Presentence Investigation Report (PSI), and heard from defense counsel, Defendant, and the prosecutor before imposing the statutory sentence of an indeterminate term not to exceed five years. See Utah Code Ann. § 76-3-203(3) (1999) (person convicted of third degree felony may be sentenced to an indeterminate five year term). The trial court had sufficient basis to impose this sentence based upon Defendant's extensive criminal history spanning more than twenty-three years and fifty arrests, his unsuccessful completion of two earlier probations and one parole period, and his violent and erratic behavior in the case before the court. The trial court articulated its reasons for the imposition of this sentence: The evidence of criminal conduct here is so extensive and regular that I don't think I can reasonably come to any other conclusion than that the only way we will have any peace from your criminal outbursts is if you're in prison. I hear you say that you want to change, but you haven't changed in 20 years. And there are opportunities in prison to get into treatment programs. Defendant claims that the PSI had a "misleading tone" and that it was based upon "one evaluator's speculation." However, the PSI included Defendant's version of the offense, the official version of the offense, Defendant's lengthy criminal record, and background about Defendant. Defendant admitted in his written version of the offense, "That I just went crazy. look [sic] at the police reports and Im [sic] sure you'll agree." In addition, Defendant noted three mistakes in the PSI, which the trial court corrected, and Defendant explicitly pointed out to the trial court that this was his first violent crime. We are not convinced that the trial court abused its discretion when there was ample information presented at sentencing to justify the imposition of this prison sentence.(1)

Defendant also argues that the trial court abused its discretion by failing to state the reasons for his sentence as required by Utah Code Ann. § 76-3-201(6)(d) (1999).(2) Section 76-3-201(6) refers to imposing a sentence which has three optional minimum mandatory terms. See Utah Code Ann. § 76-3-201(6)(a), (d) (1999); State v. Gibbons, 779 P.2d 1133, 1137 (Utah 1989). Here, Defendant was sentenced to an indeterminate term, and thus, the statute does not apply to him.

The trial court did not abuse its discretion in sentencing Defendant to an indeterminate term of five years in prison based upon the information before the court at sentencing and the reasons set out by the court. In addition, Utah Code Ann. § 76-3-201(6)(d) (1999) is not applicable here.
 
 
 

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

WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 

______________________________
William A. Thorne, Jr., Judge

1. Defendant also argues that his alcohol problem was a mitigating circumstance, and thus, the court should have imposed an alcohol rehabilitation program instead of a prison sentence. However, the court clearly acknowledged Defendant's desire to be in a program, and the imposition of prison was not an abuse of discretion.

2. Defendant cites to Utah Code Ann. § 76-3-201(5) (restitution) in his brief. However, in his reply brief he refers to the section cited above.