State v. Cummings

State v. Cummings

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

John Gardner Cummings,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020844-CA
 

F I L E D
(September 23, 2004)
 

2004 UT App 332

 

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Third District, Salt Lake Department

The Honorable Timothy R. Hanson

Attorneys: Patrick V. Lindsay, Provo, for Appellant

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Greenwood.

PER CURIAM:

    John Gardner Cummings appeals his sentence to the maximum term of fifteen years to life for Sodomy on a Child, a first degree felony. We affirm.

    Cummings argues that "[t]he trial court committed plain error in sentencing him to the maximum minimum mandatory sentence available without identifying and weighing on the record all significant mitigating factors." "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, 456 (Utah Ct. App. 1993).

    Sodomy on a Child is "punishable by imprisonment for an indeterminate term of 6, 10, or 15 years and which may be for life." Utah Code Ann. § 76-5-403.1 (2003). "If a statute under which the defendant was convicted mandates that one of three stated minimum terms shall be imposed, the court shall order imposition of the term of middle severity unless there are circumstances in aggravation or mitigation of the crime." Utah Code Ann. § 76-3-201(6)(a) (2003). To impose the upper term, a trial court must "set forth on the record the facts supporting and reasons for imposing the upper . . . term." Id. § 76-3-201(6)(d). The trial court imposed the upper term of fifteen years to life, but declined to impose consecutive sentences.

    The court noted the following mitigating factors: (1) good family upbringing; (2) an attitude amenable to accepting responsibility; (3) no problems in jail; and (4) expression of concern for the victim. In support of its sentence, the court stated:

When I consider[] all the issues here with regard to potential mitigating circumstances and aggravating circumstances, . . . I cannot conclude that this is not an especially egregious situation. The three of you were involved in sex with a 13[-]year[-]old child, you were displaying pornographic materials, you were the one that was involved in the videotaping, you were videotaped . . . . There [were] drugs and alcohol at this house that were given to minors. As I've indicated, there was pornographic material. Under the circumstances, . . . I really have no alternative but to make a determination here that this is such an aggravated case for the reasons I've suggested, that even though you have expressed some remorse here today and some concern for the victim that this still requires the imposition of the minimum term of 15 years to life in the Utah State Prison.

    Cummings did not object to the alleged failure to consider and weigh all relevant factors, but claims on appeal that the court committed plain error by not making specific findings on each factor. Specifically, Cummings contends the court did not consider the victim's misrepresentation of her age, the lack of prior history of such offenses, exceptional cooperation with law enforcement, and no problems in jail as mitigating factors. The State contends that the trial court identified the applicable mitigating and aggravating factors and appropriately weighed them. We agree.

    The record reflects that trial court "set forth on the record the facts supporting and reasons for imposing" the fifteen year term. Utah Code Ann. § 76-3-201(6)(d). The trial court rejected the victim's misrepresentation of her age as a mitigating factor, stating that "this is a situation where you were involved in sex with a 13-year-old, knowingly or not, it makes no difference." The court stated that it reviewed the presentence report; therefore, it was necessarily informed that Cummings had no prior history of sexual offenses. See State v. Helms, 2002 UT 12,¶13, 40 P.3d 626 (concluding court's statement that it had reviewed the presentence report was evidence that the court considered information contained therein in sentencing). The court specifically noted Cummings's good family upbringing and the letter written by his mother. In addition, his family support was described in the presentence report. Finally, Cummings contends that the trial court did not consider his "exceptional cooperation with law enforcement." Counsel argued at sentencing that Cummings voluntarily provided the videotape, first in edited form in an attempt to demonstrate to the Salt Lake City detective that the sexual activity was consensual, and later in its original form only after FBI questioning. These facts do not support an inference that Cummings was exceptionally cooperative.

    The trial court identified and weighed mitigating and aggravating factors applicable to this case, and stated the basis for its imposition of the highest minimum mandatory term. The trial court did not err by sentencing Cummings to the maximum term. Accordingly, we affirm the sentence.

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Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

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Pamela T. Greenwood, Judge