State v. Gogins

State v. Gogins

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Quentin Gogins,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020798-CA
 

F I L E D
(March 25, 2004)
 

2004 UT App 81

 

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Third District, Salt Lake Department

The Honorable Timothy R. Hanson

Attorneys: Elizabeth Hunt, Salt Lake City, for Appellant

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

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Before Judges Billings, Bench, and Thorne.

BILLINGS, Presiding Judge:

Quentin Gogins (Defendant) appeals his sentence for conviction of Sodomy of a Child, in violation of Utah Code Annotated section 76-5-403.1 (1999), a first degree felony. We affirm, but remand for the limited purpose of including the required findings on the record regarding Defendant's objections to the presentence investigation report (PSI).

Defendant argues that the trial court abused its discretion when it sentenced him to the maximum mandatory minimum sentence of fifteen years. "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). "[T]he 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." Id. (alteration in original) (quotations and citation omitted).

The crime for which Defendant was convicted, Sodomy of 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. "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) (1999). To impose an 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). Here, the trial court imposed the upper term of fifteen years.

Defendant claims that the trial court erred by failing to consider the following mitigating factors: (1) the victim misrepresented her age to Defendant; (2) Defendant was exceptionally cooperative with law enforcement; (3) Defendant had strong family support; (4) the offense represented a single incident, and Defendant had no prior history of such offenses; (5) the offense included no violence, force, or a weapon; (6) the victim suffered no physical harm or severe psychological harm; and (7) only one child was involved. The State contends that the trial court considered, and then either weighed or rejected, each of these factors. We agree.

The trial court rejected the first two factors as mitigating. While the trial court acknowledged that the victim had misrepresented her age, it found, after seeing the victim in court and on a videotape made during the offense, that the victim clearly appeared to be underage. Second, the trial court found that Defendant had not been exceptionally cooperative with law enforcement, but rather had many "write ups" demonstrating that he could not get along in jail or a custodial setting and had been less than forthcoming during the criminal investigation.

The remaining factors cited by Defendant were considered and weighed by the trial court. During Defendant's allocution, the trial court acknowledged that Defendant's family had provided him a "good upbringing." Also, while determining whether Defendant was eligible for probation, the trial court explicitly considered the remaining factors. Because the trial court's probation ruling occurred only moments before sentencing, its acknowledgment of these factors during the probation ruling is sufficient to demonstrate that it considered them during sentencing. See State v. Diaz, 2002 UT App 288,¶¶29-31, 55 P.3d 1131 (refusing to require a "mechanistic recitation" of factors to justify a sentence where the factors previously had been addressed at the hearing). Accordingly, we find that the trial court weighed these mitigating factors.

Defendant also argues that the trial court erred by weighing the following aggravating factors because the record contains no evidence to support them: (1) Defendant was involved in displaying pornographic materials during the offense, and (2) Defendant condoned sex with a thirteen-year-old girl. However, the record indicates that Defendant had sex with the victim while a pornographic movie was playing and paused to watch the movie when he later exited the room. The record also indicates that Defendant steadfastly refused to accept responsibility for the offense--i.e., during his allocution Defendant argued that he had done nothing wrong. In these circumstances, the trial court did not abuse its discretion by weighing these factors as aggravating.

In addition to the factors discussed above, the trial court set forth the following factors to support imposing the maximum term: (1) Defendant had provided alcohol and drugs to the minor victim; (2) Defendant had been on probation in Illinois when he committed the crime; (3) Defendant had claimed that racism played a role in his conviction rather than taking responsibility for his acts; (4) Defendant had committed the offense in concert with two others; (5) Defendant's acts had been videotaped, and the court suspected that the videotape would have been distributed to others; and (6) Defendant's risk of reoffending was high based upon his attitude. In sum, we conclude that the trial court did not abuse its discretion by sentencing Defendant to the maximum term. Accordingly, we affirm Defendant's sentence.

Defendant also argues that inaccuracies in the PSI require reversal. The State argues that these disputes do not undermine Defendant's sentence but asks for a remand to assist in providing an accurate record for the Board of Pardons. We agree with the State. See State v. Yoder, 935 P.2d 534, 549 (Utah Ct. App. 1997) (pointing out that any error in considering invalid aggravating factors is harmless as long as the remaining aggravating factors support the sentence imposed).

Where the parties cannot resolve disagreement about inaccuracies in a presentence report, "the court shall make a determination of relevance and accuracy on the record." Utah Code Ann. § 77-18-1(6)(a) (1999). Where the trial court fails to make such a determination, but is "aware of the issues and the alternative characterization urged by defendant, . . . we remand to the trial court with instructions that it expressly resolve defendant's objections in full compliance with section 77-18-1(6)(a) by entering the required findings on the record." State v. Veteto, 2000 UT 62,¶15, 6 P.3d 1133. Because the trial court failed to enter findings on the alleged inaccuracies, we remand
for the limited purpose of including the required findings on the record.

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Judith M. Billings,

Presiding Judge

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WE CONCUR:

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Russell W. Bench,

Associate Presiding Judge

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William A. Thorne Jr., Judge