State v. Pool

State v. Pool

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Appellee,

v.

James Douglas Pool,

Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030926-CA
 

F I L E D
(February 10, 2005)
 

2005 UT App 62

 

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Third District, Salt Lake Department

The Honorable Denise P. Lindberg

Attorneys: Kent R. Hart and Lisa J. Remal, Salt Lake City, for Appellant

Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Thorne.

JACKSON, Judge:

    James Douglas Pool challenges his sentence of ten years to life stemming from his conviction for rape of a child. See Utah Code Ann. § 76-5-402.1 (2003). We affirm.

    Pool asserts that the sentencing court erred in determining that he was ineligible for probation under Utah Code section 76-5-406.5 and in sentencing him to the middle of the minimum mandatory terms available under section 76-5-402.1. See id.; Utah Code Ann. § 76-5-406.5 (2003) (amended May 3, 2004). We will not disturb sentencing and probation determinations unless the sentencing court abused its discretion. See State v. Hammond, 2001 UT 92,¶8, 34 P.3d 773.

    Utah Code section 76-5-406.5 details twelve conditions, all of which a convicted child abuser must have met for a court to even "consider" sentencing the defendant to probation. Utah Code Ann. § 76-5-406.5(1). One condition is that a residential treatment center must have admitted the offender, and another is that the offender cannot have caused "bodily injury" or "severe psychological harm." Id. § 76-5-406.5(1)(b), (h). The sentencing court determined that Pool was ineligible for probation because he had not been admitted to a residential sexual abuse treatment center and because the court could not conclude that Pool had not caused the victim bodily harm, severe psychological harm, or both.

    Pool argues that the reason that a residential treatment center has not admitted him is outside of his control, and thus the court violated his due process rights by considering this criteria. According to Pool, he was not admitted to a treatment center because the available centers lack the budget to admit residents serving probation.

    To successfully claim that one's due process rights have been violated, one must have had a right that was denied without due process. A defendant has no right to be sentenced to probation, even if he has proved all of the section 76-5-406.5 criteria "by a preponderance of the evidence." State v. Tryba, 2000 UT App 230,¶12, 8 P.3d 274. Instead, Pool asserts that the violated right is "the right to examine and challenge the accuracy and reliability of the factual information upon which his sentence is based." State v. Gomez, 887 P.2d 853, 855 (Utah 1994).

    In Gomez, the defendant challenged the sentencing court's reliance on the factual information within a presentence investigation report. See id. at 854. In stating that a defendant has the right to "challenge the accuracy and reliability of factual information," the court was concerned with whether the information was "disclosed to the defendant," whether the defendant had the opportunity to challenge the factual findings and conclusions, and whether the defendant had the opportunity to question the author of the report. Id. at 855. The Gomez court showed no concern for the defendant's culpability in the aggravating factors; instead, the court's only concern was the defendant's opportunity to challenge the truth and validity of the facts behind the aggravating factors. See id. Hence, Gomez is inapplicable in this case because it does not provide the right that Pool claims.

    Section 76-5-406.5 does not mandate probation; rather, it restricts a sentencing court from imposing only probation on a child abuser unless all of the conditions are met. See Utah Code Ann. § 76-5-406.5(1). Because Pool had no right to a sentence of probation and his sentence does not impinge his right to challenge the accuracy of factual information, the court has not violated his due process rights.(1)

    Pool also argues that the trial court abused its discretion in sentencing him to ten years to life, the statutory middle minimum term. See id. § 76-5-402.1(2) (2003). A court abuses its discretion "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).

    Pool argues that the trial court did not properly consider Pool's mitigating circumstances. Under Utah Code section 76-3-201(7)(a), if a statute provides three minimum terms, the court shall impose "the term of middle severity" unless there are aggravating or mitigating circumstances. Utah Code Ann. § 76-3-201(7)(a) (2003). Specifically, Pool contends that the court abused its discretion in not considering evidence favorable to Pool provided by a psychologist.

    The trial court did not consider the psychologist's evaluation because the court concluded that the evaluation was self-contradictory. The evaluation's recommendations were pliant--the opinions are frequently conditioned with "if" and "may have" and the evaluation expresses "inconclusive" conclusions because Pool's presentation of himself to the doctor was "quite suspect." Thus, a "reasonable" person could have "take[n] the view adopted by the trial court." Gerrard, 584 P.2d at 887.

    We conclude that the trial court did not abuse its discretion in denying Pool probation or in sentencing Pool to the statutory middle minimum term. Accordingly, we affirm the trial court's sentence.

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Norman H. Jackson, Judge

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WE CONCUR:

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James Z. Davis, Judge

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William A. Thorne Jr., Judge

1. While this holding on the treatment center issue makes Pool's physical and psychological harm arguments moot, we note that Pool's psychological harm argument--that the acts in this case could not have resulted in "severe" psychological harm as a matter of law--displays both a disturbing lack of understanding of why Pool's acts are illegal and a tendency for pettifoggery.