Opinion
Case No. 20010887-CA.
Filed October 18, 2002. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Paul G. Maughan.
David P. Mack and Kent R. Hart, Salt Lake City, for Appellant.
Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee.
Before Judges Billings, Bench, and Davis.
MEMORANDUM DECISION
"The decision whether to grant probation is within the complete discretion of the trial court." State v. Rhodes, 818 P.2d 1048, 1049 (Utah Ct.App. 1991). "The defendant is not entitled to probation, but rather the court is empowered to place the defendant on probation if it thinks that will best serve the ends of justice and is compatible with the public interest." Id. at 1051; see also State v. Sibert, 6 Utah 2d 198, 310 P.2d 388, 393 (1957) ("Probation is not a matter of right, and this is so no matter how unsullied a reputation one convicted of a crime may be able to demonstrate to the trial judge.").
When determining whether probation is appropriate, the trial court may consider several factors, including what is necessary "to protect society from an individual deemed to be a danger to the community," State v. Nuttall, 861 P.2d 454, 458 (Utah Ct.App. 1993), as well as "rehabilitation . . . deterrence, punishment, restitution, and incapacitation." Rhodes, 818 P.2d at 1051.
"Because so many different ingredients factor into the sentencing process, and because the discretionary imposition of probation rests in many cases upon subtleties not apparent on the face of a cold record," before we overturn the trial court's sentence, "`it must be clear that the actions of the judge were so inherently unfair as to constitute abuse of discretion.'" Id. (emphasis in original) (citations omitted); see also State v. Russell, 791 P.2d 188, 192-93 (Utah 1990) (holding 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" (citation omitted)); State v. Gibbons, 779 P.2d 1133, 1135 (Utah 1989) (holding 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).
Tompkins argues that the trial court abused its discretion because it failed to adequately weigh his rehabilitative qualities. However, the trial court was not limited to considering only Tompkins's rehabilitative qualities when imposing his sentence. The trial court was also allowed to consider the need to deter, incapacitate, or punish Tompkins and the need to protect society. Tompkins has a lengthy criminal history. He has pleaded guilty to participating in two separate clandestine laboratory operations. In the first, he allowed a clandestine laboratory to operate in his home for six months. In exchange, he received money and methamphetamine. In the second, he operated his own clandestine laboratory and packaged methamphetamine in a way indicative of distribution. In addition, Tompkins admitted he stole products for use in the second clandestine laboratory. From this information, the trial court could easily determine that Tompkins's repetitious clandestine laboratory activities posed a serious threat to society and required more deterrence, incapacitation, and punishment than a probationary period could provide.
To support his argument, Tompkins discusses his low risk of re-offending, his desire to enter a drug treatment program, his remorse for his crimes, and his family support system.
Thus, since the trial court was permitted to, and in fact did, consider factors other than Tompkins's rehabilitative qualities when imposing sentence, the trial court did not abuse its discretion by denying probation and imposing a prison term. Therefore, we affirm the trial court's decision.
WE CONCUR: Judith M. Billings, Associate Presiding Judge, and Russell W. Bench, Judge.