Opinion
Case No. 990971-CA.
Filed June 28, 2001. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Anthony B. Quinn.
Kent R. Hart and David C. Biggs, Salt Lake City, for Appellant.
Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee.
Before Judges Jackson, Davis, and Thorne.
MEMORANDUM DECISION
Warren appeals the trial court's imposition of consecutive, rather than concurrent, sentences. The sentences were imposed as a result of Warren's guilty pleas to one count of forcible sodomy, in violation of Utah Code Ann. § 76-5-403(2) (1999), and two counts of sodomy on a child, in violation of Utah Code Ann. § 76-5-403.1 (1999). We affirm.
Warren first claims that the trial court did not adequately weigh all the relevant factors outlined in Utah Code Ann. § 76-3-401(4) (1999) for imposition of consecutive or concurrent sentences. We review the trial court's sentencing decision for abuse of discretion. See State v. Montoya, 929 P.2d 356, 358 (Utah Ct.App. 1996).
The State argues that the issues on appeal were not properly preserved. Given the extensive discussion of the relevant issues at the sentencing hearing, we hold that Warren properly preserved these issues for appeal.
In State v. Gerrard, 584 P.2d 885 (Utah 1978), the Utah Supreme Court held that a sentencing decision by the trial court should be upheld unless "no reasonable [person] would take the view of the trial court."Id. at 887. In State v. Woodland, 945 P.2d 665 (Utah 1997), the supreme court held that the abuse of discretion standard prevents reversal unless the decision was "inherently unfair or clearly excessive." Id. at 671.
Based on the stipulated facts of this case, we conclude that reasonable persons could agree with the trial court's decision to impose consecutive sentences on Warren. Warren's pattern of sexual abuse included multiple incidents with multiple boys. Further, Warren told the police investigators that, in spite of the fact that he had recognized his physical attraction toward children years prior, he applied to become a foster parent. His role as a foster parent placed him in a position of societal trust that he violated through his abuse of at least two of the children placed in his care. It is particularly significant that one of those children had been placed in the foster care system because of prior sexual abuse in his own birth family. The extraordinary harm done to Warren's victims was thus appropriately considered by the trial court as part of the "gravity and circumstances of the offense" factor of section 76-3-401(4).
Although some counter-arguments exist that are based on the other factors of section 76-3-401(4), it does not automatically follow that the trial court abused its discretion by choosing to impose consecutive, rather than concurrent, sentences. The Utah Supreme Court has noted that "[a trial court's] discretion is not to be surrendered to a mathematical formula by which numbers of circumstances rather than weight of circumstances are determinative. . . . One factor in mitigation or aggravation may weigh more than several factors on the opposite scale."State v. Russell, 791 P.2d 188, 192 (Utah 1990) (emphasis added). We noted in State v. Nuttall, 861 P.2d 454 (Utah Ct.App. 1993), that the propriety of punishing a wrongdoer may appropriately outweigh all other relevant factors in the ultimate sentencing decision. See id. at 457-58. Thus, we conclude that the trial court's decision to focus on the gravity and circumstances of Warren's pattern of abuse, coupled with its concordant decision to emphasize the punishment factor in determining the breadth of the sentence, does not constitute an abuse of discretion.
Warren next claims that the trial court abused its discretion by failing to make specific findings regarding each of the section 76-3-401(4) factors. We find no support for this claim in Utah law. Although some Utah cases have upheld various statutory provisions that require trial courts to issue specific findings in conjunction with particular sentencing decisions, the language of section 76-3-401(4) contains no such statutory requirement. Section 76-3-401(4) states that the court "shall consider" the four listed factors. There simply is no additional language requiring any specific finding regarding the listed factors. Indeed, we specifically rejected this type of claim in State v. Schweitzer, 943 P.2d 649 (Utah Ct.App. 1997). In Schweitzer, we noted that the state must only show that "the information before the trial court clearly outlined and described" the facts pertaining to the section 76-3-401(4) factors in order to establish that the trial court properly considered those factors. Id. at 652. Given the lengthy discussion of Warren's history, character, and rehabilitative needs at the sentencing hearings, we conclude that the Schweitzer test was satisfied, and that there was no abuse of discretion due to a failure by the trial court to make specific findings regarding each of the 76-3-401(4) factors.
See, e.g., State v. Labrum, 925 P.2d 937, 940 (Utah 1996) (requiring judges to specifically state conclusions as to sentencing decisions made under Utah Code Ann. § 76-3-203.1 (1995) (the gang-enhancement penalty)); State v. Gibbons, 779 P.2d 1133, 1136-37 (Utah 1987) (requiring judges to specifically state conclusions as to sentencing decisions made under Utah Code Ann. § 76-3-201(5)(d) (Supp. 1986) (the minimum/mandatory sentencing scheme)).
Finally, Warren claims that the trial court abused its discretion by double-counting the severity of the crime as an aggravating factor. Warren relies on language from Russell in which the Utah Supreme Court noted that a sentencing judge cannot impose a maximum mandatory sentence based solely upon the severity of the crime. See Russell, 791 P.2d at 192; see alsoState v. Egbert, 748 P.2d 558, 560 (Utah 1987). The court inRussell reasoned that since the severity of the crime had already been accounted for by the Legislature in setting up the minimum/maximum sentencing scheme, a sentence that relied upon severity as the only aggravating factor would therefore constitute an abuse of discretion.See Russell at 192.
Warren contends that the trial court's seemingly exclusive reliance on the severity of the crimes in deciding to impose consecutive sentences constitutes an abuse of discretion under Russell. This claim fails for two reasons. First, there are fundamental statutory differences between Utah Code Ann. §§ 76-3-201 (1999) (minimum/maximum sentences) and 76-3-401 (concurrent/consecutive sentences). Russell dealt with a minimum/maximum sentencing dispute, see Russell at 192, not a concurrent/consecutive dispute, and is thus inapposite to the question at hand.
Second, the court's prohibition in Russell controls only in situations where the trial court considered only the severity of the crime in imposing sentence. See State v. Yoder, 935 P.2d 534, 548-49 (Utah Ct.App. 1997). If the trial court considered other factors as well, then reversal under Russell is not proper. See id. Here, in addition to discussing the gravity and circumstances of the crime, the trial court also made specific reference to the fact that Warren had abused multiple victims on multiple occasions, thus indicating its consideration of the rehabilitative needs factor as well. Under Yoder, the trial court's decision to impose consecutive sentences on Warren thus cannot be considered to be an abuse of discretion. See id.
Accordingly, we affirm.
Norman H. Jackson, Associate Presiding Judge
WE CONCUR: James Z. Davis, Judge, William A. Thorne, Jr., Judge.