State v. Ward , 293 P.3d 399 ( 2012 )


Menu:
  •                           IN THE UTAH COURT OF APPEALS
    ‐‐‐‐ooOoo‐‐‐‐
    State of Utah,                               )           PER CURIAM DECISION
    )
    Plaintiff and Appellee,               )             Case No. 20120165‐CA
    )
    v.                                           )                   FILED
    )              (December 13, 2012)
    David W. Ward,                               )
    )              
    2012 UT App 346
    Defendant and Appellant.              )
    ‐‐‐‐‐
    Fourth District, Heber Department, 111500136
    The Honorable Derek P. Pullan
    Attorneys:       J. Edward Jones, Heber City, for Appellant
    Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee
    ‐‐‐‐‐
    Before Judges Thorne, McHugh, and Roth.
    ¶1     Defendant David W. Ward was convicted of aggravated assault, a third degree
    felony, following his guilty plea. He appeals his sentence, claiming the district court
    abused its discretion by sentencing him to the statutory prison term of zero to five
    years, rather than granting probation. We affirm.
    ¶2      Ward argues that the district court failed to properly consider aggravating and
    mitigating circumstances. Ward adequately preserved the issues that he raises in this
    appeal at the time of sentencing. We review the trial court’s sentencing decision for
    abuse of discretion. See State v. Valdivinos, 
    2003 UT App 432
    , ¶ 14, 
    82 P.3d 1167
    . “An
    abuse of discretion results when the judge fails to consider all legally relevant factors or
    if the sentence imposed is clearly excessive.” 
    Id.
     (citations and internal quotation marks
    omitted). “A defendant is not entitled to probation,” and “[t]he granting or withholding
    of probation involves considering intangibles of character, personality and attitude, of
    which the cold record gives little inkling.” See id. ¶ 23. Only when the actions of the trial
    judge are “so inherently unfair as to constitute an abuse of discretion” will an appellate
    court overturn the trial court’s sentence. Id.
    ¶3     The district court’s written sentencing order and oral ruling demonstrate its
    careful consideration of aggravating and mitigating factors. The district court found
    that the mitigating factors were that Ward was only twenty‐seven‐years old and he was
    suffering from mental illness that was untreated at the time of the offense and up to the
    time of his incarceration. As aggravating factors, the court found that Ward did not
    appear to the district court to have taken responsibility for the harm he admittedly
    caused, and he had a criminal history of similar offenses, i.e., unlawful restraint and
    assault, although the prior offenses were misdemeanors. The court also found that
    Ward had choked the victim to the point of unconsciousness and, as a person trained in
    martial arts, he knew he had “the physical ability and training to cause serious injury to
    others.” The district court ultimately found that “[w]ithout medication for his illness,
    [Ward] is dangerous” and “[t]he Court has no guarantee that [Ward] will remain
    medication compliant if placed on probation.” Finally, the district court recommended
    that the Board of Pardons consider the presentence report and the competency
    evaluations conducted in connection with this case and that Ward be granted mental
    health treatment and access to medications.
    ¶4     The record demonstrates that the district court appropriately considered the
    aggravating and mitigating factors in this case. Ward’s argument that the district court
    discounted or failed to appropriately consider his mental illness is without merit.
    Significantly, the sentencing order specifically states that, although Ward was found
    competent to proceed, the “evaluations demonstrate a significant bi‐polar disorder
    which was not treated until [Ward’s] incarceration in this case.” Ward’s disagreement
    with the district court’s assessment of the factors does not demonstrate that the district
    court did not consider all relevant factors in sentencing Ward to the statutory term
    rather than to probation. See State v. Helms, 
    2002 UT 12
    , ¶ 14, 
    40 P.3d 626
    .
    ¶5     Ward’s reliance on State v. Galli, 
    967 P.2d 930
     (Utah 1998), is misplaced. ‘This
    court has repeatedly rejected the application of the Galli factors outside of cases
    involving consecutive sentences.” State v. Moreau, 
    2011 UT App 109
    , ¶ 8, 
    255 P.3d 689
    20120165‐CA                                   2
    (mem.). This case does not involve consecutive sentencing and Galli is therefore
    inapplicable.
    ¶6     Because we conclude that the district court considered all relevant factors and
    that the sentence imposed was not clearly excessive, the district court did not abuse its
    discretion in sentencing. Accordingly, we affirm.
    ____________________________________
    William A. Thorne Jr., Judge
    ____________________________________
    Carolyn B. McHugh, Judge
    ____________________________________
    Stephen L. Roth, Judge
    20120165‐CA                                 3
    

Document Info

Docket Number: 20120165-CA

Citation Numbers: 2012 UT App 346, 293 P.3d 399

Filed Date: 12/13/2012

Precedential Status: Precedential

Modified Date: 1/12/2023