State v. Wilkes , 2020 UT App 175 ( 2020 )


Menu:
  •                        
    2020 UT App 175
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Appellee,
    v.
    PAUL CHAPMAN WILKES,
    Appellant.
    Opinion
    No. 20190216-CA
    Filed December 31, 2020
    Third District Court, Salt Lake Department
    The Honorable Vernice S. Trease
    No. 161906760
    Sarah J. Carlquist, Attorney for Appellant
    Sean D. Reyes and Lindsey L. Wheeler,
    Attorneys for Appellee
    JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
    in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
    CHRISTIANSEN FORSTER, Judge:
    ¶1     Paul Chapman Wilkes appeals his prison sentence,
    arguing that his counsel was constitutionally ineffective in
    failing to object to the sentencing court’s consideration of a
    psychosexual evaluation from a previous offense and that the
    court abused its discretion when it sentenced him to prison
    instead of probation. We affirm.
    State v. Wilkes
    BACKGROUND
    ¶2     In the summer of 2012, Wilkes, age twenty-seven,
    manipulated NK, who was sixteen, into having sex with him on
    three occasions in exchange for money and gifts. 1
    ¶3     In January 2013, after Wilkes had abused NK but before
    that abuse was reported, Wilkes sexually abused a different
    minor, this time a fourteen-year-old girl (SV). Wilkes was
    charged in that case and pleaded guilty to sexual battery in 2013
    (first case). When SV reported the abuse, she provided a
    statement to police detailing the events. As part of sentencing in
    the first case, Wilkes underwent a psychosexual evaluation in
    September 2013. In that evaluation, Wilkes denied that he
    sexually abused SV. Notably, he also denied that he “ever had
    sexual contact with anyone under 17 years of age,” even though
    he had committed the (then unreported) sexual abuse of NK
    about one year before. Because of his denial and his failure to
    take responsibility for his abuse of SV, the evaluator determined
    that Wilkes was not sufficiently motivated to participate in sex-
    offender treatment. The evaluator concluded that before
    engaging in a sex-offender treatment program, Wilkes would
    need to participate in a more general course of psychotherapy to
    address his interpersonal and emotional functioning. Wilkes was
    sentenced to thirty-six months of probation and ordered to
    participate in a sex-offender treatment program, which he
    completed in 2016.
    ¶4     Three years after being abused by Wilkes, NK disclosed
    the abuse. The State charged Wilkes with one count of
    encouraging, inducing, or purposely causing the prostitution of
    a child, see 
    Utah Code Ann. § 76-10-1306
    (3) (LexisNexis 2012),
    1. Departing from our usual practice of referring to the victim of
    abuse as “Victim,” we use initials in this opinion at the request of
    the individual involved.
    20190216-CA                     2                
    2020 UT App 175
    State v. Wilkes
    and three counts of unlawful sexual conduct with a sixteen- or
    seventeen-year-old, see 
    id.
     § 76-5-401.2. In August 2017, Wilkes
    pleaded guilty to two counts of unlawful sexual conduct, and
    the State dismissed the other two charges (second case).
    ¶5     In its presentence investigation report (PSI), Adult
    Probation and Parole (AP&P) recommended imprisonment.
    Wilkes objected to the PSI and moved to continue his sentencing
    hearing, arguing that the PSI had “numerous errors” and
    omitted “information which is favorable to him and which
    would have a bearing on his sentence.” Specifically, Wilkes’s
    counsel asserted that “the person who prepared” the PSI had
    “totally ignore[d]” and “not even mention[ed]” a positive two-
    page letter from Wilkes’s current sex-offender therapist. Wilkes
    also objected that the PSI “revisit[ed]” the first case and the
    conclusions of the therapist in that case. The sentencing court
    denied the request to strike the PSI and order a new report,
    concluding that “there was nothing inaccurate about the fact that
    [Wilkes] did enter into treatment with other people” and
    “ultimately completed the treatment.” The court then sentenced
    Wilkes to concurrent terms of zero to five years.
    ¶6     Wilkes, represented by a different attorney (Counsel),
    appealed the sentence, and based on the parties’ stipulation, this
    court remanded to the sentencing court “to resolve the alleged
    inaccuracies in the [PSI] and to conduct a new sentencing
    hearing.” Due to a retirement, the case was reassigned to a
    different judge. On remand, the court ordered Wilkes released
    from prison, vacated his first sentence, ordered a new PSI, and
    set a new sentencing hearing. 2
    ¶7    AP&P prepared a second PSI, again recommending a
    prison sentence. This PSI included a letter from Wilkes’s sex-
    2. At the time of his release, Wilkes had served approximately
    ten months in prison.
    20190216-CA                     3              
    2020 UT App 175
    State v. Wilkes
    offender therapist explaining that Wilkes had successfully
    completed therapy over a period of thirteen months ending in
    February 2016. The therapist also opined that it was unnecessary
    for Wilkes to repeat treatment. This PSI included a portion of
    Wilkes’s statement in which he minimized his abuse of NK,
    stating that he was trying to help relieve her stomach pains
    when he sexually assaulted her. Wilkes acknowledged that he
    was placed on probation for a “similar offense” that had
    occurred in the first case, but he asserted that he was a “changed
    person” after having completed sex-offender counseling and
    treatment arising from the first case.
    ¶8      The second PSI outlined Wilkes’s extensive criminal
    history, including offenses he committed as a juvenile and a
    felony drug conviction. It also noted that while Wilkes had
    initially struggled to comply with the conditions of his probation
    related to the first case, Wilkes had been compliant with the
    terms of his probation since January 2015.
    ¶9     The second PSI also included statements from NK, NK’s
    mother, and SV. The mother’s and NK’s statements detailed the
    serious psychological and emotional toll Wilkes’s abuse had on
    NK and their family.
    ¶10 In January 2019, at the second sentencing hearing, the
    court informed the parties that it had reviewed all the
    information provided for and considered during Wilkes’s first
    sentencing as well as the more current information that was not
    available to the original sentencing court. The court specifically
    stated that it had looked at documents from the first case,
    including the psychosexual evaluation and “things of that
    nature” that were available to the original sentencing court, in
    preparation for the new sentencing hearing. The court explained
    that “it was important for [it] to look at the [first] case because
    that’s part of the argument, is that [Wilkes] completed probation,
    that he did well and things of that nature.” Counsel stated that
    20190216-CA                     4               
    2020 UT App 175
    State v. Wilkes
    he did not “have a problem with that.” The sentencing judge
    then informed the parties,
    [I]f there are things that I’ve looked at that you
    haven’t looked at, you ought to look at all those
    things before . . . sentencing so that if there’s
    anything you want to point out to me as far as a
    correction or something like that, you should do
    that . . . . So, I just want to be on the same page
    with everybody. I’ve looked at both cases and all
    the things that were filed in both cases . . . .
    ¶11 Counsel indicated that he was not familiar with the
    psychosexual evaluation from the first case. Counsel then began
    to identify several concerns he had with the second PSI and
    expressed that he “probably should have filed an objection.” In
    response, the court continued the sentencing hearing to allow
    Counsel to put “in writing” his “corrections and concerns,” to
    file an objection with the court, and to provide any necessary
    information to AP&P. The court noted that it wanted “to make
    sure AP&P addressed these things before the next hearing.”
    Counsel subsequently filed objections to the manner in which
    Wilkes’s criminal history had been scored in the second PSI.
    ¶12 Before the continued sentencing hearing, which occurred
    about a month later, Counsel withdrew the objections,
    explaining that after a conference with AP&P, he was satisfied
    that the scoring was correct. However, Counsel raised a new
    concern: Wilkes had also filed a 402 motion to reduce his prior
    felony drug conviction, and that motion was still pending. See
    
    Utah Code Ann. § 76-3-402
    (1) (LexisNexis 2017) (providing that
    “[i]f at the time of sentencing the court,” after having considered
    various enumerated circumstances, “concludes it would be
    unduly harsh to record the conviction as being for that degree of
    offense established by statute, the court may enter a judgment of
    conviction for the next lower degree of offense and impose
    sentence accordingly”). Counsel argued that if the court granted
    20190216-CA                     5               
    2020 UT App 175
    State v. Wilkes
    the motion, it “may affect [Wilkes’s] criminal history
    calculation.” But the court explained that while it had not yet
    ruled on Wilkes’s 402 motion, granting it would not “make a
    difference” to the outcome of the sentencing hearing because it
    concerned “a drug charge . . . committed while [Wilkes] was on
    probation” for the first case.
    ¶13 At the continued sentencing hearing, Counsel asked the
    court to “place . . . Wilkes on probation . . . based on what he did
    prior to being sent to prison [after the initial sentencing], what he
    has done since his release[,] and based on the chronology of the
    offenses.” Counsel explained that six and a half years had passed
    since Wilkes sexually abused NK. After that abuse, Wilkes had
    successfully completed a sex-offender treatment program and
    probation, was enrolled in college, participated in weekly
    therapy, had committed no offenses since completing probation,
    and was the sole caregiver for his grandparents. Noting that
    Wilkes had already spent ten months in prison before being
    released after his successful appeal, Counsel focused on the
    progress Wilkes had made:
    I think the most important factor is that this offense
    was prior to the previous conviction for which he
    completed treatment and probation. I think in our
    system we try and rehabilitate people and we don’t
    rehabilitate them and then go back and put them in
    prison for a similar prior offense which the
    rehabilitation dealt with.
    ¶14 For its part, the State, considering the egregious and
    predatory nature of the offense, urged the court to impose a
    prison sentence and “leave it to the Board of Pardons to
    determine how long” Wilkes would serve.
    ¶15 In announcing Wilkes’s sentence, the court reiterated that
    it had reviewed “everything in the file,” including the risk
    assessment and letters filed in the case. The court specifically
    20190216-CA                      6               
    2020 UT App 175
    State v. Wilkes
    noted that, as it had previously indicated to the parties, see supra
    ¶ 10, “because there was reference to the [first] case, [it]
    reviewed everything in the [first] case as well in preparation for
    [the] hearing.” The court acknowledged that Wilkes presented
    “an unusual situation because it is not often that someone is
    resentenced after serving a lengthy amount of time at the Utah
    State Prison.” The court recognized that Wilkes had taken
    positive steps toward rehabilitation, including attending school,
    serving ten months in prison, completing counseling, being able
    to pay restitution, and having committed no crimes since he was
    charged in the second case. However, the court noted that the
    “seriousness of the offenses in this case . . . cannot be looked at in
    a vacuum.” Rather, “they have to be taken into consideration
    with the [first] case [and] . . . the statement of [SV] in the [first]
    case that was included with the [PSI].” The court noted that
    Wilkes knew his victims were high school girls and that he was
    “preying on young girls at the time, offering money for sex and
    things of that nature and those things make the facts of this
    [second] case serious and aggravating.” The court further
    considered the impact Wilkes’s conduct had on NK, specifically
    identifying the “lasting effect on [her] mental health.” The court
    observed that the perpetrator does not “get to decide when
    somebody reports” being sexually abused, and the fact that
    Wilkes had “moved on” did not mean that NK had done the
    same: “So the impact on her is significant and that’s something
    that should be considered in a sentence.”
    ¶16 The sentencing judge also considered Wilkes’s lack of
    empathy:
    I’m glad that you gave a statement today because I
    had written in my notes that in everything I read I
    did not read in one place anything that led me to
    believe that you had what you learned in treatment
    as victim empathy. You wrote a statement in the
    presentence report—and I acknowledge that that
    presentence report is old but until today, I really
    20190216-CA                      7                
    2020 UT App 175
    State v. Wilkes
    had not read anything anywhere that would
    convince me that you had any empathy for [NK],
    and that’s something that I’m sure you learn in
    treatment that part of your rehabilitation includes
    acknowledging fully everything, not minimizing
    your responsibility—and I say that because when I
    read [the psychosexual evaluation from the first
    case], it struck me that in [that evaluation], in the
    presentence report, that you minimized your
    responsibility in the conduct that you engaged in.
    ¶17 The court further pointed out that even though the
    psychosexual evaluation from the first case was completed after
    Wilkes had abused NK—but before the second case had been
    filed—Wilkes denied in that evaluation “ever having sexual
    conduct or contact with anyone under the age of 17.”
    ¶18 Finally, the court explained that while rehabilitation is an
    important consideration in sentencing, “punishment is [also] an
    important component” that includes “reparations to the victim
    in a case and to society as a whole.” The court informed Wilkes
    that he “still [had] some reparations left to make in this case”
    and explained that it was sentencing Wilkes to two concurrent
    zero-to-five-year prison terms as “the last part of [his]
    rehabilitation, the last part of [his] reparations . . . that [he had]
    to complete.” Wilkes appeals.
    ISSUES AND STANDARDS OF REVIEW
    ¶19 Wilkes raises two main issues on appeal. First, he
    contends that Counsel was constitutionally ineffective for not
    objecting to the sentencing court’s consideration of the
    psychosexual evaluation prepared in the first case, arguing that
    not objecting allowed the court to “consider[] and rel[y] on
    unreliable and irrelevant information in making its sentencing
    determination.” “An ineffective assistance of counsel claim
    20190216-CA                      8                
    2020 UT App 175
    State v. Wilkes
    raised for the first time on appeal presents a question of law.”
    State v. Percival, 
    2020 UT App 75
    , ¶ 19, 
    464 P.3d 1184
     (quotation
    simplified).
    ¶20 Second, Wilkes asserts that the court abused its discretion
    when it sentenced him to prison instead of probation. “We
    review the district court’s sentencing decision, including its
    decision to grant or deny probation, for abuse of discretion. An
    abuse of discretion results when the judge fails to consider all
    legally relevant factors or if the sentence imposed is clearly
    excessive.” State v. Gasper, 
    2018 UT App 164
    , ¶ 16, 
    436 P.3d 200
    (quotation simplified). 3
    ANALYSIS
    I. Ineffective Assistance
    ¶21 Wilkes argues that Counsel provided ineffective
    assistance when he failed “to object to the district court’s reliance
    on” the psychosexual evaluation from the first case, asserting
    that the evaluation was outdated, unreliable, and irrelevant and
    prejudiced him. Wilkes argues that had Counsel successfully
    objected to the court’s consideration of the psychosexual
    evaluation, the court would have given more weight to the letter
    from his current therapist describing the positive changes he had
    made and given him a more lenient sentence.
    ¶22 “Utah courts, in line with the United States Supreme
    Court, regard sentencing as a critical stage of criminal
    3. Wilkes also argues that the “cumulative effect of the above
    described errors caused prejudice.” However, “[t]here are no
    errors to accumulate here, rendering the cumulative error
    doctrine inapplicable in this case.” See State v. Galindo, 
    2019 UT App 171
    , ¶ 17 n.4, 
    452 P.3d 519
    .
    20190216-CA                      9                
    2020 UT App 175
    State v. Wilkes
    proceedings at which a defendant is entitled to the effective
    assistance of counsel. The right to counsel at sentencing must,
    therefore, be treated like the right to counsel at other stages of
    adjudication.” State v. Cabrera, 
    2007 UT App 194
    , ¶ 11, 
    163 P.3d 707
     (quotation simplified).
    ¶23 To succeed on a claim of ineffective assistance of counsel,
    Wilkes must demonstrate that Counsel’s “performance was
    deficient” and that “the deficient performance prejudiced the
    defense.” Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984).
    “Because failure to establish either prong of the test is fatal to an
    ineffective assistance of counsel claim, we are free to address
    [Wilkes’s] claims under either prong.” See Honie v. State, 
    2014 UT 19
    , ¶ 31, 
    342 P.3d 182
    .
    ¶24 To show deficient performance, Wilkes must overcome
    the presumption that Counsel’s decision not to object to the
    court’s consideration of the psychosexual evaluation prepared in
    the first case “falls within the wide range of reasonable
    professional assistance.” See Strickland, 
    466 U.S. at 689
    . “The
    court gives trial counsel wide latitude in making tactical
    decisions and will not question such decisions unless there is no
    reasonable basis supporting them.” State v. Clark, 
    2004 UT 25
    ,
    ¶ 6, 
    89 P.3d 162
     (quotation simplified). Moreover, deficient
    performance is not determined in a vacuum; rather, it involves
    asking whether the strategy Counsel employed was that of a
    reasonable, competent lawyer in the real-time context of the
    sentencing hearing. See State v. Nelson, 
    2015 UT 62
    , ¶ 14, 
    355 P.3d 1031
     (stating that deficient performance is evaluated in the
    immediate trial context). And “even where a court cannot
    conceive of a sound strategic reason for counsel’s challenged
    conduct, it does not automatically follow that counsel was
    deficient. . . . [T]he ultimate question is always whether,
    considering all the circumstances, counsel’s acts or omissions
    were objectively unreasonable.” State v. Scott, 
    2020 UT 13
    , ¶ 36,
    
    462 P.3d 350
    ; accord State v. Ray, 
    2020 UT 12
    , ¶¶ 34–36, 
    469 P.3d 871
    .
    20190216-CA                     10               
    2020 UT App 175
    State v. Wilkes
    ¶25 Here, Wilkes asserts that “it constitutes an abuse of
    discretion for the district court to have relied on” the “outdated,
    unreliable, and irrelevant [psychosexual evaluation]”; that “no
    sound trial strategy supported . . . Counsel’s decision to not
    challenge or otherwise object to the district court’s reliance on
    [the psychosexual evaluation]”; and that therefore “Counsel
    performed deficiently.” “In short,” Wilkes concludes, “there was
    only upside in objecting to the district court’s reliance” on the
    psychosexual evaluation. (Quotation simplified.) We are not
    persuaded by Wilkes’s argument.
    ¶26 Because the psychosexual evaluation could have helped
    Wilkes, Counsel had “a sound strategic reason” to encourage the
    district court to consider it. See State v. Gallegos, 
    2020 UT 19
    , ¶ 56,
    
    463 P.3d 641
     (“If an attorney’s decisions can be explained by a
    reasonable trial strategy, the defendant has necessarily failed to
    show deficient performance.”). By allowing the court to consider
    the psychosexual evaluation, Counsel was able to provide actual
    support for his argument that Wilkes had made significant
    progress in addressing the origin of his abusive behavior and
    had taken steps to positively change his life. In other words, the
    psychosexual evaluation served as a starting point or benchmark
    to allow the court to discern the trajectory of Wilkes’s progress in
    responding to sex-offender treatment. As Wilkes argues on
    appeal, “[i]n essence, [Wilkes’s current therapist’s] letters show
    how much had changed with respect to Wilkes, his treatment,
    and his rehabilitation since 2013 when [the psychologist] issued
    his [psychosexual evaluation].” Put simply, Counsel could have
    reasonably concluded that the court needed to consider the
    psychosexual evaluation to discern Wilkes’s arc of progress
    toward accepting responsibility for his actions and eschewing
    the thinking and behavior that led him to engage in unlawful
    sexual activity with minors years earlier.
    ¶27 Moreover, if the psychosexual evaluation was reliable and
    relevant, any objection to its consideration during sentencing
    would have been futile, for it is well-established that courts are
    20190216-CA                      11                
    2020 UT App 175
    State v. Wilkes
    allowed to rely on all relevant and reliable information in
    sentencing: “When there is evidence in the record showing a
    sentencing judge’s reliance on specific information, we will not
    consider it improper for a judge to rely on such information if
    the evidence in question had indicia of reliability and was
    relevant in sentencing.” State v. Moa, 
    2012 UT 28
    , ¶ 36, 
    282 P.3d 985
     (quotation simplified); accord State v. Akers, 
    2018 UT App 235
    ,
    ¶ 13, 
    438 P.3d 70
    ; State v. Christensen, 
    2015 UT App 268
    , ¶ 3, 
    362 P.3d 300
     (per curiam). Thus, objecting to the court’s
    consideration of a relevant and reliable psychosexual evaluation
    would be futile, and “[a] futile motion necessarily fails both the
    deficiency and prejudice prongs of the Strickland analysis
    because it is not unreasonable for counsel to choose not to make
    a motion that would not have been granted, and forgoing such a
    motion does not prejudice the outcome.” State v. Makaya, 
    2020 UT App 152
    , ¶ 9, petition for cert. filed, Dec. 14, 2020 (No.
    20200911).
    ¶28 Wilkes has not carried his burden to show that a
    reasonably competent attorney would have objected to the
    psychosexual evaluation as unreliable or irrelevant. His basic
    argument is that the psychosexual evaluation was necessarily
    “outdated, unreliable, and irrelevant to sentencing” because it
    could not—given the date that it was written—“take into
    account all of the rehabilitative steps Wilkes had successfully
    taken prior to sentencing.” Wilkes further argues that the
    psychosexual evaluation “generated nearly six years prior to
    sentencing in [the second case], was not probative of who Wilkes
    was at the time of sentencing” because it had been “superseded”
    by the letter describing his progress from his current therapist.
    But being six years old does not—standing alone—make
    information unreliable or irrelevant, and Wilkes points us to no
    authority supporting such a proposition. 4 Nor has Wilkes
    4. Wilkes cites State v. McClendon, 
    611 P.2d 728
     (Utah 1980), but
    McClendon merely states the unarguably correct principle that
    (continued…)
    20190216-CA                    12               
    2020 UT App 175
    State v. Wilkes
    presented any authority to support his argument that newer
    information “supersedes” older information such that the older
    information must be disregarded as irrelevant or unreliable.
    ¶29 To the contrary, the information in the psychosexual
    evaluation, although dated, remains reliable and relevant. As to
    reliability, Wilkes makes no claim that the psychosexual
    evaluation and assessment are inaccurate or were prepared by
    an unqualified individual. In fact, that evaluation formed the
    basis for the sex-offender treatment that Wilkes’s current
    therapist points to as having successfully been completed.
    Further, the evaluation was conducted by a licensed
    psychologist and approved sex-offender treatment provider with
    the Utah Department of Corrections.
    ¶30 Moreover, the psychosexual evaluation prepared for the
    first case was applicable to Wilkes’s sentencing because it
    contained relevant information from the time period in which
    Wilkes abused NK. The evaluation was prepared after Wilkes
    had abused NK but before he was charged in the second case.
    Yet during the evaluation, Wilkes denied ever having sexual
    contact with anyone under seventeen years of age, even though
    he had abused NK a year earlier. The fact that Wilkes denied or
    minimized his sexual abuse of minors after he had been
    (…continued)
    “[a] sentence in a criminal case should be appropriate for the
    defendant in light of his background and the crime committed
    and also serve the interests of society which underlie the
    criminal justice system.” Id. at 729. It says nothing about the
    appropriateness of a court’s consideration of a previously
    generated evaluation. Rather, McClendon states that a
    defendant’s juvenile court record “may reveal a pattern of law
    breaking as well as a defendant’s response to previous
    rehabilitative efforts which bear directly upon the
    appropriateness of the sentence.” Id.
    20190216-CA                   13              
    2020 UT App 175
    State v. Wilkes
    convicted of unlawful sexual activity with SV and after he had
    sexually abused NK is certainly relevant to his sentencing for
    unlawful sexual conduct involving NK. That Wilkes
    downplayed his actions in 2013 around the very time he abused
    NK cannot help but inform the court’s consideration of what
    sentence he should receive in 2019 for that very abuse. See State
    v. Monzon, 
    2016 UT App 1
    , ¶ 13, 
    365 P.3d 1234
     (“Except for
    constitutional restraints, the [district] court has broad discretion
    in imposing sentence within the statutory scope. The court must
    be permitted to consider any and all information that reasonably
    may bear on the proper sentence for the particular defendant,
    given the crime committed.” (quotation simplified)).
    ¶31 For the foregoing reasons, we conclude that Wilkes has
    not proved that Counsel rendered deficient performance in not
    objecting to the court’s consideration of the psychosexual
    evaluation at sentencing.
    II. Abuse of Discretion
    ¶32 Wilkes next argues that the court abused its discretion in
    sentencing him to prison instead of probation. Specifically,
    Wilkes asserts that the court did not “adequately consider his
    rehabilitative needs” and that he had already been punished by
    having spent ten months in prison prior to his initial appeal. 5
    5. Wilkes also argues that the court abused its discretion
    “because it did not adequately consider the impact Wilkes’s
    then-pending 402-reduction motion would have had on his
    criminal history assessment score.” See supra ¶ 12. However, the
    court did consider the potential impact of granting the motion
    and concluded that it would not make a difference in sentencing.
    As Wilkes points out in his brief, granting the motion would
    have reduced his criminal history assessment score by two
    points, but his reduced score would still place him in the
    (continued…)
    20190216-CA                     14               
    2020 UT App 175
    State v. Wilkes
    ¶33 “Criminal sentences should be appropriate for the
    defendant in light of his background and the crime committed
    and also serve the interests of society which underlie the
    criminal justice system.” State v. Gasper, 
    2018 UT App 164
    , ¶ 25,
    
    436 P.3d 200
     (quotation simplified). “We afford the sentencing
    court wide latitude and will reverse a sentencing decision only if
    it is an abuse of the judge’s discretion.” State v. Scott, 
    2017 UT App 103
    , ¶ 10, 
    400 P.3d 1172
     (quotation simplified). And “an
    abuse of discretion results when the judge fails to consider all
    legally relevant factors or if the sentence imposed is clearly
    excessive.” State v. Valdovinos, 
    2003 UT App 432
    , ¶ 14, 
    82 P.3d 1167
     (quotation simplified). “In other words, an abuse of
    discretion results only if no reasonable person would take the
    view adopted by the district court.” Gasper, 
    2018 UT App 164
    ,
    ¶ 26 (quotation simplified).
    ¶34 Moreover, “in considering a sentence, there is no
    entitlement or right to probation, but rather, granting probation
    is ‘within the complete discretion of the [district] court.’” State v.
    Ward, 2009 UT App 164U, para. 2 (per curiam) (quoting State v.
    Rhodes, 
    818 P.2d 1048
    , 1049 (Utah Ct. App. 1991)).
    “Sentencing . . . necessarily reflects the personal judgment of the
    court” and involves weighing “the many intangibles of
    character, personality, and attitude, of which the cold record
    gives little inkling.” State v. Duran, 
    2011 UT App 319
    , ¶ 2, 
    263 P.3d 538
    . (quotation simplified). “A sentencing court is
    empowered to place a defendant on probation if it will best serve
    the ends of justice and is compatible with the public interest.”
    State v. Cline, 
    2017 UT App 50
    , ¶ 7, 
    397 P.3d 652
     (quotation
    (…continued)
    presumptive imprisonment category on the sentencing matrix.
    And as we explain, “the fact that the [district] court assessed the
    relevant factors differently than [Wilkes] would have liked does
    not indicate that it exceeded its discretion.” See State v. Bunker,
    
    2015 UT App 255
    , ¶ 5, 
    361 P.3d 155
     (quotation simplified).
    20190216-CA                      15               
    2020 UT App 175
    State v. Wilkes
    simplified). Consequently, “the decision of whether to grant
    probation must of necessity rest within the discretion of the
    judge who hears the case.” State v. Legg, 
    2018 UT 12
    , ¶ 34, 
    417 P.3d 592
    .
    ¶35 Wilkes’s complaint essentially boils down to the assertion
    that the court “did not adequately consider [his] rehabilitative
    needs when it sentenced him to prison.” But Wilkes must set
    forth more than mere disagreement with how the court weighed
    mitigating and aggravating factors to show that the court abused
    its discretion in imposing his sentence. After all, “not all
    aggravating and mitigating factors are equally important, and
    one factor in mitigation or aggravation may weigh more than
    several factors on the opposite scale.” Cline, 
    2017 UT App 50
    , ¶ 7
    (quotation simplified). “Ultimately, [Wilkes] can show an abuse
    of discretion in the district court’s weighing of the relevant
    factors only by demonstrating that no reasonable person would
    take the view taken by the sentencing court.” See State v. Wood,
    
    2018 UT App 98
    , ¶ 12, 
    427 P.3d 452
     (quotation simplified).
    ¶36 And Wilkes cannot demonstrate that the court sentenced
    him in an unreasonable fashion. As an initial matter, we note
    that the court followed AP&P’s sentencing recommendation,
    suggesting that the court’s weighing of the factors in sentencing
    was not a view that “no reasonable person would take.” See 
    id.
    (quotation simplified); see also Rita v. United States, 
    551 U.S. 338
    ,
    347 (2007) (explaining that when a sentencing commission and a
    sentencing judge “have reached the same conclusion as to the
    proper sentence in the particular case[,] that double
    determination significantly increases the likelihood that the
    sentence is a reasonable one” (quotation simplified)). More
    specifically, the court considered the second PSI, which
    recounted Wilkes’s extensive criminal history; the predatory
    nature of the sexual abuse he inflicted on NK; Wilkes’s
    minimization of his sexually abusive conduct toward minors; his
    denial that he had sexual contact with anyone under seventeen
    after he had abused NK; his longstanding lack of victim
    20190216-CA                     16               
    2020 UT App 175
    State v. Wilkes
    empathy; and the impact of his abusive behavior on NK. On the
    other hand, the court considered mitigating factors, specifically
    that Wilkes had attended school, had already served
    approximately ten months in prison, had completed treatment,
    had demonstrated the ability to pay restitution, and had
    committed no crimes since he was charged in the second case.
    Ultimately, after having balanced these factors, the court decided
    that the aggravating factors outweighed the mitigating factors
    and sentenced Wilkes to prison rather than probation. Thus, in
    the final analysis, Wilkes merely disagrees with the court’s
    sentencing decision, but he has not demonstrated that the court
    abused its discretion in imposing a prison sentence. See State v.
    Alvarez, 
    2017 UT App 145
    , ¶ 6, 
    402 P.3d 191
     (“[D]isagreement
    with how the sentencing court weighed aggravating and
    mitigating factors . . . is insufficient to demonstrate an abuse of
    discretion.”).
    ¶37 Wilkes also asserts that the “court overemphasized the
    importance of punishment.” But a review of the court’s
    statements in this regard indicates otherwise. Rather than
    emphasizing punishment, the court stated that punishment
    plays an important role in providing reparation to victims and
    society and that Wilkes “still [had] some reparations left to make
    in this case.” And Wilkes fails to acknowledge that it is well-
    established that “rehabilitation is not the only factor the trial
    court may consider when making a sentencing determination.
    Other factors include deterrence, punishment, restitution, and
    incapacitation.” State v. Rhodes, 
    818 P.2d 1048
    , 1051 (Utah Ct.
    App. 1991); accord State v. Sotolongo, 
    2003 UT App 214
    , ¶ 5, 
    73 P.3d 991
    ; State v. Tompkins, 2002 UT App 344U, para. 2. Thus, we
    are satisfied that the district court acted appropriately in
    considering the reparative aspect of punishment in this context.
    ¶38 Because Wilkes has shown nothing more than mere
    disagreement with the weighing of the evidence presented in
    sentencing, we conclude that the court did not abuse its
    discretion in sentencing Wilkes to prison instead of probation.
    20190216-CA                    17               
    2020 UT App 175
    State v. Wilkes
    CONCLUSION
    ¶39 Counsel did not render ineffective assistance by not
    objecting to the court’s appropriate consideration of the
    psychosexual evaluation prepared for the first case, because
    there was a sound tactical reason to rely on the information the
    evaluation contained and because it was reasonable for Counsel
    to view the evaluation as relevant and reliable. And because the
    court was permitted to consider and weigh factors beyond
    Wilkes’s rehabilitative needs during sentencing, it did not abuse
    its discretion by denying probation and imposing a prison
    sentence.
    ¶40   Affirmed.
    20190216-CA                   18               
    2020 UT App 175