State v. Nichols , 370 P.3d 575 ( 2016 )

2016 UT App 52THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ANGELIQUE PAULA NICHOLS,
Appellant.
Per Curiam Decision
No. 20150275-CA
Filed March 24, 2016
Fifth District Court, Cedar City Department
The Honorable Keith C. Barnes
Nos. 141500297, 141500491
Matthew D. Carling, Attorney for Appellant
Sean D. Reyes and Laura B. Dupaix, Attorneys
for Appellee
Before JUDGES GREGORY K. ORME, MICHELE M. CHRISTIANSEN, and
KATE A. TOOMEY.
PER CURIAM:
¶1 In this consolidated appeal, Angelique Paula Nichols
appeals her sentence for convictions on one count of second-
degree felony possession of a controlled substance with intent to
distribute in case number 141500491, and one count of third-
degree felony possession of a controlled substance in case
number 141500297. We affirm.
¶2 An appellate court “will overturn a sentencing decision
only if it is clear that the actions of the [sentencing] judge were
so inherently unfair as to constitute an abuse of discretion.” State
v. Killpack, 2008 UT 49, ¶ 18, 191 P.3d 17 (emphasis omitted)
(quoting State v. Rhodes, 818 P.2d 1048, 1051 (Utah Ct. App.
1991)). A district court has broad discretion in deciding whether
State v. Nichols
or not to order probation, because the “granting or withholding
of probation involves considering intangibles of character,
personality and attitude.” Rhodes, 818 P.2d at 1049. “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. “An appellate court reviews the
district court’s decision to grant, modify, or revoke probation for
abuse of discretion.” State v. Brooks, 2012 UT App 34, ¶ 8, 271
P.3d 831.
¶3 Nichols entered guilty pleas in the two Iron County cases
that are the subjects of this appeal. Because Nichols had been
sentenced forty-five days earlier in a Washington County case,
the district court in Iron County ordered an addendum to the
presentence investigation report (PSR) that had been prepared
for the Washington County case. The PSR and addendum
described Nichols’s criminal history, her family and living
situation, her education and employment, her substance abuse
history, and her attitude. The PSR and addendum also included
Nichols’s own statements. With regard to the Iron County
offenses, Nichols wrote that she sold methamphetamine only to
help support her terminally ill husband, who was unable to
work.
¶4 Adult Probation & Parole (AP&P) recommended that
Nichols serve prison time for both Iron County cases based upon
her habitual criminal activity. Although the sentencing matrix
placed Nichols on the line between prison and probation, the
PSR that had been prepared for the Washington County
sentencing hearing stated that Nichols was considered at high
risk to reoffend and was a marginal candidate for supervised
probation. The addendum reported that Nichols minimized her
illegal activity, portrayed herself as a victim, and failed to see the
benefit of probation. The addendum also noted that Nichols had
20150275-CA 2 2016 UT App 52State v. Nichols
been placed on probation in the past, and she had not been
successful.
¶5 At sentencing in the Iron County cases, the State agreed
with AP&P’s recommendation for prison terms. The prosecutor
emphasized that confidential informants frequently mentioned
Nichols as a distributor of methamphetamine who brought the
drug in from Las Vegas to sell in Iron County. The prosecutor
emphasized that two days after posting bail in Iron County case
number 141500297, she was caught and charged in Washington
County for possession of methamphetamine and that she also
was charged with retail theft twice while on pre-trial release, all
before she was charged in Iron County case number 141500491,
which again involved “possession of a large amount of
methamphetamine.” The prosecutor stated that Nichols
admitted she was going to Las Vegas at least once a week to
purchase about an ounce of methamphetamine to later sell in
Cedar City, Utah. The prosecutor stated that informants
identified Nichols as one of the major dealers in Iron County.
The State urged the court to sentence Nichols to prison because
she had been unsuccessful on probation and because the
community would be safer if she was incarcerated.
¶6 Nichols’s defense counsel argued that she sold drugs only
because she needed money to care for her husband and asked
that the court allow her to serve jail time in Iron County and to
have the terms run concurrently. Nichols addressed the district
court personally and insisted that she only sold drugs for two
years in order to take care of her husband. She denied that she
sold drugs to fund her own use. Both Nichols and her husband
addressed the court about the nature and extent of his health
problems and his need for care.
¶7 The sentencing judge noted that Nichols candidly
admitted to the officers conducting the initial search that she was
involved in distributing drugs within the community; however,
20150275-CA 3 2016 UT App 52State v. Nichols
her honesty was offset by her subsequent actions, which resulted
in the second Iron County case. The district court followed the
recommendations of AP&P and the State, sentencing Nichols to
serve concurrent prison terms of zero-to-five years on the third-
degree felony possession charge and one-to-fifteen years on the
second-degree felony distribution charge.
¶8 Nichols claims that the sentencing court abused its
discretion by failing to properly consider all legally relevant
factors and by imposing a sentence that was “not legally
excessive under the guidelines, but [was] excessive under the
collateral consequences.” Nichols argues that because she
admitted that she sold drugs, acknowledged that selling drugs
was wrong, and claimed that she sold drugs not to support a
personal habit but to support her family after her husband
became ill, the district court should have placed her on
probation because it was in the best interests of justice to do so.
She further argues that “her candor, sincere remorse, and
extenuating and currently existing circumstances regarding her
husband’s health” should have been given greater weight than
her criminal history. However, the district court record does not
support Nichols’s claim that the district court did not consider
the unique family circumstances related to her husband’s illness.
The addendum to the PSR discussed her family situation. In
addition, a significant portion of the sentencing hearing was
spent discussing the husband’s health and Nichols’s hope to be
available to care for him by serving a jail term in Iron County on
weekends. Defense counsel, Nichols, and Nichols’s husband all
addressed the court on the subject.
¶9 The State persuasively argues that Nichols’s “real
complaint is not that the trial court didn’t consider her
husband’s health, but that it didn’t give it enough weight.” The
sentencing court reasonably determined that Nichols’s
continued criminal activity, even after her initial arrest,
outweighed her candor and family circumstances as sentencing
20150275-CA 4 2016 UT App 52State v. Nichols
considerations. Furthermore, Nichols admittedly engaged in
serious criminal conduct and was a significant methamphetamine
distributor in Iron County. Accordingly, the district court did
not abuse its discretion in determining that probation was not an
appropriate sentence for Nichols and would not be in the public
interest.
¶10 The State correctly notes that it is not necessary for a
sentencing judge to make specific findings in support of its
sentencing decision, see State v. Helms, 2002 UT 12, ¶ 11, 40 P.3d
626, or to “articulate what information [the judge] consider[ed]
in imposing a sentence,” State v. Moa, 2012 UT 28, ¶ 40, 282 P.3d
985. An appellate court assumes that “the mitigating factors
presented to the [sentencing] court were appropriately
considered.” Moa, 2012 UT 28, ¶ 41 n.65. It cannot be reasonably
disputed that the claimed mitigating factors arising from
Nichols’s family circumstances were presented to the district
court at sentencing. This is not undermined by Nichols’s claim
that the district court did not review the “folders and folders” of
documentation on the husband’s heart condition, because his
health condition was not questioned. There is no factual basis to
support a claim that the court failed to consider all legally
relevant factors in sentencing Nichols.
¶11 A defendant in a criminal case “is not entitled to
probation.” State v. Rhodes, 818 P.2d 1048, 1051 (Utah Ct. App.
1991)(emphasis omitted) (citation and internal quotation marks
omitted)). An appellate court will not overturn the denial of
probation unless it is “clear that the actions of the judge were so
inherently unfair as to constitute an abuse of discretion.” Id. The
decision in this case to sentence Nichols to the statutory prison
terms, rather than placing her on probation does not constitute
an abuse of discretion.
¶12 Accordingly, we affirm.
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