State v. Littlejohn , 2021 UT App 73 ( 2021 )

2021 UT App 73THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
LANCE SCOTT LITTLEJOHN,
Appellant.
Opinion
No. 20200224-CA
Filed July 9, 2021
Seventh District Court, Price Department
The Honorable George M. Harmond
No. 191700798
K. Andrew Fitzgerald, Attorney for Appellant
Sean D. Reyes, John J. Nielsen, and Carissa Uresk,
Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.
HARRIS, Judge:
¶1 Lance Scott Littlejohn pled guilty to three third-degree
felonies, including aggravated assault, an offense he committed
while under court supervision for a previous aggravated assault
against the same victim. The district court sentenced Littlejohn to
prison, and he now appeals, asserting not only that the sentence
itself was an abuse of the court’s discretion, but also that his
attorney rendered constitutionally ineffective assistance at both
the plea hearing and at sentencing, and that the court committed
plain error in accepting his guilty plea. We reject Littlejohn’s
arguments, dismiss part of his appeal, and affirm his sentence.
State v. Littlejohn
BACKGROUND
¶2 In November 2019, Littlejohn and his wife (Wife) were in
a car together, with Littlejohn driving. The two of them were
arguing, and Wife was “crying and ask[ing] to be let out of the
vehicle” but Littlejohn refused. Wife was able to call 911, and
during the call Littlejohn could be heard in the background
telling Wife, “I told you never to hit me. I told you I’d never hit
you if you didn’t hit me first. I’ve kept to my promise. You
[expletive] hit me first.” Police attempted to stop the vehicle, but
perceived that Littlejohn was trying to elude them; he was
driving recklessly and, according to Wife, was threatening to
crash the car on purpose, telling her that he “was not going to be
caught and do another two and a half years.” At one point,
Littlejohn slammed on the brakes, causing Wife to hit the
dashboard. When Littlejohn finally stopped, police observed that
Wife had blood running from her nose. Related to these events,
the State charged Littlejohn with kidnapping, a second-degree
felony; domestic assault, a class B misdemeanor; and reckless
driving, also a class B misdemeanor.
¶3 At the time of these events, Littlejohn was under court
supervision related to a previous assault he committed against
Wife. In that incident, which occurred just over a year earlier,
Littlejohn and Wife had a dispute about their plans for the
evening: Littlejohn wanted to work on a computer, and Wife
wanted to watch movies. The argument quickly escalated into a
physical altercation resulting in Littlejohn throwing a computer
tower at Wife, grabbing Wife’s face and causing her nose to
bleed, and holding her in a headlock until she lost consciousness.
When police arrived, they observed that “the apartment . . .
appeared as though a bomb had gone off inside,” with broken
glass and fresh blood on the ground. As a result of these events,
Littlejohn pled guilty to attempted aggravated domestic assault
20200224-CA 2 2021 UT App 73State v. Littlejohn
(a class A misdemeanor) and possession of a controlled
substance 1 (also a class A misdemeanor), but the court in that
case agreed to hold the plea in abeyance pending a twenty-four-
month supervision period. Littlejohn was in the midst of that
supervision period in November 2019, when the incident in the
car took place.
¶4 Following the November 2019 incident, Littlejohn was
taken into custody at the county jail, and the court issued a pre-
trial protective order prohibiting Littlejohn from “directly or
indirectly contacting, harassing, telephoning, mailing, e-mailing,
or communicating in any way with” Wife. A few weeks later,
however, jail officials discovered that Littlejohn had been
telephoning Wife through another inmate’s account and had
been trying to “coerce [her] into changing her statement
regarding the incident” in the vehicle. These efforts had
apparently been somewhat successful, as evidenced by Wife
contacting police “requesting to change her statement.” Related
to these events, the State charged Littlejohn with five additional
third-degree felonies: four counts of violation of a pretrial
protective order and one count of witness tampering.
¶5 A few weeks later, Littlejohn and the State entered into a
plea agreement. Under the terms of that agreement, Littlejohn
agreed to plead guilty to three third-degree felonies: one count
of aggravated assault (filed pursuant to an amended
information) relating to the car incident, and two counts—one
for violating the pretrial protective order and one for witness
tampering—relating to the jail phone calls. In exchange, the State
agreed to dismiss all remaining charges stemming from those
two incidents. In addition, Littlejohn stipulated to the court
1. As police cleared the home, they discovered drug
paraphernalia and what appeared to be heroin.
20200224-CA 3 2021 UT App 73State v. Littlejohn
setting aside his plea in abeyance, and to the entry of his
misdemeanor guilty pleas, in the previous assault case.
¶6 Before accepting the guilty plea, the district court engaged
in a lengthy colloquy with Littlejohn. The court specifically
asked Littlejohn if he was “under the influence of any controlled
substance, even if it’s something that might be prescribed to you
that would interfere with your ability to understand what we’re
doing today,” to which Littlejohn answered, “No, sir.” The court
informed Littlejohn that, at sentencing, he could be sentenced to
prison, and Littlejohn confirmed that he understood that. The
court also informed Littlejohn that he had the right to seek
withdrawal of his plea, but that he must seek that relief before
sentence was imposed, to which Littlejohn also affirmatively
responded that he understood. Finally, Littlejohn signed a
written plea agreement incorporating much of the same
information. Following entry of the plea, the court released
Littlejohn from custody and modified the protective order to
allow Littlejohn to contact Wife. The court scheduled a
sentencing hearing to take place a few weeks later.
¶7 In the meantime, Littlejohn was screened for possible
participation in the local mental health court, a specialty court
for individuals with diagnosed mental illnesses which is
designed to address not only the crime committed, but also the
underlying mental health condition that may have contributed
to its commission. See Mental Health Court FAQs, National
Alliance on Mental Illness: Utah, https:namiut.org/resources/ite
m/516-mental-health-court-faqs [https://perma.cc/6UC3-FHSJ]
[hereinafter FAQs]; see also E. Lea Johnston, Theorizing Mental
Health Courts, 89 Wash. U. L. Rev. 519, 521 (2012) [hereinafter
Johnston, Theorizing]. Like forty-two other states, Utah has
created mental health courts in many of its judicial districts. See
Mental Health Courts Operating in Utah, https://le.utah.gov/interi
m/2016/pdf/00002566.pdf [https://perma.cc/M3D6-BG6T]; see also
E. Lea Johnston & Conor P. Flynn, Mental Health Courts and
20200224-CA 4 2021 UT App 73State v. Littlejohn
Sentencing Disparities, 62 Vill. L. Rev. 685, 686 (2017) (stating that
forty-three states use mental health courts). To qualify for mental
health court in Utah, an offender must be diagnosed with a
specific categorized mental disorder, and the crime in question
must not have been a violent crime involving “significant bodily
injury” or (in most cases) a sexual crime. FAQs; see also Johnston,
Theorizing, at 566 n.263 (“Mental health courts as they are
currently formulated accept only the good risks. Cases are
limited to those where the crimes are minor and the risk of
violence minimal.” (quotation simplified)). Prior to entering
mental health court, the offender must plead guilty to the
offense in question, but the sentence is then suspended while the
offender participates in a rigorous treatment program
supervised by prosecutors and professional treatment providers
and involving weekly status hearings in court. See FAQs. If the
offender successfully completes the program, the offender
receives a reduced sentence or even dismissal of the charges; if
the offender fails to complete the program, the conviction is
entered and sentence imposed. See id. The goal of mental health
court is to reduce recidivism and incarceration of mentally ill
offenders by safely and properly addressing the underlying
issues that contributed to participants’ criminal activity. See id.Mental health courts have been successful; studies show that
mental health court participants (regardless of whether they
completed the program) show a “substantial” reduction in
recidivism more than one year after initial enrollment. See Dale
E. McNiel & Renee L. Binder, Effectiveness of a Mental Health
Court in Reducing Criminal Recidivism and Violence, 164 Am. J.
Psychiatry 1395, 1401 (2007).
¶8 Given his history, Littlejohn was a credible candidate for
mental health court. In the fall of 2019, while under court
supervision related to the domestic assault plea in abeyance,
Littlejohn underwent a “combined substance use and mental
health assessment” with a licensed behavioral health therapist.
20200224-CA 5 2021 UT App 73State v. Littlejohn
The evaluator’s report from that assessment (the Assessment
Report) is not included in the record submitted to us. But the
record does include another health professional’s brief summary
of the Assessment Report’s content. According to the summary,
the Assessment Report indicated that Littlejohn was diagnosed
with post-traumatic stress disorder (PTSD), panic disorder, and
“psychoactive substance-induced disorder,” and recommended
that Littlejohn undergo weekly individual therapy, couples
counseling with Wife, and medication management. While in
custody following the November 2019 incident, Littlejohn
continued to meet with mental health professionals and pursue
treatment; in particular, he “attended jail group and started
medication management with the med team at the jail.” Even
after release following entry of the plea, Littlejohn continued to
pursue mental health treatment, including individual therapy
sessions, and one treatment provider opined that Littlejohn was
“making progress and gaining stability.” At some point prior to
the scheduled sentencing hearing, those in charge of the local
mental health court made the decision that Littlejohn was an
appropriate candidate and indicated that they were willing to
accept Littlejohn into the program.
¶9 Also prior to the sentencing hearing, Adult Probation and
Parole (AP&P) prepared a presentence investigation report (PSR)
regarding Littlejohn for the court’s benefit at sentencing. In the
PSR, AP&P concluded that, under the general sentencing matrix,
a person in Littlejohn’s situation should ordinarily be given a
suspended prison sentence and be placed on supervised
probation subject to certain conditions, including serving a jail
sentence of up to 180 days. But in Littlejohn’s case, AP&P
recommended that the court deviate from the guidelines’
recommendation, and simply impose a prison sentence. AP&P
concluded that Littlejohn was a “community safety risk,” and
based that conclusion on Littlejohn’s previous “multiple violent
offenses” and the fact that he had been given “the opportunity at
20200224-CA 6 2021 UT App 73State v. Littlejohn
supervision in the past and was under the [c]ourt’s supervision
when he committed the present offenses.”
¶10 At the sentencing hearing, the State acknowledged
that Littlejohn had been accepted into mental health court,
but nevertheless voiced its agreement with AP&P’s
recommendation. The prosecutor stated her belief that Littlejohn
was “not fit for community supervision” and that Wife’s life
would be “in jeopardy” if Littlejohn remained out of prison.
Littlejohn’s attorney (Counsel), by contrast, argued vigorously
that the court should afford Littlejohn the opportunity to
participate in mental health court. Counsel emphasized that
Littlejohn appeared to be making significant progress in
treatment, and asserted that the situation between Littlejohn and
Wife was improving. Wife also appeared at the sentencing
hearing and urged the court not to sentence Littlejohn to prison,
stating that she needed Littlejohn at home and that he was “a
whole different person” since beginning therapy and taking
medication. Finally, Littlejohn addressed the court. He began by
discussing his mental health struggles, disclosing that he
previously was “always thinking about suicide” and “used to be
angry every day.” Littlejohn claimed that, since beginning
treatment and his medication regimen, he “hadn’t had an angry
day” or suicidal thoughts, but postulated that if he went to
prison it could make him more violent.
¶11 Nevertheless, the court sentenced Littlejohn to prison on
all three felony counts, ordering that the sentences run
concurrently with one another. The court acknowledged that this
was a “difficult case[]” and commended Littlejohn for the strides
he had taken to get mental health treatment. But the court
expressed concern over what it described as “a number of
violent episodes” that had become “increasingly violent” over
the years, and stated that it had “to look at also the safety of the
community,” that it was “very concerned” because it did not
20200224-CA 7 2021 UT App 73State v. Littlejohn
know what would happen should Littlejohn discontinue his
medication, and that it did not “dare take a chance anymore.”
ISSUES AND STANDARDS OF REVIEW
¶12 Littlejohn now appeals his prison sentences for the felony
convictions, 2 and raises three main issues for our review. First,
he argues that his plea was improperly entered without
appropriate assessment of his mental health issues. There are
two components to this argument: Littlejohn asserts that the
district court plainly erred by not evaluating his mental health
diagnoses more fully before accepting the plea, and in addition
contends that Counsel rendered ineffective assistance at the plea
hearing for similar reasons. The State raises a jurisdictional
challenge to this portion of Littlejohn’s appeal, asserting that,
because Littlejohn did not file a motion to withdraw his plea
prior to imposition of sentence, Utah’s plea withdrawal statute
bars any direct appeal of these issues. We find merit in the
State’s jurisdictional challenge, a question we review in the first
instance as a matter of law, see State v. Allgier, 2017 UT 84, ¶ 13,
416 P.3d 546, and therefore we do not reach the merits of
Littlejohn’s challenges to entry of the plea.
¶13 Second, Littlejohn challenges his sentence on the merits,
and asserts that the district court should have suspended his
prison sentences and allowed him to participate in mental health
court. District courts are afforded “wide latitude” in sentencing.
State v. Moa, 2012 UT 28, ¶ 34, 282 P.3d 985 (quotation
2. Littlejohn does not appeal his sentence on the two
misdemeanor charges in the plea-in-abeyance case. Littlejohn’s
challenges to his felony sentences, though arising in two
different cases at the district court level, have been consolidated
into one case for purposes of appeal.
20200224-CA 8 2021 UT App 73State v. Littlejohn
simplified). Indeed, our supreme court has stated that sentencing
courts are better positioned than appellate courts “to weigh the
many intangibles of character, personality, and attitude” that
play into a sentencing determination. See State v. Killpack, 2008
UT 49, ¶ 58, 191 P.3d 17 (quotation simplified). We will not
overturn a district court’s sentencing decision unless the
sentence “exceeds statutory or constitutional limits, the [court]
failed to consider all the legally relevant factors, or the actions of
the [court] were . . . inherently unfair.” Id. ¶ 59 (quotation
simplified); see also State v. Gasper, 2018 UT App 164, ¶ 26, 436
P.3d 200 (stating that we review sentencing determinations for
“an abuse of discretion,” reversing “only if no reasonable person
would take the view adopted by the district court” (quotation
simplified)).
¶14 Finally, Littlejohn asserts that Counsel was
constitutionally ineffective during the sentencing phase of his
case. “A claim of ineffective assistance of counsel raised for the
first time on appeal presents a question of law, which we
consider de novo.” State v. King, 2018 UT App 190, ¶ 11, 437 P.3d
425 (quotation simplified).
ANALYSIS
I
¶15 We begin by addressing Littlejohn’s claim that his plea is
void because, given his mental health struggles, neither the court
nor Counsel properly engaged with Littlejohn about his capacity
to enter the plea. Littlejohn did not raise these challenges before
the district court; in particular, Littlejohn did not file a motion to
withdraw his plea prior to sentencing. Littlejohn acknowledges
that these challenges are unpreserved, but asks that we review
them for plain error and ineffective assistance of counsel,
respectively. However, we lack jurisdiction to review such
20200224-CA 9 2021 UT App 73State v. Littlejohn
claims because Utah law forecloses direct appellate review of all
challenges to the propriety of a guilty plea unless those
challenges were included in a motion to withdraw the plea filed
prior to sentencing. See State v. Allgier, 2017 UT 84, ¶¶ 18–19, 416
P.3d 546; Utah Code Ann. § 77-13-6 (LexisNexis 2017).
¶16 Our legislature has enacted a statute (the Plea Withdrawal
Statute) that governs the withdrawal of a defendant’s plea. See
Utah Code Ann. § 77-13-6. Under the terms of the Plea
Withdrawal Statute, a guilty plea “may be withdrawn only upon
leave of the court and a showing that it was not knowingly and
voluntarily made.” Id. § 77-13-6(2)(a). Any request to withdraw
such a plea “shall be made by motion before [the] sentence is
announced.” Id. § 77-13-6(2)(b). And “[a]ny challenge to a guilty
plea not made” prior to sentencing “shall be pursued,” if at all,
in a post-conviction proceeding. Id. § 77-13-6(2)(c).
¶17 In interpreting the Plea Withdrawal Statute, our supreme
court has explained that, by requiring defendants to seek
withdrawal of guilty pleas prior to sentencing, the statute
“establishes a standard of preservation” and “imposes a strict
sanction of waiver that is not subject to” the common-law
exceptions to our preservation doctrines, including plain error
and ineffective assistance of counsel. See State v. Rettig, 2017 UT
83, ¶¶ 34, 44, 416 P.3d 520; see also Allgier, 2017 UT 84, ¶¶ 26, 28
(stating that the Plea Withdrawal Statute presents a
“jurisdictional bar” that cannot be evaded “through the
exceptions to preservation,” and that when a defendant fails to
seek withdrawal of a plea before sentencing, that defendant
“forfeit[s] [the] right to a direct appeal” and must pursue any
unpreserved challenges in a post-conviction proceeding). “Thus,
the Plea Withdrawal Statute, combined with long-standing
preservation doctrines, operates to prevent a defendant from
raising, on direct appeal, new grounds for withdrawal of a
plea—even by means of plain error review or claims for
ineffective assistance of counsel—that were not brought to the
20200224-CA 10 2021 UT App 73State v. Littlejohn
attention of the trial court prior to sentencing.” State v. Harper,
2020 UT App 84, ¶ 14, 466 P.3d 744; see also State v. Brown, 2021
UT 11, ¶ 26 (“[T]he Plea Withdrawal Statute bars the appellate
courts of Utah from reviewing on direct appeal all untimely or
unpreserved challenges to guilty pleas.”).
¶18 In this case, because Littlejohn did not seek to withdraw
his plea prior to imposition of sentence, the Plea Withdrawal
Statute mandates that any challenges to the propriety of his plea
must be pursued through post-conviction proceedings. We have
no jurisdiction to review such challenges now, even when they
are brought to us in the form of claims for plain error or
ineffective assistance of counsel. See Utah Code Ann. § 77-13-
6(2); Allgier, 2017 UT 84, ¶¶ 26, 28.
¶19 Littlejohn resists this conclusion, asserting that the Plea
Withdrawal Statute only governs challenges to the “knowing
and voluntariness” of the plea, and does not govern situations in
which there have been “strict compliance violations” during the
plea colloquy. Relying on rule 11 of the Utah Rules of Criminal
Procedure, Littlejohn asserts that the court and Counsel had a
duty to ensure that the plea colloquy was sufficient to meet
constitutional and procedural protections, and that his
challenges to compliance with this rule do “not actually fall
under the [Plea Withdrawal Statute] and the jurisdictional bar
contained therein.” In sum, he contends that the Plea
Withdrawal Statute applies “only when the error and burden are
the defendant’s, [and] not when the trial court has failed in its
strict compliance with its duties and responsibilities.” This
argument is unpersuasive.
¶20 Rule 11 outlines elements conducive to a constitutionally
valid plea hearing, see Utah R. Crim. P. 11, and “is designed to
protect an individual’s rights when entering a guilty plea by
ensuring that the defendant receives full notice of the charges,
the elements, how the defendant’s conduct amounts to a crime,
20200224-CA 11 2021 UT App 73State v. Littlejohn
the consequences of the plea, etc.,” see State v. Alexander, 2012 UT
27, ¶ 17, 279 P.3d 371 (quotation simplified). But our supreme
court has made clear that, “although rule 11 provides guidance
for the entry of guilty pleas, any attempt to withdraw that plea is
governed by statute.” See id. ¶ 19 (quotation simplified); see also
State v. Velarde, 2015 UT App 71, ¶ 8, 347 P.3d 452 (“Rule 11
governs the taking of guilty pleas, but not their withdrawal.”).
See generally State v. Walker, 2013 UT App 198, 308 P.3d 573(applying the Plea Withdrawal Statute to a rule 11 strict
compliance challenge). Indeed, it is “the federal Due Process
Clause and our Plea Withdrawal Statute—not rule 11”—that
govern the question of whether a guilty plea may be withdrawn.
See State v. Trotter, 2014 UT 17, ¶ 8, 330 P.3d 1267.
¶21 Littlejohn also attempts to support his argument by
citation to State v. Beckstead, 2006 UT 42, 140 P.3d 1288, asserting
that our supreme court, in that case, “differentiated the type of
appellate issues raised pertaining to Rule 11 and plea
withdrawals,” and instituted a requirement that there be
“meaningful engagement” between the defendant and the court
during the plea colloquy. But in Beckstead, the defendant’s
challenges to his plea colloquy were timely under the Plea
Withdrawal Statute and thus merited direct appellate review. See
id. ¶ 4; see also Utah Code Ann. § 77-13-6(2)(a)–(b). In that
procedural scenario, an appellate court may examine whether a
“meaningful engagement” took place between the defendant
and the court during the plea colloquy. See Beckstead, 2006 UT 42,
¶ 18. Because the defendant had timely moved to withdraw his
plea, the Beckstead court did not discuss or apply the Plea
Withdrawal Statute’s jurisdictional bar; indeed, nothing in
Beckstead supports the proposition that the jurisdictional bar is to
be applied on a case-by-case basis depending on the nature of
the alleged error. See id. ¶¶ 10–21.
¶22 Finally, Littlejohn’s argument is foreclosed by our
supreme court’s recent ruling in State v. Flora, 2020 UT 2, 459
20200224-CA 12 2021 UT App 73State v. Littlejohn
P.3d 975, a case materially indistinguishable from this one. In
Flora, the defendant attempted to argue, on appeal, that “his
behavior throughout the proceedings should have alerted the
district court and trial counsel to the possibility that he was not
competent to plead guilty.” Id. ¶ 5. And as in this case, the
defendant in Flora raised those issues in the form of plain error
and ineffective assistance of counsel claims, because he had not
made those arguments in any presentence motion to withdraw
the plea. See id. ¶¶ 5, 18. For this reason, the supreme court
refused to consider them, stating that “while [the defendant]
could likely [have] raise[d] these challenges under the common-
law preservation rule, the Plea Withdrawal Statute’s
preservation rule bar[red] him from doing so here.” Id. ¶ 18.
¶23 Accordingly, pursuant to the Plea Withdrawal Statute, we
lack jurisdiction, on direct appeal, to consider Littlejohn’s
challenges to the propriety of his guilty plea, even where those
claims come to us in the form of claims of plain error and
ineffective assistance of counsel. We therefore dismiss the part of
Littlejohn’s appeal that seeks to challenge the propriety of his
guilty plea. See Zion Village Resort LLC v. Pro Curb U.S.A. LLC,
2020 UT App 167, ¶ 56, 480 P.3d 1055 (“When we lack appellate
jurisdiction, we retain only the authority to dismiss the appeal.”
(quotation simplified)).
II
¶24 We now turn to Littlejohn’s challenge to the substance
of his sentence: he asserts that the district court abused
its discretion in sentencing him to prison rather than affording
him the opportunity to participate in mental health court.
Littlejohn mounts a two-part challenge to the court’s sentencing
decision.
¶25 First, Littlejohn argues that the court abused its discretion
by failing to adequately consider all the legally relevant
20200224-CA 13 2021 UT App 73State v. Littlejohn
sentencing factors. See State v. Cline, 2017 UT App 50, ¶ 7, 397
P.3d 652 (“When making sentencing decisions, courts weigh and
consider the following factors: public safety, punishment,
deterrence, incapacitation, restitution, and rehabilitation.”). He
points to only one factor that he believes the court failed to
properly consider: his rehabilitative needs, and specifically his
mental health issues. We reject this argument, because the court
was well aware of, and clearly considered, Littlejohn’s mental
health issues before imposing sentence.
¶26 There is no question that the court had Littlejohn’s
mental health issues well in mind at sentencing. In the
PSR, which was available to the court prior to the hearing,
AP&P noted that Littlejohn suffered from “depression and
anxiety” and from PTSD. In addition, Littlejohn submitted to
the court a letter from a health care professional that contained
a summary of the Assessment Report; in that letter, the
court was informed that Littlejohn had been diagnosed with
PTSD and panic disorder, and that he was involved in
therapy and “medication management” for his mental health
conditions. 3 The letter also indicated that Littlejohn was
3. Littlejohn asks us to consider a second letter from a different
health care professional, and attaches it to his brief. But as
Littlejohn acknowledges, the letter was filed after sentencing,
was not considered by the district court, and is not properly part
of the record. Under these circumstances, we cannot consider the
letter as part of our appellate review. See State v. MacNeill, 2016
UT App 177, ¶ 41, 380 P.3d 60 (“An appellate court’s review is
limited to the evidence contained in the record on appeal.”
(quotation simplified)); see also State v. Pliego, 1999 UT 8, ¶ 7, 974
P.2d 279 (explaining that a party may not add new materials to
the record on appeal “by simply including the omitted material
in the party’s addendum” to a brief).
20200224-CA 14 2021 UT App 73State v. Littlejohn
“making progress and gaining stability,” and that it was
“recommended” that Littlejohn continue with therapy and
medication management.
¶27 In addition to the materials submitted prior to the
hearing, the court also had the benefit of the discussion at the
sentencing hearing. At the outset of the hearing, the prosecutor
opened her presentation by stating that Littlejohn had been
“accepted into the mental health court.” When Counsel
addressed the court, he emphasized that Littlejohn had “started
receiving some mental health treatment that was desperately
needed,” including both therapy and medication, and offered his
view that “mental health court is where [Littlejohn] belongs.”
Counsel even provided the court with a complete list of
Littlejohn’s prescribed medications. In addition, Wife told the
court how, in her view, Littlejohn was coping much better with
his conditions since receiving treatment. And Littlejohn, in his
allocution, told the court that he suffered from PTSD and “major
depression,” that he was “always thinking about suicide,” and
that his depression was “one of the reasons why [he had] such a
short fuse and [had gotten] so violent.” He noted that, prior to
his recent offenses, he “didn’t know [he] had severe mental
issues,” and that since he had begun treatment, he had not “had
an angry day,” and he felt “so much better” since being on the
medication. Even the prosecutor, in her last word to the court,
referenced Littlejohn’s mental health issues, stating that she
“appreciate[d] the defendant’s acknowledgment that he needs
help and that he is taking strides to get . . . treatment right now,”
but offering her view that prison was nevertheless the proper
sentence because “community supervision” was not
“appropriate for [Littlejohn], given his history.” Finally, the
court itself alluded to Littlejohn’s mental health struggles in its
comments immediately prior to imposing sentence, with the
court telling Littlejohn, “I appreciate that you are undergoing
treatment right now, but I don’t know what would stop you
20200224-CA 15 2021 UT App 73State v. Littlejohn
from—if you don’t take your medication what’s going to
happen.”
¶28 Littlejohn’s contention that the district court failed to
consider his mental health issues at sentencing is therefore not
borne out by the record. The court was presented with a lot of
information about Littlejohn’s mental health, and not only must
we presume that the court considered the information presented
to it, see State v. Atkinson, 2017 UT App 83, ¶ 8, 397 P.3d 874(“When evidence of mitigating factors is properly presented to
the sentencing court, we . . . assume that the court appropriately
considered that evidence in its sentencing decision.”), it is
apparent from the court’s comments that it did consider the
information. Fairly stated, Littlejohn’s complaint is not that the
court failed to consider his mental health issues, but that the
court failed to give that information the weight Littlejohn
believes it should have been given. That argument simply has no
traction on appeal. See State v. Killpack, 2008 UT 49, ¶ 59, 191 P.3d
17 (recognizing that, when considering the “legally relevant
factors,” a sentencing court may, within its considerable
discretion, choose how to weigh individual mitigating and
aggravating factors); State v. Wood, 2018 UT App 98, ¶ 12, 427
P.3d 452 (“While failure to consider all legally relevant
sentencing factors is an abuse of discretion, a sentencing court is
not required to weigh all the factors equally.” (quotation
simplified)).
¶29 Second, Littlejohn argues that the sentence was unfair
given his mental health diagnoses, the crimes committed, and
Wife’s testimony regarding his progress and her desire to have
him return home. We disagree. In this case, the court clearly
considered the mitigating factor identified by Littlejohn—his
mental health conditions and his efforts and progress in
addressing them—and determined that it was outweighed by
other aggravating factors, most notably the violent nature of the
offenses and the safety risk Littlejohn presented to Wife and the
20200224-CA 16 2021 UT App 73State v. Littlejohn
community. The court showed careful consideration of the
legally relevant mitigating and aggravating factors in
articulating its decision. Another sentencing judge may well
have seen the matter differently and allowed Littlejohn an
opportunity to benefit from mental health court. But we see no
abuse of discretion on the part of this sentencing judge in
imposing the prison sentence; certainly, we cannot say that “no
reasonable person would take the view adopted by the district
court.” See State v. Gasper, 2018 UT App 164, ¶ 26, 436 P.3d 200(quotation simplified).
¶30 For these reasons, we reject Littlejohn’s challenge to the
substance of the sentence imposed upon him.
III
¶31 Finally, we address Littlejohn’s claim that Counsel
provided constitutionally ineffective assistance at sentencing. To
demonstrate ineffective assistance, Littlejohn must show both
that (1) Counsel’s performance was deficient and (2) this
deficient performance prejudiced him. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). The first prong—deficient
performance—places the burden on Littlejohn to show that
Counsel’s performance “fell below an objective standard of
reasonableness.” See State v. Scott, 2020 UT 13, ¶ 31, 462 P.3d 350(quotation simplified). For the second prong—prejudice—
Littlejohn must show that there exists a “reasonable probability
that the outcome of his . . . case would have been different
absent” Counsel’s errors. See id. ¶ 43. “A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
¶32 Littlejohn contends that Counsel rendered ineffective
assistance at sentencing in two separate respects. First, he
contends that Counsel failed to adequately investigate the
seriousness of Littlejohn’s mental health issues prior to
20200224-CA 17 2021 UT App 73State v. Littlejohn
sentencing. 4 Second, he contends that Counsel failed to object to
the Assessment Report’s absence from the PSR. We address each
argument in turn.
A
¶33 Littlejohn’s first ineffective assistance claim fails on both
prongs, because Littlejohn has failed to identify what additional
investigation Counsel should have undertaken, what
information that investigation should have uncovered, or how
the results of such an investigation would have made a
difference.
¶34 As noted, supra ¶¶ 8, 26–27, the record—even as it stands
now—contains considerable information about Littlejohn’s
mental health struggles and the steps he had begun to take to
address them. But Littlejohn does not specifically identify what
else Counsel might have discovered, how Counsel might have
gone about discovering it, or how any additional information
would have made a difference to the outcome of his case. For all
we can tell from the record before us, Counsel might very well
have already reasonably investigated Littlejohn’s mental health
issues, but that investigation might not have yielded any
4. Littlejohn attempts to raise this same ineffective assistance
argument with respect to entry of his guilty plea: he asserts that
Counsel failed to adequately investigate his mental health issues
prior to entry of the plea. But as noted, supra part I, we lack
jurisdiction to consider any claim going to the propriety of
Littlejohn’s guilty plea, because Littlejohn did not seek to
withdraw his plea prior to imposition of sentence. In this section,
we therefore address only Littlejohn’s claim that Counsel
performed ineffectively at sentencing, and not any related claim
that Counsel performed ineffectively in connection with entry of
Littlejohn’s plea.
20200224-CA 18 2021 UT App 73State v. Littlejohn
additional material information. See Strickland, 466 U.S. at 689(noting that courts must afford a “strong presumption that
counsel’s conduct” was reasonable); see also State v. Archuleta,
2019 UT App 136, ¶¶ 26, 29, 449 P.3d 223 (rejecting a similar
claim for similar reasons, stating that “for all we can tell from
this record, his attorney completed a reasonable investigation
but found nothing helpful”). And without knowing what else
Counsel might have been expected to find, it is impossible for us
to meaningfully evaluate whether any such information might
have made a difference to the outcome of Littlejohn’s sentencing.
See Jones v. State, 2020 UT App 125, ¶ 40, 473 P.3d 1190 (rejecting
a challenge where the defendant had “not proffered what
specific evidence further investigation would have yielded and
how that evidence would have affected the entire evidentiary
picture” (quotation simplified)).
B
¶35 Littlejohn’s second ineffective assistance claim—that
counsel unreasonably failed to object to the PSR on the basis that
it did not include a copy of the Assessment Report—founders for
similar reasons: the Assessment Report is not a part of the record
on appeal, and without an opportunity to examine its contents,
we cannot say that Counsel rendered ineffective assistance by
failing to object to its absence from the PSR. 5
5. We note that Littlejohn has not filed any motion for remand to
supplement the appellate record with non-record information
necessary to prove his ineffective assistance claim. Such motions
are authorized by rule 23B of the Utah Rules of Appellate
Procedure, a provision that provides a “ready procedural
mechanism for addressing” inadequacies in an appellate record.
See State v. Litherland, 2000 UT 76, ¶ 14, 12 P.3d 92.
20200224-CA 19 2021 UT App 73State v. Littlejohn
¶36 We assume, without deciding and for purposes of our
analysis, that a copy of the Assessment Report should have been
included with the PSR. See Utah Code Ann. § 77-18-1.1(3)
(LexisNexis 2017) (“The findings from any screening and any
assessment conducted under [the criminal screening,
assessment, and treatment] section shall be part of the
presentence investigation report submitted to the court before
sentencing of the convicted person.”). But Counsel could have
made a strategic decision not to object to the Assessment
Report’s non-inclusion in the PSR; after all, the Assessment
Report may well have contained information that Counsel did
not want the sentencing judge to see. See State v. Ray, 2020 UT 12,
¶ 34, 469 P.3d 871 (“If it appears counsel’s actions could have
been intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance.”). Without
the ability to examine the Assessment Report, we cannot
eliminate that possibility, and on that basis alone Littlejohn has
not carried his burden of demonstrating that Counsel rendered
deficient performance. See Strickland, 466 U.S. at 689 (directing
that courts “must indulge a strong presumption that counsel’s
conduct” was reasonable).
¶37 Moreover, without being able to examine the Assessment
Report, we have no basis to believe that its inclusion in the PSR
would have been reasonably likely to alter the outcome of the
sentencing hearing. As noted, the court was well aware of
Littlejohn’s mental health issues, and had the benefit of quite a
bit of information and argument regarding his specific issues
and their effects. Under these circumstances, Littlejohn has not
demonstrated that there exists a reasonable probability that the
outcome of the hearing would have been different had the court
had access to the Assessment Report.
¶38 For these reasons, we conclude that Littlejohn has not
carried his burden of demonstrating that Counsel rendered
constitutionally ineffective assistance during sentencing.
20200224-CA 20 2021 UT App 73State v. Littlejohn
CONCLUSION
¶39 We lack appellate jurisdiction to address Littlejohn’s
challenges to the propriety of his guilty plea. Because Littlejohn
did not make a motion to withdraw the plea prior to imposition
of sentence, any such challenges must be brought, if at all, in a
post-conviction proceeding. We therefore dismiss the part of
Littlejohn’s appeal that challenges the propriety of his guilty
plea.
¶40 As to the merits of the remaining appellate issues, the
district court did not abuse its discretion in sentencing Littlejohn
to prison rather than allowing him to participate in mental
health court. And finally, Littlejohn has not carried his burden of
demonstrating that Counsel rendered ineffective assistance at
sentencing. On that basis, we affirm Littlejohn’s sentence.
20200224-CA 21 2021 UT App 73