State v. Ashmore , 292 P.3d 89 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) PER CURIAM DECISION
)
Plaintiff and Appellee, ) Case No. 20110623‐CA
)
v. ) FILED
) (December 13, 2012)
Troy Lee Ashmore, )
) 2012 UT App 354Defendant and Appellant. )
‐‐‐‐‐
Third District, West Jordan Department,101402661
The Honorable Charlene Barlow
Attorneys: Debra M. Nelson, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges Thorne, McHugh, and Roth.
¶1 Troy Lee Ashmore appeals his sentence after pleading guilty to forcible sexual
abuse. Ashmore argues that the district court abused its discretion in sentencing him to
one to fifteen years in the Utah State Prison.
¶2 We review the sentencing decision of the district court, including the decision to
grant or deny probation, for abuse of discretion. See State v. Valdovinos, 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. (citation
and internal quotation marks omitted). Furthermore, “[a]n appellate court may only
find abuse if it can be said that no reasonable [person] would take the view adopted by
the trial court.” Id. (alteration in original) (citation and internal quotation marks
omitted). Finally, a “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.” State v. Rhodes, 818 P.2d 1048, 1051
(Utah Ct. App. 1991).
¶3 Ashmore asserts that the district court abused its discretion in sentencing him to
prison because the presentence investigation report, as well as a report prepared by
Utah Sentencing Alternatives, both recommended three years of probation with one
year or less in the county jail. He also alleges that the district court inappropriately
speculated on the cause of the crime when the court stated that there might be
“something underlying here that just maybe perhaps hasn’t come forward.” The record
demonstrates that the district court did not abuse its discretion in sentencing Ashmore
to prison in lieu of some lesser sentence. While the presentence investigation report and
the report prepared by Utah Sentencing Alternatives both recommended a blended
sentence comprised of probation and up to a year in the county jail, other evidence
supported a greater sentence. For example, the nature of the relationship between
Ashmore and the victim and Ashmore’s choking of the victim in order to prevent her
from screaming both weighed in favor of a greater sentence. The impact on the victim,
who indicated that because of the crime she now suffers from “depression, post‐
traumatic stress disorder, anxiety, insomnia, disassociation, and loss of appetite,” also
weighed toward a greater sentence. Under the totality of the circumstances, we cannot
conclude that the district court abused its discretion in sentencing Ashmore to prison.
See Valdovinos, 2003 UT App 432, ¶ 14.
¶4 Ashmore also alleges that the district court abused its discretion by improperly
relying on unsupported speculation to support its sentencing decision. Specifically, he
points to the district court’s statement made shortly after announcing its sentencing
decision, that there must be “something underlying here that just maybe perhaps hasn’t
come forward.” Ashmore asserts that this statement demonstrates that the district court
relied on its own speculation concerning the motive behind the assault rather than the
specific facts of the case to support the sentence. Ashmore unduly emphasizes the
statement. Although after sentencing was complete the district court expressed its
puzzlement as to the motive behind the sexual assault, it specifically noted that its
sentencing decision was based upon the evidence presented and the arguments made at
20110623‐CA 2
the sentencing hearing. Thus, the district court did not inappropriately rely on non‐
relevant speculation in sentencing Ashmore to prison.
¶5 Affirmed.
____________________________________
William A. Thorne Jr., Judge
____________________________________
Carolyn B. McHugh, Judge
____________________________________
Stephen L. Roth, Judge
20110623‐CA 3