State v. Asta , 437 P.3d 664 ( 2018 )

2018 UT App 220THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
VICTORIA ASTA,
Appellant.
Opinion
No. 20160942-CA
Filed November 29, 2018
First District Court, Logan Department
The Honorable Brian G. Cannell
The Honorable Thomas L. Willmore
No. 151100933
Ashley E. Bown, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye,
Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
DAVID N. MORTENSEN and MICHELE M. CHRISTIANSEN FORSTER
concurred.
HARRIS, Judge:
¶1 After Victoria Asta pled no contest to charges of burglary
and assault against a police officer, the district court sentenced
her to prison. Asta now appeals that sentence, asserting that the
sentencing judge should have recused himself, and that the court
abused its discretion in imposing the sentence. Asta also
complains that the court failed to specifically address several of
her objections to items contained within the presentence report
(PSR). We affirm Asta’s sentence, as well as the judge’s decision
not to recuse himself, but remand for the limited purpose of
addressing Asta’s objections to items contained within the PSR.
State v. Asta
BACKGROUND
¶2 On a November evening in Cache County, Utah, Asta and
her boyfriend (Boyfriend) were out for a drive, with Asta behind
the wheel. Boyfriend was wearing a “green tactical shirt” and a
shoulder holster and had two handguns with him. At some
point, Boyfriend exited the vehicle on foot, donned a ski mask,
and broke into a house occupied by an elderly couple. When the
husband confronted Boyfriend, Boyfriend pointed his gun at
him and ordered him into the basement where his wife was
watching television. As the owners were calling 911, Boyfriend
helped himself to jewelry and other items from the house, and
then fled the scene.
¶3 After completing the burglary, Boyfriend got back in the
car that Asta was driving. As they drove away from the scene,
they passed a sheriff’s deputy who was responding to the
owners’ 911 call. The deputy activated his overhead lights and
attempted to stop Asta’s vehicle, but Boyfriend told her to “just
keep driving, don’t stop,” and Asta kept driving. As Asta drove
past the deputy, she and Boyfriend tried to hide their faces. The
deputy turned to pursue them, and a lengthy and dangerous car
chase ensued, one that eventually involved speeds of up to 90
mph in and out of traffic on public roads, as well as detours
across open fields.
¶4 The deputy called for assistance, and another
officer (Officer) eventually initiated a Pursuit Intervention
Technique (PIT) maneuver designed to force the fleeing car
to turn sideways and stop. The maneuver worked, and
caused Asta’s vehicle to spin and come to a stop facing
the direction it had been traveling. Officer then pulled
his vehicle in front of Asta’s in an attempt to box it in, but
Asta again refused to stop, this time driving her vehicle
forward and causing it to collide with Officer’s, then scraping
past Officer’s vehicle and eventually escaping. Officer later
described the encounter as one in which Asta “rammed” his
vehicle.
20160942-CA 2 2018 UT App 220State v. Asta
¶5 A second high-speed car chase then ensued. Officers
attempted another PIT maneuver, this time unsuccessfully.
Eventually another officer used his patrol vehicle to push Asta’s
vehicle off of the roadway, where Asta’s vehicle finally came to a
stop only because it struck a tree.
¶6 Officers then arrested Asta and Boyfriend. Inside the
vehicle, officers found two handguns and a ski mask, among
other items. Initially, neither Asta nor Boyfriend would give
officers their physical address, and officers at first concluded
that they were homeless. But officers eventually discovered
where they lived and searched their residence, finding stolen
jewelry and drug paraphernalia.
¶7 In relation to her activities on the night in question, the
State charged Asta with aggravated robbery and aggravated
burglary, both first-degree felonies; assault against a police
officer, a second-degree felony; and four additional counts. The
State also charged Asta with seventeen other burglary- and theft-
related crimes alleged to have occurred before the November
incident. These other charges were later dismissed pursuant to
an agreement Asta made with the State to “meet with
investigators and provide truthful information related to the
State’s prosecution of [Boyfriend].” Eventually, with regard to
the charges stemming from her activities on the night in
question, Asta agreed to plead “no contest” to two second-
degree felonies: burglary, amended to a second-degree felony,
and assault against a police officer. In exchange, the State agreed
to drop all remaining charges.
¶8 After Asta entered her plea, Adult Probation and Parole
(AP&P) prepared the PSR, and therein recommended that Asta
be sentenced to prison. AP&P acknowledged that the applicable
sentencing guideline matrix pointed to probation, rather than
prison, as the presumptive sentence for someone in Asta’s
position. However, AP&P nevertheless recommended prison
due to certain “aggravating factors,” including Asta’s perceived
“criminal mentality,” “lack of remorse,” and “refus[al] to
20160942-CA 3 2018 UT App 220State v. Asta
cooperate with law enforcement,” as well as the fact that the
underlying crime included “ramm[ing] an occupied police car.”
¶9 The PSR included a statement from Asta, in which she
maintained that she did not know that Boyfriend intended to
commit burglary when he exited the vehicle on the evening in
question. Indeed, Asta stated that she and Boyfriend were “just
driving around and exploring random dirt roads and just
enjoying a little quiet time together,” and that Boyfriend got out
of the car because he said he “had to go to the bathroom.” While
he was doing so, Asta stated that she “told him [she] was going
to drive ahead for a bit and see if [she] could find a gas station”
where she could purchase snacks. She claimed Boyfriend was
“acting strangely” after she picked him back up, and that she
fled from police at Boyfriend’s urging.
¶10 The day before the sentencing hearing, Asta filed a
lengthy written objection to the PSR, arguing that AP&P’s
recommendation was unwise and “entirely subjective.” Asta
specifically took issue with AP&P’s conclusion that she had
failed to show remorse or to take responsibility for her crimes,
pointing to her lengthy statement, included in the PSR, in which
she apologized and expressed regret.
¶11 At the sentencing hearing, Asta’s counsel addressed, at
some length, Asta’s objections to the report, and made
impassioned argument that Asta should be sentenced to
probation rather than prison. In addition to argument from
counsel, Asta herself provided a statement to the court, as did
Asta’s mother. On the other side of the ledger, the court also
heard from one of the victims of the burglary, and from Officer,
who described for the court in person how Asta “rammed” his
vehicle while he was inside it. The court also thoroughly
questioned an AP&P supervisor about AP&P’s recommendation
for a prison sentence. The State also argued, among other things,
that Asta’s claims about what happened that night were false,
and that she had to have known what Boyfriend intended to do.
In the course of making this argument, the prosecutor
20160942-CA 4 2018 UT App 220State v. Asta
mentioned that she did not “believe [the police] found any
snacks in the car that she claimed she was going after.”
¶12 At the conclusion of the sentencing hearing, the court
sentenced Asta to prison on each count, with the sentences to
run concurrently. In imposing the sentence, the court stated that
it considered Asta’s crimes “heinous,” and stated its belief that,
at least “as it relates to [her] relationship with Boyfriend and the
events” in question, Asta had been acting in a “morally
bankrupt” manner. The court also stated that it did not credit
Asta’s explanation that she did not know that Boyfriend was
going to commit burglary when he exited the car that night, and
stated that it was especially concerned with the danger she had
imposed on the members of the community by leading officers
on two high-speed car chases. The court also expressed its
concern that the crime included the “intentional act of ramming
[Officer’s] vehicle as described here today.”
¶13 Shortly after sentencing, Asta’s counsel learned that the
sentencing judge had himself been the victim of a home burglary
in 2014, the year before the events in question. Asta filed a
motion to disqualify, arguing that the burglary biased the judge
and that the judge should have recused himself. The motion was
referred to the presiding judge, who denied it.
ISSUES AND STANDARDS OF REVIEW
¶14 Asta appeals, and raises three issues for our review. First,
Asta asserts that the sentencing judge was obligated to recuse
himself because he had been the victim of a home burglary in the
year before Asta’s crimes, and that the reviewing judge
erroneously denied her motion to disqualify the sentencing
judge. “Determining whether a trial judge committed error by
failing to recuse himself or herself under the Utah Code of
Judicial Conduct is a question of law,” which we ordinarily
review for correctness. State v. Van Huizen, 2017 UT App 30, ¶ 11,
392 P.3d 933 (quotation simplified), cert. granted, 400 P.3d 1044(Utah 2017). However, if the trial judge “complie[s] exactly with
20160942-CA 5 2018 UT App 220State v. Asta
rule 29” of the Utah Rules of Criminal Procedure in handling the
motion for disqualification, then the “burden shift[s] to the
petitioners” to make an additional showing of either “actual bias
or abuse of discretion.” State v. Alonzo, 973 P.2d 975, 979 (Utah
1998) (quotation simplified). Additionally, at least in cases in
which rule 29 was invoked and followed, see Van Huizen, 2017
UT App 30, ¶¶ 55–63, “any error of the trial judge in failing to
recuse” must be disregarded absent a showing of “actual
prejudice,” see State v. Gardner, 789 P.2d 273, 278 (Utah 1989); see
also Utah R. Crim. P. 30(b) (“Any error, defect, irregularity or
variance which does not affect the substantial rights of a party
shall be disregarded”).
¶15 Second, Asta asserts that the sentencing judge did not
finally and thoroughly deal with all of her objections to the PSR.
“Whether the trial court properly complied with a legal duty to
resolve on the record the accuracy of contested information in
sentencing reports is a question of law that we review for
correctness.” State v. Samulski, 2016 UT App 226, ¶ 9, 387 P.3d
595 (quotation simplified).
¶16 Third, Asta asserts that the sentencing judge abused its
discretion by considering irrelevant or unreliable information
and by sentencing her to prison rather than probation. “Because
trial courts are afforded wide latitude in sentencing, a court’s
sentencing decision is reviewed for an abuse of discretion. A
court exceeds its discretion if it acts with inherent unfairness in
imposing a sentence, imposes a clearly excessive sentence, or
fails to consider all legally relevant factors.” State v. Neilson, 2017
UT App 7, ¶ 15, 391 P.3d 398 (quotation simplified). 1
1. After Asta’s brief was filed, the State filed a motion to strike
certain exhibits attached to Asta’s brief on the ground that those
exhibits were not part of the record. We granted that motion.
Asta then sought several extensions of time within which to file
a reply brief, but never did file one. Instead, after the State’s brief
(continued…)
20160942-CA 6 2018 UT App 220State v. Asta
ANALYSIS
I
¶17 First, Asta argues that the sentencing judge was obligated
to recuse himself because he had been the victim of a residential
burglary in 2014, the year prior to the events at issue here. The
sentencing judge declined to grant the motion, and instead
referred it to the presiding judge, who eventually denied it. We
affirm that decision.
¶18 “A judge shall disqualify himself or herself in any
proceeding in which the judge's impartiality might reasonably
(…continued)
was filed, Asta filed a motion, grounded in rules 23 and 23B of
the Utah Rules of Appellate Procedure, seeking leave to “amend
her [opening] Brief to include a claim for ineffective assistance of
counsel” (IAC), and for an order remanding the case to the trial
court for additional fact-finding on a potential IAC claim. In her
opening brief, Asta spent less than a page arguing, in the
alternative, that her trial counsel had been ineffective; we
perceive her post-brief motion seeking leave to state an IAC
claim as an acknowledgment that any IAC claim contained in
the opening brief was inadequately briefed. Asta’s motion for
leave to bring that claim for the first time now is essentially a
request to re-start the briefing in this case, and we decline Asta’s
invitation to do so. It is a well-established rule that any claims
not raised in the opening brief are waived. See Allen v. Friel, 2008
UT 56, ¶ 8, 194 P.3d 903 (stating that “issues raised by an
appellant in the reply brief that were not presented in the
opening brief are considered waived and will not be considered
by the appellate court” (quotation simplified)). No additional
briefing may be had “except with leave of the appellate court,”
see Utah R. App. P. 24(c), and we decline to exercise our
discretion to allow amendment here. Accordingly, we deny
Asta’s motion for leave to amend and for remand.
20160942-CA 7 2018 UT App 220State v. Asta
be questioned.” Utah Code Jud. Conduct R. 2.11. “[W]hen a
judge knows of circumstances that give rise to the reasonable
appearance of bias, the judge is under an affirmative duty either
to recuse or to disclose the facts that contribute to an appearance
of partiality and allow the parties to decide whether to waive
disqualification.” Van Huizen, 2017 UT App 30, ¶ 18. However,
while parties are entitled to an impartial judge, “they are not
entitled to a judge whose mind is a clean slate.” Lunt v. Lance,
2008 UT App 192, ¶ 12, 186 P.3d 978. “The question of a judge's
impartiality is determined by viewing the question through the
eyes of a reasonable person, knowing all the circumstances.”
Fullmer v. Fullmer, 2015 UT App 60, ¶ 12, 347 P.3d 14 (quotation
simplified).
¶19 But even in cases where a judge fails to strictly follow the
Code of Judicial Conduct—and we stop well short of
determining that any such failure existed in this case—a reversal
is not the automatic result. Indeed, our supreme court has ruled
that a judge’s failure to strictly follow the Code of Judicial
Conduct “does not necessarily mean that the defendant is
entitled to a new trial,” because “[t]he parameters of defendants’
constitutional rights to a fair trial are defined by [rule 29 of the
Utah Rules of Criminal Procedure] and relevant case law, not the
Code of Judicial Conduct.” See State v. Neeley, 748 P.2d 1091, 1094
(Utah 1988). Rule 29 of the Utah Rules of Criminal Procedure
sets forth the process that a judge in a criminal case must follow
when a litigant seeks the judge’s disqualification. 2 A judge who
is the target of a motion to disqualify has two options: the judge
may grant the motion without further hearing, or the judge may
certify the motion to a different judge for decision. See Utah R.
Crim. P. 29(b)(2)(A) (stating that “[t]he judge against whom the
motion and affidavit are directed shall, without further hearing,
enter an order granting the motion or certifying the motion and
2. Rule 63 of the Utah Rules of Civil Procedure sets forth a nearly
identical process that is to be followed in civil cases. See Utah R.
Civ. P. 63(c).
20160942-CA 8 2018 UT App 220State v. Asta
affidavit to a reviewing judge”). The target judge may not hold a
hearing on the motion, and may not herself deny the motion. Id.Other than either granting the motion or certifying the motion to
another judge, the target judge “shall take no further action in
the case until the motion is decided.” Id.¶20 If these procedures are followed, then a judge’s decision
not to recuse “does not constitute reversible error” “absent a
showing of actual bias or an abuse of discretion.” State v. Alonzo,
932 P.2d 606, 610–11 (Utah Ct. App. 1997) (quotation simplified),
aff'd, 973 P.2d 975 (Utah 1998). In this case, Asta makes no
argument that either the sentencing or reviewing judge in this
case failed to follow the procedures set forth in rule 29. Because
those procedures were followed here, Asta bears the heightened
burden of demonstrating either actual bias or abuse of
discretion. See Alonzo, 973 P.2d at 979. Asta makes no effort to
demonstrate that the sentencing judge was actually biased, but
does argue that the reviewing judge abused his discretion in
denying the motion.
¶21 Asta’s assertion in this regard is that the reviewing judge
failed to perceive the significance of the fact that the sentencing
judge had experienced a home burglary, and contends that this
experience must necessarily have “created a presumptive
question” regarding the judge’s impartiality. We, however, agree
with the reviewing judge, who determined that Asta “[made] no
effort to bridge the logical gap between a superficially similar
crime committed against [the sentencing judge] in the past and
his impartiality in this case.” Asta offers no specifics regarding
the burglary suffered by the sentencing judge and, without
more, we are unwilling to hold that a reviewing judge abuses his
discretion by failing to disqualify a judge who has previously
been the victim of a burglary from any burglary case. In certain
situations (for instance, if the judge had been a victim of a crime
committed by the same person who later stood accused of a
similar crime in the judge’s court), we might expect a reviewing
judge to grant such a motion. But it cannot be that, in all cases
involving all crimes, a judge must disqualify herself if she has
20160942-CA 9 2018 UT App 220State v. Asta
previously been the victim of any similar crime. The rule Asta
advances is far too broad, and we decline to adopt it. We discern
no abuse of discretion in the reviewing judge’s decision.
¶22 Next, Asta asserts that she sustained actual prejudice as a
result of the sentencing judge’s participation in the case,
and asks for reversal on that basis. See Alonzo, 973 P.2d at 979
(stating that “a trial judge’s failure to recuse based on the
appearance of bias may be grounds for reversal if actual
prejudice is shown” (quotation simplified)). We find Asta’s
argument unpersuasive.
¶23 First, Asta asserts that the sentencing judge’s failure to
disclose the fact that he was the recent victim of a home burglary
“deprived Asta of the chance to utilize [r]ule 29A of the Utah
Rules of Criminal Procedure.” That rule, however, only allows
for a change of judge as a matter of right if all parties to a case
agree. See Utah R. Crim. P. 29A(a) (stating that, in a criminal
case, “all parties joined in the action may, by unanimous
agreement . . . , change the judge assigned to the action”). Asta
offers no indication that the State would ever have agreed to a
change of judge, even if Asta had learned of the judge’s situation
earlier. Accordingly, Asta would not have been able to avail
herself of rule 29A in any event.
¶24 Second, Asta asserts that the judge’s failure to disclose
“deprived Asta of the opportunity to appropriately prepare for
her sentencing hearing and present information to the court
concerning an appropriate sentence.” But the sentencing hearing
in this case was quite thorough, and Asta gives no indication of
the sort of information she might have presented to the court
had she learned earlier of the judge’s situation.
¶25 For all of these reasons, Asta has failed to persuade us
that reversal is appropriate on the disqualification issue.
Accordingly, we find no reversible error in the sentencing
judge’s decision not to recuse himself, and we affirm the
reviewing judge’s denial of the motion to disqualify.
20160942-CA 10 2018 UT App 220State v. Asta
II
¶26 Next, Asta challenges both the merits of her sentence,
as well as the manner in which the district court addressed
the objections she raised at sentencing to specific items in
the PSR. We agree with Asta that the district court failed to
make specific findings regarding most of her objections to
items contained in the PSR, and we remand this case to
the district court for the limited purpose of affording the
district court another opportunity to do so. However, despite
the district court’s failure to make specific findings on all of
the objections raised, we see no abuse of discretion in
the ultimate sentence imposed, and therefore affirm Asta’s
sentence.
A
¶27 Under Utah law, when a defendant raises specific
objections to items contained within a PSR, a district court must
examine those objections and “shall make a determination of
relevance and accuracy on the record.” Utah Code Ann. § 77-18-
1(6)(a) (LexisNexis Supp. 2018). 3 In particular, this court has
stated that
once a defendant alleges factual inaccuracies in a
[PSR], the district court must do three things: first,
consider the objection raised; second, make
findings on the record regarding the accuracy of
the information at issue; and third, determine on
the record the relevance of that information as it
relates to sentencing.
3. Utah Code sections 77-18-1, 76-5-102, and 76-5-102.4, see supra
¶ 39, have been amended since Asta was sentenced in 2016.
Because the pertinent text of the statutes has not changed, we
cite to the current version of the statute for convenience.
20160942-CA 11 2018 UT App 220State v. Asta
State v. Monroe, 2015 UT App 48, ¶ 6, 345 P.3d 755. This is
important even if the alleged inaccuracies in the report do not
turn out to be relevant to the sentence imposed, because “the
[PSR] will follow [the defendant] through the justice system,” id.
¶ 10, and things that appear irrelevant at sentencing might
become relevant years later at a parole hearing.
¶28 In this case, there is no doubt that Asta made objections to
the PSR. Indeed, Asta filed a ten-page written document the
day before the sentencing hearing in which she set forth
certain objections to the contents of the PSR, and then at the
sentencing hearing Asta emphasized many of those objections.
Those objections generally fell into two categories. First, Asta
pointed out a few minor factual inaccuracies in the PSR,
including her age and her precise plea in both this case as well as
the other dismissed cases. Second, and more substantively, Asta
took issue with the PSR’s ultimate recommendation that Asta be
sent to prison, as well as the specific basis for that
recommendation. Asta asserted that AP&P’s contention that
certain aggravating circumstances were present was simply
wrong, and raised specific challenges to AP&P’s conclusion that
Asta had “no remorse,” “blames co-defendant,” “refused to
cooperate with law enforcement,” and had “rammed” Officer’s
vehicle.
¶29 There is also no doubt that these objections were
discussed at great length during the sentencing hearing, and that
the district court heard extensive argument from both sides on
all of these issues, and considered each of these objections in the
context of imposing sentence. Both Officer as well as an AP&P
supervisor personally addressed the court, gave a statement, and
answered questions; Officer spoke directly to the issue of
whether Asta “rammed” his vehicle, and the AP&P supervisor
provided AP&P’s perspective on the aggravating circumstances.
In addition, Asta’s attorney made an impassioned argument on
all of the issues raised, and the court heard directly from both
Asta as well as her mother.
20160942-CA 12 2018 UT App 220State v. Asta
¶30 However, at no point did the court pause to make specific
rulings or findings on most of the objections raised. Implicit in
the court’s remarks, as it imposed sentence upon Asta, were
rulings on some of the objections. For instance, the court found
that Asta had in fact committed an “intentional act of ramming
[Officer’s] vehicle” on the night in question, and stated that it
did not believe Asta’s claim that she was unaware that Boyfriend
was going to commit burglary when he exited the vehicle. But
the court did not make a finding on Asta’s age or the form of her
plea, and made no finding on whether Asta had shown remorse
or whether she had refused to cooperate with law enforcement.
We recognize that, to some extent, some of these issues are
argumentative rather than strictly factual. However, in previous
cases, Utah appellate courts have required district courts to
make specific rulings and findings on issues such as whether a
victim was “particularly vulnerable” and whether her injuries
were “unusually extensive,” see State v. Jaeger, 1999 UT 1, ¶ 42,
973 P.2d 404, and whether AP&P’s assessment of a defendant’s
“attitude and lack of remorse” was accurate, see State v. Irey, 2017
UT App 178, ¶ 4, 405 P.3d 876 (per curiam).
¶31 When objections like these are raised, the district
court must do three things: consider the objections, make
findings on the record regarding their accuracy, and
determine on the record the relevance of that information as
it relates to sentencing. See Monroe, 2015 UT App 48, ¶ 6; see also
Utah Code Ann. § 77-18-1(6)(a). In this case, although the
district court did consider Asta’s objections and weigh those
objections in the course of imposing sentence, at least with
respect to most of the objections the district court did not ever
take the second of the three prescribed steps: it did not make any
actual findings about the accuracy of the objections.
Accordingly, we must remand the case so that the district court
can make those specific findings, because even if those findings
did not make a difference to the court’s sentencing decision, they
may become relevant to Asta at some point in the future, during
(for instance) proceedings before the Board of Pardons and
Parole.
20160942-CA 13 2018 UT App 220State v. Asta
¶32 It does not follow from the district court’s failure to make
findings on each specific objection, however, that the sentence
imposed is subject to reversal. In several instances, Utah
appellate courts have affirmed a defendant’s sentence while
remanding the case for the limited purpose of having the district
court make findings on specific objections to the PSR. See, e.g.,
Jaeger, 1999 UT 1, ¶ 45; Irey, 2017 UT App 178, ¶ 6; Monroe, 2015
UT App 48, ¶¶ 8–9.
¶33 In some of those cases, even though the defendant’s
objections “were not adequately resolved on the record,” it was
nevertheless clear that “the district court properly considered the
objections before it sentenced [the defendant].” See Irey, 2017 UT
App 178, ¶ 6. In this case, as noted above, Asta’s objections to the
PSR were discussed at great length at the sentencing hearing.
After considering Asta’s objections, as well as input from the
State and from AP&P, the court sentenced Asta to prison, and
cited three reasons for departing from the sentencing guidelines:
that it believed Asta knew what Boyfriend was doing that
evening; the risk Asta’s high-speed flight posed to the public;
and Asta’s intentional act of ramming Officer’s vehicle. As
noted, the court’s discussion of these factors at sentencing
contained implicit findings regarding these issues and, as
discussed in the next section, the court’s reliance on these factors
in imposing sentence was entirely appropriate.
¶34 While the court, in imposing sentence, did not specifically
address many of Asta’s other objections to the PSR, there is no
indication in the record that the court placed any particular
reliance on the State’s or AP&P’s position in response to those
other objections, or that the court found the subject matter of
those other objections particularly relevant to its sentencing
inquiry. When “[t]here is no indication in the record that the
district court relied on the allegedly inaccurate information at
sentencing,” there is no basis for reversal and resentencing, even
though the court may not have made specific findings on all of
the issues raised. Id.; see also State v. Moa, 2012 UT 28, ¶ 35, 282
P.3d 985 (stating that “an appellate court cannot presume there
20160942-CA 14 2018 UT App 220State v. Asta
is evidence of reliance from a silent record or mere introduction
of potentially irrelevant information”); Monroe, 2015 UT App 48,
¶¶ 8–9 & n.3 (stating that “[w]e are not convinced that the
district court’s failure to resolve Defendant’s objections requires
reversal and resentencing,” in part because many of those
objections “just did not matter”). Accordingly, in this case, we
may affirm the district court’s sentencing decision, irrespective
of its failure to fully dispose of all of Asta’s objections to the PSR,
so long as the court’s sentencing decision was otherwise proper.
B
¶35 And we find no abuse of discretion in the district court’s
decision to sentence Asta to prison. Asta makes two arguments
to the contrary, neither of which we find persuasive. First, Asta
argues that the district court, in imposing sentence, relied upon
information that was neither reliable nor relevant. Second, Asta
asserts generally that the district court failed to adequately
weigh or consider other information that Asta provided, and
that the court therefore abused its discretion by sentencing her to
prison rather than to probation.
1
¶36 The Utah Constitution “requires that a sentencing
judge act on reasonably reliable and relevant information
in exercising discretion in fixing a sentence.” State v. Wanosik,
2001 UT App 241, ¶ 34, 31 P.3d 615 (quotation simplified)
(referencing Article 1, Section 7 of the Utah Constitution),
aff'd, 2003 UT 46, 79 P.3d 937; see also id. (stating that it is
“a criminal defendant’s right to be sentenced based on relevant
and reliable information regarding his crime, his
background, and the interests of society”). However, a
defendant challenging his sentence on the ground that the court
improperly considered certain information bears the burden
of demonstrating both that the court relied upon the information
in question, and that the information “was unreliable or
irrelevant.” Moa, 2012 UT 28, ¶¶ 35–36. Showing evidence
20160942-CA 15 2018 UT App 220State v. Asta
of reliance, “such as a judge’s affirmative representation of
reliance, is necessary because neither our case law nor
our statutes require a district court to make specific findings of
fact in a sentencing order.” Id. (quotation simplified). We
will not presume, absent some evidence, that a court
actually relied on any particular piece of information. Id. And
even “[w]hen 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.” Id. ¶ 36 (quotation simplified).
¶37 Asta asserts that the district court relied on the following
pieces of information that she contends are unreliable or
irrelevant: that Asta “rammed” Officer’s vehicle; that Asta knew
what Boyfriend intended to do when he exited the vehicle on the
evening in question; that Asta refused to provide law
enforcement with her home address; and that no snacks were
found in the vehicle.
¶38 There is no indication in the record, however, that
the district court relied upon the last two of those pieces
of information; at no point did the district court indicate that
it found relevant the issue of whether Asta did or did
not provide law enforcement with her home address, or whether
any snacks were found inside the vehicle at the conclusion of
the car chase. As noted, we will not presume reliance from
the “mere introduction of potentially irrelevant information.”
Moa, 2012 UT 28, ¶ 35. Accordingly, Asta has failed to meet
her burden with regard to these two pieces of information.
¶39 The court did, however, clearly rely upon the other
two pieces of information to which Asta points: that
Asta “rammed” Officer’s vehicle, and that Asta had to
have some knowledge of Boyfriend’s burglary plans
that evening. We conclude that both of these pieces of
information were reasonably reliable and unquestionably
relevant.
20160942-CA 16 2018 UT App 220State v. Asta
¶40 With regard to the “ramming,” the court heard from
Officer and specifically questioned him regarding the incident.
Officer provided a personal, firsthand account of the car chase
and the PIT maneuver, and expressed to the court his belief that
Asta had indeed “rammed” his vehicle. Moreover, it is
undisputed that Asta pled “no contest” to second-degree felony
assault against a police officer, a violation requiring “an attempt,
with unlawful force or violence, to do bodily injury to another,”
with a “means or force likely to produce death or serious bodily
injury.” See Utah Code Ann. § 76-5-102 (LexisNexis 2017); id.§ 76-5-102.4(4). Thus, the very nature of the crime to which Asta
pled “no contest” requires the inference that Asta intended to
forcefully assault a police officer. In our view, whether the
contact that occurred between Asta’s vehicle and Officer’s is best
characterized as “ramming,” “colliding,” or “scraping” is
ultimately inconsequential; the district court had before it
credible information that Asta intended to assault a police
officer, and that she used a car as her weapon of choice.
Accordingly, the district court’s conclusion that Asta
intentionally “rammed” Officer’s vehicle was based on
reasonably reliable and relevant information.
¶41 Finally, we find nothing improper about the court’s
conclusion that Asta must have known something of Boyfriend’s
nefarious plans on the evening in question. Again, Asta pled “no
contest” to burglary, which requires intent to commit the crime.
Moreover, the State had also dismissed nine other burglary
charges against Asta in exchange for information regarding the
State’s prosecution of Boyfriend, and the sentencing judge in this
case had signed the orders dismissing those charges. See State v.
Valdez, 2017 UT App 185, ¶ 13, 405 P.3d 952 (stating that “we
disagree with [the defendant’s] specific contention that
dismissed or reduced charges are irrelevant or unreliable
information regarding the gravity and circumstances of [the
defendant’s] crime or background”). Furthermore, it was
undisputed that Boyfriend was wearing a shoulder holster and
had two handguns in his possession. The district court properly
relied on this information, which came from reliable sources and
20160942-CA 17 2018 UT App 220State v. Asta
was clearly relevant, in reaching its conclusion that Asta’s
version of events was not credible.
¶42 Accordingly, because Asta has failed to show that the
district court actually relied on any information that was
unreliable or irrelevant in reaching its sentencing decision,
Asta’s first argument fails.
2
¶43 Next, Asta argues that the district court failed to consider
other factors and pieces of information, including her lack of
prior criminal history, and that the court ultimately abused its
discretion in sentencing her to prison rather than suspending her
prison sentence and affording her the privilege of probation.
¶44 As noted above, sentencing decisions are generally
reviewed for abuse of discretion. See State v. Neilson, 2017 UT
App 7, ¶ 15, 391 P.3d 398. But “a defendant is not entitled to
probation,” see State v. Valdovinos, 2003 UT App 432, ¶ 23, 82 P.3d
1167 (quotation simplified), and therefore, in particular, “the
decision whether to grant probation is within the complete
discretion of the trial court,” State v. Hernandez, 2016 UT App
251, ¶ 9, 391 P.3d 349 (quotation simplified). Indeed, “[t]he
granting or withholding of probation involves considering
intangibles of character, personality and attitude, of which the
cold record gives little inkling” and “must of necessity rest
within the discretion of the judge who hears the case.”
Valdovinos, 2003 UT App 432, ¶ 23 (quotation simplified).
Accordingly, the decision to grant or deny probation is reviewed
for abuse of discretion, which is present only where the court
“fails to consider all legally relevant factors or if the sentence
imposed is clearly excessive.” Id. ¶ 14 (quotation simplified).
¶45 In this case, Asta asserts that the district court failed to
consider several legally relevant factors, including most
significantly her lack of prior criminal history, but also her
asserted remorse, as well as her claims that she would be unable
20160942-CA 18 2018 UT App 220State v. Asta
to pay restitution if imprisoned, and that her culpability in these
crimes should be viewed as far lower than Boyfriend’s. But Asta
overlooks the fact that the district court had all of that
information in front of it, and entertained lengthy argument on
all of those topics and more. Although the court did not make
specific mention of all of these items in its sentencing decision,
there is certainly no indication, in the record, that the district
court refused to consider any of the information Asta presented.
Under these circumstances, we will presume that the district
court did in fact consider the information. See State v. Helms, 2002
UT 12, ¶ 11, 40 P.3d 626 (stating that “we will not assume that
the trial court’s silence, by itself, presupposes that the court did
not consider the proper factors as required by law” unless “an
ambiguity of facts makes the assumption unreasonable,” a
statute requires written findings, or “a prior case states that
findings on an issue must be made”); Hernandez, 2016 UT App
251, ¶ 10 (stating that where “[t]he court was privy to all of [the
presentencing] information, and there is no indication that it
failed to consider any relevant factor or that it considered any
improper factor in making its decision,” we will presume that
the court considered the proper information).
¶46 Finally, Asta asserts that the district court gave
insufficient weight to the sentencing guidelines matrix that
pointed, in Asta’s case, to probation instead of prison. But
“sentencing matrices are advisory and do not create any right or
expectation on behalf of the offender.” State v. Monzon, 2016 UT
App 1, ¶ 12, 365 P.3d 1234 (quotation simplified). We cannot say
that a court abused its discretion simply because it opted not to
follow the sentencing matrix. As noted above, there were
aggravating circumstances—most notably that Asta had led
police on two separate high-speed car chases through the
community, and had intentionally run into a police car in the
process—that the district court found persuasive, and it was not
an abuse of discretion in this case for the court to decline to
follow the sentencing matrix. Indeed, “the fact that the district
court assessed the relevant factors differently than a defendant
would have liked does not indicate that it exceeded its
20160942-CA 19 2018 UT App 220State v. Asta
discretion.” See State v. Wood, 2018 UT App 98, ¶ 12, 427 P.3d 452(quotation simplified).
CONCLUSION
¶47 We find no reversible error in the sentencing judge’s
actions regarding recusal, or in the reviewing judge’s denial of
the motion to disqualify. We perceive no abuse of discretion in
the district court’s decision to sentence Asta to prison, and
accordingly affirm Asta’s sentence. However, the district court
failed to completely resolve all of Asta’s objections to items
contained within the PSR, and we therefore remand for the
limited purpose of entering express findings on those objections.
20160942-CA 20 2018 UT App 220