State v. Landon , 397 P.3d 649 ( 2017 )

2017 UT App 46THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
SHANE WELLS LANDON,
Appellant.
Per Curiam Decision
No. 20160395-CA
Filed March 16, 2017
Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 151913764
Alexandra S. McCallum and David P.S. Mack,
Attorneys for Appellant
Sean D. Reyes and Jennifer Paisner Williams,
Attorneys for Appellee
Before JUDGES MICHELE M. CHRISTIANSEN, KATE A. TOOMEY, and
DAVID N. MORTENSEN.
PER CURIAM:
¶1 Shane Wells Landon appeals the sentences on his
convictions of attempted assault against a police officer, a third
degree felony; failure to stop or respond at the command of an
officer, a third degree felony; and driving under the influence of
alcohol or drugs, a class B misdemeanor. We affirm.
¶2 Landon argues that the district court abused its discretion
by sentencing him to prison rather than probation and by
sentencing him to serve two consecutive terms of zero to five
State v. Landon
years in prison. 1 Specifically, Landon contends that the
sentencing court abused its discretion “when it sentenced him to
prison despite the intangible factors supporting probation,
including his character, attitude, [and] rehabilitative needs.”
Alternatively, he argues that the sentencing court abused its
discretion by imposing consecutive sentences on his two felony
convictions because the court did not give adequate weight to
these factors.
¶3 “In general, a trial court’s sentencing decision will not be
overturned unless it exceeds statutory or constitutional limits,
the judge failed to consider all the legally relevant factors, or the
actions of the judge were so inherently unfair as to constitute
abuse of discretion.” State v. Killpack, 2008 UT 49, ¶ 59, 191 P.3d
17 (citation and internal quotation marks omitted). Trial courts
are afforded “wide latitude and discretion in sentencing,
recognizing that they are best situated to weigh the many
intangibles of character, personality and attitude.” Id. ¶ 58(citation and internal quotation marks omitted). “An appellate
court will find an abuse of discretion only if it can be said that
‘no reasonable person could adopt the view of the trial court.’”
State v. Miera, 2015 UT App 46, ¶ 5, 345 P.3d 761 (quoting State v.
Daniels, 2014 UT App 230, ¶ 7, 336 P.3d 1074).
¶4 After being stopped for a traffic violation, Landon chose
to drive off. During the ensuing pursuit, Landon rammed the
police officer’s vehicle with his vehicle, and the officer sustained
minor injuries. The Presentence Investigation Report (PSI)
recommended a prison sentence, noting “the egregious nature of
the instant offenses, [his] past criminal history indicating high
1. The district court sentenced Landon on the class B
misdemeanor to a jail term equal to the time he had already
served. Thus, the sentence on that conviction presents no issue
for appeal.
20160395-CA 2 2017 UT App 46State v. Landon
risk behaviors, and his unsuccessful attempts at community
supervision—the defendant committed the instant offenses
while on probation for felony offenses.” The PSI scored Landon
in the “intermediate sanctions” category under the sentencing
guidelines, but he was considered to be in a high risk category of
the Level of Service Inventory assessment. The State asked for a
prison sentence. Landon asked the court to place him on
probation, arguing that he took responsibility for his actions,
expressed remorse, was committed to addressing his alcohol
issues, had been attending Alcoholics Anonymous while jailed,
had family support, and would have a job if placed on
probation. Landon argued that his adult criminal history was not
extensive and that this incident represented his only probation
violation.
¶5 The district court sentenced Landon to prison, citing the
recommendation from the PSI, stating that Landon deliberately
attempted to injure the police officer, and noting that Landon
had exhibited a poor attitude toward supervision and had only
nominal success while on probation. While acknowledging
Landon’s remorse and his desire to improve his life, the district
court stated that it needed to “balance the interest of society
against Landon’s interest.” In sentencing Landon to consecutive
prison terms, the district court stated that it based its decision
upon Landon’s “poor performance on probation and the violent,
deliberate nature of this attack on a public servant.”
¶6 The district court did not abuse its discretion in
sentencing Landon to prison rather than placing him on
probation. A defendant is not entitled to probation as a matter of
right. See State v. Sibert, 310 P.2d 388, 393 (Utah 1957). Because
“[t]he granting or withholding of probation involves considering
intangibles of character, personality and attitude,” id., “[t]he
decision whether to grant probation is within the complete
discretion of the trial court,” State v. Rhodes, 818 P.2d 1048, 1049
(Utah Ct. App. 1991); see also State v. Valdovinos, 2003 UT App
20160395-CA 3 2017 UT App 46State v. Landon
432, ¶ 23, 82 P.3d 1167 (stating that due to the consideration of
“intangibles,” “the problem of probation must of necessity rest
within the discretion of the judge who hears the case” (citation
and internal quotation marks omitted)). Landon’s core argument
is that the district court did not adequately consider, or give
appropriate weight to, his character, personality, and
rehabilitative needs. The record demonstrates otherwise. The
district court considered the PSI, the arguments of counsel, and
statements by Landon and the victim. The sentence was within
the statutory range and was not inherently unfair. Under the
circumstances, this court will not disturb the sentencing
decision.
¶7 Landon’s alternative argument is that the district court
abused its discretion by sentencing him to serve consecutive
prison terms. Landon argues that this issue was preserved for
appeal by his argument that he should be placed on probation.
“Generally, in order to preserve an issue for appellate review, a
party must make a timely and specific objection before the trial
court.” State v. Tingey, 2014 UT App 228, ¶ 3, 336 P.3d 608(citation and internal quotation marks omitted). Landon “has not
demonstrated that he specifically objected to or otherwise
brought to the trial court’s attention the court’s alleged failure to
consider the requisite statutory factors in imposing sentence.”
See id. Landon’s argument for probation was not directed to the
issues related to the imposition of concurrent or consecutive
sentences and was “insufficient to alert the trial court to the
specific error [Landon] now claims on appeal—that the court
failed to consider relevant statutory factors before it imposed”
consecutive prison terms. Id.
¶8 Accordingly, we review the claim that the district court
erred in imposing consecutive sentences under Landon’s claim
of plain error. In order to prevail under a plain error analysis, a
party must establish that an error occurred, that the error should
have been obvious to the trial court, and that the error was
20160395-CA 4 2017 UT App 46State v. Landon
harmful. See id. ¶ 7. Landon has not satisfied this burden. In
determining whether to impose consecutive sentences, “the
court shall consider the gravity and circumstances of the
offenses, the number of victims and the history, character, and
rehabilitative needs of the defendant.” Utah Code Ann. § 76-3-
401(2) (LexisNexis 2012). However, a court is not required to
specifically refer to each of these factors in its ruling in order to
demonstrate its consideration of the factors. See State v.
Thorkelson, 2004 UT App 9, ¶ 13, 84 P.3d 854. The record reflects
that the district court relied upon a PSI that specifically
considered the statutory factors. After reviewing the PSI and the
information received at sentencing, the district court identified
the specific factors that it concluded supported the imposition of
consecutive sentences as Landon’s “poor performance on
probation and the violent, deliberate nature of the” offense.
Furthermore, Landon’s argument is not that the district court
failed to consider the statutory factors but that the court failed to
afford appropriate weight to the factors of character, history, and
rehabilitative needs. However, an argument that the court erred
in its balancing of the factors is not an argument that supports a
finding of any plain error. It is unnecessary to consider the
remaining factors of the plain error analysis.
¶9 Finally, Landon’s argument that the imposition of
consecutive sentences resulted in an illegal sentence that should
be corrected under rule 22(e) of the Utah Rules of Criminal
Procedure lacks merit. An illegal sentence “generally occurs in
one of two situations: (1) where the sentencing court has no
jurisdiction, or (2) where the sentence is beyond the authorized
statutory range.” Id. ¶ 15. Landon’s challenges to the imposition
of consecutive, rather than concurrent sentences, involves
neither of these situations and was not otherwise “illegal.”
¶10 Accordingly, we affirm the sentence imposed by the
district court.
20160395-CA 5 2017 UT App 46