2015 UT App 249
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
MICHAEL L. GAILEY,
Defendant and Appellant.
Memorandum Decision
No. 20140396-CA
Filed October 1, 2015
Second District Court, Farmington Department
The Honorable David R. Hamilton
No. 121701553
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES JAMES Z. DAVIS and KATE A. TOOMEY concurred.
ORME, Judge:
¶1 A jury convicted Defendant, Michael L. Gailey, of three
counts of aggravated sexual abuse of a child, all first degree
felonies under section 76-5-404.1 of the Utah Code. He appeals,
challenging the trial court’s imposition of consecutive sentences
with respect to two of the three sentences. Because the trial court
did not abuse its discretion when it ordered consecutive
sentences, we affirm.
¶2 In preparation for Defendant’s sentencing hearing, the
trial court ordered a presentence investigation report (PSI). The
PSI included statements from two groups of people—those
adversely affected by Defendant, who described how his
conduct had taken a toll on them, and those commenting
State v. Gailey
favorably on Defendant’s character, principally family members
and co-workers, who asked the judge to be lenient in imposing
sentence. Also outlined in the PSI were Defendant’s lack of a
prior criminal history; his life history and current living
circumstances; his education, employment, and financial
information; his amenability to supervision; his strong
employment and family relationships; and his continued denial
of his abuse of the victim. The PSI recommended that Defendant
be sentenced to prison, but it did not address whether Defendant
should serve concurrent or consecutive terms. The prosecutor
also refrained from making a recommendation when asked by
the court whether the sentences should run concurrently or
consecutively.
¶3 Before sentencing Defendant, the trial court specifically
explained that it had “reviewed each and every letter that was
provided.” It also stated that it had “carefully read through the
pre-sentence investigation, heard the discussions and arguments
[of counsel], and that included an analysis of the aggravating
and mitigating circumstances that ha[d] been presented.” The
court was especially concerned because Defendant had violated
a “position of trust,” determining that “multiple lives have
been severely impacted” as a result. Taking all of this into
consideration, the trial court concluded that a term of less than
fifteen years was “not in the interest of justice.” With neither the
PSI nor the State articulating a position on whether the three
sentences should run concurrently or consecutively, the trial
court sentenced Defendant to “three indeterminate terms at
the Utah State Prison of 15 years to life” with “counts one and
two . . . to run consecutive. Count three to run concurrent.”
¶4 Defendant timely appealed, and he now argues that the
“trial court erred by imposing consecutive sentences without
considering all of the relevant statutory factors and by failing to
give adequate weight to various mitigating factors.” “Generally,
we will reverse a trial court’s sentencing decision only if it is an
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State v. Gailey
abuse of the judge’s discretion.” State v. Helms, 2002 UT 12, ¶ 8,
40 P.3d 626.
¶5 As an initial matter, we agree with the State that
Defendant did not preserve this issue for appellate review
because Defendant failed to present the issue to the trial court in
such a way that the court had the opportunity to resolve it. See
State v. Moa, 2012 UT 28, ¶ 23, 282 P.3d 985. The Utah Supreme
Court has “set forth three factors that help determine whether
the trial court had such an opportunity.” Pratt v. Nelson, 2007 UT
41, ¶ 15, 164 P.3d 366. First, the issue must have been raised in a
timely fashion; second, the issue must have been specifically
raised; and third, the party seeking to preserve the issue must
have introduced supporting evidence or relevant legal authority.
Id. See Hart v. Salt Lake County Comm’n, 945 P.2d 125, 130 (Utah
Ct. App. 1997). In the present case all three factors are absent. As
the State points out, “Defendant never challenged the trial
court’s imposition of consecutive sentences or claimed that the
trial court had failed to consider the pertinent statutory factors
and mitigating evidence.” The alleged error was therefore not
preserved for our review.
¶6 Defendant nevertheless argues that “[t]his issue,
alternatively, is reviewable for plain error.” Defendant also
argues, as something of a fail-safe, that if “trial counsel failed to
preserve the issue involving the imposition of consecutive
sentences, counsel denied Defendant of his Sixth Amendment
right to the effective assistance of counsel.”
¶7 Plain error is an exception to our preservation
requirement. State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346.
Similarly, claims of ineffective assistance of counsel, when raised
for the first time on appeal, are excepted from the preservation
rule. State v. Kozlov, 2012 UT App 114, ¶ 35, 276 P.3d 1207. But
whether we review the trial court’s decision for plain error or we
reach the question of trial counsel’s effectiveness, the result is the
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State v. Gailey
same: Defendant’s claim of plain error is unavailing because
there was no error, plain or otherwise. He is likewise
unsuccessful on his ineffective-assistance claim because trial
counsel did not perform deficiently by failing to make a futile
objection to the trial court’s error-free imposition of consecutive
sentences.
¶8 Plain-error review requires looking at a well-settled,
three-part test:
[T]he appellant must show the following: (i) An
error exists; (ii) the error should have been obvious
to the trial court; and (iii) the error is harmful, i.e.,
absent the error, there is a reasonable likelihood of
a more favorable outcome for the appellant, or
phrased differently, our confidence in the verdict is
undermined.
State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993). In the instant
case, the error alleged is that the trial court abused its discretion
by disregarding statutory requirements before imposing
consecutive sentences.
¶9 Our Legislature has mandated that sentencing courts
consider certain factors before deciding whether a defendant’s
multiple sentences should run concurrently or consecutively to
one another. See Utah Code Ann. § 76-3-401(2) (LexisNexis 2012).
These factors are “the gravity and circumstances of the offenses,
the number of victims, and the history, character, and
rehabilitative needs of the defendant.” Id. If a court fails to
consider these factors before ordering that a defendant’s
sentences run consecutively, it abuses its discretion. State v.
Helms, 2002 UT 12, ¶¶ 8–9, 40 P.3d 626. But “[i]n making
sentencing determinations, judges have no obligation to make
findings of fact, and we generally presume that the district court
appropriately considered all the relevant evidence and statutory
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State v. Gailey
factors.” State v. Lingmann, 2014 UT App 45, ¶ 35, 320 P.3d 1063.
We next consider the trial court’s approach in sentencing
Defendant in the present case.
¶10 The trial court affirmatively indicated that it had
“carefully read through the pre-sentence investigation” report
and “all of the correspondence.” These materials account for
nearly one hundred pages of the record. They address the facts
surrounding Defendant’s crimes, personal details about his
life, observations about Defendant’s attitude, the impact of
Defendant’s actions on his victim and her family, and
contrasting views regarding Defendant’s character. In short, the
PSI outlines the very factors that section 76-3-401(2) requires
sentencing courts to consider. Because the trial court carefully
read the PSI and considered the correspondence, it understood
the details of Defendant’s case relating to each of the statutory
factors. This satisfied the requirements of section 76-3-401(2). See
Helms, 2002 UT 12, ¶ 13.
¶11 In State v. Helms, the Utah Supreme Court upheld a trial
court’s imposition of consecutive prison sentences, rejecting a
defendant’s argument that the court had not considered all of
the required statutory factors. See id. ¶¶ 7, 18. As part of its
analysis, the Utah Supreme Court considered the trial court’s
own statement that it had “gone over th[e] presentence report
rather carefully, and read it, and what ha[d] taken place.” Id.
¶ 13 (internal quotation marks omitted). In that case, the
presentence report contained “detailed information regarding
not only the ‘gravity and circumstances of the offenses,’ but
also the ‘history, character, and rehabilitative needs of the
defendant.’” Id. The Supreme Court reasoned that “[a]ll this, the
trial court stated, it had read ‘rather carefully,’ which evidences
that the trial court did consider Helms’ history, character, and
rehabilitative needs.” Id.
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State v. Gailey
¶12 The trial court’s approach to considering the statutory
factors in the case before us is nearly indistinguishable from that
of the trial court in Helms, and the same conclusion therefore
results. Because the PSI contained information relating to each of
the factors outlined in section 76-3-401(2), and because the trial
court carefully considered that information before ordering two
of Defendant’s sentences to run consecutively, the trial court
fulfilled the requirements of the statute. It is Defendant’s burden
to show that the trial court failed to comply with the statute, see
id. ¶ 16, and given the trial court’s explicit indication of its
reliance on the PSI, which contained information corresponding
to each of the statutory requirements, this is a burden he fails to
carry.
¶13 The only particularized complaint Defendant seems to
have regarding the trial court’s consideration of the statutory
factors is that “the court failed to properly consider and resolve
the ambiguity or discrepancy of facts as to Defendant’s
character.” 1 “However, the fact that [Defendant] views his
1. In what might be a separate argument, Defendant alleges that
“not only did the trial court fail to properly consider all of the
statutory factors in section 76-3-401(2) but it failed to give
adequate weight to various mitigating factors prior to imposing
consecutive sentences.” But in support of this argument,
Defendant merely reiterates portions of the PSI that cast him in a
favorable light. This is not the sort of “reasoned analysis based
upon relevant legal authority” that merits plenary consideration
on appeal. See Smith v. Smith, 1999 UT App 370, ¶ 8, 995 P.2d 14.
Furthermore, Defendant’s selective focus on factors that might
have supported imposition of concurrent sentences does nothing
to persuade us that the trial court failed to consider any of the
required statutory factors. This is especially so given that “[t]he
court is not required to give each factor equal weight.” State v.
Scott, 2008 UT App 68, ¶ 10, 180 P.3d 774. And because
(continued…)
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State v. Gailey
situation differently than did the trial court does not prove that
the trial court neglected to consider the factors listed in section
76-3-401[(2)].” Helms, 2002 UT 12, ¶ 14. The trial court stated that
it had considered all of the information regarding Defendant’s
character, and we have no reason to doubt that it did so. It was
not an abuse of discretion for the trial court to consider the
conflicting statements and then decide to impose partially
consecutive sentences. Because there was no abuse of discretion,
there was no error. Because there was no error, we need not
consider the other components of plain-error review. See State v.
Dunn, 850 P.2d 1201, 1209 (Utah 1993) (“If any one of these
requirements is not met, plain error is not established.”).
¶14 The fact that there was no error is also determinative of
Defendant’s ineffective-assistance claim, whereby he asserts that
counsel was remiss for not objecting to the trial court’s
imposition of consecutive sentences.
To show ineffective assistance of counsel . . . , a
defendant must show (1) that counsel’s
performance was so deficient as to fall below an
objective standard of reasonableness and (2) that
but for counsel’s deficient performance there is a
reasonable probability that the outcome . . . would
have been different.
State v. Smith, 909 P.2d 236, 243 (Utah 1995). “Because both
deficient performance and resulting prejudice are requisite
(…continued)
Defendant’s argument concerning the trial court’s weighing of
mitigating factors is lumped in with his analysis of whether the
court properly considered the requisite statutory factors, see
Utah Code Ann. § 76-3-401(2) (LexisNexis 2012), we treat the
arguments as one issue on appeal.
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elements of an ineffective assistance of counsel claim, a failure to
prove either element defeats the claim.” State v. Hards, 2015 UT
App 42, ¶ 18, 345 P.3d 769.
¶15 Defendant argues that his trial counsel performed
deficiently “[b]y failing to object to the imposition of consecutive
sentences and/or by failing to alert the sentencing court to the
factors that it failed to consider prior to imposing consecutive
sentences.” We have already determined that the trial court
properly considered the requisite statutory factors, so all that is
left for us to consider is whether trial counsel’s failure to object
to two of the three sentences running consecutively constitutes
deficient performance.
¶16 As explained above, Defendant has failed to establish
reversible error in the trial court’s approach to sentencing
Defendant to consecutive prison terms. See supra ¶ 12.
Accordingly, any objection to the consecutive sentences would
have been futile. And the “[f]ailure to raise futile objections does
not constitute ineffective assistance of counsel.” State v. Kelley,
2000 UT 41, ¶ 26, 1 P.3d 546.
¶17 In conclusion, Defendant bears the burden of establishing
that the trial court failed to consider the factors outlined in
section 76-3-401(2) of the Utah Code. Because the record
supports a determination that the trial court considered those
factors, Defendant has failed to carry his burden. Thus, we
cannot say that it was an abuse of discretion for the trial court to
impose consecutive sentences in this case. Furthermore, because
futile objections are unnecessary, Defendant’s trial counsel did
not perform deficiently when he chose not to object to the trial
court’s imposition of consecutive sentences.
¶18 Affirmed.
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