2016 UT App 87
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
KIRK ROBERT GRAY,
Appellant.
Opinion
No. 20140027-CA
Filed April 28, 2016
Third District Court, West Jordan Department
The Honorable Mark S. Kouris
No. 131400643
John B. Plimpton and Joan C. Watt, Attorneys
for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
GREGORY K. ORME concurred. JUDGE J. FREDERIC VOROS JR.
concurred, with opinion.
ROTH, Judge:
¶1 Kirk Robert Gray pleaded guilty to four counts of rape of
a child, one count of rape, and one count of aggravated sexual
abuse of a child. The district court imposed the statutory prison
sentences on each count and ordered them to run consecutively.
Gray argues that the district court plainly erred when it failed to
recognize that the State breached a plea agreement and failed to
provide Gray a remedy. Gray also contends that the district
court abused its discretion by imposing multiple consecutive
sentences. We affirm.
State v. Gray
BACKGROUND
¶2 In October 2013, Gray entered into a plea agreement
whereby he agreed to plead guilty to six felonies: four counts of
rape of a child, see Utah Code Ann. § 76-5-402.1(2) (LexisNexis
Supp. 2007), one count of rape, see id. § 76-5-402(3) (Supp. 2015),
and one count of aggravated sexual abuse of a child, see id. § 76-
5-404.1(4) (Supp. 2003). In exchange, because the offenses
occurred over a period of about a decade, the State agreed to
designate the dates of some of the offenses so that they would
fall under prior statutory sentencing schemes that provided
more lenient prison sentences than the current versions of those
same statutes.1 In addition, the State agreed to recommend that
the sentences for five of the counts—four counts of rape of a
child and one count of rape—run concurrently with each other.
However, the State reserved the right to recommend that the
sentence for the sixth count—aggravated sexual abuse of a
child—run consecutive to the other sentences.
¶3 At the change of plea hearing, defense counsel recited the
amended charges, the amended dates entered for those charges,
and the potential sentence for each charge. The four counts of
rape of a child would be entered as occurring on or about April
2008, with a presumed minimum prison sentence under the law
in effect at that time of fifteen years to life, but with discretion on
the part of the sentencing judge to order a lower minimum of
either ten years or six years.2 The single rape count would be
1. Gray’s plea agreement provided that he would be sentenced
under the provisions of prior statutes which had lower
mandatory minimum prison terms for the rape of a child and the
aggravated sexual abuse of a child counts. For these counts, we
cite the earlier versions of the statutes.
2. The current version of the rape of a child statute provides for a
prison sentence of ‚not less than 25 years and which may be for
(continued<)
20140027-CA 2 2016 UT App 87
State v. Gray
entered as occurring on or about May 15, 2013, with a minimum
mandatory sentence of five years to life. And the count of
aggravated sexual abuse of a child would be entered as
occurring on or about March 2007, which on that date also
provided for a minimum mandatory sentence of five years to
life.3 Gray orally entered his guilty pleas, confirmed that he
understood his rights and the consequences of pleading guilty,
and signed the plea agreement.
¶4 The district court scheduled a sentencing hearing for
December 17, 2013. Prior to sentencing, Adult Probation
& Parole (AP&P) completed a presentence investigation report
(PSI). The PSI provided detailed information about Gray’s
offenses, his history and circumstances, and AP&P’s overall
assessment and sentencing recommendations. With respect to
the nature and extent of Gray’s crimes, the PSI indicated that
Gray perpetrated his sexual abuse regularly—weekly and often
multiple times per week—for nearly a decade and that he
consistently badgered his victims to engage in sexual activity
with him. Both victims indicated that they suffered
consequences if they refused to comply. And both stated that
they repeatedly requested that Gray stop the abuse, but he
refused to do so, justifying his conduct with statements
indicating that he did not consider his conduct to be wrong.
¶5 AP&P recommended that the court sentence Gray to the
maximum of fifteen years to life for each of the four counts of
(