State v. Gray

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 (