State v. Valdez

2017 UT App 185

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JOSEPH MIGUEL VALDEZ,
Appellant.

Opinion
No. 20160279-CA
Filed October 5, 2017

Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 121909797

Debra M. Nelson, Attorney for Appellant
Sean D. Reyes and Jennifer Paisner Williams,
Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.

MORTENSEN, Judge:

¶1 Only four months after being released from his most
recent prison commitment, Defendant Joseph Miguel Valdez
engaged in conduct that resulted in guilty pleas to separate
felonies in three unrelated cases. The district court imposed
indeterminate prison sentences in each case and ordered that the
sentences run consecutively. Defendant appeals these sentences,
arguing that the district court (1) erroneously considered the
reduction and dismissal of charges against Defendant, (2) failed
to consider the gravity and circumstances and number of victims
of two of the crimes, and (3) failed to consider Defendant’s
history, character, and rehabilitative needs. We are unpersuaded
and conclude that the district court did not abuse its discretion
in sentencing Defendant. Accordingly, we affirm.
 State v. Valdez

¶2 Defendant’s cases, arising from separate criminal
episodes, have been consolidated on appeal. In Case One,
Defendant pled guilty to possession or use of a controlled
substance, a third degree felony. See Utah Code Ann. § 58-37-8(2)
(LexisNexis 2016). In Case Two, he pled guilty to theft by
receiving or transferring a stolen vehicle, a second degree felony.
See id. § 41-1a-1316 (2014). And in Case Three, he pled guilty to
aggravated assault, a third degree felony. See id. § 76-5-103
(2012). Before sentencing, the district court ordered Adult
Probation and Parole (AP&P) to prepare a presentence report
(the Report). The Report contained AP&P’s recommendation
that Defendant “be sentenced to the Utah State Prison to the
terms prescribed by law.”

¶3 The Report highlighted Defendant’s lengthy criminal
history and documented that Defendant had been incarcerated
for seventeen of the last nineteen years. The criminal history
involved both state and federal felonies, a prior assault
adjudication, multiple convictions for possessing controlled
substances or possessing controlled substances with intent to
distribute, and multiple weapons charges. The Report further
outlined a dismal probation and parole history with multiple
violations. According to the Report, while being held on the
pending charges, Defendant had been written up on five
disciplinary issues in jail. The Report also noted multiple
aggravating factors and discussed potentially mitigating factors.
Finally, the Report revealed that Defendant had been out of
prison for only four months before he committed the string of
crimes for which he was to be sentenced.

¶4 The court held a single sentencing hearing on all three
cases. At the hearing, defense counsel argued that the district
court should disregard AP&P’s recommendation and instead
place Defendant on zero-tolerance probation, including orders to
help address Defendant’s mental health and substance abuse

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issues.1 Counsel further argued that these issues precipitated the
crimes Defendant committed. Defendant spoke at the hearing,
reiterating his attorney’s request that he receive treatment and
work toward rehabilitation.

¶5 A representative for the victim in Case Three spoke to the
court and related that, as a result of Defendant severely beating
the victim and strangling her to unconsciousness, the victim now
suffers from post-traumatic stress syndrome, severe depression,
and double vision.

¶6 The State urged the district court to impose consecutive
sentences, given “the violent nature of one offense and the
separate criminal episodes,” arguing that the sentencing was for
separate cases and that each should have separate accountability.
The district court inquired whether the defense wanted to
respond further, and the defense declined.

¶7 The district court followed the recommendation of the
State, sentencing Defendant to two indeterminate zero-to-five-
year prison terms and one indeterminate one-to-fifteen-year
prison term, all to run consecutively. In doing so, the district
court acknowledged Defendant’s “concerning” history; “the
horrendousness of what occurred” in the aggravated assault
case, saying “it’s appalling”; and the “substantial reductions” in
charges that had taken place through plea negotiations “to even
get where we are today.”

¶8 Defense counsel urged the district court to reconsider its
imposition of consecutive sentences, arguing “something that
wasn’t mentioned, but from what I recall, part of this plea deal

1. Defense counsel suggested that the court should order
Defendant to serve a year in jail, after which he should be
enrolled in and complete a treatment program as a condition of
probation.

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 State v. Valdez

was that the recommendation would be that they’d run
concurrent to each other.”2 The district court asked which plea
form indicated the agreement to recommend concurrent
sentences, and defense counsel answered, “It’s not on the plea
form, so.” The district court replied, “So no, I’ve made my order,
and I’m not making any modifications to that.”

¶9 Defendant now asks us to reverse the district court’s
sentencing determinations and remand for resentencing, arguing
that the district court abused its discretion by imposing
consecutive sentences. “A court abuses its discretion in imposing
consecutive sentences only if ‘no reasonable [person] would take
the view [adopted] by the [sentencing] court.’” State v.
Thorkelson, 2004 UT App 9, ¶ 12, 84 P.3d 854 (first and third
alterations in original) (quoting State v. Gerrard, 584 P.2d 885, 887
(Utah 1978)). This standard includes a requirement that
sentencing courts “consider all legally relevant factors” and not
impose sentences that are “clearly excessive.” See State v.
Lingmann, 2014 UT App 45, ¶ 34, 320 P.3d 1063 (citation and
internal quotation marks omitted). Sentencing courts “have no
obligation to make findings of fact, and we generally presume
that the district court appropriately considered all the relevant
evidence and statutory factors.” Id. ¶ 35.

¶10 In Defendant’s view, the district court erroneously
“consider[ed] information that was not reasonably relevant or
reliable” because it “considered the reductions and dismissals of
charges pursuant to plea negotiations.” The State counters that
although the district court mentioned the reduction of charges, it
then turned its attention to Defendant’s “criminal history and

2. Defense counsel acknowledged that the “assault is a very bad
charge” but asked that, since “the other two charges are drug-
related theft and retail theft,” the district court “consider at the
very least making . . . the possession and the auto theft
concurrent to each other.”

20160279-CA 4 2017 UT App 185
 State v. Valdez

the circumstances of the aggravated assault before imposing
consecutive sentences.” In the State’s view, the context suggests
“that the trial court was simply making a comment about the
plea-deal reductions, rather than relying on them as a material
sentencing consideration.” Alternatively, the State argues that
even if the district court relied on the reduction of charges in
making its sentencing determinations, such reliance was not
improper.

¶11 In State v. Williams, 2006 UT App 420, 147 P.3d 497, we
reviewed a sentence imposed by a district court that had
“expressed its concern that the gravity of Williams’s alleged
actions was not adequately reflected in his plea bargain.” Id.
¶ 30. The district court further “characterized the reduction of
[the] charges . . . as a ‘[p]retty good plea deal.’” Id. (second
alteration in original). We relied on these facts to support our
conclusion “that the court considered the gravity and
circumstances of Williams’s crimes.” Id. Thus, in Williams, we
did not disapprove of the lower court’s discussion of the
defendant’s plea deal at sentencing. See id. In fact, we considered
that discussion as tending to show that the court had properly
weighed relevant factors. See id.

¶12 Defendant does not address Williams in his brief. He
instead asserts, “Dismissed or reduced charges are not ‘relevant
and reliable information regarding’ the gravity and
circumstances of [his] ‘crime’ or [his] ‘background,’” by citing
State v. Wanosik, 2001 UT App 241, ¶ 34, 31 P.3d 615, aff’d, 2003
UT 46, 79 P.3d 937. The cited portion of Wanosik does not discuss
the use of dismissed or reduced charges in making sentencing
determinations. See id. Instead, it deals with the general
requirements of due process when sentencing a criminal
defendant, including that the “sentencing judge act on
reasonably reliable and relevant information” and that the
sentence “be appropriate for the defendant in light of his
background and the crime committed and also serve the

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interests of society which underlie the criminal justice system.”
Id. (citations and internal quotation marks omitted).

¶13 While we agree with the general propositions asserted by
Defendant, we disagree with his specific contention that
dismissed or reduced charges are irrelevant or unreliable
information regarding the gravity and circumstances of
Defendant’s crime or background. Cf. Williams, 2006 UT App
420, ¶ 30. And we conclude that the reasoning of the Williams
court is applicable here. The State had charged Williams “with
two felonies for possessing two different controlled substances,
as well as three misdemeanor charges for possessing drug
paraphernalia, carrying a concealed weapon, and giving false
identifying information to police.” Id. When he pled guilty to
two counts of attempted drug possession in exchange for the
State dismissing “several lesser counts,” id. ¶ 2, the sentencing
court called this “a ‘[p]retty good plea deal,’” id. ¶ 30 (alteration
in original).

¶14 Similarly, in the present case, the district court noted
“substantial reductions” in charges had taken place through plea
negotiations “to even get where we are today.” The
circumstances of the assault, as well as the other charges, were
described in full narratives in the Report. Defendant took no
issue with the descriptions, even when twice expressly invited
by the district court to do so. Defendant’s assault charge
stemmed from an incident involving his girlfriend. She was
driving when Defendant grabbed the steering wheel. The
girlfriend responded by hitting his arm, and he reciprocated by
punching her in the cheek, continuing to punch her until she got
out of the car, following her out of the car and forcing her into
the backseat, sitting on top of her legs while he punched her in
the face, putting his hands around her neck, and strangling her
until she passed out. He was initially charged with first-degree-
felony aggravated kidnapping and second-degree-felony
aggravated assault. The third-degree-felony aggravated assault

20160279-CA 6 2017 UT App 185
 State v. Valdez

charge to which he ultimately pled guilty appeared in an
amended information after plea negotiations.

¶15 Just as the sentencing court in Williams addressed
Williams’s “good plea deal,” which we viewed as evidence of
that court considering the gravity and circumstances of
Williams’s crimes, so too did the district court in this case
consider Defendant’s reduced charges—or good plea deal—in
considering the gravity and circumstances of Defendant’s
crimes. See id. (internal quotation marks omitted). And because
sentencing courts are required to impose sentences that are
“appropriate for the defendant in light of his background and
the crime committed” in order to comply with due process
requirements, see Wanosik, 2001 UT App 241, ¶ 34 (citation and
internal quotation marks omitted), we cannot say that the district
court abused its discretion by considering the totality of the
circumstances underlying Defendant’s guilty pleas.

¶16 Defendant’s next contention on appeal is that even if the
district court properly considered the conditions surrounding
Case Three, it failed to “consider the gravity and circumstances
of [Case One and Case Two], but based the consecutive
sentences on the facts of [Case Three] alone.” In his view, the
circumstances surrounding Cases One and Two “were relatively
minor, consisting of carrying a small amount of drugs and
taking an unoccupied vehicle and then parking it nearby a short
time later.” He argues that “the trial court failed to consider that
the gravity and circumstances of two of the three offenses were
relatively minor. Thus, the trial court’s order to run all three
sentences consecutive was an abuse of discretion.”

¶17 Defendant’s argument finds its origin in section 76-3-401
of the Utah Code, which outlines limitations on the imposition of
consecutive sentences. See Utah Code Ann. § 76-3-401
(LexisNexis 2012). The law requires that when “a defendant has
been adjudicated guilty of more than one felony offense,” the
sentencing court shall determine “whether to impose concurrent

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 State v. Valdez

or consecutive sentences for the offenses,” and the decision must
be stated on the record. See id. § 76-3-401(1). In making this
decision, “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.”3 Id. § 76-3-401(2). As
we briefly mentioned above, see supra ¶ 9, we entertain a
presumption that sentencing courts considered all necessary
statutory factors, see State v. Lingmann, 2014 UT App 45, ¶ 35, 320
P.3d 1063 (“[W]e generally presume that the district court
appropriately considered all the relevant evidence and statutory
factors.”). Our supreme court has directed that, except in certain
circumstances, “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. To do so would trample on the
deference this court usually gives to the sentencing decisions of a
trial court.”4 State v. Helms, 2002 UT 12, ¶ 11, 40 P.3d 626. Thus,
in considering Defendant’s contention, we begin with the
presumption that the district court considered the “gravity and
circumstances of the offenses” as well as “the number of

3. Defendant separately challenges the district court’s
consideration of his history, character, and rehabilitative needs.
See infra ¶¶ 22–23; see also Utah Code Ann. § 76-3-401(2)
(LexisNexis 2012).

4. The circumstances outlined by the court “are normally limited
to situations where (1) an ambiguity of facts makes the
assumption unreasonable, (2) a statute explicitly provides that
written findings must be made, or (3) a prior case states that
findings on an issue must be made.” State v. Helms, 2002 UT 12,
¶ 11, 40 P.3d 626.

20160279-CA 8 2017 UT App 185
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victims.” See Utah Code Ann. § 76-3-401(2); Lingmann, 2014 UT
App 45, ¶ 35.5

¶18 Defendant offers no persuasive rebuttal of this
presumption. It is true that the district court did not directly
reference its consideration of the gravity and circumstances, or
the number of victims, in Case One and Case Two. But that
silence is insufficient to lead to a conclusion that the district
court abused its discretion. See Helms, 2002 UT 12, ¶ 11.
Furthermore, there is evidence on the record that affirmatively
supports an inference that the district court considered the
gravity, circumstances, and number of victims in Case One and
Case Two. The court had before it the Report, which discussed
each of the three cases separately, including a factual summary
for each case, Defendant’s statement about each case, and a
victim impact statement for each case.

¶19 In Helms, the supreme court concluded that where a
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,”
and the sentencing court represented that it had read the report
“rather carefully,” the record contained “evidence to suggest
that the trial court did consider all of the factors.” Id. ¶ 13
(internal quotation marks omitted). And pointing to the
existence of “a brief sentencing order” and “circumstances
favorable to” the defendant was not sufficient to meet the
defendant’s burden of showing “that the trial court did not
properly consider all the [relevant statutory] factors.” Id. ¶ 16.

5. While our case law establishes this general presumption that a
district court considered all the relevant evidence and statutory
factors, and while findings are not required, it is nevertheless a
preferred practice for district courts to state on the record the
considerations made as outlined by Utah Code section 76-3-
401(2).

20160279-CA 9 2017 UT App 185
 State v. Valdez

¶20 In the present case, the Report directly addressed the
gravity and circumstances of each case, as well as the number of
victims for each case. While the district court did not explicitly
mention its review of the Report, it did discuss the Report in a
way that reveals familiarity with it. The court twice asked
defense counsel whether there were any errors or omissions in
the Report. The court referenced Defendant’s history, which it
found “quite concerning.” Defendant’s history had not
otherwise been addressed at that point in the sentencing hearing,
but it was covered in detail in the Report, suggesting that the
district court reviewed the Report in order to know Defendant’s
history. The prosecutor referred to “a restitution number in the
[Report],” which the district court knew was “at least
$11,569.44,” again suggesting that the district court reviewed the
Report. Given the district court’s familiarity with the contents of
the Report, and particularly in light of Defendant’s inability to
point to contrary evidence, we are confident that the district
court “read and considered [the Report] in making its decision.”
See State v. Epling, 2011 UT App 229, ¶ 11, 262 P.3d 440.

¶21 Furthermore, Defendant focuses his argument on appeal
on circumstances favorable to him—discussing what he deems
to be “relatively minor” offenses. Cf. Helms, 2002 UT 12, ¶ 16.
But, as in Helms, this focus on a self-serving view of the facts is
insufficient to overcome the presumption afforded to the district
court. “Thus, there is nothing in” the record regarding
Defendant’s sentencing “that convinces us that the trial court
exceeded its discretion by failing to consider” the gravity and
circumstances and number of victims in Case One and Case
Two. See Epling, 2011 UT App 229, ¶ 11.

¶22 Defendant’s final argument on appeal is that the district
court failed to consider his “history, character, and rehabilitative
needs.” (Quoting Utah Code Ann. § 76-3-401(2).) He points out
that his “criminal history does not include violent crimes, [that]
he admitted responsibility for his crimes, and [that] he expressed
a commitment and hope to improve himself.” The Report

20160279-CA 10 2017 UT App 185
 State v. Valdez

addressed Defendant’s history, character, and rehabilitative
needs in detail. And, just as we presume that the district court’s
reliance on the Report means it considered the gravity and
circumstances of his offenses, so too must we presume that the
court considered Defendant’s history, character, and
rehabilitative needs. See State v. Helms, 2002 UT 12, ¶ 13, 40 P.3d
626 (“As noted above, the presentence report contains detailed
information regarding not only the gravity and circumstances of
the offenses, but also the history, character, and rehabilitative
needs of the defendant. . . . All this, the trial court stated, it had
read rather carefully, which evidences that the trial court did
consider Helms’ history, character, and rehabilitative needs.”
(internal quotation marks omitted)).

¶23 Moreover, the Report contains significant discussion of
mitigating factors, including Defendant’s regular contact with
his children, letters submitted on his behalf, his cooperative
attitude, and his apparent honesty. The presence of this
mitigating information in the Report indicates that the district
court considered Defendant’s history, character, and
rehabilitative needs in light of relevant mitigating factors and
concluded that consecutive sentences were appropriate. Under
these circumstances, we will not second-guess the district court’s
sentencing decisions.6

6. Defendant separately argues that his sentences were illegal
and should be corrected under rule 22(e) of the Utah Rules of
Criminal Procedure. However, he makes this argument in the
alternative, asking us to consider it if we determine that his
arguments on appeal are unpreserved. Because we reach the
merits of Defendant’s arguments as they were briefed and
conclude that his sentences were proper, we need not reach the
alternative argument. Additionally, rule 22 has a precise and
narrow application to situations when a sentence “is ambiguous
with respect to the time and manner in which it is to be served, is
(continued…)

20160279-CA 11 2017 UT App 185
 State v. Valdez

¶24 We conclude that the district court did not abuse its
discretion in sentencing Defendant to three consecutive prison
terms. The district court did not err by considering the plea
negotiations, because doing so went to the gravity and
circumstances of Case Three. The district court adequately
considered the gravity and circumstances and number of victims
of Case One and Case Two when it considered the Report, which
contained that information. And where the Report also
contained Defendant’s history, character, and rehabilitative
needs, the district court also adequately considered those factors.
We therefore affirm Defendant’s sentences.

(…continued)
internally contradictory, omits a term required to be imposed by
statute, is uncertain as to the substance of the sentence, or is a
sentence which the judgment of conviction did not authorize.”
See State v. Yazzie, 2009 UT 14, ¶ 13, 203 P.3d 984 (citation and
internal quotation marks omitted); see also State v. Houston, 2015
UT 40, ¶ 18, 353 P.3d 55. None of those circumstances seems to
exist in the present case.

20160279-CA 12 2017 UT App 185