2017 UT App 90
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
GARY LYNN PHILLIPS,
Appellant.
Per Curiam Opinion
No. 20140633-CA
Filed June 2, 2017
Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 131905428
Debra M. Nelson, Attorney for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee
Before JUDGES J. FREDERIC VOROS JR., STEPHEN L. ROTH, and
DAVID N. MORTENSEN.
PER CURIAM:
¶1 Gary Lynn Phillips appeals his sentences after pleading
guilty to various crimes. Phillips asserts that the district court
erred in sentencing him to prison and requiring some of the
sentences to be served consecutively with others.
¶2 We review the sentencing decision of the district court,
including the decision to grant or deny probation, for abuse of
discretion. See State v. Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d
1167. “An abuse of discretion results when the judge fails to
consider all legally relevant factors, or if the sentence imposed is
clearly excessive.” Id. (citation and internal quotation marks
omitted). Furthermore, “[a]n appellate court may only find
abuse if it can be said that no reasonable [person] would take the
State v. Phillips
view adopted by the trial court.” Id. (second alteration in
original) (citation and internal quotation marks omitted).
¶3 Utah Code section 76-3-401 states the legally relevant
sentencing factors a district court must consider before
determining whether sentences will be imposed concurrently or
consecutively: “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). As a general rule, a district court’s
consecutive sentencing decision will be upheld “whenever it
would be reasonable to assume that the court” considered the
statutory factors, even if the court “failed to make findings on
the record.” State v. Helms, 2002 UT 12, ¶ 11, 40 P.3d 626 (citation
and internal quotation marks omitted). “If the record shows that
the trial court has reviewed information regarding the relevant
legal factors, we can infer that the trial court adequately
considered those factors.” State v. Bunker, 2015 UT App 255, ¶ 3,
361 P.3d 155. Accordingly, it is the defendant’s burden to
demonstrate that the district court did not properly consider the
relevant factors, and appellate courts “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.” Helms, 2002 UT
12, ¶ 11.
¶4 Phillips presents no evidence that the district court failed
to consider all legally relevant factors in sentencing him. First,
the district court noted that it had reviewed the Pre-Sentence
Investigation Report (PSI) multiple times, which included
information concerning “the very factors that section 76-3-401(2)
requires sentencing courts to consider.” See State v. Gailey, 2015
UT App 249, ¶ 10, 360 P.3d 805. The district court also heard
arguments from Phillips’s attorney and from Phillips himself,
detailing the factors Phillips wished the court to consider before
imposing a sentence. Thus, Phillips’s disagreement with the trial
court’s decision is not truly over whether the district court failed
to consider all relevant factors, but rather the application of
those factors to the case.
20140633-CA 2 2017 UT App 90
State v. Phillips
¶5 Based upon the circumstances, we cannot say that the
district court abused its discretion in imposing the sentence it
did. Phillips had an extensive criminal record, much of which
consisted of crimes similar to those at issue in this case. Further,
Phillips’s history on probation was poor, which was
demonstrated in this case when Phillips was charged with other
crimes during his pre-sentencing release. Phillips acknowledged
his extensive record but argued that allowing him to pursue
treatment for his drug addiction better fit his rehabilitative
needs. However, Phillips had been released pending sentencing
for nearly a year after entering his guilty pleas. During that time
not only was he charged with additional crimes, but he failed to
enroll at Odyssey House as required by the terms of his pre-
sentence release. Ultimately, it is clear that the district court
carefully examined all of the relevant factors in making its
sentencing decision. In fact, the trial court did not fully adopt the
PSI’s recommendation or the State’s which would have resulted
in five consecutive zero-to-five year sentences. Instead, the
district court ran only two sentences consecutively with one
another, resulting in a sentence of zero-to-ten years, instead of a
potential sentence of zero-to-twenty-five years. Under these
circumstances, we cannot agree that no reasonable person would
take the view adopted by the district court. See Valdovinos, 2003
UT App 432, ¶ 14.
¶6 Affirmed.
20140633-CA 3 2017 UT App 90