State v. Casper

2018 UT App 185

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TYLER W. CASPER,
Appellant.

Opinion
No. 20170428-CA
Filed September 27, 2018

Fourth District Court, Provo Department
The Honorable Darold J. McDade
No. 161401487

Emily Adams, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

TOOMEY, Judge:

¶1 Tyler W. Casper pleaded guilty to two counts of
first-degree aggravated sexual abuse of a child.1 In exchange, the
State agreed to dismiss Casper’s remaining charges and
recommend that he serve six years to life for each count to run
consecutively rather than the maximum sentence of fifteen years
to life. The district court reduced Casper’s sentence to ten years

1. Casper’s convictions arose from two separate cases involving
aggravated sexual abuse of a child. The district court sentenced
Casper on both cases at the same hearing. Because Casper
challenges the sentences the court imposed, we have
consolidated both cases for purposes of this appeal.
 State v. Casper

to life, noting that his mental-health status warranted a
reduction, but that the aggravating circumstances precluded the
court from reducing it further. The court also ordered both
sentences to be served consecutively. Casper appeals his
sentences, contending his defense counsel was ineffective in
failing to argue that the court should have considered the
proportionality requirement articulated by our supreme court in
LeBeau v. State, 2014 UT 39, 337 P.3d 254. Because we conclude
there was a reasonable tactical basis for counsel not to direct the
court to consider LeBeau’s proportionality requirement, counsel
did not perform deficiently. Accordingly, we affirm.

¶2 Casper was charged with three counts of first-degree
aggravated sexual abuse of a child for acts he perpetrated
against a seven-year-old victim (First Victim). When the police
interviewed him, Casper admitted that he had sexually abused
First Victim. The State later charged Casper with another count
of first-degree aggravated sexual abuse of a child for acts
perpetrated against an eight-year-old victim (Second Victim).
The victims each reported that Casper threatened to hurt them if
they told anyone what he had done.

¶3 While the cases were being investigated, Casper
threatened to kill anyone who tried to help the victims’ families
with the case. He said he would “put their heads down on a
table[] and snap their heads off.” After Casper underwent a
competency evaluation, the evaluators determined that he was
competent to stand trial despite exhibiting the following
conditions: mild autism or Asperger’s syndrome, anxiety,
depression, attention deficit hyperactivity disorder, and impulse
control disorder.

¶4 Casper agreed to plead guilty to two counts of aggravated
sexual abuse of a child, one for each victim. In exchange, the
State agreed to dismiss the two remaining charges and
recommend a sentence of two consecutive terms of six years to
life in prison, rather than the presumptive fifteen years to life.
See Utah Code Ann. § 76-5-404.1(5) (LexisNexis 2017).

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 State v. Casper

¶5 Adult Probation and Parole prepared a presentence
investigation report (the PSI Report). The PSI Report contained a
statement from Casper that “explained his version of what
happened.” He said that First Victim attempted to seduce him
and that he “lost [his] ability to gain control of [the] situation,”
while at the same time expressing remorse for First Victim.
Casper did not express any remorse for the acts he perpetrated
against Second Victim. Casper also acknowledged that he was
aware of “the cyclical patterns of this crime.”

¶6 In other reports filed with the court, Casper admitted that
he had previously put his hand down a female neighbor’s pants
and touched her “private parts.” He also acknowledged that he
has impulse control disorder, which one of the evaluators
explained is “characterized by the repeated inability to refrain
from performing a particular action that is harmful to oneself or
others.” One of his mental health providers said that Casper
“has a history of being violent, aggressive[,] and having
explosive behaviors.” He also tested high on the sexual addiction
scale and, at the time of the evaluation, continued to
“experience[] excessive thinking about sexual behavior, [have]
opportunities to view pornography, and entertain[] sexual
fantasies.”

¶7 At the sentencing hearing, the court was provided with
the PSI Report and letters from the victims’ family members,
Casper, Casper’s family members, and one of Casper’s
therapists. The court also heard statements from the victims’
parents about the impact of Casper’s conduct on the victims.
Casper’s mother spoke on behalf of her son, and Casper spoke
on his own behalf. Casper explained that he had a difficult
childhood and was often “teased.” He then expressed remorse
for his conduct and explained that he had recently become more
spiritual.

¶8 “[A]fter carefully reviewing” all of the information
provided to the court relevant to sentencing, the court concluded
that, “in the interest of justice,” it would reduce Casper’s

20170428-CA 3 2018 UT App 185
 State v. Casper

sentence to ten years to life on both counts to run consecutively
with each other. The court explained that the sentence could be
reduced from the presumptive fifteen years to life because of
Casper’s mental-health status, but that the court could not
reduce it to the six years to life that the State and defense counsel
recommended because of the following aggravating
circumstances: “substantial physical or psychological injury to
the victims,” the number of victims involved, and Casper was in
a position of authority over the victims. Casper appeals.

¶9 On appeal, Casper contends he received constitutionally
ineffective assistance of counsel because defense counsel failed
to “present evidence of proportionality—an essential prong of
the interests-of-justice framework articulated under LeBeau . . .
[at] the sentencing hearing.”2 “When a claim of ineffective
assistance of counsel is raised for the first time on appeal, there is
no lower court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as
a matter of law.” State v. Craft, 2017 UT App 87, ¶ 15, 397 P.3d
889 (quotation simplified).

¶10 To succeed on a claim of ineffective assistance of counsel,
“a defendant must first demonstrate that counsel’s performance
was deficient, in that it fell below an objective standard of
reasonable professional judgment.” State v. Litherland, 2000 UT
76, ¶ 19, 12 P.3d 92; see also Strickland v. Washington, 466 U.S. 668,
687–88 (1984). When challenging counsel’s performance, a
defendant must overcome the “strong presumption that under
the circumstances, the challenged action might be considered
sound trial strategy.” Litherland, 2000 UT 76, ¶ 19 (quotation

2. Casper also appears to argue that the district court erred when
it failed to engage in a proportionality analysis. But Casper did
not raise this issue before the district court and has failed to
argue that the plain error exception to the preservation rule
applies. See State v. Johnson, 2017 UT 76, ¶¶ 18–19, 416 P.3d 443.
We therefore decline to address it.

20170428-CA 4 2018 UT App 185
 State v. Casper

simplified). If the defendant has demonstrated that counsel’s
performance was deficient, the defendant must then show that
the deficient performance was prejudicial and negatively
affected the outcome of the case. Id. ¶ 19; see also Strickland, 466
U.S. at 687–88. If the defendant “fails to establish either of these
prongs, he cannot prevail on a claim of ineffective assistance of
counsel.” State v. Smith, 2012 UT App 338, ¶ 9, 291 P.3d 869
(quotation simplified).

¶11 In LeBeau, 2014 UT 39, 337 P.3d 254, the defendant was
convicted of aggravated kidnapping, aggravated assault, and
cruelty to an animal. Id. ¶ 1. The defendant challenged his
sentence of life in prison without the possibility of parole for the
aggravated kidnapping conviction, arguing that the “district
court failed to properly consider whether the interests of justice
warranted a lesser sentence as allowed for in Utah’s aggravated
kidnapping statute.” Id. ¶¶ 1–2. The Utah Supreme Court noted
that the legislature “added the interests-of-justice language to
Utah’s aggravated kidnapping statute in 2007 as part of a
sweeping revision of the penalties associated with sexual
offenses and kidnapping.” Id. ¶ 29. The court then explained that
the “interests of justice” inquiry “necessarily requires the court
to consider the proportionality of the defendant’s sentence in
relation to the severity of his offense . . . [and] appropriately
weigh a defendant’s potential for rehabilitation.” Id. ¶ 37
(quotation simplified).

¶12 The two factors for the proportionality analysis include
“the seriousness of the defendant’s conduct in relation to the
severity of the sentence imposed” and “the severity of the
sentence imposed in light of sentences imposed for other crimes
in the same jurisdiction.” Id. ¶ 41. The court clarified that the
proportionality analysis requires more than weighing
aggravating and mitigating circumstances. Id. ¶ 30. It then went
on to explain that, when analyzing the defendant’s rehabilitative
potential, sentencing courts must consider all of the relevant
factors. Id. ¶ 54. Although Utah appellate courts did not
explicitly address LeBeau’s application to aggravated sexual

20170428-CA 5 2018 UT App 185
 State v. Casper

abuse cases until after Casper was sentenced, see State v. Alvarez,
2017 UT App 145, ¶ 2, 402 P.3d 191, for the purposes of this
appeal, we assume, without deciding, that it applies.

¶13 Casper’s argument that counsel should have provided
evidence for a proportionality analysis under LeBeau fails
because he cannot show that there was “no conceivable tactical
basis for counsel’s actions.” See State v. Clark, 2004 UT 25, ¶ 6, 89
P.3d 162 (quotation simplified). Counsel reasonably could have
determined that prompting the court to engage in a LeBeau
proportionality analysis would have been more harmful than
beneficial.

¶14 First, directing the court to LeBeau and arguing that
aggravated sexual abuse of a child carries a greater punishment
than “significantly more serious crimes”—such as “murder”—
would have been risky considering the strong language in
LeBeau related to sexual abuse cases, especially those involving
children. In LeBeau, the court stated that “sexual crimes,
particularly those involving children, represent an especially
heinous form of bodily insult” and that sexual crimes “intrude
on the fundamental bodily integrity of the victim like no others
short of murder.” 2014 UT 39, ¶¶ 49–50. Had counsel directed
the court to LeBeau, the court would have considered that
language in light of Casper’s conduct, including the aggravating
circumstances, and could have determined that Casper should
be sentenced to the presumptive fifteen years to life
imprisonment.

¶15 Casper claims that the court did not provide aggravating
circumstances to support the sentence. But the court was not
required to find any aggravating circumstances to support the
sentence, because aggravated sexual abuse of a child carries the
presumptive sentence of fifteen years to life. Utah Code Ann.
§ 76-5-404.1(5) (LexisNexis 2017). Instead, the court was required
to find mitigating circumstances that would justify the reduction
of Casper’s sentence, which it did. Id. § 76-5-404.1(6). In any
event, the court specifically noted that it was “adding [the]

20170428-CA 6 2018 UT App 185
 State v. Casper

aggravating circumstances of causing substantial . . .
psychological injury to the victims. [The crimes] involve two or
more victims, and [Casper was] in a position of authority.”
These circumstances directly correlate to the circumstances
identified in the sexual abuse of a child statute that provides that
a defendant’s conduct becomes aggravated when, among other
circumstances, the defendant: “caused bodily injury or severe
psychological injury to the victim during or as a result of the
offense;” “prior to sentencing for this offense, was previously
convicted of any sexual offense;” or “occupied a position of
special trust in relation to the victim.” Id. § 76-5-404.1(4)(b), (e),
(h).

¶16 The court then stated that “it will be the order and
judgment of the Court then on these two first-degree felonies
that the maximum penalty be imposed,” but “in the interest of
justice,” the court reduced his sentence to ten years to life based
on a mitigating circumstance—Casper’s mental health. It was
therefore reasonable for defense counsel to avoid comparing
aggravated sexual abuse of a child to murder, see LeBeau, 2014
UT 39, ¶¶ 49–50, or other crimes with different sentences, and
instead focus on the mitigating circumstances—such as Casper’s
mental-health status, his lack of a prior criminal history, his
willingness to engage in treatment, and his remorse —and the
State’s sentencing recommendation of a sentence of six years to
life imprisonment.3

3. It appears that Casper is arguing that counsel should have
pushed for a further reduced sentence because Casper’s conduct
aligned more with the elements necessary to convict of only
sexual abuse of a child, “but because he was [related to the
victims], his punishment jumped to 10 years to life.” First, his
punishment did not “jump[]” to ten years to life; it was reduced
from the presumptive fifteen years to life. Second, Casper
pleaded guilty to two of the four counts of aggravated sexual
abuse of a child with the stipulated aggravator of being in a
(continued…)

20170428-CA 7 2018 UT App 185
 State v. Casper

¶17 A second tactical basis for counsel’s decision is apparent
from the record in that Casper and the State negotiated a plea
deal in which part of the agreement for Casper to plead guilty to
the two counts was for the State to recommend a reduced
sentence of two consecutive terms of six years to life. Counsel
therefore reasonably could have determined that he should focus
the court’s attention on the State’s recommendation and that the
recommendation could have been undermined if counsel
directed the court to LeBeau and the proportionality analysis.

¶18 A third tactical basis for counsel not to ask for a
proportionality analysis is that the court would then be required
to consider LeBeau’s second factor regarding Casper’s
rehabilitative potential. Id. ¶ 37. This would have required the
court to consider that Casper had admitted to previously putting
his hand down a female neighbor’s pants and touching her
“private parts.” Casper said he was aware of the “cyclical
patterns of [his] crime[s].” He also acknowledged that he has
impulse control disorder, and one of his therapists explained
that Casper tested high on the sexual addiction scale and
continues to “experience[] excessive thinking about sexual
behavior, [have] opportunities to view pornography, and

(…continued)
position of special trust to the victims. In exchange, the State
dismissed two other counts of aggravated sexual abuse of a
child. And, as explained above, see supra ¶ 15, the court found
other aggravating circumstances to support its decision not to
reduce his sentence further to six years to life. By arguing that
pleading guilty to two counts of aggravated sexual abuse of a
child should be considered akin to pleading guilty to sexual
abuse of a child—because the aggravating factor was only that
he was in a position of special trust—and therefore the sentence
should have been reduced even further would have only served
to highlight the favorable plea deal and undermine Casper’s
apparent remorse for the harm he admits to have inflicted on the
victims.

20170428-CA 8 2018 UT App 185
 State v. Casper

entertain[] sexual fantasies.” All of this information would have
alerted the court to Casper’s poor rehabilitative potential.

¶19 We therefore conclude that defense counsel made a
reasonable tactical decision not to ask the court to engage in a
proportionality analysis under LeBeau and to instead focus on
the mitigating circumstances and the State’s recommendation of
a reduced sentence of two consecutive terms of six years to life
imprisonment. Because Casper has failed to establish that his
counsel performed deficiently, we do not address his prejudice
argument. See Strickland v. Washington, 466 U.S. 668, 697 (1984)
(providing that courts need not address “both components of the
[ineffective-assistance-of-counsel] inquiry if the defendant makes
an insufficient showing on one”). Accordingly, we affirm.

20170428-CA 9 2018 UT App 185