State v. Asta, 112918 UTCA, 20160942-CA
| Opinion Judge | HARRIS, JUDGE |
| Party Name | State of Utah, Appellee, v. Victoria Asta, Appellant. |
| Attorney | Ashley E. Bown, Attorney for Appellant Sean D. Reyes and Jeanne B. Inouye, Attorneys for Appellee |
| Judge Panel | Judge Ryan M. Harris authored this Opinion, in which Judges David N. Mortensen and Michele M. Christiansen Forster concurred. |
| Case Date | November 29, 2018 |
| Court | Utah Court of Appeals |
First District Court, Logan Department The Honorable Brian G. Cannell The Honorable Thomas L. Willmore No. 151100933
Ashley E. Bown, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys for Appellee
Judge Ryan M. Harris authored this Opinion, in which Judges David N. Mortensen and Michele M. Christiansen Forster concurred.
OPINION
HARRIS, JUDGE
¶1 After Victoria Asta pled no contest to charges of burglary and assault against a police officer, the district court sentenced her to prison. Asta now appeals that sentence, asserting that the sentencing judge should have recused himself, and that the court abused its discretion in imposing the sentence. Asta also complains that the court failed to specifically address several of her objections to items contained within the presentence report (PSR). We affirm Asta's sentence, as well as the judge's decision not to recuse himself, but remand for the limited purpose of addressing Asta's objections to items contained within the PSR.
BACKGROUND
¶2 On a November evening in Cache County, Utah, Asta and her boyfriend (Boyfriend) were out for a drive, with Asta behind the wheel. Boyfriend was wearing a "green tactical shirt" and a shoulder holster and had two handguns with him. At some point, Boyfriend exited the vehicle on foot, donned a ski mask, and broke into a house occupied by an elderly couple. When the husband confronted Boyfriend, Boyfriend pointed his gun at him and ordered him into the basement where his wife was watching television. As the owners were calling 911, Boyfriend helped himself to jewelry and other items from the house, and then fled the scene.
¶3 After completing the burglary, Boyfriend got back in the car that Asta was driving. As they drove away from the scene, they passed a sheriff's deputy who was responding to the owners' 911 call. The deputy activated his overhead lights and attempted to stop Asta's vehicle, but Boyfriend told her to "just keep driving, don't stop," and Asta kept driving. As Asta drove past the deputy, she and Boyfriend tried to hide their faces. The deputy turned to pursue them, and a lengthy and dangerous car chase ensued, one that eventually involved speeds of up to 90 mph in and out of traffic on public roads, as well as detours across open fields.
¶4 The deputy called for assistance, and another officer (Officer) eventually initiated a Pursuit Intervention Technique (PIT) maneuver designed to force the fleeing car to turn sideways and stop. The maneuver worked, and caused Asta's vehicle to spin and come to a stop facing the direction it had been traveling. Officer then pulled his vehicle in front of Asta's in an attempt to box it in, but Asta again refused to stop, this time driving her vehicle forward and causing it to collide with Officer's, then scraping past Officer's vehicle and eventually escaping. Officer later described the encounter as one in which Asta "rammed" his vehicle.
¶5 A second high-speed car chase then ensued. Officers attempted another PIT maneuver, this time unsuccessfully. Eventually another officer used his patrol vehicle to push Asta's vehicle off of the roadway, where Asta's vehicle finally came to a stop only because it struck a tree.
¶6 Officers then arrested Asta and Boyfriend. Inside the vehicle, officers found two handguns and a ski mask, among other items. Initially, neither Asta nor Boyfriend would give officers their physical address, and officers at first concluded that they were homeless. But officers eventually discovered where they lived and searched their residence, finding stolen jewelry and drug paraphernalia.
¶7 In relation to her activities on the night in question, the State charged Asta with aggravated robbery and aggravated burglary, both first-degree felonies; assault against a police officer, a second-degree felony; and four additional counts. The State also charged Asta with seventeen other burglary- and theft-related crimes alleged to have occurred before the November incident. These other charges were later dismissed pursuant to an agreement Asta made with the State to "meet with investigators and provide truthful information related to the State's prosecution of [Boyfriend]." Eventually, with regard to the charges stemming from her activities on the night in question, Asta agreed to plead "no contest" to two second-degree felonies: burglary, amended to a second-degree felony, and assault against a police officer. In exchange, the State agreed to drop all remaining charges.
¶8 After Asta entered her plea, Adult Probation and Parole (AP&P) prepared the PSR, and therein recommended that Asta be sentenced to prison. AP&P acknowledged that the applicable sentencing guideline matrix pointed to probation, rather than prison, as the presumptive sentence for someone in Asta's position. However, AP&P nevertheless recommended prison due to certain "aggravating factors," including Asta's perceived "criminal mentality," "lack of remorse," and "refus[al] to cooperate with law enforcement," as well as the fact that the underlying crime included "ramm[ing] an occupied police car."
¶9 The PSR included a statement from Asta, in which she maintained that she did not know that Boyfriend intended to commit burglary when he exited the vehicle on the evening in question. Indeed, Asta stated that she and Boyfriend were "just driving around and exploring random dirt roads and just enjoying a little quiet time together," and that Boyfriend got out of the car because he said he "had to go to the bathroom." While he was doing so, Asta stated that she "told him [she] was going to drive ahead for a bit and see if [she] could find a gas station" where she could purchase snacks. She claimed Boyfriend was "acting strangely" after she picked him back up, and that she fled from police at Boyfriend's urging.
¶10 The day before the sentencing hearing, Asta filed a lengthy written objection to the PSR, arguing that AP&P's recommendation was unwise and "entirely subjective." Asta specifically took issue with AP&P's conclusion that she had failed to show remorse or to take responsibility for her crimes, pointing to her lengthy statement, included in the PSR, in which she apologized and expressed regret.
¶11 At the sentencing hearing, Asta's counsel addressed, at some length, Asta's objections to the report, and made impassioned argument that Asta should be sentenced to probation rather than prison. In addition to argument from counsel, Asta herself provided a statement to the court, as did Asta's mother. On the other side of the ledger, the court also heard from one of the victims of the burglary, and from Officer, who described for the court in person how Asta "rammed" his vehicle while he was inside it. The court also thoroughly questioned an AP&P supervisor about AP&P's recommendation for a prison sentence. The State also argued, among other things, that Asta's claims about what happened that night were false, and that she had to have known what Boyfriend intended to do. In the course of making this argument, the prosecutor mentioned that she did not "believe [the police] found any snacks in the car that she claimed she was going after."
¶12 At the conclusion of the sentencing hearing, the court sentenced Asta to prison on each count, with the sentences to run concurrently. In imposing the sentence, the court stated that it considered Asta's crimes "heinous," and stated its belief that, at least "as it relates to [her] relationship with Boyfriend and the events" in question, Asta had been acting in a "morally bankrupt" manner. The court also stated that it did not credit Asta's explanation that she did not know that Boyfriend was going to commit burglary when he exited the car that night, and stated that it was especially concerned with the danger she had imposed on the members of the community by leading officers on two high-speed car chases. The court also expressed its concern that the crime included the "intentional act of ramming [Officer's] vehicle as described here today."
¶13 Shortly after sentencing, Asta's counsel learned that the sentencing judge had himself been the victim of a home burglary in 2014, the year before the events in question. Asta filed a motion to disqualify, arguing that the burglary biased the judge and that the judge should have recused himself. The motion was referred to the presiding judge, who denied it.
ISSUES AND STANDARDS OF REVIEW
¶14 Asta appeals, and raises three issues for our review. First, Asta asserts that the sentencing judge was obligated to recuse himself because he had been the victim of a home burglary in the year before Asta's crimes, and that the reviewing judge erroneously denied her motion to disqualify the sentencing judge. "Determining whether a trial judge committed error by failing to recuse himself or herself under the Utah Code of Judicial Conduct is a question of law," which we ordinarily review for correctness. State v. Van Huizen, 2017 UT App 30, ¶ 11, 392 P.3d 933 (quotation simplified), cert. granted, 400 P.3d 1044 (Utah 2017). However, if the trial judge "complie[s] exactly with rule 29" of the Utah Rules of Criminal Procedure in handling the motion for disqualification, then the "burden shift[s] to the petitioners" to make an additional showing of either "actual bias or abuse of discretion." State v. Alonzo, 973 P.2d 975, 979 (Utah 1998) (quotation simplified). Additionally, at least in cases in which rule 29 was invoked and followed, see Van Huizen, 2017 UT App 30, ¶¶ 55-63, "any error of the trial judge in failing to recuse" must be disregarded absent a...
To continue reading
Request your trial