State v. Garner

• Decision Date: 25 January 2008
• Docket Number: No. 20060823-CA.,20060823-CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Anthony Reed GARNER, Defendant and Appellant.
• Court: Utah Court of Appeals

177 P.3d 637

2008 UT App 32

STATE of Utah, Plaintiff and Appellee, v. Anthony Reed GARNER, Defendant and Appellant.

No. 20060823-CA.

Court of Appeals of Utah.

January 25, 2008.

Debra M. Nelson and Raymond S. Shuey, Salt Lake City, for Appellant.

Mark L. Shurtleff, atty. gen., and Jeanne B. Inouye, asst. atty. gen., Salt Lake City, for Appellee.

Before Judges BENCH, BILLINGS, and ORME.

OPINION

BENCH, Judge:

¶ 1 Defendant Anthony Reed Garner appeals his sentence following a conviction on three counts of aggravated sexual assault, a first degree felony. See Utah Code Ann. § 76-5-405 (Supp.2007). Defendant claims that the trial court abused its discretion by considering impermissible factors to elevate his sentence from the presumptive middle range of ten years to life to the upper range of fifteen years to life. Defendant also claims that his sentence violates his Sixth Amendment rights because the mandatory minimum term of his sentence was elevated based on facts found by a judge, rather than facts found by a jury beyond a reasonable doubt. We decline to review Defendant's claim regarding the trial court's consideration of impermissible sentencing factors because Defendant failed to preserve it and it does not qualify for review under the plain error doctrine or rule 22(e) of the Utah Rules of Criminal Procedure. Defendant's claim regarding the constitutionality of his sentence fails because the Sixth Amendment's prohibition on elevating a sentence through judicial fact finding only applies to the elevation of mandatory maximum sentences, not mandatory minimum sentences. Accordingly, we affirm.

BACKGROUND

¶ 2 On May 16, 2004, K.K. (the victim) returned to her apartment and found Defendant inside. Although the victim and Defendant previously had a relationship, the victim had ended the relationship a couple months earlier. After noticing Defendant in her apartment, the victim put her sleeping daughter in a bedroom. She returned to speak with Defendant, who began questioning her about whether she had begun a relationship with another man.

¶ 3 Defendant suddenly began to make sexual advances toward the victim, which she continually resisted. Defendant tried to rub her breasts and kiss her, and then lunged at her and pushed her down. Once the victim was down, Defendant began shoving laundry in her mouth to muffle her screams and slammed her head on the floor. Defendant attempted to use a stereo wire to secure the laundry in her mouth, but the cord slid down to her neck and briefly choked her. Defendant then turned the volume on the stereo up to drown out the noise of the victim's screams and cries for help. He tied the victim's hands with a piece of rope and repeatedly knocked her feet out from under her when she attempted to flee. Defendant straddled the victim and penetrated her vagina with his fingers, then with his penis, and then with a vibrator. When he finished, but while the victim was still tied up, he taunted her, asking, "Is this what you wanted?" and stating, "This is what you deserve." As a result of the assault, the victim experienced a number of injuries. Defendant was subsequently arrested and charged.

¶ 4 Following a jury trial, Defendant was convicted on three counts of aggravated sexual assault—one for each incident of penetration. See Utah Code Ann. § 76-5-405. Pursuant to Utah Code section 76-5-405(2), each crime was punishable by an indeterminate prison term of six, ten, or fifteen years to life. See id. § 76-5-405(2)(a). Utah's indeterminate sentencing scheme, as it was then in effect, required a trial court to impose the middle of the three minimum terms "unless there [we]re circumstances in aggravation or mitigation of the crime." Utah Code Ann. § 76-3-201(7)(a) (2003) (repealed 2007). Prior to the time of sentencing, parties were permitted to submit a statement "identifying circumstances in aggravation or mitigation or presenting additional facts," id. § 76-3-201(7)(b), and the court could consider "the record in the case, the probation officer's report, other reports . . ., statements . . . submitted [by the parties], . . . and any further evidence introduced at the sentencing hearing" when determining whether to impose the upper, middle, or lower minimum term, id. § 76-3-201(7)(c). Thus, this indeterminate sentencing scheme allowed a judge to exercise discretion and increase or decrease the minimum term of a defendant's sentence for aggravated sexual assault, but the maximum term—life—always remained the same.

¶ 5 At Defendant's sentencing hearing, the trial court considered the reports, statements, and other evidence submitted by the parties. Defendant read a prepared statement containing an apology for his crime. The victim gave a statement indicating that she still did not feel safe from Defendant. The court also considered a presentence investigative (PSI) report, which indicated that aggravating factors existed to justify an elevation of Defendant's minimum sentence.

¶ 6 Defense counsel and the prosecutor presented arguments regarding the appropriateness of an upward or downward departure from the middle minimum term of ten years. Defense counsel requested that an inaccurate fact on the PSI report be stricken and presented two mitigating factors that had been overlooked on the PSI report: (1) Defendant's developmental disabilities and (2) the fact that the three counts were part of a single criminal episode. Defense counsel also argued that Defendant's criminal record should only be considered moderate to significant, but not extensive, and emphasized that Defendant had no prior history of this specific type of offense. Additionally, defense counsel urged that factors such as bodily injury or cruelty were not appropriate aggravating factors to consider in this case because the aggravated nature of the crime was implicit in the charges themselves.

¶ 7 The prosecutor presented several aggravating factors and argued for an elevation of Defendant's minimum sentence. The aggravating factors highlighted by the prosecutor included Defendant's prior criminal history and previous failure to obey no-contact orders imposed on him after he was charged with the crime. The prosecutor also argued that Defendant was in a position of trust with the victim because they had been domestic partners, that Defendant lacked remorse, and that the crime was terrible, depraved, and cruel.

¶ 8 At the conclusion of the hearing, the trial court sentenced Defendant to an indeterminate term of fifteen years to life on each count and ordered the first and third counts to be served concurrently and the second count to be served consecutively to the other two. In issuing this sentence, the court stated "I . . . agree with the prosecutor that all of the aggravating factors that he indicated are serious concerns." The court, however, specifically mentioned only three aggravating factors when explaining its decision to elevate the minimum term of Defendant's indeterminate sentence: (1) Defendant's criminal history; (2) Defendant's lack of remorse and failure to understand the implications of his actions; and (3) the unusually cruel nature of the assault. The court also noted that it had taken into account the mitigating factors presented by defense counsel at the hearing. After the trial court pronounced Defendant's sentence, counsel for Defendant did not make an objection on any ground and did not specifically object to the sentence on the ground that the court had considered impermissible factors or violated Defendant's constitutional rights.

ISSUES AND STANDARDS OF REVIEW

¶ 9 Defendant makes two arguments on appeal: (1) the trial court abused its discretion by considering impermissible factors to elevate Defendant's mandatory minimum sentences above the presumptive middle term of severity; and (2) the sentence he received was illegal because it violated his Sixth Amendment right to have a jury, rather than a judge, make factual findings that could elevate his sentence. Defendant argues that his claims were preserved, and even if not, that this court may properly review them under the plain error doctrine or rule 22(e) of the Utah Rules of Criminal Procedure, which allows the review of illegal sentences. The State contends that appellate review of these issues would not be appropriate because Defendant's claims were not preserved and Defendant has not demonstrated any exceptional circumstances, plain error, or entitlement to review under rule 22(e) of the Utah Rules of Criminal Procedure.

¶ 10 Whether a sentence is illegal and qualifies for review under rule 22(e) of the Utah Rules of Criminal Procedure is an issue "[w]e review . . . for correctness." State v. Thorkelson, 2004 UT App 9, ¶ 9, 84 P.3d 854 (citing State v. Telford, 2002 UT 51, ¶¶ 13-4, 48 P.3d 228 (per curiam)). "A constitutional challenge to a statute presents a question of law, which we review for correctness." State v. Lopes, 1999 UT 24, ¶ 6, 980 P.2d 191. "When addressing such a challenge, this court presumes that the statute is valid, and we resolve any reasonable doubts in favor of constitutionality." Id.

ANALYSIS

I. Preservation of Claims

¶ 11 It is well settled that "claims not raised before the trial court may not be raised on appeal." State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. To preserve an issue for appeal, a defendant "must enter an objection on the record that is both timely and specific." State v. Rangel, 866 P.2d 607, 611 (Utah Ct.App.1993). "The objection must `be specific enough to give the trial court notice of the very error' of which [the party] complains." State v. Bryant, 965 P.2d 539, 546 (Utah Ct.App.1998) (quoting Tolman v. Winchester Hills Water Co., 912 P.2d 457, 460 (Utah Ct.App.1996)). This preservation rule "applies to every claim, including constitutional questions." Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346.

¶ 2 At the sentencing hearing in the instant case, defense counsel made numerous...