State v. Gibbons, 860405

• Decision Date: 13 September 1989
• Docket Number: No. 860405,860405
• Citation: 779 P.2d 1133
• Parties: STATE of Utah, Plaintiff and Appellee, v. Bruce GIBBONS, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1133

779 P.2d 1133

STATE of Utah, Plaintiff and Appellee, v. Bruce GIBBONS, Defendant and Appellant.

No. 860405.

Supreme Court of Utah.

Sept. 13, 1989.

R. Paul Van Dam, Charlene Barlow, Salt Lake City, for plaintiff and appellee.

Hans M. Scheffler, Ronald J. Yengich, Salt Lake City, for defendant and appellant.

STEWART, Justice:

Bruce Gibbons was charged with two counts of sexual abuse of a child and one count of sodomy on a child. Sexual abuse of a child is a second degree felony. Sodomy on a child is a first degree felony, subject to a minimum mandatory sentence of five, ten, or fifteen years' imprisonment.

Initially, Gibbons had pleaded guilty to all three counts and was sentenced to prison for two terms of one to fifteen years for sexual abuse of a child and a minimum mandatory term of fifteen years to life for sodomy on a child, all terms to run consecutively. He then appealed, asserting error by the trial court in failing to determine whether his guilty pleas were made knowingly and voluntarily. He also attacked the constitutionality of Utah's minimum mandatory sentencing provisions. This Court held that the trial judge, by failing to inform Gibbons of the "elements of the crimes charged and the relationship of the law to the facts," failed to comply with standards of due process and Rule 11(e) of the Utah Rules of Criminal Procedure. State v. Gibbons, 740 P.2d 1309, 1312 (Utah 1987). See Utah R.Crim.P. 11(e). See also Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 1712-13, 23 L.Ed.2d 274, 279-80 (1969). We remanded the case to the trial court to allow Gibbons to withdraw his guilty pleas but retained jurisdiction for any necessary future action on a remaining issue. Gibbons, 740 P.2d at 1310, 1314. Gibbons then withdrew his guilty plea but stood trial. At the conclusion of trial, the jury was unable to reach a verdict. Prior to retrial, Gibbons once again pleaded guilty to all three counts pursuant to a plea bargain.

At the sentencing hearing before Judge Gordon J. Low, Gibbons testified in mitigation and asked the court to notice the victim's trial testimony. In addition, two witnesses testified as to Gibbons' sincere desire to change and undergo treatment, and five documents were admitted, all reflecting Gibbons' good behavior since his arrest. The court also referred to a presentence report. As agreed in the plea bargain, the State presented no aggravating circumstances at the sentencing hearing and did not oppose defendant's motion to reduce the offense of sodomy on a child one degree pursuant to Utah Code Ann. § 76-3-402 (Supp.1989) so that defendant would no longer be subject to a minimum mandatory prison sentence. The trial court rejected defendant's motion to be sentenced a degree lower. The court sentenced Gibbons to two terms of one to fifteen years for the two counts of sexual abuse of a child and one minimum mandatory term of ten years to life for the offense of sodomy on a child, all three sentences to run concurrently.

Gibbons has again appealed and raises two issues in addition to the retained constitutional question of whether the minimum mandatory provisions are unconstitutionally vague. He contends that the trial court abused its discretion in denying him probation under Utah Code Ann. § 76-5-406.5 (Supp.1989). He also asserts that the trial court abused its discretion in sentencing him to the minimum mandatory term of ten years, the term of middle severity, rather than the lesser term of five years.

I.

We turn first to the claim that the trial court abused its discretion in denying defendant probation. An appellate court will set aside a sentence imposed by the trial court if the sentence represents an abuse of discretion, State v. Gerrard, 584 P.2d 885, 887 (Utah 1978), if the trial judge fails to consider all legally relevant factors, State v. Holland, 777 P.2d 1019 (Utah 1989), or if the sentence imposed exceeds the limits prescribed by law. State v. Shelby, 728 P.2d 987, 988 (Utah 1986); State v. Jolivet, 712 P.2d 843, 844 (Utah 1986); State v. Peterson, 681 P.2d 1210, 1219 (Utah 1984); State v. Harris, 585 P.2d 450, 453 (Utah 1978).

The trial court did not abuse its discretion in denying Gibbons probation. Utah Code Ann. § 76-5-406.5(2) (Supp.1989) provides that probation may be granted to a defendant convicted of sodomy on a child if the defendant is the victim's parent, stepparent, adoptive parent, or legal guardian who has lived in the household in the role of a parent for one year and

so long as all of the circumstances enumerated in Subsections (1)(a) through (l ) are found by the court to exist and the court in its discretion, considering the circumstances of the offense, including the nature, frequency, and duration of the conduct, finds probation or suspension of sentence to be proper.

The "circumstances enumerated in Subsections (1)(a) through (l )" are:

(1)....

(a) the defendant did not use a weapon or use force, violence, substantial duress or menace, or threat of harm in committing the offense;

(b) the defendant did not cause bodily injury to the victim during or as a result of the offense and did not cause the victim severe psychological harm;

(c) the defendant, prior to the offense, had not been convicted of any public offense in Utah or elsewhere involving sexual misconduct in the commission of the offense;

(d) the defendant did not commit an offense described in Part 4 of this chapter against any other victim, at the same time, or during the same course of conduct, or previous or subsequent to the instant offense, except where the additional victim is within the same family and the court finds unusual circumstances exist justifying the granting of probation;

(e) the defendant did not use, show, or display pornography or create sexually-related photographs or tape recordings in the course of the offense;

(f) the defendant did not act in concert with another offender during the offense or knowingly commit the offense in the presence of a person other than the victim or, with lewd intent to reveal the offense to another;

(g) it is in the victim's best interests that the defendant not be imprisoned;

(h) the defendant has been accepted for mental health treatment in a recognized family sexual abuse treatment center which specializes in dealing with the kind of child sexual abuse occurring in this case;

(i) the defendant, as a condition of probation, will maintain residency outside the home for at least one year beginning with the commencement of treatment, and the defendant, as a condition of probation, will not again take up residency in the home until allowed to do so by order of the court;

(j) rehabilitation of the defendant through treatment is probable;

(k) a jail term of at least 30 days is served prior to treatment and probation is imposed for ten years maximum;

(l ) the defendant did not encourage, aid, allow, or benefit from any act of prostitution or sexual act by the victim with any other person, or sexual performance by the victim before any other person.

The trial court examined each of the twelve requirements and discussed defendant's compliance. The court's decision to deny probation was not based on defendant's failure to qualify under the twelve factors listed above. Rather, the trial court held that "the circumstances of the offense, including the nature, frequency, and duration of the conduct," were of controlling importance. Utah Code Ann. § 76-5-406.5(2) (Supp.1989). The trial judge was influenced by the nature, frequency, and duration of the sexual abuse as well as other circumstances, such as the young age of the victim. After considering those factors, the trial court decided against granting probation. Quite clearly, the court's decision was based on a careful consideration of relevant legal factors. In sum, the trial court's decision against probation does not constitute an abuse of discretion.

Gibbons argues that the trial court mistakenly believed that it lacked the discretion to grant probation under any circumstances. Specifically, he contends that the trial court misinterpreted Utah Code Ann. § 76-3-406 (Supp.1989), which states:

(1) Notwithstanding Sections 76-3-201 and 77-18-1, and Chapter 16, Title 77, and any other provision of law, except as provided in Section 76-5-406.5, probation shall not be granted, the execution or imposition of sentence shall not be suspended, the court shall not enter a judgment for a lower category of offense, and hospitalization shall not be ordered, the effect of which would in any way shorten the prison sentence for any person who commits a felony of the first degree involving: child kidnapping, a violation of Section 76-5-301.1; aggravated kidnapping, a violation of Section 76-5-302; rape of a child, a violation of Section 76-5-402.1; any attempt to commit rape of a child; object rape of a child, a violation of Section 76-5-402.3; any attempt to commit object rape of a child; sodomy upon a child, a violation of Section 76-5-403.1; aggravated sexual abuse of a child, a violation of Subsections 76-5-404.1(3) and (4); or aggravated sexual assault, a violation of Section 76-5-405.

(Emphasis added.)

A defendant convicted of a sexual crime against a child can receive probation or reduction of sentence only if he satisfies all the enumerated requirements of Utah Code Ann. §...