State v. Johnson, 900268

• Decision Date: 16 July 1993
• Docket Number: No. 900268,900268
• Citation: 856 P.2d 1064
• Parties: STATE of Utah, Plaintiff and Appellee, v. Mills JOHNSON, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1064

856 P.2d 1064

STATE of Utah, Plaintiff and Appellee, v. Mills JOHNSON, Defendant and Appellant.

No. 900268.

Supreme Court of Utah.

July 16, 1993.

Paul Van Dam and Judith S.H. Atherton, Salt Lake City, for the State.

Nathan D. Hult, Logan, for Mills Johnson.

STEWART, Justice:

Mills Johnson pleaded guilty to three counts of sodomy on a child, a first degree felony, and two counts of sexual abuse of a child, a second degree felony. The trial court denied probation and sentenced Johnson to a minimum mandatory term of ten years to life in prison for each sodomy count and to an indeterminate term of one to fifteen years for each sexual abuse count. Johnson appeals his convictions and the denial of probation. We decline to address the issue of the pleas, but reverse the denial of probation and remand for a new sentencing hearing.

The victim was Johnson's twelve-year-old stepdaughter from a common law relationship. ¹ After taking the guilty pleas, the trial judge postponed sentencing until a presentence report could be prepared. The sentencing hearing was eventually held on April 27, 1990. After hearing evidence, the trial court ruled that Johnson did not qualify for probation under Utah Code Ann. § 76-5-406.5, the so-called incest exception to minimum mandatory sentences for sex offenders. The sentences imposed were to run concurrently, and the court recommended to the Utah Board of Pardons that Johnson serve a ten-year term.

On appeal, Johnson asserts that the trial court erred in failing to determine whether there was a factual basis for his pleas and in concluding that he did not qualify for probation under Utah Code Ann. § 76-5-406.5. He also asserts that he was denied his Sixth Amendment right to effective assistance of counsel because his attorney failed to provide him with the information necessary to make a knowing plea and to present evidence necessary to establish that he qualified for probation.

I.

Johnson argues that his guilty pleas are void because the trial court failed to determine whether there was a factual basis for the pleas as required by State v. Gibbons, 740 P.2d 1309 (Utah 1987). See also State v. Maguire, 830 P.2d 216 (Utah 1992); State v. Hoff, 814 P.2d 1119 (Utah 1991).

The State asserts that the issue is not properly before this Court because Johnson did not move to withdraw his guilty plea in the district court. ² We agree. A defendant is obliged to seek a trial court's ruling on an issue before the issue can be raised in an appellate court. See State v. Anderson, 789 P.2d 27, 29 (Utah 1990); Jolivet v. Cook, 784 P.2d 1148, 1151 (Utah 1989); State v. Steggell, 660 P.2d 252, 254 (Utah 1983).

II.

Sodomy on a child carries a minimum mandatory prison term of five, ten, or fifteen years. Utah Code Ann. § 76-5-403.1(2). A defendant who commits sodomy on a child may not be granted probation except as provided in § 76-5-406.5. Utah Code Ann. § 76-3-406(1). Section 76-5-406.5 states:

(1) In a case involving rape of a child, attempted rape of a child, or sodomy upon a child involving the actor's genitals and the mouth or anus of the child, where 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 to the victim for a continuous period of time of at least one year prior to the earliest offense, and the victim was more than five years of age at the time the earliest offense was alleged or proven, execution of sentence may be suspended and probation may be considered only if all of the following circumstances are found by the court to be present 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:

(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.

Utah Code Ann. § 76-5-406.5(1) (1990). The burden is on the defendant to establish eligibility for probation by a preponderance of the evidence. § 76-5-406.5(3).

The rationale of the probation statute is to keep legally established family relationships intact in appropriate circumstances for the benefit of the nonoffending family members. For example, probation of a sex offender may prevent the economic destitution of innocent family members that may occur if the offender is imprisoned. See State v. Bastian, 765 P.2d 902, 903 n. 1 (Utah 1988); State v. Copeland, 765 P.2d 1266, 1269 (Utah 1988). Probation may also serve numerous other social, psychological, and educational interests of innocent family members. See Bastian, 765 P.2d at 903 n. 1; Copeland, 765 P.2d at 1269.

The district judge ruled that Johnson did not qualify as a stepparent under § 76-5-406.5(1) because his relationship with the victim's mother had not been legally solemnized. The court also ruled that Johnson had failed to show by a preponderance of the evidence that he did not cause the victim severe psychological harm as required by subsection (b); that there were no other victims as required by subsection (d); that it was in the victim's best interests that Johnson not be imprisoned as required by subsection (g); and that he had been accepted for treatment in a recognized family abuse treatment center as required by subsection (h).

Johnson asserts that although he and the victim's mother were not formally married, his relationship with her is cognizable as a valid marriage under Utah Code Ann. § 30-1-4.5 and that the trial judge therefore erred in ruling that he was not a stepparent.

Section 76-5-406.5(1) states that the defendant must be a "parent, stepparent, adoptive parent, and/or legal guardian." The statute does not distinguish between solemnized marriages and those that are not solemnized but that are otherwise legally recognized. Utah Code Ann. § 30-1-4.5 recognizes certain cohabitational relationships as "legal and valid" marriages. A person who is not the parent of a child and has not entered into a solemnized marriage with a child's parent may still be the "stepparent" of that child under § 76-5-406.5 if the relationship qualifies as a valid marriage under the language of § 30-1-4.5. That statute provides:

(1) A marriage which is not solemnized according to this chapter shall be legal and valid if a court or administrative order establishes that it arises out of a contract between two consenting parties who:

(a) are capable of giving consent (b) are legally capable of entering a solemnized marriage under the provisions of this chapter;

(c) have cohabited;

(d) mutually assume marital rights, duties, and obligations; and

(e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.

(2) The determination or establishment of a marriage under this section must occur during the relationship described in Subsection (1), or within one year following the termination of that relationship. Evidence of a marriage recognizable under this section may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases.

Under these provisions, a nonsolemnized marriage is deemed lawful if a court or administrative order establishes the facts enumerated in subsections (1)(a) through (e). However, such an order need not be entered prior to the sentencing hearing for an offender to be considered a stepparent under the probation statute. The trial court could have made the requisite factual determinations and entered an order establishing the relationship as a valid marriage when it decided whether Johnson was entitled to probation. In this case, the trial judge erred in ruling that Johnson could not be a "stepparent" without deciding whether his relationship with the victim's mother qualified as a marriage under § 30-1-4.5.

On remand, the trial court should determine whether Johnson's relationship...