State v. Littlejohn

2021 UT App 73
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
LANCE S COTT LITTLEJOHN ,
Appellant.
Opinion
No. 20200224-CA
Filed July 9, 2021
Seventh District Court, Price Department
The Honorable George M. Harmond
No. 191700798
K. Andrew Fitzgerald, Attorney for Appellant
Sean D. Reyes, John J. Nielsen, and Carissa Uresk,
Attorneys for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. O RME and JILL M. POHLMAN concurred.
HARRIS, Judge:
¶1 	Lance Scott Littlejohn pled guilty to three third-degree
felonies, including aggravated assault, an offense he committed
while under court supervision for a previous aggravated assault
against the same victim. The district court sentenced Littlejohn to
prison, and he now appeals, asserting not only that the sentence
itself was an abuse of the court’s discretion, but also that his
attorney rendered constitutionally ineffective assistance at both
the plea hearing and at sentencing, and that the court committed
plain error in accepting his guilty plea. We reject Littlejohn’s
arguments, dismiss part of his appeal, and affirm his sentence.

State v. Littlejohn
20200224-CA 	2 	2021 UT App 73
BACKGROUND
¶2 	In November 2019, Littlejohn and his wife (Wife) were in
a car together, with Littlejohn driving. The two of them were
arguing, and Wife was “crying and ask[ing] to be let out of the
vehicle” but Littlejohn refused. Wife was able to call 911, and
during the call Littlejohn could be heard in the background
telling Wife, “I told you never to hit me. I told you I’d never hit
you if you didn’t hit me first. I’ve kept to my promise. You
[expletive] hit me first.” Police attempted to stop the vehicle, but
perceived that Littlejohn was trying to elude them; he was
driving recklessly and, according to Wife, was threatening to
crash the car on purpose, telling her that he “was not going to be
caught and do another two and a half years.” At one point,
Littlejohn 	slammed 	on 	the 	brakes, 	causing 	Wife 	to 	hit 	the
dashboard. When Littlejohn finally stopped, police observed that
Wife had blood running from her nose. Related to these events,
the State charged Littlejohn with kidnapping, a second-degree
felony; domestic assault, a class B misdemeanor; and reckless
driving, also a class B misdemeanor.
¶3 	At the time of these events, Littlejohn was under court
supervision related to a previous assault he committed against
Wife. In that incident, which occurred just over a year earlier,
Littlejohn and Wife had a dispute about their plans for the
evening: Littlejohn wanted to work on a computer, and Wife
wanted to watch movies. The argument quickly escalated into a
physical altercation resulting in Littlejohn throwing a computer
tower at Wife, grabbing Wife’s face and causing her nose to
bleed, and holding her in a headlock until she lost consciousness.
When police arrived, they observed that “the apartment . . .
appeared as though a bomb had gone off inside,” with broken
glass and fresh blood on the ground. As a result of these events,
Littlejohn pled guilty to attempted aggravated domestic assault

State v. Littlejohn
20200224-CA 	3 	2021 UT App 73
(a 	class 	A 	misdemeanor) 	and 	possession 	of 	a 	controlled
substance1 (also a class A misdemeanor), but the court in that
case agreed to hold the plea in abeyance pending a twenty-four-
month supervision period. Littlejohn was in the midst of that
supervision period in November 2019, when the incident in the
car took place.
¶4 	Following the November 2019 incident, Littlejohn was
taken into custody at the county jail, and the court issued a pre-
trial protective order prohibiting Littlejohn from “directly or
indirectly contacting, harassing, telephoning, mailing, e-mailing,
or communicating in any way with” Wife. A few weeks later,
however, 	jail 	officials 	discovered 	that 	Littlejohn 	had 	been
telephoning Wife through another inmate’s account and had
been 	trying 	to 	“coerce 	[her] 	into 	changing 	her 	statement
regarding 	the 	incident” 	in 	the 	vehicle. 	These 	efforts 	had
apparently been somewhat successful, as evidenced by Wife
contacting police “requesting to change her statement.” Related
to these events, the State charged Littlejohn with five additional
third-degree 	felonies: 	four 	counts 	of 	violation 	of 	a 	pretrial
protective order and one count of witness tampering.
¶5 	A few weeks later, Littlejohn and the State entered into a
plea agreement. Under the terms of that agreement, Littlejohn
agreed to plead guilty to three third-degree felonies: one count
of 	aggravated 	assault 	(filed 	pursuant 	to 	an 	amended
information) relating to the car incident, and two counts—one
for violating the pretrial protective order and one for witness
tampering—relating to the jail phone calls. In exchange, the State
agreed to dismiss all remaining charges stemming from those
two incidents. In addition, Littlejohn stipulated to the court
1. 	As 	police 	cleared 	the 	home, 	they 	discovered 	drug
paraphernalia and what appeared to be heroin.

State v. Littlejohn
20200224-CA 	4 	2021 UT App 73
setting aside his plea in abeyance, and to the entry of his
misdemeanor guilty pleas, in the previous assault case.
¶6 	Before accepting the guilty plea, the district court engaged
in a lengthy colloquy with Littlejohn. The court specifically
asked Littlejohn if he was “under the influence of any controlled
substance, even if it’s something that might be prescribed to you
that would interfere with your ability to understand what we’re
doing today,” to which Littlejohn answered, “No, sir.” The court
informed Littlejohn that, at sentencing, he could be sentenced to
prison, and Littlejohn confirmed that he understood that. The
court also informed Littlejohn that he had the right to seek
withdrawal of his plea, but that he must seek that relief before
sentence was imposed, to which Littlejohn also affirmatively
responded 	that 	he 	understood. 	Finally, 	Littlejohn 	signed 	a
written 	plea 	agreement 	incorporating 	much 	of 	the 	same
information. Following entry of the plea, the court released
Littlejohn from custody and modified the protective order to
allow 	Littlejohn 	to 	contact 	Wife. 	The 	court 	scheduled 	a
sentencing hearing to take place a few weeks later.
¶7 	In the meantime, Littlejohn was screened for possible
participation in the local mental health court, a specialty court
for 	individuals 	with 	diagnosed 	mental 	illnesses 	which 	is
designed to address not only the crime committed, but also the
underlying mental health condition that may have contributed
to 	its 	commission. 	See 	Mental 	Health 	Court 	FAQs, 	National
Alliance on Mental Illness: Utah, https:namiut.org/resources/ite
m/516-mental-health-court-faqs 	[https://perma.cc/6UC3-FHSJ]
[hereinafter FAQs]; see also E. Lea Johnston, Theorizing Mental
Health Courts, 89 Wash. U. L. Rev. 519, 521 (2012) [hereinafter
Johnston, 	Theorizing]. 	Like 	forty-two 	other 	states, 	Utah 	has
created mental health courts in many of its judicial districts. See
Mental Health Courts Operating in Utah, https://le.utah.gov/interi
m/2016/pdf/00002566.pdf [https://perma.cc/M3D6-BG6T]; see also
E. Lea Johnston & Conor P. Flynn, Mental Health Courts and

State v. Littlejohn
20200224-CA 	5 	2021 UT App 73
Sentencing Disparities, 62 Vill. L. Rev. 685, 686 (2017) (stating that
forty-three states use mental health courts). To qualify for mental
health court in Utah, an offender must be diagnosed with a
specific categorized mental disorder, and the crime in question
must not have been a violent crime involving “significant bodily
injury” or (in most cases) a sexual crime. FAQs; see also Johnston,
Theorizing, 	at 	566 	n.263 	(“Mental 	health 	courts 	as they 	are
currently 	formulated 	accept 	only 	the good 	risks. 	Cases are
limited to those where the crimes are minor and the risk of
violence 	minimal.” 	(quotation 	simplified)). 	Prior 	to 	entering
mental health court, the offender must plead guilty to the
offense in question, but the sentence is then suspended while the
offender 	participates 	in 	a 	rigorous 	treatment 	program
supervised by prosecutors and professional treatment providers
and involving weekly status hearings in court. See FAQs. If the
offender 	successfully 	completes 	the 	program, 	the 	offender
receives a reduced sentence or even dismissal of the charges; if
the offender fails to complete the program, the conviction is
entered and sentence imposed. See id. The goal of mental health
court is to reduce recidivism and incarceration of mentally ill
offenders by safely and properly addressing the underlying
issues that contributed to participants’ criminal activity. See id.
Mental health courts have been successful; studies show that
mental health court participants (regardless of whether they
completed 	the 	program) 	show 	a 	“substantial” 	reduction 	in
recidivism more than one year after initial enrollment. See Dale
E. McNiel & Renee L. Binder, Effectiveness of a Mental Health
Court in Reducing Criminal Recidivism and Violence, 164 Am. J.
Psychiatry 1395, 1401 (2007).
¶8 	Given his history, Littlejohn was a credible candidate for
mental health court. In the fall of 2019, while under court
supervision related to the domestic assault plea in abeyance,
Littlejohn underwent a “combined substance use and mental
health assessment” with a licensed behavioral health therapist.

State v. Littlejohn
20200224-CA 	6 	2021 UT App 73
The evaluator’s report from that assessment (the Assessment
Report) is not included in the record submitted to us. But the
record does include another health professional’s brief summary
of the Assessment Report’s content. According to the summary,
the Assessment Report indicated that Littlejohn was diagnosed
with post-traumatic stress disorder (PTSD), panic disorder, and
“psychoactive substance-induced disorder,” and recommended
that 	Littlejohn 	undergo 	weekly 	individual 	therapy, 	couples
counseling with Wife, and medication management. While in
custody 	following 	the 	November 	2019 	incident, 	Littlejohn
continued to meet with mental health professionals and pursue
treatment; in particular, he “attended jail group and started
medication management with the med team at the jail.” Even
after release following entry of the plea, Littlejohn continued to
pursue mental health treatment, including individual therapy
sessions, and one treatment provider opined that Littlejohn was
“making progress and gaining stability.” At some point prior to
the scheduled sentencing hearing, those in charge of the local
mental health court made the decision that Littlejohn was an
appropriate candidate and indicated that they were willing to
accept Littlejohn into the program.
¶9 	Also prior to the sentencing hearing, Adult Probation and
Parole (AP&P) prepared a presentence investigation report (PSR)
regarding Littlejohn for the court’s benefit at sentencing. In the
PSR, AP&P concluded that, under the general sentencing matrix,
a person in Littlejohn’s situation should ordinarily be given a
suspended 	prison 	sentence 	and 	be 	placed 	on 	supervised
probation subject to certain conditions, including serving a jail
sentence of up to 180 days. But in Littlejohn’s case, AP&P
recommended 	that 	the 	court 	deviate 	from 	the 	guidelines’
recommendation, and simply impose a prison sentence. AP&P
concluded that Littlejohn was a “community safety risk,” and
based that conclusion on Littlejohn’s previous “multiple violent
offenses” and the fact that he had been given “the opportunity at

State v. Littlejohn
20200224-CA 	7 	2021 UT App 73
supervision in the past and was under the [c]ourt’s supervision
when he committed the present offenses.”
¶10 	At 	the 	sentencing 	hearing, 	the 	State 	acknowledged
that Littlejohn had been accepted into mental health court,
but 	nevertheless 	voiced 	its 	agreement 	with 	AP&P’s
recommendation. The prosecutor stated her belief that Littlejohn
was “not fit for community supervision” and that Wife’s life
would be “in jeopardy” if Littlejohn remained out of prison.
Littlejohn’s attorney (Counsel), by contrast, argued vigorously
that 	the 	court 	should 	afford 	Littlejohn 	the 	opportunity 	to
participate in mental health court. Counsel emphasized that
Littlejohn 	appeared 	to 	be 	making 	significant 	progress 	in
treatment, and asserted that the situation between Littlejohn and
Wife was improving. Wife also appeared at the sentencing
hearing and urged the court not to sentence Littlejohn to prison,
stating that she needed Littlejohn at home and that he was “a
whole different person” since beginning therapy and taking
medication. Finally, Littlejohn addressed the court. He began by
discussing 	his 	mental 	health 	struggles, 	disclosing 	that 	he
previously was “always thinking about suicide” and “used to be
angry 	every 	day.” 	Littlejohn 	claimed 	that, 	since 	beginning
treatment and his medication regimen, he “hadn’t had an angry
day” or suicidal thoughts, but postulated that if he went to
prison it could make him more violent.
¶11 	Nevertheless, the court sentenced Littlejohn to prison on
all 	three 	felony 	counts, 	ordering 	that 	the 	sentences 	run
concurrently with one another. The court acknowledged that this
was a “difficult case[]” and commended Littlejohn for the strides
he had taken to get mental health treatment. But the court
expressed concern over what it described as “a number of
violent episodes” that had become “increasingly violent” over
the years, and stated that it had “to look at also the safety of the
community,” that it was “very concerned” because it did not

State v. Littlejohn
20200224-CA 	8 	2021 UT App 73
know what would happen should Littlejohn discontinue his
medication, and that it did not “dare take a chance anymore.”
ISSUES AND STANDARDS OF REVIEW
¶12 	Littlejohn now appeals his prison sentences for the felony
convictions,2 and raises three main issues for our review. First,
he 	argues 	that 	his 	plea 	was 	improperly 	entered 	without
appropriate assessment of his mental health issues. There are
two components to this argument: Littlejohn asserts that the
district court plainly erred by not evaluating his mental health
diagnoses more fully before accepting the plea, and in addition
contends that Counsel rendered ineffective assistance at the plea
hearing for similar reasons. The State raises a jurisdictional
challenge to this portion of Littlejohn’s appeal, asserting that,
because Littlejohn did not file a motion to withdraw his plea
prior to imposition of sentence, Utah’s plea withdrawal statute
bars any direct appeal of these issues. We find merit in the
State’s jurisdictional challenge, a question we review in the first
instance as a matter of law, see State v. Allgier, 2017 UT 84, ¶ 13,
416 P.3d 546, and therefore we do not reach the merits of
Littlejohn’s challenges to entry of the plea.
¶13 	Second, Littlejohn challenges his sentence on the merits,
and asserts that the district court should have suspended his
prison sentences and allowed him to participate in mental health
court. District courts are afforded “wide latitude” in sentencing.
State 	v. 	Moa, 	2012 	UT 	28, 	¶ 	34, 	282 	P.3d 	985 	(quotation
2. 	Littlejohn 	does 	not 	appeal 	his 	sentence 	on 	the 	two
misdemeanor charges in the plea-in-abeyance case. Littlejohn’s
challenges 	to 	his 	felony 	sentences, 	though 	arising 	in 	two
different cases at the district court level, have been consolidated
into one case for purposes of appeal.

State v. Littlejohn
20200224-CA 	9 	2021 UT App 73
simplified). Indeed, our supreme court has stated that sentencing
courts are better positioned than appellate courts “to weigh the
many intangibles of character, personality, and attitude” that
play into a sentencing determination. See State v. Killpack, 2008
UT 49, ¶ 58, 191 P.3d 17 (quotation simplified). We will not
overturn 	a 	district 	court’s 	sentencing 	decision 	unless 	the
sentence “exceeds statutory or constitutional limits, the [court]
failed to consider all the legally relevant factors, or the actions of
the [court] were . . . inherently unfair.” Id. ¶ 59 (quotation
simplified); see also State v. Gasper, 2018 UT App 164, ¶ 26, 436
P.3d 200 (stating that we review sentencing determinations for
“an abuse of discretion,” reversing “only if no reasonable person
would take the view adopted by the district court” (quotation
simplified)).
¶14 	Finally, 	Littlejohn 	asserts 	that 	Counsel 	was
constitutionally ineffective during the sentencing phase of his
case. “A claim of ineffective assistance of counsel raised for the
first time on appeal presents a question of law, which we
consider de novo.” State v. King, 2018 UT App 190, ¶ 11, 437 P.3d
425 (quotation simplified).
ANALYSIS
I
¶15 	We begin by addressing Littlejohn’s claim that his plea is
void because, given his mental health struggles, neither the court
nor Counsel properly engaged with Littlejohn about his capacity
to enter the plea. Littlejohn did not raise these challenges before
the district court; in particular, Littlejohn did not file a motion to
withdraw his plea prior to sentencing. Littlejohn acknowledges
that these challenges are unpreserved, but asks that we review
them 	for 	plain 	error 	and 	ineffective 	assistance 	of 	counsel,
respectively. 	However, 	we 	lack 	jurisdiction 	to 	review 	such

State v. Littlejohn
20200224-CA 	10 	2021 UT App 73
claims because Utah law forecloses direct appellate review of all
challenges 	to 	the 	propriety 	of 	a 	guilty 	plea 	unless 	those
challenges were included in a motion to withdraw the plea filed
prior to sentencing. See State v. Allgier, 2017 UT 84, ¶¶ 18–19, 416
P.3d 546; Utah Code Ann. § 77-13-6 (LexisNexis 2017).
¶16 	Our legislature has enacted a statute (the Plea Withdrawal
Statute) that governs the withdrawal of a defendant’s plea. See
Utah 	Code 	Ann. 	§ 	77-13-6. 	Under 	the 	terms 	of 	the 	Plea
Withdrawal Statute, a guilty plea “may be withdrawn only upon
leave of the court and a showing that it was not knowingly and
voluntarily made.” Id. § 77-13-6(2)(a). Any request to withdraw
such a plea “shall be made by motion before [the] sentence is
announced.” Id. § 77-13-6(2)(b). And “[a]ny challenge to a guilty
plea not made” prior to sentencing “shall be pursued,” if at all,
in a post-conviction proceeding. Id. § 77-13-6(2)(c).
¶17 	In interpreting the Plea Withdrawal Statute, our supreme
court 	has 	explained 	that, 	by 	requiring 	defendants 	to 	seek
withdrawal 	of 	guilty 	pleas 	prior 	to 	sentencing, 	the 	statute
“establishes a standard of preservation” and “imposes a strict
sanction of waiver that is not subject to” the common-law
exceptions to our preservation doctrines, including plain error
and ineffective assistance of counsel. See State v. Rettig, 2017 UT
83, ¶¶ 34, 44, 416 P.3d 520; see also Allgier, 2017 UT 84, ¶¶ 26, 28
(stating 	that 	the 	Plea 	Withdrawal 	Statute 	presents 	a
“jurisdictional 	bar” 	that 	cannot 	be 	evaded 	“through 	the
exceptions to preservation,” and that when a defendant fails to
seek withdrawal of a plea before sentencing, that defendant
“forfeit[s] [the] right to a direct appeal” and must pursue any
unpreserved challenges in a post-conviction proceeding). “Thus,
the 	Plea 	Withdrawal 	Statute, 	combined 	with 	long-standing
preservation doctrines, operates to prevent a defendant from
raising, on direct appeal, new grounds for withdrawal of a
plea—even 	by 	means 	of 	plain 	error 	review 	or 	claims 	for
ineffective assistance of counsel—that were not brought to the

State v. Littlejohn
20200224-CA 	11 	2021 UT App 73
attention of the trial court prior to sentencing.” State v. Harper,
2020 UT App 84, ¶ 14, 466 P.3d 744; see also State v. Brown, 2021
UT 11, ¶ 26 (“[T]he Plea Withdrawal Statute bars the appellate
courts of Utah from reviewing on direct appeal all untimely or
unpreserved challenges to guilty pleas.”).
¶18 	In this case, because Littlejohn did not seek to withdraw
his plea prior to imposition of sentence, the Plea Withdrawal
Statute mandates that any challenges to the propriety of his plea
must be pursued through post-conviction proceedings. We have
no jurisdiction to review such challenges now, even when they
are brought to us in the form of claims for plain error or
ineffective assistance of counsel. See Utah Code Ann. § 77-13-
6(2); Allgier, 2017 UT 84, ¶¶ 26, 28.
¶19 	Littlejohn resists this conclusion, asserting that the Plea
Withdrawal Statute only governs challenges to the “knowing
and voluntariness” of the plea, and does not govern situations in
which there have been “strict compliance violations” during the
plea colloquy. Relying on rule 11 of the Utah Rules of Criminal
Procedure, Littlejohn asserts that the court and Counsel had a
duty to ensure that the plea colloquy was sufficient to meet
constitutional 	and 	procedural 	protections, 	and 	that 	his
challenges to compliance with this rule do “not actually fall
under the [Plea Withdrawal Statute] and the jurisdictional bar
contained 	therein.” 	In 	sum, 	he 	contends 	that 	the 	Plea
Withdrawal Statute applies “only when the error and burden are
the defendant’s, [and] not when the trial court has failed in its
strict 	compliance 	with 	its 	duties 	and 	responsibilities.” 	This
argument is unpersuasive.
¶20 	Rule 11 outlines elements conducive to a constitutionally
valid plea hearing, see Utah R. Crim. P. 11, and “is designed to
protect an individual’s rights when entering a guilty plea by
ensuring that the defendant receives full notice of the charges,
the elements, how the defendant’s conduct amounts to a crime,

State v. Littlejohn
20200224-CA 	12 	2021 UT App 73
the consequences of the plea, etc.,” see State v. Alexander, 2012 UT
27, ¶ 17, 279 P.3d 371 (quotation simplified). But our supreme
court has made clear that, “although rule 11 provides guidance
for the entry of guilty pleas, any attempt to withdraw that plea is
governed by statute.” See id. ¶ 19 (quotation simplified); see also
State v. Velarde, 2015 UT App 71, ¶ 8, 347 P.3d 452 (“Rule 11
governs the taking of guilty pleas, but not their withdrawal.”).
See generally State v. Walker, 2013 UT App 198, 308 P.3d 573
(applying 	the 	Plea 	Withdrawal 	Statute 	to 	a 	rule 	11 	strict
compliance challenge). Indeed, it is “the federal Due Process
Clause and our Plea Withdrawal Statute—not rule 11”—that
govern the question of whether a guilty plea may be withdrawn.
See State v. Trotter, 2014 UT 17, ¶ 8, 330 P.3d 1267.
¶21 	Littlejohn 	also 	attempts 	to 	support 	his 	argument 	by
citation to State v. Beckstead, 2006 UT 42, 140 P.3d 1288, asserting
that our supreme court, in that case, “differentiated the type of
appellate 	issues 	raised 	pertaining 	to 	Rule 	11 	and 	plea
withdrawals,” 	and 	instituted 	a 	requirement 	that 	there 	be
“meaningful engagement” between the defendant and the court
during 	the 	plea 	colloquy. 	But 	in 	Beckstead, 	the 	defendant’s
challenges to his plea colloquy were timely under the Plea
Withdrawal Statute and thus merited direct appellate review. See
id. ¶ 4; see also Utah Code Ann. § 77-13-6(2)(a)–(b). In that
procedural scenario, an appellate court may examine whether a
“meaningful engagement” took place between the defendant
and the court during the plea colloquy. See Beckstead, 2006 UT 42,
¶ 18. Because the defendant had timely moved to withdraw his
plea, the Beckstead court did not discuss or apply the Plea
Withdrawal 	Statute’s 	jurisdictional 	bar; 	indeed, 	nothing 	in
Beckstead supports the proposition that the jurisdictional bar is to
be applied on a case-by-case basis depending on the nature of
the alleged error. See id. ¶¶ 10–21.
¶22 	Finally, 	Littlejohn’s 	argument 	is 	foreclosed 	by 	our
supreme court’s recent ruling in State v. Flora, 2020 UT 2, 459

State v. Littlejohn
20200224-CA 	13 	2021 UT App 73
P.3d 975, a case materially indistinguishable from this one. In
Flora, the defendant attempted to argue, on appeal, that “his
behavior throughout the proceedings should have alerted the
district court and trial counsel to the possibility that he was not
competent to plead guilty.” Id. ¶ 5. And as in this case, the
defendant in Flora raised those issues in the form of plain error
and ineffective assistance of counsel claims, because he had not
made those arguments in any presentence motion to withdraw
the plea. See id. ¶¶ 5, 18. For this reason, the supreme court
refused to consider them, stating that “while [the defendant]
could likely [have] raise[d] these challenges under the common-
law 	preservation 	rule, 	the 	Plea 	Withdrawal 	Statute’s
preservation rule bar[red] him from doing so here.” Id. ¶ 18.
¶23 	Accordingly, pursuant to the Plea Withdrawal Statute, we
lack 	jurisdiction, 	on 	direct 	appeal, 	to 	consider 	Littlejohn’s
challenges to the propriety of his guilty plea, even where those
claims come to us in the form of claims of plain error and
ineffective assistance of counsel. We therefore dismiss the part of
Littlejohn’s appeal that seeks to challenge the propriety of his
guilty plea. See Zion Village Resort LLC v. Pro Curb U.S.A. LLC,
2020 UT App 167, ¶ 56, 480 P.3d 1055 (“When we lack appellate
jurisdiction, we retain only the authority to dismiss the appeal.”
(quotation simplified)).
II
¶24 	We now turn to Littlejohn’s challenge to the substance
of 	his 	sentence: 	he 	asserts 	that 	the 	district 	court 	abused
its discretion in sentencing him to prison rather than affording
him 	the 	opportunity 	to 	participate 	in 	mental 	health 	court.
Littlejohn mounts a two-part challenge to the court’s sentencing
decision.
¶25 	First, Littlejohn argues that the court abused its discretion
by 	failing 	to 	adequately 	consider 	all 	the 	legally 	relevant

State v. Littlejohn
20200224-CA 	14 	2021 UT App 73
sentencing factors. See State v. Cline, 2017 UT App 50, ¶ 7, 397
P.3d 652 (“When making sentencing decisions, courts weigh and
consider 	the 	following 	factors: 	public 	safety, 	punishment,
deterrence, incapacitation, restitution, and rehabilitation.”). He
points to only one factor that he believes the court failed to
properly consider: his rehabilitative needs, and specifically his
mental health issues. We reject this argument, because the court
was well aware of, and clearly considered, Littlejohn’s mental
health issues before imposing sentence.
¶26 	There 	is 	no 	question 	that 	the 	court 	had 	Littlejohn’s
mental 	health 	issues 	well 	in 	mind 	at 	sentencing. 	In 	the
PSR, which was available to the court prior to the hearing,
AP&P 	noted 	that 	Littlejohn 	suffered 	from 	“depression 	and
anxiety” and from PTSD. In addition, Littlejohn submitted to
the court a letter from a health care professional that contained
a 	summary 	of 	the 	Assessment 	Report; 	in 	that 	letter, 	the
court was informed that Littlejohn had been diagnosed with
PTSD 	and 	panic 	disorder, 	and 	that 	he 	was 	involved 	in
therapy and “medication management” for his mental health
conditions.3 	The 	letter 	also 	indicated 	that 	Littlejohn 	was
3. Littlejohn asks us to consider a second letter from a different
health care professional, and attaches it to his brief. But as
Littlejohn acknowledges, the letter was filed after sentencing,
was not considered by the district court, and is not properly part
of the record. Under these circumstances, we cannot consider the
letter as part of our appellate review. See State v. MacNeill, 2016
UT App 177, ¶ 41, 380 P.3d 60 (“An appellate court’s review is
limited to the evidence contained in the record on appeal.”
(quotation simplified)); see also State v. Pliego, 1999 UT 8, ¶ 7, 974
P.2d 279 (explaining that a party may not add new materials to
the record on appeal “by simply including the omitted material
in the party’s addendum” to a brief).

State v. Littlejohn
20200224-CA 	15 	2021 UT App 73
“making 	progress 	and 	gaining 	stability,” 	and 	that 	it 	was
“recommended” 	that 	Littlejohn 	continue 	with 	therapy 	and
medication management.
¶27 	In 	addition 	to 	the 	materials 	submitted 	prior 	to 	the
hearing, the court also had the benefit of the discussion at the
sentencing hearing. At the outset of the hearing, the prosecutor
opened her presentation by stating that Littlejohn had been
“accepted 	into 	the 	mental 	health 	court.” 	When 	Counsel
addressed the court, he emphasized that Littlejohn had “started
receiving some mental health treatment that was desperately
needed,” including both therapy and medication, and offered his
view that “mental health court is where [Littlejohn] belongs.”
Counsel 	even 	provided 	the 	court 	with 	a 	complete 	list 	of
Littlejohn’s prescribed medications. In addition, Wife told the
court how, in her view, Littlejohn was coping much better with
his conditions since receiving treatment. And Littlejohn, in his
allocution, told the court that he suffered from PTSD and “major
depression,” that he was “always thinking about suicide,” and
that his depression was “one of the reasons why [he had] such a
short fuse and [had gotten] so violent.” He noted that, prior to
his recent offenses, he “didn’t know [he] had severe mental
issues,” and that since he had begun treatment, he had not “had
an angry day,” and he felt “so much better” since being on the
medication. Even the prosecutor, in her last word to the court,
referenced Littlejohn’s mental health issues, stating that she
“appreciate[d] the defendant’s acknowledgment that he needs
help and that he is taking strides to get . . . treatment right now,”
but offering her view that prison was nevertheless the proper
sentence 	because 	“community 	supervision” 	was 	not
“appropriate for [Littlejohn], given his history.” Finally, the
court itself alluded to Littlejohn’s mental health struggles in its
comments immediately prior to imposing sentence, with the
court telling Littlejohn, “I appreciate that you are undergoing
treatment right now, but I don’t know what would stop you

State v. Littlejohn
20200224-CA 	16 	2021 UT App 73
from—if 	you 	don’t 	take 	your 	medication 	what’s 	going 	to
happen.”
¶28 	Littlejohn’s contention that the district court failed to
consider his mental health issues at sentencing is therefore not
borne out by the record. The court was presented with a lot of
information about Littlejohn’s mental health, and not only must
we presume that the court considered the information presented
to it, see State v. Atkinson, 2017 UT App 83, ¶ 8, 397 P.3d 874
(“When evidence of mitigating factors is properly presented to
the sentencing court, we . . . assume that the court appropriately
considered 	that 	evidence 	in 	its 	sentencing 	decision.”), 	it 	is
apparent from the court’s comments that it did consider the
information. Fairly stated, Littlejohn’s complaint is not that the
court failed to consider his mental health issues, but that the
court 	failed 	to 	give 	that 	information 	the 	weight 	Littlejohn
believes it should have been given. That argument simply has no
traction on appeal. See State v. Killpack, 2008 UT 49, ¶ 59, 191 P.3d
17 (recognizing that, when considering the “legally relevant
factors,” 	a 	sentencing 	court 	may, 	within 	its 	considerable
discretion, 	choose 	how 	to 	weigh 	individual 	mitigating 	and
aggravating factors); State v. Wood, 2018 UT App 98, ¶ 12, 427
P.3d 	452 	(“While 	failure 	to 	consider 	all 	legally 	relevant
sentencing factors is an abuse of discretion, a sentencing court is
not 	required 	to 	weigh 	all 	the 	factors 	equally.” 	(quotation
simplified)).
¶29 	Second, Littlejohn argues that the sentence was unfair
given his mental health diagnoses, the crimes committed, and
Wife’s testimony regarding his progress and her desire to have
him return home. We disagree. In this case, the court clearly
considered the mitigating factor identified by Littlejohn—his
mental 	health 	conditions 	and 	his 	efforts 	and 	progress 	in
addressing them—and determined that it was outweighed by
other aggravating factors, most notably the violent nature of the
offenses and the safety risk Littlejohn presented to Wife and the

State v. Littlejohn
20200224-CA 	17 	2021 UT App 73
community. 	The 	court 	showed 	careful 	consideration 	of 	the
legally 	relevant 	mitigating 	and 	aggravating 	factors 	in
articulating its decision. Another sentencing judge may well
have 	seen 	the 	matter 	differently 	and 	allowed 	Littlejohn 	an
opportunity to benefit from mental health court. But we see no
abuse of discretion on the part of this sentencing judge in
imposing the prison sentence; certainly, we cannot say that “no
reasonable person would take the view adopted by the district
court.” See State v. Gasper, 2018 UT App 164, ¶ 26, 436 P.3d 200
(quotation simplified).
¶30 	For these reasons, we reject Littlejohn’s challenge to the
substance of the sentence imposed upon him.
III
¶31 	Finally, 	we 	address 	Littlejohn’s 	claim 	that 	Counsel
provided constitutionally ineffective assistance at sentencing. To
demonstrate ineffective assistance, Littlejohn must show both
that 	(1) 	Counsel’s 	performance 	was 	deficient 	and 	(2) 	this
deficient 	performance 	prejudiced 	him. 	See 	Strickland 	v.
Washington, 466 U.S. 668, 687 (1984). The first prong—deficient
performance—places the burden on Littlejohn to show that
Counsel’s performance “fell below an objective standard of
reasonableness.” See State v. Scott, 2020 UT 13, ¶ 31, 462 P.3d 350
(quotation 	simplified). 	For 	the 	second 	prong—prejudice—
Littlejohn must show that there exists a “reasonable probability
that the outcome of his . . . case would have been different
absent” Counsel’s errors. See id. ¶ 43. “A reasonable probability
is 	a 	probability 	sufficient 	to 	undermine 	confidence 	in 	the
outcome.” Strickland, 466 U.S. at 694.
¶32 	Littlejohn 	contends 	that 	Counsel 	rendered 	ineffective
assistance 	at 	sentencing 	in 	two 	separate 	respects. 	First, 	he
contends 	that 	Counsel 	failed 	to 	adequately 	investigate 	the
seriousness 	of 	Littlejohn’s 	mental 	health 	issues 	prior 	to

State v. Littlejohn
20200224-CA 	18 	2021 UT App 73
sentencing.4 Second, he contends that Counsel failed to object to
the Assessment Report’s absence from the PSR. We address each
argument in turn.
A
¶33 	Littlejohn’s first ineffective assistance claim fails on both
prongs, because Littlejohn has failed to identify what additional
investigation 	Counsel 	should 	have 	undertaken, 	what
information that investigation should have uncovered, or how
the 	results 	of 	such 	an 	investigation 	would 	have 	made 	a
difference.
¶34 	As noted, supra ¶¶ 8, 26–27, the record—even as it stands
now—contains 	considerable 	information 	about 	Littlejohn’s
mental health struggles and the steps he had begun to take to
address them. But Littlejohn does not specifically identify what
else Counsel might have discovered, how Counsel might have
gone about discovering it, or how any additional information
would have made a difference to the outcome of his case. For all
we can tell from the record before us, Counsel might very well
have already reasonably investigated Littlejohn’s mental health
issues, 	but 	that 	investigation 	might 	not 	have 	yielded 	any
4. Littlejohn attempts to raise this same ineffective assistance
argument with respect to entry of his guilty plea: he asserts that
Counsel failed to adequately investigate his mental health issues
prior to entry of the plea. But as noted, supra part I, we lack
jurisdiction to consider any claim going to the propriety of
Littlejohn’s 	guilty 	plea, 	because 	Littlejohn 	did 	not 	seek 	to
withdraw his plea prior to imposition of sentence. In this section,
we 	therefore 	address 	only 	Littlejohn’s 	claim 	that 	Counsel
performed ineffectively at sentencing, and not any related claim
that Counsel performed ineffectively in connection with entry of
Littlejohn’s plea.

State v. Littlejohn
20200224-CA 	19 	2021 UT App 73
additional material information. See Strickland, 466 U.S. at 689
(noting that courts must afford a “strong presumption that
counsel’s conduct” was reasonable); see also State v. Archuleta,
2019 UT App 136, ¶¶ 26, 29, 449 P.3d 223 (rejecting a similar
claim for similar reasons, stating that “for all we can tell from
this record, his attorney completed a reasonable investigation
but found nothing helpful”). And without knowing what else
Counsel might have been expected to find, it is impossible for us
to meaningfully evaluate whether any such information might
have made a difference to the outcome of Littlejohn’s sentencing.
See Jones v. State, 2020 UT App 125, ¶ 40, 473 P.3d 1190 (rejecting
a 	challenge 	where 	the 	defendant 	had 	“not 	proffered 	what
specific evidence further investigation would have yielded and
how that evidence would have affected the entire evidentiary
picture” (quotation simplified)).
B
¶35 	Littlejohn’s 	second 	ineffective 	assistance 	claim—that
counsel unreasonably failed to object to the PSR on the basis that
it did not include a copy of the Assessment Report—founders for
similar reasons: the Assessment Report is not a part of the record
on appeal, and without an opportunity to examine its contents,
we cannot say that Counsel rendered ineffective assistance by
failing to object to its absence from the PSR.5
5. We note that Littlejohn has not filed any motion for remand to
supplement the appellate record with non-record information
necessary to prove his ineffective assistance claim. Such motions
are authorized by rule 23B of the Utah Rules of Appellate
Procedure, 	a 	provision 	that 	provides 	a 	“ready 	procedural
mechanism for addressing” inadequacies in an appellate record.
See State v. Litherland, 2000 UT 76, ¶ 14, 12 P.3d 92.

State v. Littlejohn
20200224-CA 	20 	2021 UT App 73
¶36 	We assume, without deciding and for purposes of our
analysis, that a copy of the Assessment Report should have been
included 	with 	the 	PSR. 	See 	Utah 	Code Ann. 	§ 	77-18-1.1(3)
(LexisNexis 2017) (“The findings from any screening and any
assessment 	conducted 	under 	[the 	criminal 	screening,
assessment, 	and 	treatment] 	section 	shall 	be 	part 	of 	the
presentence investigation report submitted to the court before
sentencing of the convicted person.”). But Counsel could have
made 	a 	strategic 	decision 	not 	to 	object 	to 	the 	Assessment
Report’s non-inclusion in the PSR; after all, the Assessment
Report may well have contained information that Counsel did
not want the sentencing judge to see. See State v. Ray, 2020 UT 12,
¶ 34, 469 P.3d 871 (“If it appears counsel’s actions could have
been intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance.”). Without
the 	ability 	to 	examine 	the 	Assessment 	Report, 	we 	cannot
eliminate that possibility, and on that basis alone Littlejohn has
not carried his burden of demonstrating that Counsel rendered
deficient performance. See Strickland, 466 U.S. at 689 (directing
that courts “must indulge a strong presumption that counsel’s
conduct” was reasonable).
¶37 	Moreover, without being able to examine the Assessment
Report, we have no basis to believe that its inclusion in the PSR
would have been reasonably likely to alter the outcome of the
sentencing hearing. As noted, the court was well aware of
Littlejohn’s mental health issues, and had the benefit of quite a
bit of information and argument regarding his specific issues
and their effects. Under these circumstances, Littlejohn has not
demonstrated that there exists a reasonable probability that the
outcome of the hearing would have been different had the court
had access to the Assessment Report.
¶38 	For these reasons, we conclude that Littlejohn has not
carried his burden of demonstrating that Counsel rendered
constitutionally ineffective assistance during sentencing.

State v. Littlejohn
20200224-CA 	21 	2021 UT App 73
CONCLUSION
¶39 	We 	lack 	appellate 	jurisdiction 	to 	address 	Littlejohn’s
challenges to the propriety of his guilty plea. Because Littlejohn
did not make a motion to withdraw the plea prior to imposition
of sentence, any such challenges must be brought, if at all, in a
post-conviction proceeding. We therefore dismiss the part of
Littlejohn’s appeal that challenges the propriety of his guilty
plea.
¶40 	As to the merits of the remaining appellate issues, the
district court did not abuse its discretion in sentencing Littlejohn
to prison rather than allowing him to participate in mental
health court. And finally, Littlejohn has not carried his burden of
demonstrating that Counsel rendered ineffective assistance at
sentencing. On that basis, we affirm Littlejohn’s sentence.