State v. Grant

2013 UT App 210
_________________________________________________________
THE U TAH COURT OF A PPEALS
STATE OF U TAH,
Plaintiff and Appellee,
v.
T REVOR R. G RANT,
Defendant and Appellant.
Per Curiam Decision
No. 20120295‐CA
Filed August 29, 2013
Second District, Farmington Department
The Honorable David M. Connors
No. 091701713
Scott L. Wiggins, Attorney for Appellant
John E. Swallow and Brett J. DelPorto, Attorneys
for Appellee
Before J UDGES D AVIS, T HORNE , and VOROS.
PER CURIAM:
¶1 	Defendant Trevor R. Grant appeals his sentence on a
conviction of attempted aggravated sexual abuse of a child, a first
degree felony. Grant argues that his trial counsel rendered
ineffective assistance of counsel by failing to present evidence on
all 	of 	the 	circumstances 	enumerated 	in 	Utah 	Code 	section
76‐5‐406.5. See Utah Code Ann. § 76‐5‐406.5 (LexisNexis 2012). We
affirm.
¶2 	Grant was initially charged with two counts of aggravated
sexual abuse of a child, a first degree felony under Utah Code
section 76‐5‐404.1(3) that is subject to a minimum mandatory
prison sentence. See Utah Code Ann. § 76‐5‐404.1(5)–(7), (9)
(LexisNexis Supp. 2013). In a negotiated plea, Grant pleaded guilty

State v. Grant
to one count of attempted aggravated sexual abuse of a child, a first
degree felony that is not subject to a minimum mandatory prison
sentence. See id. § 76‐4‐102(1)(c)(iii) (LexisNexis Supp. 2013)
(providing that an attempt to commit aggravated sexual abuse of
a child is punishable as a first degree felony with an indeterminate
term of three years to life). The transcripts of the February 16, 2010
and March 30, 2010 hearings demonstrate that the negotiated plea
was intended to avoid the minimum mandatory prison sentence
that would have been applicable to the original charge and to allow
the district court discretion in sentencing. Grant’s trial counsel
stated at the February 16, 2010 hearing that the charge was
“amended to one count of attempted aggravated sexual abuse of a
child, which doesn’t carry a minimum mandatory” and would
“leave sentencing up to the Court without any restrictions.”
Similarly, at the March 30, 2010 hearing, Grant’s trial counsel
clarified that “the difference between the attempted and the actual
aggravated sex abuse of a child is one has a minimum mandatory
and the other one does not have a minimum mandatory” and “part
of the deal was that the minimum mandatory not be a part of the
sentencing.”
¶3 	Grant argues that his trial counsel was ineffective “by failing
to investigate and present evidence of the circumstances justifying
probation or suspension of sentence pursuant to Utah Code
[section] 76‐5‐406.5.” However, an “attempt” to commit aggravated
sexual abuse of a child is not among the offenses listed in section
76‐5‐406.5(1). Section 76‐5‐406.5(1) states, in part,
In a case involving a conviction for a violation of
Section 76‐5‐402.1, rape of a child; Section 76‐5‐402.3,
object rape of a child; Section 76‐5‐403.1, sodomy on
a child; or any attempt to commit a felony under those
sections or a conviction for a violation of Subsections
76‐5‐404.1(4) and (5), aggravated sexual abuse of a
child, the court may suspend execution of sentence
and consider probation to a residential sexual abuse
treatment 	center 	only 	if 	all 	of 	the 	following
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State v. Grant
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, 	and
considering the best interests of the public and the
child victim, finds probation to a residential sexual
abuse treatment center to be proper . . . .
Id. § 76‐5‐406.5(1) (LexisNexis 2012) (emphasis added).
¶4 	While an attempt to commit the first three listed offenses is
subject to the requirements of section 76‐5‐406.5(1) before probation
may be granted, an “attempt” to commit aggravated sexual abuse
of a child is not. Consistent with that omission from the statute,
section 76‐3‐406 states that,
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 capital felony or a first
degree felony involving:
(6) Section 76‐5‐402.1, rape of a child;
. . . .
(8) Section 76‐5‐402.3, object rape of a child;
. . . .
(10) Section 76‐5‐403.1, sodomy on a child;
. . . .
(12) Subsections 76‐5‐404.1(4) and (5),
aggravated sexual abuse of a child;
. . . .
(14) any attempt to commit a felony listed
in Subsection (6), (8), or (10).
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State v. Grant
Id. § 76‐3‐406 (LexisNexis 2012) (emphasis added). In addition, the
attempt statute provides for an indeterminate sentence of three
years to life for a criminal attempt to commit “any of the felonies
described in Title 76, Chapter 5, Part 4, Sexual Offenses, that are
first degree felonies,” with the exception of the offenses of rape of
a child, object rape of a child, or sodomy on a child. Id. § 76‐4‐
102(1)(c)(iii) (LexisNexis Supp. 2013). Because it was not necessary
to demonstrate all of the circumstances listed in section 76‐5‐
406.5(1) in order to sentence Grant to probation, trial counsel did
not render deficient performance by failing to address all of the
enumerated circumstances.
¶5 	We next determine whether trial counsel otherwise rendered
deficient performance at sentencing. Grant’s trial counsel argued
for probation, having provided the court and Adult Probation
and Parole with a psychological (psychosexual) evaluation and a
letter from Grant’s counselor in outpatient sexual abuse treatment.
The 	State 	requested 	a 	prison 	term. 	The 	district 	court 	also
considered 	a 	presentence 	investigation 	report 	(PSI) 	that
incorporated the findings of the psychological (psychosexual)
evaluation. The PSI noted that the evaluation stated Grant was “a
good candidate for outpatient sex offender treatment” and “a low
risk to reoffend,” but it concluded that “given the duration of the
abuse, the defendant’s position of trust [with the victim], plus the
egregious nature of the continued abuse, this agency feels it should
follow the guidelines of the matrix and recommend a prison
commitment.” Trial counsel’s arguments for probation noted that
Grant was employed and supporting his family and that his wife
required 	medical 	care 	that 	would 	prevent 	her 	from 	being
employed. Trial counsel adequately presented argument in favor
of probation and outpatient treatment—an option that would not
even be available under section 76‐5‐406.5. The district court noted
that it had reviewed the PSI, the psychological (psychosexual)
evaluation, and the letter provided by Grant’s counsel. The court
concluded that “[o]n balance,” Grant had “been given the benefit
of the doubt by the plea negotiations and reducing the charges
from the mandatory sentences of 15‐to‐life down to . . . 3‐years to
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State v. Grant
life.” Under these circumstances, Grant’s trial counsel did not
render ineffective assistance at sentencing and Grant cannot
demonstrate 	that 	any 	of 	the 	claimed 	omissions 	resulted 	in
prejudice in light of the statements made by the district court at
sentencing.
¶6 	Grant has not demonstrated that trial counsel rendered
ineffective assistance at sentencing. Because Grant’s motion under
rule 23B of the Utah Rules of Appellate Procedure is premised only
upon 	the 	failure 	to 	present 	additional 	evidence 	on 	the
circumstances enumerated in Utah Code section 76‐5‐406.5, we
deny that motion.
¶7 	Affirmed.
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