State v. Costello

2025 UT App 44

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MILLER E. COSTELLO,
Appellant.

Opinion
No. 20230157-CA
Filed April 3, 2025

Second District Court, Ogden Department
The Honorable Michael D. DiReda
No. 171901546

Freyja Johnson, Emily Adams, and
Hannah Leavitt-Howell, Attorneys for Appellant
Derek E. Brown, Michael D. Palumbo, and William
M. Hains, Attorneys for Appellee, assisted by law
student Rebecca Barker 1

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and
DAVID N. MORTENSEN concurred.

HARRIS, Judge:

¶1 Miller E. Costello pled guilty to aggravated murder for his
role in the abuse-related death of his three-year-old daughter,
Ava. 2 Later, after a multi-day sentencing hearing, the district
court sentenced Costello to life in prison without the possibility of
parole. Costello now appeals his sentence, asserting that the court

1. See Utah R. Jud. Admin. 14-807 (governing law student practice
in the courts of Utah).

2. A pseudonym.
State v. Costello

improperly double-counted aggravating factors, failed to
adequately consider certain items of mitigating evidence, and
generally imposed an inappropriate sentence. We discern no
abuse of discretion in the court’s sentencing decision, and we
therefore affirm.

BACKGROUND

¶2 In July 2017, law enforcement officers were notified of a
child who was unconscious and not breathing. Upon responding,
officers observed a small child, later identified as Ava, lying on
the floor in a virtually empty living room. They quickly
determined that Ava was “deceased,” and they realized
“immediately that this was a criminal scene” and that Ava “did
not die of any natural causes.” Ava appeared to be “extremely
malnourished.” Her face was “extremely thin” and “sunken” and
had a “bluish-gray color to it.” Officers observed “bruises and
marks all over” Ava’s face, which was “very cold to the touch.”
Later, officers discovered that Ava had various “bruises and
lacerations” all over her body. She had “a large burn on her chest,”
as well as “smaller circular burns on her back, legs, and feet” that
were “consistent with cigarette burns.”

¶3 During their ensuing investigation, officers interviewed
Ava’s parents—Costello and his wife (Mother)—and Mother
“admitted to covering [Ava] with make up to conceal some” of
her injuries. For his part, Costello acknowledged an awareness
that Ava needed urgent medical attention, but he asserted that
Ava “was in the sole care of” Mother. Officers searched the
parents’ cell phones, and they discovered “several pictures and
videos which showed Ava’s deteriorating health conditions” over
a time span of about eighteen months. In the videos, Costello and
Mother could be seen taunting Ava by showing her food and then
preventing her from eating it. One video shows Costello “using
the feet of an infant child to kick [Ava] in the face.” In the videos,
Ava is in “an obvious state of emotional duress and distress.”

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State v. Costello

¶4 After investigation, the State charged Costello with
aggravated murder, citing three aggravating factors: (1) the
murder was committed “incident to” the commission of child
abuse; (2) the murder “was committed in an especially heinous,
atrocious, cruel, or exceptionally depraved manner”; and (3) “at
the time of death the victim was younger than 14 years of age.”

¶5 Thereafter, a multi-day preliminary hearing was held, at
which several officers and experts testified about the severity of
the abuse inflicted on Ava. One detective (Detective), specifically
trained in investigating child abuse cases, remarked that Ava
“looked like a Holocaust victim.” A police investigator testified
that Ava’s “malnutrition reminded [him] of pictures you see of
kids in concentration camps.” And a medical examiner testified
that Ava was “severely malnourished” and that she weighed less
than fourteen pounds, placing her in “less than a 1st percentile for
body weight.” The medical examiner reiterated several times that
Ava’s injuries were caused by “non-accidental trauma” and that
Ava suffered injuries on “pretty much every compartment of her
external body.” At the conclusion of the preliminary hearing, the
district court bound Costello over for trial, and it issued a written
decision setting forth its reasoning.

¶6 In the wake of the preliminary hearing, the State filed a
notice indicating its intent to seek the death penalty against
Costello, and it filed an amended information to that effect. Some
time later, Costello entered into a plea agreement with the State,
whereunder Costello agreed to plead guilty to aggravated murder
and the State agreed to decline to seek the death penalty.

¶7 A few weeks later, the district court held a sentencing
hearing, which took place over four days. At that hearing, the
State played a recording of a 911 call made by a concerned citizen
about five weeks prior to Ava’s death. The concerned citizen had
been shopping at a clothing store and had been shocked by Ava’s
malnourished appearance. On the call, the citizen reported that

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State v. Costello

“[t]he dad”—referring to Costello—“said he would wait” at the
store for emergency personnel to arrive. But Costello and Mother
took Ava and left the store without waiting for responders.

¶8 During the hearing, the State also discussed how the abuse
affected not only Ava but also her older brother (Brother), who
not only witnessed the abuse visited upon Ava but was, at times,
also forced to participate in it. The State presented a report from
Brother’s counselor in which the counselor described “some
experiences [Brother] went through and continues to struggle
with nearly six years later.” The report emphasizes that “[Brother]
is now almost 10 and continues to have a very clear memory of
what torture he witnessed occurring to his sister and what he
participated in with the direction of his parents.” The report states
that, at some point, Brother even “became suicidal due to the grief
and guilt he felt.”

¶9 Detective testified at the hearing and described the photos
and videos found on Costello’s phone that “basically
documented” the abuse over an eighteen-month period,
including videos of Costello and Mother taunting Ava with food
and then refusing to give her any. Detective also stated that, for
her, this case had been “a career ender,” explaining that she had
decided to leave police work “because of what [Ava] endured and
what [Detective] had to watch her go through.” A pediatric
physician testified that Ava was old enough to understand “what
was happening” when her parents were withholding her food
and abusing her. When discussing Ava’s weight, the physician
testified that Ava “wasn’t even on a growth curve for a three-year-
old, but she was the same weight as a six-month-old at the time of
her death” and that “[h]er malnutrition was beyond a stage that
we see in the United States.”

¶10 A mitigation specialist (Specialist) testified on behalf of
Costello, and she informed the court that Costello “had a very low
IQ” and that he had not attended very much school. She also

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State v. Costello

emphasized that Costello came from a specific culture—which
she referred to as “Roma”—in which women are apparently
supposed to “teach the younger women how to be mothers” while
the men “are supposed to be making money.” Specialist stated
that, in this culture, “it’s almost taboo for a male member to either
bathe or change the diapers of a female baby.” Specialist also
asserted that Costello had strong family support, and she even
noted that at one point Costello had placed Ava in the care of his
brother and sister-in-law for six months, during which time Ava
“thrived, ate everything, gained weight, was loved and was
healthy.” Specialist also testified that Costello was “deeply
addicted” to drugs and was often “buying drugs on the street” or
trying to get drugs by visiting “emergency rooms . . . trying to get
pain meds.” Specialist offered her view that Costello was “naive
and easily manipulated,” which, in combination with the factors
above, created a “perfect storm.”

¶11 After the sentencing hearing, the court announced its
sentence in a lengthy oral ruling. The court discussed the severity
of Ava’s injuries at some length; indeed, the sentencing judge
offered his view that the abuse Ava suffered was “the most
dehumanizing, horrific physical abuse, torture and starvation [he
had] seen in 29 years of work in the criminal justice system,” and
he went on to observe that he had “never experienced this level of
depravity, this level of cruelty, this level of evil in any of the cases
[he had] handled previously.”

¶12 The court discussed the mitigation evidence presented by
Specialist, and it specifically noted Specialist’s testimony that
Costello “was naive and easily manipulated,” was “deeply in the
throes of addiction,” had “low IQ [and] very little socialization,”
and may have been “brainwash[ed] into believing there was
something unfixable about” Ava. The court also mentioned
Specialist’s testimony about Costello’s “family support.” But the
court was not persuaded that this mitigation evidence was strong
enough to warrant a lower sentence. It noted that Costello had a

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State v. Costello

history of ignoring his family’s advice, “so family support may
not be sufficient if [Costello] continued to be unwilling to listen to
his family.” And the court noted Costello’s own statement to
police that he “knew [Ava] was going to die” and that he “knew
what the right thing was to do, but [he] didn’t do it.” In fact, the
court stated that Costello’s “own statements and the video and
photographic evidence . . . belie the claim that his intellectual
challenges have anything to do with his choices and behavior.”
Indeed, the court found that, despite his low IQ, Costello “was
aware of what was occurring, had the ability to intervene and save
[Ava], but instead participated with [Mother] in abusing,
torturing, and starving [Ava], and bringing about her death.”

¶13 The court also noted that Costello had not “shown remorse
or taken responsibility for this horrific crime,” and it noted that
the very people who were supposed to protect Ava—her
parents—were the ones who “dehumanized and tortured” her.
The court concluded by stating that, in its view, the sentence that
was most “proportionate to the gravity of the crime” was “life
without the possibility of parole.”

ISSUE AND STANDARD OF REVIEW

¶14 Costello now appeals his sentence. We review sentencing
decisions deferentially, and we will overturn them “only if it is
clear that the actions of the sentencing judge were so inherently
unfair as to constitute an abuse of discretion.” State v. Martin, 2017
UT 63, ¶ 20, 423 P.3d 1254 (cleaned up); see also State v. Helms, 2002
UT 12, ¶ 14, 40 P.3d 626 (stating that “sentencing reflects the
personal judgment of the court, and consequently, a sentence
imposed by the trial court should be overturned only when it is
inherently unfair or clearly excessive”).

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State v. Costello

ANALYSIS

¶15 Costello pled guilty to aggravated murder. In this
situation, a sentencing court has only two options: “life in prison
without parole” (LWOP) or “an indeterminate prison term of not
less than 25 years and that may be for life.” Utah Code § 76-3-
207.7(2). Our supreme court has determined that “[t]he statute’s
plain language does not contain [a] presumption” in favor of
either of these two sentencing options. Met v. State, 2016 UT 51,
¶ 118, 388 P.3d 447. “Rather, it is within the court’s discretion,
after considering and weighing the applicable sentencing factors,
to sentence [the defendant] to either an indeterminate term of not
less than [twenty-five] years or for a term of life in prison without
parole.” 3 Id. And more generally, in deciding the appropriate
sentence, the court should impose a sentence that is
“proportionate to the seriousness of” the crime and that
“[p]revent[s] arbitrary or oppressive treatment” of the convicted
person. Utah Code § 76-1-104. “When read in harmony, these [two
statutory] provisions make clear that a sentencing court is to
consider all the evidence before it—the totality of the
circumstances—in imposing a sentence that is proportionate to
the crime and the culpability of the defendant.” State v. Perea, 2013
UT 68, ¶ 115, 322 P.3d 624.

¶16 Here, Costello takes issue with the district court’s choice to
sentence him to LWOP rather than to a term of twenty-five years
to life. In challenging that decision, Costello claims that the court

3. The court in Met was applying the 2007 version of the relevant
statute; at the time, the statutory alternative to LWOP was a
sentence of twenty years to life (as opposed to twenty-five years
to life). See Met v. State, 2016 UT 51, ¶ 118, 388 P.3d 447 (applying
Utah Code § 76-3-207.7 (2007)). In our discussion of Met, above in
the text, we have modified the quotation to reflect the 2009
statutory change—applicable in this case—increasing the
minimum sentence by five years. See Utah Code § 76-3-207.7.

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State v. Costello

abused its discretion by “double-counting” aggravating factors,
by not properly considering his mitigating evidence, and by
imposing a sentence disproportionate to the crime committed and
to his own involvement in it.

¶17 We first address Costello’s “double-counting” argument.
In summary, Costello contends that “[t]he district court abused its
discretion when it used the very circumstances that enhanced the
offense from murder to aggravated murder to justify the more
severe sentence of LWOP.” Costello correctly points out that “an
aggravating circumstance should not be considered by the
[sentencing] court if it is inherent in the definition of the charged
offense.” State v. Yoder, 935 P.2d 534, 548–49 (Utah Ct. App. 1997).
But the district court did not engage in improper “double
counting” in this case, for two reasons.

¶18 First, there were three applicable aggravating
circumstances here, not just one. Under Utah law, “[c]riminal
homicide constitutes aggravated murder” if the crime was
committed “under any” one of the circumstances listed in a
particular statute. See Utah Code § 76-5-202(1) (2017) (emphasis
added). 4 And in this case, the State alleged—and Costello
admitted as part of his plea agreement—that Costello committed
a murder that qualified as “aggravated” in three different ways:
(1) the murder “was committed incident to . . . [a] criminal episode
during which [Costello] committed . . . child abuse”; (2) the
murder “was committed in an especially heinous” manner; and
(3) Ava was “younger than 14 years of age.” See id. § 76-5-

4. Because the relevant statute was substantively amended in
2022, we cite the version of the statute in effect in 2017, at the time
the conduct at issue occurred. See State v. Bryant, 2012 UT App 264,
¶ 16, 290 P.3d 33 (holding that a defendant is entitled to be
sentenced under the version of the statute in effect at the time the
crimes in question were committed); see also Criminal Code
Recodification, ch. 181, § 52, 2022 Utah Laws 1125, 1160–62.

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State v. Costello

202(1)(d), (r), (t)(i). Any one of those three admitted
circumstances, standing alone, would have rendered this
homicide “aggravated murder.” So even assuming—for purposes
of the discussion—that the thing that makes a murder charge
“aggravated” can’t be considered at all at sentencing, the district
court here would have been well within bounds to consider any
two of the aggravating factors at sentencing.

¶19 But second, and relatedly, it is inaccurate to say that a
sentencing court is completely forbidden from considering any of
the facts underlying the aggravating circumstances, even if it is
forbidden from giving additional weight to the aggravated nature
of the charge itself. The court here didn’t sentence Costello to
LWOP simply because he had committed a murder that the law
considers “aggravated.” Instead, the court sentenced Costello to
LWOP because, among other things, the murder had been
committed incident to incredibly heinous abuse of a child—his
own daughter—who was not merely “younger than 14” but was
only three years old. Courts must consider the totality of the
circumstances in making sentencing determinations, see Perea,
2013 UT 68, ¶ 115, and in doing so a court must be able to assess,
for instance, just how heinous the crime was. In short, we agree
with the State’s assertion that there is “nothing improper about [a
sentencing] court considering the facts underlying statutory
aggravating circumstances as part of the totality of the
circumstances informing the court’s sentence.”

¶20 Here, by considering the severity of the abuse Costello
inflicted upon Ava, and by considering how egregious this crime
was—after all, witnesses noted, among other things, that Ava’s
“malnutrition was beyond a stage that we see in the United
States”—the district court was properly taking into account the
totality of the circumstances; it was not engaging in improper
“double-counting.”

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State v. Costello

¶21 Next, we consider Costello’s second argument: that the
district court did not adequately consider his mitigation evidence,
as well as other things like public safety and Costello’s capacity
for rehabilitation. We reject this argument for two reasons.

¶22 First, Costello’s argument is largely unsupported by the
record. At the sentencing hearing, Costello presented quite a bit
of mitigation evidence, largely through Specialist’s testimony. As
noted, Specialist informed the court, among other things, that
Costello “had a very low IQ” and was “easily manipulated,” that
he came from a culture that encouraged him to be less involved in
parenting female children, and that he was struggling with drug
addiction. And she emphasized that Costello had strong family
support. In the course of its oral ruling, the district court directly
addressed most of this evidence and offered concrete reasons for
finding it unconvincing. See supra ¶ 12.

¶23 Moreover, the fact that the district court did not make
specific mention, in its oral ruling, of each and every piece of
evidence Costello offered—for instance, the court did not
specifically mention Costello’s limited prior criminal history or
potential cultural influences—is not grounds for disturbing the
sentence. “As a general rule, [appellate courts] presume that the
district court made all the necessary considerations when making
a sentencing decision.” State v. Moa, 2012 UT 28, ¶ 35, 282 P.3d
985; see also State v. Helms, 2002 UT 12, ¶¶ 11–12, 40 P.3d 626
(refusing to assume that a sentencing court hadn’t considered
“factors” that it didn’t specifically address on the record, and
stating that “we will not assume that the trial court’s silence, by
itself, presupposes that the court did not consider the proper
factors”). And here, we decline Costello’s invitation to presume
that, merely because the court did not mention every item of
evidence Costello proffered, it did not appropriately consider that
evidence in its totality.

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State v. Costello

¶24 Finally, we address Costello’s third argument: that the
district court imposed a sentence that is disproportionate to the
crime and to Costello’s involvement in it. In this context, a
sentencing court has broad discretion to determine which
sentence—as between LWOP and twenty-five years to life—is
most appropriate under the circumstances. See Met v. State, 2016
UT 51, ¶ 118, 388 P.3d 447 (“[I]t is within the court’s discretion,
after considering and weighing the applicable sentencing factors,
to sentence [the defendant] to either an indeterminate term of not
less than [twenty-five] years or for a term of life in prison without
parole.”). In this case, Costello’s involvement in the crime was
significant. The district court did not abuse its discretion in
selecting the sentence, given the gravity of the crime and the
totality of the circumstances under which Costello committed it.

CONCLUSION

¶25 For all of these reasons, we discern no abuse of discretion
in either the district court’s choice of sentence or in the manner in
which the court arrived at the sentence.

¶26 Affirmed.

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