State v. Levering

2025 UT App 111

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ROY BENJAMIN LEVERING,
Appellant.

Opinion
No. 20221004-CA
Filed July 17, 2025

Fifth District Court, St. George Department
The Honorable Jeffrey C. Wilcox
No. 191502172

K. Andrew Fitzgerald,
Attorney for Appellant
Derek E. Brown and Connor Nelson,
Attorneys for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

OLIVER, Judge:

¶1 Police found marijuana, methamphetamine, and drug
paraphernalia in Roy Benjamin Levering’s vehicle during a traffic
stop. He was charged with possession of a controlled substance
with intent to distribute, tampering with evidence, possession or
use of a controlled substance, and possession of drug
paraphernalia. After initially being appointed counsel (Counsel),
Levering decided to represent himself and proceeded at trial pro
se. A jury convicted him on all four counts. He now appeals,
asserting that he did not knowingly and intelligently waive his
right to counsel, that his sentence was improperly enhanced, and
that the trial court failed to consider mitigating factors in
sentencing. We affirm.
State v. Levering

BACKGROUND 1

Levering’s Arrest

¶2 On November 12, 2019, a K-9 deputy with the Washington
County Sheriff’s Office (Deputy) was on patrol when he saw a
vehicle with a burned out headlight driving toward him. Deputy
decided to stop the vehicle to let the driver know about the light.
Levering was the driver and only occupant. Deputy told Levering
about his headlight and said he would give him a warning.

¶3 As Levering was getting his identification, Deputy noticed
Levering’s hand was shaking. Deputy went back to his vehicle to
run Levering’s driver license and license plate. From his vehicle,
Deputy saw Levering reaching underneath his seat in the
direction of the center console. Deputy testified at trial that this
was common for someone trying to conceal something they do
not want an officer to see. Deputy asked Levering to step out of
his vehicle to finish the warning. Deputy deployed his K-9 “to
conduct an exterior sniff of the vehicle” based on his suspicions
that Levering was potentially concealing weapons or drugs in his
vehicle. The K-9 alerted on Levering’s car.

¶4 Deputy told Levering that he was going to conduct a
probable cause search because of the dog’s alert. Inside the car,
Deputy found a plastic baggie containing a white crystalline
substance, the bowl piece of a marijuana pipe that contained
burned residue and smelled like marijuana, “the actual bong
portion” of the marijuana pipe that was attached to a
methamphetamine bowl, a small glass jar with a “small amount
of marijuana,” and a lemonade container that had two baggies

1. “On appeal from a jury trial, we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly, and we present conflicting evidence only as
necessary to understand issues raised on appeal.” State v. Herrera,
2025 UT App 1, n.2, 563 P.3d 416. (cleaned up).

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filled with a white substance and marijuana in a secret
compartment. Deputy also found a pill bottle underneath the
driver’s seat. Deputy then arrested Levering and transported him
to the county jail.

¶5 Once Levering exited the Deputy’s vehicle at the jail,
Deputy checked it to make sure there was not anything left inside
that the K-9 could eat. Deputy found two large bags of what he
believed was methamphetamine. Later, Deputy downloaded his
body camera, “prisoner seat” camera, and dash camera footage.
The prisoner seat footage showed Levering “shoving his hands
down his pants,” while still handcuffed, but he stopped when
Deputy approached the vehicle. Once Deputy moved away from
the vehicle, Levering “again shoved his hands down his pants and
removed a large item” “which he put behind his back” before it
audibly “hit the floor.”

¶6 Levering was charged with possession of a controlled
substance with intent to distribute methamphetamine, tampering
with evidence, possession or use of a controlled substance,
marijuana, and possession of drug paraphernalia (the 2019 case).

Levering’s Appointed Counsel and Self-representation

¶7 The court appointed Counsel to represent Levering, and he
performed numerous tasks on Levering’s behalf. He filed a
competency petition,2 participated in plea negotiations, obtained
discovery from the State, and cross-examined the State’s witness
at the preliminary hearing. Counsel was also appointed to
represent Levering in a later case (the 2022 case).

¶8 At various points, Levering expressed that he no longer
wanted Counsel to represent him. At the arraignment hearing for
a third, unrelated case—at which Counsel appeared because the

2. The court granted the petition, but no competency evaluation
occurred because Levering was “not willing to comply.”

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2019 case and the 2022 case were also calendared—the following
exchange occurred:

THE COURT: All right. So, Mr. Levering, there are
three cases. . . . Are you going to try and hire an
attorney on the newest case, sir?

....

LEVERING: I will be standing sui juris in propria
persona on that, representing myself.

THE COURT: So you want to represent yourself on
the new case, correct?

LEVERING: Yes.

THE COURT: And are you going to continue to
have [Counsel] represent you on the 2019 case and
the earlier 2022 case?

LEVERING: . . . I believe that I’ll be standing sui juris
on all cases.

¶9 Then, at the next hearing, Counsel informed the court that
Levering told him he had a new attorney. The court asked who
the attorney was, and Levering gave a first name and requested
more time to figure out the “details” with his new attorney. The
court noted that Levering had “the right to hire [his] own
attorney” but that because that attorney had yet to make an
appearance, Counsel would remain as Levering’s counsel. The
court said, “You can choose to proceed without counsel if you
want. But [with] the . . . case[] being three years old, I’m putting it
on a trial calendar.”

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¶10 At a pretrial conference for the 2019 case, the court
indicated, “Levering is choosing to represent himself, but I’ve
appointed [Counsel] as back-up counsel.” Levering was not
present because he had difficulty logging in to the virtual hearing.
The court continued the case to the next week.

¶11 Levering appeared at the next pretrial conference; Counsel
was also present. Levering orally moved the court to “globalize”
all three of his cases. The court told Levering the State would have
to agree and noted that the court “would not be inclined to have
all those cases put together.” Levering then orally moved for a
continuance because he needed “the full discovery” to “have a
proper defense.” Counsel informed the court that he had no issues
receiving discovery. The court denied the continuance. Levering
again asked for a continuance, which the court denied.

¶12 At the next pretrial conference, the court engaged in the
following colloquy with Levering:

THE COURT: I want to make sure that you
understand what you’re doing in representing
yourself. I think I may have gone through this
before, but I want to be sure. And so bear with me. I
may be plowing some old ground.

I think I’ve asked you if you studied law before, and
you said that you’ve been doing it recently, correct?

LEVERING: Correct.

THE COURT: Have you ever represented yourself
or anyone else in a criminal action?

LEVERING: I have never presented myself, but I
believe and I’m confident that I can.

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THE COURT: You realize that you are charged with
crimes. And I need to let you know the case is going
to trial. It is a first-degree felony possession with
intent to distribute a controlled substance.

You need to understand that a first-degree felony, if
you’re found guilty, my hands are tied. You would
be sentenced to five years to life in the Utah State
Prison, with a $10,000 fine. It would be up to the
Board of Pardons to determine how long you
actually serve, but it would be a five-year minimum.

You would also be going to court on a class A
misdemeanor, tampering with evidence. That could
lead to a one-year jail sentence and up to a $2,500
fine. You’d also be going to court on a class B
misdemeanor that could result in 180 days in jail
and a $1,000 fine. Those cases—those charges could
run consecutively. You need to understand that.

If you are found guilty, you would still have two
cases that would need to be taken care of, both third-
degree felony possession cases. A third-degree
felony could result in a zero to five years in the Utah
State Prison, a $5,000 fine . . . . You’re swimming in
deep water . . . . I just need to make you aware that
those are the results of what could happen when we
go to trial.

LEVERING: I do comprehend that. . . .

THE COURT: You realize that if you represent
yourself, you are on your own. I can’t tell you how
to try your case. I can’t advise you on how to try
your case. You are going to have back-up counsel,
but you will be the one representing yourself.

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Are you familiar with the Rules of Evidence?

LEVERING: Not too familiar with it. I’m actually
studying on it now. These are the reasons that I
requested a little extension on that so that I have a
little more time to prepare a proper case. You denied
that which I don’t feel is fair. But yes, I am aware.

THE COURT: Okay. And you’ll be expected to
abide by those rules. Are you familiar with the Rules
of Criminal Procedure?

LEVERING: I am.

THE COURT: And you realize that those rules will
govern the way in which this criminal action is tried,
correct?

LEVERING: Well, I’m trying to file a motion to have
it in . . . a higher court. If that is awarded, I would
prefer to . . . have a proceeding and all of this taken
care of in that court.

THE COURT: Sure. Understand that a higher court
. . . would review the case if you are . . . found guilty
. . . and you wanted to appeal. But this is the Court
that tries cases in the State of Utah for the crimes
you’ve been charged with.

You can file your motion, but as close as it is to trial,
I’ll hear it, but I’m not sure that I’d be acting on it at
all.

So let me move on. If you decide to take the witness
stand, you are going to have to present your
testimony by asking yourself questions and then

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giving yourself an answer. I’m not going to allow
you to simply stand up and start telling a story.

The attorneys have to ask questions and get an
answer to the witness on the stand. And if you
represent yourself, you’re going to have to do that
same thing. So you’re going to have to prepare
questions for yourself. Then the State can object if
the question is inappropriate. And if not, then you
would give yourself an answer. It’s an unwieldly
practice, but you’ve got the right to represent
yourself. But I’ll expect you to go through that
process, okay?

LEVERING: Well, this is the reason that I can’t
represent myself. I can’t represent myself. I have to
present my case. And that can only be done by
presenting it.

I corrected my status, and I’m no longer a 13—14th
Amendment citizen. Pardon me. I’m a state
national, and I do have the assembly behind me on
this. So yes, I suppose I understand what you’re
saying with that part—comprehend what you’re
saying with that. It doesn’t seem feasible to
represent myself. I can’t do that. I have to present
the case.

And the situation in which it is, it’s very – it hasn’t
been pleasant, to say the least, with the officers, with
the— it has not been fun. But I’m not going to get
into that now because I know you’re not going to
hear that. But yes, I need to present my case.

THE COURT: And you can present your case, but
you’re going to do it pursuant to the Rules of

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Evidence and the Rules of Criminal Procedure,
which is you ask yourself a question. You are put
under oath. You ask yourself a question. You wait
to see . . . if the State has an objection and then you
give the answer.

You’ve got the right to tell that to an attorney, but
you’re going to do it on the same rules and
procedures that the State is forced to do. I wouldn’t
allow them to disregard those rules. If you’re
representing yourself, I’ll expect you to follow those
rules as well.

So let me just say. In my opinion, you’d be far better
served if you were defended by a trained lawyer
rather than yourself. It’s unwise to try and represent
yourself. You’re not familiar with the law. You’re
not familiar with court procedure. You’re not
familiar with the Rules of Evidence. I strongly urge
you not to try to represent yourself.

We’ve kind of gone through this. You tell me that
you will represent or present yourself. . . . I’m
appointing [Counsel] as back-up counsel, but he’s
only there to help you if you ask for it. I’m not going
to let him try the case and tell you what to do next.
It’s going to be up to you.

And, again, if you’re found guilty, sentencing will
be basically out of my hands. You will go to prison
from five years to life. Then we will also have to deal
with the other third-degree felonies at some point.

¶13 At the final pretrial conference on September 20, 2022, the
court denied several motions filed by Levering and ended the
hearing by stating, “[Y]ou are swimming in deep water. But if

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you’re representing yourself, you are telling me that you
understand criminal procedure, you understand the Rules of
Evidence, and you are expected to know, when pretrial exhibits
are made, to follow up with those.”

Levering’s Trial

¶14 A jury trial began at 9:00 a.m. on September 21, 2022.
Levering did not appear and, after waiting a short time, the trial
court began jury selection without him. The court then proceeded
with jury instructions, also without Levering present. At 1:20
p.m., Levering finally arrived. Outside the presence of the jury,
Levering said he was late because he was “put in a situation
where [he] didn’t have the time to get . . . things notarized that
needed to come with [him] today,” and he had a flat tire. Levering
apologized, explaining that he had never been late before and that
he does not miss court. The jury returned to the courtroom, and
Levering declined to give an opening argument.

¶15 Deputy testified on behalf of the State as to the traffic stop
and search of Levering’s vehicle, along with two forensic
scientists who tested the items found in Levering’s vehicle. The
State played the video footage of Levering removing the bags that
were on his person. Levering called no witnesses. In his closing
argument, Levering stated that he lent his car to some friends and
that the items in the car were theirs. He also expressed it would
have been hard for him to move anything from his person while
in Deputy’s vehicle because his hands were cuffed behind his
back. The jury found Levering guilty on all four counts.

Levering’s Sentencing

¶16 Levering asked Counsel to represent him at sentencing,
which the court allowed. The State argued that Levering’s
sentence for possession of a controlled substance with intent to
distribute methamphetamine should be enhanced because he had
pleaded guilty in 2004 to attempted possession of marijuana with

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intent to distribute. See Utah Code § 58-37-8. Counsel argued that
because marijuana and methamphetamine “are dealt with in
separate subsections” under the enhancement statute, the
sentence should only be enhanced if there is a second conviction
“for the same level, either Schedule I or II or for marijuana if that
were the case.” The court agreed with the State’s reading of the
statute but noted Counsel’s argument was “a very interesting
point that probably should be looked at by a higher court.”

¶17 Counsel then asked the court to order Levering to
participate in Adult Recovery Court. Counsel explained that
while Levering currently had several cases, there was an eight-
year gap from 2006 to 2014 with no charges. Counsel argued that
Levering was only facing imprisonment because of the
enhancement and if it was a second-degree felony, as originally
charged, Levering would be facing jail as an initial condition of
probation. Thus, Counsel asked the court to depart from the
presentence investigation report, which recommended prison,
and sentence him to either Adult Recovery Court or jail. In
response, the State asked the court “to follow the presentence
investigation.”

¶18 After hearing arguments from both sides, the court stated,
“I’ve been troubled by this case. . . . [Y]ou’ve been in front of me
a number of times . . . . [A]nd it’s always drug-related.” The court
declined to order Levering to participate in Adult Recovery Court
because Levering had declined to do so prior to trial and “it’s too
late now to ask for it.” The court continued, “[A]s far as I’m
concerned, you did yourself a very great disfavor by representing
yourself.” The court then acknowledged that Levering had “an
eight-year period of no legal problems.” However, the court
observed that since Levering had lived in St. George, he had cases
almost yearly. The court went over these cases with Levering,
saying, “[Y]ou’re not a clean one-owner here. Your life has been
spent in violation of the law. And at some point, society should be
protected from someone who acts, I believe, like you have.” The

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State v. Levering

court sentenced Levering to five years to life in the Utah State
Prison. The court noted that it did think a life term would be too
much and observed that even five years may be too much, but it
concluded that Levering did “deserve prison.”

ISSUES AND STANDARDS OF REVIEW

¶19 Levering first argues that he did not knowingly and
voluntarily waive his constitutional right to counsel. “Whether a
defendant’s waiver was knowing and intelligent involves a mixed
question of law and fact which we review for correctness, but with
a reasonable measure of discretion given to the trial court’s
application of the facts to the law.” State v. Lee, 2024 UT App 2,
¶ 7, 542 P.3d 974 (cleaned up).

¶20 Levering next asserts that the trial court erred in
interpreting Utah Code section 58-37-8 in concluding that the
enhancement for distribution of a controlled substance based on
a prior conviction applied here. “The interpretation of a statute
presents a question of law that we review for correctness.” State v.
Wood, 2023 UT 15, ¶ 14, 532 P.3d 997 (cleaned up).

¶21 Finally, Levering argues that the trial court erred in not
considering mitigating factors at sentencing. “[Trial] courts are
afforded wide latitude in sentencing, and we will reverse a
sentencing decision only if the court abused its discretion.” State
v. Robinson, 2018 UT App 227, ¶ 13, 438 P.3d 35. “This court
reviews the sentencing decisions to discover any abuse of
discretion by applying varying standards of review consistent
with the issues raised. For questions of law, we employ a
correctness standard. We review questions of fact for clear error.”
Id. (cleaned up).

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State v. Levering

ANALYSIS

I. Self-representation Colloquy

¶22 “Under both the United States and Utah Constitutions, a
criminal defendant has the right to assistance of counsel.” State v.
West, 2023 UT App 61, ¶ 27, 532 P.3d 114 (cleaned up). And
“concomitant with that right is the criminal defendant’s
guaranteed right to elect to present one’s own defense.” Id.
(cleaned up). “The right to counsel and the right to waive counsel
are mutually exclusive,” and therefore, “a trial court must be
vigilant to assure that the choice to waive counsel is freely and
expressly made with eyes open.” Id. (cleaned up). “Because pro se
defendants may often find themselves at a serious disadvantage
in our legal system, it is the solemn duty of the trial court to ensure
defendants exercise their right of self-representation voluntarily,
knowingly, and intelligently.” State v. Lee, 2024 UT App 2, ¶ 9, 542
P.3d 974 (cleaned up). “The best way to ascertain if a defendant
has the requisite knowledge of the legal mire they wish to wade
into is for a court to engage in penetrating questioning through a
colloquy on the record.” Id. (cleaned up).

¶23 In State v. Frampton, 737 P.2d 183 (Utah 1987), our supreme
court provided a model colloquy of sixteen questions to guide
trial courts in ensuring a defendant’s waiver of counsel is made
voluntarily, knowingly, and intelligently. Id. at 187 n.12 (quoting
1 Fed. Jud. Ctr., Benchbook for U.S. District Court Judges, §§ 1.02-2
to -5 (3d ed. 1986)). Though compliance with the Frampton
colloquy “is not mandatory” and its phrasing is “not talismanic,”
State v. Waterfield, 2014 UT App 67, ¶ 20, 322 P.3d 1194, the
“colloquy on the record [is] the preferred method of determining
whether a defendant is aware of” the “dangers and disadvantages
of self-representation,” State v. Pedockie, 2006 UT 28, ¶ 42, 137 P.3d
716 (cleaned up). Absent a complete colloquy, we “look at any
evidence in the record which shows a defendant’s actual
awareness of the risks of proceeding pro se,” Frampton, 737 P.2d

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State v. Levering

at 187, with the validity of the waiver “assessed at the time of the
alleged waiver,” Lee, 2024 UT App 2, ¶ 12 (cleaned up).

¶24 Although the trial court conducted most of the Frampton
colloquy here, it was nonetheless incomplete. The court did not
ask the last three questions, which include confirming the
defendant still “desire[s] to represent [him]self and to give up
[his] right to be represented by a lawyer,” confirming the decision
is “entirely voluntary,” and “find[ing] that the defendant has
knowingly and voluntarily waived his right to counsel.”
Frampton, 737 P.2d at 188 n.12 (cleaned up). Thus, we look at the
record de novo to determine whether there is sufficient evidence
to show that, at the time of the waiver, Levering was actually
aware of the risks of proceeding pro se. Id. at 188.

¶25 Levering first asserts he was unaware of his right to
counsel because at the end of the colloquy the court failed “to
point out that he was constitutionally entitled to court-appointed
counsel” and ask him whether the colloquy had made him change
his mind. However, the record demonstrates that Levering was
informed of, and understood, his right to counsel.

¶26 During the colloquy, the court told Levering he would
have to “abide by” the court rules and said, “[I]f you represent
yourself, you are on your own.” Levering told the court he was
studying the law and the Utah Rules of Evidence and was familiar
with the Utah Rules of Criminal Procedure. And at the end of the
colloquy, the trial court warned Levering he would be “far better
served if [he was] defended by a trained lawyer rather than”
himself. Considering all of this together, it was sufficient to put
Levering on notice that he had the right to counsel.

¶27 Yet, Levering argues the colloquy caused him to change his
mind about representing himself and if the court had only asked
him at the end of the colloquy whether he still wished to do so, he
would have declined. As evidence that Levering no longer wished
to represent himself, he directs us to where he stated mid-

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colloquy, “Well, this is the reason that I can’t represent myself. I
can’t represent myself. I have to present my case. And that can only
be done by presenting it.” (Emphasis added.) But Levering fails to
acknowledge that his use of the term “represent” did not mean
that he did not want to proceed pro se. Rather, Levering used the
term “represent” in connection with his assertion that he is a
“state national.” 3 Levering explained, “It doesn’t seem feasible to
represent myself. I can’t do that. I have to present the case.”
(Emphasis added.) And at his sentencing hearing, Levering
clarified that he did “not want representation” because he was
“presenting [his] case . . . not representing it.” 4 Levering drew a
clear distinction between “representing” and “presenting”
numerous times in the record. 5 And when viewed in the full
context, it is clear that Levering’s understanding of “presenting
his case” is akin to representing himself pro se.

3. “American State National is a term commonly used by
Sovereign Citizens to identify themselves as individuals who do
not believe they are citizens of what they perceive as an
illegitimate government.” Bollin v. State, No. 10-23-00414-CR, 2024
WL 4163649, at *1 (Tex. App. Sept. 12, 2024) (cleaned up).
Regardless of what a defendant calls himself, sovereign citizen
ideology “has no conceivable validity in American law.” Charlotte
v. Hansen, 433 F. App’x 660, 661 (10th Cir. 2011) (cleaned up).

4. Though these statements occurred after the colloquy, we
include them here for added context about what Levering
understood “representing” and “presenting” to mean.

5. The State suggests that Levering “emphasizing ‘present’ over
‘represent’ may . . . be an example of how some sovereign citizens
differentiate certain words to enforce their conception of legal
rights.” (Citing Caesar Kalinowski, A Legal Response to the
Sovereign Citizen Movement, 80 Mont. L. Rev. 153, 160–70 (2019).)

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¶28 Furthermore, Levering understood the value of being
represented by counsel. See State v. West, 2023 UT App 61, ¶ 36,
532 P.3d 114 (holding that it was unclear whether the defendant
“understood the associated value of having the assistance of
counsel”). In State v. Lee, 2024 UT App 2, 542 P.3d 974, the
defendant retained his own counsel. Id. ¶ 3. His counsel filed a
discovery request and appeared at his arraignment, where the
defendant informed the court he no longer wanted counsel and
would represent himself. Id. Finding the trial court’s colloquy
inadequate, this court reviewed the record de novo and was not
convinced that the defendant knowingly and voluntarily waived
his right to counsel. Id. ¶¶ 11, 18. Specifically, we noted that the
work the defendant’s counsel performed before his waiver did
not “inform[] him of the value of counsel” because the defendant
dismissed his counsel “almost immediately at his arraignment”
after she filed only one discovery request. Id. ¶ 15.

¶29 Unlike the defendant in Lee—who only had the benefit of
counsel very briefly—Levering had the benefit of representation
by Counsel from November 2019 until August 2022. During his
nearly three years representing Levering, Counsel participated in
plea negotiations, discovery, several pretrial conferences, and a
preliminary hearing, where Counsel cross-examined the State’s
witness. Thus, Levering had witnessed Counsel represent him
and was able to understand “the value of representation.” Id.;
West, 2023 UT App 61, ¶ 36.

¶30 Levering also asserts that his waiver of the right to counsel
was ineffective because the trial court failed to make a finding on
the record that he knowingly and voluntarily waived his
constitutional right to counsel. While making such a finding may
be the best course, see State v. Frampton, 737 P.2d 183, 187 n.12
(Utah 1987), it is not required for a waiver of the right to counsel
to be effective. “[W]hether a knowing and intelligent waiver has
been made turns upon the particular facts and circumstances
surrounding each case.” Id. at 188. Here, the “record adequately

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supports the conclusion that [Levering] knowingly and
intelligently waived the right to representation by counsel.” Id. at
189.

¶31 The court engaged with Levering in an extensive, if
incomplete, colloquy about his request to waive his right to
counsel that spanned five pages of the transcript. See supra ¶ 12.
In that exchange with the court, Levering stated that he
“believe[d] and [was] confident” that he could represent himself.
And Levering told the court that he understood he had to follow
the rules and procedures for trial. Levering also told the court
multiple times that he understood he had to “present” his case to
the jury. Additionally, Levering requested to represent himself in
all three of his cases. It is therefore apparent from the record that
Levering waived his right to counsel knowingly and intelligently.

¶32 Accordingly, after reviewing the record de novo, we
conclude that Levering’s waiver of his right to counsel was made
voluntarily, knowingly, and intelligently, and he proceeded pro
se with his “eyes open.” West, 2023 UT App 61, ¶ 27 (cleaned up).

II. Sentencing Enhancement

¶33 As relevant to this appeal, Utah Code section 58-37-8
provides that “it is unlawful for a person to knowingly and
intentionally . . . possess a controlled . . . substance with intent to
distribute.” Utah Code § 58-37-8(1)(a). 6 “A person convicted of
violating Subsection (1)(a) with respect to” a Schedule I or II
substance “is guilty of a second degree felony, . . . and upon a
second or subsequent conviction is guilty of a first degree felony.”
Id. § 58-37-8(1)(b)(i). And a “person convicted of violating

6. Since Levering’s conviction, the legislature has modified the
words “any person” to “a person” in Utah Code section
58-37-8(1). Compare Utah Code § 58-37-8(1) (2025), with id. (2017).
As this change is not material to our analysis, we cite the current
version of the statute for convenience.

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Subsection (1)(a) with respect to” a Schedule III or IV substance or
marijuana, “is guilty of a third degree felony, and upon a second
or subsequent conviction is guilty of a second degree felony.” Id.
§ 58-37-8(1)(b)(ii). Here, Levering was convicted with respect to a
Schedule I or II substance (methamphetamine).

¶34 Levering argues that the trial court improperly enhanced
his conviction for possession of a controlled substance with intent
to distribute methamphetamine based on his 2004 conviction for
attempted distribution of marijuana. Levering asserts that his
conviction should not have been enhanced because the
enhancement only applies to convictions involving drugs in the
same schedule, and marijuana is not a Schedule I or II substance
like methamphetamine. We do not find merit in Levering’s
interpretation of the statute.

¶35 “When faced with a question of statutory interpretation,
our primary goal is to evince the true intent and purpose of the
Legislature.” Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50,
¶ 14, 267 P.3d 863 (cleaned up). Because “the best evidence of the
legislature’s intent is the plain language of the statute itself,”
“when interpreting a statute, we assume, absent a contrary
indication, that the legislature used each term advisedly
according to its ordinary and usually accepted meaning.” Id.
(cleaned up). We also “presume that the expression of one term
should be interpreted as the exclusion of another.” Id. (cleaned
up). “We therefore seek to give effect to omissions in statutory
language by presuming all omissions to be purposeful.” Id.

¶36 Section 58-37-8(1)(b) imposes different penalties for
convictions involving different drugs. It does not, however,
impose an enhancement based on which type of drugs were the
subject of a prior conviction. Under section 58-37-8(1)(b)(i), a
person convicted of “violating Subsection (1)(a),” which includes
“possess[ing] a controlled or counterfeit substance with intent to
distribute” is guilty of a second-degree felony “with respect to” a

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Schedule I or II controlled substance. Utah Code § 58-37-
8(1)(a)(iii), (b)(i). But “upon a second or subsequent conviction,”
the person is “guilty of a first degree felony.” Id. § 58-37-8(1)(b)(i).

¶37 Levering argues that because subsection (1)(b) begins with
the phrase “a person convicted of violating Subsection (1)(a) with
respect to” and then differentiates the penalty by class of drug, the
enhancement provision necessarily requires that the prior
conviction involve the same level of drug before the enhancement
applies. Id. § 58-37-8(1)(b). We disagree. If the legislature intended
Levering’s understanding of the statute to be correct, the language
of the statute would be different. Subsection (1)(b)(i) would need
to have specified that enhancement occurred upon a second or
subsequent conviction of a Schedule I or II substance rather than just
a “subsequent conviction.” Id. § 58-37-8(1)(b)(i). The same is true
for section 58-37-8(1)(b)(ii). A person convicted of possessing or
distributing a Schedule III or IV substance or marijuana is guilty
of a second-degree felony “upon a second or subsequent
conviction.” Id. § 58-37-8(1)(b)(ii). Again, for Levering’s reading to
be accurate, the legislature would have needed to include
language that the enhancement occurred upon a second or
subsequent conviction of a Schedule III or IV substance or marijuana.
But the legislature did not include that language, and we assume
that the omission was intentional. 7 See Marion Energy, Inc., 2011
UT 50, ¶ 14.

¶38 Subsection (6) of section 58-37-8 further supports the
propriety of the enhancement here. It states, “For purposes of
penalty enhancement under Subsection[] (1) . . . , a plea of guilty

7. The penalties imposed for drug crimes are inherently a policy
choice, and that choice belongs to the legislature. See State v. Tapp,
490 P.2d 334, 336 (Utah 1971) (“[I]t is the prerogative of the
legislature, expressing the will of the people, to fix the penalties
for crimes; and the courts should give effect to the enactment and
the effective date thereof as so declared.”).

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State v. Levering

or no contest to a violation or attempted violation of this section
or a plea which is held in abeyance . . . is the equivalent of a
conviction.” Utah Code § 58-37-8(6)(a). Not only is this subsection
relevant because Levering pleded guilty to his 2004 marijuana
charge, but it also demonstrates that the legislature intentionally
left out the words in subsection (1)(b) necessary for Levering’s
argument to be correct. Subsection (6)(a) does not include a
specific drug schedule. Rather, it states that pleas count as prior
convictions without making any reference to the type of drug.
Thus, in Levering’s case, his prior plea means he has a conviction.
Therefore, under subsection (1)(b), because Levering has a prior
conviction and was convicted of methamphetamine charges here,
his conviction was enhanced to a first-degree felony.

¶39 We therefore affirm the trial court’s interpretation of the
statute and its imposition of the enhancement of Levering’s
conviction for possession with intent to distribute to a first-degree
felony.

III. Mitigating Factors

¶40 “In general, a trial court’s sentencing decision will not be
overturned unless it exceeds statutory or constitutional limits, the
judge failed to consider all the legally relevant factors, or the
actions of the judge were so inherently unfair as to constitute
abuse of discretion.” State v. Killpack, 2008 UT 49, ¶ 59, 191 P.3d 17
(cleaned up), abrogated on other grounds as recognized by State v.
Lowther, 2017 UT 34, 398 P.3d 1032. “Although courts must
consider all legally relevant factors in making a sentencing
decision, not all aggravating and mitigating factors are equally
important, and one factor in mitigation or aggravation may weigh
more than several factors on the opposite scale.” Id. (cleaned up).
“Thus, several mitigating circumstances claimed by a defendant
may be outweighed by a few egregious aggravating factors.” Id.
“Absent statutorily articulated aggravating and mitigating
circumstances in noncapital cases, courts have historically based

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State v. Levering

their sentencing decisions on the totality of the circumstances.”
State v. Perea, 2013 UT 68, ¶ 117, 322 P.3d 624.

¶41 Levering argues that the trial court “failed to consider
mitigating factors raised at sentencing,” specifically the eight-year
gap when he had no criminal charges. But the trial court did
consider this mitigating factor. The court acknowledged
Levering’s “eight-year period of no legal problems” but then
noted that since moving to St. George, Levering had cases almost
yearly. After listing these cases, the court stated, “[Y]ou’re not a
clean one-owner here. Your life has been spent in violation of the
law. And at some point, society should be protected from
someone who acts, I believe, like you have.” The court
accordingly sentenced Levering to five years to life in prison.

¶42 The court did not “ignore[]” the mitigating factors, as
suggested by Levering. Rather, it considered them and found that
they were outweighed by the aggravating factors. See Killpack,
2008 UT 49, ¶ 59. And based on these aggravating factors, the
court determined that Levering should be sentenced to prison.
Therefore, we affirm Levering’s sentence.

CONCLUSION

¶43 Levering has not demonstrated that the issues he presented
on appeal warrant reversal. Accordingly, we affirm.

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