State v. McDaniel

2015 UT App 135

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
HOWARD LYNN MCDANIEL,
Defendant and Appellant.

Memorandum Decision
No. 20130866-CA
Filed May 29, 2015

Second District Court, Farmington Department
The Honorable Michael G. Allphin
No. 121701896

Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES J. FREDERIC VOROS JR. and
KATE A. TOOMEY concurred.

CHRISTIANSEN, Judge:

¶1 Howard Lynn McDaniel pled guilty to possession of a
controlled substance with intent to distribute. On appeal, he
challenges the district court’s order that his sentence in this case
be served consecutively to his sentence imposed in a separate
case. He argues that the district court failed to properly consider
all of the statutory factors and abused its discretion in its
weighing of certain mitigating factors. We conclude that the
district court properly considered the relevant factors based on
the evidence before it and did not abuse its discretion in
imposing consecutive sentences. We therefore affirm.

¶2 McDaniel was arrested in November 2012 for, among
other things, possession of approximately sixty grams of
State v. McDaniel

methamphetamine, a small amount of marijuana, and associated
paraphernalia. McDaniel pled guilty in April 2013 to possession
of a controlled substance with intent to distribute. The court
ordered that McDaniel be allowed to remain free on bail until his
sentencing and ordered Adult Probation and Parole to prepare a
Presentence Investigation Report (the PSI Report).

¶3 In May 2013, before he was sentenced in this case,
McDaniel was again arrested for possession of more than sixty
grams of methamphetamine, other drugs, and drug
paraphernalia. McDaniel again pled guilty to possession of a
controlled substance with intent to distribute. He was sentenced
without a presentence report to a term of one to fifteen years in
prison. The details of that conviction and sentence were
subsequently included in the PSI Report in this case.

¶4 This case came before the district court for sentencing in
August 2013. The PSI Report related that McDaniel had an
“extensive criminal history with most if not all of his charges
being drug related.” The PSI Report also stated that McDaniel
had a “long history of substance abuse,” a “sporadic work
history,” and “a poor parole and probation history.” McDaniel
submitted letters from his sister and brother-in-law detailing his
success at remaining drug free and employed while staying with
them in Virginia before he returned to Utah in 2012. The district
court reviewed those letters, then heard arguments from counsel
and a statement from McDaniel. The district court ultimately
ordered that McDaniel’s statutory sentence of five years to life
run consecutively to the sentence he was serving for his May
2013 conviction. McDaniel appeals.

¶5 McDaniel first argues that the district court failed to
consider legally relevant factors in deciding to impose
consecutive sentences. In reviewing a district court’s sentencing
decision, we will reverse only if we conclude that the sentencing
decision exceeds the “wide latitude and discretion” afforded a
district court in imposing sentence. State v. Helms, 2002 UT 12,
¶ 8, 40 P.3d 626. When sentencing a defendant who is already

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State v. McDaniel

serving a prison sentence for a prior felony offense, the district
court must determine “if the sentences before the court are to
run concurrently or consecutively with any other sentences the
defendant is already serving.” Utah Code Ann. § 76-3-401(1)(b)
(LexisNexis 2012). In making this determination, the district
court must consider “the gravity and circumstances of the
offenses, the number of victims, and the history, character, and
rehabilitative needs of the defendant.” Id. § 76-3-401(2). If the
district court fails to consider all legally relevant factors, the
imposition of consecutive sentences is an abuse of the district
court’s sentencing discretion. Helms, 2002 UT 12, ¶ 8. However,
on appeal from a sentencing, the burden is on the defendant to
demonstrate that the district court did not properly consider all
the factors, and we will not “assume that the trial court’s silence,
by itself, presupposes that the court did not consider the proper
factors as required by law.” Id. ¶¶ 11, 16. Rather, we will uphold
the sentencing court’s decision so long as, based on the record
before this court, it would be reasonable to assume that the
sentencing court actually considered each factor. Id. ¶ 11. The
district court here did not make any specific findings on the
record regarding the statutory factors.

¶6 McDaniel argues that the district court failed to properly
consider his character because the district court did not resolve
an “ambiguity of facts” regarding his character. Our supreme
court has explained that it may be improper to assume a district
court considered the relevant statutory factors when “an
ambiguity of facts makes the assumption unreasonable.” Id.
Specifically, McDaniel argues that the district court was required
to resolve a conflict between the State’s argument that McDaniel
was “not just a hopeless user” but was “actually out there
contributing to the problem” and the evidence McDaniel
presented suggesting that he had been drug free and gainfully
employed for a number of years with his family in Virginia.

¶7 McDaniel’s argument fails for two reasons. First, to the
extent the prosecutor’s statement may be read as an assertion
that McDaniel was “a hopeless user,” that statement is

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State v. McDaniel

argument, not evidence. The statement therefore cannot serve to
create an ambiguity in the facts presented to the district court
that could provide a basis to undermine the court’s sentencing
decision. See id. Second, in context, it is clear that the import of
the prosecutor’s statement was that McDaniel was not merely a
repeat drug user but a repeat drug dealer—an admitted fact. The
prosecutor was thus focusing the court’s attention on the
criminal conduct at issue in the two cases—McDaniel’s
possession of drugs with the intent to sell them. Accordingly, we
do not agree that there was any ambiguity in the facts regarding
McDaniel’s character that demonstrates that the district court
failed to properly consider this factor.

¶8 McDaniel also argues that the district court failed to
properly consider the gravity and circumstances of the offenses
McDaniel committed and his rehabilitative needs. McDaniel
argues that the PSI Report contained insufficient information
regarding the circumstances of his two offenses because the
report did not describe how McDaniel’s personal circumstances
deteriorated after he lost his job due to an illness, leading to his
relapse into drug use. McDaniel also argues that the PSI Report
did not adequately inform the district court of his rehabilitative
needs, because the report did not discuss McDaniel’s success at
remaining drug free and employed for a number of years while
living in Virginia.

¶9 McDaniel is correct that the information regarding the
circumstances leading to his offense and his success at
rehabilitation in Virginia were not contained in the PSI Report.
However, all of this information was presented to the district
court at the sentencing hearing in the form of letters from
McDaniel’s Virginia family members and McDaniel’s own
statements to the court. The information was therefore properly
before the district court, and nothing in the record suggests that
the court refused to consider any relevant information presented
by McDaniel or his counsel. We are therefore not persuaded that
the district court failed to adequately consider this information
as it relates to the challenged factors.

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State v. McDaniel

¶10 Last, McDaniel argues that the district court “failed to
give adequate weight to various mitigating factors” such as
McDaniel’s acceptance of responsibility for his crime, that his
criminal conduct neither caused nor threatened serious harm,
that there were no victims, and that McDaniel owed no
restitution. An appellant can show an abuse of discretion in the
district court’s weighing of the relevant factors only by
demonstrating that “no reasonable person would take the view
taken by the sentencing court.” State v. Epling, 2011 UT App 229,
¶ 8, 262 P.3d 440.

¶11 McDaniel argues that “the sentencing court would have
weighed the imposition of consecutive sentences differently had
it properly considered the requisite factors, properly considered
the mitigating factors, and properly resolved the ambiguity of
facts in the instant case.” However, it is not enough for McDaniel
to demonstrate that the district court may or even would have
altered its conclusion if it had weighed the factors differently.
Rather, McDaniel must demonstrate that no reasonable person
would have ordered consecutive sentences given the
information presented to the district court. See id. He has failed
to do so here.

¶12 McDaniel has failed to demonstrate that the district court
did not consider all legally relevant factors in imposing
consecutive sentences. He has also failed to demonstrate that the
district court abused its discretion by deciding to impose
consecutive sentences. We therefore affirm the district court’s
sentencing decision.

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