State v. Miera

2015 UT App 46
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
JOSEPH JOHN MIERA,
Defendant and Appellant.

Memorandum Decision
No. 20130788-CA
Filed February 26, 2015

Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 131903255

Joanna E. Landau and McCaye Christianson,
Attorneys for Appellant

Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES J. FREDERIC VOROS JR. and JOHN A. PEARCE
concurred.

ORME, Judge:

¶1 Defendant Joseph John Miera pled guilty to burglary, a
second degree felony. See Utah Code Ann. § 76-6-202 (LexisNexis
2012). The district court sentenced Defendant to prison.
Defendant appeals, arguing that the district court abused its
discretion when it denied his request for probation. We affirm.

¶2 Defendant and a female associate gained entry to J.R.’s
home after they knocked on the door and asked J.R. for some
water for their dog. When J.R. graciously returned with the
State v. Miera

water, Defendant struck J.R. in the face, knocking him to the
ground. Two of Defendant’s male associates then kicked J.R.’s
front door open and entered the home. One of those associates
entered the bedroom of J.R.’s girlfriend and would not allow her
to leave. When Defendant and his associates eventually left, they
took money, jewelry, and other valuables with them. Defendant
was later arrested and charged.

¶3 Pursuant to a plea bargain, Defendant pled guilty to
burglary, a second degree felony, and the State stipulated to the
supervised release of Defendant pending sentencing. During his
release, Defendant was supervised by Adult Probation and
Parole (AP&P). After entry of the plea but before sentencing,
AP&P notified the trial court that Defendant had violated the
conditions of his supervised release by failing to attend an
appointment with AP&P. Defendant’s pretrial release was
therefore revoked.

¶4 At sentencing, Defendant’s counsel requested that
Defendant receive probation. The district court instead
sentenced Defendant to the statutory prison term of one to
fifteen years and ordered restitution.

¶5 We are now asked to decide whether the district court
abused its discretion by sentencing Defendant to prison rather
than placing him on probation. An appellate court will find an
abuse of discretion only if it can be said that “no reasonable
person could adopt the view of the trial court.” State v. Daniels,
2014 UT App 230, ¶ 7, 336 P.3d 1074. Accord State v. Gerrard, 584
P.2d 885, 887 (Utah 1978). Defendant fails to meet this burden.

¶6 Defendant’s sentence is squarely within the scope of the
applicable statute. See Utah Code Ann. § 76-3-203 (LexisNexis
2012). That statute allows “[a] person who has been convicted of
a [second degree] felony” to be sentenced to an indeterminate
prison term “of not less than one year nor more than 15 years.”
Id. This is precisely the sentence Defendant received. Defendant
argues that his sentence is “inherently unfair” because it

20130788-CA 2 2015 UT App 46
State v. Miera

“prevent[s] [him] from being able to work and contribute to the
restitution he was ordered to pay.” Defendant’s inability to work
while incarcerated is a burden common to essentially all inmates
and is not enough to establish that his statutorily authorized
sentence was an abuse of discretion.

¶7 The rule in Utah has long been that

[p]robation is not a matter of right . . . . The
granting or withholding of probation involves
considering intangibles of character, personality
and attitude, of which the cold record gives little
inkling. These matters, which are to be considered
in connection with the prior record of the accused,
are of such nature that the problem of probation
must of necessity rest within the discretion of the
judge who hears the case.

State v. Sibert, 310 P.2d 388, 393 (Utah 1957). The fact that
Defendant requested probation does not mean he is entitled to
receive it. Indeed, “[t]he decision whether to grant probation is
within the complete discretion of the trial court.“ State v. Rhodes,
818 P.2d 1048, 1049 (Utah Ct. App. 1991) (emphasis added).

¶8 Here, the district court determined that probation should
not be granted. In light of Defendant’s failure to abide by the
terms of his pretrial release, his criminal record, and the nature
and circumstances of the crime committed, we see no abuse of
discretion. The district court’s decision will not be disturbed.

¶9 Affirmed.

____________

20130788-CA 3 2015 UT App 46