State v. Guillen

2016 UT App 39

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MARIO L. GUILLEN,
Appellant.

Per Curiam Decision
No. 20150462-CA
Filed February 25, 2016

Second District Court, Ogden Department
The Honorable W. Brent West
No. 141901625

Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee

Before JUDGES GREGORY K. ORME and J. FREDERIC VOROS JR., and
JUSTICE JOHN A. PEARCE. 1

PER CURIAM:

¶1 Mario L. Guillen appeals from his sentences for attempted
theft and giving false personal information to a peace officer.
Guillen argues that the district court plainly erred by
considering Guillen’s actions during sentencing in its sentencing
decision. Alternatively, he argues that his trial counsel’s
performance was deficient due to counsel’s failure to address the
issue with the court. We conclude that the district court did not
consider any inaccurate or unreliable information in making its
sentencing decision.

1. Justice John A. Pearce sat by special assignment as authorized
by law. See generally Utah R. Jud. Admin. 3-108(3).
State v. Guillen

¶2 We review the sentencing decision of the district court,
including the decision to grant or deny probation, for an abuse
of discretion. See State v. Valdovinos, 2003 UT App 432, ¶ 14, 82
P.3d 1167. “An abuse of discretion results when the judge fails to
consider all legally relevant factors or if the sentence imposed is
clearly excessive.” Id. (citation and internal quotation marks
omitted). Furthermore, “[a]n appellate court may only find
abuse if it can be said that no reasonable [person] would take the
view adopted by the trial court.” Id. (second alteration in
original) (citation and internal quotation marks omitted).
However, due process requires “that a sentencing judge act on
reasonably reliable and relevant information in exercising
discretion in fixing a sentence.” State v. Howell, 707 P.2d 115, 118
(Utah 1985).

¶3 Guillen argues that in making its sentencing decision, the
district court improperly relied on Guillen’s refusal to look at the
victim while she was speaking at his sentencing hearing.
Specifically, after the victim addressed the court, the prosecutor
stated: “I find it interesting that the defendant doesn’t pay
attention to the victim during [her] speech.” The district court
responded that Guillen’s demeanor “was not lost on me.”
However, immediately thereafter, Guillen informed the court
that his attorney told him not to look at the victim. The court
acknowledged the statement by responding, “Oh. Okay. All
right. Anything else anybody wants to say?” Guillen argues that
this exchange demonstrates that the district court relied on
inaccurate and unreliable information in making its sentencing
decision. We disagree.

¶4 The exchange demonstrates that Guillen was able to
correct any of the district court’s potential misconceptions
caused by Guillen’s failure to look at the victim while she was
speaking at sentencing. The district court then accepted this
explanation. Thus, the record does not demonstrate that the

20150462-CA 2 2016 UT App 39
State v. Guillen

district court relied on the inaccurate or unreliable information
claimed by Guillen.

¶5 We note that the presentence investigation report (PSI)
recommended two concurrent jail sentences of 365 days. This
recommendation was based on Guillen’s extensive criminal
history; his negative parole history, including absconding from
supervision twice; and his pending criminal charges in
Colorado. In rendering its decision the district court expressly
indicated that it believed that the PSI’s recommendation was
correct and that it was adopting that recommendation. Guillen
points to nothing in the record that would demonstrate that
some lesser sentence was warranted. Ultimately, Guillen cannot
show that no reasonable person “would take the view adopted
by the trial court.” See Valdovinos, 2003 UT App 432, ¶ 14.

¶6 Affirmed.

20150462-CA 3 2016 UT App 39