State v. Monroe

2015 UT App 48
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
GLENN VAUGHN MONROE,
Defendant and Appellant.

Memorandum Decision
No. 20130918-CA
Filed February 26, 2015

Second District Court, Farmington Department
The Honorable Glen R. Dawson
No. 131700737

Scott L. Wiggins, Attorney for Appellant

Sean D. Reyes and Deborah L. Bulkeley, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN
concurred.

ORME, Judge:

¶1 Defendant Glenn Vaughn Monroe pled guilty to forcible
sexual abuse and burglary, both second degree felonies. See Utah
Code Ann. §§ 76-5-404, 76-6-202 (LexisNexis 2012). Defendant
now appeals his sentence. His challenge is brought in somewhat
different terms, but in essence we are asked to consider
(1) whether the district court erred in failing to resolve
Defendant’s objections to his presentence investigation report
(PSI) on the record, as required by statute; (2) whether the failure
to resolve those objections led the district court to impose a
flawed sentence; and (3) whether Defendant’s sentence should
State v. Monroe

be set aside and the matter remanded for resolution of the
objections and for resentencing.1

¶2 We agree that Defendant’s objections to the PSI were not
adequately resolved on the record, but we conclude that the
district court properly considered the thrust of the objections
before it sentenced Defendant. Therefore, we affirm Defendant’s
sentence but remand for the limited purpose of making the
necessary findings to resolve the objections to the PSI.

¶3 Defendant talked his way into the victim’s apartment and
perpetrated multiple criminal acts against her. The victim
escaped Defendant’s control, but he tackled her and assaulted
her a second time. Defendant was arrested, and multiple charges
were brought against him. Pursuant to a plea agreement, he
initially pled guilty to attempted object rape and burglary.
However, the State stipulated to a withdrawal of that plea.
Under a revised plea agreement, Defendant pled guilty to
forcible sexual abuse and burglary.

¶4 At sentencing, defense counsel indicated that “*t+here
*were+ some corrections” to be made to the PSI. She identified six
problems with the PSI, arguing that it (1) incorrectly indicated
that Defendant had completed probation unsuccessfully more
than once; (2) failed to reflect Defendant’s completion of high
school; (3) did not explain why Defendant was unemployed; (4)
properly indicated there was a stable relationship between
Defendant and his mother but failed to mention Defendant’s
positive relationship with his stepfather; (5) did not properly
reflect Defendant’s attitude and understanding of the severity

1. Defendant also argues that defense counsel’s performance was
unconstitutionally ineffective because she did not affirmatively
ask the district court to resolve Defendant’s objections to the PSI.
In view of our disposition, we need not reach this issue. See infra
¶ 11.

20130918-CA 2 2015 UT App 48
State v. Monroe

and ramifications of his actions and the case; and (6) failed to
consider “the specific instances in this case.”

¶5 After defense counsel made her explanations, all of which
the district court commented upon or at least acknowledged, the
district court sentenced Defendant to prison for two concurrent
indeterminate terms of one to fifteen years and recommended
credit for time served. Defendant appeals.

¶6 The first issue we must consider is whether the district
court complied with Utah Code section 77-18-1(6)(a) and
adequately resolved Defendant’s objections to the PSI on the
record. See Utah Code Ann. § 77-18-1(6)(a) (LexisNexis 2012).
That statute

requires the sentencing judge to consider the
party’s objections to the report, make findings on
the record as to whether the information objected
to is accurate, and determine on the record
whether that information is relevant to the issue of
sentencing.

State v. Jaeger, 1999 UT 1, ¶ 44, 973 P.2d 404. So once a defendant
alleges factual inaccuracies in a PSI, the district court must do
three things: first, consider the objection raised; second, make
findings on the record regarding the accuracy of the information
at issue; and third, determine on the record the relevance of that
information as it relates to sentencing. Id. Here, the district court
fulfilled its first obligation by considering Defendant’s
objections,2 but it fell short on its second and third obligations

2. The first of Defendant’s objections was properly resolved on
the record when the district court rejected the challenged
summary of Defendant’s probation history and, with defense
counsel’s approval, instead accepted the accuracy of the matter
as set forth in the “criminal history” section of the PSI. We
(continued...)

20130918-CA 3 2015 UT App 48
State v. Monroe

when it failed to indicate on the record its determinations of
accuracy and relevance.

¶7 We have previously indicated that “because the
statements in *a d+efendant’s PSI may be utilized in future
settings, such as parole hearings, it is necessary that [a
d]efendant’s objections be resolved on the record.” State v.
Waterfield, 2011 UT App 27, ¶ 11, 248 P.3d 57. It is for this reason
that we must “remand for the limited purpose of resolving
Defendant’s objections to the PSI that were not adequately
addressed on the record by the district court.” Id.

¶8 Defendant also argues, in essence, that the district court’s
failure to resolve his objections on the record led to a flawed
sentence that must be set aside. We are not convinced that the
district court’s failure to resolve Defendant’s objections requires
reversal and resentencing. Cf. Jaeger, 1999 UT 1, ¶ 45 (concluding
that where error in “failing to properly resolve . . . objections to
the *PSI+” did not “require reversal,” remand was limited to
resolving claimed inaccuracies in the PSI).

¶9 Our review of the record convinces us that the district
court accepted the general accuracy of Defendant’s corrections
for purposes of imposing sentence in this case. Defense counsel
called the court’s attention to the several concerns and provided
great detail as to why Defendant believed the PSI was
inaccurate. The State did not disagree with Defendant’s

(…continued)
categorically reject the broadly phrased last objection, as the PSI
appropriately treated “the specific instances in this case.” The
remaining four objections were left unresolved. For instance,
when defense counsel indicated, “Your Honor, we provided the
*high school+ diploma there,” the court merely acknowledged,
“You did.”

20130918-CA 4 2015 UT App 48
State v. Monroe

characterization of the deficiencies at sentencing. Indeed, the
prosecutor expressly agreed that Defendant graduated from
high school and understood the severity of his crimes. And the
district court acknowledged the objections that were raised and
actually commented on some of them. Overall, the sentence
appears proper in light of the record and the circumstances of
the crime.3

¶10 We do recognize that even though the sentence was not
flawed given that the district court had Defendant’s version of
the facts before it, the PSI will follow Defendant through the
justice system, and it is important to make appropriate
corrections to the report. For this reason only, we remand.

¶11 We need not consider Defendant’s ineffective assistance
of counsel claim in any detail. Defense counsel made a very

3. Defendant’s concerns with the PSI are minor as compared to
those at issue in other cases. Consider State v. Jaeger, 1999 UT 1,
973 P.2d 404, where the defendant’s objections concerned the
PSI’s indication that the victim was particularly vulnerable, the
injuries caused were unusually extensive, and the defendant’s
offense was committed with extreme cruelty and depravity.
Id.¶ 42. Here, Defendant’s relationship with his stepfather,
whether he had completed high school, whether he was
unemployed for reasons other than being incarcerated, and what
to make of his comments expressing remorse as they bore on the
ramifications of his actions just did not matter. (As previously
noted, the concern about Defendant’s probation history was
resolved by stipulation. And the concern about a lack of
attention to “the specific instances in this case” was simply wide
of the mark.) The gravity of Defendant’s crimes and his generous
plea deal, along with the victim’s compelling impact statement,
drove the sentence imposed by the district court—not the
comparatively minor details fussed about by counsel.

20130918-CA 5 2015 UT App 48
State v. Monroe

thorough record of Defendant’s objections to the PSI. While it is
true, considering the nature of PSIs and their tendency to follow
defendants, that defense counsel should have asked the district
court to make findings on the record addressing the claimed
deficiencies, that mistake will be fixed with the limited remand
we have ordered and thus is of no consequence.

¶12 For the reasons explained above, Defendant’s sentence is
affirmed. We remand for resolution of the factual matters in the
PSI disputed by Defendant.

____________

20130918-CA 6 2015 UT App 48