State v. Potter

2015 UT App 257
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
LEVI POTTER ,
Appellant.
Memorandum Decision
No. 20140765-CA
Filed October 16, 2015
Fourth District Court, Provo Department
The Honorable David N. Mortensen
No. 141400105
Emily Adams, Attorney for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE GREGORY K. O RME authored this Memorandum Decision,
in which J UDGES M ICHELE M. C HRISTIANSEN and K ATE A. TOOMEY
concurred.
ORME, Judge:
¶1 	Appellant Levi Potter (Defendant) pled guilty to seven
felony charges—five counts of voyeurism, one count of unlawful
sexual conduct with a sixteen- or seventeen-year-old, and one
count 	of 	dealing 	in 	material 	harmful 	to 	a 	minor. 	He 	was
sentenced to prison for those crimes. Defendant now appeals,
arguing that his defense counsel was ineffective for failing to
correct an alleged error in his presentence investigation report
(PSI). Because Defendant has failed to demonstrate that he
suffered prejudice as a result of this alleged error, we affirm.
¶2 	When Defendant was twenty-seven years old, he had
sexual intercourse with a sixteen-year-old girl on at least three

State v. Potter
20140765-CA 	2 	2015 UT App 257
occasions. He and the victim also engaged in oral sex twice.
Defendant encouraged the victim to send him sexually explicit
pictures 	of 	herself, 	which 	she 	did. 	When 	police 	ultimately
searched Defendant’s phone, they discovered more than twenty
of these pictures. Defendant had also texted at least five sexually
explicit pictures of himself to the victim.
¶3 	The 	State 	charged 	Defendant 	with 	twenty 	crimes,
including five counts of unlawful sexual conduct with a sixteen-
or seventeen-year-old, five counts of dealing in material harmful
to a minor, and ten counts of sexual exploitation of a minor.
Pursuant to an agreement with the State, Defendant pled guilty
to five counts of voyeurism, all second degree felonies; one count
of unlawful conduct with a sixteen- or seventeen-year-old, a
third 	degree 	felony; 	and 	one 	count 	of 	dealing 	in 	material
harmful to a minor, a third degree felony. See Utah Code Ann.
§§ 76-9-702.7(3), 76-5-401.2, 76-10-1206(2)(a) (LexisNexis 2012).
¶4 	Before sentencing, Adult Probation and Parole (AP&P)
prepared a PSI, which included a sex offender matrix. According
to the matrix, the estimated sentence for Defendant’s second
degree felonies was forty-eight months. And while the matrix
indicated that Defendant’s sentence might be either probation or
prison, AP&P recommended prison. This recommendation was
based, 	in 	part, 	on 	“[D]efendant’s 	attitude 	and 	lack 	[of]
responsibility.” Defense counsel argued that he should instead
be sentenced to probation because Defendant had “a minimal
record” and had “never been on supervised probation before.”
The State disagreed with defense counsel’s recommendation of
probation, arguing that Defendant had taken advantage of a
vulnerable child in the commission of his crimes. The State
further pointed out that all felonies carry a potential prison
sentence and that such a sentence seemed appropriate in this
case.
¶5 	The district court considered these arguments, heard from
Defendant directly, and then explained its “view of the case.”

State v. Potter
20140765-CA 	3 	2015 UT App 257
The court agreed with defense counsel that Defendant’s position
on 	the 	matrix 	presented 	an 	“either/or 	proposition”: 	either
Defendant could be sentenced to prison or he could be placed on
probation. 	And 	if 	Defendant’s 	only 	crimes 	had 	been 	the
exchange of “a couple of” explicit pictures, the district court
noted that it would have been “more inclined to go with the
probation route.” But the district court stated that it had “to
consider 	the 	totality 	of 	the 	circumstances,” 	which 	included
Defendant’s 	admission 	to 	“kind 	of 	an 	ongoing 	sexual
relationship” with the victim. The court therefore determined
“that the recommendation of AP&P under the circumstances
[was] appropriate” and sentenced Defendant to prison.
¶6 	Defendant timely appealed and, with the assistance of
new counsel on appeal, argues that his criminal-history score, as
presented 	in 	the 	PSI, 	was 	incorrect.1 	He 	asserts 	that 	he
erroneously received one point for “Violence History” and that
this one point moved him up one row on the matrix, effectively
moving him from a sentencing guideline of probation to the
“either/or proposition” referenced by the district court. Because,
Defendant argues, defense counsel failed to “inform the district
court 	of 	the 	miscalculation,” 	he 	seeks 	to 	remedy 	the
problem through an ineffective-assistance-of-counsel claim. “An
1. Along with his opening brief, Defendant filed a motion “to
remand this case for findings necessary to determine whether
[defense] counsel was ineffective.” See Utah R. App. P. 23B.
Defendant argues that such a remand is necessary because “the
record lacks information about what [defense] counsel knew of
the inaccuracies in [Defendant’s] PSI.” Because we determine
that Defendant’s ineffective-assistance claim would fail for lack
of 	prejudice, 	even 	assuming 	defense 	counsel 	performed
deficiently, see infra ¶¶ 9–11, remand is unnecessary and would
not affect the disposition of this appeal. Defendant’s motion is
therefore denied.

State v. Potter
20140765-CA 	4 	2015 UT App 257
ineffective assistance of counsel claim raised for the first time on
appeal presents a question of law.” State v. Clark, 2004 UT 25, ¶ 6,
89 P.3d 162.
¶7 	To succeed on his ineffective-assistance claim, Defendant
is required to prove “that counsel’s representation fell below an
objective 	standard 	of 	reasonableness” 	and 	“that 	there 	is 	a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). “In the
event it is ‘easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice,’ we will do so without
analyzing whether counsel’s performance was professionally
unreasonable.” Archuleta v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d
232 (quoting Strickland, 466 U.S. at 697).
¶8 	To 	show 	prejudice 	in 	this 	case, 	“Defendant 	must
demonstrate ‘a reasonable probability that’” if defense counsel
had objected to the PSI, his sentence would have been different.
See State v. Millard, 2010 UT App 355, ¶ 14, 246 P.3d 151 (quoting
State v. Vos, 2007 UT App 215, ¶ 12, 164 P.3d 1258). Defendant
argues that his sentence would have been different if defense
counsel had alerted the district court to the alleged calculation
error. This is so, he argues, because “his guidelines sentence was
eight months longer with the recommendation for imprisonment
or probation” than it would have been if his criminal-history
score had been one point lower, moving him to a matrix box
where probation is suggested as the appropriate sentence.2 But
2. Defendant also briefly argues that the alleged error caused
him prejudice because “[a]n incorrect PSI could have long-term
ramifications for [Defendant] and could affect his parole.” While
his general concern is valid, it does not warrant reversal and
remand, but it may be properly dealt with by the district court.
See infra note 3.

State v. Potter
20140765-CA 	5 	2015 UT App 257
this 	assertion 	does 	not 	meet 	Defendant’s 	burden 	of
demonstrating prejudice.
¶9 	Even 	assuming 	that 	the 	violence-history 	point 	was
erroneously added to Defendant’s criminal-history score, we
conclude that Defendant was not prejudiced. The district court’s
stated rationale for ordering prison over probation indicates that
in making its sentencing determinations, the court was in no
way focused on the criminal-history score. Instead, it imposed
the sentence it did based on the specific factual circumstances of
this case. The district court explained its “view of the case,”
including why it decided that probation was inappropriate.
Defendant does not argue that this was an abuse of discretion,
nor 	does 	he 	establish 	that 	the 	sentencing 	decision 	was
dependent 	on 	his 	criminal-history 	score. 	Thus, 	Defendant’s
ineffective-assistance 	claim 	fails 	because 	he 	does 	not
demonstrate that the alleged error—a criminal-history score that
was one point too high—caused him prejudice in the form of a
more severe sentence. See State v. Jimenez, 2012 UT 41, ¶ 1, 284
P.3d 640.
¶10 	We note that the district court would have been within its
discretion 	to 	sentence 	Defendant 	to 	prison 	even 	if 	he 	had
received a lower criminal-history score. Our case law is replete
with opinions affirming the decisions of district courts imposing
prison sentences in the sound exercise of their discretion, even
when probation is recommended. See, e.g., State v. Ashcraft, 2014
UT App 253, ¶ 6 n.3, 338 P.3d 247 (affirming a prison sentence
where 	probation 	was 	recommended 	under 	the 	sentencing
guidelines 	but 	AP&P 	had 	recommended 	prison); 	State 	v.
Goodluck, 2013 UT App 263, ¶ 3, 315 P.3d 1051 (per curiam)
(affirming 	a 	prison 	sentence 	where 	the 	PSI 	recommended
probation, because the sentencing judge determined that such a
recommendation was inconsistent with the content of the PSI).
Thus, 	the 	biggest 	impediment 	to 	Defendant’s 	challenge 	on
appeal is that, given a sentencing court’s “wide latitude and

State v. Potter
20140765-CA 	6 	2015 UT App 257
discretion in sentencing,” see State v. Woodland, 945 P.2d 665, 671
(Utah 1997), his sentence would have been the same regardless
of 	his 	criminal-history 	score 	and 	the 	associated 	guidelines
recommendation. This conclusion is amply supported by the
grounds outlined by the district court in sentencing Defendant to
prison, which, as explained above, focused on the disturbing
facts of his offenses and not his criminal history.
¶11 	A 	successful 	ineffective-assistance 	claim 	requires 	a
demonstration 	of 	prejudice. 	Because 	the 	district 	court’s
sentencing decision did not turn on Defendant’s criminal-history
score, it matters not whether that score was incorrect, and
Defendant therefore has not made, and indeed cannot make, a
showing of prejudice.
¶12 	Affirmed.3
3. Our affirmance is without prejudice to the district court’s
opportunity, 	on 	appropriate 	application, 	to 	correct 	any
misstatements in Defendant’s PSI. See generally State v. Post, 2015
UT App 162, 354 P.3d 810; State v. Monroe, 2015 UT App 48, 345
P.3d 755.