State v. Scott

2017 UT App 103

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
KEVIN MICHAEL SCOTT,
Appellant.

Opinion
No. 20130309-CA
Filed June 29, 2017

Fifth District Court, Cedar City Department
The Honorable G. Michael Westfall
No. 121500045

Matthew D. Carling, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.

ROTH, Judge:

¶1 Kevin Michael Scott pleaded guilty to sexual abuse of a
child and possession or use of a controlled substance. 1 He
appeals, claiming that he received constitutionally ineffective
assistance of counsel prior to entering his plea, that the
sentencing court erred in failing to sua sponte revisit his plea
based on evidence of mental deficiency, and that the court failed
to properly consider mitigating factors when it sentenced him.
We affirm.

1. Scott’s convictions arose in separate cases below. We granted
his motion to consolidate them on appeal.
State v. Scott

¶2 In 2011, a detective interviewed a young teenager at the
local Children’s Justice Center. The teenager disclosed that she
had been involved in a sexual relationship with Scott when she
was thirteen and he was eighteen. After learning that
information, the detective brought Scott in for questioning about
the relationship. Scott waived his Miranda rights, agreed to speak
to the detective, and admitted to having sexual intercourse with
the girl—then his girlfriend—on multiple occasions. The State
charged Scott with rape of a child, a first degree felony.

¶3 While that charge was pending and he was out on bail,
Scott failed to appear for a court hearing. The court therefore
issued a bench warrant for Scott’s arrest, and the next day an
officer stopped Scott based on the warrant. Scott initially resisted
arrest by running away, but the officer caught him. The officer
conducted a pat down search and discovered several pills that
later tested positive for morphine. The State charged Scott with
possession or use of a controlled substance, enhanced to a
second degree felony due to proximity to a child-care facility,
failure to stop at the command of a police officer, a class A
misdemeanor, and interference with an arresting officer, a class
B misdemeanor. After he was again released on bail, Scott
absconded to Washington and another warrant issued for his
arrest. Scott was eventually found in Washington and returned
to Utah for trial.

¶4 Scott agreed to plead guilty to sexual abuse of a child, a
second degree felony, and possession or use of a controlled
substance, a third degree felony, in return for dismissal of the
remaining charges. At the plea hearing, the court went through a
colloquy with Scott, who indicated that he had no mental or
physical deficiencies that would interfere with his ability to enter
a guilty plea. Scott also indicated that he understood his rights
and the basis for the charges against him and that he was
satisfied with the representation he had received from defense
counsel. The court then heard the factual basis for both pleas,
confirmed that Scott knew he would be giving up important

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State v. Scott

rights by pleading guilty, and explained that he would need to
register as a sex offender for life. Finally, the court accepted both
guilty pleas and found that they were “freely, knowingly,
intelligently and voluntarily made with understanding.”

¶5 At sentencing, the court relied on information from a
number of sources, including a neuropsychological evaluation
prepared by the defense and a presentence investigation (PSI)
report prepared by the State. The neuropsychological evaluation
summarized Scott’s cognitive abilities as “impaired to low
average.” The PSI report detailed Scott’s criminal and family
histories and briefly described the results of the
neuropsychological evaluation, a copy of which was attached to
the report. After balancing “the safety of the community against
the wants and needs of the defendant,” the PSI report ultimately
recommended that “imprisonment best suited the situation.”
The court also considered oral statements from Scott, the State,
defense counsel, and Scott’s mother and father, as well as
written statements from other family members and friends. The
statements focused on mitigating circumstances such as Scott’s
good nature and aptitude for rehabilitation. The court also heard
statements which explained that Scott’s diminished executive
reasoning, as detailed in the PSI report, was the result of a
traumatic brain injury he had suffered some years earlier. The
court sentenced Scott to serve concurrent terms of one to fifteen
years for sexual abuse of a child and zero to five years for
possession or use of a controlled substance.

¶6 On appeal, Scott argues that he received ineffective
assistance of counsel because his attorney did not move to
suppress the controlled-substance evidence on Fourth
Amendment grounds. Scott also argues that, because the PSI
report and neuropsychological evaluation indicated he had
impaired cognitive abilities, the sentencing court committed
plain error when it failed to reexamine sua sponte whether
Scott’s guilty plea was knowing and voluntary.

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State v. Scott

¶7 Our jurisdiction to consider these arguments is governed
by the procedural posture of this case. The Utah Constitution
provides that the accused generally has “the right to appeal in all
cases.” Utah Const. art. I, § 12. The right to appeal is not
absolute, however, because “guilty pleas operate as a waiver of
the right to a direct appeal of the conviction on the crime
charged.” State v. Taufui, 2015 UT App 118, ¶ 15, 350 P.3d 631
(brackets, citation, and internal quotation marks omitted). “If a
defendant wishes to challenge a guilty plea on direct appeal, he
must first move to withdraw the plea . . . .” State v. Coleman, 2013
UT App 131, ¶ 3, 302 P.3d 860 (per curiam). “If a defendant does
not move to withdraw the plea, the only direct appeal available
is the residual right to appeal the sentence.” State v. Nicholls, 2017
UT App 60, ¶ 20. Indeed, failure to seek to withdraw a guilty
plea creates a bar that prohibits this court from reviewing on
direct appeal the plea itself or any proceeding that led to it. See
State v. Ott, 2010 UT 1, ¶ 18, 247 P.3d 344 (“[F]ailure to withdraw
a guilty plea within the time frame dictated by [Utah’s plea
withdrawal statute] deprives the trial court and appellate courts
of jurisdiction to review the validity of the plea.”).

¶8 In this case, Scott challenges his convictions for crimes he
pleaded guilty to. Because he never moved to withdraw his plea,
we lack jurisdiction to consider any challenge not directed at the
sentence he received. See id. That rule applies regardless of the
nature of the errors—here, ineffective assistance of counsel and
plain error—that Scott alleges occurred below. In State v.
Rhinehart, our supreme court explained that, “by pleading guilty,
the defendant . . . waives all nonjurisdictional defects, including
alleged pre-plea constitutional violations.” 2007 UT 61, ¶¶ 14–15,
167 P.3d 1046 (citation and internal quotation marks omitted)
(rejecting on jurisdictional grounds an ineffective assistance of
counsel claim raised on direct appeal following a guilty plea).
And in State v. Reyes, the supreme court made clear that an
appellate court cannot “use plain error to reach an issue over
which it has no jurisdiction.” 2002 UT 13, ¶ 4, 40 P.3d 630. These

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State v. Scott

principles control our decision—we are powerless to address
either of Scott’s first two arguments on appeal.

¶9 Scott’s remaining claim relates to his sentence, which we
do have jurisdiction to review. See Nicholls, 2017 UT App 60,
¶ 20. He argues that the court “failed to take into consideration
the mitigating circumstances of Scott’s mental competency and
[brain] injury” when it sentenced him. In support of his
argument, Scott contends that, even though the “court [had]
ample time to review [the] PSI and the Neuropsychological
Evaluation,” “at sentencing it was clear that the court had taken
none of [the mitigating circumstances from] the report[s] into
consideration.” As proof, he focuses on the sentencing court’s
statement that, but for Scott’s young age, “this would [have
been] a really easy case” to sentence. As we understand it, Scott
contends that this statement shows that the court ignored all
mitigating factors other than the defendant’s age.

¶10 We afford the sentencing court wide latitude and will
reverse a sentencing decision “only if it is an abuse of the judge’s
discretion.” State v. Moa, 2012 UT 28, ¶ 34, 282 P.3d 985 (citation
and internal quotation marks omitted). A sentence constitutes an
abuse of discretion when the sentencing court “fails to consider
all legally relevant factors, or . . . the sentence imposed is clearly
excessive.” LeBeau v. State, 2014 UT 39, ¶ 16, 337 P.3d 254
(citation and internal quotation marks omitted). We will thus
find an abuse of discretion only if “no reasonable person would
take the view adopted by the district court.” State v. Monzon,
2016 UT App 1, ¶ 8, 365 P.3d 1234 (brackets, citation, and
internal quotation marks omitted). Further, this court generally
presumes that the sentencing court “made all the necessary
considerations when making a sentencing decision.” Moa, 2012
UT 28, ¶ 35. “Although courts must consider all legally relevant
factors in making a sentencing decision, not all aggravating and
mitigating factors are equally important, and one factor in
mitigation or aggravation may weigh more than several factors
on the opposite scale.” State v. Killpack, 2008 UT 49, ¶ 59, 191 P.3d

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State v. Scott

17 (brackets, citation, and internal quotation marks omitted),
abrogated on other grounds as recognized by State v. Lowther, 2017
UT 24.

¶11 The district court here did not make detailed findings of
fact regarding the mitigating circumstances that Scott focuses on,
but the record is clear that it considered mitigation broadly,
including mental deficiency concerns. Indeed, the court brought
up and investigated the possibility of reducing the severity of
Scott’s conviction under Utah Code section 76-3-402, a process
known as a 402 reduction. After noting “that there are some
instances where a 402 reduction sua sponte by the Court is not
permitted,” the court asked the State, “Is there any law that
would prohibit me from reducing this second-degree felony to a
third-degree felony for purposes of sentencing that you’re aware
of?” To answer the question, the State and the court analyzed the
statute. The court ultimately determined that a reduction was
not available for convictions, like Scott’s, that require lifetime
registration as a sex offender. See Utah Code Ann. § 76-3-
402(7)(b) (LexisNexis 2012). The court thus considered but was
legally barred from reducing Scott’s conviction for sentencing
purposes.

¶12 With that option for a reduced level of crime foreclosed,
the court sentenced Scott in accord with the PSI report’s
recommendation that he be committed to prison. In support of
its decision, the court stated that Scott’s “casting the blame on
the 13-year-old cause[d the court] a lot of concern.” The court
also responded to the neuropsychological evaluation,
particularly regarding Scott’s IQ, stating that the court did not
“get the impression that [Scott was] struggling intelligence-
wise,” and that he “[wrote] well” and “express[ed himself]
well.” And in conversation with Scott, the judge acknowledged
the difficulty of the situation: “I wish I had more [sentencing]
option[s] available to me. I do not believe that you are an
appropriate candidate for probation. I think you’re a threat to . . .
society for a number of reasons.” In addition to sentencing Scott

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State v. Scott

to prison, the court assessed a fine for the sexual abuse
conviction. However, it ordered that Scott pay no fine for his
drug conviction. The court also ordered that Scott serve the two
sentences concurrently and recommended he receive credit for
time served. Based on the court’s inability to reduce Scott’s
conviction and its determination that Scott was not a good
candidate for probation, the court’s sentencing decision was not
clearly excessive. See LeBeau, 2014 UT 39, ¶ 16.

¶13 Nor can we conclude that the district court failed to take
into account the relevant factors in determining Scott’s sentence.
The court had substantial information in the form of a PSI report,
a neuropsychological evaluation, letters and statements from
Scott and his family members, and arguments of his counsel that
addressed in some detail the mitigating factors that Scott claims
on appeal the district court ignored, including Scott’s diminished
mental capacity. We presume that the court fully considered all
the information presented to it, see Moa, 2012 UT 28, ¶ 35, and
Scott has not persuaded us that the presumption is undermined
by the record in this case, which does not support Scott’s
argument that the court failed to consider any mitigation other
than his age.

¶14 In State v. Cline, 2017 UT App 50, this court rejected
arguments that the sentencing court either “failed to consider
[mitigating] factors” or “improperly weighed the aggravating
and mitigating factors.” See id. ¶¶ 8–11. We concluded that,
because the mitigating factors were discussed at the sentencing
hearing, “[t]o the extent [the appellant] argues the court did not
consider these factors, this is inaccurate.” Id. ¶ 9. We also noted
that any argument “that the district court improperly weighed
the aggravating and mitigating factors” appeared to be a
“disagreement with the court’s balancing efforts.” Id. ¶ 10. We
then held that “the court acted well within its discretion” when
it “gave more weight to the aggravating factors presented
during the sentencing hearing.” See id. ¶¶ 10–11.

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State v. Scott

¶15 As in Cline, Scott appears to take issue with how much
weight the court assigned to the various mitigating factors
before it, contending that Scott’s diminished mental capacity was
more important to the sentencing decision than the court gave it
credit. However, a disagreement with the court on the
appropriate weight for a given factor does not show an abuse of
discretion because “one factor in mitigation or aggravation may
weigh more than several factors on the opposite scale.” See id.
¶ 10 (brackets, citation, and internal quotation marks omitted).
Here, the record demonstrates that the court was aware of
mitigating factors from the written documents and the positive
statements it received about Scott from his family and friends.
And particularly because the sentencing court was open to
reducing the severity of Scott’s sentence—it brought up the
possibility of a 402 reduction on its own—we can safely infer
that it considered those mitigating factors. Against that
backdrop, Scott’s concern for the court’s statement that, but for
Scott’s young age, “this would [have been] a really easy case”
takes on different light. In the context of the sentencing hearing
as a whole, the court’s statement about Scott’s age is reasonably
read as an indication that the court found age to be the most
important mitigating factor, not as an indication that the court
ignored all other mitigating factors. Scott thus has not persuaded
us that the sentencing court failed to properly consider
mitigating factors, see id. ¶¶ 10–11, and we cannot say that no
reasonable person would take the view adopted by the
sentencing court, see State v. Monzon, 2016 UT App 1, ¶ 8, 365
P.3d 1234.

¶16 We conclude that we do not have jurisdiction to consider
Scott’s ineffective assistance of counsel and plain error claims on
direct appeal, and he has not persuaded us that the court abused
its discretion in sentencing him. Affirmed.

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