State v. Cline

2017 UT App 50

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ROBERT EARL CLINE,
Appellant.

Opinion
No. 20160181-CA
Filed March 23, 2017

Third District Court, Salt Lake Department
The Honorable Keith A. Kelly
No. 151906036

Brady Minow Smith, Attorney for Appellant
Simarjit S. Gill and Matthew J. Hansen, Attorneys
for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and DAVID N. MORTENSEN concurred.

TOOMEY, Judge:

¶1 Robert Earl Cline appeals his sentence of 140 days in jail
and 24 months of probation imposed after he pleaded guilty to
attempted unlawful distribution of an intimate image, a class B
misdemeanor. Cline argues the district court abused its
discretion because it did not adequately consider several
mitigating factors before imposing the sentence. Cline also seeks
to withdraw his guilty plea without having moved to withdraw
it before sentencing. We affirm.

¶2 In March 2015, while on probation, Cline sent his mother
nude photographs of his ex-wife in an attempt to persuade her
that his ex-wife was “the one with the problem, not [him].” Cline
also sent the images to his ex-wife’s mother. The State charged
State v. Cline

Cline with the unlawful distribution of an intimate image, a class
A misdemeanor. In November 2015, Cline pleaded guilty to the
lesser charge of attempted unlawful distribution of an intimate
image, a class B misdemeanor. He was represented by counsel
when he entered his plea, and Cline, his attorney, and the judge
signed the plea affidavit. Cline indicated that he understood the
consequences of entering a guilty plea and that he knowingly
and voluntarily pleaded guilty. During his sentencing hearing,
Cline again admitted to attempting to unlawfully distribute an
intimate image.

¶3 After the State charged Cline with the unlawful
distribution of an intimate image in March 2015 and before his
sentencing hearing in February 2016, Cline committed and
pleaded guilty to two additional charges: criminal trespass and
stalking.1 These charges stemmed from acts perpetrated against
one of Cline’s former neighbors, and Cline had “gone so far as to
adopt her last name in an attempt to usurp her ex-husband’s
position in the home.”

¶4 The district court considered the following aggravating
factors before imposing sentence: Cline’s criminal history,
including violations he committed while on probation; Cline’s
history of ignoring court orders; a statement from Cline’s
stalking victim that she lived in “constant fear” and “keep*s+
mace by the door” for protection; the occurrence of the stalking
incident just three days after Cline had been released to pretrial
services; and evidence suggesting Cline had a substance abuse
problem. The court also considered mitigating factors, including
defense counsel’s recommendation of mental health treatment;
the fact that Cline’s criminal history involves misdemeanors, not
felonies; Cline’s ability to visit his children; and Cline’s

1. Cline appealed his sentences from the criminal trespass and
stalking charges. The cases were consolidated and are being
considered in a separate appeal. See State v. Cline, 2017 UT App
49.

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State v. Cline

statements that he had previously passed drug tests and had a
job waiting for him in the oil fields.

¶5 After considering both mitigating and aggravating
factors, the district court imposed a sentence of 180 days in jail
and 24 months of probation, with the possibility of early release
for completing a drug program. Later, because Cline was unable
to participate in that particular program, the court reduced
Cline’s jail time to 140 days.

¶6 Cline argues the district court abused its discretion
because it did not adequately consider “his character, attitude,
and rehabilitative needs” when it imposed his sentence. We
review a district court’s sentencing decision for abuse of
discretion. State v. Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d
1167.

¶7 In general, “a trial court’s sentencing decision will not be
overturned unless it exceeds statutory or constitutional limits,
the judge failed to consider all the legally relevant factors, or the
actions of the judge were so inherently unfair as to constitute
abuse of discretion.” State v. Killpack, 2008 UT 49, ¶ 59, 191 P.3d
17 (citation and internal quotation marks omitted). When
making sentencing decisions, courts weigh and consider the
following factors: public safety, punishment, deterrence,
incapacitation, restitution, and rehabilitation. See State v. Nuttall,
861 P.2d 454, 458 (Utah Ct. App. 1993); State v. Rhodes, 818 P.2d
1048, 1051 (Utah Ct. App. 1991). “Although courts must consider
all legally relevant factors in making a sentencing decision, not
all aggravating and mitigating factors are equally important, and
[o]ne factor in mitigation or aggravation may weigh more than
several factors on the opposite scale.” Killpack, 2008 UT 49, ¶ 59
(alteration in orginal) (citation and internal quotation marks
omitted). In addition, a sentencing court is empowered to place a
defendant on probation if it will “best serve the ends of justice
and is compatible with the public interest.” Rhodes, 818 P.2d at
1051. This is because “[t]he granting or withholding of probation
involves considering intangibles of character, personality and

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State v. Cline

attitude, of which the cold record gives little inkling.” State v.
Sibert, 310 P.2d 388, 393 (Utah 1957).

¶8 Cline argues the district court did not “adequately
consider his character, attitude, and rehabilitative needs.” It is
not apparent whether Cline argues the district court failed to
consider these factors or that it improperly weighed the
aggravating and mitigating factors. We address each potential
claim.

¶9 To the extent Cline argues the court did not consider these
factors, this is inaccurate. During the sentencing hearing, Cline’s
counsel discussed his client’s rehabilitative needs. Further, the
court had observed and knew of Cline’s poor attitude and lack of
respect for the law and the court. For example, Cline talked over
the sentencing judge several times during the sentencing
hearing; in an earlier hearing, Cline continued to look at the
audience despite the court’s admonition not to; and Cline was
once dismissed from pretrial services for being “uncooperative,
inappropriate, and aggressive.” Finally, the court had a
legitimate concern that Cline posed a threat to public safety and
the public interest and that he would once again violate
probation and defy the court’s orders.

¶10 If Cline’s argument is that the district court improperly
weighed the aggravating and mitigating factors, he has not
shown how the district court’s actions “were so inherently unfair
as to constitute an abuse of discretion.” See Killpack, 2008 UT 49,
¶ 59 (citation and internal quotation marks omitted). In essence,
his argument appears to be a disagreement with the court’s
balancing efforts. Although the court gave more weight to the
aggravating factors presented during the sentencing hearing, it
was not an abuse of discretion to do so because “[o]ne factor in
mitigation or aggravation may weigh more than several factors
on the opposite scale.” See id. ¶ 59 (alteration in original)
(citation and internal quotation marks omitted).

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State v. Cline

¶11 Thus, the court acted well within its discretion and “there
*was+ ample factual substance in the record to support” its
sentencing decision. See Rhodes, 818 P.2d at 1051. Because the
court adequately considered all the relevant factors, the sentence
imposed was not an abuse of discretion, and we affirm it.

¶12 Cline also seeks to withdraw his guilty plea for attempted
unlawful distribution of an intimate image. A defendant may
withdraw his guilty plea “only upon leave of the court and a
showing that it was not knowingly and voluntarily made.” Utah
Code Ann. § 77-13-6(2)(a) (LexisNexis 2012). The defendant must
move to withdraw the plea “before sentence is announced.” Id.
§ 77-13-6(2)(b). Further, “*a+ny challenge to a guilty plea not
made within the time specified in Subsection (2)(b) shall be
pursued under Title 78B, Chapter 9, Postconviction Remedies
Act, and Rule 65C, Utah Rules of Civil Procedure.” Id. § 77-13-
6(2)(c); see also Gailey v. State, 2016 UT 35, ¶ 20, 379 P.3d 1278
(“We therefore reaffirm our prior caselaw holding that after
sentencing is entered, a defendant may not file a motion to
withdraw a guilty plea or directly appeal the plea . . . .”). “[I]t is
well-established that if a defendant fails to file a timely motion to
withdraw his guilty plea, the appellate court lacks jurisdiction to
consider any claim except a challenge to the sentence.” State v.
Smith, 2011 UT App 336, ¶ 4, 263 P.3d 1219 (per curiam).

¶13 There is no evidence in the record that Cline moved or
attempted to move to withdraw his guilty plea before the
sentence was imposed. Cline’s only argument is that, contrary to
being fully informed of his rights and signing the plea form, his
plea was not made knowingly and voluntarily. Because Cline
did not timely move to withdraw his plea, and does not allege
that he was unaware of the time limit, we lack jurisdiction to
consider this request and do not reach the merits of his claim.

¶14 Affirmed.

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