State v. Sexton

2016 UT App 238
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
NATHAN S EXTON ,
Appellant.
Memorandum Decision
No. 20151069-CA
Filed December 8, 2016
Second District Court, Ogden Department
The Honorable Joseph Bean
No. 151902086
Samuel P. Newton, Attorney for Appellant
Christopher F. Allred and Thomas A. Pedersen,
Attorneys for Appellee
JUDGE S TEPHEN L. R OTH authored this Memorandum Decision, in
which JUDGES J. F REDERIC VOROS JR . and K ATE A. TOOMEY
concurred.
ROTH, Judge:
¶1 	Nathan Sexton appeals his sentences for possession of a
controlled substance and possession of drug paraphernalia, both
class B misdemeanors. Sexton contends that the district court
abused its discretion when it ordered that his sentences be
served consecutively to the prison sentence he was already
serving. We affirm.

State v. Sexton
20151069-CA 	2 	2016 UT App 238
¶2 	In May 2015, while on probation1 and in treatment for
drug addiction at the Northern Utah Community Correctional
Center (NUCCC), Sexton was caught with “spice,” a controlled
substance, 	in 	his 	room. 	Based 	on 	this 	incident, 	Sexton’s
probation was revoked, and he was apparently sent to prison.
Sexton was also charged with, and pled 	guilty to, class B
misdemeanor 	possession 	of 	a 	controlled 	substance 	inside 	a
correctional 	facility 	and 	possession 	of 	drug 	paraphernalia.
Sexton waived the waiting time for sentencing, and the court
sentenced him immediately.
1. There was some initial disagreement at the sentencing hearing
regarding whether Sexton was on probation at the time of this
incident or whether he was on parole. The prosecutor initially
represented that Sexton was on parole and raised the statutory
presumption 	that 	sentences 	be 	imposed 	consecutively 	if 	a
criminal offense is committed while the defendant is on parole.
See Utah Code Ann. § 76-3-401(3) (LexisNexis 2012) (providing
that if “the latter offense is committed while the defendant is . . .
on parole,” then “[t]he court shall order that sentences for [the]
offenses run consecutively”). But Sexton immediately objected
and stated that at the time of the incident he had not yet been to
prison. Instead, he said that he was “on probation to go to
NUCCC” and that he “hadn’t been to prison yet.” His statement
was corroborated at the hearing by an “unidentified speaker,”
who said that Sexton was indeed “on probation.” The court
appears to have accepted that Sexton was on probation rather
than on parole at the time of the offenses at issue in this case,
and 	it 	analyzed 	the 	basis 	for 	the 	consecutive 	sentences
accordingly 	and 	without 	reference 	to 	the 	presumption 	for
offenses committed while on parole. While it is unclear why
Sexton was in prison at the time of sentencing, for purposes of
our decision we accept that Sexton was on probation when the
offenses occurred, not parole.

State v. Sexton
20151069-CA 	3 	2016 UT App 238
¶3 	During sentencing, Sexton requested that the sentences
for the two counts of possession run concurrently—both with
each other and with the prison sentence he was then serving—
and that the court allow him to serve the misdemeanor sentences
at the prison. Sexton argued that concurrent sentencing was
appropriate because the original charges that led to both his
probation in NUCCC and his current prison term were from
December 2013. He stated that he had “been going through all
this for quite a while now” and had “already done almost four
months 	[in 	prison]” 	because 	of 	this 	incident 	and 	that 	he
“need[ed] to get out [of prison] and get a job and progress [in
his] life.”
¶4 	The State requested that the court run the sentences
consecutively, both to each other and to Sexton’s current prison
sentence. The prosecutor pointed out that, at the time of the
conduct underlying the charges, Sexton was in treatment at
NUCCC 	and 	emphasized 	that 	there 	was 	a 	“problem . . . in
NUCCC with drugs” and that it was “appropriate to send a
message that we’re going to run those [sentences] consecutive
when 	somebody 	possesses 	a 	controlled 	substance 	while 	in
NUCCC.” The court was also informed that at the time of the
possession 	charges, 	Sexton 	was 	in 	“his 	fourth 	attempt
at . . . trying to complete [treatment at] NUCCC,” that he had
“struggled . . . all four times,” and that inmates bringing drugs
into the facility was detrimental to the progress of the “other
people 	[in 	NUCCC] 	who 	are 	trying 	to 	be 	successful 	and
complete their probation.”
¶5 	The 	court 	sentenced 	Sexton 	to 	180 	days 	on 	each
possession charge and ordered that the sentences be served
concurrently 	with 	each 	other 	but 	consecutively 	to 	Sexton’s
existing prison sentence. The court allowed Sexton to serve the
additional time in prison rather than at the Weber County Jail
but declined to allow credit for the four months that Sexton had
served in prison since his probation violation, reasoning that it

State v. Sexton
20151069-CA 	4 	2016 UT App 238
was not appropriate to “give . . . credit for time that [Sexton had]
served in violation of some other sentencing order.”
¶6 	The court explained the basis of its sentencing decision to
Sexton, stating that “there’s some frustration . . . among [Adult
Probation and Parole] and a lot of the people working with you
that you’ve had a lot of opportunities given to you.” The court
stated that it understood that “addiction is tough” and “a very
difficult thing,” but added,
You[’ve] got to make some wise choices when
you’re out on the street. Most people when they
are standing where you’re standing, they really are
determined 	to 	stay 	clean, 	and 	I’m 	sure 	you’re
feeling the same. And it’s tough when people have
it all around you. You’ve got to figure out some
tools to be able to resist that and make better
choices.
I think everybody wants to see you be successful,
but you’re the one that’s got to make those choices
when the chips are [down], when it’s tough. I’ve
given you kind of a middle-of-the-road sentence
instead of going as harsh as the State wants. I
haven’t gone quite that harsh, but I haven’t been as
lenient either as [defense counsel] or you would
like me to be, but it is to send you a message that
we’ve got to try and clean it up. It’s got to start
somewhere. And I’m not saying it’s starting with
you, but you’re one of those that we’re going to get
relatively tough on if you’re taking [drugs] into
NUCCC.
¶7 	Sexton appeals the district court’s decision to impose his
misdemeanor sentences consecutively to the prison term that he
was already serving.

State v. Sexton
20151069-CA 	5 	2016 UT App 238
¶8 	A 	district 	court 	has 	statutory 	authority 	to 	impose
consecutive sentences. Utah Code Ann. § 76-3-401 (LexisNexis
2012). “When sentencing a defendant who is already serving a
prison sentence for a prior felony offense, the district court must
determine 	‘if 	the 	sentences 	before 	the 	court 	are 	to 	run
concurrently 	or 	consecutively 	with 	any 	other 	sentences 	the
defendant is already serving.’” State v. McDaniel, 2015 UT App
135, ¶ 5, 351 P.3d 849 (quoting Utah Code Ann. § 76-3-401(1)(b)).
In making this determination, the court “shall consider the
gravity and circumstances of the offenses, the number of victims,
and 	the 	history, 	character, 	and 	rehabilitative 	needs 	of 	the
defendant.” Utah Code Ann. § 76-3-401(2).
¶9 	Sexton 	contends 	that 	the 	district 	court 	abused 	its
discretion by ordering his sentences to be served consecutively
to his existing prison sentence. In particular, he claims that the
court failed to properly consider the statutory factors of the
gravity and circumstances of the offense, the lack of a victim,
and 	his 	rehabilitative 	needs. 	Regarding 	the 	gravity 	and
circumstances of the offense, Sexton contends that the offense
was “relatively minor” because possession of spice is classified
as a class A misdemeanor, not a felony like “other major drugs.”
And 	according 	to 	Sexton, 	“no 	one 	was 	victimized 	by 	the
offense.” In terms of his rehabilitative needs, he argues that
while 	acknowledging 	that 	“addiction 	is 	tough,” 	the 	court
nonetheless “failed to appreciate that most offenders will relapse
and will relapse on multiple occasions during their struggle with
addiction.” Citing scientific literature and research regarding the
physiological 	effects 	of 	drug 	addiction 	and 	the 	realities 	of
relapse during the course of treatment and recovery, Sexton
contends 	that 	the 	court 	“failed 	to 	treat 	[his] 	behavior
as . . . symptoms of his disease.” Instead, he alleges, the court
harshly sentenced him because it fundamentally misunderstood
the nature of addiction and mistakenly perceived that Sexton
could overcome his drug addiction merely by choosing to do so.

State v. Sexton
20151069-CA 	6 	2016 UT App 238
¶10 	A sentencing court has wide discretion in sentencing
defendants 	“because 	[a 	sentence] 	necessarily 	reflects 	the
personal judgment of the court.” State v. Woodland, 945 P.2d 665,
671 (Utah 1997) (citation and internal quotation marks omitted).
While 	failure 	to 	consider 	“all 	legally 	relevant 	[sentencing]
factors” is an abuse of discretion, State v. Helms, 2002 UT 12, ¶ 8,
40 P.3d 626 (citation and internal quotation marks omitted), a
sentencing court is not required to weigh all the factors equally,
State v. Ashcraft, 2014 UT App 253, ¶ 5, 338 P.3d 247 (citing State
v. Killpack, 2008 UT 49, ¶ 59, 191 P.3d 17). And we will not
disturb consecutive sentences simply because the court might
have 	“assessed 	the 	relevant 	factors 	differently” 	than 	the
defendant. State v. Epling, 2011 UT App 229, ¶ 22, 262 P.3d 440.
¶11 	To prevail on appeal, the defendant must “demonstrate
that the district court did not properly consider all the factors,”
McDaniel, 2015 UT App 135, ¶ 5. A defendant “cannot meet this
burden by merely pointing to . . . the existence of mitigating
circumstances.” State v. Bunker, 2015 UT App 255, ¶ 3, 361 P.3d
155. Rather, we will uphold the district court’s decision if, based
on the record, it is reasonable to assume that the court did
properly consider the factors. See Helms, 2002 UT 12, ¶ 11.
Ultimately, “[a]n appellant can show an abuse of discretion in
the district court’s weighing of the relevant factors only by
demonstrating that no reasonable person would take the view
taken by the sentencing court.” McDaniel, 2015 UT App 135, ¶ 10
(citation and internal quotation marks omitted).
¶12 	We are not persuaded that the sentencing court failed to
properly consider the relevant factors. Rather, we conclude that
Sexton’s argument “comes down to a disagreement with the
[sentencing] court’s weighing of the relevant sentencing factors,”
see Bunker, 2015 UT App 255, ¶ 5, and fails to demonstrate any
abuse of the court’s broad discretion in this area.
¶13 	To 	begin 	with, 	Sexton 	attempts 	to 	downplay 	the
seriousness of his offenses by characterizing them as minor and

State v. Sexton
20151069-CA 	7 	2016 UT App 238
victimless. However, the court took a broader view of the
circumstances. 	In 	particular, 	the 	district 	court 	expressed 	its
concern that Sexton had been given “a lot of opportunities” with
“a lot of people” to succeed with his recovery—the violation
marked Sexton’s fourth unsuccessful attempt at completing the
addiction treatment program at NUCCC. And the court was
especially concerned that Sexton had brought the drugs into
NUCCC, 	where 	the 	presence 	and 	availability 	of 	drugs
detrimentally 	affects 	other 	residents’ 	ability 	to 	successfully
complete the program. Indeed, the court explained that, because
Sexton brought the drugs into NUCCC, it was going to be
“relatively 	tough 	on” him 	to 	reflect 	the 	seriousness of 	the
offense, which given the context went beyond simple possession.
And the court noted that it was imposing a “middle-of-the-road”
sentence as a consequence for his behavior, recognizing that,
although “addiction is tough,” Sexton would need to “make
better choices” and “try and clean it up” if he was ever going to
succeed in recovery. Even though Sexton has a different view
from 	the 	court 	of 	the 	interrelationship 	between 	what 	he
characterizes as no more than a relapse and the severity of its
consequences, the fact that the sentencing court viewed the
circumstances 	differently 	than 	Sexton 	is 	not 	a 	basis 	for
overturning his sentence. See Epling, 2011 UT App 229, ¶ 22.
¶14 	Regarding the rehabilitative needs factor, Sexton points to
scientific 	literature 	and 	research 	concerning 	the 	realities 	of
addiction, 	particularly 	the 	frequency—even 	inevitability—of
relapse during the course of treatment and recovery. Sexton
contends that the court abused its discretion by not weighing his
rehabilitative needs more heavily in the calculus of its sentencing
decision. However, none of the literature presented on appeal
was presented to the court below. See State v. Do, 2015 UT App
147, ¶¶ 9–10, 353 P.3d 172 (suggesting that the reviewing court
was not required to take notice of the articles presented by the
appellant to establish “the likelihood of relapse among drug
addicts” where the appellant “did not present these articles to

State v. Sexton
20151069-CA 	8 	2016 UT App 238
the district court at sentencing”); State v. Vazquez, 2014 UT App
159, ¶ 5, 330 P.3d 760 (per curiam) (explaining that the appellant
had not preserved his argument that the district court did not
“fully 	consider 	‘the 	realities of 	drug 	addiction’” 	where 	the
appellant did not argue to the district court that “his relapse was
not willful, essentially because he is addicted to drugs and
relapses are common among addicts, even those who have
successfully completed treatment”).
¶15 	Moreover, even assuming the literature is properly before
us, Sexton has not shown how the isolated quotes that he
provides 	about 	the 	difficulties 	inherent 	in 	recovery 	from
addiction somehow establish that, in light of the realities of the
disease, it is per se improper under our sentencing guidelines for
a court to impose certain consequences, such as consecutive
terms 	of 	imprisonment. 	While 	we 	acknowledge 	the
uncontroversial 	notion 	that 	recovery 	from 	drug 	addiction
presents a serious challenge and is often punctuated by periods
of relapse, that alone does not suggest, much less require, that
serious consequences for possession of drugs—especially in a
treatment facility—are inappropriate. Our legislature has not
only criminalized possession of substances such as “spice,” see
e.g., Utah Code Ann. § 58-37-2(1)(f) (LexisNexis Supp. 2016)
(defining 	“controlled 	substance” 	for 	purposes 	of 	the 	Utah
Controlled Substances Act), it has also authorized courts to
sentence a defendant more harshly if the person is convicted of
possession “while inside the exterior boundaries of property
occupied by any correctional facility,” such as NUCCC, see
id. § 58-37-8(2)(e); see also id. § 64-13-1(3) (LexisNexis Supp. 2016)
(defining 	“correctional 	facility” 	as 	“any 	facility 	operated 	to
house offenders, either in a secure or nonsecure setting”).
¶16 	Our 	district 	courts 	are 	also 	authorized 	to 	sentence
consecutively so long as they consider the requisite factors, and
there 	is 	no 	drug 	addiction 	exception, 	though 	certainly
rehabilitative need related to drug addiction is a factor that can

State v. Sexton
20151069-CA 	9 	2016 UT App 238
be taken into account like many others. See id. § 76-3-401(2)
(LexisNexis 2012). We have consistently held that a sentencing
court, 	while 	it 	must 	consider 	the 	bundle 	of 	circumstances
outlined in the consecutive sentencing factors as a whole, has
considerable discretion as to the weight given to each. See e.g.,
State v. Killpack, 2008 UT 49, ¶¶ 58–59, 191 P.3d 17 (noting that
district 	courts 	are 	given 	“wide 	latitude 	and 	discretion 	in
sentencing” in recognition of the fact that “they are best situated
to weigh the many intangibles of character, personality, and
attitude,” and that “[a]lthough courts must consider all legally
relevant factors in making a sentencing decision, not all . . .
factors 	are 	equally 	important” 	in 	every 	case 	(citations 	and
internal quotation marks omitted)); State v. Youngblood, 2013 UT
App 	242, 	¶ 	4, 	314 	P.3d 	1031 	(per 	curiam) 	(affirming 	the
imposition of consecutive sentences where the district court
“found that consecutive prison sentences were merited” based
“upon its review of the totality of the circumstances”). See
generally Utah Code Ann. § 76-3-401(3) (providing the list of
several factors that a court must consider in deciding whether to
impose concurrent or consecutive sentences).
¶17 	And here the court was not required to weigh Sexton’s
rehabilitative needs more heavily than the other circumstances
surrounding his offenses. See State v. Bunker, 2015 UT App 255,
¶ 5, 361 P.3d 155 (rejecting the appellant’s contention that the
sentencing court had abused its discretion where the court had
considered all the legally relevant factors and the appellant’s
“argument [came] down to a disagreement with the [sentencing]
court’s 	weighing 	of 	the 	relevant 	sentencing 	factors”). 	As
discussed 	above, 	the 	court 	clearly 	considered 	Sexton’s
rehabilitative 	needs 	in 	making 	its 	decision. 	The 	court
acknowledged that it understood the difficulties of addiction
recovery, that it wanted Sexton to be able to “figure out some
tools to . . . make better choices,” and that “everybody wants to
see [Sexton] be successful” in his recovery. Those concerns
notwithstanding, it was not an abuse of discretion for the court

State v. Sexton
20151069-CA 	10 	2016 UT App 238
to weigh other circumstances more heavily—namely, Sexton’s
repeated failure to make progress toward his recovery despite
being given “a lot of opportunities” with “a lot of people
working with [him]” to do so and the fact that he had been
caught with the drugs inside of the treatment facility where they
could have been accessible not only to Sexton but to others
attempting to complete recovery. See State v. Ashcraft, 2014 UT
App 253, ¶ 5, 338 P.3d 247 (“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.” (alteration in original)
(citation and internal quotation marks omitted)).
¶18 	Thus, contrary to Sexton’s arguments on appeal, the court
fully considered the gravity and circumstances surrounding
Sexton’s offenses, the number of victims, and his rehabilitative
needs. 	And 	given 	the 	court’s 	reasoning 	based 	on 	the
circumstances before it, Sexton has not persuaded us “that no
reasonable 	[person] 	would 	take 	the 	view 	adopted 	by 	the
[sentencing] court.” See Bunker, 2015 UT App 255, ¶ 5 (first
alteration in original) (citation and internal quotation marks
omitted).
¶19 	Finally, 	to 	the 	extent 	Sexton 	challenges 	the 	court’s
decision to deny credit for time served in prison since the date of
the offenses involved in this case, we cannot fault the court’s
reasoning that it was inappropriate to give Sexton credit for time
he was already serving as a result of violating probation in
another case. That decision was well within the court’s broad
discretion.
¶20 	Accordingly, we affirm the district court’s decision to
require 	Sexton 	to 	serve 	the 	sentences 	for 	his 	misdemeanor
convictions consecutively to the prison sentence he was already
serving.