State v. Asta

2018 UT App 220
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
VICTORIA A STA,
Appellant.
Opinion
No. 20160942-CA
Filed November 29, 2018
First District Court, Logan Department
The Honorable Brian G. Cannell
The Honorable Thomas L. Willmore
No. 151100933
Ashley E. Bown, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye,
Attorneys for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which J UDGES
DAVID N. M ORTENSEN and M ICHELE M. C HRISTIANSEN F ORSTER
concurred.
HARRIS, Judge:
¶1 	After Victoria Asta pled no contest to charges of burglary
and assault against a police officer, the district court sentenced
her to prison. Asta now appeals that sentence, asserting that the
sentencing judge should have recused himself, and that the court
abused 	its 	discretion 	in 	imposing 	the 	sentence. 	Asta 	also
complains that the court failed to specifically address several of
her objections to items contained within the presentence report
(PSR). We affirm Asta’s sentence, as well as the judge’s decision
not to recuse himself, but remand for the limited purpose of
addressing Asta’s objections to items contained within the PSR.

State v. Asta
20160942-CA 	2 	2018 UT App 220
BACKGROUND
¶2 	On a November evening in Cache County, Utah, Asta and
her boyfriend (Boyfriend) were out for a drive, with Asta behind
the wheel. Boyfriend was wearing a “green tactical shirt” and a
shoulder holster and had two handguns with him. At some
point, Boyfriend exited the vehicle on foot, donned a ski mask,
and broke into a house occupied by an elderly couple. When the
husband confronted Boyfriend, Boyfriend pointed his gun at
him and ordered him into the basement where his wife was
watching television. As the owners were calling 911, Boyfriend
helped himself to jewelry and other items from the house, and
then fled the scene.
¶3 	After completing the burglary, Boyfriend got back in the
car that Asta was driving. As they drove away from the scene,
they passed a sheriff’s deputy who was responding to the
owners’ 911 call. The deputy activated his overhead lights and
attempted to stop Asta’s vehicle, but Boyfriend told her to “just
keep driving, don’t stop,” and Asta kept driving. As Asta drove
past the deputy, she and Boyfriend tried to hide their faces. The
deputy turned to pursue them, and a lengthy and dangerous car
chase ensued, one that eventually involved speeds of up to 90
mph in and out of traffic on public roads, as well as detours
across open fields.
¶4 	The 	deputy 	called 	for 	assistance, 	and 	another
officer 	(Officer) 	eventually 	initiated 	a 	Pursuit 	Intervention
Technique (PIT) maneuver designed to force the fleeing car
to 	turn 	sideways 	and 	stop. 	The 	maneuver 	worked, 	and
caused 	Asta’s 	vehicle 	to 	spin 	and 	come 	to 	a 	stop 	facing
the 	direction 	it 	had 	been 	traveling. 	Officer 	then 	pulled
his vehicle in front of Asta’s in an attempt to box it in, but
Asta 	again 	refused 	to 	stop, 	this 	time 	driving 	her 	vehicle
forward and causing it to collide with Officer’s, then scraping
past 	Officer’s vehicle 	and 	eventually 	escaping. 	Officer 	later
described the encounter as one in which Asta “rammed” his
vehicle.

State v. Asta
20160942-CA 	3 	2018 UT App 220
¶5 	A second high-speed car chase then ensued. Officers
attempted 	another 	PIT 	maneuver, 	this 	time 	unsuccessfully.
Eventually another officer used his patrol vehicle to push Asta’s
vehicle off of the roadway, where Asta’s vehicle finally came to a
stop only because it struck a tree.
¶6 	Officers then arrested Asta and Boyfriend. Inside the
vehicle, officers found two handguns and a ski mask, among
other items. Initially, neither Asta nor Boyfriend would give
officers their physical address, and officers at first concluded
that they were homeless. But officers eventually discovered
where they lived and searched their residence, finding stolen
jewelry and drug paraphernalia.
¶7 	In relation to her activities on the night in question, the
State charged Asta with aggravated robbery and aggravated
burglary, 	both 	first-degree 	felonies; 	assault 	against 	a 	police
officer, a second-degree felony; and four additional counts. The
State also charged Asta with seventeen other burglary- and theft-
related crimes alleged to have occurred before the November
incident. These other charges were later dismissed pursuant to
an 	agreement 	Asta 	made 	with 	the 	State 	to 	“meet 	with
investigators and provide truthful information related to the
State’s prosecution of [Boyfriend].” Eventually, with regard to
the 	charges 	stemming 	from 	her 	activities 	on 	the 	night 	in
question, Asta agreed to plead “no contest” to two second-
degree felonies: burglary, amended to a second-degree felony,
and assault against a police officer. In exchange, the State agreed
to drop all remaining charges.
¶8 	After Asta entered her plea, Adult Probation and Parole
(AP&P) prepared the PSR, and therein recommended that Asta
be sentenced to prison. AP&P acknowledged that the applicable
sentencing guideline matrix pointed to probation, rather than
prison, 	as the 	presumptive 	sentence 	for 	someone 	in 	Asta’s
position. However, AP&P nevertheless recommended prison
due to certain “aggravating factors,” including Asta’s perceived
“criminal 	mentality,” 	“lack 	of 	remorse,” 	and 	“refus[al] 	to

State v. Asta
20160942-CA 	4 	2018 UT App 220
cooperate with law enforcement,” as well as the fact that the
underlying crime included “ramm[ing] an occupied police car.”
¶9 	The PSR included a statement from Asta, in which she
maintained that she did not know that Boyfriend intended to
commit burglary when he exited the vehicle on the evening in
question. Indeed, Asta stated that she and Boyfriend were “just
driving 	around 	and 	exploring 	random 	dirt 	roads 	and 	just
enjoying a little quiet time together,” and that Boyfriend got out
of the car because he said he “had to go to the bathroom.” While
he was doing so, Asta stated that she “told him [she] was going
to drive ahead for a bit and see if [she] could find a gas station”
where she could purchase snacks. She claimed Boyfriend was
“acting strangely” after she picked him back up, and that she
fled from police at Boyfriend’s urging.
¶10 	The 	day 	before 	the 	sentencing 	hearing, 	Asta 	filed 	a
lengthy 	written 	objection 	to 	the 	PSR, 	arguing 	that 	AP&P’s
recommendation was unwise and “entirely subjective.” Asta
specifically took issue with AP&P’s conclusion that she had
failed to show remorse or to take responsibility for her crimes,
pointing to her lengthy statement, included in the PSR, in which
she apologized and expressed regret.
¶11 	At the sentencing hearing, Asta’s counsel addressed, at
some 	length, 	Asta’s 	objections 	to 	the 	report, 	and 	made
impassioned 	argument 	that 	Asta 	should 	be 	sentenced 	to
probation rather than prison. In addition to argument from
counsel, Asta herself provided a statement to the court, as did
Asta’s mother. On the other side of the ledger, the court also
heard from one of the victims of the burglary, and from Officer,
who described for the court in person how Asta “rammed” his
vehicle 	while 	he 	was 	inside 	it. 	The 	court 	also 	thoroughly
questioned an AP&P supervisor about AP&P’s recommendation
for a prison sentence. The State also argued, among other things,
that Asta’s claims about what happened that night were false,
and that she had to have known what Boyfriend intended to do.
In 	the 	course 	of 	making 	this 	argument, 	the 	prosecutor

State v. Asta
20160942-CA 	5 	2018 UT App 220
mentioned that she did not “believe [the police] found any
snacks in the car that she claimed she was going after.”
¶12 	At the conclusion of the sentencing hearing, the court
sentenced Asta to prison on each count, with the sentences to
run concurrently. In imposing the sentence, the court stated that
it considered Asta’s crimes “heinous,” and stated its belief that,
at least “as it relates to [her] relationship with Boyfriend and the
events” 	in 	question, 	Asta 	had 	been 	acting 	in 	a 	“morally
bankrupt” manner. The court also stated that it did not credit
Asta’s explanation that she did not know that Boyfriend was
going to commit burglary when he exited the car that night, and
stated that it was especially concerned with the danger she had
imposed on the members of the community by leading officers
on two high-speed car chases. The court also expressed its
concern that the crime included the “intentional act of ramming
[Officer’s] vehicle as described here today.”
¶13 	Shortly after sentencing, Asta’s counsel learned that the
sentencing judge had himself been the victim of a home burglary
in 2014, the year before the events in question. Asta filed a
motion to disqualify, arguing that the burglary biased the judge
and that the judge should have recused himself. The motion was
referred to the presiding judge, who denied it.
ISSUES AND STANDARDS OF REVIEW
¶14 	Asta appeals, and raises three issues for our review. First,
Asta asserts that the sentencing judge was obligated to recuse
himself because he had been the victim of a home burglary in the
year 	before 	Asta’s 	crimes, 	and 	that 	the 	reviewing 	judge
erroneously denied her motion to disqualify the sentencing
judge. “Determining whether a trial judge committed error by
failing to recuse himself or herself under the Utah Code of
Judicial Conduct is a question of law,” which we ordinarily
review for correctness. State v. Van Huizen, 2017 UT App 30, ¶ 11,
392 P.3d 933 (quotation simplified), cert. granted, 400 P.3d 1044
(Utah 2017). However, if the trial judge “complie[s] exactly with

State v. Asta
20160942-CA 	6 	2018 UT App 220
rule 29” of the Utah Rules of Criminal Procedure in handling the
motion for disqualification, then the “burden shift[s] to the
petitioners” to make an additional showing of either “actual bias
or abuse of discretion.” State v. Alonzo, 973 P.2d 975, 979 (Utah
1998) (quotation simplified). Additionally, at least in cases in
which rule 29 was invoked and followed, see Van Huizen, 2017
UT App 30, ¶¶ 55–63, “any error of the trial judge in failing to
recuse” 	must 	be 	disregarded 	absent 	a 	showing 	of 	“actual
prejudice,” see State v. Gardner, 789 P.2d 273, 278 (Utah 1989); see
also Utah R. Crim. P. 30(b) (“Any error, defect, irregularity or
variance which does not affect the substantial rights of a party
shall be disregarded”).
¶15 	Second, Asta asserts that the sentencing judge did not
finally and thoroughly deal with all of her objections to the PSR.
“Whether the trial court properly complied with a legal duty to
resolve on the record the accuracy of contested information in
sentencing reports is a question of law that we review for
correctness.” State v. Samulski, 2016 UT App 226, ¶ 9, 387 P.3d
595 (quotation simplified).
¶16 	Third, Asta asserts that the sentencing judge abused its
discretion by considering irrelevant or unreliable information
and by sentencing her to prison rather than probation. “Because
trial courts are afforded wide latitude in sentencing, a court’s
sentencing decision is reviewed for an abuse of discretion. A
court exceeds its discretion if it acts with inherent unfairness in
imposing a sentence, imposes a clearly excessive sentence, or
fails to consider all legally relevant factors.” State v. Neilson, 2017
UT App 7, ¶ 15, 391 P.3d 398 (quotation simplified).1
1. After Asta’s brief was filed, the State filed a motion to strike
certain exhibits attached to Asta’s brief on the ground that those
exhibits were not part of the record. We granted that motion.
Asta then sought several extensions of time within which to file
a reply brief, but never did file one. Instead, after the State’s brief
(continued…)

State v. Asta
20160942-CA 	7 	2018 UT App 220
ANALYSIS
I
¶17 	First, Asta argues that the sentencing judge was obligated
to recuse himself because he had been the victim of a residential
burglary in 2014, the year prior to the events at issue here. The
sentencing judge declined to grant the motion, and instead
referred it to the presiding judge, who eventually denied it. We
affirm that decision.
¶18 	“A 	judge 	shall 	disqualify 	himself 	or 	herself 	in 	any
proceeding in which the judge's impartiality might reasonably
(…continued)
was filed, Asta filed a motion, grounded in rules 23 and 23B of
the Utah Rules of Appellate Procedure, seeking leave to “amend
her [opening] Brief to include a claim for ineffective assistance of
counsel” (IAC), and for an order remanding the case to the trial
court for additional fact-finding on a potential IAC claim. In her
opening brief, Asta spent less than a page arguing, in the
alternative, 	that 	her 	trial 	counsel 	had 	been 	ineffective; 	we
perceive her post-brief motion seeking leave to state an IAC
claim as an acknowledgment that any IAC claim contained in
the opening brief was inadequately briefed. Asta’s motion for
leave to bring that claim for the first time now is essentially a
request to re-start the briefing in this case, and we decline Asta’s
invitation to do so. It is a well-established rule that any claims
not raised in the opening brief are waived. See Allen v. Friel, 2008
UT 56, ¶ 8, 194 P.3d 903 (stating that “issues raised by an
appellant in the reply brief that were not presented in the
opening brief are considered waived and will not be considered
by the appellate court” (quotation simplified)). No additional
briefing may be had “except with leave of the appellate court,”
see Utah R. App. P. 	24(c), 	and 	we 	decline to exercise our
discretion to allow amendment here. Accordingly, we deny
Asta’s motion for leave to amend and for remand.

State v. Asta
20160942-CA 	8 	2018 UT App 220
be questioned.” Utah Code Jud. Conduct R. 2.11. “[W]hen a
judge knows of circumstances that give rise to the reasonable
appearance of bias, the judge is under an affirmative duty either
to recuse or to disclose the facts that contribute to an appearance
of partiality and allow the parties to decide whether to waive
disqualification.” Van Huizen, 2017 UT App 30, ¶ 18. However,
while parties are entitled to an impartial judge, “they are not
entitled to a judge whose mind is a clean slate.” Lunt v. Lance,
2008 UT App 192, ¶ 12, 186 P.3d 978. “The question of a judge's
impartiality is determined by viewing the question through the
eyes of a reasonable person, knowing all the circumstances.”
Fullmer v. Fullmer, 2015 UT App 60, ¶ 12, 347 P.3d 14 (quotation
simplified).
¶19 	But even in cases where a judge fails to strictly follow the
Code 	of 	Judicial 	Conduct—and 	we 	stop 	well 	short 	of
determining that any such failure existed in this case—a reversal
is not the automatic result. Indeed, our supreme court has ruled
that a judge’s failure to strictly follow the Code of Judicial
Conduct 	“does 	not 	necessarily 	mean 	that 	the 	defendant 	is
entitled to a new trial,” because “[t]he parameters of defendants’
constitutional rights to a fair trial are defined by [rule 29 of the
Utah Rules of Criminal Procedure] and relevant case law, not the
Code of Judicial Conduct.” See State v. Neeley, 748 P.2d 1091, 1094
(Utah 1988). Rule 29 of the Utah Rules of Criminal Procedure
sets forth the process that a judge in a criminal case must follow
when a litigant seeks the judge’s disqualification.2 A judge who
is the target of a motion to disqualify has two options: the judge
may grant the motion without further hearing, or the judge may
certify the motion to a different judge for decision. See Utah R.
Crim. P. 29(b)(2)(A) (stating that “[t]he judge against whom the
motion and affidavit are directed shall, without further hearing,
enter an order granting the motion or certifying the motion and
2. Rule 63 of the Utah Rules of Civil Procedure sets forth a nearly
identical process that is to be followed in civil cases. See Utah R.
Civ. P. 63(c).

State v. Asta
20160942-CA 	9 	2018 UT App 220
affidavit to a reviewing judge”). The target judge may not hold a
hearing on the motion, and may not herself deny the motion. Id.
Other than either granting the motion or certifying the motion to
another judge, the target judge “shall take no further action in
the case until the motion is decided.” Id.
¶20 	If these procedures are followed, then a judge’s decision
not to recuse “does not constitute reversible error” “absent a
showing of actual bias or an abuse of discretion.” State v. Alonzo,
932 P.2d 606, 610–11 (Utah Ct. App. 1997) (quotation simplified),
aff'd, 973 P.2d 975 (Utah 1998). In this case, Asta makes no
argument that either the sentencing or reviewing judge in this
case failed to follow the procedures set forth in rule 29. Because
those procedures were followed here, Asta bears the heightened
burden 	of 	demonstrating 	either 	actual 	bias 	or 	abuse 	of
discretion. See Alonzo, 973 P.2d at 979. Asta makes no effort to
demonstrate that the sentencing judge was actually biased, but
does argue that the reviewing judge abused his discretion in
denying the motion.
¶21 	Asta’s assertion in this regard is that the reviewing judge
failed to perceive the significance of the fact that the sentencing
judge had experienced a home burglary, and contends that this
experience 	must 	necessarily 	have 	“created 	a 	presumptive
question” regarding the judge’s impartiality. We, however, agree
with the reviewing judge, who determined that Asta “[made] no
effort to bridge the logical gap between a superficially similar
crime committed against [the sentencing judge] in the past and
his impartiality in this case.” Asta offers no specifics regarding
the burglary suffered by the sentencing judge and, without
more, we are unwilling to hold that a reviewing judge abuses his
discretion by failing to disqualify a judge who has previously
been the victim of a burglary from any burglary case. In certain
situations (for instance, if the judge had been a victim of a crime
committed by the same person who later stood accused of a
similar crime in the judge’s court), we might expect a reviewing
judge to grant such a motion. But it cannot be that, in all cases
involving all crimes, a judge must disqualify herself if she has

State v. Asta
20160942-CA 	10 	2018 UT App 220
previously been the victim of any similar crime. The rule Asta
advances is far too broad, and we decline to adopt it. We discern
no abuse of discretion in the reviewing judge’s decision.
¶22 	Next, Asta asserts that she sustained actual prejudice as a
result 	of 	the 	sentencing 	judge’s 	participation 	in 	the 	case,
and asks for reversal on that basis. See Alonzo, 973 P.2d at 979
(stating that “a trial judge’s failure to recuse based on the
appearance 	of 	bias 	may 	be 	grounds 	for 	reversal 	if 	actual
prejudice 	is shown” 	(quotation simplified)). We find Asta’s
argument unpersuasive.
¶23 	First, Asta asserts that the sentencing judge’s failure to
disclose the fact that he was the recent victim of a home burglary
“deprived Asta of the chance to utilize [r]ule 29A of the Utah
Rules of Criminal Procedure.” That rule, however, only allows
for a change of judge as a matter of right if all parties to a case
agree. See Utah R. Crim. P. 29A(a) (stating that, in a criminal
case, 	“all 	parties 	joined 	in 	the 	action 	may, 	by 	unanimous
agreement . . . , change the judge assigned to the action”). Asta
offers no indication that the State would ever have agreed to a
change of judge, even if Asta had learned of the judge’s situation
earlier. Accordingly, Asta would not have been able to avail
herself of rule 29A in any event.
¶24 	Second, Asta asserts that the judge’s failure to disclose
“deprived Asta of the opportunity to appropriately prepare for
her sentencing hearing and present information to the court
concerning an appropriate sentence.” But the sentencing hearing
in this case was quite thorough, and Asta gives no indication of
the sort of information she might have presented to the court
had she learned earlier of the judge’s situation.
¶25 	For all of these reasons, Asta has failed to persuade us
that 	reversal 	is 	appropriate 	on 	the 	disqualification 	issue.
Accordingly, 	we 	find 	no 	reversible 	error 	in 	the 	sentencing
judge’s 	decision 	not 	to 	recuse 	himself, 	and 	we 	affirm 	the
reviewing judge’s denial of the motion to disqualify.

State v. Asta
20160942-CA 	11 	2018 UT App 220
II
¶26 	Next, Asta challenges both the merits of her sentence,
as well as the manner in which the district court addressed
the 	objections she 	raised 	at 	sentencing 	to 	specific 	items 	in
the PSR. We agree with Asta that the district court failed to
make 	specific 	findings 	regarding 	most 	of 	her 	objections 	to
items 	contained 	in 	the 	PSR, 	and 	we 	remand 	this 	case 	to
the 	district 	court 	for 	the 	limited 	purpose 	of 	affording 	the
district court another opportunity to do so. However, despite
the district court’s failure to make specific findings on all of
the 	objections 	raised, 	we 	see 	no 	abuse 	of 	discretion 	in
the 	ultimate 	sentence 	imposed, 	and 	therefore 	affirm 	Asta’s
sentence.
A
¶27 	Under 	Utah 	law, 	when 	a 	defendant 	raises 	specific
objections to items contained within a PSR, a district court must
examine those objections and “shall make a determination of
relevance and accuracy on the record.” Utah Code Ann. § 77-18-
1(6)(a) (LexisNexis Supp. 2018).3 In particular, this court has
stated that
once a defendant alleges factual inaccuracies in a
[PSR], 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.
3. Utah Code sections 77-18-1, 76-5-102, and 76-5-102.4, see supra
¶ 39, have been amended since Asta was sentenced in 2016.
Because the pertinent text of the statutes has not changed, we
cite to the current version of the statute for convenience.

State v. Asta
20160942-CA 	12 	2018 UT App 220
State v. Monroe, 2015 UT App 48, ¶ 6, 345 P.3d 755. This is
important even if the alleged inaccuracies in the report do not
turn out to be relevant to the sentence imposed, because “the
[PSR] will follow [the defendant] through the justice system,” id.
¶ 10, and things that appear irrelevant at sentencing might
become relevant years later at a parole hearing.
¶28 	In this case, there is no doubt that Asta made objections to
the PSR. Indeed, Asta filed a ten-page written document the
day 	before 	the 	sentencing 	hearing 	in 	which 	she 	set 	forth
certain objections to the contents of the PSR, and then at the
sentencing hearing Asta emphasized many of those objections.
Those objections generally fell into two categories. First, Asta
pointed 	out 	a 	few 	minor 	factual 	inaccuracies 	in 	the 	PSR,
including her age and her precise plea in both this case as well as
the other dismissed cases. Second, and more substantively, Asta
took issue with the PSR’s ultimate recommendation that Asta be
sent 	to 	prison, 	as 	well 	as 	the 	specific 	basis 	for 	that
recommendation. Asta asserted that AP&P’s contention that
certain 	aggravating 	circumstances 	were 	present 	was 	simply
wrong, and raised specific challenges to AP&P’s conclusion that
Asta had “no remorse,” “blames co-defendant,” “refused to
cooperate with law enforcement,” and had “rammed” Officer’s
vehicle.
¶29 	There 	is 	also 	no 	doubt 	that 	these 	objections 	were
discussed at great length during the sentencing hearing, and that
the district court heard extensive argument from both sides on
all of these issues, and considered each of these objections in the
context of imposing sentence. Both Officer as well as an AP&P
supervisor personally addressed the court, gave a statement, and
answered 	questions; 	Officer 	spoke 	directly 	to 	the 	issue 	of
whether Asta “rammed” his vehicle, and the AP&P supervisor
provided AP&P’s perspective on the aggravating circumstances.
In addition, Asta’s attorney made an impassioned argument on
all of the issues raised, and the court heard directly from both
Asta as well as her mother.

State v. Asta
20160942-CA 	13 	2018 UT App 220
¶30 	However, at no point did the court pause to make specific
rulings or findings on most of the objections raised. Implicit in
the court’s remarks, as it imposed sentence upon Asta, were
rulings on some of the objections. For instance, the court found
that Asta had in fact committed an “intentional act of ramming
[Officer’s] vehicle” on the night in question, and stated that it
did not believe Asta’s claim that she was unaware that Boyfriend
was going to commit burglary when he exited the vehicle. But
the court did not make a finding on Asta’s age or the form of her
plea, and made no finding on whether Asta had shown remorse
or whether she had refused to cooperate with law enforcement.
We recognize that, to some extent, some of these issues are
argumentative rather than strictly factual. However, in previous
cases, Utah appellate courts have required district courts to
make specific rulings and findings on issues such as whether a
victim was “particularly vulnerable” and whether her injuries
were “unusually extensive,” see State v. Jaeger, 1999 UT 1, ¶ 42,
973 P.2d 404, and whether AP&P’s assessment of a defendant’s
“attitude and lack of remorse” was accurate, see State v. Irey, 2017
UT App 178, ¶ 4, 405 P.3d 876 (per curiam).
¶31 	When 	objections 	like 	these 	are 	raised, 	the 	district
court 	must 	do 	three 	things: 	consider 	the 	objections, 	make
findings 	on 	the 	record 	regarding 	their 	accuracy, 	and
determine on the record the relevance of that information as
it relates to sentencing. See Monroe, 2015 UT App 48, ¶ 6; see also
Utah 	Code 	Ann. 	§ 	77-18-1(6)(a). 	In 	this 	case, 	although 	the
district court did consider Asta’s objections and weigh those
objections in the course of imposing sentence, at least with
respect to most of the objections the district court did not ever
take the second of the three prescribed steps: it did not make any
actual 	findings 	about 	the 	accuracy 	of 	the 	objections.
Accordingly, we must remand the case so that the district court
can make those specific findings, because even if those findings
did not make a difference to the court’s sentencing decision, they
may become relevant to Asta at some point in the future, during
(for instance) proceedings before the Board of Pardons and
Parole.

State v. Asta
20160942-CA 	14 	2018 UT App 220
¶32 	It does not follow from the district court’s failure to make
findings on each specific objection, however, that the sentence
imposed 	is 	subject 	to 	reversal. 	In 	several 	instances, 	Utah
appellate courts have affirmed a defendant’s sentence while
remanding the case for the limited purpose of having the district
court make findings on specific objections to the PSR. See, e.g.,
Jaeger, 1999 UT 1, ¶ 45; Irey, 2017 UT App 178, ¶ 6; Monroe, 2015
UT App 48, ¶¶ 8–9.
¶33 	In some of those cases, even though the defendant’s
objections “were not adequately resolved on the record,” it was
nevertheless clear that “the district court properly considered the
objections before it sentenced [the defendant].” See Irey, 2017 UT
App 178, ¶ 6. In this case, as noted above, Asta’s objections to the
PSR were discussed at great length at the sentencing hearing.
After considering Asta’s objections, as well as input from the
State and from AP&P, the court sentenced Asta to prison, and
cited three reasons for departing from the sentencing guidelines:
that it believed Asta knew what Boyfriend was doing that
evening; the risk Asta’s high-speed flight posed to the public;
and Asta’s intentional act of ramming Officer’s vehicle. As
noted, 	the 	court’s 	discussion 	of 	these 	factors 	at 	sentencing
contained 	implicit 	findings 	regarding 	these 	issues 	and, 	as
discussed in the next section, the court’s reliance on these factors
in imposing sentence was entirely appropriate.
¶34 	While the court, in imposing sentence, did not specifically
address many of Asta’s other objections to the PSR, there is no
indication in the record that the court placed any particular
reliance on the State’s or AP&P’s position in response to those
other objections, or that the court found the subject matter of
those other objections particularly relevant to its sentencing
inquiry. When “[t]here is no indication in the record that the
district court relied on the allegedly inaccurate information at
sentencing,” there is no basis for reversal and resentencing, even
though the court may not have made specific findings on all of
the issues raised. Id.; see also State v. Moa, 2012 UT 28, ¶ 35, 282
P.3d 985 (stating that “an appellate court cannot presume there

State v. Asta
20160942-CA 	15 	2018 UT App 220
is evidence of reliance from a silent record or mere introduction
of potentially irrelevant information”); Monroe, 2015 UT App 48,
¶¶ 8–9 & n.3 (stating that “[w]e are not convinced that the
district court’s failure to resolve Defendant’s objections requires
reversal 	and 	resentencing,” 	in 	part 	because 	many 	of 	those
objections “just did not matter”). Accordingly, in this case, we
may affirm the district court’s sentencing decision, irrespective
of its failure to fully dispose of all of Asta’s objections to the PSR,
so long as the court’s sentencing decision was otherwise proper.
B
¶35 	And we find no abuse of discretion in the district court’s
decision to sentence Asta to prison. Asta makes two arguments
to the contrary, neither of which we find persuasive. First, Asta
argues that the district court, in imposing sentence, relied upon
information that was neither reliable nor relevant. Second, Asta
asserts generally that the district court failed to adequately
weigh or consider other information that Asta provided, and
that the court therefore abused its discretion by sentencing her to
prison rather than to probation.
1
¶36 	The 	Utah 	Constitution 	“requires 	that 	a 	sentencing
judge 	act 	on 	reasonably 	reliable 	and 	relevant 	information
in exercising discretion in fixing a sentence.” State v. Wanosik,
2001 UT App 241, ¶ 34, 31 P.3d 615 (quotation simplified)
(referencing 	Article 	1, 	Section 	7 	of 	the 	Utah 	Constitution),
aff'd, 2003 UT 46, 79 P.3d 937; see also id. (stating that it is
“a criminal defendant’s right to be sentenced based on relevant
and 	reliable 	information 	regarding 	his 	crime, 	his
background, 	and 	the 	interests 	of 	society”). 	However, 	a
defendant challenging his sentence on the ground that the court
improperly considered certain information bears the burden
of demonstrating both that the court relied upon the information
in 	question, 	and 	that 	the 	information 	“was 	unreliable 	or
irrelevant.” 	Moa, 	2012 UT 	28, 	¶¶ 35–36. 	Showing 	evidence

State v. Asta
20160942-CA 	16 	2018 UT App 220
of reliance, “such as a judge’s affirmative representation of
reliance, 	is 	necessary 	because 	neither 	our 	case 	law 	nor
our statutes require a district court to make specific findings of
fact 	in 	a 	sentencing 	order.” 	Id. 	(quotation 	simplified). 	We
will 	not 	presume, 	absent 	some 	evidence, 	that 	a 	court
actually relied on any particular piece of information. Id. And
even 	“[w]hen 	there 	is 	evidence 	in 	the 	record 	showing 	a
sentencing judge’s reliance on specific information, we will not
consider it improper for a judge to rely on such information if
the evidence in question had indicia of reliability and was
relevant in sentencing.” Id. ¶ 36 (quotation simplified).
¶37 	Asta asserts that the district court relied on the following
pieces 	of 	information 	that 	she 	contends 	are 	unreliable 	or
irrelevant: that Asta “rammed” Officer’s vehicle; that Asta knew
what Boyfriend intended to do when he exited the vehicle on the
evening 	in 	question; 	that 	Asta 	refused 	to 	provide 	law
enforcement with her home address; and that no snacks were
found in the vehicle.
¶38 	There 	is 	no 	indication 	in 	the 	record, 	however, 	that
the 	district 	court 	relied 	upon 	the 	last 	two 	of 	those 	pieces
of information; at no point did the district court indicate that
it 	found 	relevant 	the 	issue 	of 	whether 	Asta 	did 	or 	did
not provide law enforcement with her home address, or whether
any snacks were found inside the vehicle at the conclusion of
the car chase. As noted, we will not presume reliance from
the “mere introduction of potentially irrelevant information.”
Moa, 2012 UT 28, ¶ 35. Accordingly, Asta has failed to meet
her burden with regard to these two pieces of information.
¶39 	The 	court 	did, 	however, 	clearly 	rely 	upon 	the 	other
two 	pieces 	of 	information 	to 	which 	Asta 	points: 	that
Asta 	“rammed” 	Officer’s 	vehicle, 	and 	that 	Asta 	had 	to
have 	some 	knowledge 	of 	Boyfriend’s 	burglary 	plans
that 	evening. 	We 	conclude 	that 	both 	of 	these 	pieces 	of
information 	were 	reasonably 	reliable 	and 	unquestionably
relevant.

State v. Asta
20160942-CA 	17 	2018 UT App 220
¶40 	With regard to the “ramming,” the court heard from
Officer and specifically questioned him regarding the incident.
Officer provided a personal, firsthand account of the car chase
and the PIT maneuver, and expressed to the court his belief that
Asta 	had 	indeed 	“rammed” 	his 	vehicle. 	Moreover, 	it 	is
undisputed that Asta pled “no contest” to second-degree felony
assault against a police officer, a violation requiring “an attempt,
with unlawful force or violence, to do bodily injury to another,”
with a “means or force likely to produce death or serious bodily
injury.” See Utah Code Ann. § 76-5-102 (LexisNexis 2017); id.
§ 76-5-102.4(4). Thus, the very nature of the crime to which Asta
pled “no contest” requires the inference that Asta intended to
forcefully assault a police officer. In our view, whether the
contact that occurred between Asta’s vehicle and Officer’s is best
characterized 	as 	“ramming,” 	“colliding,” 	or 	“scraping” 	is
ultimately 	inconsequential; 	the 	district 	court 	had 	before 	it
credible 	information 	that 	Asta 	intended 	to 	assault 	a 	police
officer, 	and 	that 	she 	used 	a 	car 	as her 	weapon 	of 	choice.
Accordingly, 	the 	district 	court’s 	conclusion 	that 	Asta
intentionally 	“rammed” 	Officer’s 	vehicle 	was 	based 	on
reasonably reliable and relevant information.
¶41 	Finally, 	we 	find 	nothing 	improper 	about 	the 	court’s
conclusion that Asta must have known something of Boyfriend’s
nefarious plans on the evening in question. Again, Asta pled “no
contest” to burglary, which requires intent to commit the crime.
Moreover, the State had also dismissed nine other burglary
charges against Asta in exchange for information regarding the
State’s prosecution of Boyfriend, and the sentencing judge in this
case had signed the orders dismissing those charges. See State v.
Valdez, 2017 UT App 185, ¶ 13, 405 P.3d 952 (stating that “we
disagree 	with 	[the 	defendant’s] 	specific 	contention 	that
dismissed 	or 	reduced 	charges 	are 	irrelevant 	or 	unreliable
information regarding the gravity and circumstances of [the
defendant’s] 	crime 	or 	background”). 	Furthermore, 	it 	was
undisputed that Boyfriend was wearing a shoulder holster and
had two handguns in his possession. The district court properly
relied on this information, which came from reliable sources and

State v. Asta
20160942-CA 	18 	2018 UT App 220
was 	clearly 	relevant, 	in 	reaching 	its 	conclusion 	that 	Asta’s
version of events was not credible.
¶42 	Accordingly, because Asta has failed to show that the
district 	court 	actually 	relied 	on 	any 	information 	that 	was
unreliable 	or 	irrelevant 	in 	reaching 	its 	sentencing 	decision,
Asta’s first argument fails.
2
¶43 	Next, Asta argues that the district court failed to consider
other factors and pieces of information, including her lack of
prior criminal history, and that the court ultimately abused its
discretion in sentencing her to prison rather than suspending her
prison sentence and affording her the privilege of probation.
¶44 	As 	noted 	above, 	sentencing 	decisions 	are 	generally
reviewed for abuse of discretion. See State v. Neilson, 2017 UT
App 7, ¶ 15, 391 P.3d 398. But “a defendant is not entitled to
probation,” see State v. Valdovinos, 2003 UT App 432, ¶ 23, 82 P.3d
1167 (quotation simplified), and therefore, in particular, “the
decision whether to grant probation is within the complete
discretion of the trial court,” State v. Hernandez, 2016 UT App
251, ¶ 9, 391 P.3d 349 (quotation simplified). Indeed, “[t]he
granting 	or 	withholding 	of 	probation 	involves 	considering
intangibles of character, personality and attitude, of which the
cold record gives little inkling” and “must of necessity rest
within 	the 	discretion 	of 	the 	judge 	who 	hears 	the 	case.”
Valdovinos, 	2003 	UT 	App 	432, 	¶ 	23 	(quotation 	simplified).
Accordingly, the decision to grant or deny probation is reviewed
for abuse of discretion, which is present only where the court
“fails to consider all legally relevant factors or if the sentence
imposed is clearly excessive.” Id. ¶ 14 (quotation simplified).
¶45 	In this case, Asta asserts that the district court failed to
consider 	several 	legally 	relevant 	factors, 	including 	most
significantly her lack of prior criminal history, but also her
asserted remorse, as well as her claims that she would be unable

State v. Asta
20160942-CA 	19 	2018 UT App 220
to pay restitution if imprisoned, and that her culpability in these
crimes should be viewed as far lower than Boyfriend’s. But Asta
overlooks 	the 	fact 	that 	the 	district 	court 	had 	all 	of 	that
information in front of it, and entertained lengthy argument on
all of those topics and more. Although the court did not make
specific mention of all of these items in its sentencing decision,
there is certainly no indication, in the record, that the district
court refused to consider any of the information Asta presented.
Under these circumstances, we will presume that the district
court did in fact consider the information. See State v. Helms, 2002
UT 12, ¶ 11, 40 P.3d 626 (stating that “we will not assume that
the trial court’s silence, by itself, presupposes that the court did
not consider the proper factors as required by law” unless “an
ambiguity 	of 	facts 	makes 	the 	assumption 	unreasonable,” 	a
statute requires written findings, or “a prior case states that
findings on an issue must be made”); Hernandez, 2016 UT App
251, ¶ 10 (stating that where “[t]he court was privy to all of [the
presentencing] information, and there is no indication that it
failed to consider any relevant factor or that it considered any
improper factor in making its decision,” we will presume that
the court considered the proper information).
¶46 	Finally, 	Asta 	asserts 	that 	the 	district 	court 	gave
insufficient 	weight 	to the 	sentencing 	guidelines matrix 	that
pointed, in Asta’s case, to probation instead of prison. But
“sentencing matrices are advisory and do not create any right or
expectation on behalf of the offender.” State v. Monzon, 2016 UT
App 1, ¶ 12, 365 P.3d 1234 (quotation simplified). We cannot say
that a court abused its discretion simply because it opted not to
follow 	the 	sentencing 	matrix. 	As 	noted 	above, 	there 	were
aggravating 	circumstances—most 	notably 	that 	Asta 	had 	led
police 	on 	two 	separate 	high-speed 	car 	chases 	through 	the
community, and had intentionally run into a police car in the
process—that the district court found persuasive, and it was not
an abuse of discretion in this case for the court to decline to
follow the sentencing matrix. Indeed, “the fact that the district
court assessed the relevant factors differently than a defendant
would 	have 	liked 	does 	not 	indicate 	that 	it 	exceeded 	its

State v. Asta
20160942-CA 	20 	2018 UT App 220
discretion.” See State v. Wood, 2018 UT App 98, ¶ 12, 427 P.3d 452
(quotation simplified).
CONCLUSION
¶47 	We find no reversible error in the sentencing judge’s
actions regarding recusal, or in the reviewing judge’s denial of
the motion to disqualify. We perceive no abuse of discretion in
the district court’s decision to sentence Asta to prison, and
accordingly affirm Asta’s sentence. However, the district court
failed to completely resolve all of Asta’s objections to items
contained within the PSR, and we therefore remand for the
limited purpose of entering express findings on those objections.