State v. Potter

2015 UT App 257

THE UTAH COURT OF APPEALS

STATE OF UTAH,
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. ORME authored this Memorandum Decision,
in which JUDGES MICHELE M. CHRISTIANSEN and KATE 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

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.”

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State v. Potter

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.

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State v. Potter

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.

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State v. Potter

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

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State v. Potter

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.

20140765-CA 6 2015 UT App 257