State v. Atkinson

2017 UT App 83

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DENNIS ROLLAND ATKINSON,
Appellant.

Opinion
No. 20150640-CA
Filed May 18, 2017

Fifth District Court, Cedar City Department
The Honorable Keith C. Barnes
No. 141500765

Matthew D. Carling, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES KATE A. TOOMEY and JILL M. POHLMAN concurred.

CHRISTIANSEN, Judge:

¶1 Defendant Dennis Rolland Atkinson appeals from the
district court’s sentencing decision. He contends that the district
court improperly weighed mitigating and aggravating
sentencing factors because the court failed to apply the
Americans with Disabilities Act (the ADA) and the
Rehabilitation Act (the Rehab Act) when sentencing Defendant
to prison. See generally 42 U.S.C. §§ 12101–12213 (Supp. II 2008);
29 U.S.C. §§ 791–794g (Supp. II 2014). Because Defendant did not
specifically argue to the district court that the ADA and the
Rehab Act apply to criminal sentencing hearings, we conclude
that this issue was not preserved for appeal. Ultimately, we hold
that the court’s weighing of the sentencing factors did not exceed
its discretion and, accordingly, we affirm.
State v. Atkinson

¶2 Defendant was charged with committing nineteen crimes
between September 2014 and May 2015. He pled guilty to five of
the nineteen charges: failure to register as a sex offender, identity
fraud, forgery, and two counts of driving while intoxicated, all
third degree felonies. After evaluating Defendant, including his
fifteen-year criminal record, frequent parole and probation
violations, his response to community supervision, and his
behavioral issues while incarcerated, Adult Probation & Parole
(AP&P) recommended that Defendant be sentenced to five
prison terms of zero to five years. The district court agreed that
prison was appropriate; it sentenced Defendant to four
concurrent prison terms of zero to five year prison terms and
one consecutive zero-to-five year prison term.

¶3 Defendant contends that the court improperly weighed
mitigating and aggravating circumstances in sentencing him to
prison. We review for an abuse of discretion. See State v. Epling,
2011 UT App 229, ¶ 8, 262 P.3d 440 (“Because trial courts are
afforded wide latitude in sentencing, a court’s sentencing
decision is reviewed for an abuse of discretion.” (citations and
internal quotation marks omitted)).1

¶4 Defendant first argues that “[t]he proximate cause of the
crimes was attributable to Defendant’s physical disabilities, and
application of [the ADA] is non-discretionary on the court as a
public entity providing a service.” More specifically, he asserts
that the district court “was well informed through submitted
evidence that [he] was disabled” and that the court therefore had
“an affirmative obligation to accommodate [Defendant] in
sentencing.” (Citation and internal quotation marks omitted.) In

1. However, where a defendant’s challenge relates to the proper
application of the adjective law surrounding sentencing rather
than to the court’s substantive findings, we review for
correctness. See State v. Wanosik, 2001 UT App 241, ¶ 8, 31 P.3d
615, aff’d 2003 UT 46, 79 P.3d 937.

20150640-CA 2 2017 UT App 83
State v. Atkinson

Defendant’s view, the court was required to grant him an
accommodation per the ADA such as a shorter sentence, a jail
term rather than a prison term, or probation.

¶5 We do not reach the merits of this argument, because
Defendant did not preserve it for appeal by asking the district
court to consider sentencing through the lens of the ADA or the
Rehab Act. To preserve an argument for appellate review, the
appellant must first present the argument to the district court in
such a way that the court has an opportunity to rule on it. State v.
Kozlov, 2012 UT App 114, ¶ 32, 276 P.3d 1207. In the district
court, Defendant presented evidence suggesting that he was
disabled due to physical injuries and substance abuse but did
not assert that, under the ADA or the Rehab Act, these alleged
disabilities entitled him to a modification of the statutory
sentences for his multitudinous convictions. In fact, neither the
ADA nor the Rehab Act was mentioned in the record of
proceedings before the district court. Thus, we conclude that this
argument was not preserved. See State v. Kennedy, 2015 UT App
152, ¶ 21, 354 P.3d 775 (noting that, to preserve an issue, the
appellant “must present the legal basis” for the claim to the
district court, “not merely the underlying facts or a tangentially
related claim”).

¶6 We will address an unpreserved claim if the defendant
establishes that the failure to object was due to ineffective
assistance of counsel, plain error on the part of the trial court, or
exceptional circumstances. Kozlov, 2012 UT App 114, ¶ 33. Here,
however, Defendant does not raise any of these exceptions to the
bar imposed by the preservation requirement. Consequently, we
decline to further consider Defendant’s ADA/Rehab Act
argument.

¶7 Defendant presents another challenge to the district
court’s sentencing decision: he argues that the district court
should have given greater weight to his substance abuse issues,
disabilities, and family circumstances and given less weight to

20150640-CA 3 2017 UT App 83
State v. Atkinson

the short period in which he committed these crimes and the
threat he presented to the public. Defendant claims that the court
improperly weighed these mitigating and aggravating factors
and should have imposed a non-prison sentence.

¶8 “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. Jaramillo, 2016 UT App 70, ¶ 32, 372
P.3d 34 (citation and internal quotation marks omitted). When
evidence of mitigating factors is properly presented to the
sentencing court, we will assume that the court appropriately
considered that evidence in its sentencing decision. See State v.
Moa, 2012 UT 28, ¶ 41 n.65, 282 P.3d 985. “An appellate court
will find an abuse of discretion only if it can be said that no
reasonable person could adopt the view of the trial court.” State
v. Miera, 2015 UT App 46, ¶ 5, 345 P.3d 761 (citation and internal
quotation marks omitted).

¶9 Here, Defendant presented evidence to the district court
at the sentencing hearing relating to his substance abuse,
disabilities, and family circumstances. Defendant argued that
“all of his offenses were linked to him trying to self-medicate.”
(Brackets and internal quotation marks omitted.) For example,
Defendant asserted that he had been “trying to self-medicate
with alcohol for the pain he was in” due to injuries suffered in a
car accident and had also been “self-medicating with illegal
substances.” (Brackets and internal quotation marks omitted.)
He also noted that he had stolen his brother’s identity to obtain
prescription pain medication. And with regard to his family
circumstances, Defendant claimed that his fiancée had been
diagnosed with cancer and that he wanted to “be there for [his
fiancée] in her time of need.”

¶10 Because this evidence of mitigating factors was presented
to the sentencing court, we assume that the court appropriately

20150640-CA 4 2017 UT App 83
State v. Atkinson

considered it. See Moa, 2012 UT 28, ¶ 41 n.65; see also State v.
Nichols, 2016 UT App 52, ¶ 10, 370 P.3d 575 (per curiam). And
given that Defendant committed these five crimes while on
probation, that he had a lengthy criminal history, and that he
had violated his probation and parole conditions on numerous
occasions, the district court’s consideration and weighing of
Defendant’s mitigation evidence does not appear improper. See,
e.g., State v. McClendon, 611 P.2d 728, 729 (Utah 1980) (“A
sentence in a criminal case should be appropriate for the
defendant in light of his background and the crime committed
and also serve the interests of society which underlie the
criminal justice system.”); State v. Valdovinos, 2003 UT App 432,
82 P.3d 1167 (observing that probation will be granted at the
discretion of the trial court rather than as a matter of right).
Certainly, we cannot agree that “no reasonable person could
adopt the view of the trial court” in imposing prison sentences;
therefore, the court’s decision was not an abuse of discretion. See
Miera, 2015 UT App 46, ¶ 5 (citation and internal quotation
marks omitted).

¶11 The fact that the district court was not as lenient in
sentencing as Defendant would have preferred does not compel
an inference that the court failed to consider all of the legally
relevant factors or that the court’s actions in ordering prison
time were inherently unfair. Cf. State v. Cline, 2017 UT App 50,
¶ 7 (describing the circumstances under which a trial court’s
sentencing decision may be disturbed). Because Defendant’s
sentence does not exceed statutory or constitutional limits, and
because he has not shown that the court failed to consider a
legally relevant factor or that the court’s actions amounted to an
abuse of discretion, we decline to disturb the district court’s
sentencing decision.

¶12 Affirmed.

20150640-CA 5 2017 UT App 83