State v. Munguia

2011 UT 5
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20090215
Plaintiff and Appellee,
v.
F I L E D
Fred Munguia,
Defendant and Appellant. 	January 14, 2011
---
Third District, West Jordan
The Honorable Mark S. Kouris
No. 071401728
Attorneys: Mark L. Shurtleff, Att’y Gen., Ryan D. Tenney, Asst. Att’y Gen., Salt Lake
City, for plaintiff
Elizabeth Hunt, Salt Lake City, for defendant
---
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	Fred Munguia challenges two consecutive sentences of three years to life
and two consecutive sentences of one to fifteen years that he received after pleading
guilty to two counts of attempted aggravated sexual abuse and two counts of sexual
abuse of his daughter. Mr. Munguia’s challenges were not preserved at sentencing and
are raised on appeal under the exceptional circumstances, plain error, and ineffective
assistance of counsel doctrines. Mr. Munguia contends that the district court judge
should have recused himself prior to sentencing. Mr. Munguia also contends that he
should be resentenced by a court guided by the relevant statutes, which he argues were
not presented to the district court at sentencing. We reject Mr. Munguia’s contentions
and affirm his sentence. We hold that the district court judge was not required to recuse
himself and that Mr. Munguia’s sentence complies with Utah law.

BACKGROUND
¶2 	Fred Munguia was charged with three counts of aggravated sexual abuse
of a child and one count of sodomy upon a child for offenses he allegedly committed
against his daughter between December 2000 and July 2007. Mr. Munguia later pleaded
guilty to two counts of attempted aggravated sexual abuse of a child and two counts of
sexual abuse of a child before Third District Court Judge Michele Christiansen. The
victim and Mr. Munguia described the duration of the abuse underlying these
convictions differently. The victim said the abuse started when she was seven or eight
years old and lasted until she was thirteen. Mr. Munguia claimed it happened when she
was fourteen over a three-to-four-month period (although the victim was thirteen at the
time, she went to police in July 2007, about a week after the last time either she or Mr.
Munguia says the abuse occurred).
¶3 	Pursuant to statute and to aid the court in sentencing Mr. Munguia, Adult
Probation and Parole (“AP&P”) prepared a presentence report (“PSR”). The PSR
contained a separate psychosexual evaluation, which, contrary to AP&P’s ultimate
conclusions in the PSR, did not recommend consecutive sentencing. The evaluation
gave credit to Mr. Munguia for admitting to the offense and for his motivation to
participate in therapy. But it also acknowledged that Mr. Munguia had “a significant
deviant interest in child molestation behaviors which he is not willing/able to
acknowledge at this time.” It described Mr. Munguia as “very emotionally needy,” and
stated that he
is not taking any responsibility or accountability for his
actions. Instead, he is utilizing a great deal of rationalization
and justification to explain away his responsibility. In fact,
he appears to believe that the incidents occurred as he was
trying to teach the victim about sexual matters, that at least
some of [her] allegations were untrue, and that the incidents
occurred because his life was stressful.1
Mr. Munguia’s own statement of the offense, as contained in the PSR, was inconsistent,
and he evaded the issue when asked to describe what actually occurred. At first, he
indicated that his daughter had offered to help him masturbate, although he later stated
that “[i]t started when I was masturbating. I asked her if she wanted to help and she
did. I thought it was okay and that it would be a good learning experience for her. She
is my daughter.” He also seemed unwilling to acknowledge the full range of criminal
sexual behavior his daughter alleged: “I fondled her, she helped me masturbate . . . she
1 (Emphases added.)
No. 20090215 	2

performed oral sex . . . but I didn’t rape her. I never had intercourse with her. They said
I might have just barely penetrated her with my finger maybe.” The evaluator
ultimately recommended Mr. Munguia as a candidate for “continued community
correctional supervision (i.e., probation),” but acknowledged that “the ultimate legal
decisions and consequences that the patient faces are respectfully reserved for the Court
and/or Adult Probation and Parole.”
¶4 	Ultimately, AP&P did not adopt the psychosexual evaluator’s probation
recommendation, and instead recommended consecutive prison sentences to the court.
AP&P reasoned as follows:
[AP&P] agrees with the psychosexual evaluation, and feels
many current inconclusive areas regarding the defendant’s
sexual deviancy issues, need to be addressed through a long-
term treatment intervention. Incarceration is a vital part of
this process, to teach the defendant this type of behavior
demands retribution be paid to the community, for behavior
which is inexcusable. It would seem Mr. Munguia does not
recognize the extent of grooming, special position of trust, or
divisive means he used, to manipulate the innocence of his
daughter for the multiple years he did. Considering the
numerous aggravating factors in this matter, it seems
anything less than a prison recommendation would be a
significant disservice to the community, and its safety.2
The PSR made no mention of the statutes or the factors under the statutes that would
control whether or not Mr. Munguia would have been eligible for probation or
concurrent, rather than consecutive, sentences.
¶5 	Judge Christiansen, the judge who accepted Mr. Munguia’s guilty pleas,
did not sentence Mr. Munguia. Instead, the sentencing judge was Judge Kouris, also of
the Third District Court. Mr. Munguia’s attorney acknowledged that she had read the
PSR with Mr. Munguia and that there were no factual changes to be made. Mr.
Munguia’s attorney requested a one-year jail sentence followed by sex-offender
treatment, reasoning that Mr. Munguia had a stable work history (although he was
unemployed at the time) and that he had been attending sex-offender treatment once a
week for a year.
¶6 	The prosecutor recommended consecutive sentencing. In support of this
recommendation, the prosecutor described the challenges the victim was then facing
2 (Emphasis added.)
3 	No. 20090215

and the challenges she would continue to face, including losing a father for the rest of
her life and not having someone to walk her down the aisle. The prosecutor noted that
the victim had completed therapy for these issues, that she continued to blame herself,
and that she would struggle for some time. The prosecutor pointed to statements by Mr.
Munguia in the PSR that indicated that he was still trying to minimize what happened
and cast blame on the victim—including the statements that, as her father, he felt this
could be a “good learning experience for her,” and that the abuse had occurred over a
three-to-four-month period instead of over the years-long period the victim claimed.
She noted that the victim had stated that the abuse actually began when she was seven
or eight, beginning with fondling, but escalating to fellatio, digital penetration, and
rubbing his penis on her vagina. The prosecutor described a technique Mr. Munguia
used to groom his daughter, telling his daughter that doctors had told him
masturbation was medically necessary, and that he needed assistance. She concluded,
“[T]he State believes that this is a crime where prison is not even questionable. It would
be a great injustice to the victim and to society if prison was not imposed on this
Defendant.” To support her recommendation of consecutive sentencing, the prosecutor
looked at “several things”:
We looked at the egregious conduct with the victim. There is
only one victim, but it went on for a significant amount of
time. It escalated in seriousness from touching up to rubbing
his penis on her vagina. There [were] numerous violations.
And he did spare her from having to testify, but we’re
concerned with justice for the victim and justice for our
community. And I think given his minimization—and [that]
he is still not willing to acknowledge or take the complete
blame for this is apparent through the statements he’s made
in the presentence report and the psychosexual evaluation.3
¶7 	Mr. Munguia’s attorney responded by quoting statements made by Mr.
Munguia in the PSR that she said indicated that Mr. Munguia had accepted
responsibility: “I believe that the reason for my involvement was being lonely. And I
feel awful about what happened. I also feel terrible about the crime. Yes, it was wrong.
Yes, I feel extreme sympathy for my daughter.” Mr. Munguia then apologized to the
court, and after prompting by his attorney, to his daughter, who was not present.
¶8 	The court then spoke to Mr. Munguia:
3 (Emphases added.)
No. 20090215 	4

Court: 	It sounds like she may have brought a little bit
of this onto herself, don’t you think, when she
walked into the bathroom that day?
Defendant: 	I don’t know, Your Honor.
Court: 	Well, I know. Actually, she didn’t have
anything to do with this. She’s a little kid.
Defendant: 	I know.
Court: 	Sounds to me like we still don’t know whose
fault this is, do we?
Defendant: 	It’s my fault, Your Honor.
Court: 	Oh, it is your fault?
Defendant: 	Yes, sir.
Court: 	You still think that this was a good thing for
her? You think it is a good thing—good
experience for her to masturbate you and
perform oral sex on you?
Defendant: 	No, sir.
Court: 	Is that still a good thing for her?
Defendant: 	No, sir.
Court: 	What we have here is an innocent child who
you ruined. Do you understand that?
Defendant: 	Yes, sir, I do.
Court: 	I don’t think you do. Do you understand that
the odds of this child having a stable marriage
are almost zero? Do you understand that?
Defendant: 	Yes, sir.
Court: 	For your own selfish filthy needs is that what
this is about?
Defendant: 	Yes.
Court: 	How long did this take place? I know you told
the presentence report writer a few months.
How long did it really take place?
Defendant: 	That was it, Your Honor.
Court: 	A few months?
Defendant: 	Yes.
. . . .
Court: 	That is what you are going to stick with today
then? It took place a couple months?
Defendant: 	Yes, three or four months.
Court: 	There are very, very few cases ever that are
worse than what you have done. Ever. In my
5 	No. 20090215

opinion this is up there with a homicide case.
You have destroyed this little girl and you are
her father. To groom her and make her think
all of this stuff is okay because it’s her dad and
she is doing it because she trusts you.
I can honestly tell you there is almost never a
[situation] where I want to put a person in
prison and more times than not I do
everything I can not to. And this is one of
those few cases where I wish there was more I
could do to you.
On each one of the first degree felonies I’m
going to sentence you to three to life in the
Utah State Penitentiary that will run
consecutive with each other. On the second
degree felonies they will as well run—1 to 15
and they will run consecutively to each other,
as well. That should come out to be a 8 to 30
year prison sentence.
Plus, when we’re done here today I’m going to
sit down and write a personal letter to the
Board of Pardons to say that if you step out of
prison one day short of 30 years it’s an injustice
to this community. If you are out one day
before your—what is that? Thirty years. 83rd
birthday, sir, I guarantee this entire community
is still going to be at risk.
¶9 	Mr. Munguia now appeals his consecutive sentences arguing that Judge
Kouris’s comments at sentencing indicate a judicial bias that violated his due process
rights. Mr. Munguia also argues that his sentencing ran afoul of the Utah statute
governing probation for sex offenders. We have jurisdiction pursuant to section 78A-3-
102(i) of the Utah Code.
STANDARDS OF REVIEW
¶10 	Because these issues were not preserved below, Mr. Munguia argues that
we should reach the issues under one of three doctrines: exceptional circumstances,
plain error, or ineffective assistance of counsel.
No. 20090215 	6

¶11 	The exceptional circumstances doctrine allows this court to reach an
unpreserved issue in cases involving “rare procedural anomalies.”4 “We . . . appl[y] the
exception sparingly, reserving it for the most unusual circumstances where our failure
to consider an issue that was not properly preserved for appeal would . . . result[] in
manifest injustice.”5
¶12 	The plain error standard of review is also intended to avoid manifest
injustice.6
To demonstrate plain error, a defendant must establish that
[1] an error exists; [2] the error should have been obvious to
the trial court; and [3] the error is harmful, i.e., absent the
error, there is a reasonable likelihood of a more favorable
outcome for the appellant, or phrased differently, our
confidence in the verdict is undermined.7
¶13 	Finally, “[t]o prove ineffective assistance of counsel, [a] defendant must
show: (1) that counsel’s performance was objectively deficient, and (2) a reasonable
probability exists that but for the deficient conduct defendant would have obtained a
more favorable outcome at trial.”8 The “prejudice analysis is the same under both a
plain error and ineffective assistance of counsel framework.” 9
ANALYSIS
¶14 	We address each of the issues Mr. Munguia raises on appeal in turn. First,
we hold that Judge Kouris was not required to recuse himself. Second, we hold that
Judge Kouris’s sentencing decision was in compliance with Utah law and affirm Mr.
Munguia’s sentences.
4 State v. Nelson-Waggoner, 2004 UT 29, ¶ 23, 94 P.3d 186 (internal quotation
marks omitted).
5 Id.
6 State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346.
7 Id. (internal quotation marks omitted).
8 State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
9 State v. Ott, 2010 UT 1, ¶ 42 n.4, 247 P.3d 344, petition for cert. filed, 79 U.S.L.W.
3254 (U.S. Oct. 12, 2010) (No. 10-490).
7 	No. 20090215

I. UNDER ANY STANDARD OF REVIEW, JUDGE KOURIS WAS NOT REQUIRED TO
RECUSE HIMSELF BECAUSE NOTHING IN THE RECORD SUGGESTS THAT HE
WAS NOT IMPARTIAL
¶15 	Because there is nothing in the record to suggest that Judge Kouris was
not impartial, Judge Kouris was not required to recuse himself and Mr. Munguia’s due
process rights were not violated. Mr. Munguia begins by citing the state and federal
constitutions 10 as sources for a criminal defendant’s right to an impartial judge. He
ultimately reasons that Judge Kouris’s remarks at sentencing indicated a feeling of ill
will or hostility toward Mr. Munguia that would lead a reasonable person to question
his impartiality. Indeed, a criminal defendant has a constitutional right to an impartial
judge under the Due Process Clause of the Fourteenth Amendment.11 And the presence
of a judge who is not impartial constitutes a structural defect in the trial mechanism that
violates the United States Constitution and requires reversal. 12
¶16 	But Mr. Munguia does not further develop what kind of judicial conduct
might constitute a violation of his due process rights and instead discusses when
recusal is appropriate under the Utah Code of Judicial Conduct and Rules of
Professional Conduct. Such an approach incorrectly equates judicial conduct that would
violate a criminal defendant’s constitutional rights with judicial conduct that might lead
to sanctions for a judge. In drafting our own rules of judicial conduct, we imposed
higher standards on judges than the Constitution requires to protect the rights of
defendants.13 So even if Mr. Munguia were to show that Judge Kouris engaged in
10 Mr. Munguia alleges that Judge Kouris’s remarks at sentencing violated his
rights under the due process clauses of both the Utah and United States Constitutions.
But Mr. Munguia “does not argue that the Utah Constitution affords him greater
protection than the United States Constitution, nor does he provide any analysis of how
the two constitutional provisions differ, so we address the issue only under the United
States Constitution.” See State v. Harker, 2010 UT 56, ¶ 10 n.8, 240 P.3d 780. Further, we
do not address Mr. Munguia’s argument under the Utah Constitution because Mr.
Munguia provides only one “bald citation” to the Utah Constitution without further
developing that authority, and thus his argument is inadequately briefed. See State v.
Timmerman, 2009 UT 58, ¶ 25 n.5, 218 P.3d 590.
11 Tumey v. Ohio, 273 U.S. 510, 535 (1927) (“No matter what the evidence was
against him, he had the right to have an impartial judge.”).
12 Arizona v. Fulminante, 499 U.S. 279, 308–10 & n.8 (1991).
13 In Caperton v. A.T. Massey Coal Co., the United States Supreme Court stated
(continued...)
No. 20090215 	8

conduct worthy of sanctions under the Code of Judicial Conduct, he would still need to
show that the conduct violated his constitutional rights in such a way that merits
reversal of his sentence.
¶17 	But even under our higher standards of judicial conduct, Mr. Munguia’s
charges of bias fail. Utah’s Code of Judicial Conduct addresses when a judge ought to
recuse himself due to personal bias. Canon 3 of this code provides a nonexhaustive list
of instances where a judge’s impartiality “might reasonably be questioned,” requiring
recusal of the judge.14 It indicates that one of these instances is where “the judge has a
strong personal bias or prejudice concerning a party or a party’s lawyer, a strong
personal bias involving an issue in a case, or a personal knowledge of disputed
evidentiary facts concerning the proceeding.”15 In In re Inquiry Concerning a Judge, we
defined the concepts of personal bias and prejudice as contained in Canon 3E.(1)(a):
Bias and prejudice are only improper when they are
personal. A feeling of ill will or, conversely, favoritism
toward one of the parties to a suit are what constitute
disqualifying bias or prejudice. For example, where a judge
stated that he “could not stand” a certain law enforcement
officer and would not accept cases initiated by him, it was
found that his personal feelings and intense dislike of the
officer were improper. However, neither bias nor prejudice
refers to the attitude that a judge may hold about the subject
matter of a lawsuit. The Canon contemplates disqualification
where, for instance, a judge has prior knowledge of
13 (...continued)
that “‘most matters relating to judicial disqualification do not rise to a constitutional
level.’” 129 S. Ct. 2252, 2259 (2009) (quoting FTC v. Cement Institute, 333 U.S. 683, 702
(1948)). As an example of the kind of matter that would “not rise to a constitutional
level,” the Court specified that “[p]ersonal bias or prejudice ‘alone would not be
sufficient basis for imposing a constitutional requirement under the Due Process
Clause.’” Id. at 2258 (quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820 (1986)).
Instead, regulation of personal bias is generally “left to statutes and judicial codes.” Id.
at 2259. Our Code of Judicial Conduct regulates personal bias strictly, requiring recusal
where “the judge has a personal bias or prejudice” that might cause the judge’s
impartiality to “reasonably be questioned.” Utah Code of Judicial Conduct Canon
3E.(1).
14 Utah Code of Judicial Conduct Canon 3E.(1).
15 Id. Canon 3E.(1)(a).
9 	No. 20090215

evidentiary facts, is related to a party or an attorney, has a
close social or professional relationship with a party or an
attorney, was involved in the case at hand before becoming a
judge, or has a financial or property interest that could be
affected by the outcome of the proceeding. In other words,
the bias or prejudice must usually stem from an extrajudicial
source, not from occurrences in the proceedings before the
judge.16
¶18 	Mr. Munguia contends that the trial court’s comments at the sentencing
hearing violate Canon 3 of the Judicial Code of Conduct and his due process rights
because they “would not only lead a person to reasonably question the trial court’s
impartiality, but also establish hostility and ill will toward Munguia by the trial court.”
He suggests that the following comments made by the judge during the sentencing
hearing display the kind of bias forbidden by the Judicial Code of Conduct and the
Utah Rules of Professional Conduct governing civility: (1) challenging Mr. Munguia
about whether he understood who was at fault for the abuse; (2) twice asking Mr.
Munguia if he still thought it was a good experience for his daughter to masturbate and
fellate him; (3) commenting that Mr. Munguia had “ruined” an innocent child;
(4) stating that Mr. Munguia’s daughter now had “almost zero chance of having a stable
marriage”; and (5) “opining” that Mr. Munguia had “destroyed” his daughter, who
trusted him.
¶19 	But none of these comments show that Judge Kouris’s ill will toward Mr.
Munguia was influenced by an extrajudicial source, and there is more than enough
information in the record to indicate that any bias against Mr. Munguia stemmed from
“occurrences in the proceedings before the judge.”17 For instance, Judge Kouris’s
outrage at Mr. Munguia’s equivocation about who was at fault and whether the abuse
was a good idea were most likely based on Mr. Munguia’s own statements in the PSR.
Similarly, Judge Kouris’s comments about the effects the abuse had on Mr. Munguia’s
daughter were also likely based on statements in the PSR (“The victim in this matter has
been attending counseling for over a year, having suffered an extensive level of
emotional anxiety and trauma.”) and statements made by the prosecutor at sentencing
(“Clearly the victim’s innocence has been robbed.”). Mr. Munguia does not attempt to
show that Judge Kouris’s anger was motivated by an extrajudicial source or anything
other than Mr. Munguia’s own actions in this case, and thus he has not shown the kind
of bias Utah’s Code of Judicial Conduct contemplates to require recusal. Because Judge
16 1999 UT 81, ¶ 35, 984 P.2d 997 (emphases added) (citations omitted) (internal
quotation marks omitted).
17 Id.
No. 20090215 	10

Kouris was not required to recuse himself, Mr. Munguia’s counsel was also not
ineffective when she did not request recusal.
¶20 	Certainly, we expect our judges to “be patient, dignified, and courteous to
litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official
capacity.”18 But that does not mean that due process or our Code of Judicial Conduct are
violated whenever a defendant’s criminal conduct and subsequent excuses inspire
anger in a judge. Perhaps there is a judge who could remain emotionally neutral when
faced with a father who sexually abused his daughter, tended to blame her for the
abuse, and then tried to rationalize it by stating that he thought it would have been a
good experience for her. But no law requires it. Thus, Mr. Munguia’s due process rights
were not violated by Judge Kouris, and he did not need to recuse himself.
II. JUDGE KOURIS’S SENTENCING OF MR. MUNGUIA DID NOT CONSTITUTE
PLAIN ERROR, NOR DID IT GIVE RISE TO AN EXCEPTIONAL CIRCUMSTANCE,
NOR DID MR. MUNGUIA RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL AT
SENTENCING
¶21 	It was neither plain error nor did it give rise to an exceptional
circumstance when Judge Kouris sentenced Mr. Munguia to consecutive sentences and
not to probation. 19 Additionally, Mr. Munguia’s attorney did not provide ineffective
assistance when she did not inform the court of the statutes governing probation
decisions or discuss the possibility that Mr. Munguia might have met the statutory
criteria for probation. This part of the opinion will address separately (A) why Judge
Kouris’s sentencing decision was not plain error and did not give rise to an exceptional
circumstance, and (B) why Mr. Munguia did not receive ineffective assistance of
counsel.
18 Utah Code of Judicial Conduct Canon 3B.(4).
19 Mr. Munguia also mentions the statute governing concurrent/consecutive
sentencing decisions, Utah Code Ann. § 76-3-401(2) (2008), as something the judge
should have considered when sentencing Mr. Munguia, but concedes that it is not
necessary for the sentencing court to enter findings under the statute, and does not
further develop an argument as to how Mr. Munguia’s sentence does not accord with
this statute. Because no argument is adequately briefed regarding how this statute
should influence our decision, we decline to reach the issue. See supra note 8.
11 	No. 20090215

A. It Was Not Plain Error for Judge Kouris Not to Sentence Mr. Munguia to Probation,
Nor Did it Give Rise to an Exceptional Circumstance
¶22 	Because the pertinent sentencing statute gives the district court discretion
not to sentence Mr. Munguia to probation, the district court did not commit any error,
let alone plain error, when it exercised that discretion to sentence Mr. Munguia to
consecutive prison terms. Further, it did not give rise to the kind of exceptional
circumstance that excuses nonpreservation when the court did not sentence Mr.
Munguia to probation, because such a sentence is not a procedural anomaly, nor is it
manifestly unjust. Under plain error review, Mr. Munguia “must establish that [1] an
error exists; [2] the error should have been obvious to the trial court; and [3] the error is
harmful.”20 And we reserve exceptional circumstances review for cases involving “rare
procedural anomalies . . . where our failure to consider an issue that was not properly
preserved for appeal would . . . result[] in manifest injustice.” 21 Mr. Munguia does not
satisfy his burden on appeal under either standard, and his sentence did not result in
manifest injustice.
¶23 	The Utah Code allows those convicted of sex offenses against children to
receive probation for their offense under a very narrow set of circumstances
enumerated by statute. 22 This statute (the “probation statute” or the “statute”) requires
defendants to show that certain circumstances are present before the court can even
consider probation. 23 The statute normally requires that the defendant prove the
existence of all of these circumstances by a preponderance of the evidence, but for the
particular offenses to which Mr. Munguia pleaded guilty, this requirement is slightly
relaxed. Instead of requiring proof by a preponderance of the evidence of all
circumstances,24 “the court shall consider the circumstances . . . as advisory in
determining whether or not execution of sentence should be suspended and probation
granted. The defendant is not required to satisfy all of those circumstances for
20 State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346 (internal quotation marks
omitted).
21 State v. Nelson-Waggoner, 2004 UT 29, ¶ 23, 94 P.3d 186 (internal quotation
marks omitted).
22 See Utah Code Ann. § 76-5-406.5.
23 Id. § 76-5-406.5(1).
24 See id. § 76-5-406.5(5).
No. 20090215 	12

eligibility . . . .”25 But even if the defendant is eligible for probation under the statute,
probation remains discretionary with the court, “considering the circumstances of the
offense, including the nature, frequency, and duration of the conduct, and considering
the best interests of the public and the child victim.”26
¶24 	The court in this case committed no error, much less plain error, 27 as it is
clear that the probation statute gives the sentencing court full discretion not to suspend
a sentence even if a defendant is eligible for probation under the statute.28
“[A] ‘defendant has no right to be placed on probation . . . .’” 29 Rather, once a defendant
has entered a guilty plea, the defendant is only entitled to receive the sentence the law
provides. “‘[P]robation [remains] within the discretion of the trial judge.’”30
¶25 	The only statutory restrictions that were placed on Judge Kouris’s
discretion here were that he consider “the circumstances of the offense, including the
nature, frequency, and duration of the conduct, and . . . the best interests of the public
and the child victim.”31 In his statement at sentencing, Judge Kouris made remarks that
indicated he had considered the circumstances of the offense, the best interests of the
public, and the best interests of the child victim. Because Judge Kouris exercised his
discretion in a manner consistent with the probation statute, Mr. Munguia’s sentence
was not plain error.
¶26 	Further, Mr. Munguia’s sentence did not give rise to an exceptional
circumstance. Because a convicted defendant has no vested right in probation, but only
to have “the sentence provided by law imposed on him,” Mr. Munguia’s sentence is not
a procedural anomaly nor is it manifestly unjust; it is the sentence provided by law for
the crimes to which he pleaded guilty.
25 Id. § 76-5-406.5(8).
26 Id. § 76-5-406.5(1).
27 See Holgate, 2000 UT 74, ¶ 13 (“To demonstrate plain error, a defendant must
establish that . . . an error exists . . . .”(internal quotation marks omitted)).
28 Utah Code Ann. § 76-5-406.5(1).
29 State v. Pritchett, 2003 UT 24, ¶ 36, 69 P.3d 1278 (quoting State v. Smith, 842
P.2d 908, 910 (Utah 1992)).
30 Id. (quoting Smith, 842 P.2d at 910).
31 Utah Code Ann. § 76-5-406.5(1).
13 	No. 20090215

¶27 	Mr. Munguia also argues that the PSR and psychosexual evaluation
should have “been guided by the probation statute.” Mr. Munguia cites State v.
Hammond for the proposition that we should “reverse and remand so that the
presentence report and Psychological Evaluation may be redone or revised to reflect the
applicable statutes and standards.” 32 But the facts in this case are distinguishable from
those in Hammond. In Hammond, the PSR recommended probation without
mentioning the statutory requirements that needed to be met for that recommendation
to be legal. 33 The district court in Hammond refused to sentence the defendant to
probation because it mistakenly assumed that using force was an element of the charge
to which the defendant had pleaded guilty, which would have made the defendant
ineligible under the statute to receive probation.34 We remanded because the judge had
possibly misunderstood the law, the PSR contained “a mistaken assumption about
sentencing options,” and the judge had made an assumption about the use of force not
justified by the record.35
¶28 	By contrast, in this case Judge Kouris made no determination about Mr.
Munguia’s eligibility for probation because Judge Kouris exercised his discretion not to
sentence Mr. Munguia to probation. Unlike in Hammond, the PSR did not recommend
probation, so the PSR did not need to justify the reasoning for its recommendation in
the probation statute. Here, AP&P recommended consecutive sentences in the PSR and
grounded its reasoning in the “numerous aggravating factors” surrounding the offense
and concern for the community’s safety. The plain language of the probation statute
indicates these factors are sufficient to guide a judge in his discretion.36
¶29 	Because Judge Kouris appropriately exercised his discretion to sentence
Mr. Munguia to consecutive sentences, Mr. Munguia’s sentence is not plain error, nor
did it give rise to an exceptional circumstance requiring reversal.
B. Mr. Munguia Did Not Receive Ineffective Assistance of Counsel at the Sentencing
Hearing
32 2001 UT 92, ¶ 25, 34 P.3d 773.
33 See id. ¶¶ 10, 22–23.
34 Id. ¶¶ 9–11, 25.
35 Id. ¶ 25.
36 See Utah Code Ann. § 76-5-406.5(1) (listing the safety of the community and the
circumstances surrounding the offense as considerations for the judge in deciding
whether or not to grant probation).
No. 20090215 	14

¶30 	Even if it is assumed that Mr. Munguia’s attorney performed deficiently,
because we conclude there is no reasonable probability that Mr. Munguia would have
received a more favorable outcome had his trial attorney pursued the strategy he now
suggests on appeal, we hold Mr. Munguia did not receive ineffective assistance of
counsel. “To prove ineffective assistance of counsel, [Mr. Munguia] must show: (1) that
counsel’s performance was objectively deficient, and (2) a reasonable probability exists
that but for the deficient conduct [Mr. Munguia] would have obtained a more favorable
outcome at trial.”37 When reviewing ineffective assistance of counsel claims, we strongly
presume that trial counsel provided adequate assistance and that any action
complained of was sound trial strategy. 38 “To show prejudice in the ineffective
assistance of counsel context, the defendant bears the burden of proving that counsel’s
errors actually had an adverse effect on the defense and that there is a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have been
different.” 39 “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.”40 “Additionally, proof of ineffective assistance of counsel
cannot be a speculative matter but must be a demonstrable reality.” 41 In the sentencing
context, this court considers the totality of the evidence before the judge and determines
if there is a reasonable probability the judge would have reached a different outcome
absent the attorney’s deficient performance.42
¶31 	Even assuming that it was error for Mr. Munguia’s counsel not to present
evidence on the factors determining eligibility for probation—a finding we do not
make—Mr. Munguia cannot demonstrate that such evidence would have persuaded the
court not to impose consecutive sentences. Mr. Munguia argues that his counsel should
have provided expert opinion on the extent of the harm his sexual abuse caused his
37 State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
38 State v. Ott, 2010 UT 1, ¶¶ 22, 34, 247 P.3d 344, petition for cert. filed, 79
U.S.L.W. 3254 (U.S. Oct. 12, 2010) (No. 10-490).
39 Id. ¶ 40 (internal quotation marks omitted).
40 Taylor v. State, 2007 UT 12, ¶ 56, 156 P.3d 739 (internal quotation marks
omitted).
41 Nicholls v. State, 2009 UT 12, ¶ 36, 203 P.3d 976 (internal quotation marks
omitted).
42 See Taylor, 2007 UT 12, ¶ 56. We proceeded in that case to analyze the evidence
the jury would have heard had Mr. Taylor’s attorney pursued his proffered strategy. Id.
¶¶ 58–60. Although we do not find that Mr. Munguia’s counsel’s performance was
deficient, we now engage in a similar analysis.
15 	No. 20090215

daughter and on whether a probation sentence for Mr. Munguia would have served her
interests. Mr. Munguia also argues that counsel should have sought a psychosexual
evaluation to address the criteria in the probation statute (although the psychosexual
evaluation in the PSR already recommended probation). Had counsel focused on the
statutory probation factors—as Mr. Munguia asserts she should have—the most
favorable evidence the district court could have had before it would have shown only
that Mr. Munguia did not use force, that he did not cause bodily injury to his daughter,
that there was not more than one victim, that Mr. Munguia did not use pornography in
his offense, that he acted alone, that he did not encourage his daughter to engage in
prostitution, that he admitted to his offenses in his guilty plea, that he could have been
rehabilitated in treatment, that he was not an exclusive pedophile and did not present a
danger to the community, and that it was in his daughter’s best interest that he be
sentenced to probation.
¶32 	But the sentencing court already had virtually all of this evidence before it
in the PSR and psychosexual evaluation. For instance, it was never asserted that Mr.
Munguia used force or caused bodily injury to his daughter, that he abused additional
victims or used pornography in his offense, that he encouraged his daughter to engage
in prostitution, or that he acted with accomplices. The psychosexual evaluation
indicated he was not an exclusive pedophile and that he was motivated to participate in
therapy and treatment. The psychosexual evaluation even ultimately recommended
probation, which Mr. Munguia’s attorney pointed out at sentencing. Additionally, Mr.
Munguia’s attorney noted that he had no prior criminal history, had worked a steady
job for fourteen years, and that he had been attending sex-offender treatment for a year.
¶33 	The only information that could have been obtained by a focus on the
probation-eligibility factors that the court did not already have before it is an
assessment from an expert of Mr. Munguia’s daughter’s needs and an additional
psychosexual evaluation that, at best, might have come to much the same conclusion
that the first one did and similarly recommend probation. But this assumes that either
of these evaluations would have yielded results favorable to Mr. Munguia. Experts
might just as easily have said that it was in Mr. Munguia’s daughter’s best interest that
he be sentenced to prison, and might have concluded, as the PSR did, that incarceration
was vital to Mr. Munguia’s rehabilitation. Any benefit Mr. Munguia might have gained
from a shift in focus to the probation factors is purely speculative, and such a focus
might just as easily have yielded unfavorable results for Mr. Munguia.
¶34 	Regardless of how his attorney might have argued, the State would have
likely responded with its own characterization of the factors, which might have
included Mr. Munguia’s reluctance to admit (admission being one of the probation-
No. 20090215 	16

eligibility factors) 43 that he had digitally penetrated his daughter. One of the probation
statute’s factors is that the court must agree with the psychosexual evaluation’s
assessment that Mr. Munguia was not a danger to the community. 44 Judge Kouris
clearly did not agree with this assessment. The State could have further focused on Mr.
Munguia’s dangerousness to the community and to his daughter. The State may also
have placed heavier emphasis on the “nature, frequency, and duration of the
conduct,”45 which by Mr. Munguia’s own admission, happened at least two to three
times per week for three to four months and included fondling, oral sex, and
masturbation. Mr. Munguia further stated in the psychosexual evaluation, “They said I
might have just barely penetrated her with my finger maybe.”
¶35 	Given the body of evidence the trial court likely would have heard had
Mr. Munguia’s counsel pursued the strategy he now suggests, it is highly improbable
that the trial court would have issued a sentence more favorable to Mr. Munguia. Thus,
no reasonable probability exists that Mr. Munguia was prejudiced by his attorney’s
actions below,46 and he cannot establish his ineffective assistance of counsel claim.
CONCLUSION
¶36 	Because Judge Kouris made no remark that indicated he was biased in any
extrajudicial sense or that he was not impartial, Judge Kouris was not required to recuse
himself. And because Judge Kouris appropriately exercised his discretion to sentence
Mr. Munguia to consecutive prison sentences and not to probation, Mr. Munguia’s
sentence was not plain error nor did it give rise to an exceptional circumstance
requiring reversal. Mr. Munguia did not receive ineffective assistance of counsel
because even if his attorney had made the arguments and presented the evidence Mr.
Munguia now contends she should have, it was not reasonably probable that Mr.
Munguia would have received a more favorable result. Thus, we affirm the district
court’s sentence.
---
43 Utah Code Ann. § 76-5-406.5(1)(h).
44 Id. § 76-5-406.5(1)(j)(ii).
45 Id. § 76-5-406.5(1).
46 Because Mr. Munguia cannot show he was prejudiced by his attorney’s
performance at sentencing, we do not reach whether his attorney’s performance was
deficient.
17 	No. 20090215

¶37 	Chief Justice Durham, Justice Parrish, Justice Nehring, and Judge
Harmond concur in Associate Chief Justice Durrant’s opinion.
¶38 	Justice Wilkins does not participate herein; District Judge George M.
Harmond sat.
No. 20090215 	18