State v. D.B.

2020 UT App 97
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
D.B.,
Appellant.
Opinion
No. 20190262-CA
Filed June 18, 2020
Fourth District Court, Provo Department
The Honorable James R. Taylor
No. 161401544
Earl G. Xaiz, Attorney for Appellant
Sean D. Reyes and Kris C. Leonard,
Attorneys for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES K ATE A PPLEBY and DAVID N. M ORTENSEN concurred.
ORME, Judge:
¶1 	Appellant D.B. argues that the district court exceeded its
discretion when it declined to reduce his felony convictions of
burglary and aggravated assault to class A misdemeanors. He
further argues that by defending the district court’s ruling on
appeal, the State breached the plea agreement it entered into
below. We reject both arguments and affirm.
BACKGROUND
The Plea Agreement
¶2 	In May 2016, the State charged D.B. with burglary, rape,
and 	forcible 	sexual 	abuse. 	D.B. 	agreed 	to 	plead 	guilty 	to

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burglary, a second-degree felony, and aggravated assault, a
third-degree 	felony. 	In 	exchange, 	the 	prosecutor 	agreed 	to
“recommend[] 	probation” 	and 	“stipulate[d] 	to 	a 	two 	level
reduction on [the burglary conviction], and a one level reduction
[on the aggravated assault conviction], upon [D.B.’s] successful
completion of probation, pursuant to § 76-3-402 Utah Code,”
which would have resulted in both counts being reduced to class
A misdemeanors. The factual basis of the plea was as follows:
On May 19, 2016, [D.B.] and others had been to the
victim’s home for a get together. [D.B.] and the
others 	left 	the 	home 	later 	on, 	but 	[D.B.] 	then
returned to the home, reentered the home through
an 	unlocked 	door, 	and 	entered 	the 	victim’s
bedroom without her consent. He then engaged in
sexual 	activity, 	wherein 	he 	believed 	she 	was
consenting. During the course of this activity, his
conduct, because of the circumstances, created a
“substantial risk of serious bodily injury.”
¶3 	Additionally, during the plea colloquy,1 the prosecutor
offered a further factual basis for the plea, stating that
[D.B.] had been at the victim’s house previously
that 	evening 	and 	left. 	He 	texted 	her 	and
communicated with her that he wanted to come
back. She told him not to come back. She went to
bed. He entered the house without permission, got
1. We were not provided a transcript of the hearing in which the
plea colloquy occurred. We quote from a recitation by the
district court in its ruling on D.B.’s motion to reduce the level of
his convictions. Nothing in the record suggests, nor has D.B.
argued, that he objected to the State’s supplemental factual basis
during the plea colloquy or that the court’s recitation of that
further factual basis was inaccurate.

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into bed with her, touched her breasts and vagina,
and then had intercourse with her without consent.
¶4 	Before entering into the plea agreement, however, D.B.
underwent a psychosexual evaluation in which he proffered a
different version of the facts. The doctor administering the
evaluation wrote that D.B. told him that
he dropped off his friend and called the woman
whose house they had been at, and, “We were
texting back and forth.” He indicated they talked
about him coming over. He questioned her, asking
if she was sure she wanted him to come over. He
stated that she replied, telling him she had just
taken a sleeping pill, and, “If I was going to come
over, to do it quick.” . . . He said he drove back to
her house and knocked on her door. He stated she
answered the door, saying, “She was in a t-shirt
and panties. She called me back to her room. There
was a light on. I laid on the bed and she was
standing up doing something and we were talking
back and forth.” He said he was lying on his side,
and, “She laid next to me like we were spooning.”
He indicated she took his arm and laid it across her
stomach, saying, “We were laying there. My crotch
was next to her behind and she started to move
around a little bit and I thought I heard her moan.
The next thing, we were both getting my penis out
and I stuck it between her legs above her panties,
and we started to grind.” He contended he never
heard her say “no.” He continued by saying, “She
never told me to stop. We were in a difficult
position so when I repositioned myself I got myself
hard and I got in the same position and, as I started
to ejaculate, I took off my shirt and cleaned off the
semen and laid there for a few minutes and then I
said I was going to go home.” He stated he then
picked up his clothing and left. He reported that

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during their interaction, “I can’t remember if I
touched her breasts. I could have but it wouldn’t
have been for very long.” He stated that at no point
did he grab her throat or make any threatening
statements 	towards 	her. 	He 	contended 	he 	was
never on top of her. He reported their relationship
is complicated 	by 	the 	fact 	that 	they had 	been
sexually active previously, months earlier, while
they were at his house.
¶5 	During this evaluation, the doctor noted that “D.B. does
not report having committed a sex offense.” The doctor also
noted that D.B. “does not report having used force in a sexual
encounter” and “believes the sexual behavior happened because
the person already had sexual experience and wanted and liked
the sex things that happened.” The doctor concluded that if D.B.
“had acted with force, violence, or without consent, he would
need to participate in treatment . . . [but] it is unclear this had
been the case.” The doctor suggested it would be “worthwhile
for . . . D.B. to voluntarily submit to a polygraph examination to
explore this further,” because if he “has not committed the
offense he has been accused of, there would be less need for him
to participate in sex offender specific treatment.”
¶6 	The 	court 	accepted 	D.B.’s 	plea 	and 	ordered 	Adult
Probation 	and 	Parole 	(AP&P) 	to 	prepare 	a 	presentence
investigation report (PSIR). As part of that report, D.B. provided
the following written statement:
I called [the victim] and texted her about coming
back to her house. We texted back and forth and I
ended up going back to her house and entered her
home through the side door that we had entered
through earlier that night. I walked back to her
room and [the victim] was there and I layed down
on her bed. We talked for a few minutes and then
she laid down beside me. I began to touch [the
victim] and began to grind on her from behind.

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Thinking everything was consensual. I continued
to grind with her from behind and at this time my
penis was in between her legs rubbing on the
outside of her panties. I know from [the victim]
that she was not ok with this. I admit my behavior
[w]as not normal for me and regret and feel very
sorry for ever[] going back to her house. After
grinding I ejaculated on her leg and took my shirt
off and cleaned her off. Still thinking everything
was ok I laid there for a few minutes then gathered
my things and left.
¶7 	The investigator who prepared the PSIR informed the
court that D.B. denied having any sexual interaction with the
victim before this offense, which contradicted the story he told
the doctor during his psychosexual evaluation. Determining that
D.B. not only entered the home intending to commit a sexual act,
but also committed that act, the investigator deviated from the
sentencing guidelines, which recommended no imprisonment,
and recommended prison time.
Sentencing and Probation
¶8 	At sentencing, the district court stated that although “this
is a heinous offense,” it would not impose prison time “because
there is no criminal history that [would warrant] an immediate
commitment to prison.” The court noted, however, that the
psychosexual evaluation was “really no help at all” because
“[t]he results were inconclusive, [and] the facts, apparently that
were reported to the examiner differ from the facts that have
been admitted to.” The court then sentenced D.B. to a suspended
prison sentence and placed him on probation for thirty-six
months. As a condition of probation, the court ordered D.B. to
serve 	one 	year 	in 	jail, 	even 	though 	the 	sentencing 	matrix
recommended 0–210 days in jail, and to complete any treatment
AP&P recommended, including taking a polygraph exam if
required.

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¶9 	Approximately 	eight 	months 	into 	his 	one-year
condition-of-probation incarceration, D.B. was released from jail
for good behavior. He then submitted to a polygraph exam.
During the exam, “D.B. was asked if he forced his victim to
engage in sexual contact with him and if he let himself into the
victim’s house.” D.B. answered in the negative to both questions,
and 	his 	“responses 	scored 	as 	‘no 	significant 	responses
observed,’” so he “was determined to be telling the truth by the
polygrapher.” 	After 	his 	release 	from 	jail, 	D.B. 	also 	entered
sex-offender treatment. This treatment was terminated after only
four weeks, when the psychologist in charge of D.B.’s therapy
categorized him as “very low risk” and deemed that he had no
need for further treatment based on the results of the polygraph
test and other assessments.
¶10 	Seven 	months 	after 	D.B.’s 	release 	from 	jail, 	AP&P
requested that the district court terminate his probation early on
the grounds that he “has completed everything asked of him and
has 	done 	so 	quickly, 	remained 	crime 	free 	and 	probation
violation free.” The court denied the request because it “was not
satisfied that sex therapy had been as ‘successful’ as the doctors
had declared since their conclusion seem[s] rooted in reliance
upon 	‘no 	response’ 	to 	questions 	that 	directly 	contradicted
findings 	admitted 	and 	then 	made 	in 	connection 	with 	the
sentencing in this case.”
¶11 	Approximately four months later, D.B. moved the district
court to terminate his probation in accordance with Utah Code
section 64-13-21(7) on the ground that he had had no probation
violations for eighteen months. The court heard argument on the
matter and granted the motion, terminating D.B.’s probation as
successfully completed.
402 Reduction
¶12 	D.B. then filed the motion at issue in this appeal—which
the 	prosecutor 	stipulated 	to 	in 	accordance 	with 	the 	plea
agreement—requesting 	that 	the 	district 	court 	reduce 	his

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burglary 	and 	aggravated 	assault 	convictions 	to 	class 	A
misdemeanors pursuant to Utah Code section 76-3-402. D.B.
argued he was entitled to the reduction on the grounds that he
(1) “has 	no 	other 	criminal 	history”; 	(2) 	“was 	an 	exemplary
inmate and probationer”; (3) completed everything the court
“asked him to do in an expedient manner”; (4) was “continuing
with 	counseling, 	despite 	the 	fact 	that 	he 	was 	successfully
discharged 	from 	court 	ordered 	counseling”; 	(5) 	had 	stable
employment but “his ability to progress in the company and his
income potential are restricted due to his felony convictions”;
and (6) had “gotten his life back on track so that he can be a good
father to his children and continue to provide for them.” While
the prosecutor stipulated to this motion, the victim, who was not
bound by the stipulation, opposed it.
¶13 	After finding that all applicable statutory requirements
for the requested reduction had been met, the court turned to
whether it “would be ‘in the interest of justice’” to reduce D.B.’s
convictions under section 76-3-402(3)(a)(v). In conducting this
analysis, the court noted that “[a] detailed description of [the]
investigation results was included in an affidavit of probable
cause filed to support [D.B.’s] warrantless arrest” and that “[t]he
alleged 	conduct 	was 	also 	described 	in 	a 	probable 	cause
statement included within the information.” The court, however,
“largely ignored” these sources in its analysis “because the State
bargained away the ability it had to have those allegations
scrutinized during [a] preliminary hearing or trial.” The court
then recited the facts from the plea agreement, the factual basis
recited 	by 	the 	State 	during 	the 	plea 	colloquy, 	the 	written
statement D.B. had provided for his PSIR, and a victim impact
statement in which the victim characterized D.B.’s actions as
rape. The court then reiterated the following facts that it had
initially noted at sentencing:
The psycho-sexual evaluation is no help, at all. The
results are inconclusive and the detail report is
inconsistent with the reported and admitted facts
of the case, minimizing [D.B.’s] guilt by suggesting

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that he had a previous relationship with the victim,
that she met him at the door partially dressed and
voluntarily engaged in sexual conduct in the bed.
The facts are that they had no relationship, he came
in through a side door uninvited, held the victim
by the throat, and clearly engaged in unwanted
and nonconsensual sexual conduct.
¶14 	The 	court 	then 	proceeded 	to 	conduct 	its 	“interest
of 	justice” 	analysis, 	focusing 	on 	(1) 	the 	seriousness 	of 	the
conduct, 	(2) 	the 	magnitude 	of 	the 	crime, 	and 	(3) 	D.B.’s
culpability.
¶15 	As to its first consideration, the court found that
the 	facts 	that 	[D.B.] 	has 	admitted 	describe 	an
intrusive, 	harmful 	intent 	that 	significantly
exceeded 	the 	purposes 	required 	for 	proof 	of
burglary of a dwelling. He negotiated for and
received 	a 	reduction 	in 	the 	seriousness 	of 	the
offense at the time he entered his plea. He served
[eight] months in jail instead of one to fifteen years
in 	prison. 	His 	course 	of 	treatment, 	mandated
because 	of 	the 	facts 	which 	indicated 	that
engagement in unwanted sexual behavior was at
the core of this crime, was shortened and clearly
influenced by his continued insistence that the facts
were other than what he admitted at the time of his
guilty plea. It is the conclusion of this Court that
the 	seriousness 	of 	the 	conduct 	in 	this 	case
significantly exceeded the severity of the crimes he
[pled] to and, moreover, that the penalty which
was imposed was substantially less than would
usually be expected for those crimes.
¶16 	Turning to its second consideration, the court found that
the victim credibly described the impact that the incident had on

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her and that “[t]he harm to the victim was real, palpable, and
long-lasting—perhaps permanent.” The court further noted that
[b]urglary 	of 	a 	dwelling 	and 	an 	assault 	under
circumstances where significant injury could occur
might happen with far less ominous activity and
results 	than 	occurred 	here. 	For 	example, 	a
would-be thief/burglar might be encountered in a
home 	. 	. 	. 	and 	then 	respond 	by 	flashing 	or
threatening with a weapon to allow for escape. . . .
But 	the 	circumstances 	here 	were 	substantially
beyond and more impactful than that less serious
circumstance. 	By 	comparison 	with 	the 	broad
spectrum of home intrusion offenses . . . , it is the
conclusion 	of 	the 	Court 	that 	this 	circumstance
should be characterized as greater than average
magnitude.
¶17 	Finally, with respect to its third consideration, the court
stated 	that 	although 	D.B. 	“has 	substantial 	good 	will 	in
his community 	of 	family 	and 	friends” 	and 	“completed 	the
specific tasks imposed . . . at sentencing in unusually short
order,” it was “concerned that he has minimized the seriousness
of 	the 	conduct 	that 	led 	to 	these 	convictions.” 	The 	court
continued:
While 	polygraph 	results 	are 	generally 	not
admissible, it is the understanding of this Court
that the process seeks to measure the confidence of
the subject in his answers, not the absolute truth of
the responses. This Court is satisfied that [D.B.’s]
less than serious characterization of his conduct is
consistent with how he views what happened that
night in the victim’s home. But even allowing that
he believes he was not committing as serious a
wrong as he admitted, it is still troubling that he
doesn’t understand the gravity of his conduct. By
his 	admission, 	he 	chose 	to 	return 	without

State v. D.B.
20190262-CA 	10 	2020 UT App 97
permission to the home, bedroom, and bed of the
victim in the wee hours of the morning. He chose
to initiate and complete unwanted sexual activity.
He then falsely told the psycho-sexual evaluator
that the victim met him at the door and invited him
into the home and into the conduct. The culpability
here rests with [D.B.], not the victim. Based on the
record of this case, this Court is convinced that the
culpability of [D.B.] in all of this is more significant
than he acknowledges or believes it to be.
¶18 	The court then concluded that based on D.B.’s admitted
conduct, 	the 	impact 	that 	it 	had 	upon 	the 	victim, 	and 	the
“unwanted sexual advances within the sanctity of the home of
the victim,” “the interests of justice . . . would not be served by
reduction” of D.B.’s offenses.
¶19 	D.B. appeals.
ISSUES AND STANDARDS OF REVIEW
¶20 	D.B. asserts that the district court erred when it declined
to reduce the level of his convictions. “We review a trial court’s
denial of a motion to reduce the degree of a conviction for abuse
of discretion.” State v. Salt, 2015 UT App 72, ¶ 9, 347 P.3d 414.
“Under this standard, we will affirm the court’s decision absent
a showing that it failed to consider all legally relevant factors, or
if no reasonable person would take the view it adopted.” State v.
Cochran, 	2019 	UT 	App 	92, 	¶ 	7, 	443 	P.3d 	1269 	(quotation
simplified).
¶21 	In response to the position the State took in its brief on
appeal, D.B. argued in his reply brief that the State had breached
the 	plea 	agreement 	by 	“now 	revers[ing] 	its 	position 	and
argu[ing] that the court should not have reduced the level of the
offenses as [the State] had agreed.” We invited and received
supplemental briefing on this question. “The enforceability of a

State v. D.B.
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plea agreement presents a question of law” that we consider de
novo. State v. Francis, 2017 UT 49, ¶ 8, 424 P.3d 156.
ANALYSIS
I. 402 Reduction
¶22 	Under Utah Code section 76-3-402, a district court “may
enter a judgment of conviction for a lower degree of offense,” or
two degrees if agreed to by the prosecutor, if after successful
completion of probation the court finds the requested reduction
“is in the interest of justice.”2 Utah Code Ann. § 76-3-402(3)–(4)
(LexisNexis 2017). Such a decision “is one of judgment and
discretion.” State v. Salt, 2015 UT App 72, ¶ 26, 347 P.3d 414.
¶23 	D.B.’s challenge to the district court’s ruling focuses on a
variety of individual facts and statements the court made that
D.B. argues were incorrect or mischaracterized. In D.B.’s view,
examples 	include 	the 	court’s 	consideration 	of 	irrelevant
aggravating facts not admitted to by D.B. that went beyond the
factual basis found in his plea agreement; the court’s “acting as if
2. The district court relied on LeBeau v. State, 2014 UT 39, 337
P.3d 	254, 	when 	it 	determined 	that 	reductions 	of 	D.B.’s
convictions were not in the interest of justice. See id. ¶ 41. But
“[n]o Utah appellate court has . . . required a LeBeau-style
analysis in deciding a charge-reduction motion brought under
Utah Code section 76-3-402.” State v. Cochran, 2019 UT App 92,
¶ 9 n.4, 443 P.3d 1269. We need not consider the propriety of the
district court’s LeBeau-style analysis in this case, because we can
readily affirm its ruling that the requested reductions were not
in the interest of justice under Utah Code section 76-3-402. We
can 	do 	so 	given 	the 	court’s extensive 	factual 	findings and
lengthy analysis, which allow us to determine that under the
statute, even ignoring the court’s reliance on LeBeau, the court
did not exceed its discretion.

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20190262-CA 	12 	2020 UT App 97
D.B. had been convicted of rape”; the court’s disregard of the
polygraph results and the related opinion of D.B.’s psychologist;
and the court’s failure to properly consider D.B.’s rehabilitative
potential.3 D.B. further assails the court’s ruling with reference to
other perceived errors, which we do not consider material and
thus decline to address further. As stated, in deferring to the
broad discretion of the district court in such matters, we take
something 	of 	a 	thirty-thousand-foot 	view, 	which 	ultimately
helps us determine if the district court’s conclusion is one that no
reasonable person would reach. See State v. Cochran, 2019 UT
App 92, ¶ 7, 443 P.3d 1269.
¶24 	With that perspective in mind, we address D.B.’s main
concern, which is his contention that although he pled guilty to
burglary 	and 	aggravated 	assault, 	the 	district 	court 	acted
throughout its entire 402 reduction ruling “as if [he] had been
convicted of rape,” thereby exceeding its discretion. We disagree
with D.B.’s characterization of the district court’s ruling. The
court’s actual analysis does not treat him as having committed
rape, even though it referenced the allegations set forth in the
probable cause statement of the information and recited the
sexual abuse allegations made by the State at the plea colloquy
and those included in the victim’s statement. In its ruling, the
court 	provided 	facts 	from 	the 	probable 	cause 	statement 	as
background and did not rely on them in reaching its decision.
Rather, the court explicitly stated that it “largely ignored” “[t]he
3. 	In 	his 	reply 	brief, 	D.B. 	argues 	that 	the 	State’s 	counter
arguments 	as 	to 	why 	the 	district 	court’s 	ruling 	should 	be
affirmed “are unpreserved issues” because the State made no
such arguments in the district court. But because we may affirm
a district court’s ruling “if it is sustainable on any legal ground
or theory apparent on the record,” even when it “was not raised
in the lower court, and was not considered or passed on by the
lower court,” Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158
(quotation simplified), the preservation requirements ordinarily
do not apply to appellees on appeal.

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alleged conduct . . . described in [the] probable cause statement
included 	within 	the 	information” that 	characterized 	D.B.’s
actions as rape. And although the court recited the statements
the State made at the plea colloquy and the victim’s statement
that included those same rape allegations, these were not central
to the court’s analysis.4
¶25 	For example, the court stated, with our emphasis, that
“the facts . . . indicated that engagement in unwanted sexual
behavior[5] was at the core of this crime.” And the court found that
4. Ultimately, an “interest of justice” analysis calls for a wide
examination of the facts and the individual, looking at the big
picture. And insofar as the district court may have gleaned some
information from the record suggesting that D.B.’s conduct was
more serious than he pled to, nothing in adjudicating the interest
of justice requires the court to turn a blind eye on reliable
evidence in the record that describes the defendant’s conduct.
Had the court solely or even primarily relied on these two
sources, which were not part of the plea agreement, we likely
would have reservations about the court’s decision. But the court
did not do so, and it was not an abuse of discretion for it to take
into 	account 	reliable 	statements 	from 	the 	State, 	especially
because there is no indication that D.B. objected at the plea
colloquy 	to 	those 	statements 	or 	to 	those 	from 	the 	victim.
Significantly, the court did not unduly rely on these two sources
in making its decision.
5. Not all sexual crimes amount to rape, as there are many other
sexual crimes that are considered less serious in nature and are
punished accordingly. Compare Utah Code Ann. § 76-5-402(3)
(LexisNexis 2017) (providing that rape is a first-degree felony),
with 	id. 	§ 	76-9-702.1(3) 	(Supp. 	2019) 	(providing 	that 	sexual
battery is a class A misdemeanor); id. § 76-5-404(2) (providing
that forcible sexual abuse may be punished as a second-degree
felony if no serious bodily injury was done to the victim); id.
§ 76-5-412(2), (4) (providing that custodial sexual misconduct
(continued…)

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the magnitude of the crime was great because there was an
“unwanted 	intrusion, 	not 	just 	into 	the 	home 	but 	into 	the
bedroom 	of 	the 	victim, 	coupled 	with 	an 	assault”—a
characterization entirely consistent with the crimes of burglary
and 	aggravated 	assault 	to 	which 	D.B. 	pled 	guilty. 	When
analyzing D.B.’s culpability, the court disregarded the results of
his polygraph exam not because the results suggested that he
did not force himself on the victim, but because of D.B.’s “less
than serious characterization of his conduct” during the night in
question. Notwithstanding his polygraph exam narrative, “[b]y
his own admission, [D.B.] chose to return without permission to
the home, bedroom, and bed of the victim in the wee hours of
the morning . . . to initiate and complete unwanted sexual
activity.” 	The 	court 	also 	disregarded 	the 	psychosexual
evaluation, again not because of its beliefs that D.B. raped the
victim and that the evaluator was wrong, but because D.B.
“falsely told the . . . evaluator that the victim met him at the door
and invited him into the home and into the conduct,” which was
not what he admitted to in his plea statement. The court’s
analysis did not hinge on the rape allegations but on the conduct
D.B. admitted to and his attempts to minimize that conduct. It is
therefore understandable that the court would be unfavorably
impressed by what it perceived as D.B.’s attempts to shift the
blame to the victim.
¶26 	Accordingly, 	the 	court’s 	analysis 	focused 	on 	the
“unwanted” entry into the victim’s home and the improper
sexual behavior of D.B.—not on an unwarranted conclusion that
(…continued)
may be punished as anything from a class A misdemeanor up to
a 	second-degree 	felony); 	and 	id. § 76-5-401(3) 	(stating 	that
unlawful sexual activity with a minor may be punished as either
a class A or B misdemeanor, or a third-degree felony, depending
on the circumstances). Thus, by referencing unwanted sexual
behavior, the court was not necessarily equating D.B.’s actions to
rape.

State v. D.B.
20190262-CA 	15 	2020 UT App 97
he raped the victim. D.B. has not shown that the court abused its
discretion in directing its focus that way. On the contrary, the
court correctly summarized and recited the key facts from the
evidence properly before it, the majority of which came from the
admitted factual basis in the plea agreement.
¶27 	The court also took into account facts favorable to D.B.. It
noted that it had received various letters from current and
former employers and friends, all of whom attested to D.B.’s
good character, and stated that D.B. “has substantial good will in
his community of family and friends.” The court additionally
found that D.B. “completed the specific tasks imposed by this
Court at sentencing in unusually short order” and that “[h]e is
able to be employed and appears to be a good parent, spouse,
and friend to those around him.” But the court found that these
factors did not outweigh its “concern[] that he has minimized
the seriousness of the conduct that led to [his] convictions.”
¶28 	Ultimately, the district court analyzed the factors in favor
of D.B. and balanced them against the severity of the crime
(unwanted sexual behavior that came after D.B. intruded upon
the sanctity of the victim’s home in the middle of the night), the
impact on the victim, D.B.’s periodic attempts to minimize his
behavior, and his failure to take responsibility for it. Having
done so, the court concluded that it was not in the interest of
justice to reduce D.B.’s convictions. D.B. does not point to any
additional factor the district court should have considered but
did not. Instead, D.B. takes issue with how the district court
viewed the circumstances of this case. But this decision, “[b]y its
nature, . . . is one of judgment and discretion.” See State v. Salt,
2015 UT App 72, ¶ 26, 347 P.3d 414. Given the court’s sound and
thorough analysis, we cannot overturn its ruling on the rationale
that “no reasonable person would [have] take[n] the view it
adopted.”6 See State v. Cochran, 2019 UT App 92, ¶ 7, 443 P.3d
6. We note that in reviewing a district court’s ruling for an abuse
of discretion, our deference is substantial, and the mere fact that
(continued…)

State v. D.B.
20190262-CA 	16 	2020 UT App 97
1269 (quotation simplified). See also id. ¶ 11 (“A court that
considers all the circumstances before making a [402 reduction]
decision is usually found to have acted within its discretion.”).
II. Breach of the Plea Agreement
¶29 	D.B. also asserts that “[t]he State . . . had an obligation to
fulfill its promise [under the plea agreement], not just at the level
of the trial court, but throughout the post-conviction process,
specifically, this appeal.” As a result, D.B. contends that “[t]he
State should be estopped from violating the agreement that both
the State and [he] agreed to” and urges us to “strike the State’s
(…continued)
one or more of us might have ruled the other way had we been
in the district court’s position is largely irrelevant. See Gunn Hill
Dairy Props., LLC v. Los Angeles Dep't of Water & Power, 2015 UT
App 261, ¶¶ 21–24, 361 P.3d 703 (Orme, J., and Toomey, J.,
concurring) (stating that “standards of review really do matter”
and appellate courts will affirm a district court’s discretionary
ruling so long as it considered “all the relevant factors” and
“explained the basis for [its] decision”). The fact that the district
court 	was 	able 	to 	have 	the 	defendant 	before 	it, 	judge 	his
demeanor, see his body language, and evaluate his level of
sincerity gives the district court a substantial advantage over an
appellate court in making an “interest of justice” determination.
In this case, it might well have been expected that the court
would grant D.B.’s requested reductions, given his satisfactory
compliance with the terms of his probation and the State’s
stipulation, and had the court denied the request without any
explanation, we very well may have reversed. But where the
court was able to observe D.B. in person on multiple occasions,
although he never testified before the court, and undertook a
thorough and careful written analysis explaining in detail its
decision to decline D.B.’s 402 reduction request, we cannot
conclude that the court exceeded its discretion.

State v. D.B.
20190262-CA 	17 	2020 UT App 97
brief, or, in any event, disregard its arguments” and remand to
“the sentencing court to enforce the bargain made.”
¶30 	“When a plea rests in any significant degree on a promise
or agreement of the prosecutor, so that it can be said to be part of
the 	inducement 	or 	consideration, 	such 	promise 	must 	be
fulfilled.” State v. Lindsey, 2014 UT App 288, ¶ 16, 340 P.3d 176
(quotation 	simplified). 	“If 	the 	prosecutor 	breaches 	the
agreement, then the court must afford the defendant a remedy,
either by permitting the withdrawal of the plea or requiring the
State 	to 	perform.” 	Id. 	“We 	apply 	contract 	principles 	when
interpreting plea agreements,” Hattrich v. State, 2019 UT App
142, ¶ 18, 449 P.3d 929, meaning we “generally look first to the
plain language” of the plea agreement, State v. Davis, 2011 UT
App 74, ¶ 3 n.2, 272 P.3d 745. “If . . . after considering each
contract provision in relation to all of the others, with a view
toward giving effect to all and ignoring none, we determine that
the language of the contract is unambiguous, we may interpret
its terms based on the plain language” and need not go further.
State v. Terrazas, 2014 UT App 229, ¶ 27, 336 P.3d 594 (quotation
simplified). 	We 	determine 	that 	the 	language 	of 	the 	plea
agreement in this case is indeed unambiguous, that the State
fully complied with the agreement, and that it did not violate
that agreement by opposing D.B.’s appeal.
¶31 	In 	the 	plea 	agreement, 	the 	prosecutor 	agreed 	to
recommend probation and to stipulate to a two-level reduction
on the burglary conviction, and a one-level reduction on the
aggravated assault conviction, upon D.B.’s successful completion
of probation. This would have resulted in the reduction of each
felony 	count 	to 	a 	class A 	misdemeanor. 	This language 	“is
straightforward and explicit” and did not prohibit the State from
opposing D.B.’s appeal if, the prosecutor having done as agreed,
the court declined to reduce the convictions. See Hattrich, 2019
UT App 142, ¶ 19. The agreement the prosecutor entered into
with D.B. bound the State to stipulate to the 402 reductions upon
D.B.’s successful completion of probation, and the State did

State v. D.B.
20190262-CA 	18 	2020 UT App 97
exactly 	as 	required 	in 	accordance 	with 	the 	“clear 	and
unambiguous language of the agreement.” See id.
¶32 	The fact that the court rejected that stipulation and came
to 	a 	contrary 	conclusion 	has 	no 	bearing 	on 	the 	State’s
performance of the contract. See State v. Stringham, 2001 UT App
13, ¶ 14, 17 P.3d 1153 (“Even where the government and the
defendant reach a plea agreement, the court is not required to
accept it.”) (quotation simplified). Nothing in the plea agreement
limited the State’s ability to take an inconsistent position on
appeal and, in that setting, to defend the exercise of the district
court’s 	discretion 	by 	arguing 	in 	support 	of 	the 	court’s
interest-of-justice assessment. Atypical though it might be, if
D.B. 	and 	the 	State 	had 	included 	in 	the 	plea 	agreement 	a
provision that the State would not oppose any appeal he would
take in the event the district court did not grant the stipulated
402 reductions, then D.B. would have a compelling argument.
But because no such provision exists “and the State kept [its]
promise” in all respects, see State v. Monzon, 2016 UT App 1, ¶ 16,
365 P.3d 1234, we decline to grant D.B. the relief he requests.
CONCLUSION
¶33 	The district court did not exceed its discretion in declining
to reduce D.B.’s convictions. And the State did not violate the
plea 	agreement 	by 	defending 	the 	district 	court’s 	ruling 	on
appeal.
¶34 	Affirmed.