State v. Fretheim

2014 UT App 210
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
DONALD FRETHEIM,
Defendant and Appellant.

Memorandum Decision
No. 20130344-CA
Filed September 5, 2014

Fifth District Court, Cedar City Department
The Honorable G. Michael Westfall
No. 121500536

Matthew D. Carling, Attorney for Appellant

Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGE J. FREDERIC VOROS JR. concurred. JUDGE MICHELE M.
CHRISTIANSEN concurred, except that as to part I, she concurred
only in the result.

ROTH, Judge:

¶1 Donald Fretheim was convicted of distribution of or
arranging to distribute a controlled substance, a second degree
felony. On appeal, Fretheim argues that the trial court erred in
denying his motion to quash the magistrate’s decision to bind
the case over for trial because the trial court’s decision relied
solely on a police officer’s allegedly unreliable hearsay
testimony. He also challenges the trial court’s decision to impose
State v. Fretheim

a consecutive sentence, arguing that the court failed to consider
the requisite statutory factors. We affirm Fretheim’s conviction
and sentence.

¶2 In August 2012, police arranged a controlled buy of
methamphetamine in southern Utah. Police equipped a
confidential informant with a recording device and gave him
$160 for the purchase. The informant met Fretheim in a trailer
park on the outskirts of Cedar City, Utah. Inside an abandoned
trailer, the informant offered to buy methamphetamine from
Fretheim. Fretheim pulled a ‚big chunk‛ of methamphetamine
out of a sack, weighed it at 1.5 grams, and tossed it to the
informant, who paid him with the money he had received from
officers. Police were at the scene and listening through a wire,
but Fretheim was not identified during the conversation with the
informant and the officers conducting the surveillance did not
see him. After the sale, the informant returned to Cedar City
where he immediately met with police. He described the
transaction and identified Fretheim as the person who sold him
the drugs.

¶3 Fretheim was charged with one count of distribution of or
arranging to distribute a controlled substance, a second degree
felony. See Utah Code Ann. § 58-37-8(1)(a)(ii), (b)(i) (LexisNexis
2012). At the preliminary hearing, a police officer testified about
the informant’s involvement in the drug transaction and stated
that the informant had identified Fretheim as the seller. Fretheim
objected, arguing that the officer’s testimony was inadmissible
hearsay. The magistrate overruled the objection, found probable
cause to believe that Fretheim committed the offense, and
proceeded to bind him over to the district court for trial.
Fretheim moved to quash the bindover, arguing that the officer’s
testimony was unreliable and did not satisfy any exception to
the hearsay rule. The trial court denied the motion and held that
the officer’s testimony bore sufficient ‚indicia of reliability‛ to be
admissible under rule 1102’s catchall exception to the hearsay

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State v. Fretheim

rule. See Utah R. Evid. 1102(a), (b)(9) (providing that ‚other
hearsay evidence with similar indicia of reliability, regardless of
admissibility at trial‛ is ‚admissible at criminal preliminary
examinations‛).

¶4 The confidential informant testified at Fretheim’s trial,
and the jury convicted Fretheim of the charged offense. In the
meantime, Fretheim had been convicted in another case. During
the sentencing hearing for both convictions, defense counsel
urged the court to impose concurrent sentences, citing
Fretheim’s willingness to ‚change his life‛ and ‚improve his
circumstances.‛ After noting that it had carefully reviewed
Fretheim’s presentence report (PSI), the court imposed a one-to-
fifteen-year sentence in this case to run consecutive to his
sentence in the other case.

¶5 Fretheim raises two issues on appeal. First, he contends
that the motion to quash should have been granted because the
court incorrectly relied on the officer’s hearsay testimony and
there was not enough additional evidence to meet the probable
cause standard required to bind him over for trial. Second,
Fretheim argues that the trial court abused its discretion by
failing ‚to indicate what factors, if any, it considered in
determining that the sentence be consecutive.‛ He maintains that
‚without some acknowledgment on the record that *the court+
had considered the codified factors,‛ ‚[i]t is impossible to know
if the court relied on irrelevant information to reach its
decision.‛ We consider each issue in turn.

I. The Bindover Ruling

¶6 Fretheim argues that the officer’s testimony at the
preliminary hearing was inadmissible because the State failed to
present ‚sufficient information about the *informant] to reach
the reliability requirement, including evidence as to [the
informant’s+ truthfulness and *his+ basis of . . . knowledge.‛ And

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State v. Fretheim

without the informant’s identification, Fretheim contends, there
was no other evidence from which the court could have found
probable cause that Fretheim committed a crime. We conclude
that any evidentiary error at the preliminary hearing became
moot when the jury found Fretheim guilty beyond a reasonable
doubt, so we do not address either the admissibility of the
officer’s testimony or the sufficiency of the evidence at the
preliminary hearing.

¶7 The Utah Supreme Court has held that ‚any flaw in a
bindover determination is necessarily ‘cured’ if the defendant is
later convicted beyond a reasonable doubt.‛ State v. Winfield,
2006 UT 4, ¶ 26, 128 P.3d 1171; see also Thomas v. State, 2002 UT
128, ¶ 7, 63 P.3d 672 (noting that errors in preliminary
proceedings are cured by a subsequent conviction at trial). This
is because any error in a probable cause determination ‚becomes
moot‛ once a defendant has been convicted under the ‚much
more stringent requirements of proof at trial,‛ where stronger
constitutional and evidentiary safeguards ‚have been employed
to protect the defendant.‛ State v. Schreuder, 712 P.2d 264, 272
(Utah 1985).

¶8 For example, in State v. Winfield, 2006 UT 4, 128 P.3d 1171,
the Utah Supreme Court held that a defendant’s sufficiency-of-
the-evidence challenge to a district court’s bindover
determination was mooted by his subsequent conviction at trial.
Id. ¶¶ 25–26. Similarly, in Thomas v. State, 2002 UT 128, 63 P.3d
672, the court rejected a probable-cause challenge to the validity
of an arrest warrant raised after the defendant’s conviction. Id.
¶¶ 2, 5, 7. The court noted that an ‚‘illegal arrest or detention
does not void a subsequent conviction,’‛ and explained that
compliance with the probable cause standard, whether in a
bindover proceeding or in the issuance of an arrest warrant, is
cured after a conviction because the State has subsequently been
held to a higher burden of proof at trial. Id. ¶ 7 (quoting Gerstein
v. Pugh, 420 U.S. 103, 119 (1975)); see also Schreuder, 712 P.2d at

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State v. Fretheim

272 (noting that a ‚temporary period of possibly wrongful
detention [before trial] is of minimal significance and does not
warrant reversal of an otherwise valid conviction‛). And more
recently, in State v. Hernandez, 2011 UT 70, 268 P.3d 882, our
supreme court noted that the failure to even ‚hold a preliminary
hearing is mooted by the entry of a guilty plea or finding of guilt
at trial.‛ Id. ¶ 29 n.3.

¶9 Here, Fretheim’s only objection to the bindover ruling
was that ‚the sole basis‛ for the trial court’s decision was the
officer’s hearsay testimony that a confidential informant had
identified Fretheim as the seller in a drug transaction. But at
trial, a jury unanimously found Fretheim guilty beyond a
reasonable doubt. As our supreme court has recognized, a
magistrate’s ‚probable cause‛ determination ‚becomes moot by
the time a defendant has been convicted because the much more
stringent requirements of proof at trial have been employed to
protect the defendant.‛ Schreuder, 712 P.2d at 272. We therefore
do not consider further Fretheim’s challenge to the bindover
ruling.

II. The Consecutive Sentence

¶10 Fretheim also argues that the trial court abused its
discretion by failing ‚to indicate what factors, if any, it
considered in determining that the sentence be consecutive.‛
(citing Utah Code Ann. § 76-3-401(2) (LexisNexis 2012)
(providing that before imposing a consecutive sentence, trial
courts ‚shall consider the gravity and circumstances of the
offenses, the number of victims, and the history, character, and
rehabilitative needs of the defendant‛)). The State responds that
the court ‚did consider all legally relevant factors because it
reviewed [Fretheim’s+ PSI before sentencing‛ and the PSI ‚more
than adequately addressed *Fretheim’s+ extensive criminal
history, multiple probation violations, and rehabilitation needs.‛
We agree with the State.

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State v. Fretheim

¶11 Trial courts have ‚‘wide latitude and discretion’‛ when
imposing a sentence. State v. Helms, 2002 UT 12, ¶ 8, 40 P.3d 626
(quoting State v. Woodland, 945 P.2d 665, 671 (Utah 1997)).
‚Generally, we will reverse a trial court’s sentencing decision
only if it is an abuse of the judge’s discretion.‛ Id. Failing ‚to
consider all legally relevant factors‛ before imposing a
consecutive sentence is such an abuse, id. (citation and internal
quotation marks omitted), but ‚judges have no obligation to
make findings of fact‛ on each statutory factor, State v. Lingmann,
2014 UT App 45, ¶ 34, 320 P.3d 1063. Rather, we will affirm a
sentencing decision even where the trial court ‚failed to make
findings on the record whenever it would be reasonable to
assume that the court actually made such findings.‛ Helms, 2002
UT 12, ¶ 11. For example, in Lingmann, we concluded that
because a presentence investigation report contained sufficient
information on each consecutive sentencing factor, the trial
court’s indication on the record that it had reviewed the
presentence investigation report was sufficient to demonstrate
that the court had adequately considered each factor. 2014 UT
App 45, ¶ 36.

¶12 Here, the court was required by statute to consider ‚the
gravity and circumstances of the offenses, the number of victims,
and the history, character, and rehabilitative needs of the
defendant‛ before imposing a consecutive sentence. See Utah
Code Ann. § 76-3-401(2). Our review of the record indicates that
the court adequately considered each factor. At the sentencing
hearing, the court stated that it had ‚read the amended
presentence investigation report‛ in detail. The PSI described
Fretheim’s ‚*e]xtensive criminal history,‛ including ‚*f]our prior
felonies, nine prior misdemeanors,‛ and repeated probation
violations between 2006 and 2010. The report indicated that
Fretheim has a ‚*l+ong and serious history of substance abuse,‛
‚a history of violence,‛ ‚limited contact with family members,‛
and associations with people who ‚have been involved in drug
use and . . . other criminal activity.‛ It also described the

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State v. Fretheim

circumstances of Fretheim’s offense, including the fact that there
were no victims (because the drug distribution was part of a
controlled buy), noted the presence of three aggravating
circumstances and no mitigating circumstances, and also
detailed Fretheim’s family background, education, employment,
and financial history. Finally, the report stated that Fretheim
‚was blatantly unwilling to cooperate in the PSI process‛ and
refused to provide a variety of requested information because he
‚felt that he was set-up.‛ Thus, the PSI contained ‚sufficient
information‛ for the court ‚to adequately consider *Fretheim’s+
history, character, and rehabilitative needs, as well as the gravity
and circumstances of the offenses and the number of victims,
and we can presume that [the trial court] did so.‛ See Lingmann,
2014 UT App 45, ¶ 36 (citation and internal quotation marks
omitted). In addition, the court heard from both prosecution and
defense at the sentencing hearing. We therefore conclude that
the court’s decision to impose a consecutive sentence was not an
abuse of discretion.

¶13 For the foregoing reasons, we affirm Fretheim’s
conviction and sentence.

_______________

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