State v. Bunker

2015 UT App **

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JESS AMOS BUNKER,
Appellant.

Memorandum Decision
No. 20140845-CA
Filed **

Fourth District Court, Provo Department
The Honorable Claudia Laycock
No. 091400044

Douglas J. Thompson, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee

JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and STEPHEN L. ROTH
concurred.

DAVIS, Judge:

¶1 Jess Amos Bunker appeals from his sentences for
convictions of four counts of forcible sexual abuse, second
degree felonies, and one count of attempted bail jumping, a class
A misdemeanor. We affirm.

¶2 “Because trial courts are afforded wide latitude in
sentencing, a court’s sentencing decision is reviewed for an
abuse of discretion.” State v. Epling, 2011 UT App 229, ¶ 8, 262
P.3d 440 (citations and internal quotation marks omitted). “A
court exceeds its discretion if it . . . fails to consider all legally
relevant factors.” Id. Bunker asserts that the trial court exceeded
its discretion by sentencing him to prison rather than placing
State v. Bunker

him on probation and by imposing consecutive sentences,
because the court failed to make explicit findings with respect to
a number of legally relevant factors,1 namely, “his lack of
criminal history including a distinguished military career, his
psychosexual evaluation and risk assessment, and his access to
support and treatment.” 2

¶3 It is the defendant’s burden to demonstrate that the trial
court failed to properly consider legally relevant factors. State v.
Helms, 2002 UT 12, ¶ 16, 40 P.3d 626. A defendant cannot meet
this burden by merely pointing to a lack of written findings or
the existence of mitigating circumstances. See id. ¶¶ 10–12, 16.
“Neither our case law nor our statutes require a trial court to
make specific findings of fact in a sentencing order.”3 Id. ¶ 12.

1. We assume without deciding that the factors identified by
Bunker are legally relevant.

2. The State asserts that Bunker’s argument on appeal is
unpreserved because he failed to present it “to the trial court in
such a way that the trial court [had] an opportunity to rule” on
it. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801
(citation and internal quotation marks omitted). We tend to
agree but nevertheless elect to address Bunker’s argument as
though it were preserved. See generally Patterson v. Patterson, 2011
UT 68, ¶ 13, 266 P.3d 828 (“Our preservation requirement is self-
imposed and is therefore one of prudence rather than
jurisdiction. Consequently, we exercise wide discretion when
deciding whether to entertain or reject matters that are first
raised on appeal.”).

3. Bunker cites State v. Moreno, 2005 UT App 200, 113 P.3d 992,
for the proposition that a “trial court is charged with identifying,
on the record, the aggravating and mitigating circumstances that
affect its sentencing decision.” See id. ¶ 10. However, Moreno
dealt specifically with a sentencing decision that deviated from a
(continued…)

20140845-CA 2 2015 UT App **
State v. Bunker

Indeed, “the trial court’s silence, by itself,” does not demonstrate
that “the court did not consider the proper factors as required by
law.” Id. ¶ 11. Therefore, “as a general rule this court upholds
the trial court even if it failed to make findings on the record
whenever it would be reasonable to assume that the court
actually made such findings.” Id. (citation and internal quotation
marks omitted). If the record shows that the trial court has
reviewed information regarding the relevant legal factors, we
can infer that the trial court adequately considered those factors.
See id. ¶ 13.

¶4 It is clear from the record that information regarding all
the factors Bunker claims the trial court failed to consider was
presented to and reviewed by the trial court. At the beginning of
the sentencing hearing, the court indicated that it had read the
pre-sentence investigation report, which included information
regarding Bunker’s military service and criminal record; the
psychosexual evaluation, which indicated that Bunker had a low
risk of reoffending; and two documents outlining Bunker’s
military experience. Furthermore, the trial court heard from one
of Bunker’s family members, who indicated that she and two of
Bunker’s aunts were willing to help him pay for sex-offender
treatment. Finally, at the hearing, defense counsel addressed all

(…continued)
presumptive mandatory minimum sentence. See id. ¶ 9. In that
particular context, the court was bound by statute to make
findings on the record before sentencing the defendant to a
greater or lesser term. See id. ¶¶ 9–10. See generally State v. Helms,
2002 UT 12, ¶ 11, 40 P.3d 626 (indicating that explicit findings
are necessary “where (1) an ambiguity of facts makes [an
assumption that the trial court actually made the findings]
unreasonable, (2) a statute explicitly provides that written
findings must be made, or (3) a prior case states that findings on
an issue must be made”).

20140845-CA 3 2015 UT App **
State v. Bunker

of the issues Bunker now claims the trial court failed to consider.
Because the record indicates that the trial court was aware of this
information, we have no reason to conclude that the trial court
did not consider it in its sentencing decision.

¶5 Thus, Bunker’s argument comes down to a disagreement
with the trial court’s weighing of the relevant sentencing factors.
However, “[t]he fact that the trial court assessed the relevant
factors differently than [Bunker] would have liked does not
indicate that it exceeded its discretion,” see Epling, 2011 UT App
229, ¶ 22, and we cannot say “that no reasonable [person] would
take the view adopted by the trial court,” see State v. Valdovinos,
2003 UT App 432, ¶ 14, 82 P.3d 1167 (alteration in original)
(citation and internal quotation marks omitted).

¶6 Because the record indicates that the trial court
considered Bunker’s military record, his criminal history, his
access to family support and treatment, and the psychosexual
evaluation’s risk assessment, Bunker has not carried his burden
to show that the trial court failed to consider legally relevant
factors in its sentencing determination. And Bunker has
otherwise failed to demonstrate that the trial court exceeded its
discretion in sentencing him. Accordingly, we affirm.

20140845-CA 4 2015 UT App **