State v. Post

2015 UT App 162

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
TYSON POST,
Defendant and Appellant.

Memorandum Decision
No. 20131152-CA
Filed June 25, 2015

Seventh District Court, Monticello Department
The Honorable Lyle R. Anderson
No. 131700064

Happy J. Morgan, Attorney for Appellant
Sean D. Reyes and Brett J. DelPorto, Attorneys
for Appellee

JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES STEPHEN L. ROTH and KATE A. TOOMEY concurred.

DAVIS, Judge:

¶1 Tyson Post asserts that the district court exceeded its
discretion in sentencing him. We affirm but remand for the
district court to make additional findings addressing Post’s
objections to the presentence investigation report (PSI).

¶2 Post argues that the district court abused its discretion by
not ordering that he receive a substance-abuse screening and
assessment and by sentencing him without resolving alleged
inaccuracies in his PSI. ‚The sentencing judge has broad
discretion in imposing [a] sentence within the statutory scope
provided by the legislature.‛ State v. Sotolongo, 2003 UT App 214,
¶ 3, 73 P.3d 991 (alteration in original) (citation and internal
quotation marks omitted). Thus, ‚[w]e will not overturn a
State v. Post

sentence unless it exceeds statutory or constitutional limits, the
judge failed to consider all the legally relevant factors, or the
actions of the judge were so inherently unfair as to constitute
abuse of discretion.‛ Id. (citations and internal quotation marks
omitted).

¶3 Post first asserts that the district court abused its
discretion by sentencing him without ordering a statutorily
required substance-abuse screening and assessment for the
purpose of determining whether he might participate in drug
court as an alternative to prison. When an offender has been
convicted of a felony, the court is required to order that the
offender

(a) participate in a [substance-abuse] screening
prior to sentencing;
(b) participate in an assessment prior to sentencing
if the screening indicates an assessment to be
appropriate; and
(c) participate in substance abuse treatment if:
(i) the assessment indicates treatment to be
appropriate;
(ii) the court finds treatment to be
appropriate for the offender; and
(iii) the court finds the offender to be an
appropriate candidate for community-based
supervision.

Utah Code Ann. § 77-18-1.1(2) (LexisNexis 2012). A screening is
‚a preliminary appraisal‛ to determine whether ‚the person is in
need of: (A) an assessment; or (B) an educational series.‛1 Id.

1. ‚‘Educational series’ means an educational series obtained at a
substance abuse program that is approved by the Division of
Substance Abuse and Mental Health in accordance with Section
(continued…)

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State v. Post

§ 41-6a-501(1)(f) (2014); see also id. § 77-18-1.1(1)(c) (2012). An
assessment is ‚an in-depth clinical interview with a licensed
mental health therapist‛ and is ‚used to determine if a person is
in need of: (A) substance abuse treatment that is obtained at a
substance abuse program; (B) an educational series; or (C) a
combination [of the two].‛ Id. § 41-6a-501(1)(a) (2014); see also id.
§ 77-18-1.1(1)(a) (2012). ‚The findings from any screening and
any assessment conducted under this section shall be part of the
*PSI+ submitted to the court before sentencing the offender.‛ Id.
§ 77-18-1.1(3).

¶4 Although Post requested that he be screened for drug
court at the sentencing hearing, he did not specifically raise the
argument he now asserts on appeal, namely, that the district
court was statutorily required to order a screening. Thus, his
argument is not preserved for appeal. See 438 Main St. v. Easy
Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (indicating that to
preserve an argument for appeal, the argument must be
‚specifically raised‛ ‚in such a way that the trial court has an
opportunity to rule on that issue‛ (citations and internal
quotation marks omitted)).

¶5 Nevertheless, Post requests that we review his argument
for plain error. To prevail on grounds of plain error, an appellant
must show that ‚(i) *a+n error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful, i.e.,
absent the error, there is a reasonable likelihood of a more
favorable outcome for the appellant.‛ State v. Dunn, 850 P.2d
1201, 1208 (Utah 1993).

¶6 Even assuming that the district court erred in failing to
order a screening, we cannot say that the error was obvious. The

(…continued)
62A-15-105‛ of the Utah Code. Utah Code Ann. § 41-6a-501(1)(d)
(LexisNexis 2014).

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State v. Post

PSI addressed Post’s substance abuse and indicated that he had
previously ‚received an alcohol and drug abuse assessment and
refused to return to receive further treatment.‛ From this, the
district court could have reasonably concluded that a screening
and assessment had already been conducted.2 Furthermore, Post
has failed to explain why the PSI itself, even without taking the
reported assessment into consideration, did not constitute a
‚screening‛ as defined in the statute. While an assessment must
be conducted by a licensed mental health therapist, the statute is
silent as to who may conduct a screening. Here, the PSI
investigator addressed Post’s substance-abuse history and
concluded that Post had ‚no desire to return for further
treatment‛ and that he ‚appear[ed] to underestimate the severity
of his alcohol use and the threat that he is to the people he is
around when he is under the influence.‛ The investigator
concluded that Post’s ‚lackadaisical attitude‛ about his
substance abuse, as well as his lack of ‚remorse for his actions in
the current offense,‛ made him unamenable to ‚supervision in a
less restrictive setting.‛ Post has failed to explain why this
screening, which appears to reject the need for a further
assessment, did not comply with the requirements of the statute.
Under the circumstances, we cannot conclude that the district
court plainly erred by declining to order that Post undergo
additional substance-abuse screening.3

2. The PSI contains no detail regarding the substance-abuse
assessment beyond Post’s own report that he had been
prescribed anti-anxiety medication, that he had stopped taking
the medication, and that he had ‚no desire to go back to the
doctor to obtain more.‛

3. Post also takes issue with the district court’s statement, ‚I
don’t think that having him be in drug court down here when he
has as much of his family and his history up in the Uintah Basin
is . . . going to be a practical solution to this situation.‛ Post
(continued…)

20131152-CA 4 2015 UT App 162
State v. Post

¶7 Post next asserts that the district court failed to follow
statutory procedures for evaluating alleged inaccuracies in the
PSI. When alleged inaccuracies in a PSI cannot be resolved with
the Department of Corrections, the district court is required to
‚make a determination of relevance and accuracy on the record.‛
Utah Code Ann. § 77-18-1(6)(a) (LexisNexis Supp. 2014). In
doing so, ‚the district court must do three things: first, consider
the objection raised; second, make findings on the record
regarding the accuracy of the information at issue; and third,
determine on the record the relevance of that information as it
relates to sentencing.‛ State v. Monroe, 2015 UT App 48, ¶ 6, 345
P.3d 755. ‚Whether the trial court properly complied with *its+
legal duty [to resolve inaccuracies in a PSI] is a question of law
that we review for correctness.‛ See State v. Veteto, 2000 UT 62,
¶ 13, 6 P.3d 1133.

¶8 At sentencing, Post challenged the PSI’s report of his
criminal history and its assertions that he becomes violent and
dangerous when intoxicated, that his employment history and
skills were limited, that he did not desire to receive drug
treatment, and that he did not desire to work. We do not
consider the district court’s resolution of these objections to have
fully complied with its duty to resolve alleged inaccuracies in
the PSI. Although the court did adequately address some of

(…continued)
argues that this was not a reasonable basis for denying him
access to drug court and that it suggests unconstitutional
discrimination against him based on the fact that he and his
family are Native Americans who have lived on an Indian
reservation. Post did not raise this objection in the district court,
and there is nothing in the district court’s statement to suggest
that its concern related to anything other than Post’s ability to
receive family support while participating in drug court. Thus,
we decline to consider this argument further.

20131152-CA 5 2015 UT App 162
State v. Post

Post’s objections, it gave short shrift to others. Additionally, the
court does not appear to have made any findings regarding the
relevance of the challenged information to its sentencing
decision.

¶9 With respect to Post’s objections to the PSI’s criminal
history assessment, the court’s accuracy findings are adequate.
The court addressed each of the misdemeanors identified in the
PSI and gave Post the opportunity to explain his view of the
charges and convictions. Although Post could have requested a
continuance to resolve the inconsistencies with the Department
of Corrections, see Utah Code Ann. § 77-18-1(6)(a), he instead
presented incomplete information regarding the charges,
indicating that he could not remember how most of the charges
were resolved. Based on court records indicating that Post had
been convicted of two misdemeanors in Cedar City and Post’s
testimony that he forfeited bail in a Nevada case in order to
avoid returning for court, the court found that ‚there are at least
two misdemeanor convictions[4] . . . [;] the one in Cedar City and
then the one in Mesquite, Nevada appear to be convictions.‛5
These findings adequately resolved Post’s challenge to the
accuracy of the criminal history.

¶10 On the other hand, the district court did not specifically
examine the other inaccuracies Post alleged and declined to give
Post the opportunity to refute the PSI’s determinations, simply
finding that the disputes had ‚to do with change of attitudes on
*Post’s+ part from the time he spoke to the [investigating] officer

4. This is consistent with the PSI’s report of two to four prior
misdemeanor convictions, which resulted in an assessment of
two points on the criminal history matrix.

5. Although the record from Cedar City indicated that Post had
been convicted of two misdemeanors, the district court referred
to only one Cedar City misdemeanor conviction in its findings.

20131152-CA 6 2015 UT App 162
State v. Post

until today.‛ This finding may have been adequate with respect
to the PSI’s determinations that Post was unwilling to work or
receive drug treatment, since these determinations were based
on the PSI’s subjective assessment of Post’s attitude at the time of
his interview.6 However, Post’s employment history and skills
and whether he has a tendency to become violent when
intoxicated cannot be so subjectively assessed. Thus, Post should
have been given an opportunity to explain to the district court
why these findings in the PSI were objectively inaccurate, and
the district court should have made explicit findings regarding
accuracy and relevance.

¶11 A district court’s failure to fully resolve a defendant’s
objections to a PSI does not necessarily require reversal of the
defendant’s sentence. See State v. Jaeger, 1999 UT 1, ¶ 45, 973 P.2d
404. If the defendant ‚does not contend that [the] error affected
his sentence, . . . the proper remedy is to remand [the] case to the
trial court with instructions that it expressly resolve [the
defendant’s+ objections‛ on the record in compliance with
section 77-18-1(6)(a) of the Utah Code.7 See id. Although Post
requests that we reverse his sentence, he fails to explain how

6. While we cannot say that the court’s finding was necessarily
inadequate with respect to these particular portions of the PSI,
the district court would not be remiss in addressing these
objections in greater detail on remand—particularly Post’s
assertion that the PSI investigator misinterpreted Post’s stated
disinterest in taking anti-anxiety medication as a disinterest in
participating in drug treatment.

7. Even where inaccuracies in a PSI do not affect a defendant’s
sentence, ‚it is necessary that *the d+efendant’s objections be
resolved on the record‛ ‚because the statements in [a
d+efendant’s PSI may be utilized in future settings, such as
parole hearings.‛ State v. Waterfield, 2011 UT App 27, ¶ 11, 248
P.3d 57.

20131152-CA 7 2015 UT App 162
State v. Post

resolution of the alleged errors in his favor might have affected
the outcome of his sentence.8 Cf. State v. Waterfield, 2011 UT App
27, ¶¶ 10–11, 248 P.3d 57 (remanding for the district court to
resolve alleged inaccuracies in a defendant’s PSI but affirming
the defendant’s sentence where the defendant inadequately
briefed his argument that he was prejudiced by the district
court’s failure to resolve the alleged inaccuracies). Thus, ‚we
remand for the limited purpose of resolving *Post’s+ objections to
the PSI that were not adequately addressed on the record by the
district court.‛ See id. ¶ 11. We otherwise affirm Post’s sentence.

8. Post does suggest that a finding that he was convicted of only
one misdemeanor offense or that his offenses were nonviolent
would put him in a lower sentencing matrix. However, the
district court found that Post had at least two misdemeanor
convictions, one of which—the Mesquite, Nevada conviction—
involved violence. Because the district court made adequate
findings regarding the accuracy of the PSI’s criminal history
report, Post has not demonstrated that he was prejudiced by any
alleged inaccuracies in the PSI.

20131152-CA 8 2015 UT App 162