State v. Irey

2017 UT App 178

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MICHAEL SHAUN IREY,
Appellant.

Per Curiam Opinion
No. 20160815-CA
Filed September 21, 2017

Fourth District Court, Provo Department
The Honorable Samuel D. McVey
No. 161401074

Emily Adams, Attorney for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee

Before JUDGES GREGORY K. ORME, JILL M. POHLMAN, and DIANA
HAGEN.

PER CURIAM:

¶1 Appellant Michael Shaun Irey appeals his sentence to
concurrent prison terms of five-years-to-life on his conviction for
operation or possession of a clandestine laboratory, a first degree
felony, zero-to-five years on his conviction for distribution of a
controlled substance, a third degree felony, and zero-to-365 days
on his conviction for attempted aggravated assault, a class A
misdemeanor.

¶2 We review sentencing decisions for an abuse of discretion,
State v. Neilson, 2017 UT App 7, ¶ 15, 391 P.3d 398, and we will
find abuse only “if it can be said that no reasonable [person]
would take the view adopted by the [sentencing] court,” State v.
Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d 1167 (first alteration
State v. Irey

in original) (citation and internal quotation marks omitted). A
district court has broad discretion in deciding whether to order
probation, because the “granting or withholding of probation
involves considering intangibles of character, personality and
attitude.” State v. Rhodes, 818 P.2d 1048, 1049 (Utah Ct. App.
1991) (citation and internal quotation marks omitted). “The
defendant is not entitled to probation, but rather the court is
empowered to place the defendant on probation if it thinks that
will best serve the ends of justice and is compatible with the
public interest.” Id. at 1051.

¶3 Irey raises two claims on appeal. First, he contends that
the district court failed to satisfy its statutory obligation under
Utah Code section 77-18-1(6)(a) to resolve alleged inaccuracies in
the presentence investigation report (PSI). See Utah Code Ann.
§ 77-18-1(6)(a) (LexisNexis Supp. 2016). Second, he contends that
the district court abused its discretion in sentencing him to
prison rather than granting him probation. The State concedes
that the district court failed to resolve alleged inaccuracies in the
PSI and that this case should be remanded for the limited
purpose of resolving the alleged inaccuracies. However, the
State also contends that Irey’s sentence should be affirmed
because the inaccuracies in need of correction were brought to
the district court’s attention at the time of sentencing.

¶4 At sentencing, Irey’s counsel noted that the PSI
incorrectly stated that Irey had an extensive history of substance
abuse related arrests. Defense counsel also claimed that the PSI
incorrectly stated that Irey had three probations that were
terminated unsuccessfully, while elsewhere stating that Irey had
“no history of previous supervised probation on record as an
adult.” The PSI included no statements regarding the duration
or outcome of any juvenile probation. Defense counsel also took
issue with the PSI’s assessment of Irey’s attitude and lack of
remorse. The district court asked if Irey wanted a new PSI
“because there are obviously a couple of errors in here.”
However, defense counsel declined, asking to “go forward with
this report given the fact that [counsel had] made the

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State v. Irey

corrections.” The State also agreed on the record that the score
for Irey’s criminal history in the sentencing recommendation
should be reduced from “one” to “zero.”

¶5 “Whether the trial court properly complied with a legal
duty to resolve on the record the accuracy of contested
information in sentencing reports is a question of law that we
review for correctness.” State v. Samulski, 2016 UT App 226, ¶ 9,
387 P.3d 595 (citation and internal quotation marks omitted). The
State agrees that this case should be remanded for the limited
purpose of resolving alleged inaccuracies in the PSI. While the
district court considered and acknowledged Irey’s objections at
sentencing, the district court did not indicate on the record its
determinations of accuracy and relevance. Because “the PSI will
follow [Irey] through the justice system . . . it is important to
make appropriate corrections to the report.” State v. Monroe, 2015
UT App 48, ¶ 10, 345 P.3d 755. Accordingly, a limited remand is
necessary to allow the district court to resolve that issue.

¶6 Although we agree that Irey’s objections were not
adequately resolved on the record, we conclude that the district
court properly considered the objections before it sentenced Irey.
See id. ¶ 8 (“We are not convinced that the district court’s failure
to resolve Defendant’s objections requires reversal and
resentencing.”). The record reflects that the district court
“accepted the general accuracy of [the] corrections for purposes
of imposing sentence.” Id. ¶ 9. There is no indication in the
record that the district court relied on the allegedly inaccurate
information at sentencing. Furthermore, Irey does not
specifically argue that the inaccuracies in the PSI prejudiced him
in sentencing, although Irey does argue that this court should
not affirm his sentence on other grounds.

¶7 The district court identified two aggravating
circumstances: unusually extensive property damage—in the
approximate amount of $90,000—as a result of a fire caused by
Irey’s operation of a clandestine lab and Irey’s threatening a
potential drug purchaser with a gun. The district court identified

20160815-CA 3 2017 UT App 178
State v. Irey

the mitigating circumstance that Irey was a fairly youthful
offender. Based upon the information before it, including the
inaccuracies in the PSI brought to the court’s attention, the
district court concluded that Irey was not an appropriate
candidate for probation.

¶8 Irey argues that the district court abused its discretion by
failing to adequately weigh aggravating and mitigating
circumstances.1 A defendant in a criminal case “is not entitled to
probation.” State v. Rhodes, 818 P.2d 1048, 1051 (Utah Ct. App.
1991). An appellate court will not overturn the denial of
probation unless it is “clear that the actions of the judge were so
inherently unfair as to constitute an abuse of discretion.” Id.
(emphasis omitted) (citation and internal quotation marks
omitted). Irey has not demonstrated that the district court’s
decision to sentence him to the statutory prison term was
inherently unfair. His argument essentially “amounts to a
disagreement with how the sentencing court weighed
aggravating and mitigating factors. As we have previously
stated, this is insufficient to demonstrate an abuse of discretion.”
State v. Alvarez, 2017 UT App 145, ¶ 6.

¶9 We remand for the limited purpose of resolving Irey’s
objections to the PSI and affirm in all other respects. See Samulski,
2016 UT App 226, ¶ 24.

1. Irey’s reliance on State v. Moreno, 2005 UT App 200, 113 P.3d
992, for the proposition that the sentencing court was required to
state on the record how it weighed aggravating and mitigating
circumstances is misplaced. Moreno addressed a statutory
requirement to state the rationale for imposing the lesser or
greater of three statutory minimum mandatory terms prescribed
by statute for the offense involved in that case. Id. ¶ 9. That
situation is not present in Irey’s case.

20160815-CA 4 2017 UT App 178