State v. Wood

2018 UT App 98

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ANTHONY THOMAS WOOD,
Appellant.

Opinion
No. 20160478-CA
Filed June 1, 2018

Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 151907516
No. 151909225

Alexandra S. McCallum, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. ORME and DIANA HAGEN concurred.

POHLMAN, Judge:

¶1 Defendant Anthony Thomas Wood appeals his sentences
in this consolidated appeal from two separate cases. He argues
that the district court exceeded its discretion when it sentenced
him to prison rather than probation. He also argues that the
court exceeded its discretion by ordering the sentences in the
two cases to run consecutively. We affirm.

¶2 In August 2015, the State charged Wood with aggravated
kidnapping and aggravated robbery, both first degree felonies,
and aggravated assault, a second degree felony, based on events
that occurred in May 2014 (the Assault case). The victim (Victim)
in that case alleged that when she dropped Wood off after
State v. Wood

dinner one night, Wood took her keys and ran into his
apartment. Victim chased him inside, at which point Wood
“began striking her in the head and chok[ing] her.” Wood’s
girlfriend (Girlfriend) also joined in the assault. At one point
during the attack, Wood “produced a gun, held it to [Victim’s]
head and threatened to kill her.” Wood and Girlfriend then
“forced [Victim] to remain in a back bedroom” for several hours.
During that time, Wood and Girlfriend forced Victim to provide
information about her bank account so that they could withdraw
money from it. Eventually, after withdrawing money from
Victim’s bank account, Wood and Girlfriend let Victim take her
car and go.

¶3 In January 2016, the State charged Wood in a separate
case with five counts of possession of forged writing, all third
degree felonies, based on events that occurred in June 2015
(the Forgery case). The charges were supported by statements
that police had “located several counterfeit US bills” in Wood’s
bedroom. In addition, a cab driver stated that Wood had paid his
cab fare with a $100 counterfeit bill.

¶4 In March 2016, Wood pleaded guilty in both cases. For the
Assault case, Wood pleaded guilty to one count of aggravated
assault, a third degree felony, admitting that he “threatened the
use of a firearm while assaulting another individual.” For the
Forgery case, Wood pleaded guilty to two counts of possession
of forged writing, both third degree felonies, admitting that he
“possessed two counterfeit bills.”

¶5 The district court sentenced Wood on both cases in May
2016. In anticipation of sentencing, Adult Probation and Parole
(AP&P) prepared a presentence report (the PSR). The PSR
contained information about the factual circumstances
underlying each case as well as information specific to Wood,
such as his criminal history, his probation history, and other
factors relevant to a sentencing determination. AP&P noted that
Wood “expressed a desire for probation” but nonetheless

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State v. Wood

recommended that Wood be committed to prison. AP&P stated
that while Wood was “cooperative during his interview,” “the
circumstances surrounding the assault on [Victim] were
egregious.” It noted that Wood “demonstrated little remorse for
[Victim],” believing that his “only offense was ‘breaking
[Victim’s] heart.’” And it noted that after the assault, Wood
“continued to participate in criminal behavior,” which
persuaded AP&P that “increased sanctions . . . [were]
appropriate.”

¶6 Although Wood requested probation at sentencing, the
district court sentenced him to prison. The court ordered him to
serve zero to five years for the aggravated assault as well as zero
to five years for each count in the Forgery case. The court
ordered the sentences in the Forgery case to run concurrently,
but it ordered the sentences for the Assault case and the Forgery
case to run consecutively.

¶7 In rejecting Wood’s request for probation, the court
explained that “there are some offenses that involve facts and
circumstances that are disturbing enough . . . that prison is the
appropriate sentence,” and the court stated that “this [was] one
of those cases.” The court explained that Wood’s behavior in the
aggravated assault “essentially amount[ed] to torture [of Victim]
that extend[ed] over a significant period of time,” and it stated
that the crime was “bad enough that the tools . . . available to
[the court] in terms of imposing probation are really not enough
to capture the gravity of the crime.” In doing so, the court
recognized that Girlfriend was given probation for her
involvement in the assault. However, the court distinguished
Girlfriend’s circumstances, noting that Girlfriend had a
“different criminal history and a different subsequent pattern of
criminal behavior” from Wood and that Wood, not Girlfriend,
was “essentially the instigator” of the assault.

¶8 The court also explained why it imposed concurrent
sentences for each of the Forgery case counts but consecutive

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State v. Wood

sentences as between the Assault case and the Forgery case. The
court first reviewed the statutory factors it was required to
consider under Utah Code section 76-3-401 in deciding whether
to impose consecutive sentences. See Utah Code Ann. § 76-3-
401(2) (LexisNexis 2017) (explaining that “[i]n determining
whether state offenses are to run concurrently or consecutively,
the court shall consider the gravity and circumstances of the
offenses, the number of victims, and the history, character, and
rehabilitative needs of the defendant”). For the forgery counts,
the court explained that it imposed concurrent sentences
because, while “serious,” those counts were “lesser offenses
compared to the aggravated assault,” and they “occurred in a
relatively discrete period of time and appeared to arise from the
same pattern of poor decision making.”

¶9 The court then explained that the sentence for the
aggravated assault count “should be consecutive” to the Forgery
case in light of the “nature, gravity, and circumstances.” The
court stated that the assault was “really troublesome” and that
“it occurred at a different time and it involved a different type of
conduct than the forgery offenses.” The court also explained that
“the number of victims” supported running the sentences
consecutively—that there were two victims “when you put the
forgery charges together with the victim of the assault” and that
the victim of the assault “would be most severely traumatized
by what occurred.” The court acknowledged that while Wood’s
history suggested some leniency might be appropriate, “the
rehabilitative needs of the defendant and just the seriousness of
the crime . . . militate in favor of consecutive sentences.”

¶10 Wood appeals his sentences.

I. Probation Versus Prison

¶11 Wood first argues that the district court exceeded its
discretion by sentencing him to prison instead of probation. In
particular, he claims that the district court “failed to adequately

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State v. Wood

weigh his character, attitude, and rehabilitative needs.” For
example, he asserts that he expressed remorse and accepted
responsibility for his actions and that he is “amenable to
rehabilitation, particularly in light of his reconnection with
religion.” In addition, he asserts that “probation was proper” in
light of his limited criminal history and the fact that Girlfriend
“received a probationary sentence after engaging in similar
criminal activity.”

¶12 “The district court has wide latitude and discretion in
sentencing that will only be overturned in very narrow
circumstances.” State v. Legg, 2018 UT 12, ¶ 34 (quotation
simplified). This broad discretion extends to “the decision to
grant or deny probation.” See State v. Valdovinos, 2003 UT App
432, ¶ 14, 82 P.3d 1167. “While failure to consider all legally
relevant sentencing factors is an abuse of discretion, a sentencing
court is not required to weigh all the factors equally.” State v.
Sexton, 2016 UT App 238, ¶ 10, 391 P.3d 297 (quotation
simplified). “The fact that the [district] court assessed the
relevant factors differently than [a defendant] would have liked
does not indicate that it exceeded its discretion.” State v. Epling,
2011 UT App 229, ¶ 22, 262 P.3d 440. Indeed, “not all
aggravating and mitigating factors are equally important, and
one factor in mitigation or aggravation may weigh more than
several factors on the opposite scale.” State v. Cline, 2017 UT App
50, ¶ 7, 397 P.3d 652 (quotation simplified). “Ultimately, an
appellant can show an abuse of discretion in the district court’s
weighing of the relevant factors only by demonstrating that no
reasonable person would take the view taken by the sentencing
court.” Sexton, 2016 UT App 238, ¶ 11 (quotation simplified).

¶13 Wood has not demonstrated that “no reasonable person
would take the view taken by the sentencing court” in imposing
prison rather than probation. See id. (quotation simplified).
Instead, he attempts to show that the district court abused its
discretion by highlighting the factors he believes ought to have

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State v. Wood

weighed more heavily in favor of probation. But we are in no
position on appeal to gainsay the district court’s assessment of
the circumstances by reweighing the relevant sentencing factors.
See State v. Martin, 2017 UT 63, ¶ 76 (“On appellate review, it is
not our task to reweigh aggravating and mitigating factors or to
second-guess a district court’s sentencing determination.”); see
also State v. Killpack, 2008 UT 49, ¶ 58, 191 P.3d 17 (recognizing
that district courts “are best situated to weigh the many
intangibles of character, personality and attitude, of which the
cold record gives little inkling,” and stating that, as a result, “the
decision of whether to grant probation must of necessity rest
within the discretion of the judge who hears the case” (quotation
simplified)), abrogated on other grounds by State v. Lowther, 2017
UT 34, 398 P.3d 1032. Rather, unless the record “reveals a clear
abuse of discretion,” it is sufficient for our purposes that the
court determined it was appropriate to weigh the nature and
gravity of Wood’s offenses more heavily than factors that might
have favored leniency. See Martin, 2017 UT 63, ¶ 76.

¶14 And here, the record does not “reveal[] a clear abuse of
discretion.” See id. As the court appropriately noted, the
circumstances surrounding the assault were troubling. During
the assault, Wood beat and choked Victim, threatened to kill her
with the use of a firearm, and held her against her will for an
extended period of time. Indeed, the court characterized Wood’s
treatment of Victim as “torture that extend[ed] over a significant
period of time.” Given these circumstances, the court acted well
within its discretion when it determined that the circumstances
surrounding the aggravated assault were “bad enough” to
render the “tools . . . available to [the court] in terms of imposing
probation” inadequate to “capture the gravity of the crime.”

¶15 Likewise, we do not see fault in the court’s assessment
that Wood’s sentence was not unfair when compared to
Girlfriend’s. The court noted that Girlfriend’s criminal history
was different from Wood’s and that Wood, not Girlfriend, was

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State v. Wood

the instigator of the assault. Wood has not shown that these
differences were unsupported by the record or that it was
improper to otherwise rely on them in sentencing him.

II. Consecutive Sentences

¶16 Wood next argues that the district court exceeded its
discretion in ordering that the sentences in the Forgery case and
the Assault case run consecutive to one another. He contends
that the court “failed to give adequate weight to certain
mitigating circumstances, including [his] criminal history,
character, and prospects for rehabilitation.” And he asserts that
even if his crimes were “very serious, the mitigating factors
weighed in favor of concurrent sentences” for all his convictions.
(Quotation simplified.)

¶17 However, Wood concedes that he did not request
concurrent sentences below and that this issue is therefore not
preserved. He asks that we review this issue for plain error or
ineffective assistance of counsel. Wood must therefore
demonstrate either that the district court plainly erred by
imposing consecutive sentences or that his counsel’s deficient
performance in failing to request concurrent sentences was
harmful. See State v. Martinez-Castellanos, 2017 UT App 13, ¶ 28,
389 P.3d 432 (“To succeed on his plain error claim, [a defendant]
must demonstrate that an error occurred, the error was or
should have been obvious, and the error was prejudicial.”
(quotation simplified)), cert. granted, 400 P.3d 1045 (Utah 2017);
id. (“To establish his claim of ineffective assistance of counsel, [a
defendant] must show that his counsel’s performance was
deficient and that the deficient performance prejudiced the
defense.” (quotation simplified)).

¶18 The court imposed consecutive sentences by considering
the required factors under Utah Code section 76-3-401(2). See
Utah Code Ann. § 76-3-401(2) (LexisNexis 2017) (explaining that
“[i]n determining whether state offenses are to run concurrently

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State v. Wood

or consecutively, the court shall consider the gravity and
circumstances of the offenses, the number of victims, and the
history, character, and rehabilitative needs of the defendant”).
The court determined that “the nature, gravity, and
circumstances of the offenses” simply outweighed the factors
that might have suggested leniency. And while Wood’s criminal
history might have favored leniency, the court concluded that
“the rehabilitative needs of the defendant” and “the seriousness
of the crime” made consecutive sentences appropriate.

¶19 Wood has not demonstrated that it was error—let alone
obvious error—for the court to weigh the sentencing factors
under Utah Code section 76-3-401 as it did. Wood challenges the
court’s weighing only by contending that certain mitigating
factors ought to have outweighed the aggravating circumstances
in favor of concurrent sentences. However, as we explained
above, a sentencing court has “wide discretion in sentencing
defendants,” State v. Sexton, 2016 UT App 238, ¶ 10, 391 P.3d 297,
and a defendant cannot meet his burden of persuasion by simply
disagreeing with the outcome, 1 see State v. Epling, 2011 UT App
229, ¶ 22, 262 P.3d 440.

1. The case Wood relies most heavily on, State v. Galli, 967 P.2d
930 (Utah 1998), does not dictate a different result. First, Galli
was decided during a time when there was a legislated policy
preference for concurrent sentences over consecutive sentences;
indeed, the Galli court specifically noted the policy preference in
rendering its decision. See id. at 938; see also State v. Gray, 2016 UT
App 87, ¶ 27, 372 P.3d 715 (discussing the legislated policy
change away from favoring concurrent sentences after Galli
issued). Second, the sentencing challenge in Galli was preserved
and therefore reviewed on its merits, not under the heightened
burden inherent in a plain error or an ineffective assistance of
counsel review. See Galli, 967 P.2d at 938. Finally, while Wood
(continued…)

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State v. Wood

¶20 Next, even assuming that Wood’s counsel should have
asked the court to impose concurrent sentences, Wood has not
demonstrated that the failure to do so was prejudicial. Instead,
he contends that had counsel asked for concurrent sentences, the
court would have determined that his history, character, and
rehabilitative needs outweighed the aggravating factors and
would have ordered concurrent sentences. But there is no
support for this contention in the record. Indeed, the court
expressly addressed and considered the exact factors Wood
points to on appeal. For example, the court stated that his
criminal history suggested leniency might be appropriate but
ultimately concluded that “the nature, gravity, and
circumstances of the offenses” weighed in favor of consecutive
sentences. Wood has therefore not established that, had his
counsel requested concurrent sentencing on the basis of certain
mitigating factors, the result would have been more favorable to
him.

¶21 In sum, Wood has not demonstrated that the district court
exceeded its discretion in sentencing him to prison rather than
probation. Wood also has not demonstrated that the court
exceeded its discretion in imposing consecutive rather than
concurrent sentences as between the Assault case and the
Forgery case. Accordingly, we affirm.

(…continued)
has attempted to argue that the circumstances between his case
and Galli’s are similar, they are not identical, and he has not
shown how, given those differences, it was plain error not to
equate his case to Galli.

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