State v. Akers, 438 P.3d 70

Background

Akers (California resident) communicated with an undercover agent posing as a 13‑year‑old and arranged to meet for sex; he admitted sending explicit messages and images.
Arrest at the meeting: officers found a handgun, a pipe with methamphetamine, lubricant, and THC‑infused gummy worms in Akers’s vehicle; Akers admitted drug use while driving.
Plea agreement: Akers pleaded guilty to enticing a minor (2nd‑deg felony), dealing harmful materials to a minor (3rd‑deg felony), and possession of a firearm by a restricted person (3rd‑deg felony); six other counts—including possession of the THC gummies—were dismissed.
The PSIR mentioned the gun, meth pipe, and “marijuana gummy” worms and recommended 105 days plus probation. Defense counsel told the court the PSIR contained no errors.
At sentencing the State urged deviation based on the gun, meth, and THC gummies; the court sentenced to 1–15 years (enticement) and concurrent shorter terms, explaining the gun and THC gummies (and meth) made this case unusually dangerous.

Issues

Issue	State's Argument	Akers' Argument	Held
Whether the district court abused its discretion by relying on PSIR information about THC gummy worms when sentencing	The court permissibly relied on the PSIR and surrounding facts (gun, meth, gummies) as relevant to danger and intent	The gummy‑worm info was irrelevant/unreliable because the possession charge was dismissed and Akers hadn’t pled guilty to it	No abuse of discretion; info was reliably documented and relevant to enticement and weapon possession sentence
Whether the district court had a duty to make on‑the‑record findings about accuracy/relevance after defense objection	Court must resolve unresolved PSIR objections on the record if timely raised	Akers contends the court failed this statutory duty and should have remanded	Objection was waived because defense counsel affirmed PSIR accuracy at sentencing; no duty to hold a hearing
Whether the THC gummies were relevant to the firearm‑by‑restricted‑person charge	State: THC establishes unlawful possession of a Schedule I substance, supporting restricted‑person status and relevance to gun charge	Akers: he lawfully had medical THC in California, so gummies shouldn’t be used against him	Relevant: Utah law treats THC as Schedule I; even medicinal status in CA didn’t negate illegality in Utah for sentencing purposes
Whether counsel was ineffective for not objecting to PSIR inclusion of the gummy info	N/A	Counsel erred by affirming PSIR and failing to challenge the gummy reference before sentencing	Not ineffective: an objection would have been futile because the information was accurate and relevant, so declining to object was reasonable

Key Cases Cited

State v. Howell, 707 P.2d 115 (Utah 1985) (sentencing must be based on reasonably reliable and relevant information)
State v. Moa, 282 P.3d 985 (Utah 2012) (defendant bears burden to show sentencing relied on unreliable or irrelevant information)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong ineffective‑assistance standard)
Lafferty v. State, 175 P.3d 530 (Utah 2007) (Sixth Amendment right to effective counsel)
State v. Maestas, 299 P.3d 892 (Utah 2012) (sentencing body may consider evidence beyond conviction)