State v. Alvarez

402 P.3d 191

Utah Ct. App.

2017

Check Treatment

STATE of Utah, Appellee, v. Francisco Javier ALVAREZ, Appellant.

No. 20160207-CA

Court of Appeals of Utah.

Filed August 10, 2017

2017 UT App 145

Sean D. Reyes, Salt Lake City and John J. Neilsen, Attorneys for Appellee. Joanna E. Landau, Christopher J. Jones and Marshall Thompson, Salt Lake City, Attorneys for Appellant. Judge Gregory K. Orme authored this Opinion, in which Jill M. Pohlman concurred. Judge J. Frederic Voros Jr. concurred in the result, with opinion.

fied that Sector 10 was a publicly traded company and both parties testified that the stock‘s current market price was five cents per share, the evidence in the record suggested the market for the stock was “thin” and thus raised questions as to whether the stock could be traded by either party for that amount. The trial court did not clearly err in implicitly finding more credible and relevant DeAvila‘s testimony about the company‘s current circumstances. DeAvila testified that Sector 10 claimed “substantial damage” in a lawsuit, but that because the company‘s attorneys “dropped the litigation,” Sector 10 was “now going to basically file [for] bankruptcy.” DeAvila further indicated that the attorneys’ withdrawal from the lawsuit and the company‘s resulting inability to pursue its case for damages meant that Sector 10 had no value. Brown disagrees with the trial court‘s reliance on this aspect of DeAvila‘s testimony and with its ultimate finding that the stock was worthless, but she has not shown that the trial court‘s valuation falls outside “the range of values established by all the [evidence].” See Morgan, 854 P.2d at 566 (alteration in original) (citation and internal quotation marks omitted); see also id. at 563 (“[E]valuation of the weight and credibility of testimony and evidence is a matter for the trier of fact.“).

¶ 25 Brown also cites the lack of expert evidence in this case and asserts that expert testimony is required if a court deviates from an open market price. But under Utah law, a knowledgeable owner generally “may testify as to the market value of property,” including in divorce cases, see Olson v. Olson, 2010 UT App 22, ¶ 27, 226 P.3d 751 (citation and internal quotation marks omitted), and Brown has not persuaded us to adopt an expert-testimony requirement when stock is at issue. In short, Brown has not shown that the trial court clearly erred in valuing the Sector 10 stock or otherwise exceeded its discretion in awarding that stock to DeAvila.

property between DeAvila and Brown. Accordingly, we affirm.

CONCLUSION

¶ 26 Brown has not demonstrated that the trial court exceeded its discretion in dividing property between DeAvila and Brown. Accordingly, we affirm.

Opinion

ORME, Judge:

¶ 1 Francisco Javier Alvarez pled guilty to aggravated sexual abuse of a child, a first degree felony. See Utah Code Ann. § 76-5-404.1(4), (5) (LexisNexis Supp. 2016). Alvarez appeals his sentence, arguing that the sentencing court abused its discretion when it imposed the presumptive sentence of fifteen years to life. We review sentencing decisions for an abuse of discretion, see State v. Neilson, 2017 UT App 7, ¶ 15, 391 P.3d 398, and will conclude that such an abuse occurred 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 in original) (citation and internal quotation marks omitted).

¶ 2 Aggravated sexual abuse of a child is punishable “by a term of imprisonment not less than 15 years and which may be for life.” Utah Code Ann. § 76-5-404.1(5)(a). The sentencing court may, however, impose one of two lesser sentences—six-to-life or ten-to-life—if the court finds that it would be “in the interests of justice.” Id. § 76-5-404.1(6). When considering whether a lesser sentence is in the interests of justice, the court must consider the “rehabilitative potential of individual defendants”² and the proportionality of the sentence in relation to the severity of the offense. LeBeau v. State, 2014 UT 39, ¶¶ 36-37, 337 P.3d 254. Moreover, the court should compare the sentence being imposed to “the sentences imposed for more and less serious crimes in order to ensure that a particular defendant‘s sentence is not arbitrary.” Id. 47.

¶ 3 Relying on State v. Jaramillo, 2016 UT App 70, 372 P.3d 34, Alvarez argues that remand is warranted. In Jaramillo, we remanded for resentencing because the Utah Supreme Court announced LeBeau‘s proportionality requirement after Jaramillo was sentenced. See id. ¶ 34. Thus, because the sentencing court had not been aware of LeBeau‘s proportionality requirement in sentencing Jaramillo, we remanded so that Jaramillo‘s sentence could “be reviewed through LeBeau‘s interests-of-justice analysis.” Id. ¶ 43.

¶ 4 That rationale does not apply to Alvarez, who was sentenced well after LeBeau was issued. “As a general rule, Utah courts presume that the [sentencing] court made all the necessary considerations when making a sentencing decision.” State v. Monzon, 2016 UT App 1, ¶ 21, 365 P.3d 1234 (citation and internal quotation marks omitted). “[W]e will not assume that the [sentencing] court‘s silence, by itself, presupposes that the court did not consider the proper factors as required by law.” State v. Helms, 2002 UT 12, ¶ 11, 40 P.3d 626. Because LeBeau and its proportionality requirement predated Alvarez‘s sentence, and because Alvarez has not demonstrated that our presumption of appropriate sentencing consideration is inapplicable,³ we assume that the sentencing court duly considered the proportionality of Alvarez‘s sentence.⁴

¶ 5 Moreover, while Alvarez did generally argue that “the interests of justice” required a lesser sentence, he did not invoke the proportionality rubric in making his argument. Had he done so, the sentencing court‘s proportionality analysis would likely have moved from the presumed to the expressed. Thus, he will not now be heard to argue that the sentencing court was remiss in not articulating its views on proportionality. And although the State does not argue that Alvarez failed to preserve his proportionality issue for appeal, we do not disagree with Judge Voros that the appeal could also be decided on that basis alone.

¶ 6 The remainder of Alvarez‘s argument 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. See State v. Bunker, 2015 UT App 255, ¶ 15, 361 P.3d 155.

¶ 7 We conclude that the sentencing court did not abuse its discretion in sentencing Alvarez. Accordingly, his sentence is affirmed.

VOROS, Judge (concurring in the result):

¶ 8 I concur in the result. I would affirm on the ground that Alvarez did not preserve at sentencing the proportionality claim he now asserts on appeal.

Notes

Judge J. Frederic Voros Jr. participated in this case as a member of the Utah Court of Appeals. He retired from the court before this decision issued.

The sentencing court expressly considered Alvarez‘s rehabilitative potential.

To combat the presumption, a defendant must ordinarily show that “an ambiguity of facts makes the assumption unreasonable,” that a “statute explicitly provides that written findings must be made,” or that “a prior case states that findings on an issue must be made.” .

We also note that requiring an automatic remand any time proportionality is not expressly considered, as Alvarez proposes, would contradict the longstanding rule that appellants must demonstrate prejudice. See Utah R. Crim. P. 30(a) (“Any error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded.“). In this context, Alvarez would need to show that his sentence would have been more favorable absent the claimed sentencing error.

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