Case Information
*1 Before J UDGES G REGORY K. O RME , J ILL M. P OHLMAN , and D IANA
H AGEN .
PER CURIAM: Appellant Michael Shaun Irey appeals his sentence to
concurrent prison terms of five-years-to-lifе 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. We review sentencing decisions for an abuse of discretion,
State v. Neilson
,
the district court failed to satisfy its statutory obligation under
Utah Code seсtion 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 sеntence should be affirmed
because the inaccuracies in need of correction were brought to
the district court’s аttention at the time of sentencing.
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 рrobations that were
terminated unsuccessfully, while elsewhere stating that Irey had
“no history of previous supervised probation оn record as an
adult.” The PSI included no statements regarding the duration
or outcome of any juvenile probation. Defense сounsel 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 forwаrd with
this report given the fact that [counsel had] made the
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
,
circumstances: unusuаlly 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 the mitigating circumstancе 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. Irey argues thаt the district court abused its discretion by
failing to adequately weigh aggravating and mitigating
circumstances.
[1]
A defendant in a criminal casе “is not entitled to
probation.”
State v. Rhodes
1991). An appellate court will not overturn the denial of
probation unless it is “clear that the aсtions 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 unfаir. 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
,
objections to the PSI and affirm in all other respects.
See Samulski
1. Irey’s reliance on
State v. Moreno
,