State v. Lebeau

proof applies evidentiary dard at an hear-

ing. abeyance Although plea is not agree Layton probation,

identical to we with

City between the the similarities two

predominate. And we conclude that these sufficiently support applying

similarities

"preponderance of the evidence" standard of

proof plea abeyance evidentiary to a hear-

ing.

Conclusion prosecution

1 52 We hold that the need not

provide proof subsequent of a conviction to failure comply

establish defendant's with

a "no violations of law" condition. Further-

more, applicable we conclude that the burden proof establishing a defendant's failure comply plea abeyance with a condition "preponderance

is the of the evidence" stan- Accordingly,

dard. affirm we the court of

appeals and remand the case to the district prosecution

court to determine whether prove by preponderance

can of the evi-

dence that Mr. Stevenson failed to substan-

tially comply plea with the condition in his abeyance agreement that he commit no viola- law., may

tions The district court exercise making

its discretion in this determination

either holding evidentiary hearing rely-

ing on existing record.

2014 UT 39 LeBEAU, Petitioner,

Andrew Utah, Respondent.

STATE

No. 20120829.

Supreme Court of Utah.

Sept. possibility parole following

out Mr. aggravated kidnap LeBeau's conviction for pursuant ping to Utah Code section 76-5- from Mr. LeBeau's conviction stems dispute triggered domestic Mr. LeBeau's suspicion then-girlfriend, Stephanie, that his engaged was in an affair with another man. trial, aggra At Mr. LeBeau was convicted of assault, kidnapping, aggravated vated cruelty to an animal.1 The district court imposed possi a sentence of life without the (LWOP) bility parole aggravated for the conviction, which was to run con secutively to Mr. LeBeau's lesser sentences for the other convictions. unsuccessfully challenged Mr. LeBeau his sentence of LWOP before the court of appeals. argues He now the court of appeals erred it affirmed the district imposition court's of LWOP because the dis- properly trict court failed to consider wheth- justice er the interests of warranted a lesser aggravated sentence as allowed for Utah's kidnapping statute. Because we conclude improperly applied that the district court sentencing provisions of section 76-5-302 of Code, the Utah we reverse Mr. LeBeau's sentence of LWOP remand for new sen- tencing. BACKGROUND Watt, Enniss, Brittany Joan C. D. Salt early T In Stepha- Mr. LeBeau and City, petitioner. Lake living together, nie were expe- but were Gen., Reyes, Att'y D. Sean Jeanne B. In- riencing relationship. trouble in their Ste- Gen., ouye, Att'y City, Asst. Salt Lake phanie had moved out of their shared home

respondent. and, period returning for a of time before LeBeau, according to Mr. had been unfaith- opinion Justice PARRISH 'authored the during relationship. Stephanie ful Both Court, in which Chief Justice struggled drug and Mr. LeBeau with addic- DURRANT, Associate Chief Justice early February, tion. In Stephanie moved NEHRING, joined. and Justice DURHAM couple's out of the shared bedroom but con- LEE tinued to live in dissenting opinion. Justice filed a the house. couple acquainted T 4 The was with a man PARRISH, opinion

Justice of the court: Mark, they occasionally named from whom purchased drugs. February Mr. INTRODUCTION began suspect Stephanie LeBeau to was certiorari, T1 petitioner having February On Andrew Le- an affair with Mark. On Beau Stephanie spent asks us to consider whether the court the afternoon and eve- appeals affirming ning repeatedly the district with Mark. Mr. LeBeau erred court's Stephanie messages, of a sentence of life with- called and sent her text trial, pled guilty respond signal stop. 1. Prior to Mr. LeBeau also to failure to to an to officer's Stephanie re- ignored him. When charged but she The State Mr. LeBeau with T9 aggravated kidnapping based on the serious between 10:80 home sometime turned suffered, attempted bodily injury Stephanie angrily con- night, Mr. LeBeau 11:00 that assault, murder, aggravated failure re- Ste- where she had been. fronted her about signal stop, and cruel- spond to an officer's vio- that Mr. LeBeau became phanie testified guilty ty pled an animal. Mr. LeBeau explain where she refused to lent when she respond signal officer's failure to to an choking began hitting and her. been and had by jury aggravated kid- was convicted escalated, Mr. Le- argument T5 As the assault, cruelty napping, accompany him to Stephanie to Beau forced Though argued the State at trial animal. he threatened to bind her garage, where intentionally crashed that Mr. LeBeau into to behave vio- tape duct and continued with kill attempt Stephanie, Mark's truck in an to dog in lently. placed LeBeau his Mr. Mr. LeBeau claimed the collision occurred forcing Stephanie's car before back seat trying keep while he was distracted Ste- seat, telling Stephanie get into the front jumping phanie from out of the car. The they going for a "fast ride." Mr. her were jury acquitted attempted LeBeau of Mr. got and LeBeau then into the driver's seat murder. began Mark's house. to drive toward {10 sentencing hearing, At Mr. LeBeau's drove, As Mr. LeBeau he attracted the T6 the court determined that Sergeant Rapela of the attention of Marcelas by matrices created the Utah Department. Sergeant Rape- Midvale Police applicable Commission were not to Mr. Le- car, couple's ultimately began la to follow the Beau's case because Utah's kid- lights signaling stop Mr. LeBeau to with and napping statute created "a minimum manda- Stephanie repeated- testified that she siren. tory type As sentence." a result of this ly pull asked Mr. LeBeau to over. Rather determination, began pre- the court with a stopping, Mr. LeBeau continued toward than sumptive pro- sentence of and then LWOP initially Mr. LeBeau turned Mark's house. ceeded to consider whether balance of heading wrong in the onto Mark's street aggravating mitigating and factors warranted around, turning car Mr. direction. While a reduction Mr. LeBeau's sentence to one nearly Sergeant Rape- into LeBeau crashed statutorily allowed lesser sentences. patrol rapidly car and toward la's accelerated aggravating The court identified two factors Mark's house. First, it found Mr. on the record. Le- accelerated, Stephanie T7 As the car accept responsi- Beau's continued refusal attempt opened passenger door in an bility for his actions was an fac- Wilson, jump Second, from the car. Officer David expressed tor. the court concern injuries Stephanie suffered Sergeant Rapela, about the serious who had arrived to assist Stephanie's dragging along observed foot as a result of Mr. LeBeau's conduct. road as the car accelerated. As the car considered, reject- T 11 The court then and approximately raced down Mark's street at ed, mitigating several factors raised Mr. hour, sixty per with miles collided Mark's First, LeBeau. Mr. LeBeau claimed to have truck, box-style parked which was at the end strong provocation acted under a because he of the street. Stephanie having believed was an affair with rejected mitigating Mark. The court this fac- Stephanie was thrown from the car on tor, stating, present- he "There was no evidence impact. Officer Wilson testified that ob- body pas- Stephanie's served ricochet off the [Stephanie] having ed that was an affair. senger-side occurred. There was no evidence that she was involved door as the collision Second, injuries, relationship." Mr. Le- Stephanie suffered extensive includ- a sexual socket, femur, good employment eye fractured Beau claimed to have a a broken ties, arm, family history strong both of which pelvis, fractured broken and shattered potential. The court dog injured was also indicate rehabilitative ankle. Mr. LeBeau's rejected relating LeBeau's claim to his required surgery. Mr. Le- Mr. the crash any significant injuries. Beau did not suffer history, stating, "You were un- employment LeBeau, employed According at the time of this I incident. to Mr. the district court you say (1) excep don't know how can that was failing abused its discretion to consider tionally good employment." Similarly, mitigating as a factor that Mr. LeBeau acted court to consider Mr. fami , refused LeBeau's (2) provocation, failing give under ade ly mitigating factor Mr. quate ties as because weight family to Mr. support LeBeau's employment history, failing to credit LeBeau had not "seen mother or ... [his] to Mr. relatively prior years LeBeau with his minor at the time came sister Finally, testify at Mr. LeBeau trial." history, criminal imposing LWOP period claimed that he had an extended of without proper consideration of the role of prior arrest-free time to this incident. The the Board of Pardons and Parole in evaluat rejected court factor because ing the prospects rehabilitative of offenders. ¶¶ Lebeau, 13, 28, 30, App outstanding 2012 UT Mr. LeBeau had an arrest war P.3d 1. had using rant Alabama and admitted to illegal drugs during period. that time The 114 The appeals rejected court of Mr. court found that the fact that Mr. LeBeau arguments upheld LeBeau's his LWOP for, of, had not been arrested nor convicted appeals sentence. Id. 137. The court found years prior an offense for several to this "expressly that the district court considered necessarily incident did not mean that Mr. all of mitigating [Mr. LeBeau's] evidence" abiding. LeBeau had been law The court and that Mr. LeBeau had "demonstrated no thus refused to consider Mr. LeBeau's rela disagreement more than his with how the tively history mitigating minor eriminal a weighed mitigating court factors." Id. factor.2 Additionally, appeals 129. court rea weighing 112 After aggravating and soned that Mr. LeBeau's LWOP sentence circumstances, mitigating the district court presumptive was the prescribed by sentence aggravating found that cireumstances was, therefore, Legislature appropri and

were "substantial" and the mitigating ciream- ¶¶ ate. Id. 34-36. stances "almost non-existent." It then im- [ granted 15 question We certiorari on the posed aggravated LWOP for the kidnapping appeals "[wlhether court of erred in conviction, the most severe sentence allowed affirming the district court's of a under Utah: Code section 76-5-302. The parole sentence of life pursuant without court also sentenced Mr. LeBeau to zero to 76-5-8028) section of the Utah Code." We years five for both the assault jurisdiction pursuant have to Utah Code see- failure-to-respond Finally, convictions. 78A-3-102(8)(a). tion imposed suspended the court sentence of days eruelty-to-an-animal 180 for convie- STANDARDOF REVIEW tion and ordered Mr. LeBeau's lesser sen- consecutively tences to run with his LWOP certiorari, 116 "On we review the sentence. decision appeals of the court of and not that {13 timely appealed, Mr. LeBeau arguing Brake, of the district court." State v. 2004 that the district court abused its discretion in UT ¶ 11, 108 P.3d 699. We review the imposing a sentence of decision of the appeals court of for correct aggra LWOP for his ness, vated conviction. State granting v. Le "no deference to its conclu beau, 235, ¶ 16, App 2012 UT P.3d 1. Baker, sions of law." State v. 2010 UT ¶ Specifically, argued Mr. LeBeau that the dis 229 P.3d 650. 'To determine whether the trict adequately court failed to consider the appeals court of in affirming erred Mr. Le- justice, required interests as Utah requires Beau's sentence that we consider 76-5-802(4). ¶ 24. Code section See applicable standard of review to the court infra mitigating 2. The single district court did consider other episode. rejected criminal The court also presently factors not before us. The court credit- imprisonment Mr. claim LeBeau's that his would mitigating ed Mr. LeBeau with two factors: restitution, compromise ability his to make find- imprisonment that Mr. LeBeau's would work a ing that the likelihood that Mr. LeBeau would hardship dependents, on Mr. LeBeau's ever be able to make restitution was remote. that all of Mr. LeBeau's convictions arose from a lows a court to an indefi the sentence. appeals' review of When six, ten, years deci if reviewing district court's nite term of or fifteen to life sion, "traditionally afford[ ] courts appellate doing "in it finds that so would be the inter 76-5-802(4). and discre justice." ests of court wide latitude Id. [district] Moa, 28, ¶ 34, 2012 UT tion." State v. challenge 1 18 The heart of Mr. LeBeau's (internal (alterations original) P.3d proper interpretation concerns subsee- omitted). appellate An quotation marks (4). (8)(b) argues tions Mr. LeBeau therefore, will, only set aside a sen court adequately the district court failed to consid- represents an abuse of tence if the sentence justice" er the "interests discretion, if the court "fails to con district factors, Though him to the court did consider or if the LWOP. legally all relevant sider clearly State imposed excessive." whether Mr. LeBeau's sentence should be 1990) (Utah reduced, McCovey, pre- v. 803 P.2d starting it did so with a (footnote omitted) (internal quotation marks sumptive sentence of LWOP then consid- omitted). However, district court's sen ering "the cir- constitutes an abuse of tencing determination cumstances" of the crime to determine if Mr. if such determination is based on discretion LeBeau's sentence should reduced to one interpretation of law. See State an erroneous of the lesser terms allowed for in subsection 88, ¶¶ 14-17, Barrett, 127 P.3d 2005 UT (4). Though the district court did not ex- reasoning, pressly appears state its to have

interpreted Legislature's use of the ANALYSIS phrase justice" equivalent "interests of "aggravating mitigating

the cireum- I. UTAH'S AGGRAVATED recognized by stances" the Utah KIDNAPPING STATUTE part sentencing guide- Commission as of its lines. Mr. LeBeau asserts that this inwas aggra- LeBeau was convicted of T17 Mr. Legislature's error the because use of the kidnapping pursuant vated to section 76-5- phrase justice" requires "interests of consid- Code. Section de- 302 of the Utah 76-5-302 beyond eration of factors the aggravated kidnapping degree fines as a first mitigating particu- cireumstances of his felony complex sentencing and establishes a Specifically, argues lar crime. Mr. LeBeau contemplates range possible that a scheme required that the district court was to consid- sentences based on seriousness (1) sentence, (2) severity er of an LWOP Mr. was offender's conduct. LeBeau sen- propor- whether a sentence of was LWOP (8)(b), pursuant tenced which to subsection tionate to seriousness of Mr. LeBeau's aggravated kidnapping that re- establishes (8) crime, and Mr. LeBeau's rehabilitative sulting bodily injury another" "serious Further, potential. LWOP, argues Mr. LeBeau punishable by "except provided as Cop® (4)." rejected § the district court erred when it sev- in Subsection ... Utax 76-5- proposed 302(8)(b) (2008). eral of Mr. LeBeau's (4), turn, al- Subsection If, (4) aggravated imposing 3. The relevant subsections of Utah's sentence under Sub- kidnapping provide: (3)(a) (b), statute section or a court finds that a lesser (3) Aggravated degree kidnapping is a first fel- term than the term described in Subsection ony punishable by imprisonment a term of of: (b) (3)(a) justice or is in the interests of (a) (3)(b), except provided in Subsection as finding the reasons for this on the rec- states (3)(c), (4), years than and which or not less ord, may imprison impose the court a term of life; may be for ment of not less than: (b) (3)(c) except provided in Subsection as (a) (3)(b), purposes of Subsection (4), parole, or life without if the trier of fact life; years may and which be for or during finds that the course of the commission (b) (3)(a) (b): or of Subsection purposes aggravated kidnapping the defendant life; (i) years may and which be for or another; bodily injury to caused serious (i) years may six and which be for life. (c) parole, life without if the trier of fact Cope 76-5-302(3)-(4). § Urax finds that at the time of the commission of the aggravated kidnapping, pre- the defendant was viously grievous convicted of a sexual offense. by employing legal chapter chapters." incorrect stan- in the same and related factors Barrett, 88, ¶ 29, analysis. State 2005 UT dards in its 127 P.3d (internal omitted). quotation mark {19 reviewing Our task of Mr. LeBeau's ] (8)(b) requires interpret we section sentence of Utah's Subsection Code, 76-5-302 of the Utah which calls for statute directs courts LWOP, of a sentence of LWOP unless impose "except a sentence of as CopE justice (4)." dictate a lesser sen- interests provided in ... Subsection Uran note, first, any 76-5-802(8)(b) (2008). (4) tence. error on the § We Subsection al- part interpretation of the district court in its impose lows the court to a lesser indefinite (4)'s interests-of-justice lan- of subsection doing if term it finds that so would be "in the guage 76-5-8302(4). would harmless if the district court justice." § interests of Id. We were free to sentence Mr. LeBeau LWOP together read subsections as re- considering justice interests without quiring interests-of-justice analysis. Thus, ques- (8)(b) instance. the threshold First, first plain language of subsection tion is whether the district court was re- directs the court to a sentence of "except provided quired engage interests-of-justice LWOP in Subsection ... in an analysis prior (4)." 76-5-802(8)(b). Here, Mr. LeBeau to Id. the word (8)(b). "except" phrase is followed that de- under subsection Because we LWOP required, conclude that the court was so we particular scribes manner or cireum- proper (4d)-in then turn our attention to the mean- provided stance-as in subsection justice" of "interests of as used in subsec- which applicable. a sentence of LWOP is not (4). Finally, tion we consider Mr. LeBeau's As such, (8)(b) subsection is best read as claim that court district erred when it establishing presumptive rejected proposed mitigating several of his delineating particular LWOP while also factors. inap- cireumstance which LWOP would be that, propriate. It follows in order to deter- II, THE DISTRICT COURT RE- inappropri- WAS mine whether would be LWOP QUIRED TO CONDUCT AN INTER- ate, engage a court must in the interests-of- ESTS-OF-JUSTICE ANALYSIS PRI- (4). justice analysis laid out in subsection If OR TO SENTENCING MR. LEBEAU courts were free to LWOP without TO LWOP considering justice, first the interests of exception provided by Legislature would any question 120 As with of statu Thus, meaningless. be rendered we read tory interpretation, primary goal our is to (8)(b) (4) together requir- subsections and as Legislature. effectuate the intent of the sentencing that courts consider the inter- 18, 309 Watkins, State v. 2013 UT P.3d ¶ justice ests of to determine whether a lesser Legislature's 209. The best evidence of the appropriate. sentence is plain language. intent is the statute's Marion Energy, P'ship, Reading v. KFJ Ranch 2011 UT 122 aggravated kidnap- Inc. Utah's 50, ¶ 14, presume 267 P.3d ping "We that supports statute as a whole further this [Llegislature advisedly each distinguishes used word conclusion. The statute three (1) give and according types aggravated effect to each term to its kidnapping: aggra- (2) ordinary accepted meaning." and kidnapping, aggravated C.T. ex vated kidnapping Johnson, 35, ¶ 9, (3) Taylor resulting rel. 1999 UT 977 bodily injury, serious and (internal omitted). quotation P.2d 479 aggravated kidnapping marks committed a de- Further, interpret[ give "we previously ] statutes fendant who has been convicted of meaning parts, rendering § to all and "grievous avoid[ ] sexual offense." Id. T6-5- Watkins,302(8). portions superfluous." of the statute It then establishes different sen- ¶ each,. (altera 28, 23, UT P.3d example, tences for Id. For a defen- 20 (internal original) tions in quotation aggravated kidnapping may marks dant convicted of omitted). so, To plain years do "we read the lan be sentenced to a sentence of fifteen whole, 76-5-802(8)(a). guage contrast, of the interpret § statute as a and life. Id. In de- provisions in harmony previously its with other statutes fendants who have been convicted or who cause ignore sexual offense grievous sentencing courts a license to aof Rather, injury altogether. reading in the course of an bodily sub- substantial subsection sen- kidnapping together, face a maximum we aggravated sections conclude 76-5-802@)(b)-(c). § of LWOP. Id. tence Legislature sentencing intended judgment legislative This reflects justice the interests of courts to consider deserving of harsh- offenses are more serious sentencing when defendants under subsec- punishment. (8)(a) er (3)(b), tions or but not under subsection (8)(c). bolstering our conclusion 23 Further be- Legislature intended to differentiate THE DISTRICT COURT FAILED III. aggravated kidnap- types different tween TO CONSIDER THE IN- PROPERLY the maxi- ping, Legislature directed that aggravated for OF AS mum sentences TERESTS JUSTICE RE- QUIRED BY UTAH CODE SECTION kidnapping resulting in seri- 76-5-802(4) injury imposed "except bodily ous should (4)," in Subsection ... which provided Having determined that the dis interests-of-justice analysis. See triggers the required engage trict court was an- 76-5-802(8)(a)-(b). Legisla- § But id. interests-of-justice analysis that defendants who specifically ture directed LeBeau, Mr. we turn our attention to what is grievous previously been convicted of have required analysis. for At such sentenc may to one offenses not be sentenced sexual ing, did consider whether a the court lesser lesser terms contained subsection appropriate indeterminate sentence was 76-5-802(5). (4). Thus, Id. so, doing Mr. LeBeau. In the court consid impose a sentence option has no but to court light ered Mr. LeBeau's crime in of the list of contrast, for these offenders. of LWOP mitigating aggravating cireumstances bodily inju- defendants who cause substantial compiled by the Utah Commis if the ry eligible for a lesser sentence are sentencing guidelines. Though sion its determines that such a re- court reasoning its district court did not articulate Thus, justice. is in the interests of duction record, equ appears on the that the court possibilityof Legislature provided for the weighing aggravating of these ated defendants sentenced a reduced sentence for with an interests- cireumstances (8)(a) (8)(b), but under either subsection analysis. argues that of-justice Mr. LeBeau those sentenced under subsection not an interests-of- this was error and that (8)(c). tri-level distinction makes clear This justice analysis requires the court to consider judgment ag- all Legislature's that not miti factors other than the gravated kidnappings are the same and evi- surrounding particu gating circumstances Legislature's punish intent dences the yet to lar defendant and crime.4 We have kidnappings with harsher more "serious" Legislature's import the of the use consider sentences. justice" phrase "interests of in this of the 1] we that Were to conclude Therefore, context. our task is to determine statutory presump- the courts could Legislature the intended when it in what (8)(a) and under subsections tive sentence to consider whether the in structed courts (8)(b) considering without first the interests by impos justice of would be served terests ~ justice, the distinctions of it would undermine ing a lesser sentence. aggravated types of between the different $26 begin, always, We as with Legislature. kidnapping drawn the Emergy, Inc. v. statutory text. Marion the language of subsection is Though the 50, ¶ 14, P'ship, 2011 UT KFJ Ranch statutory scheme makes clear permissive, the Legislature presume that give P.3d 863. We Legislature did not intend to that interests-of-justice of the argues circumstances 4. Mr. LeBeau that totality analysis requires of courts to consider a we the statute crime, conclude requires Though agree we that the pro- the circumstances. analysis LeBeau's than Mr. more focused jus- Legislature's phrase of the "interests of use posed totality-of-the-circumstances test. requires beyond of factors tice" consideration carefully, using justice chose its words each term seriously impaired" by would be ¶ Barrett, 88, 29, advisedly. dismissal); State v. 2005 UT § (establishing id. 78B-1-136 127 P.3d 682. Absent some indication of right witness's "to be detained long so intent, contrary legislative give we effect to justice as the interests require"); id. according 77-8a-1(2)(d) ordinary meaning. each term to its (directing Utah courts Johnson, Taylor C.T. ex rel. 1999 UT jointly try co-defendants unless the court ¶ 9, statutory 977 P.2d 479. If the language separate finds that trials would be in "the Evip. ambiguous-meaning remains the statute justice"); 807(a)(d) is interests of Uran R. susceptible to two or more reasonable inter (allowing courts to admit otherwise inadmis- pretations-we may resort to other hearsay indica sible doing statements if so is in "the R.App. intent, legislative tions of including legislative 5(f) justice"); interests of Utax P. (directing history appeal policy that an from an interlocu- considerations. State v. Watkins, 28, ¶ 24, 2013 UT 309 P.3d tory ouly granted order should if in the justice"). quickly "interests of What be- Legislature T27 The provide did not Legislature comes clear is that cannot statutory definition of "in the interests of phrase have meant to use the "in the inter- justice." Accordingly, we look to other justice" ests of in the same manner in all sources to meaning phrase. derive the of the these different contexts. 4, 114, Bagnes, State v. 2014 UT See (approving the P.3d.719 use of dictionaries to Legislature 129 The added the interests- "range possible ascertain the meanings of-justice language aggravated to Utah's kid- (internal statutory may that a term bear" napping part statute in 2007 sweeping of a quotation omitted)). mark Generally, penalties revision of the associated with sexu- phrase "in the being interests of" connotes al kidnapping. offenses and See 2007 Utah "to advantage or advancement of" some- Laws 2060-78. Legislature The crafted a Ranpom Dictionary thing. House or THE sentencing scheme substantially similar (2d ed.1987); EnceutseLanauacE 998 see also found kidnapping stat- Dictionary WerstEr's NEw Counrer ute in eight at least other criminal statutes. Cop® (2007) (defining "in the interests of" §§ as "for See Utax 76-4-102 (attempt), -204 of"). So, (criminal something sake solicitation); "in the inter- §§ id. 76-5-301.1 (child justice" kidnapping), (rape), -402 ests of (rape promote 402.1 will act to advance or justice. "justice" child), But is (forcible an abstract notion (object of a 402.2 rape), -404 incorporates variety meanings. abuse), As (aggravated sexual -405 sexual as- context, "justice" sault). used imparts statutes, notions Each of these except solici- fairness, impartiality including or attempt, governs re- tation and involving crimes ceipt of a "reward penalty as deserved." and sexual assault. And in each case, WeestEr's New Counrar DICTIONARY777. A Legislature presumptive created a justice" sentence "in the interests of will and instructed courts to promote therefore work to impartiality or consider justice whether the interests of war- fairness and ensure the defendant task, receives ranted then, a lesser sentence. Our penalty he deserves. While these defini- phrase determine what the means in the tions inform our understanding Legis- context of the sentencing scheme crafted intent, they Legislature the these adequately statutes. do not direct lature's related they courts as to what actually should consid- er when particular confronted with a 76-5-802(4)'s case. A. Section Interests-of-Jus- Accordingly, we guid- must look for further Amalysis tice Equivalent Is not to ance. Weighing Aggravating the Mitigat- and ing Circumstances phrase

128 The "in jus-. the interests of appears tice" many parts matter, other of the T 30 As an initial we conclude that Code, Utah specifically but is never Legislature defined. the phrase did not intend the Cope See, eg., 75-7-204(2)(b)(2013) § Utax justice" of "interests as a mere substitute for (allowing Utah proceed- courts to entertain weighing aggravating the of mitigating and ings involving foreign trusts if "the recognized interests by Sentencing cireumstances the First, plain language of Commission. However, the Commission.5 sentencing the Utah support such an inter scheme was removed from Code statute does not the the that created the Legislature instructed courts same revision interests- pretation. The sentencing justice," just of-justice not scheme in the related the "interests of to consider mitigating and and sexual assault statutes.6 weigh "aggravating the concepts Compare Utah Laws with id. at Though the two cireumstances." related, light Legislature's In equivalent. are not 2069. decision are in 2007to remove references to the Sentence- {31 Sentencing The Utah Commission is aggravating and mit Commission'slist of sentencing guidelines empowered to create factors, igating we do not read section 76-5- designed equity in criminal sen- to "increase 302(4)'s interests-ofjustice language Cope 68M-7-404(8). § tencing." To Urax equivalent previous aggravating-and- end, Sentencing creates the Commission mitigating-cireumstances language. guidelines include a nonex- case, mitigating the aggravating of and T83 Mr. LeBeau's district haustive list aggravating court looked to the list of and that are used courts in cirenmstances ApuLt mitigating sentencing decisions. See UTax cireumstances contained their anNp GuipELIn®s REuEass SEntENcinec sentencing guidelines and no further. Be- (2009). Legislature previous sentencing guidelines replaced The instruct cause the its aggravating courts to consider all of the and aggravating-and-mitigating-cireumstances in- particular of a struction with the new mandate to consider mitigating cireumstances justice, holistically offenders. the interests of we conclude that the crime error,. Legislature analysis at 12. Had the intended district court's was We now Id. aggravating proper our consider and turn attention what a interests- courts to recognized by of-justice analysis requires. mitigating cireumstances Sentencing Commission when de- Amalysis An B. Re- aggravated kidnap- fendants under Utah's Interests-of-Justice quires Proportionality Consideration statute, knowledge of means and ping had the Instead, and the Rehabilitative Po- Legislature di- to so instruct. Defendant's tential rected courts to consider "the interests of justice." Though Legislature did not specifically justice" in define "interests of ¶ 32 tellingly, prior to section More statute, aggravated kidnapping provid it has 76-3-201(7)(e) of the Utah Code did instruct guidance ed elsewhere in the Utah Code. sentencing guidelines the courts to "consider Section 76-1-106 of the Utah Code directs mitigating regarding aggravating and cir criminal that Utah's code "shall be construed promulgated Sentencing cumstances according import to the fair terms to [its] "determining just sen Commission" when promote justice objects and effect tence." Defendants convicted of general purposes of [slection the law 76- kidnapping were sentenced to an indefinite added). (Emphasis 1-104." Section 76-1- six, ten, years term of or fifteen to life. Cope general goals forth four 104 sets Utah's 76-5-302(8) (2006). § court Utax The criminal code: required middle-severity was prevent the commission of Forbid life, years [were] term of ten "unless there offenses. mitigation in aggravation cireumstances 76-3-201(7)(a). adequately 76- Define the crime." Id. Section the conduct 3-201(7)(e) directed the court to consid mental state which constitutes each offense then safeguard aggravating cireum- conduct that is without fault er recognized by the Utah from condemnation as eriminal. stances below, capital sentencing and miti- 6. Utah's scheme continues to As discussed juries "totality direct that must consider gating relating particular circumstances to a circumstances" certainly inter- crime are relevant to court's deciding pen- whether to the death 1942, ests-of-justice analysis. ag- 46. But Infra Urag Cope 76-3-207(5)(b). alty. Section 76- gravating mitigating circumstances are sim- 3-207(4) presents a nonexhaustive list of factors ply proper analysis. one facet of the may be that considered. 264

(8) penalties propor- which are Prescribe deeply frequently repeated rooted and Helm, jurisprudence." common-law Solem v. tionate to the seriousness of offenses recognition 277, 284, 3001, permit which 463 U.S. 103 S.Ct. 77 L.Ed.2d [of] differences among indi- possibilities in rehabilitation (1983). example, 637 For the United States vidual offenders. Supreme long recognized Court has the exis (4) arbitrary oppressive or treat- Prevent proportionality principle tence of a in its persons ment of aceused convicted of jurisprudence Eighth related to the Amend offenses. ment's Cruel and Unusual Punishments ' added.) (Emphasis VIII, see, eg., Clause. U.S. Const. amend. goals States, 349, T 35 The enumerated in section 76-1- Weems v. United 217 U.S. aspects 104relate to different of the criminal 544, (1910) S.Ct. L.Ed. (recognizing (2) example, code. For subsection relates to Eighth prohibits gross that the Amendment public definition of offenses. This neces- sentences). ly disproportionate Though the sarily incorporates ideas of fair notice and struggled effectively Court has articulate process just due because eriminal code precise Eighth contours of the Amend adequately subject must inform those to it of see, proportionality principle, e.g., ment's expose the behaviors that will them to erimi- 957, Michigan, Harmelin v. 501 U.S. (4) liability. nal Subsection addresses 2680, (1991), S.Ct. 115 L.Ed.2d 8386 it has treatment individuals onee are guiding principles articulated a set of that brought justice system into the criminal analysis. can assist our recognizes importance fair treatment of those individuals. note, first, important 1 39 It is that the (8)

136 But it is subsection Supreme relates proportionality jurispru Court's (8) closely sentencing. most Subsection very dence arose in a different context than legislative goal articulates the that sentenc- that with which we are now confronted. proportionate to the seriousness of the Typically, the Court was confronted with a recognizes defendant's conduct and that indi- challenge constitutionality legisla of a vidual potential offenders have different See, tively enacted eg., statute. Thus, reading rehabilitation. sections 76-1- Weems, 544; 217 U.S. at 30 S.Ct. Rum together, 104 and 76-1-106 we must construe 263, 265, Estelle, mel v. 445 U.S. 100 S.Ct. ways our criminal code in "promote 63 L.Ed.2d 382 (upholding a justice," including principles proportionali- mandatory possibility life sentence with the ty recognition and a of the rehabilitative parole under a statute for a recidivist potential of individual defendants. third felony); nonviolent Gra defendant's Keeping principles these basic Florida, 48, 75, ham v. 560 U.S. 130 S.Ct. mind, Legislature's we conclude that the use 176 L.Ed.2d (rejecting phrase justice" "interests of necessar- juveniles LWOP for convicted of ily requires pro- the court to consider the crimes). nonhomicide As it has addressed portionality of the defendant's sentence in challenges, these constitutional the Court severity relation to the of his offense. Addi- struggled has legis balance deference to tionally, requires judges judgment lative appropriate as to the sen appropriately weigh potential a defendant's particular tence for a long crime with the for rehabilitation.

standing precept that sentences "should be graduated proportioned of [the] Proportionality Analysis Requires 1. A Court to Weems, Consider the Seriousness of the fense." 217 U.S. at 30 S.Ct. Compared Defendant's Conduct When to 544; Harmelin, see also 501 U.S. at 998- Severity of His Sentence and the 1001, 111 (attempting S.Ct. 2680 to reconcile Imposed Sentences for Different Of- judicial legislative the need for deference to fenses ly pro enacted sentences and the need for

$38 portionality). pres principle But the case before us punish "The that a ment proportionate very question. should be to the crime ents a different are not We

265 ests-of-justice analysis. But in the context imposed to overturn a sentence being asked us, grounds Leg- that it is before we see no indication that the Legislature on the by the Instead, islature intended courts to consid- constitutionally disproportionate. imposed by legislatures the sentences the properly that courts er our task is to ensure jurisdictions. Accordingly, other Legislature's instruction to of we con- comply with the analysis inappro- that the third Solem factor proportionality a clude is undertake interests-of-justice analysis pursuant priate to section for an un- sentencing defendants Accordingly, der section 76-5-302 of the Utah Code. of the Utah Code. 76-5-302 Supreme guidance from the while we take The seriousness of the a. defendant's con- jurisprudence, we do proportionality Court's severity duct in relation to the of his analysis understanding that our so with the sentence necessarily different. First, sentencing T 42 courts should consid Solem, consid- Supreme In Court € 40 gravity "the of the offense and the harsh er constitutionality of a South Dakota ered the Solem, penalty." 463 ness of U.S. at imposed a sentence of recidivism statute that 290-91, 103 S.Ct. 3001. This factor necessar who had written a "no on a defendant LWOP ily includes an examinationof the nature $100, felony check for a class account" the defendant's circumstances crime. at 280-81 Dakota law. 468 U.S. under South Though decline to articulate an we exhaus Because the defendant & n. 108 S.Ct. 3001. a tive list of cireumstances court should con of six other previously had been convicted sider, of aggravating we note that the list felonies, his sentence was en- nonviolent circumstances created felony, hanced to that of a class LWOP. Id. Sentencing provides Utah Commission The defendant at 108 S.Ct. 8001. good starting point. Many of the challenge under brought proportionality guidelines already Amendment, arguing that Commission's take into ac Eighth LWOP gravity count factors relevant to of the grossly disproportionate to his crime of was However, empha defendant's conduct. we passing a bad check. Id. at $100 inquiry size that courts should not limit their S.Ct. 8001. recognized by merely to those factors %41 enumerated three The Court Rather, Sentencing Commission. courts guide pro its designed factors objective should consider all relevant facts raised (1) analysis: the seriousness of portionality parties about the defendant's crime in conduct in relation to the the defendant's penalty. relation to the harshness of the severity imposed, of the sentence general, crimes should nonviolent severity imposed light sentence less serious than violent crimes. be viewed as imposed other crimes in the sentences for 292-93, Legisla Id. at 103 S.Ct. 3001. The jurisdiction, severity same ture made a similar determination when it imposed in sentences relation to penalties repeat enhanced vio mandated imposed for the commission of the same Copm § lent offenders. See 76-3- 290-92, jurisdictions. Id. at crime other Similarly, 208.5. a violent offense committed Gardner, 108 S.Ct. 3001. In State v. presence in the of a child constitutes an challenge to court considered a constitutional during sentencing. Id. factor for a defendant convicted a sentence of death judgment The considered 76-3-208.9. prison. assault while in Legislature indicates that such violent 1997). (Utah thorough In a discus P.2d 630 are to be considered as more serious offenses and Unusual Punish sion of Utah's Cruel ones. than nonviolent Clause, ments Justice Durham articulated substantially may ' 44 The court also consider the "ab that is proportionality 'test for Solem, magnitude of the crime." in So- solute similar to that which was established (Durham, J., A at 103 S.Ct. 3001. crime that plurality U.S. lem. Id. at 639-40 property of more valuable reasoning persuasive results in the loss opinion). find this We stealing than a few may be more serious adopt the first two of these factors 76-5-802(4)'s goods. of retail For hundred dollars worth purpose inter- of section Utah, usually example, imposed theft is a class B tences for other crimes Utah. A property key if the value of the proposition underlying misdemeanor proportionali- Cop® ty principle § stolen Uran is less than 76-6- is fairness. $500. Defendants who com- 412(1)(d). contrast, property In theft of val- mit more punished serious offenses should be $5,000 degree felony, second ued above is a severely more than those who commit less Legislature's judgment reflecting the part serious crimes. As of proportionality a involving property theft more valuable is a analysis, courts should consider the sen- § more serious offense. See id. imposed 76-6- tences for more and less serious 412(1)(a). crimes in order particular to ensure that a defendant's arbitrary. sentence is not important

145 Another consideration is culpability generally of the offender. We Utah, example, 148 For person a who agree negligent with the notion that conduct guilty commits intentional murder is of a is less serious than intentional conduct. So degree felony punishable first by an indeter- lem, 3001; at 463 U.S. 103 S.Ct. see also years minate sentence of fifteen to life in Cop® 76-2-101(1) § (establishing Cop® Utax 76-5-208(8). prison. § Utax In order a defendant must act with at least criminal for a defendant who commits a murder to be offense). negligence guilty to be of an More eligible LWOP, for a sentence of he must be over, a committing defendant's motivation for aggravated convicted of murder as defined highly his crime example, relevant. For by section 76-5-202 of the Utah Code. Id. monetary gain homicide committed for § Aggravated 76-3-207.7. requires murder generally should be viewed as more serious the defendant commit the crime under manslaughter than that results from a defen justify cireumstances that would such a se- dant's reckless Compare actions. Uran 76-5-202(1). § vere sentence. Id. For ex- Cope § 76-5-202(1)(g) (establishing a homi ample, accompanied a murder by the sexual pecuniary cide committed gain aggra abuse of a child or committed the use of a murder), § vated with id. (defining 76-5-205 weapon of qualify mass destruction would manslaughter). § See also id. 76-3- 76-5-202(1)(n)(@i), murder. Id. 203.3(2)(a) (establishing penalties increased (2)(a). But aggravating absent factors for hate crimes committed "with the intent to 76-5-202, found in section a defendant who intimidate or person"). terrorize another degree commits first expect murder can maximum sentence possibility of life with the emphasize "I46 We that a court's consider- parole. ation of this guided by first factor should be objective its assessment of the nature and €49 Other crimes for Legisla- which the circumstances of the defendant's crime in ture has established possible LWOP as a relation penalty. harshness The offenses, sentence variety include a of sexual above discussion is provide not intended to but if the defendant repeat is a offender. an exhaustive list of factors because sentenc- example, aggravated assault, For sexual endeay- highly fact-dependent remains a rape, sodomy carry each penalty or. And the Commission's list of if previously LWOP the defendant was con- cireumstances re- grievous victed of a sexual offense. Id. remand, main relevant for this factor. On 76-5-405(2),-402(8)(c),-403(4)(c). §§ In the court should consider the seri- victim, Legislature case of a child allows ousness of Mr. light LeBeau's conduct in a sentence of LWOP for first-time offenders the severe nature of a sentence of LWOP if the defendant bodily injury. causes serious determining - whether the interests of 76-5-404.1(5)Gb), §§ Id. justice warrant of one of sub- 408.1(2)®)(i). Legislature When estab- (4)'s section lesser sentences. lished this scheme for sexual of- fenses, signaled judgment its that sexual imposed b. Sentences for other crimes in crimes, which intrude on the fundamental Utah bodily integrity of the victim like no others Second, 1 47 murder, courts should com- short of enough are serious to war- pare being imposed to the sen- rant a sentence of LWOP. (Utah 1995);

{50 contrast, Labrum v. Bd. Mr. LeBeau was sen Utah State (Utah 1998). Pardons, 870 P.2d 907 aggravated kidnap for an tenced to LWOP Smith, rejected we court's was killed and which in which no one ping the district bodily imposition of four consecutive sentences to- by type of unaccompanied the was mandatory taling a minimum sentence of six- with sexual as harm associated dignitary ty years. 909 P.2d at 244-45. Section 76-3- generally a agree that murder is We saults. 401(2) the Utah Code directs district aggravated kidnap crime than more serious courts to consider the "rehabilitative needs of crimes, particularly those And sexual ping. determining children, the defendant" when whether to especially involving represent an course, impose consecutive or concurrent sentences. bodily insult. Of the heinous form of imposition held that the court's of four Legislature empowered to mandate a sen We is consecutive sentences was an abuse of discre- aggravated kidnapping. for tence of LWOP Gardner, (plurality opinion) tion, part 947 P.2d at 639 in because the "Board is in a far ("What adequate penalty is a position constitutes better than a court to monitor a subsequent possible defendant's behavior and judgment and disere legislative matter of (internal quotation marks omit pris- tion...." progress toward rehabilitation while in ted). adjust Legisla on the maximum sentence ac- proper deference to the But deference to the cordingly." ture in this case includes Id. at 244. scheme, including Leg the entire important part reasoning 1 58 An of our con instruction that courts should islature's Legislature's centered on the Smith decision Thus, justice. pro the the interests of sider grant authority the Board broad to deter principle incorporated into the portionality particular what mine defendant's maximum interests-of-justice requirement Legislature's appeals sentence should be. Id. The court of penalties of the estab demands consideration Legislature's that concluded decision to by Legislature for other crimes. lished presumptive make LWOP sentence for remand, court should look On aggravated "essentially counter Legisla prescribed to the sentences our manded, crime, long-standing for this Utah's insight gain for crimes to into ture other sentencing philosophy of indeterminate sen justice the interests of favor a lesser

whether Lebeau, tencing." App State v. UT for Mr. LeBeau. ¶ 36, P.3d 1. Were LWOP the sen LeBeau, Having guidance tencing option might as to for Mr. we provided some analysis proper proportionality for the agree. Legislature But the instructed courts remand, justice turn our attention to to consider the interests of when im court on we interests-of-justice posing a sentence under the kid the second factor statute, Code, capacity napping expressly acknowledging re- Utah the defendant's appropri that an indeterminate sentence is habilitation. already And as we have ate some cases. Proper noted, Consideration of the Interests of interests-of-justice analysis re quires po of the defendant's consideration Justice Includes Deference to the Role of tential for rehabilitation. Pardons Parole the Board of above, 1] goals 52 As noted one Sentencing courts must consider all of the factors relevant to a defendant's rehabili justice promote Utah Criminal Code is to penalties potential, previously have indicat through "which tative We age that a at the time of the permit recognition differences rehabil ed defendant's [of] possibilities among individual offend itation commission the crime relevant. State CopE® (Utah 1993). Strunk, 846 P.2d 1300-02 76-1-104(8). § The Board ers." Urax (Board) power Other relevant factors include the extent to of Pardons and Parole has crime was tied to alcohol "grant parole provided ... as statute." which a defendant's VII, 12(@)(a) drug pros defendant's have addiction and the Urax Const. art. We The extent to which a previously recognized important pects role the for treatment. history defendant's eriminal evidences contin plays Board in Utah's indeterminate sentenc Smith, relevant to his rehabilita- ing scheme. State v. 909 P.2d ual violence is also Finally, circumstance, potential. Com- ed this claimed tive stat- guidelines, ing, several of which relate "There presented mission's was no evidence [Stephanie] having rehabilitation, was an affair. There was capacity to a defendant's may prove helpful courts in no evidence was that she involved a sexual however, conclusion, analysis. emphasize, relationship. their We You came to that but I found no basis for that." Mr. LeBeau sentencing courts should consider all relevant argues required prove that he not was evaluating factors when the defendant's reha- potential. Stephanie actually engaged bilitative was in a sexual Rather, relationship with Mark. it was sum, sentencing T 55 In courts should con- enough Stephanie that Mr. LeBeau believed proportionality the of a sentence sider to the having was an and affair reacted the heat seriousness of the defendant's conduct and of the moment because of that belief. potential the defendant's for rehabilitation determining whether the interests of agree 158 We with Mr. LeBeau that justice support a lesser sentence. The sen- applied legal district court the incorrect stan tencing properly court in this case failed to analysis dard in its mitigating this factor. justice consider the interests of when sen- Though expressly we have never addressed tencing Mr. LeBeau. We therefore reverse context, question recently in this we reit sentencing. remand for a new Because proper legal erated the ap standard to be court on remand will be re- plied in the context of the affirmative defense quired to consider the and miti- of extreme emotional See disturbance. Ross ¶¶ State, 93, 27-33, gating part cireumstances as of its interests- 2012 UT 293 P.3d 345. of-justice analysis, and Mr. LeBeau Ross, because we held that "the fact finder must argued previously court (1) determine subjectively, whether the de evaluating erred in proposed several of his fendant committed the [crime] while under factors, mitigating opportunity we take this distress, the influence of extreme emotional provide guidance court (2) objectively, person a reasonable on remand. experienced would have an extreme emotion al reaction and loss of self-control under the IV. THE DISTRICT COURT IMPROP- ¶ 28. By analogy, cireumstances." Id. de ERLY EVALUATED MR. LEBEAUS termining whether Mr. LeBeau acted under PROPOSED MITIGATING FACTORS strong provocation night kidnapped he Stephanie requires the court to argues Mr. LeBeau undertake analysis, taking similar into account both Mr. erroneously rejected district court several of subjective experience LeBeau's and the ob (1) proposed factors, his including jective experience. reasonableness of that his claim strong provoca that he acted under (2) tion, relatively his history, minor criminal case, 1 59 In rejected the district court employment history, family his his provocation Mr. LeBeau's claim of on the ties. Because the district court will be re basis that Mr. LeBeau had not established quired to assess these factors its interests- was, fact, Stephanie having an affair. of-justice remand, analysis on we take this requiring This had the effect of Mr. LeBeau opportunity provide guidance as to the greater overcome a much than hurdle our appropriate legal standards. precedent requires. Mr. LeBeau was not required Stephanie to demonstrate that A. The Applied District Court the Incorrect affair, actually Mark were having an Legal Rejected Standard when It Mr. reasonably that Mr. LeBeau believed LeBeaw's Claim that He Acted Under wholly were. But the district court disre~ Provocation garded subjective experience Mr. LeBeau's sentencing, T57 At argued analysis. Mr. LeBeau in its There is evidence in the provocation night that he acted under he record that Mr. LeBeau's actions on the kidnapped Stephanie upset night question because he was genuine at were driven his thought having that she was Stephanie having affair belief that was an affair with reject- another man. The district Shortly night, court with Mark. before the fateful find Mr. LeBeau's criminal couple's use as a reason to moved out of the Stephanie had nonmitigating. Though Mr. Le- history Stephanie testified that shared bedroom. history angel, indicates that he was no Beau's evening February spent she type neither was he the of hardened eriminal upset was and that Mr. LeBeau with Mark normally with a sentence of we associate Stephanie had home. when she returned LWOP. phone she her cell while refused to answer repeatedly Mr. LeBeau with Mark and was Legislature established a T63 Because where she had been Stephanie asked separate sentencing scheme for Le- Stephanie told Mr. whom. -After with agree kidnapping, we the district court with Mark, the situa- that she had been with Beau sentencing guidelines estab- judge that Stephanie testified that Mr. tion escalated. the Utah Commission lished breaking his heart accused her of LeBeau strictly applicable LeBeau's are not to Mr. driving forcing car and her into the before However, sentencing guidelines case. house. toward Mark's totally par- not rendered irrelevant. were ticular, history the eriminal matrices still in- testimony paints pic- the Stephanie's T 60 inquiry into seriousness of the form the the part, in acting, man at least out ture of a history. defendant's criminal The Sentenc- jealousy corroborates Mr. LeBeau's charged developing ing Commission is with emotionally on the claim that he reacted sentencing guidelines designed to "increase Though this does not night question. in CopE sentencing." in Urax equity criminal actions, his deplorable Mr. LeBeau's exeuse G3M-7-404(8) (20183). We do not conclude state was relevant subjective emotional Legislature sentencing for that the intended provocation. On re- mitigating the factor of completely ignore the wisdom of courts mand, examine sentencing the court should Sentencing guidelines Commission when light proper of the LeBeau's actions Mr. sentencing it scheme for see- established Mr. Le- legal standard to determine whether Code, particularly tion 76-5-802 of Utah provocation night he acted under Beau light Legislature's of the instruction to kidnapped Stephanie. interests of consider the Justice. notes, €64 As Mr. LeBeau his eriminal Weighed Improperly Court B. The District relatively general history scores low on the History Mr. LeBeaw's Criminal corresponds offender matrix.7 His score to a $61 argues LeBeau Mr. eight years sentence of for a recommended improperly rejected his rela district court degree felony involvinginjury per to a first tively history mitigating as a minor criminal matrix, According to the an offender son. LeBeau's criminal agree. factor. We Mr. history LeBeau's criminal score with Mr. history single a conviction from 1989 includes recommended sentence of would receive a robbery, degree when Mr. LeBeau for first years degree twenty for first murder. juvenile, posses was a and a conviction sentencing carry do not Though the matrices marijuana presentence The in 1998. sion weight light sentencing of the the same that Mr. LeBeau had report also showed Legislature in the scheme set out been arrest free since statute, pro aggravated kidnapping still insight vide into the relative seriousness re- sentencing, At the district court T62 history history provide criminal jected Mr. LeBeau's criminal defendant's important against arbitrary sentenc LeBeau had an check mitigating factor because Mr. Thus, ing. the district court erred com outstanding for his arrest in Ala- warrant disregarding living pletely matrices and was under an assumed name bama considering Mr. LeBeau's kidnapped Stephanie. The when whether at the time he history mitigating was a factor. On drug admitted criminal court also noted Mr. LeBeau's Nevertheless, investigator he committed. presentence also scored Mr. 7. The with Mr. history matrix recommends that a defendant on the sex offender LeBeau's criminal history to fifteen why LeBeau's criminal be sentenced this matrix was used matrix. It is unclear life, years sentence of with a recommended Mr. LeBeau was not convicted of a sex because twenty-one years. were no overtones to the offense and there sexual remand, family court should consider tion reality members many is a today. technological innovations, the seriousness of Mr. LeBeau's criminal But with his- contact, families can remain in tory, light close Commission's even physically separated. example, For guidelines, in order determine Mr. whether it LeBeau's presentence mother told the inves- mitigating factor. considered tigator that she and Mr. LeBeau talked on phone monthly during the time he was in Improperly C. The District Court Again, Utah. only district court's focus on Discounted Mr. LeBeaw's aspect one potential mitigating of a factor History Employment remand, was in error. On $65 argues Mr. LeBeau that the court should consider the full extent of Mr. properly district court failed to credit his family LeBeau's support and whether that employment history mitigating as a factor. can be mitigating considered a factor. The court refused to consider Mr. LeBeau's employment history as a factor CONCLUSION unemployed because Mr. LeBeau was at the T67 appeals The court of erred in affirm- However, time he committed his crime. ing the district court's of a sen- presentence report makes clear that Mr. Le- tence of LWOP under section 76-5-302 of employed painter Beau was as a the same the Utah Code. The district court erred when employer May from until he was laid considered those and mit- 2008, only off in December prior two months igating recognized by cireumstances the Sen- Though to his arrest. employ a defendant's tencing broadly Commission instead of con- ment status at the time of his crime is cer sidering justice the interests of required as factor, tainly a solely relevant it is not deter 76-5-802(4). by subsection Though the dis- light minative. In of the severe economic given trict court is broad discretion in sen- recession gripped country in decisions, tencing that discretion must be particularly which was devastating in the light exercised in proper legal of the stan- sector, construction the fact that Mr. LeBeau dards. Because the district court abused its yet was laid off and had to find new employ LeBeau, discretion when Mr. we ment within a two-month period fairly cannot vacate Mr. LeBeau's sentence of LWOP and against be held him. The district court erred remand for further proceedings when it solely relied on the fact that Mr. opinion. consistent with this LeBeau unemployed was at the time he com remand, mitted his crime. On the court LEE, Justice dissenting: should consider the for reasons Mr. LeBeau's I 68 Utah law long range has committed a unemployment totality and the of employ his of sentencing decisions to the sound discre- history ment determining whether his judge. tion of the trial The statute at issue employment history should be considered a here, 76-5-302(8), Utah Code section appears mitigating factor. to me squarely to fall within this discretion- ary sentencing regime. by leaving It does so D. The Improperly District Court question of whether to a sentence Discounted Mr. LeBeaw's parole of life without for kidnap- Family Support ping judge's to the trial assessment of the justice." "interests of 166 The district court refused to consider Mr. family LeBeau's support strue- majority T 69 discretionary The turns that ture as a mitigating factor because Mr. Le- standard on deferring its head. Instead of Beau "hadn't seen mother or [his] sister [his] historically broad discretion conferred on years for at the time came testify at judges, trial interprets the court the "inter- Again, trial." while a physical defendant's justice" ests of require standard to a sentenc- family relevant, contact with his is it cannot ing judge carefully specific consider fac- family determinative. Mr. LeBeau's all tors that the court deems relevant to an resides out of In large part state. due to the "proportionality" assessment of the of a sen- expense travel, of prolonged physical separa- tence and to the defendant's "potential

271 duty judges exercising important of im respectfully I Supra 155. rehabilitation." in the statute for I find no basis sentence.1 Such discretion posing dissent. a criminal framework-imported rigid imposing long limits But so as the is not without in jurisprudence a case constitutional from imposes range within the judge a sentence challenge has been constitutional law, which no punishments established and based exercising judge discretion asserted-on inquiry on an into the nature of the offense 76-5-302(8). interpret I would under section offender, long upheld the law has discretion preserve the broad statute to judge's prerogative determining judges on matters long conferred on trial appropriate sentence.2 I would af- discretionary sentencing. And exceptions, T 71 a few limited the law With life of the sentence of firm the long judge's deferred to the trial has also case, highly under the parole in this without identifying range of offense- of discretion" standard discretion deferential "abuse rel based and offender-based considerations review. evant to the ultimate decision as where to I statutory range.3 fix the sentence within part, up For the most we have left it elsewhere, our law has Utah judges personal individual to make a assess- long recognized a wide berth of discretion limits, McGee, 69, ¶ 6, statutory from material UT 31 P.3d ed resulted misin 1. See State v. ("[Dlistrict upon constitutionally wide latitude and were courts have formation or based Woodland, sentencing"); considerations."); impermissible State v. discretion United v. States (Utah 1997) ("We traditionally 945 P.2d (2d Cir.1982) ("When Dazzo, 672 F.2d limits, court wide latitude discretion afford trial imposed statutory is within Gerrard, sentencing."); 584 P.2d State subject generally not to review unless the trial (Utah 1978) "sentencing proce (noting that court relied on either material misinformation evaluation, dures, including are the use concerning constitutionally im defendant court," clearly discretionary with the trial factors."); permissible Byrne Carissa Hessick & explaining that "the exercise of discretion Hessick, Recognizing F. Andrew Constitutional judg sentencing necessarily personal reflects the 47, (2011) Rights Sentencing, at 99 Cau.L.Rev. 52 court"). of the ment (noting discretionary sentencing that under re gimes, judge separate a sentenc "conduct{s] 707, See, Sanwick, eg., P.2d 708 2. State v. 713 ing impose[s] proceeding ... at which he a sen (Utah 1986) ("Except for ... constitutional re range statutory tence within based on his [a] straints, discretion in the trial court has broad characteristics," 'sentencing' assessment statutory scope. imposing within the sentence encompass "any which number of factors" rele any permitted must be to consider [The court] offense, "harm vant to the such as to the victim reasonably may bear on and all information that motive," or the defendant's and "facts about the defendant, proper particular for the sentence Note, himself"); More Than A Formali offender (internal quotation given the crime committed." Meaningful ty: The Case Substantive Reason for Gerrard, (sen omitted)); 584 P.2d at 887 marks Review, 951, (2014) ableness 127 Harv. L.Rev. 952 judge imposed by tence trial will not be reversed (noting prior sentencing guide the era of that to beyond "proper statutory penalty it unless is reform, "judges enjoyed vast lines discretion or unless it can be said that "no for offense" range," statutory sentence defendants within a by adopted man would take the view reasonable "sentencing appeals were allowed un court"). Dorszynski the trial See also v. United der narrow circumstances" and were "unreview 431, 3042, S.Ct. 41 States, 424, 418 U.S. 94 Klein, matter"); practical able" a Susan R. "[als ("[Olnce (1974) determined L.Ed.2d 855 it is that Federal Judicial Discretion in Crim The Return of a sentence is within the limitations set forth 693, (2005) Sentencing, 39 Vau.U.L.Rev. 693 inal imposed, appellate under which it is statute (establishing that under the traditional discre Tucker, end."); review is at an United States sentencing regime, sentencing judges tionary 446-47, 589, 443, 92 S.Ct. 30 L.Ed.2d 404 U.S. medical, "ma[kje moral, philosophical, all of the judge's (acknowledging the trial 592 surrounding penological, policy choices determining sentence to "wide discretion in what particular impose upon par what sentence to a "conduct[ing] impose," including by inquiry offender," making sentencing judge ticular largely scope, ... as to the broad in unlimited courtroom"). the "master of his consider"; may explain kind of information he ing imposed by a federal district that "a sentence See, Jersey, eg., Apprendi U.S. limits, v. New 530 statutory generally judge, not if within is 147 L.Ed.2d review"); 120 S.Ct. subject Colon, United States v. "judges country (2d Cir.1989) ("Prior (recognizing have in this passage F.2d Act, imposing long appellate exercised discretion ... sen review Reform statutory individual tence within limits was unavailable unless exceed of sentences sentences, subject he deems relevant to the ment of the factors that are to indeterminate judge ultimate of a sentence. And we discretionary still is faced with approach have in the trust we judgments-e.g., rooted place whether a defen- place judge, in the trial who has first-hand probation suspend prison dant on and/or interaction with the defendant and thus "the sentence, whether to order that sentences on sentencing." responsibility main for multiple concurrently offenses be served consecutively, and whether to enter a convie- system T72 Our Utah of "indeterminate" category tion for a lower of offense under judge's cireumseribes the trial Utah Code section 76-3402. See Uran degree. by discretion to some It does so Cope 76-3-402(1) § (authorizing sentencing generally prescribing indeterminate sentenc "judgment court to enter a of conviction for offenses, ing ranges categories for various degree the next lower upon of offense" deter- with the ultimate amount of time served be "unduly mination that it would be harsh" to by sentencing judge decided not at level); charged § enter conviction at id. 76- subsequent by parole the outset but board in 3-402(2) (authorizing judg- court to "enter a ings.5 system Under this of inde hear degree ment of conviction for the next lower sentencing, example, terminate a second- if "suspends offense" the execution of degree felony generally subject is to a sen places sentence the defendant on prison tence of a years. term of one to fifteen probation" and Cope determines that it is in the 76-8-208(2). § Utax judge So a trial justice" "interests of and the defendant is sentencing a defendant convicted on such a successfully discharged probation from charge impose specific would not conditions). meets other statutory range within the of one to fifteen years; simply he would a sentence of T The process exercising this discre- years, one to fifteen and the defendant's regulated by tion statute rule. actual time served would be determined 77-18-1(7), Under Utah Code section "[alt subsequent parole decision of the board. sentence, the time of the court shall receive evidence,

173 But any testimony, does not mean that our or information the judges First, do not exercise discretion. not prosecuting attorney defendant or the de- subject all decisions present are sires concerning appropriate sentencing regime, added.) indeterminate (Emphasis this case sentence." provi- This Copr 76-5-302(3) illustrates. See Urax requires "testimony, sion also that such evi- (leaving dence, judge it to the to decide whether to presented or information shall be impose a possibil- sentence of life without open court on presence record and in the of ity parole of the crime of the defendant." Id. Rule of Criminal Proce- Second, general dure 22 is to the same kidnapping). effect. It even as to offenses case"); York, 241, 246, sentencing" Williams v. New 337 U.S. "attempts and to arrive at a 1079, (1949) (noting proper 69 S.Ct. 93 L.Ed. 1337 that sentence based on the facts and law be- it"). "'before and since the American colonies became fore nation, country England a courts in this and in practiced policy sentencing a 5. See Padilla v. under which a Parole, Bd. Pardons & 947 P.2d of 664, (Utah 1997) (explaining 669 that the court judge could exercise a wide discretion in the provided by sets "an indeterminate sentence as types and sources of evidence used to assist him statute" which continues until the maximum determining punish- the kind and extent of elapses parole amount of time law"); unless the board imposed ment to be Klein, within limits fixed 2, punishment par- "terminates or commutes the or supra (explaining prior note at 697 that anp offender"); reform, dons the Urax Sentencins sentencing guidelines judges to had Guipetines ("An Reteass 1 offender sen- essentially authority "enormous and unbridled prison legally subject tenced to is to the full anywhere legisla- a sentence within the length pronounced by of the sentence the sen- tively prescribed range," "possessed and full dis- tencing judge. Ultimately, the final decision re- any cretion to information about the consider garding length the actual of incarceration is the they thought offender and offense that relevant responsibility of the Board of Pardons and Pa- helpful determining appropriate sen- tence"). may, may role: that decision or not reflect the recommendation, guideline may up Gerrard, (1978) (explaining length 4. See range pro- 584 P.2d at 887 full of the indeterminate responsibility that the trial sentencing judge."). court "has the main nounced

273 judge may be deemed have abused his imposing sentence provides "[blefore that opportu- only appellate the defendant an if shall afford discretion court deter court any present nity (a) a statement and to make that he based his decision on con mines punishment, or mitigation of information properly pres or information not siderations why should any legal cause to show (b) ented,8 judge that no reasonable prose- "[the and also that imposed," not be have entered such a sentence under would oppor- an attorney given also be cuting shall the cireumstances.9 any material to tunity present information applied have these standards T76 We R.Crim. imposition of sentence." Urax of upholding the exercise the discretion added). 22(a) (emphasis P. judge making the decisionwhether to trial point provisions of these €75 The probation. suspend a sentence on conditionof and the straightforward: Both the defense ¶49, 18, Killpack, See State v. 2008 UT 191 to make a opportunity prosecution have (Utah 2008) 17, (affirming 23 decision to P.3d in any considerations or presentation as to adoptive prison commit mother to instead sentencing; they deem relevant formation probation on of child abuse homici conviction his broad dis judge then exercises and the de).10 affirming sentencing such deci impose a sentence based on the cretion to sions, we have confirmed that the trial courts Ap he deems most salient.6 considerations discretion, explaining have wide while that sentencing judge's de pellate review of the the exercise of such discretion is not to be moreover, cision, im is limited. A sentence appeal showing overridden on absent a prescribed with the posed in accordance Baine, 556; Williams, abuse. 347 P.2d at under an "abuse of procedure is reviewed of review.7 And a 149P.2d at 642. discretion" standard Sweat, 746, 1986) (Utah (noting discretionary P.2d that in traditional sentenc 6. State v. ("[Slo long safeguards ing regimes, "judges enjoy as basic constitutional vast discretion to sen 'process procedural fairness are afford- due statutory range" tence defendants within ed, in consid- the trial court has broad discretion "sentencing appeals only allowed un [are] any reasonably ering and all information circumstances," der narrow as where result (internal quo- may proper bear on the sentence." from "material misinformation" or are "based Klein, omitted)). supra marks See also tation upon constitutionally impermissible consider 2, (noting judge at 693 in the note Colon, (quoting ations" United States v. 884 F.2d system discretionary (2dCir.1989))). traditional one, sentencing hearing "held a if he wanted ... relevant, heard whatever evidence he felt and ... 9. Gerrard, (Utah 1978) (explain 584 P.2d at 887 moral, medical, philosophical, made all of the that "the exercise of discretion in penological, policy surrounding choices necessarily personal judgment reflects the of the particular impose upon par- sentence to what appellate properly court and the court can find offender"). ticular only abuse if it can be said that no reasonable 49, ¶ 18, adopted by Killpack, man would take the view the trial 7. Statev. 2008 UT 191 P.3d Galli, court"); (Utah 17("[Wle deny review a trial court's decision to State v. 967 P.2d probation Branch, of discretion standard 1998) (same); under abuse State v. 129 Wash.2d (1996) (en banc) ("The P.2d and will overturn a decision if it judge were [trial] is clear that the actions length exceptional of an sentence will not be inherently so as to constitute abuse of clearly as excessive absent an abuse of reversed unfair omitted)); (internal marks discretion." clearly A sentence is if it quotation discretion.... excessive (Utah 1978) ("Be Gerrard, 584 P.2d at 887-88 grounds is based on untenable or untenable rea given fore this Court will overturn the sentence sons, judge or an action no reasonable would court, by the trial it must be clear that State, 1065, taken."); have Banks v. 732 So.2d judge inherently unfair as actions of the were so (Fla.1999) (explaining sentencing 1068 that dis discretion."). to constitute abuse of per cretion is abused when "no reasonable decision"). agree would with the court's son trial (Utah 1241, 8. SeeState 608 P.2d 1248 v. Lipsky, 1980) (information presentence report may in Beckstead, 4, 10. See also Baine v. 10 Utah 2d 347 sentencing provided in unless not be considered 554, (affirming sentencing P.2d 560 purpose of review and to the defendant for the judge's suspend decision not to sentence right response; holding a "defendant's to be probation); on of information that is Harris, 106 Utah sentenced the basis Williams impose protected only pre-sen- (affirming if the accurate can be 387, 640, trial 149 P.2d 641-42 suspending prior report him court's decision to revoke an order tence is disclosed to to sentenc Note, 2, sentence). ing"). supra See also note at 952 & n. 6 sentencing judge's years T77 The discretion as teen old at the time of his offense. Id. sentencing relevant considerations doing, at 1300-02. In so we held that such a But its in is not unlimited. limits are found improperly sentence deprived parole Thus, the terms of the constitution. in State "flexibility" guaranteed board of the by v. Lipsky (Utah 1980), 608 P.2d 1241 we held statute and the constitution. Id. at 1801-02. presen- forth in a the information set And, Smith, (Utah in State v. 909 P.2d 236 report may tence not be considered in sen 1995), imposing we reversed a decision con provided tencing unless it is to the defendant secutive amounting sentences to "a minimum purpose response. for the of review and And mandatory life sentence" because it would principles we based that decision on of notice "deprive the Board of Pardons of discretion explaining process, and due that "fundamen to take into account defendant's future con requires procedures tal ... in fairness possible progress duct and toward rehabilita sentencing phase proceed of a criminal tion." Id. at 245. ing designed to insure that the decision- T79 Courts in jurisdictions other have making process based on is accurate informa may identified additional factors that not be tion," holding that a right "defendant's sentencing considered at running without be sentenced on the basis of information that afoul of the constitution 11 such as protected only is accurate can be if pre- race,12 origin,13 national gender.14 Ex report prior is disclosed to him cept cireumstances, in however, these limited sentencing." Id. at 1248. generally the law has left it to the sound T 78 haveWe also identified another limita judge discretion of the trial to decide what sentencing tion on where such dis cases offense-based or offender-based consider cretion interfering is exercised a manner ations seemed most salient to sentencing authority with the afforded to the Board of decision, and to a sentence based on Pardons and Parole statute and discretionary judgment his light of all of Const, Utah Constitution. See Urax art. the considerations as he saw them. VII, (recognizing § 12 authority of board to 180 The breadth of dis "grant parole ... except all cases treason cretion controversy. is not without flip- The impeachments, subject regulations Copm side of potential broad discretion is the statute"); provided by Uran 76-3- inconsistency. potential gen And that has (allowing multiple sentences to be im erated responses a number of to the tradi posed consecutively considers, judge if the regime discretionary tional factors, among de other "rehabilitative scribed above. response One well-known defendant"). Thus, needs of the in State v. the invocation of "sentencirig guideline" Strunk, (Utah 1993), 846 P.2d 1297 we re replacing versed the schemes aimed at consecutive sen the individual years judge's tences of a minimum of fifteen for child discretion with a formulaic sentenc years and nine ing system adopted pursuant reform initiatives.15 Such schemes have sexual assault for a defendant who was six- Klein, 2, (indicat supra 321, 11. See Bajakajian, note at 693 & n. 4 United States v. 524 U.S. that in the traditional scheme of discretion (1998)."). S.Ct. 2028, 141 L.Ed.2d 314 ary sentencing, there are "no standards to assist judge making or confine the his determina 12, Kaba, (2d United States v. 480 F.3d tion;" listing exceptions following: as limited Cir.2007). "(1) imposed using a sentence constitutional cri teria, political viewpoint, Wayte such as race or Id.; see also Borrero-Isaza, United States v. States, v. United 470 U.S. 105 S.Ct. (9th Cir.1989); 887 F.2d United (1985); (2) L.Ed.2d 547 a vindictive sentence Gomez, 417, (7th States v. 797 F.2d Cir. upon based a defendant's assertion of his consti 1986). conviction, right appeal tutional his North v. Pearce, 711, Carolina 395 U.S. 2072, S.Ct. 14. United States v. 985, 501 F.2d 985-86 (1969); (3) Maples, years 23 L.Ed.2d 656 and a term of (4th 1974). Cir. it, compared or fine so excessive to the crime that Eighth proportionali offended the Amendment's Klein, 2, ("The supra 15. See Michigan, note at indeter- v. Harmelin 501 U.S. ty requirement, 957, 2680, (1991); sentencing 111 S.Ct. began 115 L.Ed.2d 836 minate model to unravel in the in Supreme per Court's curiam decision Fur the federal and state adopted at both been have although But these efforts level.16 238, 2726, Georgia, man v. 408 U.S. 92 S.Ct. by commentators concerned (1972), been lauded 33 L.Ed.2d 346 which resulted in a sentencing of broad peri the downsides moratorium on the death about penalty discretion, they met some detract have also given od of time in which the states were sentencing significantly, ors.17 More time and some discretion to decide how to has also run into con guidelines movement eliminate this And the Fur- arbitrariness. resistance, culminating in a Unit stitutional in man decision turn led to the decision in Supreme striking decision ed States Court Gregg Georgia, in v. which the court lifted "mandatory" application of the down the upholding the moratorium after the constitu guidelines on Sixth Amendment federal tionality system Georgia of a in which and Booker, v. 543 U.S. grounds. States United fundamentally other states altered their tra 220, 738, 245, 125 S.Ct. 160 L.Ed.2d 621 discretionary sentencing system by ditional (2005). (a) bifurcating proceedings their in a manner {81 responses to the traditional Other separating guilt penalty phase, and and system discretionary sentencing have of (b) directing juries sentencing stage at to ex challenges come in the form of constitutional ercise their discretion under instructions lim challenge in the courts. First was a under iting penalty the death to cases in which cer Eighth imposition of Amendment to the tain civreumstances are found to penalty, allegation based on the the death outweigh mitigating Gregg cireumstances. discretionary sentencing applied that 153, 190-95, Georgia, 428 U.S. 96 S.Ct. imposition penalty of the death to ar- led 2909, (1976). 49 L.Ed.2d 859 bitrary decision-making, perhaps leading to T82 The second main racial imbalances in the of this conétitutional chal- challenge lenge discretionary That culminated in the sentencing sentence. came in 1970s, attack; holding against early response to criticism that them constitutional con- cluding a failure and that inde- guidelines rehabilitation model was do not amount to an sentencing terminate resulted in unwarranted delegation legislative power unconstitutional of similarly disparities situated defendants principle separation nor violation of the of of illegitimate ge- based such considerations as on Reitz, powers); Sentencing Kevin R. Reform race, status, gender, ography, socio-economic the United States: An Overview the Colorado of ' judicial philosophy. sentencing and The reform Symposium, Law Review 64 U. Coro. L.Rev. 645 movement, utilizing guidelines by legis- drafted (1993) (discussing sentencing reform efforts in tightly judicial lature or cabin commission Freed, states); Sentencing Daniel J. Federal discretion, was at the and federal thus born state Unacceptable in the Wake Guidelines: Limits (footnotes omitted)); Note, supra levels." note Sentencers, on the Discretion 101 Yar LJ. (explaining at 952-53 that "the re- (1992) (discussing sentencing reform efforts form movement of the 1970s and 1980s ... was law). under federal by animated a desire to eliminate the unwarrant- disparities perceived by ed to be caused sentenc- Freed, (criti- eg., supra 17. See note at 1690 discretion"). ing judges' majori- unbridled The cizing the United States commission ty's reaction to the discretion afforded our guidelines inflexible, and its as "more complex, 76-5-302(3) legislature under Utah Code section by any juris- and severe than those devised other seems to me to be animated concerns that (footnotes omitted)); diction" id. at 1686-87 parallel those reform move- (noting that soon after their enactment and im- gave sentencing guidelines ment that rise to plementation, guidelines "provoked federal and in federal law various states. Such concerns dismay and evasion the federal courts and the problem, are But if there is a understandable. powerful guidelines here; bar" due to "a sense that the is not in the statute at issue it is in the cases," unjust many dictate sentences in too long adopted. overall that we have I scheme "[mJany judges guide- [] conform[ed] piecemeal attempt dissent from what I see as a at deep lines with a sense of distress" due to their repeal discretionary system reform our or reform, rigid requirements); sentencing. broad Kare Sriru &Joss If we are to embrace we Jupainc: GuipeLinEs CasranEs, comprehensively carefully. A. Fear Sentence should do so Feperar legisla- any (arguing And such effort should start in the In tHE Courts ture, profound deficiency not this court. most of the federal sentenc- ing guidelines unexplained, is that are lawless, States, calling generally therefore for a return of 16. See Mistretta v. United U.S. 109 S.Ct. 102 L.Ed.2d 714 judges discretion to federal without rules). sentencing guidelines (discussing up- federal "bureaucratic" 277, 3001, Helm, Eighth challenge sertion of an Solem v. 463 U.S. S.Ct. Amendment given to a sentence.18 (1983). Solem, TT L.Ed.2d 637 In the Su imposition preme Court struck down the of a II (under statute) life sentence a recidivism for history provides T background 84 This passing of a "no account" check conviction necessary interpretation for our of the sen- doing rejected In the court of so $100. tencing prescribed discretion in Utah Code Eighth Amendment proposition that is 76-5-302(8). section part The statute is proscription to the of the sorts of limited parcel longstanding system of a of discretion- punishments" "cruel and unusual decried as 76-5-302(8) ary sentencing. Section seems founding of the of the barbaric at the time preserve to me to that discretion. It does so constitution, prin in and embraced addition a by directing judge impose the sentence 285, 288, ciple "proportionality." of Id. at he deems consistent with his sense of the principle, That as the 103 S.Ct. 3001. justice." "interests of notes, majority is one under which a court hazy 1 85 The terms of the statute seem to considering constitutionality of a sen emphasize judge's me to the breadth of the Eighth challenge tence under an Amendment sentencing. discretion in in As used our gravity could of assess the the offense at elsewhere, scheme penalty, issue and the harshness of the phrase appears to be little more than a rein- imposed sentences on other criminals in the forcement of the court's broad discretion to offenses, jurisdiction same for similar and the impose a sentence appropriate that it deems imposed sentences for of the same light in of per- the relevant circumstances as 290-91, jurisdictions. crime other Id. at by judge. ceived 103S.Ct. 8001. often, 1 86 Most the notion of "interests of standard, however, 1 83 The Solem is not a justice" impart is used to discretion for a generally applicable limitation on judge depart presump downward from a standard, discretion. It is a constitutional statutory tive particular for a properly more, upon which is invoked the as- implication, crime.19 The without event, any continuing viability of the joined Blackmun, J., Stevens, J., express- proportionality open Solem standard of ing support is an for the Solem and conclud- standard question involving penalty. in cases not the death ing that Harmelin's sentence was unconstitution- al; Michigan, asserting In Harmelin v. proportionality 501 U.S. S.Ct. that the "narrow" (1991), rejected 115 L.Ed.2d 836 the court principle Kennedy effectively favored Justice Eighth challenge imposi- an Amendment Solem, leaving only "empty "eviscerates'" an parole tion of a sentence of life without Thus, Harmelin, place). shell" in its after cocaine, possession holding "mandatory of general applicability of the Solem standard of cruel, penalties may but are not unusual doubt, proportionality grave partic- is a matter of sense, having in the constitutional been em- ularly involving penalty. in cases not the death ployed throughout in various forms our Nation's Frase, Sentences, See Richard S. Excessive Prison history." at Id. 111 S.Ct. 2680. And on the Goals, Eighth Punishment and the Amendment: applicability proportionality of the Solem stan- What?, Relative to 89 Minn. L.Rev. Proportionality dard, deeply splintered; the court was it ven- 571, 581-84, (2005) (discussing ongo- 588-89 979-85, majority tured no view. See id. at regarding debate of effect Harmelin and Scalia, J., (opinion joined by S.Ct. 2680 Rehn- subsequent proportionali- cases on constitutional C.J., quist, concluding that Solem should be over- analysis). ty articulating originalist ruled and view of the Eighth Amendment under which an "unusual Cope 76-4-204(2) (conferring § 19. See Urax dis- punishment" particular is understood as a mode sentencing judge cretion on lesser sen- punishment infrequently imposed, that was tence for crimes of solicitation if the court finds excessively lengthy compari- not one that was justice" that a lesser term is "in the interests of punishments imposed son to other for similar 'crimes); 996-1005, finding and states the reasons for this on the (opin- id. at 111 S.Ct. 2680 record); J., O'Connor, § J., (providing id. 76-5-301.1 for down- Kennedy, joined by ion of Souter, J., departure justice" ward expressing disagreement the "interests of aspects with cases); 76-5-402(4) § child test-particularly id. Solem the "intra-and in- 76-4-102(2) (murder); terjurisdictional" (rape); § § comparison id. 76-4- id. sentences 102(3)(); 76-3-203.2(5) (use comparable expressing dangerous support crimes-while id. proportionality principle"); weapon for a "narrow id. at offenses committed on or about 1009-27, White, J., (opinion premises). 111 S.Ct. 2680 school equivalent in a desire to reword the statute range of a the broad to reinforce simply legisla general synonymous or terms.21 And the phrase's And the judge's discretion. capacity speak clearly-here more provisions of the ture's wide-ranging in other use absolutely always-tells us noth notion of broad as almost to reinforce this code seems true, course, legislature ing. discretion.20 of that the It's clearly mitigating reinforced the could have statutory author- find no room in the I 87 I aggravating imposed prior factors under "in the interests ity impose a sentence legislation; spoken but it also could have complex, detailed justice" for the clearly way, expressly repudi the other more majority. prescribed standards ating speak So the failure to those terms. Granted, always legislature does not use clearly in gets more us nowhere the face of manner in all phrase ... in the same "the ambiguity like this one.22 appears in which it different contexts" the[ ] any majority presumes 89 The that re- Supra 128. But to me that in our code. understanding of this only reinforces the jection mitigation-aggravation con- of the old preference placeholder princi- for a struct must have been phrase general as a Thus, something even more judicial discretion-discretion restrictive. af- ple of broad announcing ways in ter its conclusion that the statute may be exercised different contexts, "equivalent previous aggrava- is broad and not is not different but language," easily subject appeal. on cireumstances ting-and-mitigating to reversal existing statutory the court assumes that the agree that the current version of €88 I necessarilybe standard must more restric- 76-5-302(8) equivalent of is not the section replaced. Supre tive the one it than 182. to courts to im- now-repealed instruction proceeds develop And it then such a stan- pose a sentence general "goals" dard from the stated our aggravating consideration of based on a Eighth criminal code from Amendment identified mitigating cireumstances (un- proportionality easelaw on supra See Utah Commission. ). der Solem v. Helm Coprm (2007). § (citing Urax 76-5-302 €32 inference from the 1 90 I find no basis for such a standard in But I would not draw that 76-5-302(@8). mere fact of amendment of the old scheme- Dictionary section Black's Law "justice" proper legislature "[the the fact that defines fair and much less from knowledge" require administration of laws." Brack's Law Dic- the means and "had (Oth ed.2009). Thus, TIONARY942 the statuto- consideration of Supra ry if do direction to the court to the sen- cireumstances it intended to so. all, in the legis- After the mere fact of a tence it deems to be "interests of 31-82. nothing justice" straightforward reiteration of amendment tells us or lative little for amendment-which about the reason judge's duty to decide what seems most proper." properly an intent to abandon the old "fair and That cannot could either be one, require simply of a different construed to the court to follow scheme favor Cope Hannifin, (establishing wit- 22. See In re Estate 2013 UT 20. See Ura 78B-1-136 25-26, ¶¶ long "any right only (explaining be detained so as the 311 P.3d 1016 that on ness's "to 77-8a-1(2)(d) justice require"); statutory any §id. interests of matter of construction conse joint sep- (requiring quence, always unless trial of co-defendants will be true" that the it almost justice"). legislature spoken clearly, "in the interests of arate trials would be more while could have speak indicating that such "failure to more clear ly" nothing consequence tells us to our inter ¶ 12 n. Steadman, v. 2012 UT See Rahofy used) pretation language re changes" (identifying "stylistic 289 P.3d 534 E.Z., 38, ¶ 75, Adoption Baby 2011 UT legislative "no amendments that had substan (Lee, J., ("[One concurring) can P.3d 702 almost analysis"); State, tive on our Gressman effect imagine clarifying cutting always amendments (Lee, ¶ 63, J., P.3d 998 dissent 2013 UT nothing analytically ways.... ("[The both It adds ing) key question ... is whether Congress might spoken hypothesize how have change under review is in fact material. Some greater clarity. simply We instead must ask legislative are with amendments are not. Some clarification, Congress say interpret stylistic it as best we what did aimed at or at or se can."). refinement."). mantic £78 ¶ 94

rigid, majority detailed framework of The provision cites this as a importing analysis basis for an princi cireumstances. rehabilitation, ples proportionality of Instead, terminology I 91 the of the statute general since the third of purposes the four straightforward long is a reiteration of the identified in encompasses section 104 the standing principle sentencing of broad dis prescription "penalties of propor which are Russell, opinion cretion. Our in State v. 791 tionate to the seriousness of offenses and (1990), point P.2d 188 hammers this home. permit recognition which of in differences rejected There we the notion that discretion possibilities rehabilitation among individual sentencing may is a matter that be "sur Copm § offenders." Urax 76-1-104. formula," rendered to a mathematical light general of this reference princi to these wide-ranging reiterated instead the discre ples, the court justice" reads the "interests of sentencing judge. tion afforded to the Id. at 76-5-302(8) consideration in section to re 192. And our articulation of the essence of quire an individualized propor assessment of telling. that discretion is stated that We the tionality potential and rehabilitative in each "overriding judge impos consideration" for a prior case to the of a sentence ing just." a sentence "is that the sentence be under this statute. 23 added.) (Emphasis Id. agree £95 I approach. cannot with this T I accordingly 92 would read the terms of general purposes The by majority cited the governing straightforward statute as a purposes are of the criminal code-not of reiteration of the longstanding discretion af- judges trial exercising discretion sentenc- sentencing judge. forded to the And I would «Thus, ing. general purposes by invoked not deem those terms to be overridden apparent the court have no connection to our "general purposes" pre- articulated in the interpretation of justice" the "interests of provisions ambular of the criminal code. Su- sentencing consideration in under section 76- pro purposes 134. None of identify, these 5-302(8). phrase, again, That is a reinforce- define, attempt much meaning less of judge's ment of the sentencing broad discre- justice" "interests of in sentencing or even in tion. And longstanding tradition of such our criminal law. discretion clearly contrary runs to the de- tailed review for proportionality and rehabili- notes, majority T93 As the section 76-1- potential prescribed by tative the court. general "jus- does make a reference to ¶ (though 96 The court's standard turns the above- justice"). tice" not "interests of Su- pro I 34. But even that term is used history recounted on its head. Traditionally, prescribe fuzzy a rather canon of principal construc- judge's limits on the discretion tion of the code-to direct the courts in have been constitutional in na "according construe it import to the fair of Thus, except ture. where limited promote justice Amendment, [its] terms to Eighth and to effect principles pro of due objects cess, general purposes otherwise, of the law and long our law up has left it Supra [slection judge 76-1-104." 134. This to determine the considerations general canon seems me to have little or that seem most salient to him and to nothing question to do with the presented appropriate light sentence in of those meaning here-of the justice" of "interests of considerations. today The court's decision in a statute. inquiry. inverts this regime governed In a jurisdictions law in public other (emphasis confirms as well as the defendant" add- understanding ed) (citation omitted)); of consideration of the inter- United States v. Danilow Co., "justice" Inc., ests of Pastry as a reference to F.Supp. broad sentenc- (S.D.N.Y.1983) "1925[,] (noting that in when the discretion. See United Steiner, States v. (7th Cir.1957) enacted, (noting long- F.2d probation every first federal statute was standing principle "judicial give judges discretion" in sen- state had such a statute to discretion tencing, explaining encompasses while suspend overly that it harsh sentences in the interests judge's prerogative imposing justice," "upon speaking a sentence of the need for the law such terms and engage conditions as the court deems to "devise flexible sentences" and to best," or in other justice" words terms consistent with "creative" ""inthe interests of added)). justice "the ends (emphasis and the best interest of the standards, justice." I discretionary and in a with the "interests of And would by highly basis, nothing has not asserted I in which the defendant affirm on that see case sentence, challenge to his suggest a constitutional record to that he abused his sound the sentence and nonetheless reverses imposing court he discretion the sentence select- an evaluation of considerations remands for ed. (of poten and rehabilitative proportionality degree T 99 I can understand a of discom- tial) only in a arising case of heretofore imposed fort with the sentence on LeBeau. challenge to a sentence.24 constitutional From what I can tell on the face of the cold surely a T 97 This will come as shock appeal, suspect record before us on this I I case, judge in this who could not district may imposed not have the sentence that was being possibly imagined have reversed for handed down in this case. But sentences in engaging Eighth analysis Amendment not imposed Utah are not on the basis of cold proportionality in a case where no one had They imposed by judges, records. are trial Eighth And I ever invoked the Amendment. by who are informed a wealth of understand- as a suppose it will even come shock ing experience and appellate firsthand LeBeau, being granted who are counsel for judges why lack. That is our law affords challenge presumptive the broad license to discretion, judges why those such broad and legislature endorsed on sentence appeal limit we our review on for the rare grounds proceed- never advanced abuse of discretion. ings preserved. have not below thus appreciate degree €100 I can also a

III discretionary discomfort with sentencing adopted scheme that we have in Utah. IAs reasons, I1 98 For the above would inter- above, proponents noted and as sentencing 76-5-802(8) pre- pret the terms of section decades, reform advocating have been for traditional, serve the broad dis- potential downside of discretion is long judges cretion afforded to trial in Utah. potential arbitrariness.25 And that is cer Thus, imposing I would note that before tainly troubling. My point express is not to case, judge sentence district was preference regimented, guide for a more required by any to "receive statute testimo- approach sentencing, lines-based or even evidence, ny, or information the defendant or disapproval existing regime. of our The prosecuting attorney present desires to case-by-case tradeoffs between discretion concerning appropriate sentence." UTaAK guidelines-based formulas 77-18-1(7). that, beyond Cone But pose policymakers, intractable dilemmas for except as foreclosed limitations my understanding of the matter is far Constitution, Utah and United States I would advocating too limited to feel confident that the under hold decision see- Thus, 76-5-302(8) my one over point the other. is more tion was committed to the broad simply It despite narrow. is the limita judge identify discretion of the the consid- appropriate regime, that he in im- tions of our current it is not our erations deemed prerogative by judicial to remake it fiat. I posing a sentence that he deemed consonant majority's approach logical stop- troubling, represent 24. The no has would be as it would a broad ping point. seriously If judicial it is and extended discretionary sentencing taken overhaul of the limits, logical today's may to its decision eventu- regime long adopted. that our law has ally require proportionality be understood to re- every imposed view of in the courts of Spellman, 25. See Paul H. Robinson & Barbara A. Utah, justice" the State of since the "interests of Matching Decisions: the Decision- presumptively are at least relevant to alf sentenc- Nature, maker to the Decision 105 Couum. L.Rev. approach even decisions. And if the court's (2005) ("[Bloth judges juries are imposed is limited to sentences under statutes properly excluded as decisionmakers because of calling expressly for consideration of the "inter- disparity problem: rely To on either is to justice," impact today's ests of decision brought allow offenders before different decision- sweeping, employed phrase will still be as that subject punishment makers to different range Supra in a wide of statutes cited above. rules."). sweeping 120, notes 19 & 20. That extension me dissent from a decision that strikes in that direction.

baseless move

2014 UT 41

Christy BUTLER, Appellant,

v. OF the OF

CORPORATION PRESIDENT OF

the CHURCH OF JESUS CHRIST SAINTS, Appellee.

LATTER-DAY

Christy Butler, Petitioner,

The Honorable Thomas L.

Kay, Respondent.

Nos.

Supreme Court of Utah.

3,Oct. 2014.

Case Details

Case Name: State v. Lebeau

Court Name: Utah Supreme Court

Date Published: Sep 19, 2014

Citation: 337 P.3d 254

Docket Number: 20120829

Court Abbreviation: Utah