State v. Gray

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                           Appellee,
                               v.
                       KIRK ROBERT GRAY,
                           Appellant.

                             Opinion
                        No. 20140027-CA
                       Filed April 28, 2016

         Third District Court, West Jordan Department
                The Honorable Mark S. Kouris
                         No. 131400643

          John B. Plimpton and Joan C. Watt, Attorneys
                         for Appellant
           Sean D. Reyes and John J. Nielsen, Attorneys
                          for Appellee

 JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
   GREGORY K. ORME concurred. JUDGE J. FREDERIC VOROS JR.
                   concurred, with opinion.

ROTH, Judge:

¶1     Kirk Robert Gray pleaded guilty to four counts of rape of
a child, one count of rape, and one count of aggravated sexual
abuse of a child. The district court imposed the statutory prison
sentences on each count and ordered them to run consecutively.
Gray argues that the district court plainly erred when it failed to
recognize that the State breached a plea agreement and failed to
provide Gray a remedy. Gray also contends that the district
court abused its discretion by imposing multiple consecutive
sentences. We affirm.
                            State v. Gray


                          BACKGROUND

¶2     In October 2013, Gray entered into a plea agreement
whereby he agreed to plead guilty to six felonies: four counts of
rape of a child, see 

(2) (LexisNexis
Supp. 2007), one count of rape, see 

 § 76-5-402(3) (Supp. 2015),
and one count of aggravated sexual abuse of a child, see id. § 76-
5-404.1(4) (Supp. 2003). In exchange, because the offenses
occurred over a period of about a decade, the State agreed to
designate the dates of some of the offenses so that they would
fall under prior statutory sentencing schemes that provided
more lenient prison sentences than the current versions of those
same statutes.1 In addition, the State agreed to recommend that
the sentences for five of the counts—four counts of rape of a
child and one count of rape—run concurrently with each other.
However, the State reserved the right to recommend that the
sentence for the sixth count—aggravated sexual abuse of a
child—run consecutive to the other sentences.

¶3      At the change of plea hearing, defense counsel recited the
amended charges, the amended dates entered for those charges,
and the potential sentence for each charge. The four counts of
rape of a child would be entered as occurring on or about April
2008, with a presumed minimum prison sentence under the law
in effect at that time of fifteen years to life, but with discretion on
the part of the sentencing judge to order a lower minimum of
either ten years or six years.2 The single rape count would be


1. Gray’s plea agreement provided that he would be sentenced
under the provisions of prior statutes which had lower
mandatory minimum prison terms for the rape of a child and the
aggravated sexual abuse of a child counts. For these counts, we
cite the earlier versions of the statutes.

2. The current version of the rape of a child statute provides for a
prison sentence of ‚not less than 25 years and which may be for
                                                      (continued<)


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                            State v. Gray


entered as occurring on or about May 15, 2013, with a minimum
mandatory sentence of five years to life. And the count of
aggravated sexual abuse of a child would be entered as
occurring on or about March 2007, which on that date also
provided for a minimum mandatory sentence of five years to
life.3 Gray orally entered his guilty pleas, confirmed that he
understood his rights and the consequences of pleading guilty,
and signed the plea agreement.

¶4     The district court scheduled a sentencing hearing for
December 17, 2013. Prior to sentencing, Adult Probation
& Parole (AP&P) completed a presentence investigation report
(PSI). The PSI provided detailed information about Gray’s
offenses, his history and circumstances, and AP&P’s overall
assessment and sentencing recommendations. With respect to
the nature and extent of Gray’s crimes, the PSI indicated that
Gray perpetrated his sexual abuse regularly—weekly and often
multiple times per week—for nearly a decade and that he
consistently badgered his victims to engage in sexual activity
with him. Both victims indicated that they suffered
consequences if they refused to comply. And both stated that
they repeatedly requested that Gray stop the abuse, but he
refused to do so, justifying his conduct with statements
indicating that he did not consider his conduct to be wrong.

¶5   AP&P recommended that the court sentence Gray to the
maximum of fifteen years to life for each of the four counts of


(<continued)
life.‛ Compare 

(3) (LexisNexis Supp.
2007), with 

 § 76-5-402.1(2)(a) (Supp. 2015).

3. The current version of the statute provides for a prison
sentence of ‚not less than 15 years and which may be for life.‛
Compare id. § 76-5-404.1(3) (Supp. 2003), with id. § 76-5-404.1(5)(a)
(Supp. 2015).



20140027-CA                      3                 

                           State v. Gray


rape of a child and five years to life for each of the rape and
aggravated sexual abuse of a child counts. AP&P also identified
four aggravating factors: the offenses ‚were characterized by
extreme cruelty or depravity,‛ including physical assault of the
victims; the ‚victim*s+ were unusually vulnerable‛ because the
abuse began when they were young children and continued for
about a decade; there was a ‚relationship of special trust‛
between Gray and his victims; and Gray ‚exhibited grooming,
stalking, or enticing behaviors,‛ including providing alcohol to
one of his victims before some of the acts of abuse. The PSI
identified no mitigating factors. AP&P further recommended
that all the sentences run consecutively.

¶6      At the sentencing hearing, Gray’s counsel requested that
the court impose a sentence ‚below the recommendation that
was made by . . . AP&P,‛ explaining that the purpose of the
amended plea was to allow Gray ‚to get out of the mandatory‛
twenty-five-to-life sentences for the four counts of rape of a child
and ‚into [the] 15 but could be six or ten‛ range. Counsel then
requested that the court impose ten years to life rather than
fifteen years to life on those four counts. In support of this
request, counsel pointed out that Gray gave up his rights to a
preliminary hearing and a trial, sparing the victims the ordeal of
testifying. Counsel also argued that the lower minimum
mandatories would allow the Board of Pardons and Parole (the
Board) ‚discretion at an earlier point in time‛ to consider Gray’s
‚behavior, his conditions, [and] his circumstances‛ in making
further sentencing determinations once the minimum time on
the concurrent sentences had run. In other words, defense
counsel contended that lower minimums would allow the Board
to consider releasing Gray at an earlier point if he were doing
well. He then stated that he believed the amended charges Gray
pleaded to were intended to ‚allow for [this+ possibility.‛
Additionally, counsel argued that there were mitigating factors,
including ‚amenability to supervision and . . . good employment
and/or family relationships,‛ in contrast to the PSI, which had
identified none.



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                          State v. Gray


¶7      The prosecutor responded that he did not believe there
was ‚a single mitigating factor in [the] case.‛ And while he
affirmed the plea agreement’s provisions that reduced the
potential maximum mandatory sentence from twenty-five years
to fifteen years for the four rape of a child counts, he did not
think there was ‚any mitigation for the Court to find that this
would be a ten-year or six-year sentence‛ instead of the
presumed fifteen years on those counts. The prosecutor argued
that whatever Gray’s successful employment history, Gray had
abused one of his victims alone ‚hundreds of times‛ and that it
was ‚pretend‛ to suggest Gray’s willingness to forgo a jury trial
amounted to meaningful mitigation. He asserted that Gray ‚did
the worst thing that you can do to a child . . . over and over to
gratify himself‛ and that this was ‚probably the most callous
case *he’d+ seen, short of homicide,‛ but also noted that while
homicide was ‚one criminal act,‛ Gray had committed ‚dozens
upon dozens‛ of criminal acts. To reinforce the point that there
was more than one victim in this case, he then stated,

      I don’t want to tell you all these things because I’m
      asking you to do more than what I’ve agreed. I’ve
      agreed to recommend the 15 to life counts to run
      concurrent with each other and I’ve agreed that the
      rape count run concurrent with those, but I have
      stated all along that I would ask that the last count,
      Count 6, run consecutive.

Immediately after making this statement, the prosecutor
reiterated that only Gray ‚could have prevented‛ the suffering
he caused his two victims and that Gray himself had ‚made his
choice to go down this road, he put himself there and put
himself in the cross-hairs.‛ He then concluded by stating, ‚[I]f
there’s ever a case where [I would] ask you to do something, I
would ask you to hand out the maximum punishment in this
case.‛




20140027-CA                    5                 

                            State v. Gray


¶8     Gray’s two victims also made statements at the hearing.
The younger victim stated that ‚[w]hat [Gray] did will affect
[her and the other victim] for the rest of [their] lives, whether it’s
physically, mentally or just memories‛ and that she hoped the
judge ‚w*ould+ punish *Gray+ in the right way so that [they
could] move on and just live [their] lives.‛ The older victim
stated that she knew ‚that *Gray was] not sorry, he [was] not
remorseful and he never will be‛ and that ‚he doesn’t feel bad
for what he did to either of [his victims].‛ She also stated that ‚if
he ever gets out of prison, he will do it again‛ and that she
hoped the judge would ‚make a decision that will make it so
that that doesn’t happen.‛

¶9     Gray made a statement at the hearing as well. He stated,
‚I truly am sorry for what I’ve done.‛ He also stated that, ‚I
knew that what I was doing was wrong,‛ that, ‚I’m not sorry for
myself, I deserve to be punished,‛ and that, ‚I’ve tried to lessen
the damage to *the affected parties+ by admitting what I’ve
done.‛ He then asked the court for ‚mercy in *its+ sentence so
that *he+ might be able to right this horrible wrong‛ and ‚make
amends to [his victims] for what *he’d+ done.‛

¶10 In response, the court stated that what Gray had done
was ‚unexcusable and unforgiveable‛ and that while defense
counsel had presented ‚very good arguments,‛ the court
‚interpret*ed+ *the case+ completely the opposite way.‛ In
rejecting defense counsel’s arguments regarding mitigation, the
court indicated that the ‚issue‛ for the court was that it had
‚rarely ever seen this sort of conduct at the level that [Gray]
[took] it.‛ The court also agreed with one of Gray’s victims who
had said that she thought Gray felt ‚more sorry for *himself]
than‛ for his victims, and the court observed that ‚[t]he reason
[there was no] preliminary hearing [was] because it saved
*Gray+‛ from ‚a 25 to life instead of‛ fifteen to life sentence for
each of the rape of a child counts. The court also stated its belief
that Gray ‚wouldn’t have a problem‛ ‚put[ting] these [victims]
through anything,‛ that it saw ‚no redeeming value in anything



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                           State v. Gray


*Gray had+ ever done,‛ that what Gray’s victims ‚went through
was worse than death,‛ and that the court considered Gray’s
oldest victim coming forward to report Gray’s offenses as ‚the
hardest thing in the world‛ to have done. The court went on to
say that Gray’s victims would ‚live with this for the rest of their
[lives+‛ and that it was going to ‚write a letter to the Board of
Pardons‛ to tell them what Gray had ‚put *his victims] through‛
and to encourage the Board to keep Gray in prison for life so that
his victims would ‚never, ever have to worry about‛ future
interactions with Gray again.

¶11 The court sentenced Gray to fifteen years to life on each of
the four rape of a child counts, five years to life on the rape
count, and five years to life on the aggravated sexual abuse of a
child count. He ordered that all sentences run consecutively.
Gray appeals.


                      ISSUES ON APPEAL

¶12 Gray first contends that the State breached the plea
agreement when it asked the district court to impose the
‚maximum punishment in this case‛ despite agreeing to
‚recommend concurrent sentences on five of the six counts of
conviction.‛ Gray concedes that this claim is not preserved but
he asserts that the court plainly erred by failing to recognize the
State’s breach and provide Gray a remedy. See State v. King, 

, 

 (‚We have consistently held that a
defendant who fails to preserve an objection at trial will not be
able to raise that objection on appeal unless he is able to
demonstrate either plain error or exceptional circumstances.‛4).




4. Gray does not contend that there were exceptional
circumstances. Thus, we only consider Gray’s claims that the
district court committed plain error.



20140027-CA                     7                

                          State v. Gray


¶13 Gray next contends that the district court abused its
discretion by imposing consecutive sentences, which he argues
are ‚tantamount to imposing life without the possibility of
parole‛ ‚in [a] manner that deprived the Board of Pardons of
discretion to take into account Gray’s future conduct and
possible progress towards rehabilitation.‛


                          ANALYSIS

                I. Breach of the Plea Agreement

¶14 Gray contends that because the State agreed to
recommend concurrent rather than consecutive sentences on the
first five counts, the prosecutor breached the plea agreement
when he asked the district court to impose the ‚maximum
punishment.‛ Gray asserts that, in context, requesting the
‚maximum punishment‛ was equivalent to asking for
consecutive rather than concurrent sentencing on all counts.5 He
argues that the district court ought to have recognized this as a
breach of the plea agreement and then provided Gray a remedy
sua sponte, either by allowing him to withdraw his plea or by

5. In oral argument on appeal, Gray asserted that the State
breached the agreement in two ways—by asking for ‚maximum
punishment‛ and by not recommending concurrent sentencing
on the first five counts. However, in light of the fact that the
court was aware of the concurrent sentencing recommendation,
we do not view the two as substantively distinct; rather, they
seem to be two sides of the same coin. For the prosecutor’s
‚maximum punishment‛ statement to have been a breach, the
prosecutor would necessarily have had to urge the court to
impose consecutive rather than concurrent sentences on the first
five counts, contrary to the recommendation the State had
agreed to make. Thus, Gray’s argument is essentially that by
asking for the ‚maximum punishment,‛ the prosecutor was, in
effect, negating the recommendation for concurrent sentencing.



20140027-CA                    8                

                           State v. Gray


ordering specific performance of the plea agreement in another
sentencing hearing before a different judge. See State v. Smit,

, 

 (‚[W]hen a plea agreement
is breached by the prosecutor, the proper remedy is either
specific performance of the plea agreement or withdrawal of the
guilty plea[,] both at the discretion of the trial judge.‛).

¶15 However, because Gray’s counsel did not assert any
breach of the plea agreement during the sentencing hearing,
Gray is not entitled to the remedy he seeks unless he can
demonstrate plain error. A party asserting plain error must
prove that ‚(i) *a+n error exists; (ii) the error should have been
obvious to the trial court; and (iii) the error is harmful, i.e.,
absent the error, there is a reasonable likelihood of a more
favorable outcome for the *defendant+.‛ See State v. Shaffer, 

, 

 (alterations in original) (citation
and internal quotation marks omitted). In this case, Gray must
prove that the State actually breached the plea agreement, that
the breach should have been obvious to the district court, and
that had the district court recognized and remedied the breach,
there is a reasonable likelihood that Gray’s sentence would have
been more favorable. ‚If any one of th[ese] requirements is not
met, plain error is not established.‛ State v. Casey, 

,
¶ 41, 

 (citation and internal quotation marks
omitted). We conclude that it would not have been obvious to
the district court that the prosecutor had committed any breach
of the plea agreement and therefore Gray has not established
plain error.

¶16 When a defendant alleges that the State violated a plea
agreement by making inappropriate statements at sentencing, as
Gray does here, we consider the prosecutor’s statements in the
‚context of the entire hearing.‛ Shaffer, 

. In
Shaffer, the defendant claimed that certain statements by the
prosecutor undermined the plea agreement. Id. ¶ 25. The
statement the Shaffer court was ‚most concerned‛ about related
to ‚the State[’s] [agreement] to recommend that Shaffer be



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                           State v. Gray


sentenced to a suspended prison sentence and two years in jail
with credit for time served.‛ Id. ¶¶ 3, 33. At the time of
sentencing, Shaffer had served ‚just over thirteen months‛ in
jail. Id. ¶ 5. The State, however, argued to the court that
‚Shaffer’s behavior warrants, at minimum, another year in jail
followed by 36-months probation.‛ Id. ¶ 7 (emphasis added)
(internal quotation marks omitted). Shaffer argued on appeal
that the ‚at minimum‛ language undermined the State’s
agreement to recommend only one more year of jail time, taking
into account the time already served. Id. ¶ 9. We disagreed,
noting that the State made its ‚at minimum‛ statement ‚in the
context of the prosecutor’s discussion of probation conditions‛
and that in the context of the entire hearing, the impact of the
statement was ‚minimal‛ where it was ‚clear that the State’s
overall posture was one of support for the sentence it
recommended to the trial court.‛ Id. ¶¶ 33–34. We concluded
that while the statement was worrisome, ‚[i]n the context of the
entire hearing, the ‘at minimum’ statement did not undermine
the recommendation so as to constitute a plain breach of the plea
agreement.‛ Id. ¶ 33.

¶17 Similarly, in this case, the context of the hearing as a
whole does not support Gray’s claim that the State breached its
agreement when it urged the district court ‚to hand out the
maximum punishment in this case.‛ And even assuming the
prosecutor’s statement transgressed, any breach would not have
been obvious to the district court.

¶18 The prosecutor made essentially two arguments during
his sentencing statement. First, he responded to defense
counsel’s argument that there were mitigating circumstances
that supported a ten year minimum mandatory for the four
counts of rape of a child by contending that there was not ‚a
single mitigating factor‛ to justify a sentence of less than fifteen
years to life on those counts. He described the circumstances of
the crimes to underscore this point, and at the conclusion of this
discussion, he accurately, if not enthusiastically, described the



20140027-CA                     10                

                           State v. Gray


recommendation the State had agreed to make for concurrent
sentences on the first five counts. Second, the prosecutor
asserted that while he was recommending that the first five
counts run concurrently in accordance with the plea agreement,
he had ‚stated all along that *he+ would ask that the last count,
Count 6, run consecutive‛ in order ‚to represent the fact that
there [were two] victims in this case.‛ Although the prosecutor
requested that the court impose the ‚maximum punishment‛ at
the conclusion of his presentation, we conclude that in the
context of the entire sentencing hearing, that statement cannot
reasonably be interpreted as amounting to a recantation of the
State’s promised recommendation. Nor do we think that the
statement impermissibly undermined the prosecutor’s promise
by conveying improper ‚regret‛ or ‚personal reservations.‛ See
id. ¶ 26. Instead, the context supported a reasonable
interpretation that comported with, rather than departed from,
the State’s obligations under the plea agreement.

¶19 In this regard, the plea agreement’s sentencing
recommendations themselves form an important part of the
context in which the prosecutor’s statements must be
interpreted. In particular, the plea agreement left open for
argument important aspects of the sentence. For instance, while
the agreement assured Gray the benefit of a significantly lower
range of minimum mandatory sentences on the four counts of
rape of a child, it did not constrain the State from arguing that
the court should impose the maximum fifteen year minimum
sentence rather than the six or ten year minimum that Gray’s
counsel urged. In addition, while the State agreed to a
recommendation that the sentences on five of the counts be
imposed concurrently, it reserved the right to argue for a
consecutive sentence on the sixth count, a point that the
prosecutor acknowledged when he described the plea
agreement’s sentencing recommendation to the district court.
Thus, the agreement’s sentencing recommendation encompassed
a potential range of punishment from a minimum of six years to
life on the first four counts, with concurrent sentencing on all six



20140027-CA                     11                

                            State v. Gray


counts, to a maximum of fifteen years to life on the first four
counts, with five counts concurrent and the sixth consecutive.
Within this range, Gray could argue for leniency and the State
for relative rigor.

¶20 At the sentencing hearing, both counsel took advantage of
the opportunities the plea agreement afforded them. Gray’s
counsel, citing positive aspects of Gray’s history in mitigation,
urged the court to impose the middle option of ten years to life
on the first four counts and to run the sentences on all six counts
concurrently. The prosecutor responded that the circumstances
justified nothing less than the presumptive fifteen years to life on
the four rape of a child counts and opposed counsel’s assertion
of mitigating circumstances with a description of the severity of
the crimes, emphasizing that there were two young victims
whom Gray had abused for years. Then, to ensure that the
district court did not interpret his impassioned plea as a request
that the court go beyond the bounds of the plea agreement, the
prosecutor stated, ‚I don’t . . . tell you all these things because
I’m asking you to do more than what I’ve agreed,‛ and
proceeded       to   recount     the     agreement’s       sentencing
recommendations, including the specific recommendation for
concurrent sentences on five of the counts. See State v. Shaffer,

, 

 (stating that ‚a prosecutor
has     no     responsibility   to     make     [its   agreed-upon]
recommendations enthusiastically‛ and that ‚[i]f the prosecutor
promises to recommend a certain sentence and does so, [s]he has
not breached the bargain by also bringing all relevant facts to the
attention of the court‛ (third alteration in original) (citations and
internal quotation marks omitted)). Thus, in context, the
prosecutor’s ‚maximum punishment‛ statement is reasonably
seen as an argument that the district court impose the maximum
sentence contemplated by the plea agreement, in counterpoise to
the argument of Gray’s counsel for a sentence nearer the
agreement’s minimum.




20140027-CA                     12                 

                           State v. Gray


¶21 As a consequence, we are not persuaded that there was
any breach of the plea agreement, much less that the alleged
breach would have been obvious to the district court.6 See 

¶¶ 33–35 (where it was ‚clear that the State’s overall posture was
one of support for the sentence it recommended to the trial
court,‛ the context in which the ‚at minimum‛ statement was
made precluded the prosecutor’s recommendation from being a
plain breach); see also State v. Friel, 

, ¶¶ 8–9, 

 (determining that an alleged mischaracterization of the
plea agreement was not obvious to the court because the district


6. Gray does not raise an ineffective assistance of counsel claim
on appeal. But, even so, we also note that defense counsel did
not object to the prosecutor’s request for ‚maximum
punishment‛ at any point during the sentencing hearing or
request a correction from the court. Moreover, even in his final
statement to the court, which followed on the heels of the
prosecutor’s request for ‚maximum punishment,‛ defense
counsel simply reiterated his request that the sentence be
imposed in a manner that would allow the Board to evaluate
Gray ‚some ten or 15 or more years down the road.‛ He did not
refer to the prosecution’s ‚maximum punishment‛ request or
object to its characterization of the agreement. While defense
counsel’s inaction is certainly not dispositive, his silence
suggests that he saw no error in the prosecutor’s presentation
worthy of correction and reinforces our conclusion that the
alleged breach, if any, was not obvious. See Puckett v. United
States, 

 (2009) (noting that ‚*i+mportantly, at no
time during the exchange did Puckett’s counsel object that the
Government was violating its obligations under the plea
agreement‛); see also State v. Friel, 

, 

 (noting that, because defendant ‚never alerted the district
court‛ that she believed ‚the State’s characterization of the plea
agreement did not comport with her understanding‛ of it, her
disagreement ‚would not have been obvious‛ to the district
court).



20140027-CA                    13                

                            State v. Gray


court ‚could have reasonably believed‛ that the defendant
‚understood that the plea agreement’s benefits were contingent
upon *defendant’s+ compliance‛ with a particular presentencing
order requirement). Because Gray has not demonstrated that the
prosecutor’s breach was an error that should have been obvious
to the district court, we need not consider whether the alleged
error was harmful. Rather, ‚if any one of these requirements is
not met, plain error is not established.‛ State v. Casey, 

, ¶ 41, 

 (citation and internal quotation marks
omitted).

                     II. Consecutive Sentences

¶22 Gray next argues that the district court abused its
discretion by ‚ordering all of [his] sentences to run
consecutively‛ for an aggregate minimum term of seventy years
in prison. He contends that his sentence is an abuse of discretion
because it is ‚tantamount to imposing life without the possibility
of parole‛ and contravenes the policy of providing the Board
with ‚wide latitude in deciding what a maximum sentence
ought to be.‛ In this regard, Gray contends that the Utah
Supreme Court’s decisions in State v. Galli, 

 (Utah
1998), State v. Smith, 

 (Utah 1995), and State v. Strunk,

 (Utah 1993), ‚compel the conclusion that the
sentencing court‛ abused its discretion ‚by imposing *a+
sentence[] that amount[ed] to a 70-year minimum term.‛

¶23 We will not overturn a sentence ‚unless the trial court has
abused its discretion, failed to consider all legally relevant
factors, or imposed a sentence that exceeds legally prescribed
limits.‛ State v. Nuttall, 

 (Utah Ct. App. 1993);
see also State v. Helms, 

, 

 (stating that an
appellate court ‚traditionally afford*s+ the trial court wide
latitude and discretion in sentencing‛ (alteration in original)
(citation and internal quotation marks omitted)). Because
sentencing ‚reflects the personal judgment of the court, . . . a
sentence imposed by the trial court should be overturned only
when it is inherently unfair or clearly excessive.‛ Helms, 

-CA                      14                

                           State v. Gray


12, ¶ 14. In this regard, ‚*a+ court abuses its discretion in
imposing consecutive sentences only if no reasonable [person]
would take the view [adopted] by the *sentencing+ court.‛ State
v. Thorkelson, 

, 

 (second and
fourth alterations in original) (citation and internal quotation
marks omitted).

A.    Utah Courts May Impose Multiple Consecutive Sentences

¶24 Gray contends that the district court abused its discretion
by imposing all six of his sentences consecutively because, given
that Gray was thirty-nine years old when he was sentenced,
there is no reasonable probability that he will live to be paroled
and, consequently, the Board will be deprived of the ability to
exercise meaningful review of his progress toward parole or to
release him ‚during his lifetime.‛7 We understand his argument
to be that it is fundamentally unreasonable for a court to impose
consecutive sentences that practically result in a sentence of life
without the possibility of parole. The State counters that Gray’s
concerns regarding the Board’s discretion are allayed by a 1996
statutory amendment that granted the Board discretion to
‚release any offender before the minimum term has been
served‛ if it finds ‚mitigating circumstances [to] justify the
release.‛ See 

(1)(a), (b) (LexisNexis
2012). In essence, the State argues that because the Board now
has authority to release an offender who is sentenced to prison
for crimes like Gray’s before the expiration of the minimum
mandatory portion of the sentence if mitigating circumstances
justify it, Gray’s sentence should not be considered the
equivalent of life without parole. The State also asserts that even


7. As the State notes, Gray does not argue that, given the specific
circumstances of his case, it was an abuse of discretion for the
district court to impose any consecutive sentence at all; in fact,
the plea agreement expressly contemplated the potential for at
least one consecutive term.



20140027-CA                    15                

                            State v. Gray


if the Board did not have authority to release him early, Gray
‚has not shown that the trial court abused its discretion [in
imposing consecutive sentences] under the appalling facts of this
case.‛

¶25 To determine whether it was an abuse of discretion for
the district court to have imposed consecutive sentences for all of
Gray’s offenses, we first consider whether it is a per se abuse of
discretion for a district court to impose multiple consecutive
sentences of this length upon an offender under our sentencing
statute, Utah Code section 76-3-401. Because we conclude it is
not, we next consider whether the principles underlying the
cases Gray primarily relies upon or policy considerations related
to the Board’s authority to grant parole require us to set aside
Gray’s sentences. Finally, we will consider whether Gray has
provided us any other basis upon which to vacate or modify his
sentence.

1.     The Sentencing Statute Permits the Imposition of Multiple
       Consecutive Sentences.

¶26 When we interpret statutes, ‚our primary goal is to evince
the true intent and purpose of the [l]egislature‛ and ‚[t]he best
evidence of the legislature’s intent is the plain language of the
statute itself.‛ Marion Energy, Inc. v. KFJ Ranch P’ship, 

, 

 (citations and internal quotation marks
omitted). Thus, we presume that the legislature ‚used each term
advisedly according to its ordinary and usually accepted
meaning.‛ 

 (citation and internal quotation marks omitted).

¶27 The legislature has explicitly empowered sentencing
courts to impose consecutive sentences. See 

(1), (2). The statute provides that courts may impose
consecutive sentences on ‚a defendant [who] has been adjudged
guilty of more than one felony offense‛ if the facts and
circumstances of the case warrant it. 

 Prior to 2002, the statute
expressed a preference for concurrent sentences, providing that
‚*s+entences for state offenses shall run concurrently unless the


20140027-CA                     16                 

                           State v. Gray


court states in the sentence that they shall run consecutively.‛ 

§ 76-3-401(1) (LexisNexis 1999); see also State v. Galli, 

 (Utah 1998) (‚We have stated, ‘*Utah Code Ann. section
76-3-401+ favors concurrent sentences.’‛ (quoting State v. Strunk,

 (Utah 1993))). However, in 2002, the
legislature adopted more neutral language, with the current
version of Utah Code section 76-3-401 simply stating that in the
case of a defendant who is convicted of multiple felonies, ‚*a+
court shall determine . . . whether to impose concurrent or
consecutive sentences.‛ See 

(1)
(LexisNexis 2012); see also 

 § 76-3-401(2). The court must take
into account certain factors in deciding whether to impose
consecutive sentences: ‚the gravity and circumstances of the
offenses, the number of victims, and the history, character, and
rehabilitative needs of the defendant.‛ Id. § 76-3-401(2).

¶28 There is no statutory language restricting the number of
consecutive terms a court may impose on an offender. Instead,
the only stated limitation on the number of consecutive
sentences is found in subsection 76-3-401(6), which by its terms,
is inapplicable to Gray’s sentences. It states that ‚if a court
imposes consecutive sentences, the aggregate maximum of all
sentences imposed may not exceed 30 years imprisonment,‛
unless one of two conditions is met: either ‚(i) an offense for
which the defendant is sentenced authorizes the death penalty
or a maximum sentence of life imprisonment; or (ii) the defendant is
convicted of an additional offense based on conduct which
occurs after his initial sentence or sentences are imposed.‛ Id.
§ 76-3-401(6)(a), (b) (emphasis added). The statute also qualifies
this limitation on time served with the statement that ‚*t+his
section may not be construed to restrict the number or length of
individual consecutive sentences that may be imposed or to
affect the validity of any sentence so imposed.‛ Id. § 76-3-401(10).
While the limitation applies to maximum sentences rather than
to the length of minimum mandatory sentences, the fact that the
legislature included such a specific limitation only for non-firstdegree felonies emphasizes the absence of any statutory



20140027-CA                     17                

                            State v. Gray


limitation on consecutive sentences applicable to offenses subject
to maximum terms of life imprisonment. See Marion Energy, 

 (stating that we ‚presume*+ that the expression of
one [term] should be interpreted as the exclusion of another‛
and that we ‚therefore seek to give effect to omissions in
statutory language by presuming all omissions to be purposeful‛
(alterations in original) (citation and internal quotation marks
omitted)).

¶29 In addition, it is worth noting that the legislature has
increased rather than decreased the minimum mandatory term
of imprisonment for sexual offenses against children in recent
years,8 and it has done so without making any change in the
sentencing statute to limit the number of consecutive sentences
that a court may impose upon a defendant, who, like Gray, is
convicted of multiple offenses that permit life imprisonment
with relatively high minimum mandatories. See 

(2)(a) (LexisNexis Supp. 2015) (increasing the
minimum term of imprisonment for a rape of a child conviction
to ‚25 years and which may be for life‛); 

 § 76-3-401 (2012). For


8. The penalties for other offenses against children have
increased in recent years as well. Compare 

-
5-301.1(3) (LexisNexis Supp. 2003) (providing that first degree
felony child kidnapping is punishable under ordinary
circumstances by ‚imprisonment for an indeterminate term of
not less than 6, 10, or 15 years and which may be for life‛), and 

§ 76-5-403.1(2)(a) (Supp. 2007) (providing that first degree felony
sodomy on a child is punishable by ‚not less than 15 years and
which may be for life‛), with id. § 76-5-301.1(3) (Supp. 2015)
(providing that first degree felony child kidnapping is
punishable by a term of imprisonment ‚not less than 15 years
and which may be for life‛), and id. § 76-5-403.1(2)(a) (Supp.
2015) (providing that first degree felony sodomy on a child is
punishable by ‚not less than 25 years and which may be for
life‛).



20140027-CA                     18                 

                           State v. Gray


instance, had Gray been sentenced consecutively under the
current version of the rape of a child statute, his total sentence
would have been a minimum of 110 years imprisonment
(including the other two offenses to which he pleaded guilty)
rather than seventy. Further, under the current version, even one
twenty-five year minimum sentence imposed on a person a
dozen years older than Gray could, as a practical matter,
potentially amount to life without parole, while a defendant
convicted of two counts of rape of a child could face a minimum
mandatory sentence of fifty years imprisonment if sentences
were imposed consecutively. And yet, the legislature has not
chosen to adopt any limitation on the number or effect of
consecutive sentences in such circumstances. Rather, under the
plain language of the statute, the only limitation on consecutive
sentences continues to be the requirement that the sentencing
court appropriately consider the statutory factors—‚the gravity
and circumstances of the offenses, the number of victims, and
the history, character, and rehabilitative needs of the defendant.‛

 § 76-3-401(2).

2.     Precedent Does Not Foreclose the Possibility of Multiple
       Consecutive Sentences.

¶30 Even if the statute itself does not prohibit stacking
consecutive sentences in a manner that may effectively amount
to life imprisonment without a possibility of parole, Gray
contends that our supreme court has determined that
preservation of the Board’s statutory discretion to permit release
after the minimum term of an indeterminate life sentence is an
overriding factor in a case such as this. In particular, he contends
that three supreme court decisions—State v. Galli, 

(Utah 1998), State v. Smith, 

 (Utah 1995), and State v.
Strunk, 

 (Utah 1993)—compel the conclusion that
consecutive sentences may not be imposed if they deprive the
Board of the ability to parole an offender during the offender’s
probable lifetime. In each of those decisions, our supreme court
held that the imposition of multiple consecutive sentences was



20140027-CA                     19                

                           State v. Gray


an abuse of discretion, focusing particularly on the way those
stacked minimum mandatory sentences impaired the Board’s
discretion to release an offender at an earlier point in time if
warranted by rehabilitative progress. In each case, the court
vacated the consecutive sentences and remanded the cases for
resentencing.

¶31 However, Gray’s argument misconstrues the current
scope of the Board’s role and authority within Utah’s
indeterminate sentencing scheme and too narrowly interprets
the cases themselves. Each of Gray’s convictions carries the
possibility of life imprisonment, and ordinarily, the Board shall
construe an indeterminate sentence ‚to be a sentence for the
term between the minimum and maximum periods of time
provided by law [that] shall continue until the maximum period
has been reached unless sooner terminated or commuted‛ by the
Board. See 

(3) (LexisNexis 2012).
Consequently, the sentencing court and the Board have ‚two
separate and distinct powers‛ in our indeterminate sentencing
scheme: the sentencing court ‚must set an indeterminate
sentence as provided by statute,‛ and the Board then ‚exercises
its constitutional authority to commute or terminate an
indeterminate sentence that, but for the Board’s discretion,
would run until the maximum period is reached.‛ Padilla v. Utah
Bd. of Pardons & Parole, 

 (Utah 1997). Thus,
indeterminate sentencing is designed to ‚give the Board of
Pardons wide latitude in deciding what a maximum sentence
ought to be.‛ Smith, 

; see also Padilla, 

 (‚By its very term, the indeterminate sentence shall continue
until the maximum period expires unless the Board, in its
discretion, terminates or commutes the punishment or pardons
the offender.‛ (citation and internal quotation marks omitted)).

¶32 Although the Board’s role in determining the maximum
sentence is clearly important to the assessment of the
‚rehabilitative needs‛ factor, that role is not the only
consideration in play when a defendant is sentenced to



20140027-CA                    20                

                            State v. Gray


consecutive terms. Gray seems to argue that under Smith, Strunk,
and Galli, any consecutive sentence that significantly intrudes
upon the Board’s ability to parole an offender is an abuse of
discretion, regardless of the evidence presented regarding the
other consecutive sentencing factors under section 76-3-401. But
the supreme court decided each of those cases based on the
totality of the circumstances and the evidence related to the
statutory factors, including the need to preserve Board discretion;
limitation on the Board’s discretion, while a significant
consideration, was not the only factor that justified reversal in
those cases. Indeed, the court in Smith specifically limited its
ruling ‚to the facts of *that+ case‛ and stated that it did ‚not
mean to imply by [the] ruling that consecutive sentences are
never appropriate.‛ Smith, 

.

¶33 Further, all three cases characterized the Board’s ability to
grant parole as implicating just one of the consecutive sentencing
factors—the defendant’s rehabilitative needs—among the
several factors that a district court must consider under section
76-3-401. The court in Smith stated that the Board’s latitude to
decide what a maximum sentence ought to be, based upon
‚defendant’s subsequent behavior and possible progress toward
rehabilitation while in prison,‛ was ‚*a+n additional and highly
important factor‛ along with those listed in section 76-3-401. 

. And both Galli and Strunk characterized the Board’s
flexibility to release an inmate earlier than consecutive sentences
would permit as a consideration under the general
‚rehabilitative needs of the defendant.‛ Galli, 

(stating that ‚*t+he imposition of concurrent rather than
consecutive sentences better serves Galli’s rehabilitative needs
by allowing the Board . . . to release him from prison [sooner] . . .
if he has shown genuine progress toward rehabilitation‛);
Strunk, 

 (reversing the consecutive sentencing to
‚afford the Board of Pardons the flexibility to adjust Strunk’s
prison stay to match his progress in rehabilitation and
preparation to return to society‛). In other words, these cases
characterized the Board’s ability to grant parole as an integrated



20140027-CA                     21                 

                            State v. Gray


component of the rehabilitative needs factor that must be
balanced along with, and not apart from, the other required
factors under section 76-3-401.

¶34 For instance, in Smith, the defendant was convicted of
aggravated kidnapping, rape of a child, and two counts of
sodomy on a child, all first degree felonies, based on events that
occurred in a single criminal episode where the defendant
kidnapped a six-year-old child at knife point, drove her to a
remote location, and sexually assaulted her. 909 P.2d at 238–39.
The sentencing court imposed consecutive sentences on all
counts, resulting in a minimum mandatory sentence of sixty
years to life. Id. at 238. The supreme court noted that although
the sentencing court had considered all required factors under
Utah Code section 76-3-401 when it imposed consecutive
sentences, the length of the aggregate mandatory minimum
sentences meant that the Board would have ‚no discretion to
release defendant, irrespective of his progress, until sixty years
ha[d] elapsed.‛ Id. at 244. The supreme court also deemed it
significant that even though the ‚defendant was convicted of
four crimes, . . . all of them arose out of one criminal episode.‛ Id.
at 245. Ultimately, the supreme court concluded that the district
court’s imposition of consecutive sentences was ‚unreasonable
and an abuse of discretion‛ because the sentences amounted
essentially to ‚a minimum mandatory life sentence—a sentence
that the Legislature has only permitted for capital murder‛ that
‚deprive*d+ the Board of Pardons of discretion to take into
account defendant’s future conduct and possible progress
toward rehabilitation.‛ Id. at 244–45.

¶35 In Strunk, a sixteen-year-old boy kidnapped a six-year-old
girl, molested her, and killed her. 

. He pleaded
guilty to first degree murder, child kidnapping, and aggravated
sexual abuse of a child. 

 The district court ordered the
sentences for each count ‚to run consecutively.‛ 

 The supreme
court reversed, concluding that the imposition of consecutive
sentences ‚rob[bed] the Board of Pardons of any flexibility to



20140027-CA                      22                

                           State v. Gray


parole Strunk sooner.‛ Id. at 1301. In particular, it concluded that
‚in light of *Strunk’s+ extreme youth and the absence of prior
violent crimes,‛ the district court failed ‚to sufficiently consider
*Strunk’s] rehabilitative needs‛ when it imposed consecutive
sentences. Id. at 1302. The case was remanded to the district
court with instructions to order ‚all three terms . . . to run
concurrently to afford the Board of Pardons the flexibility to
adjust Strunk’s prison stay to match his progress in
rehabilitation and preparation to return to society.‛ Id.

¶36 And finally, in Galli, the defendant pleaded guilty to three
aggravated robberies committed within a three-month period.
State v. Galli, 

 (Utah 1998). Prior to sentencing,
he fled the state, but he was eventually recaptured three years
later. 

. He was sentenced in separate cases to three
consecutive terms of five years to life. 

 at 932–33. The supreme
court concluded that the sentencing courts had abused their
discretion in sentencing him to consecutive terms and reversed.

 at 938–39. In particular, the supreme court concluded that the
courts had not given proper weight to certain sentencing factors.

. For example, the supreme court noted that, while Galli
pleaded guilty to aggravated robbery, he had not injured anyone
during the commission of the crimes, the weapon that
aggravated the charges was a pellet gun ‚incapable of inflicting
serious injury,‛ and the amount of money he actually took was
quite small. 

 The court also noted that his prior criminal
history was minor (traffic offenses and one misdemeanor theft)
and that there were facts regarding his character—among them,
that he had voluntarily confessed and had ‚obeyed the law,
helped his neighbors, and was a productive individual‛ during
the three years prior to being recaptured—that suggested he was
willing and able to improve himself. 

 Finally, the court also
concluded that the consecutive sentences were ‚not in accord
with [his] rehabilitative needs‛ because he had demonstrated the
ability to be rehabilitated during the three years he was out of
state and that the ‚imposition of concurrent rather than
consecutive sentences better serve[d] *his+ rehabilitative needs‛



20140027-CA                     23                

                           State v. Gray


because it would allow the Board ‚to release him from prison
after five years if he [had] shown genuine progress toward
rehabilitation.‛ 

¶37 In each of these cases, the court did not decide to reverse
the consecutive sentencing decisions simply because the
minimum mandatory prison terms were overly lengthy given
the age and probable lifespan of the sentenced defendant. Nor
did the court reverse the consecutive sentences simply to allow
the Board flexibility to parole the defendants at an earlier point
in time—although that was an important consideration. Rather,
in addition to expressing concerns about tying the Board’s
hands, the court pointed to specific facts in each case that bore
on other statutory consecutive sentencing factors, including the
nature of the crime, previous criminal history, character, and
rehabilitative potential of the defendant, and the defendant’s
youth. In Smith, even though the defendant’s crimes were
‚heinous,‛ the court considered it significant that all of the
offenses ‚arose out of one criminal episode‛ and that the Board
had ‚no discretion‛ to release Smith early even if his ‚future
conduct and possible progress toward rehabilitation‛ warranted
it. 909 P.2d at 244–45. In this regard, the court seemed to be
implicitly stating that it believed the circumstances surrounding
Smith’s crimes suggested that there existed at least a possibility
that Smith might be rehabilitated before the end of a prison
commitment sixty years in the future. In Strunk, the supreme
court reversed ‚in light of *Strunk’s+ extreme youth and the
absence of prior violent crimes.‛ 

. And in Galli, it
was the combination of circumstances—the nature of his crime,
his history, his character, and his proven rehabilitative
potential—that convinced the court the consecutive sentences
were an abuse of discretion. 967 P.2d at 938–39.

¶38 Furthermore, to the extent that Gray’s argument rests on a
contention that the district court inadequately considered his
rehabilitative needs given his age, we have previously observed
that a defendant’s age may actually ‚minimize his prospects for



20140027-CA                     24                

                           State v. Gray


rehabilitation‛ and instead ‚exacerbate . . . his culpability.‛ See
State v. Nuttall, 

, 457–58 (Utah Ct. App. 1993). In
Nuttall, the defendant was fifty-six years old and had sexually
abused multiple children over a twenty-year period. 

.
He pleaded guilty to two counts of aggravated sexual abuse of a
child and was sentenced to serve two consecutive minimum
mandatory terms, each nine years to life. 

. The
defendant argued that ‚the trial court should have considered
his advanced age as a mitigating factor,‛ and that ‚the
juxtaposition of his age and the consecutive sentences impose[d]
an unfair delay‛ regarding his ability to enter sex offender
rehabilitation or his eligibility for parole. 

 (footnote
omitted). In particular, he used Strunk to support his argument,
asserting that Strunk ‚stands for the proposition that a court
must look at the defendant’s age—whether young or old—as a
mitigating factor.‛ 

 at 456–57. However, we rejected the
analogy to Strunk, concluding that ‚defendant’s age and the
number of years he has engaged in pedophilic activity actually
minimize[d]       his     prospects    for   rehabilitation    and
exacerbate[d] . . . his culpability‛ and that Strunk ‚stands only
for the proposition that young age—not old age—may be a
mitigating factor.‛ 

 at 457–58.

¶39 Thus, none of the cases Gray relies on stand for the
proposition that the imposition of a lengthy sentence that may
not allow for a realistic possibility of parole by the Board is
automatically an abuse of discretion. Instead, these cases support
the conclusion that in deciding whether lengthy consecutive
sentences may be imposed, preservation of the Board’s flexibility
to parole defendants earlier than consecutive minimum
mandatory sentences would allow may not always outweigh all
other factors. Rather, courts must consider the totality of the
circumstances in determining whether a district court has
abused its discretion by imposing consecutive sentences that
carry lengthy minimum mandatory terms. In other words, we
must consider whether, under all of the circumstances, the




20140027-CA                    25                

                            State v. Gray


particular consecutive      sentences       imposed    were   ‚clearly
excessive.‛

3.     Subsequent Legislation Has Moderated Concerns About
       Interference with the Board’s Discretion to Grant Parole.

¶40 Finally, as the State pointed out in its briefing, the Board’s
authority to parole a defendant has been enhanced since Smith,
Strunk, and Galli were decided. Before 1996, during the period
when Smith and Strunk were decided, the Board had no
authority to parole offenders sentenced to prison like Gray
before they had served their minimum terms. See 

(1), (2)(a) (Michie 1995). This restriction was
specifically reiterated with respect to certain first degree felonies
against children, such as rape or aggravated sexual abuse of a
child, where the relevant sentencing statute prohibited release
from incarceration until the ‚offender ha*d+ fully completed
serving the minimum mandatory sentence imposed by the
court.‛ 

 § 77-27-9(2)(a).

¶41 In 1996, however, the legislature amended the statute to
grant the Board authority to ‚release any offender before the
minimum term has been served [if] the board finds mitigating
circumstances which justify the release,‛ subject to ‚a full
hearing‛ and appropriate notice, presumably to victims and
other interested parties. See id. § 77-27-9(1)(a), (b) (LexisNexis
2012). Contemporaneously with that change, the specific
restriction on early release for certain crimes against children,
such as those at issue in this case, was removed from the statute.
See id. As a result, the Board now has discretion to release an
inmate who is sentenced to prison for the crimes Gray has been
convicted of before the inmate has served an otherwise
mandatory minimum term.

¶42 Though it is possible that the Board will consider its
discretion to release an inmate before he has served the
minimum sentence to be more constrained than its usual parole
authority, the term ‚mitigating circumstances‛ seems broad


20140027-CA                     26                    

                            State v. Gray


enough to contemplate considerations of age, health, progress in
rehabilitation, the possibly changing attitudes and needs of
victims, or even the sheer length of a sentence, among other
things that could be considered as supporting a decision to
alleviate or make less severe a minimum mandatory sentence.9
See Alvillar v. Board of Pardons & Parole, 

, 

 (per curiam) (stating that ‚the Board may consider and
weigh any factors that it deems relevant to its determination of
whether or not an inmate will be afforded parole, which is
precisely the kind of issue *that is+ not subject to judicial review‛
(alteration in original) (citation and internal quotation marks
omitted)); Godfrey v. Board of Pardons & Parole, 

, 

 (per curiam) (‚The [sentencing] guidelines
are merely estimates that reflect what may be a typical term.
The Board retains full discretion to determine incarceration
terms on an individual basis considering the unique facts of
each case.‛); see also 2015 Adult Sentencing & Release Guidelines,
‚Aggravating and Mitigating Circumstances,‛ 21, http://www.utah.
gov/pmn/files/172049.pdf [https://perma.cc/8A45-95KE] (noting


9. The term ‚mitigating circumstances‛ is not defined
by statute, nor has it been judicially interpreted. But a
common meaning of the word ‚mitigate‛ is ‚to make less
severe.‛ See Mitigate, Dictionary.com, http://www.dictionary.
com/browse/mitigate        [https://perma.cc/AH3K-B7LP];          see
also Merriam-Webster.com,       http://www.merriam-webster.com/
dictionary/mitigate [https://perma.cc/QWV8-XK7A], (defining
‚mitigate‛ as ‚to make (something) less severe, harmful, or
painful‛). And in the context of a judgment or punishment
for a crime, a ‚mitigating circumstance‛ is ‚[a] fact or
situation that does not justify or excuse a wrongful act or offense
but that reduces the degree of culpability and thus may reduce
the . . . punishment (in a criminal case)‛ or ‚[a] fact or situation
that does not bear on the question of a defendant’s guilt but that
may bear on a court’s possibly lessening the severity of its
judgment.‛ Circumstance, Black’s Law Dictionary (10th ed. 2014).



20140027-CA                     27                 

                           State v. Gray


that while Form 2, the Aggravating and Mitigating
Circumstances Form, lists ‚*s+ome of the more common reasons‛
for deviating from the guidelines, ‚*o+ther reasons, as they occur,
can be specified‛). Consequently, although lengthy consecutive
sentences imposed by a district court may still mean that under
ordinary circumstances an inmate will serve his minimum
sentence before becoming eligible for parole, the Board’s ability
to consider a ‚mitigating circumstances‛ release means an
aggregate minimum sentence cannot be considered invariably
mandatory.

¶43 Thus, the particular policy concern evident in the
Smith/Strunk/Galli line of cases—assuring a possibility for the
Board’s earlier involvement in each defendant’s case—has been
legislatively moderated. When the defendants in those cases
were sentenced, the Board was constrained in its authority to
release them before they completed their minimum terms even if
their rehabilitative progress warranted earlier re-entry into
society. In particular, the Smith court’s description of Smith’s
sentence as ‚tantamount to a minimum mandatory life sentence‛
was justified because the stacked consecutive terms made it
impossible for the Board to release him before he had fully
served his entire sixty-year minimum sentence. State v. Smith,

, 244–45 (Utah 1995); see also State v. Epling, 

, 

 (discussing the consecutive
sentencing in Galli and noting that ‚the combination of the
mandatory minimum sentences for each of the crimes resulted in
the defendant [in Galli] being required to serve fifteen years
before he could be considered for parole‛). It is no longer
accurate, however, as it was when Smith was decided, to
describe Gray’s sentence as ‚tantamount to a minimum
mandatory life sentence‛ when, given the Board’s discretion to
consider a mitigating circumstance release, his minimum
sentence is no longer strictly mandatory.

¶44 Accordingly, we are not persuaded that imposing a
lengthy consecutive sentence is a per se abuse of discretion



20140027-CA                    28                

                            State v. Gray


where the possibility of Board intervention is no longer
foreclosed as it had been in the past. We do not mean to imply
that Smith, Strunk, and Galli are no longer good law in this
regard. A significant policy undergirding the sentencing
decisions in those cases was that the Board’s ‚separate and
distinct power‛ to parole is a substantial concern that district
courts should take into account in deciding whether to impose
consecutive sentences.10 See Padilla v. Utah Bd. of Pardons & Parole,

 (Utah 1997) (‚*W+hile the courts have the
power to sentence, the Board has been given the power to
pardon and parole. These are two separate and distinct powers,
neither of which invades the province of the other.‛); see also

(3) (LexisNexis 2012) (providing that
‚*e+xcept as otherwise expressly provided by law, every
[indeterminate] sentence . . . shall be construed to be a sentence


10. Indeed, since the 1996 amendment we have continued to take
into account the Board’s power to grant parole in challenges to
consecutive sentences, though it is not clear that the amendment
itself has been acknowledged. See State v. Spencer, 

, 

 (concluding that ‚*c+onsecutive
sentencing that . . . does not significantly or meaningfully detract
from the Board’s discretion to parole [a] defendant at the
appropriate time‛ is permissible within the ‚acknowledged
policy of ensur[ing] that the Board of Pardons is given the
appropriate opportunity to determine the ultimate length of an
individual’s sentence‛ (third alteration in original) (citation and
internal quotation marks omitted)); State v. Valdez, 

, 

 (affirming imposition of consecutive
sentences ‚because *the defendant’s+ sentence is consistent with
the supreme court’s admonition that the Board of Pardons be
given the responsibility ‘to monitor *the defendant’s+ subsequent
behavior and possible progress toward rehabilitation while in
prison and to adjust the maximum sentence accordingly’‛
(alteration in original) (quoting State v. Smith, 

(Utah 1995))).



20140027-CA                     29                 

                           State v. Gray


for the term between the minimum and maximum periods of
time provided by law and shall continue until the maximum
period has been reached unless sooner terminated . . . by
authority of the Board of Pardons and Parole‛); Smith, 

 (describing the Board’s authority to determine what the
maximum sentence ought to be as ‚*a+n additional and highly
important factor in deciding whether to impose consecutive or
concurrent sentences‛). And while the Board’s authority to
release inmates on parole after the minimum term expires seems
nearly plenary, see 

(3) (‚Decisions of
the board in cases involving paroles, pardons, commutations or
termination of sentence . . . are final and not subject to judicial
review.‛), the Board’s discretion to release a defendant earlier
based on ‚mitigating circumstances,‛ though conceptually
broad, may be intended as a safety valve to be employed in
unusual circumstances rather than a wholesale extension of that
plenary power. Thus, the lesson of the Smith/Strunk/Galli line of
cases remains valid—that is, although the statutory context
implicating the relationship of consecutive sentencing and the
Board’s authority to parole has changed, courts should still keep
in mind the central role that the Board’s parole authority
continues to play in our indeterminate sentencing scheme when
considering whether to impose sentences consecutively.11



11. The concurrence disagrees with our assertion that a
sentencing court ought to continue to take into account the
Board’s role when imposing a consecutive sentence. It suggests
that the ‚mitigating circumstances‛ release provision of Utah
Code section 77-27-9(1)(a) is the whole solution to the concerns
voiced by the supreme court in the Smith/Strunk/Galli cases
regarding the Board’s authority to parole an inmate earlier if
rehabilitative progress warrants it. But, in our view, that
interpretation takes the effect of the 1996 amendment too far.
Our indeterminate sentencing scheme consists of two ‚separate
and distinct powers‛—the power to sentence and the power to
                                                   (continued<)


20140027-CA                    30                

                           State v. Gray


B.    Gray’s Sentence Has Not Been Otherwise Shown to Be an
      Abuse of the District Court’s Discretion.

¶45 Because we have concluded that it is not a per se abuse of
discretion to impose lengthy consecutive sentences, to prevail on
appeal Gray must demonstrate that his sentence is ‚clearly
excessive‛ in some other way. But Gray has not done so. Instead,
his arguments are decidedly policy-based and give only cursory


(<continued)
pardon and parole. See Padilla v. Utah Bd. of Pardons & Parole, 

 (Utah 1997). While a sentencing court ‚must‛
impose a sentence in every case, the Board is not required to
parole every defendant. Indeed, the default assumption is that a
sentence ‚shall continue until the maximum period expires
unless the Board, in its discretion,‛ chooses to terminate the
sentence. Id.; see also 

 (LexisNexis 2012)
(explaining that an indeterminate sentence should ordinarily be
‚construed to be a sentence for the term between the minimum
and maximum periods of time provided by law‛). Although we
agree with the concurrence that the ‚mitigating circumstances‛
release provision is pertinent to the concerns expressed in the
Smith/Strunk/Galli line of cases, we are hesitant to conclude that
section 77-27-9(1)(a) simply eliminates those concerns. Rather,
even if the Board ultimately views its ‚mitigating circumstances‛
release authority to be coextensive with its plenary power to
grant parole, the sentence imposed by the court is still the
default—indeed, the backbone—that the Board has to work
with, and that sentence is still presumed to continue unless the
Board determines that there are reasons to justify an earlier
release. Given this, we think it continues to be important, simply
as a matter of prudence, for a sentencing court to take into
account in considering the rehabilitation factor whether a
particular consecutive sentencing decision may unduly
‚invade*+ the province‛ of the Board’s parole authority. Padilla,

.



20140027-CA                    31                

                            State v. Gray


attention to the circumstances attendant to his own case. He
argues that, as a general policy, a district court abuses its
discretion if it imposes a minimum mandatory sentence that is
‚tantamount to life without the possibility of parole,‛
particularly in light of the Board’s role. He further contends that,
as a consequence, the consecutive sentences the district court
imposed were an abuse of discretion because he was thirty-nine
years old at the time he was sentenced to the seventy-year
minimum mandatory sentence. Apart from these arguments,
however, he has not attempted to demonstrate that his sentence
exceeded the bounds of the court’s discretion. Certainly, he has
not persuaded us that given the totality of the circumstances in
his case, his sentence was excessive. In this regard, the entirety of
his attempt to argue that his circumstances justify setting aside
his sentences consists of a couple of conclusory sentences that
assert that ‚some of the factors that made consecutive sentences
unreasonable in Strunk and Galli,‛ such as a ‚relatively minor‛
criminal history, voluntary confession, and expressed
commitment to improve, are present in his case. And he does not
argue that the district court failed to consider the required
factors or that his sentence exceeded ‚legally prescribed limits.‛
See State v. Daniels, 

, 

.
Accordingly, Gray has not provided a basis in the circumstances
of his case to support a conclusion that his sentence exceeded the
district court’s discretion.

¶46 We also question whether Gray would have been able to
successfully carry his burden of persuasion here in any event,
given the evidence before the district court. See 

(2) (LexisNexis 2012). It appears that there was
substantial evidence supporting the district court’s findings on
every consecutive sentencing factor under section 76-3-401—the
‚gravity and circumstances of the offenses, the number of
victims, and the history, character, and rehabilitative needs of
the defendant‛—with little to no mitigating evidence. And,
given the egregious nature Gray’s offenses, the evidence
suggests that consecutive sentencing was appropriate. Gray



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                           State v. Gray


committed his offenses hundreds of times over a decade on more
than one victim, and he took advantage of the vulnerability of
the victims and his position of special trust to emotionally
manipulate and, at times, physically coerce them to comply with
his sexual demands—a pattern of conduct which the district
court concluded would burden the victims for the rest of their
lives.

¶47 Further, the kind of mitigating evidence present in the
cases Gray chiefly relies on—Smith, Strunk, and Galli—does not
exist here. For example, unlike in Smith and Strunk where it
seemed significant that the crimes were committed in a single
criminal episode and involved one victim, Gray’s conduct
involved hundreds of criminal episodes and more than one
victim. And unlike in Galli, where the defendant’s prior criminal
history was minor, he voluntarily confessed, and he had proven
a potential for rehabilitation, Gray’s prior criminal history
includes offenses, such as assault and lewdness, that suggest a
relationship to the offenses for which he was sentenced, and his
current offenses came to light only through the rather
extraordinary initiative of one of his victims. Further, Gray
persisted in the conduct for a decade despite his victims’ pleas to
desist. And unlike in Strunk, where the defendant’s ‚extreme
youth‛ suggested cause for leniency in sentencing, because Gray
is middle-aged, his case is more similar to the circumstances in
State v. Nuttall, 

 (Utah Ct. App. 1993), where we
concluded that the defendant’s comparatively advanced age
actually exacerbated his culpability and decreased his potential
for rehabilitation. 

.

¶48 In affirming Gray’s sentence, we recognize that the cost to
Gray is significant; he may well spend the remainder of his life
in prison. But given the statutory requirements in Utah Code
section 76-3-401, the reasoning of our prior case law, the Board’s
enhanced authority to exercise its discretion to release an
offender who has not served the minimum mandatory sentence,
and the circumstances of his crimes, we are not persuaded that



20140027-CA                    33                

                          State v. Gray


the district court abused its sentencing discretion by placing
Gray in a situation where only future mitigating circumstances
will justify his release.


                        CONCLUSION

¶49 We affirm. Gray has failed to show that the district court
committed plain error by failing to recognize the State’s alleged
breach of the plea agreement. And in light of the circumstances
of his crimes and the other factors bearing on the decision to
impose consecutive sentences in this case, we are not persuaded
that the district court abused its discretion when it sentenced
Gray to consecutive sentences on all counts.




VOROS, Judge (concurring):

¶50 I concur in the judgment of the majority opinion and I
concur in the opinion itself except as to paragraph 44 and Part
II.B.

¶51 First as to paragraph 44. I do not agree that, in addition to
the statutory sentencing factors in Utah Code section 76-3-401, a
court contemplating the imposition of consecutive sentences
needs to ‚keep in mind‛ the Board’s role in determining the time
an inmate actually serves. See supra ¶ 44. Our legislature has
listed the factors a court contemplating consecutive sentences
must consider: ‚In determining whether state offenses are to run
concurrently or consecutively, the court shall consider the
gravity and circumstances of the offenses, the number of victims,
and the history, character, and rehabilitative needs of the
defendant.‛ 

(2) (LexisNexis 2012). So
long as the court considers these factors, it complies with the
statute. I see no basis for an additional requirement or
suggestion that the sentencing court consider the Board’s role in




20140027-CA                   34                

                          State v. Gray


monitoring an inmate’s rehabilitative progress with the potential
for early release in mind.

¶52 Of course the Board does serve that role. Current law
authorizes the Board to release any offender sentenced to a
felony on or after April 29, 1996. See 

 § 77-27-9(1)(a). This
authority extends to offenders serving minimum mandatory
sentences:

      The board may not release any offender before the
      minimum term has been served unless the board
      finds mitigating circumstances which justify the
      release and unless the board has granted a full
      hearing, in open session, after previous notice of
      the time and location of the hearing, and recorded
      the proceedings and decisions of the board.

Id. § 77-27-9(1)(b).12 Thus, the Board by statute holds the
authority, on stated conditions, to release an offender before the
expiration of a minimum mandatory sentence. This sentencing
arrangement leaves no room ‚for a sentencing court to take into
account . . . whether a particular consecutive sentencing decision
may unduly ‘invade*+ the province’ of the Board’s parole
authority.‛ Supra ¶ 44 n.11. No court’s consecutive sentencing
decision can invade the authority the legislature has explicitly
granted to the Board in subsection 77-27-9(1).

¶53 As I see it, that subsection codifies the principle at the
core of the Strunk/Smith/Galli line of cases. In Strunk, the court
vacated a sentence of consecutive minimum terms totaling 24


12. An amendment to section 77-27-9(1)(b) effective May 1, 1995,
extended the Board’s authority to grant release on parole to
persons sentenced after May 1, 1995 to minimum mandatory
sentences for certain enumerated crimes against children. Act of
Mar. 1, 1995, ch. 337, § 2, 

, 1276.



20140027-CA                    35               

                            State v. Gray


years on the ground that it ‚robs the Board of Pardons of any
flexibility to parole Strunk sooner.‛ State v. Strunk, 

 (Utah 1993). The current subsection 77-27-9(1) restores the
Board’s flexibility to release an offender before the expiration of
his consecutive minimum mandatory terms. In Smith, the court
vacated a sentence of consecutive minimum terms totaling 60
years on the ground that ‚*t+he Board is in a far better position
than a court to monitor a defendant’s subsequent behavior and
possible progress toward rehabilitation while in prison and to
adjust the maximum sentence accordingly.‛ State v. Smith, 

 (Utah 1995). Again, subsection 77-27-9(1) grants the
Board authority to adjust a maximum sentence in light of an
offender’s rehabilitative progress. Finally, in Galli, the court
vacated a sentence of consecutive minimum terms totaling 15
years on the ground that the imposition of concurrent sentences
‚better serves Galli’s rehabilitative needs by allowing the Board
of Pardons and Parole to release him from prison after five years
if he has shown genuine progress toward rehabilitation.‛ State v.
Galli, 

 (Utah 1998). Again, subsection 77-27-9(1)
allows the Board to release, before the expiration of consecutive
minimum mandatory terms, an offender who has shown
genuine progress toward rehabilitation. Thus, in my view,
Strunk, Smith, and Galli have not merely ‚been legislatively
moderated,‛ see supra ¶ 43, they have been superseded.

¶54 In sum, the current statutory scheme authorizes the
sentencing court to sentence an offender to consecutive terms in
compliance with section 76-3-401; it also authorizes the Board to
release that offender before the expiration of those terms in
compliance with subsection 77-27-9(1). I would say no more
about it.

¶55 Second, I do not join in Part II.B of the opinion, because it
responds to a claim that Gray does not assert. Gray does not
assert a garden-variety excessive sentencing claim. He does not,
for example, contend that ‚no reasonable judge would have
entered such a sentence under the circumstances.‛ LeBeau v.



20140027-CA                     36                 

                            State v. Gray


State, 

, 

. Rather, he asserts a
precisely focused Strunk/Smith/Galli claim. Here’s how he frames
it in his opening brief: ‚The district court abused its discretion in
imposing consecutive sentences in a manner that deprived the
Board of Pardons of discretion to take into account Gray’s future
conduct and possible progress towards rehabilitation.‛ And
here’s how he summarizes it in his reply brief: ‚Gray’s opening
brief argues that the trial court abused its discretion by imposing
consecutive sentences in a manner that deprived the Board of
Pardons of discretion to release Gray during his lifetime.‛ In
short, as the majority recognizes, Gray does not attempt to show
that his sentence is ‚‘clearly excessive’ in some other way.‛ Supra
¶ 45.

¶56 We dispose of Gray’s Strunk/Smith/Galli claim in Part II.A
of this opinion. Our analysis should end there. I see no purpose
in pondering ‚whether Gray would have been able to
successfully carry his burden of persuasion‛ on another claim he
does not in fact assert. See supra ¶ 46. That he does not assert it
speaks volumes.




20140027-CA                     37