State v. Alvarez

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                           Appellee,
                               v.
                   FRANCISCO JAVIER ALVAREZ,
                          Appellant.

                             Opinion
                        No. 20160207-CA
                      Filed August 10, 2017

           Third District Court, Salt Lake Department
              The Honorable Richard D. McKelvie
                          No. 141904309

       Joanna E. Landau, Christopher J. Jones, and Marshall
               Thompson, Attorneys for Appellant
           Sean D. Reyes and John J. Neilsen, Attorneys
                          for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE
   JILL M. POHLMAN concurred. JUDGE J. FREDERIC VOROS JR.
            concurred in the result, with opinion.1

ORME, Judge:

¶1     Francisco Javier Alvarez pled guilty to aggravated sexual
abuse of a child, a first degree felony. See 

-
404.1(4), (5) (LexisNexis Supp. 2016). Alvarez appeals his
sentence, arguing that the sentencing court abused its discretion
when it imposed the presumptive sentence of fifteen years to
life. We review sentencing decisions for an abuse of discretion,


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


see State v. Neilson, 

, 

, and will
conclude that such an abuse occurred only “if it can be said that
no reasonable [person] would take the view adopted by the
[sentencing] court,” State v. Valdovinos, 

, 

 (first alteration in original) (citation and internal
quotation marks omitted).

¶2     Aggravated sexual abuse of a child is punishable “by a
term of imprisonment . . . not less than 15 years and which may
be for life.” 

(5)(a). The sentencing
court may, however, impose one of two lesser sentences—six-tolife or ten-to-life—if the court finds that it would be “in the
interests of justice.” 

 § 76-5-404.1(6). When considering
whether a lesser sentence is in the interests of justice, the court
must consider the “rehabilitative potential of individual
defendants”2 and the proportionality of the sentence in relation to
the severity of the offense. LeBeau v. State, 

, ¶¶ 36–37,

. Moreover, the court should compare the sentence
being imposed to “the sentences imposed for more and less
serious crimes in order to ensure that a particular defendant’s
sentence is not arbitrary.” Id. ¶ 47.

¶3     Relying on State v. Jaramillo, 

, 

,
Alvarez argues that remand is warranted. In Jaramillo, we
remanded for resentencing because the Utah Supreme Court
announced LeBeau’s proportionality requirement after Jaramillo
was sentenced. See id. ¶ 34. Thus, because the sentencing court
had not been aware of LeBeau’s proportionality requirement in
sentencing Jaramillo, we remanded so that Jaramillo’s sentence
could “be reviewed through LeBeau’s interests-of-justice
analysis.” Id. ¶ 43.

¶4    That rationale does not apply to Alvarez, who was
sentenced well after LeBeau was issued. “As a general rule, Utah


2. The sentencing court        expressly    considered   Alvarez’s
rehabilitative potential.




20160207-CA                     2               

                         State v. Alvarez


courts presume that the [sentencing] court made all the
necessary considerations when making a sentencing decision.”
State v. Monzon, 

, 

 (citation and
internal quotation marks omitted). “[W]e will not assume that
the [sentencing] court’s silence, by itself, presupposes that the
court did not consider the proper factors as required by law.”
State v. Helms, 

, 

. Because LeBeau and
its proportionality requirement predated Alvarez’s sentence, and
because Alvarez has not demonstrated that our presumption of
appropriate sentencing consideration is inapplicable,3 we
assume that the sentencing court duly considered the
proportionality of Alvarez’s sentence.4

¶5     Moreover, while Alvarez did generally argue that “the
interests of justice” required a lesser sentence, he did not invoke
the proportionality rubric in making his argument. Had he done
so, the sentencing court’s proportionality analysis would likely
have moved from the presumed to the expressed. Thus, he will
not now be heard to argue that the sentencing court was remiss
in not articulating its views on proportionality. And although
the State does not argue that Alvarez failed to preserve his


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

, 

.

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




20160207-CA                     3               

                         State v. Alvarez


proportionality issue for appeal, we do not disagree with Judge
Voros that the appeal could also be decided on that basis alone.

¶6     The remainder of Alvarez’s argument amounts to a
disagreement with how the sentencing court weighed
aggravating and mitigating factors. As we have previously
stated, this is insufficient to demonstrate an abuse of discretion.
See State v. Bunker, 

, 

.

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




VOROS, Judge (concurring in the result):

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




20160207-CA                     4