State v. Orton

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                            Appellee,
                               v.
                     BRETT LEONARD ORTON,
                           Appellant.

                            Opinion
                        No. 20220119-CA
                      Filed October 3, 2024

         Second District Court, Farmington Department
               The Honorable David J. Williams
                         No. 181702388

             Scott L. Wiggins, Attorney for Appellant
                  Sean D. Reyes and Emily Sopp,
                      Attorneys for Appellee

  JUDGE DAVID N. MORTENSEN authored this Opinion, in which
     JUDGES RYAN M. HARRIS and JOHN D. LUTHY concurred.

MORTENSEN, Judge:

¶1      Brett Leonard Orton pled guilty to sexually abusing two of
his girlfriend’s daughters. And although he pled guilty to only
two counts of sodomy for the abuse of these two children, along
with one count of lewdness involving a third daughter, there
appears to be no dispute that he abused the daughters on many
occasions over many years—one of the daughters stated that
Orton had abused her “thousands of times.” Further, the record
indicates that he abused or attempted to abuse other children as
well. In this appeal, Orton challenges the sentence pronounced by
the district court, asserting instances of misconduct that he
believes tainted his sentencing. We reject these challenges and
affirm the sentence.
                          State v. Orton


                        BACKGROUND

¶2     Beth 1 mistakenly viewed Orton, whom her mother was
dating, as a “protector” and “father figure.” But by the time she
was twelve, Orton had sexually abused Beth “thousands of
times,” and the abuse continued until she was an adult. The abuse
occurred on a “nightly” basis over the years. She stated that Orton
performed oral sex on her and made her perform oral sex on him.
He also touched her breasts and vagina. And when Beth was
about sixteen years old, Orton started forcing her to engage in
sexual intercourse, often using alcohol and marijuana to aid in the
“manipulation process.” Orton threatened to hurt Beth or her
family if she told anyone about the abuse. He also gave her money
after molesting her. She remembers Orton telling her that “he was
going to teach [her] to be a good girlfriend for the boys,” and she
recalls thinking that “all fathers did this.” “[T]o this day,” Beth
says that she “cannot get clean enough” to rid her of the memories
of the abuse she suffered at Orton’s hands. She now suffers from
PTSD, depression, anxiety, and an eating disorder because of the
abuse.

¶3      Orton also abused Beth’s older sister, Anna, from when she
was about thirteen years old until she was an adult. She
remembers “waking up during the night . . . to find [Orton] in her
room putting his penis in her face” and making her “perform oral
sex on him.” Anna also reported that Orton would “touch her
breasts and genitals and make her touch his penis.” As he did with
Beth, Orton threatened to hurt Anna and her family if she told
anyone about the abuse, paid her money after abusing her, and
plied her with alcohol prior to abusing her. She said this abuse
occurred “on multiple occasions during her teenage years” and
that it was “ongoing and continued” into her twenties. In fact,
even until shortly before the time Orton was charged—when
Anna was in her late twenties—Orton continued to contact her


1. We employ pseudonyms for the victims.


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                          State v. Orton


and asked her to engage in sexual acts in exchange for money.
Anna states that Orton has “destroyed [her] soul” and caused her
to feel like she was living “in hell” and “haunted by him.”

¶4     Orton also attempted to abuse Cindy, Beth and Anna’s
younger sister. When Cindy was about fifteen years old, Orton
offered to pay her $600 if she let him perform oral sex on her. She
declined. Undeterred, Orton continued to ask Cindy to perform
sexual acts in exchange for money over the years up until shortly
before he was charged—when Cindy was in her mid-twenties.

¶5     Orton was alleged to have sexually abused other children
as well. Orton allegedly forced one victim, a twelve-year-old boy,
to perform oral sex on Beth, who was about eleven at the time,
while Orton filmed the act with his cell phone. Another victim
alleged that Orton had put his hands down her pants and touched
her genitals when she was about fifteen while visiting the Orton
home. She said she “froze in fear” and Orton warned her not to
tell anyone about the incident. And yet another victim reported
that Orton allegedly gave her and Beth alcohol to the point that
Beth got sick, allowing Orton to be alone with her and ask if he
could perform oral sex on her, which she declined.

¶6     Orton was charged with five counts of sodomy of a child,
four counts of aggravated sexual abuse of a child, two counts of
rape, one count of attempted forcible sodomy, and one count of
forcible sexual abuse. But as part of a plea agreement, Orton pled
guilty to only two counts of sodomy of a child for his abuse of
Beth and Anna and one count of forcible sexual abuse, which was
reduced to lewdness, for his actions against Cindy. The State
agreed to dismiss all the other charges. The plea agreement
contained the following bargain:

      The State agrees that at sentencing, [Orton’s]
      counsel will argue that the sentence, on the first
      degree felonies be 6–life, while the State will argue
      for a sentence of 10–life. The State further agrees it


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                            State v. Orton


       will not argue for the 15–life, however, the victims
       will be allowed to argue for whatever sentence they
       desire. Both sides agree that each can argue their
       respective positions regarding concurrent vs.
       consecutive.

¶7     At sentencing, Orton’s counsel (Counsel) acknowledged
that the court had the discretion to impose a prison sentence of six
years to life, ten years to life, or fifteen years to life. But Counsel
noted that “[t]hrough negotiations with the State, it was agreed
upon that the 15-to-life would not be argued” by either side.
Given this agreement, Counsel urged the court “to consider”
concurrent terms of six years to life for the two felony charges,
noting that Orton had “taken responsibility” for his “morally
reprehensible” actions.

¶8      After Counsel spoke, the district court asked for
clarification on the mandatory length of the sentence. Reading the
relevant code section, the court wondered whether the mandatory
sentence was twenty-five years to life. See Utah Code § 76-5-
403.1(3). Given this statute, the court asked if there had “been a
stipulation as part of the plea agreement that this [was] not a 25-
to-life case.” The parties clarified that there had been a change in
the sentencing statute in 2008, increasing the mandatory
minimum to twenty-five years to life. See Act of Feb. 14, 2008, ch.
179, § 5, 

, 1290. Because Orton’s offenses all
occurred before that sentencing amendment, the parties clarified
that he was subject to the six-, ten-, or fifteen-year-minimum
sentence rubric and that he was not subject to a twenty-five-year-minimum sentence. See Utah Code § 76-5-403.1 (2007).

¶9    The prosecutor then proceeded to ask the court to impose
sentences of ten years to life to run consecutively, noting that the
sentence was reasonable due to the “number of victims” and the
“extreme gravity of these circumstances.” The prosecutor




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                            State v. Orton


supported his argument for ten-year-minimum sentences to run
consecutively by noting,

       Your Honor, as we’ve already discussed today, the
       legislature has felt that these types of actions are 25
       to life, but that was after 2008. But I think it’s
       probative of their thinking of how serious these
       offenses are.

¶10 Thereafter, Beth and Anna addressed the court and
detailed the abuse Orton had inflicted on them and how it
continued to negatively affect their lives. Each asked for fifteen-year-minimum sentences. And the victim advocate, after
reviewing the severity of Orton’s abuse of the victims, noted that
“the legislature in 2008, 13 years ago, knew that 6, 10, or 15 years
for this kind of activity against our most precious among us, our
children, is not enough, and they have moved it to 25 to life.”
Having made that point, the victim advocate asked the court to
impose consecutive sentences of fifteen years to life.

¶11    In his rebuttal, Counsel stated,

       I . . . take issue with the fact that it’s been presented,
       albeit not directly, but I think indirectly that because
       the statute has changed and the legislature now sees
       these types of crimes as 25 years to life, that in some
       way gives Your Honor incentive to give the top end
       here on a 6, 10, or 15. This simply isn’t and should
       not be applied to this case.

¶12 The court sentenced Orton to consecutive terms of fifteen
years to life. The judge noted that Orton’s offenses had been “the
worst crime” he had “seen so far” in his three years on the bench.
He told Orton that the reason for the sentence was the “heinous
nature” of the crimes and that it would not “be in the interest of
justice to impose any sentence other than the maximum,”
especially “given the facts of the case” and the “impact” Orton’s


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                           State v. Orton


abuse had on his victims. The judge also noted that the sentence
would allow Orton to “get the help that [he] obviously need[ed].”


            ISSUES AND STANDARDS OF REVIEW

¶13 Orton appeals and raises two issues for our consideration.
First, he asserts that the district court erred in failing to remedy
alleged “prosecutorial misconduct,” which he says occurred
when the prosecutor presented “false evidence” that the
legislature had increased the minimum sentence for Orton’s
offense to twenty-five years. Because Orton did not raise a
prosecutorial-misconduct complaint below, we review this issue
for plain error. See State v. Legg, 

, 

. 2 “Plain error is a question of law reviewed for correctness.”
State v. Popp, 

, 

 (cleaned up).


2. Orton insists that this issue was preserved when Counsel said
that he “[took] issue” with the prosecutor referencing how the
statute had changed and noting that doing so might provide the
court with “incentive” to impose a harsher sentence. See supra
¶ 11. We think the issue of prosecutorial misconduct sounding in
the presentation of false evidence was not preserved by this rather
oblique objection, at least not to a degree that it would have given
the district court an opportunity to rule on the matter. “An issue
is preserved for appeal when it has been presented to the district
court in such a way that the court has an opportunity to rule on
it.” State v. Oliver, 

, 

 (cleaned
up). For that reason, we review this issue under the rubric of plain
error. But given that we determine that no error took place at all
and that even if one did, Orton suffered no harm, it doesn’t really
make any difference whether we review this issue as preserved
error or plain error. See State v. Cruz, 

, 

 (“Whether the appellant asserts preserved error or plain
error—that is, whether the appellant claims to have objected to
                                                       (continued…)


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                            State v. Orton


¶14 Second, Orton claims that Counsel rendered ineffective
assistance by failing to request that the court “disavow” any
consideration of the twenty-five-year-sentence amendment and
by failing to move to disqualify the sentencing judge. “When a
claim of ineffective assistance of counsel is raised for the first time
on appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Lisenbee, 

, 

 (cleaned up).


                             ANALYSIS

                            I. Plain Error

¶15 Orton asserts that the district court plainly erred in failing
to remedy what he characterizes as “prosecutorial misconduct,”
which he alleges occurred when the State referred to the
legislature’s change in the statute to make the top-end minimum
sentence twenty-five years—even though that change was
inapplicable to Orton’s sentencing. Orton argues that had the
court “recognized” and “remedied” this alleged misconduct, “it
is reasonably likely that the sentencing proceedings would not
have been necessarily tainted by the false evidence utilized by the
State and” the victim advocate.

¶16 “To demonstrate plain error, a defendant must establish
that (i) an error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful. If any one of these
requirements is not met, plain error is not established.” State v.

the alleged error or claims that the alleged error was so obvious
that no objection was required—the appellant must demonstrate
prejudice or harm to prevail.”); see also State v. Diviney, 

, 

 (“Utah law places the burden on the
defendant to prove that a preserved error is harmful.” (cleaned
up)).


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                           State v. Orton


Johnson, 

, 

 (cleaned up). Our supreme
court has clarified that in the context of prosecutorial misconduct,
“our plain error analysis asks not whether the prosecutor made a
misstep that could be characterized as misconduct, but whether the
trial court made an ‘obvious’ error in its decision.” State v. Hummel,

, 

. This doesn’t mean that the “extent
of a prosecutor’s ‘misconduct’ is irrelevant” to a plain-error
analysis. Id. ¶ 108. Rather, the “more plain or obvious the
prosecutor’s misstep, the greater the likelihood (other things
being equal) that an appellate court would find plain error in a
judge’s failure to step in to stop it.” Id. “It goes too far, however,
to suggest that every misstep of a prosecutor should be corrected
by the trial judge—or in other words that it is always plain error
by the judge not to step in when the prosecutor oversteps his
bounds.” Id. ¶ 109. Here, Orton cannot show either that any error
occurred or that he was prejudiced by the error he alleges.

A.     No Error

¶17 The court did not err by electing not to step in, sua sponte,
and take action in the wake of the prosecutor’s reference to the
legislative change in sentencing because the prosecutor’s
statement did not constitute “false evidence” as Orton alleges. The
prosecutor told the court that the legislature had increased the
top-end minimum sentence for crimes like Orton’s to twenty-five
years, arguing that the change was “probative of [the
legislature’s] thinking of how serious these offenses are.” There
was no suggestion that the longer sentence in the 2008 statutory
amendment applied to Orton. In fact, that it did not apply had
been explicitly clarified when the court brought up the longer
sentence just a few minutes earlier. The prosecutor revisited the
sentencing amendment to drive home the State’s point that Orton
should receive consecutive ten-year-minimum sentences, as the
State had agreed to argue in the plea deal. Nothing in the
prosecutor’s reference to the inapplicable amendment was
factually false. Rather, the prosecutor made clear that the



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                           State v. Orton


amendment did not apply to Orton and that he was using the new
statute to support the State’s position for the ten-years-to-life
sentence it had bargained for in the plea agreement. We fail to see
how this reference amounts to “false evidence,” and we therefore
conclude that it did not amount to prosecutorial misconduct.
Without any foundational error for the court to remedy, Orton’s
claim of plain error obviously fails from the start.

B.     No Prejudice

¶18 In any event, Orton has not demonstrated prejudice. Given
the absence of any error at all, we need not explore the prejudice
prong to resolve the plain error issue, see State v. Fouse, 

, 

 (“Because we determine that no error
occurred, we do not reach the remaining prongs of plain error
analysis.”), but we choose to do so here because we resolve the
claim of ineffective assistance of counsel below, in part, on the
basis of lack of prejudice.

¶19 First, given the heinous and extensive nature of the sexual
abuse Orton inflicted on his victims, there is no reasonable
probability that he would have received a more favorable
sentence absent the prosecutor’s reference to the inapplicable
amendment. The reason the district court imposed the maximum
sentence had nothing to do with the prosecutor’s reference.
Instead, the court made explicit that the “interest of justice,” the
“heinous nature” of the abuse, and the impact of the abuse on the
victims were the reasons it was imposing the fifteen-year-minimum sentences. Orton does not attempt to explain why, in
light of this expressly articulated reasoning, the court would have
imposed a more favorable sentence had it chosen to sua sponte
intervene and “disavow” the prosecutor’s comments. Given the
egregious nature of Orton’s abuse of the victims and the
articulated basis for the court’s ruling, we see no reasonable
probability of a different result had the district court taken the
actions Orton now asserts it should have taken.



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                           State v. Orton


¶20 Second, Orton has not shown how the district court’s
intervention after the references by the prosecutor would have
resulted in a lesser sentence given that the court was already well
aware of the inapplicable amendment. Indeed, it was the
sentencing judge who first brought up the twenty-five-year-minimum sentence. Both parties clarified that the amended
statute did not apply to Orton. “As a general rule, we presume
that the district court made all the necessary considerations when
making a sentencing decision.” West Valley City v. Walljasper, 

, 

 (cleaned up). And “[u]nless the
record indicates otherwise, we presume that the trial court knew
the law.” 

 Because the court was already aware of the
inapplicable amendment, we see scant possibility of any
additional benefit accruing to Orton had the court explicitly
acknowledged that it would disavow any reliance on the new
statute in imposing Orton’s sentence. There is every reason to
conclude that the court understood perfectly the sentencing that
applied to Orton and acted accordingly.

¶21 Third, Orton has offered no evidence indicating that the
district court actually relied on the twenty-five-year-sentence
amendment in imposing the sentence. In State v. Howell, 

 (Utah 1985), the sentencing judge mentioned that he had
received ex parte phone calls and a letter regarding the
defendants’ actions. 

. However, there was no indication
that the information had “been part of the judge’s deliberative
processes.” 

; see also State v. Moa, 

, 

 (“Because there was no affirmative representation by the
judge, we concluded that there was no evidence that these items
were part of his deliberative process.” (cleaned up)). So too here.
While there is no doubt that the court was made aware of the
inapplicable amendment (indeed, the court was the one who
broached the issue), there is equally no indication that the court
was swayed by that awareness or that the awareness became part
of the court’s deliberative process. The court made no subsequent
mention of the longer sentence. Instead, the court was swayed by



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                           State v. Orton


what it did mention—the “heinous nature” of the abuse, the
profound impact of that abuse on the lives of Orton’s victims, the
“interest of justice,” and the opportunity for Orton to get the help
he so “obviously” needed. Given these express concerns, it’s clear
that the court would have imposed the maximum sentence
available to it even if it had explicitly disavowed relying on the
inapplicable amendment.

¶22 In sum, Orton has not shown that the district court erred in
electing not to intervene and take additional action after the
prosecutor mentioned the amended statute. Nor has he shown
how he was harmed by the court’s election to not take such action.
Accordingly, his first claim of error fails.

               II. Ineffective Assistance of Counsel

¶23 Orton also asserts that Counsel rendered ineffective
assistance for failing to properly object to the alleged
prosecutorial misconduct and failing to move to disqualify the
sentencing judge. To establish ineffective assistance of counsel,
Orton must show that Counsel’s performance fell below an
objective standard of reasonable representation and that this
deficiency prejudiced him. See State v. Rosen, 

,

. “Because failure to establish either prong of the test
is fatal to an ineffective assistance of counsel claim, we are free to
address [an ineffective assistance claim] under either prong.”
Honie v. State, 

, 

.

¶24 Orton suffered no prejudice by Counsel’s failure to further
object to the prosecutor’s reference to the 2008 statutory
amendment for the same reasons identified in our plain error
analysis. But to reiterate, the record indicates that the court would
have imposed the fifteen-year-minimum sentence due to the
“heinous nature” of the abuse, the “interest of justice,” and the
impact of the abuse on the victims regardless of whether Counsel
had asked the court to expressly disavow any reliance on the
prosecutor’s reference to the longer sentence. To put it bluntly, the


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                           State v. Orton


die was cast not by the prosecutor’s statement but by the extent of
Orton’s sexual abuse of the victims. Given the egregious nature of
Orton’s crimes, it is simply not reasonably probable that any
additional objection—no matter how eloquent or legally
sophisticated—would have made a difference.

¶25 Nor has Orton shown Counsel was ineffective in not
moving to disqualify the judge. “Because the decision not to
pursue a futile motion is almost always a sound trial strategy,
counsel’s failure to make a motion that would be futile if raised
does not constitute deficient performance.” State v. Torres, 

, 

 (cleaned up). Counsel acted
reasonably in expressing his displeasure with the prosecutor’s
reference and leaving the situation at that. In particular, he would
have known that there was no basis to file a motion to disqualify
a judge simply because that judge had heard a prosecutor repeat
information the judge already knew. The Utah Code of Judicial
Conduct states that a “judge shall disqualify himself or herself in
any proceeding in which the judge’s impartiality might
reasonably be questioned.” Utah Code Jud. Conduct R. 2.11(A).
Included in this rule is a circumstance where a judge has “a
personal bias or prejudice concerning a party.” 

 R. 2.11(A)(1).
The Utah Code of Judicial Conduct defines impartiality as the
“absence of bias or prejudice in favor of, or against, particular
parties or classes of parties, as well as presence of an objective and
open mind in considering matters that come before a judge.” 

Terminology. Moreover, “bias and prejudice are only improper
when they are personal. A feeling of ill will or, conversely,
favoritism toward one of the parties to a suit are what constitute
disqualifying bias or prejudice.” In re Young, 

, 

 (cleaned up).

¶26 There was no hint of bias or prejudice here—personal,
perceived, or otherwise. Orton has pointed to nothing in the Utah
Code of Judicial Conduct or our case law that suggests a judge’s
mere knowledge of an inapplicable statutory increase in a



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                           State v. Orton


sentence creates a foundation for a claim of bias, prejudice, or
partiality. And as we have pointed out, nothing in the judge’s
behavior indicated that he was in any way swayed or influenced
by the prosecutor’s mention of the 2008 amendment. Simply put,
Orton has articulated no appearance of bias on the part of the
judge—a necessary element for a successful motion to disqualify.

¶27 Orton has not shown he was prejudiced by Counsel’s
decision to not object to the alleged prosecutorial misconduct.
And Counsel did not render deficient performance when he did
not move to disqualify the judge after the prosecutor’s statement.
Accordingly, Orton’s ineffective assistance of counsel claims fails.


                         CONCLUSION

¶28 Orton has failed to show that the district court plainly erred
in not electing to sua sponte intervene after the alleged
prosecutorial misconduct. His claims of ineffective assistance of
counsel fail for lack of prejudice and because Counsel did not
perform deficiently. Affirmed.




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