State v. Corry

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                           Appellee,
                               v.
                      AUSTIN JAMES CORRY,
                          Appellant.

                            Opinion
                        No. 20220074-CA
                      Filed October 3, 2024

            Fourth District Court, Provo Department
              The Honorable Anthony L. Howell
                         No. 191403596

                Staci Visser, Attorney for Appellant
            Sean D. Reyes and Natalie M. Edmundson,
                     Attorneys for Appellee

 JUDGE JOHN D. LUTHY authored this Opinion, in which JUDGES
   GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER
                        concurred.

LUTHY, Judge:

¶1      Austin James Corry, an assistant fire chief, pled guilty to
four counts of forcible sexual abuse of a female firefighter he
supervised. In its presentence report, Adult Probation and Parole
(AP&P) recommended a prison sentence even though the Utah
Sentencing Commission’s Adult Sentencing & Release Guidelines
recommended that Corry serve up to 210 days in jail and Corry
had already served more than 210 days in pretrial detention. The
district court followed AP&P’s recommendation and imposed a
prison sentence. On appeal, Corry contends that the court abused
its discretion in so sentencing him. He further contends that the
court erred by failing to resolve asserted inaccuracies in the
                           State v. Corry


presentence report. Corry also asserts that the court’s use of his
lack of treatment prior to sentencing as an aggravating factor
constituted plain error and that his counsel’s failure to object to
the use of his lack of treatment as an aggravating factor
constituted ineffective assistance of counsel. We discern either no
error or no prejudice related to each of these claims and therefore
affirm Corry’s sentence.

¶2     Corry has also filed a rule 23B motion asserting ineffective
assistance related to his counsel’s failure to introduce at
sentencing character letters besides those written by Corry’s
parents. We perceive no prejudice related to this failure and
therefore deny Corry’s motion.


                         BACKGROUND

                            The Abuse

¶3     In August 2018, Vicky, 1 a volunteer firefighter, reported to
police that Corry had repeatedly sexually assaulted her. She later
described the abuse as follows:

   •   In August 2015, Corry asked Vicky to come to the station
       to help with air tanks on a fire engine. When she arrived,
       she found that she was alone with Corry. Vicky was sitting
       in the passenger seat of a truck when Corry “grabbed [her]
       legs and pulled them towards . . . the door.” She asked what
       he was doing, and he said, “[T]his [will] only take a minute.
       Come on.” Vicky responded, “No, I got to get home to my
       kids.” But Corry “pulled [her] legs up . . . so [she] was
       laying down” and then pulled down her sweatpants. “He
       pulled his pants down,” “put his hand around [her]




1. A pseudonym.


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                         State v. Corry


     throat,” restricting her breathing, and put his penis “inside
     [her] vagina” until he ejaculated.

 •   Another time, Vicky came to the station to pick up new
     gear that had arrived for her. Corry was there alone. Corry
     instructed Vicky to try on her new pants at the station—as
     opposed to at home as she said she would—so that he
     could return them quickly if needed. Vicky left the room
     to try on her pants and returned to show Corry that they
     fit. Corry then “started touching” and “fondling” Vicky,
     including touching her breasts. He pulled at her pants as
     she walked away, then he “grabbed [her] and . . . tried
     pulling [her] into the bay” while she “kept telling him no”
     and “grabbing [onto] the doorway.” He managed to move
     her into the bay and then pushed her against a fire engine,
     with her back to him. He put his hands down the front of
     her pants and touched her vagina, and he grabbed her
     hand and forced her to touch his penis. She “kept trying
     to put his hands off of [her],” but at some point she “just
     gave up.” He pulled down her pants and “put his penis
     in” her.

 •   In April 2018, Corry told Vicky to come to the station to
     pick up some paperwork. When she arrived, she asked
     about the paperwork and said she needed to go, but he
     started touching her breasts, buttocks, stomach, and back
     over her clothing. She asked about the paperwork again
     and “told him that [she] felt like . . . every time [she] came
     down there it was a lie,” then she tried to leave. However,
     she was unable to leave because he was holding her
     around her waist. He undid her belt and put his hand
     down her pants and into her vagina. He also touched her
     breasts. She continually tried to pull his arms off of her
     and was eventually able to leave by telling him she would
     come back later. Vicky had begun an audio recording on
     her phone before going into the station, and she later



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                         State v. Corry


     explained that she had done so because she had reported
     previous abuse to Corry’s father, who was the fire chief
     and a long-time deputy with the local sheriff’s office, and
     he had blamed her for whatever had happened
     previously. So she “felt like [she] needed to record it or
     have some kind of proof at that point.”

 •   On August 20, 2018, Vicky arrived at the station in response
     to a call for a fire. Corry told Vicky to ride with him in a
     brush truck. The call was eventually canceled, so Corry and
     Vicky returned to the station, where they were initially
     alone. Vicky heard Corry walking toward her, so she again
     began recording on her phone. She tried to walk away and
     leave the station, but he grabbed her and pushed her
     “against the brush truck.” Corry proceeded to touch
     Vicky’s breasts and “put his hands inside of [her],” despite
     her repeatedly asking him to stop. She “kept trying to push
     him away,” but “there was not much [she] could do.” Then
     Corry heard another fire truck coming around the corner
     and “immediately stopped,” “did up his pants,” and “went
     over and opened the bay door.” Vicky told another
     firefighter that Corry had raped her, and she reported
     Corry’s abuse to police. Corry texted Vicky later that night;
     the message read, “Hey I need to [apologize] to you about
     tonight. I am very sorry. I have been having some issues
     which is why I’m planning on moving and leaving the fire
     department. Hope you’ll forgive me. Won’t happen
     [again].”

 •   In addition to the instances described above, Corry “was
     constantly trying to grope” Vicky, with the abuse
     happening more frequently over time—to the point that he
     tried to touch her “[e]very chance he had.” Vicky
     experienced suicidal thoughts due to the abuse. She
     decreased her involvement with the fire department to try




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                          State v. Corry


      to avoid Corry, but she “loved being a firefighter” and
      “didn’t want to leave the fire department.”

                  The Charges and the Plea Deal

¶4     Based on Vicky’s allegations, Corry was charged with two
counts of rape, two counts of object rape, five counts of forcible
sexual abuse, and five counts of sexual battery. In November 2021,
Corry pled guilty to four counts of forcible sexual abuse—each a
second-degree felony—as part of a plea deal. Under the terms of
this deal, the State agreed to dismiss the remaining counts,
dismiss another case pending against Corry involving a charge of
rape allegedly committed against another victim, and recommend
concurrent sentences.

                      The Presentence Report

¶5     AP&P prepared a presentence report. While the sentencing
guidelines recommended a sentence of up to 210 days in jail and
Corry had already been in pretrial detention for 568 days, AP&P
deviated from the guidelines’ recommendation and instead
recommended a prison sentence. The presentence report
contained a summary of the offenses, details from an interview
with Corry, a copy of a typed statement submitted by Corry, a
victim impact statement submitted by Vicky, character letters
from Corry’s mother and father, and a form identifying
aggravating and mitigating circumstances.

                     The Sentencing Hearing

¶6     The district court held a sentencing hearing in January
2022. At the sentencing hearing, the court asked Corry’s counsel
(Counsel) if he and Corry had “had an opportunity to review the
presentence report.” Counsel responded that they had and that
there was “a lot of information in there that [Corry] had some
serious difficulties with in terms of validity.” Counsel requested



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                             State v. Corry


a continuance for there to “be a subsequent interview and review
with AP&P just to validate and confirm some of the things that
are presented in [the] report.” The State objected to a continuance.
The court and Counsel then engaged in the following dialogue:

       Court: . . . What objections to the presentence report
       do you wish to make?

       Counsel: . . . [Corry] believes that the information he
       provided was not adequately represented. And his
       belief is that AP&P failed to verify and validate
       some of his claims. . . .

       Court: . . . I certainly suggest that he disagrees with
       the characterization of the facts in this case, but
       [AP&P] is not charged as a fact finder to determine
       what did and did not happen in any particular case.
       . . . I am the fact finder. If there are issues of fact that
       need to be determined, it is me, I’m the one who
       makes that determination, not [AP&P].

       Counsel: And we appreciate that, Your Honor.
       Thank you.

       Court: So with that, are there corrections that need
       to be made to the presentence report?

       Counsel: At that point, Your Honor, other than the
       assertions made, we’re ready to proceed.

       Court: Well, to be clear [Counsel], you haven’t made
       any assertions. You’ve alluded to having assertions,
       but you haven’t told me what those are.

       Counsel: . . . I guess specifically to our client the
       aggravated nature of some of the claims against
       him.



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                          State v. Corry


      Court: Okay. I’m happy to hear whatever you’d like
      me to know.

      Counsel: Just one second, Your Honor. Yeah, we’re
      ready to proceed. Thank you.

¶7      The court then heard briefly from the State, which noted
that AP&P was deviating from the sentencing guidelines because
“Corry has proven himself to be a threat to the community” and
because “[h]e continued to victimize the victim over the course of
many years while in a position of authority and trust” as “her boss
at the fire station.”

¶8     The court then said to Counsel, “I don’t even know if you
are objecting to the recommendations in the presentence report.”
Counsel responded, “Your Honor, we’re objecting to the
deviation. We’re objecting to the assertion that Mr. Corry was
continually—continuing to participate in criminal activities.
There’s another statement that he was not seeking employment
when this was during COVID and [he] was doing everything in
his power that he could do.” Counsel then referred to the form in
the presentence report that contained a list of possible
aggravating and mitigating circumstances, but he noted only a set
of potential aggravating circumstances—“items 6 through 12”—
that AP&P had not indicated were applicable to Corry. Counsel
also referred to mental health or psychological treatment. As to
Corry’s failure to obtain such treatment, Counsel explained that
Corry was “thinking, well, . . . I’m the defendant, why should I do
that”; that Corry was “concerned if he did that, it may [have]
impl[ied] that he’s more guilty than he was”; but that Corry was
“wide open to doing that.” Finally, Counsel also pointed to
evidence that Corry was currently employed and said, “So he is
an active participating member of society, and . . . he is not a
concern for public safety or any of that.” Counsel then argued that
Corry had already served sufficient jail time, and he
recommended probation.



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                          State v. Corry


¶9    The court next heard again from the State. The prosecutor
said:

      I will note that my biggest concern [is] those
      aggravating circumstances. And I think those
      aggravating circumstances—the offense caused
      substantial psychological or physical injury to the
      victim and the offense involved activity that
      continued over a significant period of time—are
      enough to justify the deviation and to justify
      sending Mr. Corry to prison.

The prosecutor noted that only one mitigating circumstance had
been identified—that Corry had implemented positive
educational or employment plans. He then asked Vicky to speak.
Vicky explained the profound psychological impact of Corry’s
actions on her and the devastating consequences they had caused
to her relationships, career, and life. Among other things, she
stated, “I will hurt every single day for the rest of my life.” She
implored the court, “Please do not let him walk free. . . . Do not
allow him to not face consequences for his actions.”

¶10 Next, the prosecutor noted several concerns he had about
Corry that he thought supported a prison sentence rather than
probation. He said that in addition to the aggravating
circumstances noted in the presentence report, Corry’s written
statement included in that report was “very highly concern[ing],”
especially because in that statement, Corry blamed Vicky for his
actions. The prosecutor explained that Corry claimed in his
statement that Vicky “would come on to him,” “that it was her
fault,” “that he never understood why she charged him with this,”
and that “he was shocked when he learned what the accusations
were.” The prosecutor averred that Corry’s version of the events
was a “rewriting of history, a rewriting of the evidence that’s in
the case.” The prosecutor referred to the two recordings Vicky
had made, which had been played during the preliminary



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                          State v. Corry


hearing, and noted that in them Vicky “is heard saying stop or no
over and over and over and over.” He continued, “I decided as
we were preparing for our trial in this case to try to count in one
of them how many times she said no or stop, and I gave up after
40 times in just one of the recordings.” The prosecutor observed
that Corry had even told police that he had heard Vicky say “no”
approximately six times during one of their encounters, yet he did
not stop. The prosecutor said:

      [Corry] seems to not remember that when he was
      speaking to police and describing one of his sexual
      encounters with [Vicky] that the police stopped him
      and said, “If we had a videotape of that incident and
      we were watching it right now, what would you call
      that?” And Mr. Corry’s exact words were “I would
      call it rape.” And somehow he forgets that he said
      that to police . . . .

The prosecutor noted how differently Corry described the events
in his written statement and presented Corry’s “blaming [of]
everyone but himself” as “an additional aggravating factor that
shows that Mr. Corry is a public safety risk here.”

¶11 The prosecutor also observed that one of the reasons AP&P
gave for its deviation from the guidelines was the fact that Corry
had not sought treatment since he was released from pretrial
detention. The prosecutor argued that these various concerns
“show some pretty massive criminal thinking errors that the State
believe[d] require[d] [it] to recommend . . . prison.” The
prosecutor further said: “I think that is the appropriate
recommendation, given the length of time that the abuse
happened . . . . The preliminary hearing showed that it continued
for over three years.”

¶12 After this, the court heard again from Counsel, who
highlighted that the default recommendation under the



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                           State v. Corry


sentencing guidelines was “that [Corry] be sentenced from zero
to 210 days in jail,” that Corry’s “risk to sexually offend” had been
rated at “low or moderate,” that Corry was “dealing with some
serious problems of his own” when he committed the crimes, that
Corry “recognized a need . . . to engage and enter into treatment,”
and that he believed Corry should receive credit for the nearly
two years he had already served in jail.

¶13 Finally, Corry spoke. He apologized for his actions and
expressed a willingness to “get the treatment” and “go through
the counseling.” He also attempted to explain his written
statement, saying that he was “not trying to . . . blam[e] anybody
else” but, instead, to “bring to light” “certain things.” He then
said: “I was having an affair with her. I should have never had an
affair with her. And the reason I was shocked from the
accusations is . . . what was brought forward to me under the
circumstances on my part [was] consensual, and then it turned
and [was] used against me.”

¶14    The court then addressed Corry, saying:

       [W]hat is clear to me, Mr. Corry, is that [Vicky]
       knew when she went to the firehouse that day that
       you were going to sexually assault her. She knew it
       so much . . . that she hit record on her cell phone so
       that she would have evidence to go to the police
       with. . . .

             . . . [S]he didn’t want to be sexually assaulted.
       And yet she, like so many others, was in a position
       where she didn’t have much of a choice. You
       maintained power over her both physically and . . .
       through your supervisory power over her.

             But this is more . . . than just a sexual
       harassment case. This is a sexual assault case. In a



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                           State v. Corry


       case, Mr. Corry, that you pled guilty to, to four
       reduced counts of forcible sexual abuse. And as I
       read through the presentence report, specifically
       through your statement, you take every
       opportunity to victim blame, to identify . . .
       mitigating reasons of how you didn’t know what
       you were doing was wrong, et cetera. And if I’m
       being candid, Mr. Corry, they ring very hollow with
       me.

The court added, speaking to Vicky, “[T]oday I hope you find
some relief that you will feel as though the cancer that is the pain
of being the victim of such serious, awful crimes, that that cancer
has been excised from you and that you may heal.”

¶15 After this, the court sentenced Corry to a prison term of one
to fifteen years for each charge, with the sentences to run
concurrently and a recommendation to the Board of Pardons and
Parole that Corry receive credit for the time he had already
served. The court stated, “In weighing the aggravating and
mitigating circumstances as well as the other information from
the presentence report, I do find that the aggravating
circumstances outweigh the mitigating circumstances, and I will
adopt [AP&P]’s recommendation.” It also said, “I will note for the
record that . . . I have in no way considered the other case that was
dismissed. I’m prohibited from doing that.”


            ISSUES AND STANDARDS OF REVIEW

¶16 Corry appeals his sentence. He first asserts that the district
court erred by failing to resolve alleged inaccuracies in the
presentence report. “Whether the trial court properly complied
with a legal duty to resolve on the record the accuracy of
contested information in sentencing reports is a question of law




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                           State v. Corry


that we review for correctness.” State v. Maroney, 

, 

 (cleaned up).

¶17 Second, Corry asserts that his not obtaining treatment
before sentencing should not have been used as an aggravating
factor. He argues both that the district court committed plain error
in permitting that fact to be used as an aggravating factor and that
Counsel provided ineffective assistance by not objecting on this
point. “Claims for plain error and ineffective assistance of counsel
present questions of law, which we evaluate for correctness.” State
v. Samora, 

, 

, cert. denied, 

 (Utah 2022).

¶18 Third, Corry contends that the district court abused its
discretion in sentencing him to prison rather than to probation.
“This court reviews sentencing decisions for an abuse of
discretion.” State v. Sanchez, 

, 

(per curiam).

¶19 Finally, Corry moves this court for a remand pursuant to
rule 23B of the Utah Rules of Appellate Procedure. He asserts that
Counsel provided ineffective assistance by not submitting at
sentencing various letters that had been written in his support by
people other than his parents, which letters Corry wishes to now
be admitted into the record. A rule 23B motion should be granted
only where (1) the defendant provides affidavits supporting
nonspeculative allegations of facts that are not in the record, (2)
the alleged facts show deficient performance by defense counsel,
and (3) the alleged facts demonstrate that the defendant was
prejudiced by the alleged deficient performance. See State v. Hatch,

, 

, cert. denied, 

(Utah 2020).




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                            State v. Corry


                            ANALYSIS

        I. Alleged Inaccuracies in the Presentence Report

¶20 Corry first contends that the district court erred by failing
to resolve alleged inaccuracies in the presentence report. We
disagree.

¶21 Under the Utah Code, “[i]f there is an alleged inaccuracy in
the presentence investigation report that is not resolved by the
parties and the [Department of Corrections] or law enforcement
agency before sentencing,” “the alleged inaccuracy shall be
brought to the attention of the court at sentencing” and “the court
may grant an additional 10 working days after the day on which
the alleged inaccuracy is brought to the court’s attention to allow
the parties and the department to resolve the alleged inaccuracy
in the presentence investigation report.” Utah Code § 77-18-
103(5)(a). 2 However, “[i]f a party fails to challenge the accuracy of
the presentence investigation report at the time of sentencing, the
matter shall be considered waived.” Id. § 77-18-103(5)(c).

¶22 This statute does not support Corry’s claim of error
because Corry never identified for the district court specific
alleged inaccuracies in the presentence report. The code’s
reference to “an alleged inaccuracy in the presentence
investigation report” that “shall be brought to the attention of the
court,” id. § 77-18-103(5)(a), confirms the common-sense notion
that a defendant must identify specific items of information in a
presentence report that are allegedly inaccurate; a defendant may
not invoke the statute merely by claiming generally that the report
is inaccurate. See State v. Jaeger, 

, 

. This subsection has been renumbered, but the language at issue
has not been changed. Compare Utah Code § 77-18-103(5), with id.
§ 77-18-103(4) (2022). We therefore cite the current version of the
statute for convenience.


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                           State v. Corry


(holding that an earlier version of the statute “require[d] the
sentencing judge to consider the party’s objections to the report,
make findings on the record as to whether the information objected
to is accurate, and determine on the record whether that
information is relevant to the issue of sentencing” (emphasis
added)); State v. Johnson, 

, 

(recounting the defendant’s specific objections to particular
information in the presentence report), cert. denied, 

(Utah 2006).

¶23 As recounted above, Counsel and the court engaged in a
dialogue related to the presentence report, during which Counsel
requested a continuance because there was “a lot of information
in [the report] that [his] client had some serious difficulties with
in terms of validity.” But despite the court’s persistent efforts to
ferret out what specific information Corry was alleging was
inaccurate, Counsel continued to make vague references to the
contents of the report generally rather than identify any specific
misstatements in the report. Eventually, the court pointedly asked
Counsel, “[A]re there corrections that need to be made to the
presentence report?” And Counsel responded that “other than the
assertions made,” Corry was ready to proceed. The court then
stated, “Well, to be clear [Counsel], you haven’t made any
assertions. You’ve alluded to having assertions, but you haven’t
told me what those are.” After another vague response failing to
identify any specific alleged inaccuracies, Counsel again said
Corry was ready to proceed. After this, Counsel indicated that he
was objecting to AP&P’s recommendation in the presentence
report. But a sentencing recommendation is not a factual matter
that implicates the statute dealing with the correction of
inaccuracies. 3



3. A defendant could, hypothetically, argue that a sentence
recommendation is factually inaccurate if a different
                                              (continued…)


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                           State v. Corry


¶24 Counsel’s most specific statements were “We’re objecting
to the assertion that Mr. Corry was continually—continuing to
participate in criminal activities” and “There’s another statement
that he was not seeking employment when this was during
COVID and [he] was doing everything in his power that he could
do.” Counsel did not provide the court with any page numbers or
otherwise refer to specific statements in the presentence report,
and the presentence report does not contain these precise
statements. In his reply brief, Corry attempts to tie these—again,
vague—objections to specific statements in the presentence
report, but this effort comes too late. “An objection must at least
be raised to a level of consciousness such that the trial court can
consider it.” John v. John, 

, 

(cleaned up). 4 Not only did Corry fail to raise any specific alleged


recommendation is stated by the same recommender elsewhere.
But Corry is not disputing the factual accuracy of the
recommendation; instead, he is asserting that AP&P should have
recommended probation instead of prison time.

4. Even if we were to credit Corry’s allegations of specific
inaccuracies, he would not prevail. Corry alleges that in one place
the report inaccurately referred to his educational and
employment goals, but in another place the report accurately
identified Corry’s education and employment status and also
indicated that his positive educational or employment plans
served as a mitigating factor. Thus, the error would have been
harmless even if the court had erred by not correcting the
allegedly inaccurate statement about Corry’s educational and
employment goals. Corry also takes issue with the statement that
the abuse occurred “over a significant amount of time.” But Vicky
reported that the abuse occurred from August 2015 to August
2018, and Corry does not explain how the characterization “over
a significant amount of time” is inaccurate in light of that
                                                    (continued…)


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                            State v. Corry


inaccuracies to a level of consciousness sufficient for the district
court to consider them, but the court explicitly and repeatedly
told Counsel that he had failed to do so. Because Corry “fail[ed]
to challenge the accuracy of the presentence investigation report
at the time of sentencing,” we must consider the matter waived.
Utah Code § 77-18-103(5)(c).

         II. Lack of Treatment as an Aggravating Factor

¶25 Corry next argues that his lack of treatment should not
have been used as an aggravating factor for sentencing purposes.
He asserts both plain error on the part of the district court and
ineffective assistance of counsel based on Counsel not objecting
on this point and not adequately advising Corry regarding the
potential mitigating and aggravating factors the court might
consider at sentencing. “To establish plain error, a defendant must
show that (i) an error exists; (ii) the error should have been
obvious to the trial court; and (iii) the error was harmful.” State v.
Samora, 

, 

 (cleaned up), cert.
denied, 

 (Utah 2022). “An ineffective assistance of
counsel claim, on the other hand, requires a defendant to prove
both that counsel’s performance was deficient and [that] the
deficient performance prejudiced the defense.” 

 (cleaned up).

¶26 Corry contends that he “had difficulty finding
employment during the global pandemic that was reaching its
height just as [he] was released” from pretrial detention and that
this reality and the lack of local programs for sex offender
treatment in his rural area made it “inappropriate” for AP&P and
the district court to consider Corry’s lack of treatment an
aggravating factor. Corry’s argument then relies on the Utah
sentencing guidelines’ warning that “[f]actors that reflect socio-

timeframe. Hence, even if Corry had raised this alleged
inaccuracy to a level of consciousness in the district court, the
court would not have erred by declining to “correct” it.


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                           State v. Corry


economic status more than risk” should be used “with caution”
because “[a] person’s relative abundance of resources or a lack of
resources including access to treatment, financial stability, or
ability to pay fines and fees, should not unduly affect the person’s
sentence.” Utah Sent’g Comm’n, 2020 Adult Sentencing & Release
Guidelines 22 (2020) https://justice.utah.gov/wp-content/uploads/
2020-Adult-Sentencing-and-Release-Guidelines.pdf
[https://perma.cc/KG9X-EP2Y]. Corry further contends that while
engaging in treatment can be a mitigating circumstance, “[i]t does
not follow . . . that not seeking treatment prior to sentencing is an
aggravating circumstance.”

A.     Plain Error

¶27 Corry’s argument of plain error on the part of the district
court fails for two reasons. First, there is no per se prohibition
against using lack of treatment as an aggravating factor. The
warning Corry points to in the sentencing guidelines defeats
Corry’s argument that lack of treatment ought not qualify as an
aggravating factor because the warning implies that the listed
examples can serve as either mitigating or aggravating
circumstances. And while the guidelines link “access to
treatment” with “[a] person’s relative abundance of resources or
a lack of resources,” they do not outright prohibit the
consideration of factors linked to resources; instead, they urge
caution when using such factors. 

¶28 Second, there was no indication to the district court that
Corry’s failure to obtain treatment “reflect[ed] socio-economic
status more than risk” because Corry never connected his lack of
treatment to his socioeconomic status before the district court.
Corry certainly makes this connection on appeal, arguing that his
treatment options were limited by his lack of employment
opportunities and nearby providers. But Corry did not cite these
considerations to the district court. Instead, Counsel explained to
the district court that Corry was “thinking, well, . . . I’m the


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                           State v. Corry


defendant, why should I do that” and that Corry was “concerned
if he did [obtain treatment], it may [have] impl[ied] that he’s more
guilty than he was.” The court had no reason to believe that
Corry’s lack of treatment was based on any explanation other than
the one Counsel provided. Based on the proffered explanation,
Corry’s lack of treatment did not reflect Corry’s socioeconomic
status at all, let alone “reflect [Corry’s] socio-economic status
more than [his] risk.” 

 Accordingly, the court did not err—let
alone plainly err—in considering this factor as an aggravating
circumstance.

B.     Prejudice

¶29 Moreover, Corry was not prejudiced by the use of his lack
of treatment as an aggravating factor. “To establish prejudice, it is
not enough for a defendant to show that the errors had some
conceivable effect on the outcome of the proceeding. Instead, the
defendant has the burden of showing that the decision reached
would reasonably likely have been different absent [the] alleged
errors.” State v. Samora, 

, 

 (cleaned up).

¶30 While the district court did find “that the aggravating
circumstances outweigh[ed] the mitigating circumstances” and
adopted AP&P’s recommendation that was based, in part, on
Corry’s lack of treatment, the court also stated that it weighed “the
other information from the presentence report,” which included
Vicky’s version of the events and Corry’s written statement. And
the court specifically addressed both Vicky’s experience and
Corry’s statement. As to Vicky’s experience, the court observed
that due to Corry’s repeated assaults, “Vicky knew when she went
to the firehouse [in April 2018] that [Corry] was going to sexually
assault her” and that because he “maintained power over her both
physically and through [his] supervisory power over her,” she
“didn’t have much of a choice.” Regarding Corry’s statement, the
court noted that he had taken “every opportunity to victim
blame” and to “identify . . . mitigating reasons,” including by


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                           State v. Corry


claiming that he “didn’t know what [he was] doing was wrong, et
cetera.” The court expressed clear disapproval of that victim
blaming and of Corry’s “hollow” “mitigating reasons” for his
actions. The court also emphasized that through his plea deal,
Corry was able to plead guilty to four reduced counts of forcible
sexual abuse, and it referred to Corry’s actions as “serious, awful
crimes.”

¶31 The court’s statements indicate that in reaching its
sentencing decision, it relied on the serious nature of Corry’s
repeated offenses and the lack of accountability the court felt
Corry had taken for his actions. Among all this, the court made no
specific reference to Corry’s lack of treatment. Thus, we conclude,
based on the court’s own statements, that it is not reasonably
likely that the court would have sentenced Corry to probation
rather than prison if Counsel had objected to the use of Corry’s
lack of treatment as an aggravating factor or advised Corry more
thoroughly regarding the potential mitigating and aggravating
factors the court would consider at sentencing. In sum, Corry was
not prejudiced by these alleged errors.

                  III. Sentencing Corry to Prison

¶32 Corry next asserts that the district court abused its
discretion by sentencing him to prison rather than to probation.
Corry argues that various factors made him “the ideal candidate
for probation” and that “no reasonable person would have
sentenced [him] to prison rather than affording him the
opportunity to prove himself on probation.”

¶33 “We afford the sentencing court wide latitude and will
reverse a sentencing decision only if it is an abuse of the judge’s
discretion.” State v. Scott, 

, 

(cleaned up). “A sentence constitutes an abuse of discretion when
the sentencing court fails to consider all legally relevant factors,
or the sentence imposed is clearly excessive.” 

 (cleaned up).



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                           State v. Corry


“We will thus find an abuse of discretion only if no reasonable
person would take the view adopted by the district court.” 

(cleaned up).

¶34 Even if it is true that Corry was a good candidate for
probation, “a defendant in a criminal case is not entitled to
probation.” State v. Irey, 

, 

(cleaned up). And we disagree with Corry that no reasonable
person would agree with the district court’s prison sentence. “As
an initial matter, we note that the court followed AP&P’s
sentencing recommendation, suggesting that the court’s weighing
of the factors in sentencing was not a view that no reasonable
person would take.” State v. Wilkes, 

, 

 (cleaned up), cert. denied, 

 (Utah 2021); see
also Rita v. United States, 

 (2007) (explaining that
when a sentencing commission and a sentencing judge “have
reached the same conclusion as to the proper sentence in the
particular case[,] that double determination significantly
increases the likelihood that the sentence is a reasonable one”
(cleaned up)).

¶35 Moreover, the court’s sentence of prison is not
unreasonable in light of our legislature’s directives. Pursuant to
Utah Code section 76-3-203, “[a] person who has been convicted
of a felony may be sentenced to imprisonment for an
indeterminate term,” specifically, “[i]n the case of a felony of the
second degree, unless the statute provides otherwise, . . . for a
term of not less than one year nor more than 15 years.” That the
legislature made imprisonment the default sentence for second-degree felonies and Corry pled guilty to four of them contradicts
Corry’s argument. Because defendants are not entitled to have
sentences run concurrently, see Utah Code § 76-3-401(1)–(2), an
even longer sentence than the one Corry received would still have




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                            State v. Corry


aligned with the presumptive sentence assigned by the
legislature. 5

¶36 Additionally, the particular circumstances of this case that
the court identified support the court’s sentence, specifically, (1)
the “serious, awful” nature of Corry’s crimes—the prosecutor
stated that he had counted more than forty instances of Vicky
saying “no” or “stop” in just one of the recordings; (2) the position
of power Corry exploited to commit them; (3) the fact that Corry’s
abuse of Vicky spanned three years; (4) the devastating
consequences on Vicky’s life from Corry’s abuse; and (5) the fact
that Corry’s plea deal involved the dismissal of ten other counts
in this case (as well as a rape charge in another case, though the
district court stated that it did not consider that charge in
sentencing), see State v. Akers, 

, 

(indicating that courts may consider dismissed charges during
sentencing).

¶37 Corry argues on appeal that the district court
misinterpreted some of his comments in his written statement as
“victim blaming” and a failure to take responsibility. However,
appellate courts are not “to reweigh aggravating and mitigating
factors or to second-guess a district court’s sentencing
determination,” State v. Martin, 

, 

,
because district courts “are best situated to weigh the many
intangibles of character, personality and attitude, of which the
cold record gives little inkling,” State v. Killpack, 

,

 (cleaned up). The district court observed Corry

5. While the State agreed to recommend concurrent sentences,
“[p]lea agreements are negotiated between the defendant and the
State; the district court is not a party to the plea agreement. Thus,
the court is not required to accept a plea agreement and is not
bound by its terms.” State v. Hamilton, 

, 

 (cleaned up). The court therefore retained discretion to
sentence Corry to consecutive prison terms if it so chose.


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                            State v. Corry


throughout the proceedings, and we credit its concern that Corry
was not taking accountability for his actions, which concern was
likely confirmed by Corry’s comments during the sentencing
hearing that painted his sexual activity with Vicky as a consensual
“affair.”

¶38 Given the foregoing, the court’s imposition of a prison
sentence rather than probation was not unreasonable and, thus,
not an abuse of discretion.

                   IV. Corry’s Rule 23B Motion

¶39 Finally, Corry has filed a motion under rule 23B of the Utah
Rules of Appellate Procedure, alleging that Counsel provided
ineffective assistance by not submitting at sentencing letters that
had been written by various people in support of Corry. Corry has
supplied us with these letters, which—in Corry’s words—
demonstrate his character by speaking to his “strong community
ties, support, and service” as well as “other aspects of Corry as a
person that would have been helpful for the sentencing judge to
know.”

¶40 Again, a rule 23B motion should be granted only where (1)
the defendant provides affidavits supporting nonspeculative
allegations of facts that are not in the record, (2) the alleged facts
show deficient performance by defense counsel, and (3) the
alleged facts demonstrate that the defendant was prejudiced by
the alleged deficient performance. See State v. Hatch, 

, 

, cert. denied, 

 (Utah 2020). And
“to establish prejudice, . . . the defendant has the burden of
showing that the decision reached would reasonably likely have
been different absent [the] alleged errors.” State v. Samora, 

, 

 (cleaned up).

¶41 Even assuming arguendo that Corry can satisfy the first
two elements—including that Counsel performed deficiently by



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                           State v. Corry


not providing some or all of the indicated letters to the court at
sentencing—that failure was not prejudicial here. As described
above, the court specifically focused on the “serious, awful”
nature of Corry’s crimes, the number of reduced charges he was
pleading guilty to, his abuse of power over Vicky, the cancerous
impact of Corry’s actions on Vicky’s life, and the fact that Corry’s
written statement repeatedly victim blamed and offered hollow
assertions of mitigating circumstances to explain Corry’s
behavior. None of these factors relate to Corry’s character apart
from his actions in this case, evidencing that the court was focused
on Corry’s conduct in this case and its consequences, and that it
likely would not have been swayed to impose a different sentence
by additional statements supporting Corry’s generally favorable
character as attested to by his grandmother and members of the
community.

¶42 And, indeed, the presentence report included letters
written by Corry’s father and mother that spoke to Corry’s
character, and we take the court at its word that it weighed “the
other information from the presentence report” when deciding
Corry’s sentence. In these letters, the court was informed about
Corry’s community involvement, commitment to service and
volunteerism, kind and helpful demeanor, and community
support—the same themes present in the additional letters
proffered through Corry’s rule 23B motion. Despite the court
having and considering this basic information as presented in the
letters from Corry’s parents, it focused on the already mentioned
factors; we are not convinced that more voices on the topic of his
general character would have changed the sentencing outcome.

¶43 We also do not agree with Corry’s assertion that the
additional letters would have contradicted AP&P’s conclusion
that Corry had “proven himself to be a threat to the community.”
AP&P appears to have based this conclusion on (1) the length of
time Corry abused Vicky, (2) the fact that to accomplish the abuse
he took advantage of his position of authority over Vicky, (3)


 20220074-CA                    23              

                           State v. Corry


Corry’s lack of treatment, and (4) the dismissed case wherein
Corry had been charged with rape of a separate victim. And none
of the letters address any of these points. Moreover, the
prosecutor argued that “Corry [was] a public safety risk” for an
additional reason not likely to have been contradicted by more
letters of Corry’s general character—i.e., that Corry continued to
not take responsibility for his conduct and, instead, “blam[ed]
everyone but himself.” AP&P’s and the prosecutor’s reasons for
asserting that Corry was a threat to the community had nothing
to do with Corry’s general demeanor or history of volunteering
but everything to do with Corry’s actions and attitude related to
this case. Thus, introduction of additional letters of Corry’s
general character would have been unlikely to change either the
court’s assessment of the threat Corry posed to the community or
its ultimate determination that the nature of Corry’s actions in this
case warranted a prison sentence. We therefore see no prejudice
in Counsel’s failure to introduce the additional letters, and we
deny Corry’s rule 23B motion.


                          CONCLUSION

¶44 Corry did not object to specific alleged inaccuracies in the
presentence report, so his claim of error on that ground fails. The
district court committed no plain error and Counsel did not
render ineffective assistance related to the use of Corry’s lack of
treatment as an aggravating factor. And the court did not abuse
its discretion in sentencing Corry to prison. Accordingly, we
affirm. Additionally, because Corry has not alleged facts sufficient
to demonstrate the prejudice needed to succeed on the ineffective
assistance of counsel claim raised in his rule 23B motion, we deny
that motion.




 20220074-CA                     24