State v. Naves

477 P.3d 28

STATE of Utah, Appellee,

v.Randy Thomas NAVES, Appellant.

No. 20180343-CA

Court of Appeals of Utah.

Filed November 13, 2020

Andrea J. Garland, Attorney for Appellant

Sean D. Reyes, Salt Lake City, and Tera J. Peterson, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.

Opinion

HARRIS, Judge:

¶1 Randy Thomas Naves pled guilty to three counts of sexual abuse of a child, one count of dealing in harmful material to a minor, and one count of lewdness involving a child. The district court sentenced Naves to prison, ordering that the sentences on two of the counts run concurrently and the remainder run consecutively. Naves now appeals, arguing that his attorney rendered ineffective assistance at sentencing, and asserting that the district court abused its discretion in ordering some of his sentences to run consecutively. We affirm.

BACKGROUND

¶2 In 1997, Naves—a long-haul truck driver—invited several neighborhood boys, all of whom were younger than fourteen, to spend the night with him in the sleeper part of his truck cab. Naves taught the boys to play a sexually explicit card game, showed them how to put on a condom by putting one on his own penis, masturbated in front of the boys, had mutual "manual contact with each other[’]s penises," and asked one of the boys to perform oral sex on him. Naves was charged with nine criminal counts related to these events, including three first-degree felonies.

¶3 With counsel's help, Naves negotiated a plea agreement with the State, whereunder the State agreed to dismiss four of the counts and Naves agreed to plead guilty to five others, as amended: three counts of sexual abuse of a child, all second-degree felonies; one count of dealing in harmful material to a minor, a third-degree felony; and one count of lewdness involving a child, a class A misdemeanor. In the plea agreement, Naves admitted that he showed the boys pornographic material, exposed his own penis to them, "touched the penis" of two of the boys, and had one of the boys touch his penis.

¶4 Following the entry of Naves's plea, Adult Probation and Parole (AP&P) prepared a twenty-one-page presentence report for the benefit of the district court at sentencing. The report summarized the events leading to the criminal charges, and included Naves's own statement acknowledging that much of the behavior he had been accused of had in fact occurred. However, AP&P concluded that Naves did not appear to take full responsibility for what happened, and that he continued to "den[y] any sexual intent, and [gave] the impression he was drawn into sexual activity by the children." In the report, AP&P also noted that Naves had a history of sexually abusing other children: he had previously been convicted of committing a lewd act in the presence of a child in California, and he admitted to AP&P officers during an interview that he had "a few [other] victims over the years," including as many as three victims under the age of fifteen. The report included input from the investigating officer, who opined that he had "never run into a pedophile who has gone to these lengths" to involve children in sexual activity. The report also made note of the fact that Naves himself had been sexually abused as a young boy and as a teenager. In addition, the report discussed Naves's psychosexual evaluation, including the evaluator's opinions that Naves had "a poor treatment prognosis" and posed "a significant risk to reoffend." Ultimately, AP&P recommended that Naves be sentenced to prison and that his sentences all run consecutively.

¶5 At the sentencing hearing, in addition to hearing argument from Naves's attorney and from the prosecutor, the court allowed the parents of one of the victims to address the court. Also, Naves addressed the court directly and offered an allocution, in which he read, in part, from a letter he had written to the court.

¶6 During his presentation to the court, Naves's counsel began by noting that Naves objected "to the recommendation of prison, and certainly object[ed] to the recommendation of consecutive time." Counsel pointed to a number of considerations that, in his view, weighed against Naves being sentenced to prison, including the fact that Naves had a family—a wife and two young children—who relied on him, that Naves had been a productive and employed member of society as an adult, and that Naves had himself been a victim of sexual abuse as a child. Counsel argued that Naves was a particularly good candidate for treatment options, and urged the court, in lieu of a prison term, to put Naves on probation and send him to a residential facility that would provide "long-term, intensive" psychological treatment. "In the alternative," counsel urged the court, if it was set on sending Naves to prison, to impose concurrent rather than consecutive sentences. Counsel noted that the imposition of concurrent sentences would give the Board of Pardons more flexibility to decide how long Naves should serve. Finally, as a "last alternative," counsel asserted that, at minimum, the court should run the first two counts concurrently because those counts involved "the same victim" as part of "the same incident."

¶7 In the course of making his argument, Naves's counsel attempted to rebut AP&P's position that Naves had not sufficiently accepted responsibility for his actions. To this end, counsel asserted that Naves "definitely had some deep problems" and had "been a pedophile," but that Naves "knows that," has "admitted that," and has "accepted responsibility throughout," as indicated by his "totally honest and open" demeanor in both of "his interviews that took place in this case" and his psychological treatment.

¶8 Before announcing its ruling, the court stated that it had read the presentence report, as well as "a number of letters" sent in support of Naves, including Naves's own letter. The court noted Naves's history of having been sexually abused himself and stated that it had "empathy for" Naves, but opined that Naves's personal history was "not justification for" his recent behavior. The court also considered how imposition of a prison sentence upon Naves would affect Naves's family, and noted the "poor treatment prognosis" Naves was given in the psychosexual evaluation. Ultimately, the court rejected Naves's request for probation, and sentenced Naves to prison on all counts. With regard to whether those sentences would be imposed concurrently or consecutively, the court adopted counsel's suggested "last alternative," and imposed concurrent sentences on the first two sexual abuse of a child counts but consecutive sentences on the other counts.

ISSUES AND STANDARDS OF REVIEW

¶9 Naves now appeals,¹ and asks us to consider two issues. First, Naves argues that his attorney rendered ineffective assistance. "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." Layton City v. Carr , 2014 UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified). Second, Naves asserts that the district court abused its discretion when it failed to impose concurrent sentences on all of the counts to which Naves had pled guilty. "We afford the [district] court wide latitude in sentencing and, generally, will reverse a [district] court's sentencing decision only if it is an abuse of the judge's discretion." State v. Reece , 2015 UT 45, ¶ 81, 349 P.3d 712 (quotation simplified). Because—as we explain below—Naves failed to properly preserve his specific challenge for appellate review, we examine it here for plain error. "The plain error standard of review requires an appellant to show the existence of a harmful error that should have been obvious to the district court." State v. Hansen , 2020 UT App 17, ¶ 10, 460 P.3d 560 (quotation simplified).

ANALYSIS

I

¶10 Naves first asserts that his attorney rendered constitutionally ineffective assistance in two respects: first, by telling the court that Naves had "been a pedophile" in the course of oral argument during the sentencing hearing, and second, by suggesting that, as a "last alternative," the court could choose to run the sentences for two of Naves's counts concurrently and impose his remaining sentences consecutively.

¶11 To establish ineffective assistance, Naves must show both (1) that his counsel's performance was deficient, in that it "fell below an objective standard of reasonableness," and (2) that this "deficient performance prejudiced the defense" in such a way that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington , 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; see also State v. Scott , 2020 UT 13, ¶ 28, 462 P.3d 350 ; State v. Ray , 2020 UT 12, ¶ 24, 469 P.3d 871. Because "[f]ailure to satisfy either part of the ineffective assistance test is fatal to a defendant's claim," State v. Popp , 2019 UT App 173, ¶ 48, 453 P.3d 657 (quotation simplified), we need not "address both components of the inquiry if we determine that [Naves] has made an insufficient showing on one," see Archuleta v. Galetka , 2011 UT 73, ¶ 41, 267 P.3d 232 (quotation simplified).

¶12 The first part of this test—deficient performance—requires Naves to establish that his attorney's performance "fell below an objective standard of reasonableness." Scott , 2020 UT 13, ¶ 31, 462 P.3d 350 (quotation simplified). We "indulge a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance" when evaluating counsel's performance under this standard. Strickland , 466 U.S. at 689, 104 S.Ct. 2052. In doing so, we ask "whether counsel's assistance was reasonable considering all the...