State v. Scott

400 P.3d 1172

STATE of Utah, Appellee,

v.Kevin Michael SCOTT, Appellant.

No. 20130309-CA

Court of Appeals of Utah.

Filed June 29, 2017

Matthew D. Carling, Attorney for Appellant.

Sean D. Reyes and Kris C. Leonard, Salt Lake City, Attorneys for Appellee.

Judge Stephen L. Roth authored this Opinion, in which Judges J. Frederic Voros Jr. and Michele M. Christiansen concurred.

Opinion

ROTH, Judge:

¶ 1 Kevin Michael Scott pleaded guilty to sexual abuse of a child and possession or use of a controlled substance.¹ He appeals, claiming that he received constitutionally ineffective assistance of counsel prior to entering his plea, that the sentencing court erred in failing to sua sponte revisit his plea based on evidence of mental deficiency, and that the court failed to properly consider mitigating factors when it sentenced him. We affirm.

¶ 2 In 2011, a detective interviewed a young teenager at the local Children's Justice Center. The teenager disclosed that she had been involved in a sexual relationship with Scott when she was thirteen and he was eighteen. After learning that information, the detective brought Scott in for questioning about the relationship. Scott waived his Miranda rights, agreed to speak to the detective, and admitted to having sexual intercourse with the girl—then his girlfriend—on multiple occasions. The State charged Scott with rape of a child, a first degree felony.

¶ 3 While that charge was pending and he was out on bail, Scott failed to appear for a court hearing. The court therefore issued a bench warrant for Scott's arrest, and the next day an officer stopped Scott based on the warrant. Scott initially resisted arrest by running away, but the officer caught him. The officer conducted a pat down search and discovered several pills that later tested positive for morphine. The State charged Scott with possession or use of a controlled substance, enhanced to a second degree felony due to proximity to a child-care facility, failure to stop at the command of a police officer, a class A misdemeanor, and interference with an arresting officer, a class B misdemeanor. After he was again released on bail, Scott absconded to Washington and another warrant issued for his arrest. Scott was eventually found in Washington and returned to Utah for trial.

¶ 4 Scott agreed to plead guilty to sexual abuse of a child, a second degree felony, and possession or use of a controlled substance, a third degree felony, in return for dismissal of the remaining charges. At the plea hearing, the court went through a colloquy with Scott, who indicated that he had no mental or physical deficiencies that would interfere with his ability to enter a guilty plea. Scott also indicated that he understood his rights and the basis for the charges against him and that he was satisfied with the representation he had received from defense counsel. The court then heard the factual basis for both pleas, confirmed that Scott knew he would be giving up important rights by pleading guilty, and explained that he would need to register as a sex offender for life. Finally, the court accepted both guilty pleas and found that they were "freely, knowingly, intelligently and voluntarily made with understanding."

¶ 5 At sentencing, the court relied on information from a number of sources, including a neuropsychological evaluation prepared by the defense and a presentence investigation (PSI) report prepared by the State. The neuropsychological evaluation summarized Scott's cognitive abilities as "impaired to low average." The PSI report detailed Scott's criminal and family histories and briefly described the results of the neuropsychological evaluation, a copy of which was attached to the report. After balancing "the safety of the community against the wants and needs of the defendant," the PSI report ultimately recommended that "imprisonment best suited the situation." The court also considered oral statements from Scott, the State, defense counsel, and Scott's mother and father, as well as written statements from other family members and friends. The statements focused on mitigating circumstances such as Scott's good nature and aptitude for rehabilitation. The court also heard statements which explained that Scott's diminished executive reasoning, as detailed in the PSI report, was the result of a traumatic brain injury he had suffered some years earlier. The court sentenced Scott to serve concurrent terms of one to fifteen years for sexual abuse of a child and zero to five years for possession or use of a controlled substance.

¶ 6 On appeal, Scott argues that he received ineffective assistance of counsel because his attorney did not move to suppress the controlled-substance evidence on Fourth Amendment grounds. Scott also argues that, because the PSI report and neuropsychological evaluation indicated he had impaired cognitive abilities, the sentencing court committed plain error when it failed to reexamine sua sponte whether Scott's guilty plea was knowing and voluntary.

¶ 7 Our jurisdiction to consider these arguments is governed by the procedural posture of this case. The Utah Constitution provides that the accused generally has "the right to appeal in all cases." Utah Const. art. I, § 12. The right to appeal is not absolute, however, because "guilty pleas operate as a waiver of the right to a direct appeal of the conviction on the crime charged." State v. Taufui , 2015 UT App 118, ¶ 15, 350 P.3d 631 (brackets, citation, and internal quotation marks omitted). "If a defendant wishes to challenge a guilty plea on direct appeal, he must first move to withdraw the plea...." State v. Coleman , 2013 UT App 131, ¶ 3, 302 P.3d 860 (per curiam). "If a defendant does not move to withdraw the plea, the only direct appeal available is the residual right to appeal the sentence." State v. Nicholls , 2017 UT App 60, ¶ 20, 397 P.3d 709. Indeed, failure to seek to withdraw a guilty plea creates a bar that prohibits this court from reviewing on direct appeal the plea itself or any proceeding that led to it. See State v. Ott , 2010 UT 1, ¶ 18, 247 P.3d 344 ("[F]ailure to withdraw a guilty plea within the time frame dictated by [Utah's plea withdrawal statute] deprives the trial court and appellate courts of jurisdiction to review the validity of the plea.").

¶ 8 In this case, Scott challenges his convictions for crimes he pleaded guilty to. Because he never moved to withdraw his plea, we lack jurisdiction to consider any challenge not directed at the sentence he received. See id. That rule applies regardless of the nature of the errors—here, ineffective assistance of counsel and plain error—that Scott alleges occurred below. In State v. Rhinehart , our supreme court explained that, "by pleading guilty, the defendant ... waives all nonjurisdictional defects, including alleged pre-plea constitutional violations." 2007 UT 61, ¶¶ 14–15, 167 P.3d 1046 (citation and internal quotation marks omitted) (rejecting on jurisdictional grounds an ineffective assistance of counsel claim raised on direct appeal following a guilty plea). And in State v. Reyes , the supreme court made clear that an appellate court cannot "use plain error to reach an issue over which it has no jurisdiction." 2002 UT 13, ¶ 4, 40 P.3d 630. These principles control our decision—we are powerless to address either of Scott's first two arguments on appeal.

¶ 9 Scott's remaining claim relates to his sentence, which we do have jurisdiction to review. See Nicholls , 2017 UT App 60, ¶ 20, 397 P.3d 709. He argues that the court "failed to take into consideration the mitigating circumstances of Scott's mental competency and [brain] injury" when it sentenced him. In support of his argument, Scott contends that, even though the "court [had] ample time to review [the] PSI and the Neuropsychological Evaluation," "at sentencing it was clear that the court had taken none of [the mitigating circumstances from] the report[s] into consideration." As proof, he focuses on the sentencing court's statement that, but for Scott's young age, "this would [have been] a really easy case" to sentence. As we understand it, Scott contends that this statement shows that the court ignored all mitigating factors other than the defendant's age.

¶ 10 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. Moa , 2012 UT 28, ¶ 34, 282 P.3d 985 (citation and internal quotation marks omitted). 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." LeBeau v. State , 2014 UT 39, ¶ 16, 337 P.3d 254 (citation and internal quotation marks omitted). We will thus find an abuse of discretion only if "no reasonable person would take the view adopted by the district court." State v. Monzon , 2016 UT App 1, ¶ 8, 365 P.3d 1234 (brackets, citation, and internal quotation marks omitted). Further, this court generally presumes that the sentencing court "made all the necessary considerations when making a sentencing decision." Moa , 2012 UT 28, ¶ 35, 282 P.3d 985. "Although courts must consider all legally relevant factors in making a sentencing decision, not all aggravating and mitigating factors are equally important, and one factor in mitigation or aggravation may weigh more than several factors on the opposite scale." State v. Killpack , 2008 UT 49, ¶ 59, 191 P.3d 17 (brackets, citation, and internal quotation marks omitted), abrogated on other grounds as recognized by State v. Lowther , 2017 UT 24.

¶ 11 The district court here did not make detailed findings of fact regarding...