State v. Wilkes

479 P.3d 1142

STATE of Utah, Appellee,

v.Paul Chapman WILKES, Appellant.

No. 20190216-CA

Court of Appeals of Utah.

Filed December 31, 2020

Sarah J. Carlquist, Attorney for Appellant

Sean D. Reyes, Salt Lake City and Lindsey L. Wheeler, Attorneys for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.

Opinion

Christiansen Forster, Judge:

¶1 Paul Chapman Wilkes appeals his prison sentence, arguing that his counsel was constitutionally ineffective in failing to object to the sentencing court's consideration of a psychosexual evaluation from a previous offense and that the court abused its discretion when it sentenced him to prison instead of probation. We affirm.

BACKGROUND

¶2 In the summer of 2012, Wilkes, age twenty-seven, manipulated NK, who was sixteen, into having sex with him on three occasions in exchange for money and gifts.¹

¶3 In January 2013, after Wilkes had abused NK but before that abuse was reported, Wilkes sexually abused a different minor, this time a fourteen-year-old girl (SV). Wilkes was charged in that case and pleaded guilty to sexual battery in 2013 (first case). When SV reported the abuse, she provided a statement to police detailing the events. As part of sentencing in the first case, Wilkes underwent a psychosexual evaluation in September 2013. In that evaluation, Wilkes denied that he sexually abused SV. Notably, he also denied that he "ever had sexual contact with anyone under 17 years of age," even though he had committed the (then unreported) sexual abuse of NK about one year before. Because of his denial and his failure to take responsibility for his abuse of SV, the evaluator determined that Wilkes was not sufficiently motivated to participate in sex-offender treatment. The evaluator concluded that before engaging in a sex-offender treatment program, Wilkes would need to participate in a more general course of psychotherapy to address his interpersonal and emotional functioning. Wilkes was sentenced to thirty-six months of probation and ordered to participate in a sex-offender treatment program, which he completed in 2016.

¶4 Three years after being abused by Wilkes, NK disclosed the abuse. The State charged Wilkes with one count of encouraging, inducing, or purposely causing the prostitution of a child, see Utah Code Ann. § 76-10-1306(3) (LexisNexis 2012), and three counts of unlawful sexual conduct with a sixteen- or seventeen-year-old, see id. § 76-5-401.2. In August 2017, Wilkes pleaded guilty to two counts of unlawful sexual conduct, and the State dismissed the other two charges (second case).

¶5 In its presentence investigation report (PSI), Adult Probation and Parole (AP&P) recommended imprisonment. Wilkes objected to the PSI and moved to continue his sentencing hearing, arguing that the PSI had "numerous errors" and omitted "information which is favorable to him and which would have a bearing on his sentence." Specifically, Wilkes's counsel asserted that "the person who prepared" the PSI had "totally ignore[d]" and "not even mention[ed]" a positive two-page letter from Wilkes's current sex-offender therapist. Wilkes also objected that the PSI "revisit[ed]" the first case and the conclusions of the therapist in that case. The sentencing court denied the request to strike the PSI and order a new report, concluding that "there was nothing inaccurate about the fact that [Wilkes] did enter into treatment with other people" and "ultimately completed the treatment." The court then sentenced Wilkes to concurrent terms of zero to five years.

¶6 Wilkes, represented by a different attorney (Counsel), appealed the sentence, and based on the parties' stipulation, this court remanded to the sentencing court "to resolve the alleged inaccuracies in the [PSI] and to conduct a new sentencing hearing." Due to a retirement, the case was reassigned to a different judge. On remand, the court ordered Wilkes released from prison, vacated his first sentence, ordered a new PSI, and set a new sentencing hearing.²

¶7 AP&P prepared a second PSI, again recommending a prison sentence. This PSI included a letter from Wilkes's sex-offender therapist explaining that Wilkes had successfully completed therapy over a period of thirteen months ending in February 2016. The therapist also opined that it was unnecessary for Wilkes to repeat treatment. This PSI included a portion of Wilkes's statement in which he minimized his abuse of NK, stating that he was trying to help relieve her stomach pains when he sexually assaulted her.

Wilkes acknowledged that he was placed on probation for a "similar offense" that had occurred in the first case, but he asserted that he was a "changed person" after having completed sex-offender counseling and treatment arising from the first case.

¶8 The second PSI outlined Wilkes's extensive criminal history, including offenses he committed as a juvenile and a felony drug conviction. It also noted that while Wilkes had initially struggled to comply with the conditions of his probation related to the first case, Wilkes had been compliant with the terms of his probation since January 2015.

¶9 The second PSI also included statements from NK, NK's mother, and SV. The mother's and NK's statements detailed the serious psychological and emotional toll Wilkes's abuse had on NK and their family.

¶10 In January 2019, at the second sentencing hearing, the court informed the parties that it had reviewed all the information provided for and considered during Wilkes's first sentencing as well as the more current information that was not available to the original sentencing court. The court specifically stated that it had looked at documents from the first case, including the psychosexual evaluation and "things of that nature" that were available to the original sentencing court, in preparation for the new sentencing hearing. The court explained that "it was important for [it] to look at the [first] case because that's part of the argument, is that [Wilkes] completed probation, that he did well and things of that nature." Counsel stated that he did not "have a problem with that." The sentencing judge then informed the parties,

[I]f there are things that I've looked at that you haven't looked at, you ought to look at all those things before ... sentencing so that if there's anything you want to point out to me as far as a correction or something like that, you should do that .... So, I just want to be on the same page with everybody. I've looked at both cases and all the things that were filed in both cases ....

¶11 Counsel indicated that he was not familiar with the psychosexual evaluation from the first case. Counsel then began to identify several concerns he had with the second PSI and expressed that he "probably should have filed an objection." In response, the court continued the sentencing hearing to allow Counsel to put "in writing" his "corrections and concerns," to file an objection with the court, and to provide any necessary information to AP&P. The court noted that it wanted "to make sure AP&P addressed these things before the next hearing." Counsel subsequently filed objections to the manner in which Wilkes's criminal history had been scored in the second PSI.

¶12 Before the continued sentencing hearing, which occurred about a month later, Counsel withdrew the objections, explaining that after a conference with AP&P, he was satisfied that the scoring was correct. However, Counsel raised a new concern: Wilkes had also filed a 402 motion to reduce his prior felony drug conviction, and that motion was still pending. See Utah Code Ann. § 76-3-402(1) (LexisNexis 2017) (providing that "[i]f at the time of sentencing the court," after having considered various enumerated circumstances, "concludes it would be unduly harsh to record the conviction as being for that degree of offense established by statute, the court may enter a judgment of conviction for the next lower degree of offense and impose sentence accordingly"). Counsel argued that if the court granted the motion, it "may affect [Wilkes's] criminal history calculation." But the court explained that while it had not yet ruled on Wilkes's 402 motion, granting it would not "make a difference" to the outcome of the sentencing hearing because it concerned "a drug charge ... committed while [Wilkes] was on probation" for the first case.

¶13 At the continued sentencing hearing, Counsel asked the court to "place ... Wilkes on probation ... based on what he did prior to being sent to prison [after the initial sentencing], what he has done since his release[,] and based on the chronology of the offenses." Counsel explained that six and a half years had passed since Wilkes sexually abused NK. After that abuse, Wilkes had successfully completed a sex-offender treatment program and probation, was enrolled in college, participated in weekly therapy, had committed no offenses since completing probation, and was the sole caregiver for his grandparents. Noting that Wilkes had already spent ten months in prison before being released after his successful appeal, Counsel focused on the progress Wilkes had made:

I think the most important factor is that this offense was prior to the previous conviction for which he completed treatment and probation. I think in our system we try and rehabilitate people and we don't rehabilitate them and then go back and put them in prison for a similar prior offense which the rehabilitation dealt with.

¶14 For its part, the State, considering the egregious and predatory nature of the offense, urged the court to impose a prison sentence and "leave it to the Board of Pardons to determine how long" Wilkes would serve.

¶15 In announcing Wilkes's sentence, the court reiterated that it had reviewed "everything in the file," including the risk assessment and letters filed in the case. The court specifically noted that, as it had previously indicated to the parties, see supr...