State v. Cochran

2019 UT App 92
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
BRETT C LARK C OCHRAN ,
Appellant.
Amended Opinion1
No. 20170418-CA
Filed May 23, 2019
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 121908371
Linda M. Jones, John J. Hurst, and Freyja R. Johnson,
Attorneys for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys
for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES DAVID N. M ORTENSEN and JILL M. POHLMAN concurred.
HARRIS, Judge:
¶1 	Brett Clark Cochran pled guilty to driving under the
influence of alcohol (DUI), which in his case amounted to a
third-degree felony because he had two other similar recent
convictions. He was sentenced to a short jail term and three
1. This Amended Opinion replaces the Opinion in Case No.
20170418-CA that was issued on May 9, 2019. After our opinion
issued, Cochran filed a petition for rehearing, and we called for a
response. We grant the petition for the limited purpose of
making 	certain 	deletions 	from 	our 	original 	opinion, 	which
deletions do not alter our analysis or the outcome of the appeal.

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20170418-CA 	2 	2019 UT App 92
years on probation. After completing his sentence, including
compliance with the terms and conditions of probation, he asked
the district court to reduce his conviction from a felony to a
misdemeanor, pursuant to Utah Code section 76-3-402(2). The
district court declined to do so, and Cochran now appeals that
decision. We affirm.
BACKGROUND
¶2 	On July 8, 2012, a police officer stopped Cochran for
traffic violations, and soon learned that Cochran’s blood alcohol
level was 0.181, over twice the then-effective legal limit. Cochran
had been convicted of DUI on two other occasions within the
previous three years, and Utah law treats the third DUI charge
within any ten-year period as a third-degree felony, see Utah
Code 	Ann. 	§ 	41-6a-503(2)(b) 	(LexisNexis 	2018).2 	The 	State
charged 	Cochran 	with 	felony 	DUI, 	a 	charge 	to 	which 	he
eventually 	pled 	guilty, 	and 	Cochran 	was 	sentenced 	to 	a
suspended prison term, 62.5 days in jail, and a three-year term of
probation.
¶3 	During the term of Cochran’s probation, which he was
allowed 	to 	complete 	from 	his 	home 	state 	of 	Montana,
Cochran 	had 	two 	issues 	with 	compliance. 	The 	first 	issue
occurred right at the beginning, when Cochran refused to sign
the probation agreement. Following his refusal, the State filed a
motion seeking an order commanding Cochran to appear and
show 	cause 	why 	he 	should 	not 	be 	sanctioned 	for 	his
noncompliance, but the district court declined to sign the State’s
2. Because the statutory provisions in effect at the time of
Cochran’s offense do not differ in any way material to our
analysis from those now in effect, we cite to the current version
of the Utah Code for convenience.

State v. Cochran
20170418-CA 	3 	2019 UT App 92
proposed order because Cochran had been incarcerated at the
time 	of 	the 	event. 	The 	second 	issue 	occurred 	later 	in 	the
probationary term, when Adult Probation and Parole (AP&P)
alleged that Cochran had failed to undergo a substance abuse
evaluation and complete treatment as directed. In connection
with these allegations, AP&P reported that Cochran had a poor
attitude, 	was 	“very 	difficult 	to 	work 	with,” 	and 	did 	not
take his “probation 	seriously.” 	Ultimately, 	however, 	AP&P
recommended that Cochran be granted an “alternative event”
for these violations and that he “be allowed to remain on
probation.” Cochran eventually completed probation, including
all recommended treatment, without any further mishaps, and
the 	court—without 	objection 	from 	AP&P 	or 	the 	State—
terminated Cochran’s probation successfully in May 2016, and
closed his case.
¶4 	In 	December 	2016, 	seven 	months 	after 	completing
probation, Cochran filed 	a motion (402 	Motion) asking the
district court to reduce his conviction from a third-degree felony
to a class A misdemeanor, pursuant to Utah Code section 76-3-
402(2). 	In 	support 	of 	the 	requested 	reduction, 	Cochran
claimed that his status as a convicted felon was “impeding
his ability to engage in” his profession as an electrician because
it was limiting “the number and type of jobs” for which he
was eligible to apply. He also asserted that nothing in the
nature of the offense should preclude a reduction in his case,
and maintained that there was no evidence of “aggravating
factors” such as an “aggravated blood alcohol level” or “any
collision, injury, or restitution.” Furthermore, other than the
two 	previous 	DUI 	offenses, 	there 	was 	“no 	indication 	of
anything else on [Cochran’s] criminal history.” And finally,
Cochran noted that he had completed probation successfully.
In sum, Cochran argued that the court should grant his 402
Motion because a reduction would allow him to “resume the
trajectory of his life,” and because “[i]t is in the interest[] of

State v. Cochran
20170418-CA 	4 	2019 UT App 92
justice to reward a Defendant for his successful completion of
probation.” The State, however, filed an objection to Cochran’s
402 Motion, asking the district court to deny the motion based
on “the nature of the offense, [Cochran’s] criminal history, and
issues with [Cochran’s] compliance with the conditions of his
probation.”
¶5 	At the hearing on Cochran’s 402 Motion, the court stated
that it had reviewed the motion and accompanying paperwork,
and asked if there was “anything else” that it “should know on
behalf of the defendant.” The parties stipulated that the only
crime Cochran had ever committed in Utah was the felony DUI
that is the subject of this case. Cochran’s counsel argued that a
reduction was warranted in the interest of justice for the reasons
articulated in the 402 Motion, specifically mentioning Cochran’s
successful completion of probation and related treatment, as
well as the employment limitations Cochran was experiencing
based upon his status as a convicted felon. In response, the State
noted 	that 	Cochran’s 	argument 	about 	his 	employment
limitations “sound[ed] reasonable,” that Cochran’s Utah DUI
conviction would still be a lifetime enhanceable offense even if it
were reduced to a misdemeanor, and told the court that it would
“simply submit it.”
¶6 	After listening to both sides, the court agreed that there
were “lots of reasons” to grant Cochran’s motion. However, the
court ultimately denied Cochran’s 402 Motion without prejudice
to it being refiled later. The court stated its reasoning as follows:
[W]hat I’d generally do, counsel, with felony DUIs
is I have parties wait the 10-year period with
successful completion and so I’m certainly willing
to hear this again but I want to see that [Cochran]
goes that period of time without picking up new
charges. It sounds like he’s done some good things
and that he’s gainfully employed. So I can see lots

State v. Cochran
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of reasons to grant that. But I find in the interest of
justice and under these circumstances that we’re
better served as a community to do that and so
what 	I 	would 	do 	is 	deny 	the 	motion 	without
prejudice with the understanding that at a point in
time where we have a 10-year period without any
new DUIs that have come up, then I [will be]
inclined to hear that and, and proceed on that
basis.
The court also explained that, because it had denied the 402
Motion without prejudice, it anticipated that at “a point in time”
when Cochran had completed “a 10-year period without any
new DUIs” Cochran could bring a 402 Motion again. Following
additional comments by Cochran’s counsel, the court reiterated
its reasons for denying the motion, and noted that, although
Cochran should be commended for his hard work, “at this
juncture” “the danger to the community and the interest of
justice outweigh[ed]” reducing the conviction.
ISSUE AND STANDARD OF REVIEW
¶7 	Cochran appeals the district court’s denial of his 402
Motion. Because sentencing “necessarily reflects the personal
judgment of the court,” we “afford the [district] court wide
latitude and discretion in sentencing.” State v. Boyd, 2001 UT 30,
¶ 31, 25 P.3d 985 (quotations simplified). Accordingly, “[w]e
review a [district] court’s denial of a motion to reduce the degree
of a conviction for abuse of discretion.” State v. Salt, 2015 UT
App 72, ¶ 9, 347 P.3d 414. Under this standard, we will affirm
the court’s decision absent a showing that it “fail[ed] to consider
all legally relevant factors,” or if “no reasonable person would
take the view [it] adopted.” State v. Gomez, 2015 UT App 149,
¶ 14, 353 P.3d 175 (quotations simplified).

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ANALYSIS
¶8 	The applicable statutory language provides that, in cases
in which a defendant is placed on probation, a district court
“may [3] enter a judgment of conviction for the next lower degree
of offense” if five conditions are met. See Utah Code Ann. § 76-3-
402(2) (LexisNexis 2017). Neither side in this case contests the
existence of the first four conditions; instead, the dispute centers
around 	the 	fifth 	one—whether 	“entering 	a 	judgment 	of
conviction for the next lower degree of offense is in the interest
of justice.” See id. § 76-3-402(2)(v).
¶9 	Cochran 	contends 	that 	the 	district 	court 	abused 	its
discretion in determining that it was not in the interest of
justice for his conviction to be reduced to a misdemeanor.
Specifically, Cochran asserts that the district court’s analysis
was 	flawed 	because 	it 	applied 	its 	own 	“bright-line-rule”
3. Although the parties did not raise this issue, we wonder
whether 	a 	district 	court 	would 	be 	compelled 	to 	reduce 	a
defendant’s 	sentence 	even 	if 	all 	five 	of 	the 	prerequisite
conditions were met. The statute uses the term “may” rather
than “shall,” and in another analogous context, we have held
that “may” means “may,” and that even if all of a series of
statutory prerequisites are met, a court still retains discretion to
decline to make the change at issue. See Lay v. Lay, 2018 UT App
137, ¶¶ 12–13, 427 P.3d 1221 (recognizing that in the Utah Code
“[m]ay means that an action is authorized or permissive” and
“shall” means “an action is required or mandatory,” and holding
that, because the statute uses the permissive term “may,” a court
is not required to adopt an “alternative” parent-time schedule
even 	if 	all 	of 	the 	statutory 	conditions 	are 	met 	(quotations
simplified)). However, we need not reach this issue in this case,
because we conclude that the district court did not abuse its
discretion in concluding that the fifth condition was not met.

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rather 	than 	conducting 	a 	more 	general 	“interest-of-justice”
analysis, which Cochran argues is required by the statutory
language.4
¶10 	As 	an 	initial 	matter, 	we 	do 	not 	share 	Cochran’s
interpretation of the district court’s statements. Although the
court expressed that its general practice in felony DUI cases was
to 	wait 	until 	the 	defendant 	had 	gone 	ten 	years 	without
committing another DUI before granting a 402 motion, we do
not view the court’s statement as an ironclad vow that it would
never 	vary 	that 	practice 	in 	an 	appropriate 	case. 	Indeed,
immediately after noting its general practice, the court went on
to explain that, “under these circumstances,” the community
would 	be 	better 	served 	by 	denying 	the 	motion—in 	effect
confirming that the court did consider more than just whether
Cochran had gone ten years without any DUIs. In other similar
contexts, we have determined that it is not an abuse of discretion
4. In his brief, Cochran urged this court to apply our supreme
court’s “interest-of-justice” analysis from LeBeau v. State, 2014 UT
39, 337 P.3d 254, to the circumstances of this case, and argued
that the district court erred by not using the LeBeau analysis in
deciding 	the 	402 	Motion. 	No 	Utah 	appellate 	court 	has yet
required a LeBeau-style analysis in deciding a charge-reduction
motion brought under Utah Code section 76-3-402. However, we
need not decide here whether LeBeau’s analysis is required in
this context, because at oral argument before this court, Cochran
withdrew his argument that a district court’s failure to go
through 	the 	LeBeau 	analysis 	is 	always 	erroneous. 	Instead,
Cochran now maintains that a court may, but need not, consider
LeBeau to the extent it may help inform the court’s analysis. In
any event, Cochran no longer contends that it was necessarily an
abuse of discretion for the court to have failed to apply LeBeau,
and therefore we need not discuss the matter further.

State v. Cochran
20170418-CA 	8 	2019 UT App 92
for a court to decline to deviate from its “normal practice.” See
State v. Sanchez, 2015 UT App 58, ¶ 11, 346 P.3d 701.
¶11 	Furthermore, there is nothing in the record that would
indicate that the district court failed or declined to fully consider
all the relevant evidence in making its decision. For example, at
the outset of the hearing, the court stated specifically that it had
reviewed 	Cochran’s 	402 	Motion 	and 	inquired 	if 	there 	was
“anything else [it] should know” in deciding the motion. By
reviewing the written motion and the State’s objection, the court
would have learned—if it did not know already—that Cochran’s
three DUIs all took place in a relatively compact period of time
(three years), and would have learned about Cochran’s two
relatively minor issues with probation compliance. The district
court 	had 	itself 	previously 	entered 	an 	order 	successfully
terminating Cochran’s probation and closing the case, so the
court 	was 	already 	aware 	that 	Cochran 	had 	successfully
completed 	probation. 	At 	the 	hearing, 	the 	court 	specifically
commended Cochran for his recent progress and continued
employment. The court listened to and considered counsel’s
argument that Cochran’s felony conviction was hampering his
employment 	opportunities. 	A 	court 	that 	considers 	all 	the
circumstances before making a sentencing decision is usually
found to have acted within its discretion. See, e.g., State v. Gomez,
2015 UT App 149, ¶ 16, 353 P.3d 175 (holding that the court did
not exceed its discretion in denying a 402(1) motion where “the
record 	reflect[ed] 	that 	the 	court 	was 	aware 	of 	all 	the
circumstances”).
¶12 	In the end, Cochran has fallen short of demonstrating that
“no reasonable person would take the view adopted by the
[district] court.” See id. ¶ 14 (quotation simplified). Perhaps
another judge might have granted Cochran’s 402 Motion, and
perhaps 	it 	would 	have 	been 	completely 	within 	the 	court’s
discretion to have done so here. But that does not make it an
abuse of discretion for the court to deny the motion. Cf. Gunn

State v. Cochran
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Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2015
UT App 261, ¶¶ 21–24, 361 P.3d 703 (Orme, J., concurring)
(upholding a district 	court’s change-of-venue decision, even
though 	two 	of 	the 	reviewing 	judges 	would 	have 	made 	a
different decision in the first instance, because the district court
did not abuse its wide discretion in making its ruling). In this
case, 	the 	court 	reviewed 	all 	the 	evidence 	presented, 	and
considered all the circumstances of Cochran’s situation; after
doing so, the court concluded that it was not in the interest of
justice to grant Cochran’s 402 Motion, and stated reasonable
grounds for so ruling. Outside the unique context of LeBeau v.
State, 2014 UT 39, 337 P.3d 254, see supra ¶ 9 n.3, nothing further
is required of a court conducting an “interest-of-justice” analysis.
In the end, we cannot conclude that the district court abused its
discretion when it concluded that, despite the trouble Cochran’s
status as a felon was causing him in the employment context,
“the 	danger 	to 	the 	community 	and 	the 	interests 	of 	justice
outweigh[ed]” reducing Cochran’s conviction “at this juncture.”
See State v. Salt, 2015 UT App 72, ¶ 26, 347 P.3d 414 (holding that
“[t]he 	[trial] 	court 	did 	not 	exceed 	its 	discretion 	when 	it
determined that [the defendant’s] clean criminal history and
potential job problems did not warrant . . . a reduction”); see also
Sanchez, 2015 UT App 58, ¶¶ 6–7 (holding that the district court
did not abuse its discretion in denying defendant’s motion to
reduce his conviction, even though defendant was “a hard
worker” and the conviction “would subject him to deportation”).
¶13 	Affirmed.