State v. Perkins

2014 UT App 176
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
CORNELL CARL PERKINS,
Defendant and Appellant.
Per Curiam Decision
No. 20131094-CA
Filed July 25, 2014
Third District Court, Salt Lake Department
The Honorable Denise P. Lindberg
Nos. 121911081, 131902620, 131902646, 131903204, 131903309
Joel J. Kittrell and Kristina H. Ruedas, Attorneys
for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
Before JUDGES JAMES Z. DAVIS, STEPHEN L. ROTH, and
MICHELE M. CHRISTIANSEN.
PER CURIAM:
¶1 Cornell Carl Perkins appeals the trial court’s imposition of
consecutive sentences on his felony convictions. We affirm.
¶2 Pursuant to a plea bargain, Perkins pleaded guilty to
aggravated assault in one case and forgery in each of four other
cases. Any remaining charges were dismissed. The trial court
sentenced Perkins to the statutory term for a third degree felony of
zero-to-five years in each of the separate cases with the sentences
to run consecutively to each other.

State v. Perkins
20131094-CA 2 2014 UT App 176
¶3 Perkins argues that the district court (1) plainly erred by
failing to make specific findings on each factor listed in Utah Code
section 76-3-401(2); (2) relied upon irrelevant evidence about the
dismissed counts; and (3) imposed sentences that constituted cruel
and unusual punishment, thereby violating his constitutional
rights. Conceding that trial counsel made no objection to the
imposition of consecutive sentences, Perkins contends that the
court committed plain error and that his unpreserved constitu-
tional arguments may be considered because his liberty is at stake.
More generally, Perkins contends that the trial court failed to
properly consider his mental illness and the nature of his offenses
in sentencing him to up to twenty-five years in prison.
¶4 “In general, a trial court’s sentencing decision will not be
overturned unless it exceeds statutory or constitutional limits, the
judge failed to consider all legally relevant factors, or the actions of
the judge were so inherently unfair as to constitute an abuse of
discretion.” State v. Killpack, 2008 UT 49, ¶ 59, 191 P.3d 17 (citation
and internal quotation marks omitted). In determining whether to
impose concurrent or consecutive sentences, “the court shall
consider the gravity and circumstances of the offenses, the number
of victims, and the history, character, and rehabilitative needs of
the defendant.” Utah Code Ann. § 76-3-401(2) (LexisNexis 2012).
“[A]s a general rule, we presume that the district court made all the
necessary considerations when making a sentencing decision.”
State v. Moa, 2012 UT 28, ¶ 35, 282 P.3d 985. “[A] sentencing judge
is not required to articulate what information she considers in
imposing a sentence.” Id. ¶ 40. Accordingly, we do not assume that
the court did not consider the proper factors as required by law
based solely upon the absence of a specific factual finding. See State
v. Helms, 2002 UT 12, ¶ 11, 40 P.3d 626 (“[W]e will not assume that
the trial court’s silence, by itself, presupposes that the court did not
consider the proper factors as required by law.”). Because a district
court is not required to make specific findings in a sentencing
order, “the court’s failure to do so cannot be considered error.” Id.
¶ 17.

State v. Perkins
20131094-CA 3 2014 UT App 176
¶5 Where, as in the case before us, the district court utilized a
detailed presentence investigation report (PSI), there is no basis
from which to assume that the district court failed to consider all
relevant statutory factors. The trial judge stated at sentencing that
she had reviewed the PSI. The defense requested that the PSI be
corrected in several respects, and the district court accepted these
corrections. The record reflects, and Perkins concedes, that the
district court “was fully aware that Perkins suffers from depression
and post-traumatic stress disorder.” The trial judge also discussed
Perkins’s medication issues. Nevertheless, Perkins argues that the
court “did not factor this significant illness into consideration of
defendant’s past crimes” or “reasonably consider” his history,
character, and rehabilitative needs. The assertions are not sup-
ported by the record. Given the information in the PSI, statements
made on the record by both counsel and Perkins, and the trial
court’s own statements, it appears that the trial court appropriately
considered all relevant factors in imposing sentence. Perkins has
not met his burden on appeal to demonstrate that this did not
occur. See id. ¶ 16. Accordingly, Perkins has not shown that the
district court abused its discretion by failing to consider all relevant
factors.
¶6 Perkins argues that the district court considered irrelevant
evidence at sentencing, claiming that the court’s statement that he
was a “one-man crime wave” reflected inappropriate consideration
of charges that were dismissed under the plea bargain. The
discussion following the court’s statement concerned Perkins’s
responsibility to pay restitution attributable to the dismissed
counts, as required by the terms of the plea bargain. “To show that
a judge relied upon irrelevant information at sentencing, a
defendant must show ‘(1) evidence of reliance, such as an affirma-
tive representation in the record that the judge actually relied on
the specific information in reaching her decision, and (2) that the
information she relied upon was irrelevant.’” State v. Lingmann,
2014 UT App 45, ¶ 40, 320 P.3d 1063 (citing State v. Moa, 2012 UT
28, ¶ 15, 282 P.3d 985). The cited portion of the record does not
demonstrate that the district court considered dismissed counts as

State v. Perkins
20131094-CA 4 2014 UT App 176
a basis for imposing consecutive sentences. Furthermore, the State
correctly notes that Perkins has cited no authority for his assertion
that the dismissed counts could not be considered for sentencing
purposes. Finally, given Perkins already extensive criminal history,
any consideration of the dismissed counts was both unnecessary
and unlikely to be prejudicial.
¶7 Perkins makes a cursory argument that sentencing him to
five consecutive indeterminate terms of zero to five years was an
unconstitutionally harsh or excessive punishment. The argument
is inadequately briefed, and, on that basis alone, we need not
consider it. See State v. Jaeger, 1999 UT 1, ¶ 31, 973 P.2d 404. In
addition, in reviewing a similar sentence in a separate case, we
stated,
[F]ive consecutive sentences of zero-to-five years
creates an effective sentence of zero-to-twenty-five
years. Although the potential length of the sentence
is increased, the floor remains the same: zero. . . . By
imposing consecutive sentences of zero-to-five years,
the trial court merely shifted the final determination
of the length of Defendant’s sentence to the Board of
Pardons.
State v. Valdez, 2008 UT App 329, ¶ 13, 194 P.3d 195. In Valdez, we
concluded that the trial court’s sentence was “consistent with the
supreme court’s admonition that the Board of Pardons be given the
responsibility to monitor a defendant’s subsequent behavior and
possible progress toward rehabilitation while in prison and to
adjust the maximum sentence accordingly.” Id. ¶ 14 (citation and
internal quotation marks omitted). Perkins has not demonstrated
that sentencing him to consecutive sentences violated the constitu-
tion’s prohibition of cruel and unusual punishment.
¶8 Accordingly, we affirm.