State v. Landon

2017 UT App 46
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
S HANE WELLS LANDON ,
Appellant.
Per Curiam Decision
No. 20160395-CA
Filed March 16, 2017
Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 151913764
Alexandra S. McCallum and David P.S. Mack,
Attorneys for Appellant
Sean D. Reyes and Jennifer Paisner Williams,
Attorneys for Appellee
Before JUDGES M ICHELE M. C HRISTIANSEN , K ATE A. TOOMEY , and
DAVID N. M ORTENSEN .
PER CURIAM:
¶1 	Shane 	Wells 	Landon 	appeals 	the 	sentences 	on 	his
convictions of attempted assault against a police officer, a third
degree felony; failure to stop or respond at the command of an
officer, a third degree felony; and driving under the influence of
alcohol or drugs, a class B misdemeanor. We affirm.
¶2 	Landon argues that the district court abused its discretion
by sentencing him to prison rather than probation and by
sentencing him to serve two consecutive terms of zero to five

State v. Landon
20160395-CA 	2 	2017 UT App 46
years 	in 	prison.1 	Specifically, 	Landon 	contends 	that 	the
sentencing court abused its discretion “when it sentenced him to
prison 	despite 	the 	intangible 	factors 	supporting 	probation,
including his character, attitude, [and] rehabilitative needs.”
Alternatively, he argues that the sentencing court abused its
discretion by imposing consecutive sentences on his two felony
convictions because the court did not give adequate weight to
these factors.
¶3 	“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 the legally relevant factors, or the
actions of the judge were so inherently unfair as to constitute
abuse of discretion.” State v. Killpack, 2008 UT 49, ¶ 59, 191 P.3d
17 (citation and internal quotation marks omitted). Trial courts
are 	afforded 	“wide 	latitude 	and 	discretion 	in 	sentencing,
recognizing that they are best situated to weigh the many
intangibles of 	character, 	personality 	and 	attitude.” 	Id. 	¶ 	58
(citation and internal quotation marks omitted). “An appellate
court will find an abuse of discretion only if it can be said that
‘no reasonable person could adopt the view of the trial court.’”
State v. Miera, 2015 UT App 46, ¶ 5, 345 P.3d 761 (quoting State v.
Daniels, 2014 UT App 230, ¶ 7, 336 P.3d 1074).
¶4 	After being stopped for a traffic violation, Landon chose
to drive off. During the ensuing pursuit, Landon rammed the
police officer’s vehicle with his vehicle, and the officer sustained
minor 	injuries. 	The 	Presentence 	Investigation 	Report 	(PSI)
recommended a prison sentence, noting “the egregious nature of
the instant offenses, [his] past criminal history indicating high
1. 	The 	district 	court 	sentenced 	Landon 	on 	the 	class 	B
misdemeanor to a jail term equal to the time he had already
served. Thus, the sentence on that conviction presents no issue
for appeal.

State v. Landon
20160395-CA 	3 	2017 UT App 46
risk behaviors, and his unsuccessful attempts at community
supervision—the 	defendant 	committed 	the 	instant 	offenses
while on probation for felony offenses.” The PSI scored Landon
in the “intermediate sanctions” category under the sentencing
guidelines, but he was considered to be in a high risk category of
the Level of Service Inventory assessment. The State asked for a
prison 	sentence. 	Landon 	asked 	the 	court 	to 	place 	him 	on
probation, arguing that he took responsibility for his actions,
expressed remorse, was committed to addressing his alcohol
issues, had been attending Alcoholics Anonymous while jailed,
had 	family 	support, 	and 	would 	have 	a 	job 	if 	placed 	on
probation. Landon argued that his adult criminal history was not
extensive and that this incident represented his only probation
violation.
¶5 	The district court sentenced Landon to prison, citing the
recommendation from the PSI, stating that Landon deliberately
attempted to injure the police officer, and noting that Landon
had exhibited a poor attitude toward supervision and had only
nominal 	success 	while 	on 	probation. 	While 	acknowledging
Landon’s remorse and his desire to improve his life, the district
court stated that it needed to “balance the interest of society
against Landon’s interest.” In sentencing Landon to consecutive
prison terms, the district court stated that it based its decision
upon Landon’s “poor performance on probation and the violent,
deliberate nature of this attack on a public servant.”
¶6 	The 	district 	court 	did 	not 	abuse 	its 	discretion 	in
sentencing 	Landon 	to 	prison 	rather 	than 	placing 	him 	on
probation. A defendant is not entitled to probation as a matter of
right. See State v. Sibert, 310 P.2d 388, 393 (Utah 1957). Because
“[t]he granting or withholding of probation involves considering
intangibles of character, personality and attitude,” id., “[t]he
decision whether to grant probation is within the complete
discretion of the trial court,” State v. Rhodes, 818 P.2d 1048, 1049
(Utah Ct. App. 1991); see also State v. Valdovinos, 2003 UT App

State v. Landon
20160395-CA 	4 	2017 UT App 46
432, ¶ 23, 82 P.3d 1167 (stating that due to the consideration of
“intangibles,” “the problem of probation must of necessity rest
within the discretion of the judge who hears the case” (citation
and internal quotation marks omitted)). Landon’s core argument
is that the district court did not adequately consider, or give
appropriate 	weight 	to, 	his 	character, 	personality, 	and
rehabilitative needs. The record demonstrates otherwise. The
district court considered the PSI, the arguments of counsel, and
statements by Landon and the victim. The sentence was within
the statutory range and was not inherently unfair. Under the
circumstances, 	this 	court 	will 	not 	disturb 	the 	sentencing
decision.
¶7 	Landon’s alternative argument is that the district court
abused its discretion by sentencing him to serve consecutive
prison terms. Landon argues that this issue was preserved for
appeal by his argument that he should be placed on probation.
“Generally, in order to preserve an issue for appellate review, a
party must make a timely and specific objection before the trial
court.” State v. Tingey, 2014 UT App 228, ¶ 3, 336 P.3d 608
(citation and internal quotation marks omitted). Landon “has not
demonstrated 	that 	he 	specifically 	objected 	to 	or 	otherwise
brought to the trial court’s attention the court’s alleged failure to
consider the requisite statutory factors in imposing sentence.”
See id. Landon’s argument for probation was not directed to the
issues related to the imposition of concurrent or consecutive
sentences and was “insufficient to alert the trial court to the
specific error [Landon] now claims on appeal—that the court
failed to consider relevant statutory factors before it imposed”
consecutive prison terms. Id.
¶8 	Accordingly, we review the claim that the district court
erred in imposing consecutive sentences under Landon’s claim
of plain error. In order to prevail under a plain error analysis, a
party must establish that an error occurred, that the error should
have been obvious to the trial court, and that the error was

State v. Landon
20160395-CA 	5 	2017 UT App 46
harmful. See id. ¶ 7. Landon has not satisfied this burden. In
determining 	whether 	to 	impose 	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). However, a court is not required to
specifically refer to each of these factors in its ruling in order to
demonstrate 	its 	consideration 	of 	the 	factors. 	See 	State 	v.
Thorkelson, 2004 UT App 9, ¶ 13, 84 P.3d 854. The record reflects
that 	the 	district 	court 	relied 	upon 	a 	PSI 	that 	specifically
considered the statutory factors. After reviewing the PSI and the
information received at sentencing, the district court identified
the specific factors that it concluded supported the imposition of
consecutive 	sentences 	as 	Landon’s 	“poor 	performance 	on
probation and the violent, deliberate nature of the” offense.
Furthermore, Landon’s argument is not that the district court
failed to consider the statutory factors but that the court failed to
afford appropriate weight to the factors of character, history, and
rehabilitative needs. However, an argument that the court erred
in its balancing of the factors is not an argument that supports a
finding of any plain error. It is unnecessary to consider the
remaining factors of the plain error analysis.
¶9 	Finally, 	Landon’s 	argument 	that 	the 	imposition 	of
consecutive sentences resulted in an illegal sentence that should
be corrected under rule 22(e) of the Utah Rules of Criminal
Procedure lacks merit. An illegal sentence “generally occurs in
one of two situations: (1) where the sentencing court has no
jurisdiction, or (2) where the sentence is beyond the authorized
statutory range.” Id. ¶ 15. Landon’s challenges to the imposition
of 	consecutive, 	rather 	than 	concurrent 	sentences, 	involves
neither of these situations and was not otherwise “illegal.”
¶10 	Accordingly, 	we 	affirm 	the 	sentence 	imposed 	by 	the
district court.