State v. Guadarrama

2015 UT App 77
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
SILVANO GUADARRAMA,
Defendant and Appellant.

Memorandum Decision
No. 20130750-CA
Filed April 2, 2015

Second District Court, Ogden Department
The Honorable Michael D. Lyon
No. 121902379

Samuel P. Newton, Attorney for Appellant

Sean D. Reyes and Christopher D. Ballard,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES MICHELE M. CHRISTIANSEN and JOHN A. PEARCE
concurred.

ORME, Judge:

¶1 Defendant Silvano Guadarrama pled no contest to one count
of rape of a child, a first degree felony.1 The trial court sentenced
Defendant to an indeterminate prison term of twenty-five years to
life. Defendant does not contest his conviction, but he appeals his
sentence. We affirm.

1. “A person commits rape of a child when the person has
sexual intercourse with a child who is under the age of 14.” Utah
Code Ann. § 76-5-402.1(1) (LexisNexis 2012).
State v. Guadarrama

¶2 Defendant asserts that his trial counsel was ineffective for
failing to challenge the constitutionality of the rape-of-a-child
statute because, in his view, the statute unconstitutionally
mandates an excessive sentence in violation of the Eighth
Amendment to the United States Constitution.2 Specifically,
Defendant contends that his trial counsel “ineffectively failed to
raise the argument that the [rape-of-a-child] statute which imposed
a minimum 25-year to life sentence was a cruel and unusual
punishment because it exceeded the minimum mandatory sentence
for murder, which mandates a 15-year to life sentence.”

¶3 “An ineffective assistance of counsel claim raised for the first
time on appeal presents a question of law.” State v. Clark, 2004 UT
25, ¶ 6, 89 P.3d 162. To establish ineffective assistance of counsel, a
defendant must show both “that counsel’s performance was
deficient” and “that the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To meet
the first prong of Strickland, a defendant must show that his
counsel’s performance “fell below an objective standard of
reasonableness.” Id. at 688. This showing requires the defendant to
“overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id. at
689 (citation and internal quotation marks omitted).

¶4 Under Utah Code section 76-5-402.1(2)(a), rape of a child is
generally punishable by an indeterminate prison term of “not less
than 25 years and which may be for life.”3 Utah Code Ann. § 76-5-

2. The Eighth Amendment provides, “Excessive bail shall not
be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. Const. amend. VIII.

3. As the State’s brief correctly points out, prison is not
invariably mandatory for a defendant convicted of rape of a child,
despite statutory language initially suggesting otherwise. The rape-
of-a-child statute provides, “Imprisonment under this section is
(continued...)

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402.1(2)(a) (LexisNexis 2012). “Only rarely will a statutorily
prescribed punishment be so disproportionate to the crime that the
sentencing statute is unconstitutional.” State v. Bishop, 717 P.2d 261,
269 (Utah 1986). Indeed, “[o]utside the context of capital
punishment,” successful challenges based on a proportionality
argument are “exceedingly rare.” Solem v. Helm, 463 U.S. 277,
289–90 (1983) (alteration in original) (citation and internal quotation
marks omitted). See, e.g., Harmelin v. Michigan, 501 U.S. 957, 961,
994–96 (1991) (holding that a mandatory life sentence without the
possibility of parole for possessing 672 grams of cocaine was not
cruel and unusual punishment, even though the defendant had no

3. (...continued)
mandatory in accordance with Section 76-3-406.” Utah Code Ann.
§ 76-5-402.1(3) (LexisNexis 2012). But section 76-3-406 prohibits a
sentencing court from taking any action that would “in any way
shorten the prison sentence” for rape of a child “except as provided
in Section 76-5-406.5.” See id. § 76-3-406 (emphasis added). And
section 76-5-406.5 allows the court to “suspend execution of
sentence and consider probation to a residential sexual abuse
treatment center only if all of [twelve enumerated] circumstances
are found by the court to be present” and if, “in its discretion,” the
court finds probation to be in “the best interests of the public and
the child victim.” Id. § 76-5-406.5(1).
In this case, the trial court stated that it believed a sentence
of twenty-five years to life was the appropriate sentence in light of
the victim’s age and the circumstances of the crime, the fact that
Defendant was on probation for a prior adult conviction when the
crime occurred, the fact that Defendant was drinking and using
drugs when the crime occurred, and Defendant’s gang
involvement. The trial court, in its discretion, did not consider
probation to be an appropriate punishment for Defendant’s crime.
Thus, in deciding to impose a term of imprisonment, it became
bound by the statutorily prescribed prison term for rape of a
child—an indeterminate prison term of “not less than 25 years and
which may be for life.” See id. § 76-5-402.1(2)(a).

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prior felony convictions). But see Solem, 463 U.S. at 281, 303 (holding
that a life sentence without the possibility of parole for “uttering a
‘no account’ check for $100” was significantly disproportionate to
the defendant’s crime and was therefore prohibited by the Eighth
Amendment).

¶5 While Defendant is correct in his argument that “it is
generally accepted that murder is more serious than other crimes,”
Bishop, 717 P.2d at 269, our Supreme Court has recognized that
“sexual crimes, particularly those involving children, represent an
especially heinous form of bodily insult,” LeBeau v. State, 2014 UT
39, ¶ 50, 337 P.3d 254. See In re Z.C., 2007 UT 54, ¶ 18, 165 P.3d 1206
(“Sexual abuse of a child is one of the most heinous crimes
recognized by our penal code.”); Bishop, 717 P.2d at 269 (“Crimes
against children are usually looked upon as more heinous than
those committed against adults[.]”). For example, in State v. Bishop,
717 P.2d 261 (Utah 1986), our Supreme Court recognized, in the
context of a sodomy-on-a-child conviction, that sexual crimes
against children are “likely to have long-term effects on [the]
victims and even perhaps the children of victims.” Id. at 270. Such
crimes are “inflicted upon the most defenseless and innocent of
human beings,” and even when they involve no physical violence,
“the psychological and developmental damage that may be done
is often long lasting, and even permanent.” Id. Therefore, in Bishop,
the Supreme Court held that the severe punishment for a sodomy-
on-a-child conviction was “justified by the effects of the crime on
the victims, the prevalence of the crime in society, the
defenselessness of the victims, and the high degree of recidivism by
offenders.” Id. See In re Z.C., 2007 UT 54, ¶ 18 (“Child sex abuse
merits serious penalties because of the extreme psychological harm
that the perpetrator causes the victim.”).

¶6 Child rape victims are likely to suffer consequences similar
to those suffered by child sodomy victims—they are at least as
likely to experience severe psychological and developmental

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damage as a result of the crime committed against them.4 See
Bishop, 717 P.2d at 270. Thus, in light of the gravity of the crime, we
cannot conclude that the statutorily prescribed penalty for rape of
a child is unduly harsh.

¶7 Moreover, we recognize that “[l]egislatures are far better
equipped [than courts] to balance the competing penal and public
interests and to draw the essentially arbitrary lines between
appropriate sentences for different crimes.” Solem, 463 U.S. at 314
(Burger, C.J., dissenting). Because “sentencing statutes are
necessarily based on numerous, imprecise considerations,
substantial deference must be accorded to the prerogatives of
legislative power ‘in determining the types and limits of
punishments for crimes.’” Bishop, 717 P.2d at 269 (quoting Solem,
463 U.S. at 290). It may seem odd that the statutorily prescribed
prison sentence for rape of a child is longer than the statutorily
prescribed prison sentence for murder.5 But our Legislature has

4. Indeed, in her victim impact statement, the victim in this
case wrote that as a result of her rape by Defendant, she has
suffered from flashbacks and nightmares, she has anger issues, she
has attempted suicide, and she has twice been admitted to a mental
hospital.

5. Defendant argues that he would have received a “less
serious” sentence if he had killed his victim instead of raping her
because the statutorily prescribed punishment for murder is “an
indeterminate term of not less than 15 years and which may be for
life.” See Utah Code Ann. § 76-5-203(3)(b) (LexisNexis 2012). He
argues that “[t]he law clearly cannot, and should not, promote a
defendant’s need to murder a person in order to receive a less
severe sanction.”
To begin with, Defendant’s argument simply makes no
sense. It is obvious that rape of a child and murder are dissimilar
crimes with distinct intents, and the crimes committed by sexual
(continued...)

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determined that an indeterminate prison term of “not less than 25
years and which may be for life” is the appropriate sentence for the
crime of rape of a child and that “an indeterminate term of not less
than 15 years and which may be for life” is the appropriate
sentence for murder. See Utah Code Ann. § 76-5-402.1(2)(a)
(LexisNexis 2012) (rape of a child); id. § 76-5-203(3)(b) (murder). It
is not our role to supplant the Legislature’s considered judgment.
Rather, we defer to the Legislature’s determination regarding the
appropriate penalty for each crime. See State v. Gardner, 947 P.2d
630, 639 (Utah 1997).

5. (...continued)
predators and murderers are not interchangeable. This is especially
true where, as here, Defendant’s crime was one of opportunity and
the victim thought Defendant loved her.
In any event, Defendant’s argument is based on a faulty
reading of the Utah Code. If Defendant had killed his twelve-year-
old victim instead of raping her, he would have been guilty of
aggravated murder. See id. § 76-5-202(1)(t)(i). Aggravated murder
is either a capital felony or a noncapital first degree felony,
punishable by “an indeterminate prison term of not less than 25
years and which may be for life,” life in prison without parole, or
death. See id. § 76-5-202(3)(a), (b); id. § 76-3-206(1) (articulating the
possible sentences for a capital-felony conviction, which include
death); id. § 76-3-207.7 (articulating the possible sentences for first
degree felony aggravated murder). In either situation, Defendant
would not have received a less severe sentence for murdering his
victim as opposed to raping her.
To the extent Defendant means to suggest that the
punishment for rape of a child is so severe that there is no penal
downside to murdering the rape victim, he is wrong on this point
as well. A killing in the course of raping a child constitutes
aggravated murder, punishable in the same manner just discussed.
Moreover, if there was a sufficient break between the commission
of the rape and the murder, the offenses could be charged as two
distinct, separately punishable crimes, likely to result in long
consecutive sentences, even if capital punishment were avoided.

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¶8 Given the gravity of the crime of rape of a child, we are not
persuaded that Utah Code section 76-5-402.1(2)(a) imposes a
punishment that is so disproportionate to the offense committed as
to be unconstitutional. Nor are we inclined to second-guess the
Legislature’s determination regarding the appropriate penalty for
an offender who rapes a child. And because such a challenge to the
constitutionality of the rape-of-a-child statute would have been
unavailing, we conclude that Defendant’s trial counsel did not
render ineffective assistance by not challenging the statute at
sentencing.

¶9 Affirmed.

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