State v. Guillen

2016 UT App 39
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
M ARIO L. GUILLEN ,
Appellant.
Per Curiam Decision
No. 20150462-CA
Filed February 25, 2016
Second District Court, Ogden Department
The Honorable W. Brent West
No. 141901625
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
Before JUDGES GREGORY K. O RME and J. F REDERIC VOROS JR ., and
JUSTICE JOHN A. PEARCE.1
PER CURIAM:
¶1 	Mario L. Guillen appeals from his sentences for attempted
theft and giving false personal information to a peace officer.
Guillen 	argues 	that 	the 	district 	court 	plainly 	erred 	by
considering Guillen’s actions during sentencing in its sentencing
decision. 	Alternatively, 	he 	argues 	that 	his 	trial 	counsel’s
performance was deficient due to counsel’s failure to address the
issue with the court. We conclude that the district court did not
consider any inaccurate or unreliable information in making its
sentencing decision.
1. Justice John A. Pearce sat by special assignment as authorized
by law. See generally Utah R. Jud. Admin. 3-108(3).

State v. Guillen
20150462-CA 	2 	2016 UT App 39
¶2 	We review the sentencing decision of the district court,
including the decision to grant or deny probation, for an abuse
of discretion. See State v. Valdovinos, 2003 UT App 432, ¶ 14, 82
P.3d 1167. “An abuse of discretion results when the judge fails to
consider all legally relevant factors or if the sentence imposed is
clearly excessive.” Id. (citation and internal quotation marks
omitted). 	Furthermore, 	“[a]n 	appellate 	court 	may 	only 	find
abuse if it can be said that no reasonable [person] would take the
view 	adopted 	by 	the 	trial 	court.” 	Id. 	(second 	alteration 	in
original) 	(citation 	and 	internal 	quotation 	marks 	omitted).
However, due process requires “that a sentencing judge act on
reasonably 	reliable 	and 	relevant 	information 	in 	exercising
discretion in fixing a sentence.” State v. Howell, 707 P.2d 115, 118
(Utah 1985).
¶3 	Guillen argues that in making its sentencing decision, the
district court improperly relied on Guillen’s refusal to look at the
victim 	while 	she 	was 	speaking 	at 	his 	sentencing 	hearing.
Specifically, after the victim addressed the court, the prosecutor
stated: “I find it interesting that the defendant doesn’t pay
attention to the victim during [her] speech.” The district court
responded 	that 	Guillen’s 	demeanor 	“was 	not 	lost 	on 	me.”
However, immediately thereafter, Guillen informed the court
that his attorney told him not to look at the victim. The court
acknowledged the statement by responding, “Oh. Okay. All
right. Anything else anybody wants to say?” Guillen argues that
this exchange demonstrates that the district court relied on
inaccurate and unreliable information in making its sentencing
decision. We disagree.
¶4 	The 	exchange 	demonstrates 	that 	Guillen 	was 	able 	to
correct 	any 	of 	the 	district 	court’s 	potential 	misconceptions
caused by Guillen’s failure to look at the victim while she was
speaking at sentencing. The district court then accepted this
explanation. Thus, the record does not demonstrate that the

State v. Guillen
20150462-CA 	3 	2016 UT App 39
district court relied on the inaccurate or unreliable information
claimed by Guillen.
¶5 	We note that the presentence investigation report (PSI)
recommended two concurrent jail sentences of 365 days. This
recommendation 	was 	based 	on 	Guillen’s 	extensive 	criminal
history; his negative parole history, including absconding from
supervision 	twice; 	and 	his 	pending 	criminal 	charges 	in
Colorado. In rendering its decision the district court expressly
indicated that it believed that the PSI’s recommendation was
correct and that it was adopting that recommendation. Guillen
points to nothing in the record that would demonstrate that
some lesser sentence was warranted. Ultimately, Guillen cannot
show that no reasonable person “would take the view adopted
by the trial court.” See Valdovinos, 2003 UT App 432, ¶ 14.
¶6 	Affirmed.