State v. Jaramillo

2016 UT App 70
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
PAUL R AYMOND J ARAMILLO,
Appellant.
Opinion
No. 20130988-CA
Filed April 7, 2016
Third District Court, Salt Lake Department
The Honorable Denise P. Lindberg
No. 101903165
David M. Corbett and Craig L. Pankratz, Attorneys
for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE J. F REDERIC VOROS JR . authored this Opinion, in which
JUDGE M ICHELE M. C HRISTIANSEN and J USTICE J OHN A. PEARCE
concurred.1
VOROS, Judge:
¶1 	Paul 	Raymond 	Jaramillo 	appeals 	his 	convictions 	on
multiple felony counts arising from a crime spree in Salt Lake
City and Centerville. During the spree, he entered a young
woman’s car, held a knife to her throat, and ordered her to drive
1. Justice John A. Pearce began his work on this case as a
member of the Utah Court of Appeals. He became a member of
the Utah Supreme Court thereafter and completed his work on
the case sitting by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 3-108(3).

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him home; attempted to rob a convenience store customer; broke
into a fast food restaurant; and jumped on a vehicle in an
apparent attempt to steal it. His principal claim on appeal is that
his trial counsel provided constitutionally ineffective assistance
when she did not introduce expert testimony that he might have
ingested a large amount of anti-anxiety medication some time
before these events. He also challenges his sentence of 15 years
to life for aggravated kidnapping. We affirm on the first issue
and remand for further proceedings on the second.
BACKGROUND
¶2 	Around midnight on April 20, 2010, a grocery store clerk
finished her shift in downtown Salt Lake City. As she left the
parking lot, Jaramillo flagged her down. Thinking he needed to
ask her a question, the clerk slowed her car. Jaramillo opened the
passenger-side car door and jumped in. He asked her to “give
him a ride just down the street.” He said that “[h]is friends had
left him” and that he “was very tired and didn’t want to walk
anymore.”
¶3 	The clerk agreed to drive him down the street, but once
they left the parking lot, Jaramillo demanded that she drive him
to Ogden. When she refused, he cupped one hand over her
mouth and held a knife to her throat with the other. She began
driving, but told him she could not drive with his hand on her
mouth and a knife at her throat. He lowered the knife, but kept
his hand on the back of her neck until they reached the freeway.
At the freeway on-ramp, Jaramillo made her pull over and told
her that he would drive. She refused, telling him her car was
“temperamental.” He eventually allowed her to keep driving but
told her not to look in the rearview mirror, speed, or do anything
suspicious. He asked her questions about her car and its sound
system, and whether she had any money, credit cards, or bank
accounts. He rummaged through her car, taking and lighting a
cigarette, and donning a hooded sweatshirt he found in the car.

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¶4 	The clerk told Jaramillo that she had to stop for gas. He let
her stop in Centerville. But he warned her not to “do anything
stupid,” because he was not afraid to stab her. She pulled the car
into 	a 	gas 	station 	and 	stopped 	at 	a 	fuel 	pump. 	Jaramillo
demanded that she give him her money and cell phone. She gave
him nine dollars but told him her cell phone was dead. When he
responded that she could do this “the easy way or the hard
way,” she surrendered the phone. They both got out of the car
and, as soon as he walked toward the convenience store, she ran
across the parking lot and hid.
¶5 	Inside the convenience store, a customer was buying a
snack. Jaramillo walked into the store, said he had a gun, and
demanded the clerk’s car key. The clerk pushed Jaramillo away.
Jaramillo then turned his attention to the customer, demanding
his car key. Before the customer could answer, Jaramillo hit him.
The two struggled until the customer pushed Jaramillo out the
door. Jaramillo ran away and the customer went to his SUV in
the parking lot.
¶6 	Jaramillo ran across the parking lot to a closed fast food
restaurant and pounded on the drive-through window. When no
one responded, he began pulling on the 	locked doors. An
employee called the police just before Jaramillo broke the lock
and walked in. Jaramillo demanded money from one of the
employees. When the employee ran out the door, Jaramillo
followed him.
¶7 	In 	the 	parking 	lot, 	Jaramillo 	again 	encountered 	the
convenience store customer, now sitting in his idling SUV.
Jaramillo stood in front of the SUV and demanded the car key.
When the customer refused, Jaramillo jumped onto the hood of
the SUV. The customer thought he could get Jaramillo off of his
SUV if he drove forward slowly and then hit the brakes. When
the customer tried this, Jaramillo fell, and the SUV ran over him.

State v. Jaramillo
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When the police arrived, Jaramillo was unconscious, his legs
under the SUV. Paramedics life-flighted him to the hospital.
¶8 	Jaramillo was charged with multiple felony counts. The
trial court appointed a defense attorney. After a preliminary
hearing and some discovery, Jaramillo requested and received a
new attorney. Jarmillo did this two more times, and each time
the court appointed new attorneys. Finally, trial counsel entered
her 	appearance. 	Although 	Jaramillo 	filed 	multiple 	pre-trial
complaints about trial counsel’s representation, in the end he
cooperated with her, and she represented him throughout the
remaining trial court proceedings.
¶9 	Trial counsel did not present an opening statement or any
evidence to the jury. Counsel relied on cross-examination to
attack the adequacy of the police investigation and advance a
voluntary 	intoxication 	defense. 	Counsel 	established 	that
witnesses told police that Jaramillo demonstrated “bizarre” and
erratic behavior. The court also allowed counsel to question a
police officer about witness statements that Jaramillo “might be
high on drugs” and that “he might be drunk or something” for
the limited purpose of calling into question the adequacy of the
police investigation. The court did not allow counsel to present
to the jury Jaramillo’s claim that he ingested 15 Xanax2 pills the
day of the attack.
¶10 	The jury convicted Jaramillo of two counts of aggravated
robbery, both first-degree felonies; aggravated kidnapping, a
first-degree felony; aggravated assault, a third-degree felony;
possession of a dangerous weapon by a restricted person, a third-
2. Xanax is the brand name of a benzodiazepine “used to treat
anxiety 	disorders, 	panic 	disorders, 	and 	anxiety 	caused 	by
depression.” Xanax, Drugs.com, http://www.drugs.com/xanax.html
[https://perma.cc/C75W-T58C] (last visited Feb. 23, 2015).

State v. Jaramillo
20130988-CA 	5 	2016 UT App 70
degree felony; and criminal trespass, a class B misdemeanor.
He appeals.
ISSUES ON APPEAL
¶11 	Jaramillo 	contends 	that 	his 	trial 	counsel 	“rendered
ineffective assistance of counsel by failing to investigate and
present clearly exculpatory evidence” showing that Jaramillo
had “ingested a mind-altering chemical” before committing the
crimes. He also requests that we remand this case to the trial
court under rule 23B of the Utah Rules of Appellate Procedure to
create a record to support his ineffective assistance of counsel
claim.
¶12 	Jaramillo also contends that in sentencing him to a term of
fifteen years to life, the court did not consider proportionality or
rehabilitation as required by the aggravated kidnapping statute.
See Utah Code Ann. § 76-5-302 (LexisNexis Supp. 2013).
ANALYSIS
I. Rule 23B Remand
¶13 	Jaramillo seeks remand to the trial court to create a record
supporting his claim that he received ineffective assistance from
his 	trial 	counsel. 	He 	contends 	that 	trial 	counsel 	failed 	to
“investigate 	the 	facts” 	and 	present 	evidence 	to 	support 	a
voluntary intoxication defense.
¶14 	Utah 	Rule 	of 	Appellate 	Procedure 	23B 	“provides 	a
mechanism for criminal defendants to supplement the record
with 	facts 	that 	are 	necessary 	for 	a 	finding 	of 	ineffective
assistance of counsel but which do not appear in the record.”
State v. Griffin, 2015 UT 18, ¶ 17. A rule 23B motion “shall be
available only upon a nonspeculative allegation of facts, not fully
appearing in the record on appeal, which, if true, could support

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a determination that counsel was ineffective.” Utah R. App. P.
23B(a).
¶15 	“There are four basic requirements for obtaining a 23B
remand. 	First, 	the 	motion 	must 	be 	supported 	by 	affidavits
setting forth facts that are not contained in the existing record.”
State v. Norton, 2015 UT App 263, ¶ 6, 361 P.3d 719 (citation and
internal quotation marks omitted). “Second, the defendant must
provide allegations of fact that are not speculative.” Griffin, 2015
UT 18, ¶ 19. “The third and fourth elements of the . . . test come
from the rule’s mandate that the alleged facts could support a
determination that counsel was ineffective.” Id. ¶ 20 (citation and
internal quotation marks omitted). “To succeed on an ineffective
assistance of counsel claim, a defendant must ‘establish that his
counsel rendered a deficient performance in some demonstrable
manner, which performance fell below an objective standard of
reasonable professional judgment.’” Norton, 2015 UT App 263,
¶ 7 (quoting Griffin, 2015 UT 18, ¶ 15). The defendant must also
“show that counsel’s performance prejudiced [him], meaning
that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Griffin, 2015 UT 18, ¶ 15 (citation and internal
quotation marks omitted).
¶16 	Voluntary intoxication does not serve as a defense to a
criminal charge unless the intoxication “negates the existence of
the mental state which is an element of the offense.” Utah Code
Ann. 	§ 	76-2-306 	(LexisNexis 	2012). 	Thus, 	“to 	prevail 	on 	a
voluntary intoxication defense, [Jaramillo’s] state of intoxication
must have deprived him of the capacity to form the mental state
necessary” for the charged offenses. See Honie v. State, 2014 UT
19, ¶ 49, 342 P.3d 182. “It is not enough to merely present
evidence showing that the defendant [was intoxicated].” Id. ¶ 50.
“Rather, to establish a viable voluntary intoxication defense, the
defendant must point to evidence showing that he was so

State v. Jaramillo
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intoxicated that he was incapable of forming the requisite mental
state for the crimes committed.” Id.
¶17 	In support of his rule 23B motion, Jaramillo alleges that
during trial, counsel “relied almost entirely on a voluntary
intoxication defense,” but while counsel “established that his
conduct was consistent with intoxication, [counsel] failed to
establish that he was actually intoxicated.” Jaramillo maintains
that an adequate investigation would have disclosed substantial
evidence of his intoxication, including a report from his visit to
an emergency center the day before the events leading to his
convictions, 	which 	shows 	that 	the 	attending 	physician
prescribed 15 Xanax pills; a hospital admission report from after
the events showing he had benzodiazepine in his system; a
behavioral health clinical assessment noting that he had an
empty prescription bottle in his pocket; and excerpts of a police
report. He also relies on affidavits from trial counsel and a
forensic psychologist who evaluated Jaramillo five years after he
committed these crimes.
¶18 	The 	forensic 	psychologist’s 	report 	asserts 	(1) 	that
Jaramillo ingested Xanax, but it is impossible to determine how
much 	Xanax 	he 	ingested; 	(2) 	that 	effects 	of 	acute 	Xanax
intoxication “involve impaired judgment, disorganized thinking
and behavior, extreme disinhibition, memory impairment and
amnesia, motoric slowing and physical un-coordination, and
somnolence (sleepiness)”; (3) that Jaramillo appears to have
suffered amnesia after the event; (4) that “the question regarding
whether Mr. Jaramillo was able to form the requisite specific
intent to commit the crimes of which he has been convicted is
complicated”; and (5) that “it is reasonable to conclude . . . that
Mr. Jaramillo was acutely intoxicated to the extent that he was
rendered unable to form specific intent.”
¶19 	This evidence might well support a finding that Jaramillo
was intoxicated on the date of the crimes. But, as explained

State v. Jaramillo
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above, “[e]vidence of intoxication, be it witness testimony or a
numerical 	measure 	of 	the 	defendant’s 	actual 	blood 	alcohol
content, is not sufficient to establish a voluntary intoxication
defense.” 	Honie, 	2014 	UT 	19, 	¶ 	55. 	Rather, 	a 	voluntary
intoxication defense requires a showing “that he was incapable
of forming the requisite mental state for the crimes committed.”
Id. ¶ 50. For example, in a murder case, a defendant must offer
evidence 	“that 	his 	intoxication 	at 	the 	time 	of 	the 	offense
prevented him from understanding that his actions were causing
the death of another.” Id. ¶ 55 (internal quotation marks omitted).
¶20 	At a minimum, this standard requires a defendant (1) to
identify the requisite mental state for the crimes committed and
(2) to show how his intoxication prevented him from forming
those mental states. Jaramillo has done neither. First, he has not
identified the requisite mental states for any of the crimes of
which he was convicted. And second, he has not shown, or even
asserted, that his intoxication prevented him from forming those
mental states.
¶21 	Jaramillo was convicted of two counts of aggravated
robbery, aggravated kidnapping, aggravated assault, possession
of a dangerous weapon by a restricted person, and criminal
trespass. The voluntary intoxication statute specifies that “if
recklessness or criminal negligence establishes an element of an
offense and the actor is unaware of the risk because of voluntary
intoxication, his unawareness is immaterial in a prosecution for
that offense.” Utah Code Ann. § 76-2-306 (LexisNexis 2012).
Aggravated assault may be committed by creating a substantial
risk of bodily injury to another. See id. § 76-5-103(1)(a)(iii) (Supp.
2015). And it may be committed with an intentional or reckless
mental state. See State v. Loeffel, 2013 UT App 85, ¶¶ 7–10, 300
P.3d 336. Jaramillo has not attempted to explain how, given
these provisions, his proffered rule 23B evidence of voluntary
intoxication could have supported voluntary intoxication as a
defense to the charge of aggravated assault.

State v. Jaramillo
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¶22 	To take another example, the most serious crime Jaramillo
committed was aggravated kidnapping. Various mental states
apply to this crime. To commit simple kidnapping, an individual
must act “intentionally or knowingly.” Utah Code Ann. § 76-5-
301(1) (2012). And as relevant here, an actor commits aggravated
kidnapping by acting with the intent “to compel a third person
to engage in particular conduct.” Id. § 76-5-302(1)(b)(i) (Supp.
2013). 	The 	forensic 	psychologist’s 	report 	opines 	that 	“it 	is
reasonable to conclude . . . that Mr. Jaramillo was acutely
intoxicated to the extent that he was rendered unable to form
specific intent.” But in fact nothing in this report or Jaramillo’s
other proffered rule 23B evidence acknowledges these mental
states or demonstrates any tendency to negate their existence,
that 	is, 	to 	disprove 	that 	Jaramillo 	acted 	intentionally 	or
knowingly and with the intent to compel a person to engage in
particular conduct. Uncontroverted trial testimony established
that he instructed the grocery store clerk to drive to Ogden, held
a knife to her throat, understood when she told him he needed to
move his hands so she could see while driving, told her to pull
over and let him drive on the freeway, agreed to let her drive her
“temperamental” car, and agreed to let her stop for gas in
Centerville. Nothing in the psychologist’s report suggests that
during this criminal episode Jaramillo did not intend to compel
or did not know he was compelling a person to engage in
particular conduct, that is, to drive him to Ogden. Indeed, even
Jaramillo’s brief states that he “simply wanted to go home.”
¶23 	In sum, Jaramillo has pointed to no evidence “showing he
was so intoxicated that he was unable to form the requisite
intent to commit” the charged offenses. See Honie v. State, 2014
UT 19, ¶ 61, 342 P.3d 182. We therefore conclude that the
additional evidence Jaramillo provided in his rule 23B motion
does not “show that counsel’s performance prejudiced [him]” or,
in other words, that “the result of the proceeding would have
been different.” State v. Griffin, 2015 UT 18, ¶ 15 (citation and

State v. Jaramillo
20130988-CA 	10 	2016 UT App 70
internal quotation marks omitted). Accordingly, his rule 23B
motion is denied.
II. Ineffective Assistance of Counsel
¶24 	Jaramillo contends that trial counsel “rendered ineffective
assistance of counsel by failing to investigate and present clearly
exculpatory evidence” that Jaramillo “ingested a mind-altering
chemical.” “We review claims of ineffective assistance of counsel
raised for the first time on appeal for correctness.” State v.
Heywood, 2015 UT App 191, ¶ 16, 357 P.3d 565 (citing State v.
Lucero, 2014 UT 15, ¶ 11, 328 P.3d 841). To succeed on a claim of
ineffective assistance of counsel, “the defendant must show that
counsel’s performance was deficient” and that “the deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984); see also State v. Houston, 2015 UT 40, ¶ 70,
353 P.3d 55, petition for cert. filed, Nov. 25, 2015 (U.S. No. 15-7087).
¶25 	“To establish that counsel was deficient, a petitioner must
overcome 	the 	strong 	presumption 	that 	counsel 	rendered
constitutionally sufficient assistance, by showing that counsel’s
conduct ‘fell below an objective standard of reasonableness’
under prevailing professional norms.” Lafferty v. State, 2007 UT
73, ¶ 12, 175 P.3d 530 (quoting Strickland, 466 U.S. at 688). “In
accordance with these norms, our cases recognize that counsel
has an important duty to adequately investigate the underlying
facts of the case.” State v. Lenkart, 2011 UT 27, ¶ 27, 262 P.3d 1
(citation and internal quotation marks omitted). However, “it is
within 	counsel’s 	discretion 	to 	make 	reasonable 	decisions
regarding 	the 	extent 	to 	which 	particular 	investigations 	are
necessary.” State v. Montoya, 2004 UT 5, ¶ 24, 84 P.3d 1183 (citing
Strickland, 466 U.S. at 691).
¶26 	To 	establish 	that 	counsel’s 	performance 	resulted 	in
prejudice, a defendant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland,

State v. Jaramillo
20130988-CA 	11 	2016 UT App 70
466 	U.S. 	at 	694. 	“A 	reasonable 	probability 	is 	a 	probability
sufficient to undermine confidence in the outcome.” Id. “It is not
enough to show that the errors had some conceivable effect on
the outcome of the proceeding.” State v. Nelson, 2015 UT 62, ¶ 28,
355 P.3d 1031 (citation and internal quotation marks omitted).
“Instead, the likelihood of a different result must be substantial
and sufficient to undermine confidence in the outcome.” Id.
(citation and internal quotation marks omitted).
¶27 	To 	support 	the 	ineffective 	assistance 	claims 	in 	his
appellate brief, Jaramillo relies primarily on the contents of his
rule 23B filings. “We consider [the evidence] supporting Rule
23B motions solely to determine the propriety of remanding
ineffective assistance of counsel claims for evidentiary hearings.”
State v. Bredehoft, 966 P.2d 285, 290 (Utah Ct. App. 1998). The
emergency center report, hospital admission report, behavioral
health assessment, police report, and accompanying affidavits
“are therefore not a part of the record before this court, and we
do not consider new evidence on appeal.” See State v. Norton,
2015 UT App 263, ¶ 15, 361 P.3d 719 (citation and internal
quotation 	marks 	omitted). 	“A 	defendant 	cannot 	bring 	an
ineffective 	assistance 	of 	counsel 	claim 	on 	appeal 	without
pointing to specific instances in the record demonstrating both
counsel’s deficient performance and the prejudice it caused the
defendant.” State v. Griffin, 2015 UT 18, ¶ 16.
¶28 	Although 	Jaramillo 	relies 	primarily 	on 	non-record
evidence from his rule 23B motion to argue ineffective assistance
of counsel, he does point to one specific instance in the record to
support 	his 	claim. 	Trial 	counsel 	did 	attempt 	to 	support
Jaramillo’s 	voluntary 	intoxication 	defense 	through 	a 	police
officer’s testimony. Jaramillo argues that this attempt shows that
trial counsel “knew” he had taken 15 Xanax before the events
leading 	to 	his 	convictions. 	He 	argues 	that, 	based 	on 	this
knowledge, 	“counsel 	should 	have 	fully 	investigated 	[his]

State v. Jaramillo
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intoxication and its effect on his ability to form the necessary
mental state to commit the crimes for which he was charged.”
¶29 	Notwithstanding trial counsel’s attempt, the record on
appeal simply does not reflect the extent of trial counsel’s
knowledge of Jaramillo’s Xanax use. Without “specific instances
in the record” pointing to deficient performance, Griffin, 2015 UT
18, 	¶ 16, 	we 	must 	“indulge 	in 	a 	strong 	presumption 	that
counsel’s conduct falls within the wide range of reasonable
professional assistance,” Strickland v. Washington, 466 U.S. 668,
689 	(1984). 	Trial 	counsel 	is 	“entitled 	to . . . balance 	limited
resources in accord with effective trial tactics and strategies.”
Harrington v. Richter, 562 U.S. 86, 107 (2011). Jaramillo’s claim
therefore fails to show that counsel performed deficiently. See
Strickland, 466 U.S. at 688.
¶30 	In addition to falling short of the necessary showing
under the first prong of Strickland, Jaramillo cannot show that
even if his counsel had known of and presented evidence of
Jaramillo’s possible Xanax use, “the result of the proceeding
would have been different.” Id. As previously stated, even if
counsel had shown that Jaramillo ingested 15 Xanax pills, this
showing 	would 	not 	have 	raised 	a 	reasonable 	doubt 	as 	to
whether “he was incapable of forming the requisite mental state
for the crimes committed.” See Honie v. State, 2014 UT 19, ¶ 50,
342 P.3d 182. Accordingly, Jaramillo’s ineffective assistance of
counsel claim fails.
III. Sentencing
¶31 	Jaramillo 	contends 	that 	the 	trial 	court 	abused 	its
discretion when it “did not engage in the interests-of-justice
analysis 	required 	by 	Utah 	Code 	section 	76-5-302 	[when 	it

State v. Jaramillo
20130988-CA 	13 	2016 UT App 70
sentenced him] for the aggravated kidnapping charge.”3 He
argues 	that 	the 	interests-of-justice 	analysis 	“must 	include
‘principles 	of 	proportionality 	and 	a 	recognition 	of 	the
rehabilitative 	potential 	of 	individual 	defendants.’” 	(Quoting
LeBeau v. State, 2014 UT 39, ¶ 36, 337 P.3d 254.)
¶32 	“We afford the trial court wide latitude in sentencing and,
generally, will reverse a trial court’s sentencing decision only if it
is an abuse of the judge’s discretion.” State v. Alfatlawi, 2006 UT
App 511, ¶ 14, 153 P.3d 804 (citation and internal quotation
marks omitted). “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).
¶33 	Under 	Utah 	Code 	section 	76-5-302, 	aggravated
kidnapping 	not 	involving 	serious 	bodily 	injury 	or 	a 	prior
conviction for a “grievous sexual offense” is a “first degree
felony punishable by a term of imprisonment of . . . not less than
15 years and which may be for life.” Utah Code Ann. § 76-5-
302(3) (LexisNexis Supp. 2013). But a sentencing court may, in
the interests of justice, impose a lesser minimum term:
If, when imposing a sentence . . . , a court finds that
a lesser term . . . is in the interests of justice and
states the reason for this finding on the record, the
3. Alternatively, Jaramillo argues that his sentence should be
reviewed 	under 	rule 	22(e) 	of 	the 	Utah 	Rules 	of 	Criminal
Procedure or as a claim of ineffective assistance of counsel.
Because we conclude that the sentencing court should have
conducted the interests-of-justice analysis, we need not and do
not address these arguments.

State v. Jaramillo
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court may impose a term of imprisonment of not
less than . . . 10 years and which may be for life; or
six years and which may be for life.
Id. § 76-5-302(4). In LeBeau v. State, 2014 UT 39, 337 P.3d 254,
our supreme 	court 	interpreted 	the 	aggravated 	kidnapping
statute and concluded that it requires a sentencing court to
“engage 	in 	the 	interests-of-justice 	analysis 	laid 	out 	in
subsection (4).” Id. ¶ 21. The court held that the interests-of-
justice analysis “necessarily requires the [sentencing] court to
consider 	the 	proportionality 	of 	the 	defendant’s 	sentence 	in
relation to the severity of his offense. Additionally, it requires
that 	sentencing 	judges 	appropriately 	weigh 	a 	defendant’s
potential for rehabilitation.” Id. ¶ 37.
¶34 	Although the supreme court decided LeBeau one year
after Jaramillo was sentenced and filed this appeal, the court has
recently recognized “a rule of retroactive application to all cases
pending on direct review of new rules of criminal procedure
announced in judicial decisions.” State v. Guard, 2015 UT 96,
¶¶ 31, 67. Accordingly, LeBeau applies to this appeal.4
A. 	Preservation
¶35 	The State argues that Jaramillo failed to preserve his
sentencing 	claim 	because 	counsel’s 	“argument 	was 	wholly
insufficient to alert the court to the error now claimed on
appeal—that 	it 	failed 	to 	consider 	proportionality 	and
rehabilitation 	factors 	comprising 	the 	interests-of-justice
analysis.” 	Jaramillo 	responds 	that 	he 	asked 	the 	court 	to
consider “a six to life” sentence and a number of mitigating
factors, which he contends preserved his proportionality and
rehabilitation arguments.
4. Jaramillo assumes, and the State does not dispute, that the rule
announced in LeBeau applies to this appeal.

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20130988-CA 	15 	2016 UT App 70
¶36 	“[I]n order to preserve an issue for appeal[,] the issue
must be presented to the trial court in such a way that the trial
court has an opportunity to rule on that issue.” 438 Main St. v.
Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (alterations in
original) 	(citations 	and 	internal 	quotation 	marks 	omitted).
“Where an argument is not preserved below, we will only
review the issue if exceptional circumstances exist or if the lower
court committed plain error.” Hill v. Estate of Allred, 2009 UT 28,
¶ 24, 216 P.3d 929.
¶37 	Jaramillo preserved this claim at least as well as LeBeau
did. LeBeau’s argument at sentencing centered on giving the
Board of Pardons and Parole discretion to consider LeBeau’s
future reformation:
Although what he’s convicted of is extraordinarily
serious, there ought to be some possibility of hope,
some possibility that at some distant point in time
if he can demonstrate a sufficient reformation by
that time, that the State would—that the Board of
Pardons would at least be in a position to consider
it.
State v. Lebeau, 2012 UT App 235, ¶ 31, 286 P.3d 1, rev’d, 2014 UT
39, 337 P.3d 254.5 Jaramillo’s argument tracked LeBeau’s closely,
and even mentioned proportionality specifically:
Mr. Jaramillo has spent a lot of time in prison;
however, his criminal history is not awful. . . . We
certainly 	see 	people 	who 	have 	a 	much 	worse
criminal history. . . . Clearly, the [Board of Pardons
5. The court of appeals captioned the case State v. Lebeau. See
2012 UT App 235, 286 P.3d 1. On certiorari, the supreme court
captioned the case LeBeau v. State. See 2014 UT 39, 337 P.3d 254.
We do not attempt to resolve the discrepancy here.

State v. Jaramillo
20130988-CA 	16 	2016 UT App 70
and Parole], who is well-equipped to look at the
history, look at how he does in prison, all of those
things, has a life top and can do with Mr. Jaramillo
what they will.
A majority of our supreme court treated LeBeau’s claim as
preserved notwithstanding a dissent arguing that he had not
preserved it. See LeBeau, 2014 UT 39, ¶ 97 (Lee, J., dissenting). If
LeBeau’s claim was preserved, a fortiori Jaramillo’s claim was.6
B. 	Interests-of-Justice Analysis
¶38 	In LeBeau v. State, the supreme court determined that “the
Legislature did not intend the phrase ‘interests of justice’ as a
mere substitute for the weighing of aggravating and mitigating
circumstances.” Id. ¶ 30. Instead, the LeBeau court concluded, an
interests-of-justice analysis “necessarily requires the court to
consider 	the 	proportionality 	of 	the 	defendant’s 	sentence 	in
6. Jaramillo does not rely on exceptional circumstances as an
alternative 	to 	preservation. 	Exceptional 	circumstances 	“is 	a
descriptive 	term 	used 	to 	memorialize 	an 	appellate 	court’s
judgment that even though an issue was not raised below and
even though the plain error doctrine does not apply, unique
procedural circumstances nonetheless permit consideration of
the merits of the issue on appeal.” State v. Irwin, 924 P.2d 5, 8
(Utah Ct. App. 1996). Utah appellate courts have “employed the
‘exceptional circumstances’ rubric where a change in law or the
settled interpretation of law colored the failure to have raised an
issue at trial.” Id. at 10. But cf. Hill v. Estate of Allred, 2009 UT 28,
¶¶ 25–29, 216 P.3d 929 (concluding that appellant’s failure “to
recognize that such an argument existed does not present an
exceptional circumstance”). Here, the interests-of-justice analysis
in 	LeBeau 	might 	be 	seen 	as “a 	change 	in 	. 	. 	. 	the 	settled
interpretation of law,” see Irwin, 924 P.2d at 10, coloring any
failure to have raised the issue at trial.

State v. Jaramillo
20130988-CA 	17 	2016 UT App 70
relation to the severity of his offense. Additionally, it requires
that 	sentencing 	judges 	appropriately 	weigh 	a 	defendant’s
potential for rehabilitation.” Id. ¶ 37.
1. 	Proportionality
¶39 	Proportionality analysis requires the sentencing court to
“consider ‘the gravity of the offense and the harshness of the
penalty.’” LeBeau v. State, 2014 UT 39, ¶ 42, 337 P.3d 254 (quoting
Solem v. Helm, 463 U.S. 277, 290–91 (1983)). “[C]ourts should
consider 	all 	relevant 	facts 	raised 	by 	the 	parties 	about 	the
defendant’s crime in relation to the harshness of the penalty.” Id.
Relevant facts may include whether the defendant committed a
violent crime, “the absolute magnitude of the crime,” id. ¶ 44,
and “the culpability of the offender,” id. ¶ 45. Proportionality
analysis also requires the sentencing court to “compare the
sentence being imposed to the sentences imposed for other
crimes 	in 	Utah.” 	Id. 	¶ 	47. 	In 	other 	words, 	“courts 	should
consider the sentences imposed for more and less serious crimes
in order to ensure that a particular defendant’s sentence is not
arbitrary.” Id.
¶40 	Here, the sentencing court appears not to have considered
this 	comparative 	factor.7 	The 	court 	found 	that 	Jaramillo
7. “[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
[he] considers in imposing a sentence . . . .” Id. ¶ 40. Accordingly,
this court “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.” State v. Helms, 2002 UT 12, ¶ 11, 40 P.3d 626.
However, 	because 	the 	supreme 	court 	decided 	LeBeau 	after
Jaramillo 	was 	sentenced, 	we 	review 	the 	sentencing 	court’s
findings for the necessary considerations.

State v. Jaramillo
20130988-CA 	18 	2016 UT App 70
“terrorized” the grocery store clerk and that he “understood
what [he was] doing” when he committed the crimes. The court
then “considered whether a lesser term of imprisonment [was]
warranted in light of all interactions.” It “conclude[d] that the
interest of justice would not be served by imposing a lesser
sentence.” But the court did not “compare the sentence being
imposed” to the sentences imposed for more and less serious
crimes in order to ensure that Jaramillo’s sentence was not
arbitrary.8 	Accordingly—though 	understandable 	given 	the
sequence of events—the sentencing court “failed to consider all
the legally relevant factors.” State v. Killpack, 2008 UT 49, ¶ 59,
191 P.3d 17. This omission requires us to vacate Jaramillo’s
sentence and remand for resentencing.
2. 	Rehabilitation
¶41 	LeBeau also held, “Sentencing courts must consider all of
the factors relevant to a defendant’s rehabilitative potential.”
LeBeau, 2014 UT 39, ¶ 54. These include “a defendant’s age at the
time of the commission of the crime,” “the extent to which a
defendant’s crime was tied to alcohol or drug addiction and the
defendant’s prospects for treatments,” and the “extent to which
a defendant’s criminal history evidences violence.” Id. (citation
and internal quotation marks omitted). The court may also use
the 	“Sentencing 	Commission’s 	guidelines, 	several 	of 	which
relate to a defendant’s capacity for rehabilitation.” Id.
¶42 	Jaramillo 	argues 	that 	the 	sentencing 	court 	“did 	not
consider 	[his] 	potential 	for 	rehabilitation” 	or 	“contemplat[e]
therapeutic and psychiatric intervention.” The court heard from
both Jaramillo and his counsel at sentencing. Both emphasized
8. See, e.g., Utah Code Ann. § 76-5-203(3)(b) (LexisNexis 2012)
(“A person who is convicted of murder shall be sentenced to
imprisonment for an indeterminate term of not less than 15 years
and which may be for life.”).

State v. Jaramillo
20130988-CA 	19 	2016 UT App 70
that 	Jaramillo 	had 	changed 	since 	being 	“on 	the 	right
medication.” The court also had the benefit of the presentence
report containing information about Jaramillo’s criminal and
personal history, as well as the two alienists’ reports. Each of
these factors before the sentencing court speaks to Jaramillo’s
potential for rehabilitation, and we presume that the district
court considered them. However, on remand we invite the
district court to take a second look at Jaramillo’s potential for
rehabilitation 	if 	the 	court 	deems 	that 	factor 	relevant 	to 	its
sentencing decision.
¶43 	In 	sum, 	because 	“new 	rules 	of 	criminal 	procedure
announced in judicial decisions” retroactively apply to all cases
pending on direct review, State v. Guard, 2015 UT 96, ¶ 31,
Jaramillo’s 	sentence 	must 	be 	reviewed 	through 	LeBeau’s
interests-of-justice analysis. The sentencing court must consider
both “the proportionality of the defendant’s sentence in relation
to the severity of his offense” and the “defendant’s potential for
rehabilitation.” See LeBeau, 2014 UT 39, ¶ 37. We remand this
case to allow the district court to do so.
CONCLUSION
¶44 	Jaramillo has not shown that, even accepting as true the
material supporting his rule 23B motion, he received ineffective
assistance of counsel. Accordingly we deny his rule 23B motion
for remand and his ineffective assistance claim on appeal. We
also conclude that LeBeau v. State requires an interests-of-justice
analysis of Jaramillo’s sentence for aggravated kidnapping. We
therefore affirm Jaramillo’s convictions, but vacate Jaramillo’s
sentence and remand for further proceedings consistent with
this opinion.