State v. Lineberry

2016 UT App 247

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
GREGORY D. LINEBERRY,
Appellant.

Memorandum Decision
No. 20150568-CA
Filed December 22, 2016

Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 141902257

Teresa L. Welch and Maren E. Larson, Attorneys
for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee

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

ORME, Judge:

¶1 Gregory D. Lineberry, having pled guilty to the charge of
disarming a police officer, appeals his sentence. 1 We affirm.

1. Disarming a police officer of a firearm is a first degree felony.
See Utah Code Ann. § 76-5-102.8(2), (3)(a) (LexisNexis 2012). As
part of his plea bargain, Lineberry was allowed to plead guilty to
a single second degree felony, see id. § 76-3-402(1) (authorizing
that, if certain criteria are met, “the court may enter a judgment
of conviction for the next lower degree of offense and impose
sentence accordingly”), and four other counts were dismissed.
State v. Lineberry

¶2 In its presentence report, Adult Probation and Parole
recommended that Lineberry be incarcerated in the Utah State
Prison. The report noted Lineberry’s heroin addiction, past
participation in education programs while imprisoned,
acceptance of responsibility for the crime in this case, and
willingness to pursue sobriety through substance abuse
programs. Defense counsel submitted four letters in support of
Lineberry’s character. The letters called Lineberry a role model
because of his commitment to sobriety and self-improvement
and spoke of his positive attitude and desire to move forward
with his life. One letter described him as “a generous, kind,
honest, loving soul.” The letters also noted his struggle with
addiction and post-traumatic stress disorder and his need for
“therapy and rehabilitation.”

¶3 The sentencing hearing began with the court indicating
that it had read the letters. Defense counsel sought a sentence of
probation, with no more than one year’s jail time and substance
abuse treatment. Counsel cited Lineberry’s remorse for his
crimes, his “substantial steps” toward change, his good behavior
in jail, and his having forgone bail to avoid relapsing into heroin
use. Likewise, in his statement to the court, Lineberry noted the
severity of the crime and his past drug use but asked for the
opportunity to pursue his ongoing sobriety without being
returned to prison, where he had first used heroin. The State,
nonetheless, sought imprisonment based on his “significant”
criminal history and the seriousness of his criminal conduct:
disarming an officer who sought to arrest him for injecting
heroin in a public restroom.

¶4 The sentencing court, again noting that it had read the
letters and commenting that they were moving and sympathetic,
said that it had “really thought about this.” The court expressed
the need “to balance” the character evidence with “the
dangerousness of [Lineberry’s] conduct and the threat to the
community compared to [his] ability to get rehabilitation,” and it

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State v. Lineberry

stated that prison had the very programs for treatment that
Lineberry needed. Upon these considerations, the court
sentenced Lineberry to prison for the statutory term for a second
degree felony, an indeterminate term of one year to fifteen years,
see Utah Code Ann. § 76-3-203(2) (LexisNexis 2012), with a
recommendation that he receive credit for time served.
Lineberry appeals.

¶5 We review the sentencing decision for an abuse of
discretion. State v. Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d
1167. A sentencing court abuses its discretion if it imposes a
sentence that is inherently unfair, clearly excessive, or illegal, see
State v. Schweitzer, 943 P.2d 649, 651 (Utah Ct. App. 1997), if it
“fail[s] to consider all the legally relevant factors,” State v.
Killpack, 2008 UT 49, ¶ 59, 191 P.3d 17 (citation and internal
quotation marks omitted), or if “no reasonable person would
take the view” it adopts, Valdovinos, 2003 UT App 432, ¶ 14
(alteration, citation, and internal quotation marks omitted). This
is “a heavy burden” for an appellant to carry. State v. Roberts,
2015 UT 24, ¶ 35, 345 P.3d 1226.

¶6 Lineberry argues that his sentence constitutes an abuse of
discretion because there were “intangible factors that counseled
against prison” and “justif[ied] probation.” But we will not
disturb the sentencing court’s decision merely because
mitigating factors exist. See Killpack, 2008 UT 49, ¶ 59. Rather, we
must determine whether the court considered all of the relevant
factors, with the understanding that “not all aggravating and
mitigating factors are equally important.” Id. Here, the court
considered the letters written on Lineberry’s behalf; the nature of
the crime, which was quite serious; and the threat Lineberry
posed to the community in light of his criminal history. Thus, the
court acknowledged the mitigating factors but balanced them
against other relevant concerns and concluded that
imprisonment was necessary, see id. ¶¶ 59, 61, especially
considering that prison programs presented the opportunities

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State v. Lineberry

for rehabilitation and self-improvement that Lineberry argued
justified probation. This is precisely what Utah law requires of
sentencing courts, see id. ¶ 59, and the sentencing court therefore
did not abuse its discretion.

¶7 Affirmed.

20150568-CA 4 2016 UT App 247