State v. Ricks

2014 UT App 85
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
MARIANNE RICKS,
Defendant and Appellant.
Per Curiam Decision
No. 20130314-CA
Filed April 17, 2014
Second District Court, Ogden Department
The Honorable Michael D. DiReda
No. 121902702
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Deborah L. Bulkeley, Attorneys
for Appellee
Before JUDGES JAMES Z. DAVIS, J. FREDERIC VOROS JR., and
JOHN A. PEARCE.
PER CURIAM:
¶1 Marianne Ricks appeals her sentence on a conviction of retail
theft, a third degree felony. We affirm.
¶2 “The sentencing decision of a trial court is reviewed for
abuse of discretion.” State v. Valdovinos, 2003 UT App 432, ¶ 14, 82
P.3d 1167. A court abuses its discretion in sentencing “when it fails
to consider all legally relevant factors or if the sentence imposed is
clearly excessive.” See id. ¶ 28 (citation and internal quotation
marks omitted). Alternatively, a defendant may demonstrate an
abuse of discretion if he or she can show “that no reasonable
[person] would take the view adopted by the trial court.” Id. ¶ 14
(alteration in original) (citation and internal quotation marks

State v. Ricks
1. In her opening brief, Ricks argued that her trial counsel was
ineffective to the extent that counsel did not make objections to the
issues for appeal. In a letter filed in lieu of a reply brief, Ricks states
that because the State did not argue lack of preservation, “counsel’s
alleged ineffectiveness is not before this Court.” We do not
consider any claim of ineffectiveness of trial counsel.
20130314-CA 2 2014 UT App 85
omitted). “The 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).
¶3 In connection with the February 2013 sentencing in this
Weber County case, Adult Probation and Parole (AP&P) prepared
an addendum to a Presentence Investigation Report (PSI) that had
been prepared for the August 2012 sentencing in two cases from
Davis County. The amended PSI stated, “This addendum does not
constitute a complete report without the attached
presentence/postsentence report” from August 2012. AP&P
recommended a departure from the guidelines and a prison
sentence of zero to five years based upon Ricks’s continued
criminal activity while on probation from the Davis County cases.
¶4 Ricks claims that the district court failed to adequately
account for mitigating evidence and therefore abused its discretion
in sentencing. Ricks first claims that there was substantial evidence
in mitigation that was not addressed in the PSI. Second, she claims
that the district court failed to adequately consider the impact of
her incarceration on her children. Third, Ricks contends that the
court inappropriately determined that a prison sentence afforded
the best means for her to access mental health treatment. Finally,
Ricks claims that the court gave too much weight to the fact that
she had committed the offense while on probation from her earlier
cases.1
¶5 Although Ricks claims that the district court failed to
consider all relevant factors at sentencing, the record demonstrates
otherwise. Ricks essentially challenges the weight that the district

State v. Ricks
20130314-CA 3 2014 UT App 85
court placed on the sentencing factors. Ricks lists the factors in
mitigation from the AP&P form, which is captioned “Aggravating
and Mitigating Circumstances,” that she claims have application to
her case. The first factor—that her conduct neither caused nor
threatened serious harm—was noted as a mitigating factor in the
amended PSI. The original PSI also noted the additional factors that
(1) there was a substantial ground to excuse or justify criminal
behavior, (2) the offender’s attitude suggests amenability to
supervision, and (3) all offenses occurred in a single criminal
episode. The latter factor would be applicable only in the Davis
County cases that were before the court in the August 2012
sentencing. The factor identified by Ricks that relates to the ability
to pay restitution has no application to this Weber County case,
where there was no restitution sought. The last factor Ricks argues
was applicable— that her mental health issues made it less likely
for her to knowingly commit the crime—was waived by entry of
her guilty plea. Nevertheless, the combined PSI contained
extensive information about her mental illness, which was also
discussed at sentencing. Furthermore, the district court discussed
the adverse impact of Ricks’ criminal activity and resulting
incarceration on her children. It is apparent that the district court
considered all relevant factors, including mitigating evidence, and
that Ricks disagrees with the weight that the district court placed
on those factors.
¶6 Ricks cites to numerous treatises and articles on various
issues related to the incarceration of mentally ill offenders and the
claimed inadequacy of prison systems to address their medical and
treatment needs. At sentencing in this case, a representative from
AP&P suggested that the parole board might consider Ricks as a
candidate for placement in a specific program for women that
could address her mental health issues as they related to her
continued criminal activity. The district court noted that access to
this programming would be available only through a prison
sentence. There is no indication that the materials cited in the brief
or arguments based on those or similar materials were ever
presented to the district court. There also was no evidence
indicating that the specific program described by the AP&P

State v. Ricks
20130314-CA 4 2014 UT App 85
representative was in any way unsuitable. Ricks has not
demonstrated that the district court abused its discretion in
sentencing her to a prison term with a further recommendation that
she be considered by the parole board for release to the treatment
program.
¶7 The sentence imposed for the third degree felony retail theft
conviction was within the applicable statutory range. Departure
from the sentencing guidelines—which do not have the force or
effect of law—was explained by AP&P in the PSI. The PSI
contained an analysis of relevant sentencing factors to be
considered by the district court. At the sentencing hearing, the
district court discussed Ricks’s mental health issues, her limited
criminal history, the impact on her children, and the need for
mental health treatment. “Because so many different ingredients
factor into the sentencing process, and because the discretionary
imposition of probation rests in many cases on subtleties not
apparent on the face of the cold record,” a reviewing court does not
overturn a sentence unless it is “clear that the actions of the judge
were so inherently unfair as to constitute an abuse of discretion.”
State v. Rhodes, 818 P.2d 1048, 1051 (Utah Ct. App. 1991).
¶8 Ricks has not demonstrated that the district court failed to
consider all legally relevant factors. The sentence imposed in this
case is within the statutory term prescribed for a third degree
felony. Ricks has not demonstrated that the district court failed to
consider all legally relevant factors at sentencing or that the
sentence was clearly excessive under the facts of the case.
Alternatively, Ricks has not demonstrated that no reasonable
person would take the view adopted by the district court in
sentencing Ricks to a prison term. The district court did not abuse
its discretion in sentencing. Accordingly, we affirm.