State v. Moosman

2017 UT App 11

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
LANDIN DEE MOOSMAN,
Appellant.

Memorandum Decision
No. 20150588-CA
Filed January 12, 2017

Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 151400319

Joanna E. Landau and Daniel M. Torrence, Attorneys
for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee

JUDGE JILL M. POHLMAN authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and STEPHEN L. ROTH
concurred.

POHLMAN, Judge:

¶1 Landin Dee Moosman pleaded guilty to violating a
protective order, resulting in his third conviction for that offense.
While Moosman requested “another chance to go back on
probation,” the district court imposed a term of imprisonment
and revoked Moosman’s probation for his prior offenses.
Moosman appeals, asserting that the district court’s sentencing
decision was inherently unfair and based on irrelevant and
unreliable information. We affirm.

¶2 In 2013 a woman (Mother) obtained a protective order
against Moosman, with whom she shares a child. The protective
State v. Moosman

order contained a condition, to which Moosman and Mother
stipulated, that they would not communicate except for text
messages regarding their child. Moosman violated that
provision several times by sending text messages to Mother
about subjects other than their child. In 2014 Moosman twice
pleaded guilty to violating a protective order, both third degree
felonies. The two resulting sentences were suspended in favor of
probation. In 2015, while on probation for those offenses,
Moosman again sent text messages to Mother regarding subjects
other than their child. Moosman subsequently pleaded guilty to
violating a protective order, again a third degree felony.

¶3 At sentencing the district court revoked Moosman’s
probation for his two prior offenses and imposed both
previously suspended sentences, which were for indeterminate
prison terms not to exceed five years. For the latest offense,
Moosman was likewise sentenced to prison for an indeterminate
term not to exceed five years. All three sentences were to run
concurrently. On appeal, Moosman asserts that the district court
abused its discretion by imposing “a prison sentence over
probation.”1

¶4 “We have traditionally afforded trial courts wide latitude
and discretion in sentencing, recognizing that they are best
situated to weigh the many intangibles of character, personality
and attitude, of which the cold record gives little inkling.” State
v. Killpack, 2008 UT 49, ¶ 58, 191 P.3d 17 (citations and internal

1. Moosman does not distinguish between the district court’s
imposition of a prison term for the latest offense, and the court’s
revocation of probation and imposition of the previously
suspended sentences. We need not address those differences in
posture because Moosman’s arguments otherwise fail on appeal.
Thus, we follow Moosman’s lead and treat all three sentences
similarly.

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State v. Moosman

quotation marks omitted). A trial court’s sentencing decision
generally “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.” Id. ¶ 59 (citation and
internal quotation marks omitted).

¶5 Moosman first challenges the district court’s sentencing
decision as inherently unfair and disproportionate to the
allegedly “benign” conduct that gave rise to his three
convictions. The offenses involved what Moosman deems
relatively minor infractions. The latest violation was perhaps the
most innocuous, and Moosman asserts he should have again
been placed on probation. Moosman also points to other
considerations that were before the district court and allegedly
weighed in favor of probation.

¶6 At sentencing the district court expressed concern over
the difficulty of the situation, in which there was “no [really]
good answer for anyone.” While Moosman presented the court
with an explanation to downplay each violation—asserting that
it “was a mistake” or that it “wasn’t a threat”—Moosman’s
repeated violations of the protective order had put him before
the court “time and time and time again.” Thus, following the
recommendation of Adult Probation and Parole (AP&P) as
provided in its presentence report, the court imposed a term of
imprisonment.

¶7 “A defendant is not entitled to probation, but rather the
trial court is empowered to place the defendant on probation if it
thinks that will best serve the ends of justice and is compatible
with the public interest.” State v. Valdovinos, 2003 UT App 432,
¶ 23, 82 P.3d 1167 (brackets, citation, and internal quotation
marks omitted). Although the district court could have taken a
different approach and again placed Moosman on probation, the
court’s sentencing decision was neither inherently unfair nor

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State v. Moosman

disproportionate to the underlying conduct and thus did not
constitute an abuse of discretion. Cf. State v. Wimberly, 2013 UT
App 160, ¶¶ 20–22, 305 P.3d 1072 (concluding that the district
court acted within its broad discretion in sentencing the
defendant to prison rather than suspending the sentence and
placing him on probation).

¶8 Moosman also asserts that the district court abused its
discretion by relying on irrelevant and unreliable information.
During sentencing the court referred to a “dynamic[,] . . . pretty
well known in the literature and in experience,” which suggests
that Moosman is “indeed a danger to” Mother. The court stated,
without further elaboration, that “there is a great deal of
literature about the simple fact of not letting go, [and] continued
efforts at control, however innocuous [that] may seem,” it is
nonetheless “dangerous.”

¶9 “The due process clause of Article 1, Section 7 of the Utah
Constitution, 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).
“When there is evidence in the record showing a sentencing
judge’s reliance on specific information, we will not consider it
improper for a judge to rely on such information if the evidence
in question had indicia of reliability and was relevant in
sentencing.” State v. Moa, 2012 UT 28, ¶ 36, 282 P.3d 985 (citation
and internal quotation marks omitted). It is the defendant’s
burden to “demonstrate that the information [relied upon] was
unreliable or irrelevant.” Id.

¶10 In context, the district court’s statement was that a
defendant’s ongoing attempts to control a former intimate
partner are indicative that the defendant remains a danger to
her. While Moosman assails the district court’s reference to
“literature” and “experience,” he does not assert that the
principle referenced by the district court was generally

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State v. Moosman

unreliable. We therefore do not conclude that it was. See id.
(placing on the defendant the burden of showing unreliability).

¶11 Moosman does claim that, as applied to him, the principle
relied on by the district court was irrelevant and unreliable
because he was not dangerous. In support, Moosman reiterates
the arguments he made with regard to the asserted unfairness of
the district court’s sentencing decision—that, for example, his
offenses involved nonviolent, nonthreatening, and relatively
benign conduct. But the premise of the district court’s reasoning
was that interactions with and attempts to control a former
intimate partner may appear benign and yet still indicate an
ongoing threat. Moosman has not presented any argument in
response to that principle.

¶12 Given Moosman’s repeated violations of the protective
order and AP&P’s recommendation of imprisonment, we cannot
conclude that “no reasonable person would take the view
adopted by the trial court,” which was that, under the
circumstances, imprisonment rather than probation was the
appropriate sentence. See State v. Valdovinos, 2003 UT App 432,
¶ 14, 82 P.3d 1167 (brackets, citation, and internal quotation
marks omitted). For these reasons, the judgment of the district
court is affirmed.

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