2016 UT App 238

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

NATHAN SEXTON,

Appellant.

Memorandum Decision

No. 20151069-CA

Filed December 8, 2016

Second District Court, Ogden Department

The Honorable Joseph Bean

No. 151902086

Samuel P. Newton, Attorney for Appellant

Christopher F. Allred and Thomas A. Pedersen, 

Attorneys for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in 

which JUDGES J. FREDERIC VOROS JR. and KATE A. TOOMEY

concurred.

ROTH, Judge:

¶1 Nathan Sexton appeals his sentences for possession of a 

controlled substance and possession of drug paraphernalia, both 

class B misdemeanors. Sexton contends that the district court 

abused its discretion when it ordered that his sentences be 

served consecutively to the prison sentence he was already 

serving. We affirm.
State v. Sexton

20151069-CA 2 2016 UT App 238

¶2 In May 2015, while on probation1 and in treatment for 

drug addiction at the Northern Utah Community Correctional 

Center (NUCCC), Sexton was caught with “spice,” a controlled 

substance, in his room. Based on this incident, Sexton’s 

probation was revoked, and he was apparently sent to prison. 

Sexton was also charged with, and pled guilty to, class B 

misdemeanor possession of a controlled substance inside a 

correctional facility and possession of drug paraphernalia. 

Sexton waived the waiting time for sentencing, and the court

sentenced him immediately.

 

1. There was some initial disagreement at the sentencing hearing 

regarding whether Sexton was on probation at the time of this 

incident or whether he was on parole. The prosecutor initially 

represented that Sexton was on parole and raised the statutory 

presumption that sentences be imposed consecutively if a 

criminal offense is committed while the defendant is on parole. 

See Utah Code Ann. § 76-3-401(3) (LexisNexis 2012) (providing 

that if “the latter offense is committed while the defendant is . . . 

on parole,” then “[t]he court shall order that sentences for [the] 

offenses run consecutively”). But Sexton immediately objected 

and stated that at the time of the incident he had not yet been to 

prison. Instead, he said that he was “on probation to go to 

NUCCC” and that he “hadn’t been to prison yet.” His statement 

was corroborated at the hearing by an “unidentified speaker,” 

who said that Sexton was indeed “on probation.” The court 

appears to have accepted that Sexton was on probation rather 

than on parole at the time of the offenses at issue in this case,

and it analyzed the basis for the consecutive sentences

accordingly and without reference to the presumption for 

offenses committed while on parole. While it is unclear why 

Sexton was in prison at the time of sentencing, for purposes of 

our decision we accept that Sexton was on probation when the 

offenses occurred, not parole.
State v. Sexton

20151069-CA 3 2016 UT App 238

¶3 During sentencing, Sexton requested that the sentences 

for the two counts of possession run concurrently—both with

each other and with the prison sentence he was then serving—

and that the court allow him to serve the misdemeanor sentences 

at the prison. Sexton argued that concurrent sentencing was 

appropriate because the original charges that led to both his 

probation in NUCCC and his current prison term were from 

December 2013. He stated that he had “been going through all 

this for quite a while now” and had “already done almost four 

months [in prison]” because of this incident and that he 

“need[ed] to get out [of prison] and get a job and progress [in 

his] life.”

¶4 The State requested that the court run the sentences 

consecutively, both to each other and to Sexton’s current prison 

sentence. The prosecutor pointed out that, at the time of the 

conduct underlying the charges, Sexton was in treatment at 

NUCCC and emphasized that there was a “problem . . . in 

NUCCC with drugs” and that it was “appropriate to send a 

message that we’re going to run those [sentences] consecutive 

when somebody possesses a controlled substance while in 

NUCCC.” The court was also informed that at the time of the 

possession charges, Sexton was in “his fourth attempt 

at . . . trying to complete [treatment at] NUCCC,” that he had 

“struggled . . . all four times,” and that inmates bringing drugs 

into the facility was detrimental to the progress of the “other 

people [in NUCCC] who are trying to be successful and 

complete their probation.”

¶5 The court sentenced Sexton to 180 days on each 

possession charge and ordered that the sentences be served 

concurrently with each other but consecutively to Sexton’s 

existing prison sentence. The court allowed Sexton to serve the 

additional time in prison rather than at the Weber County Jail 

but declined to allow credit for the four months that Sexton had 

served in prison since his probation violation, reasoning that it 
State v. Sexton

20151069-CA 4 2016 UT App 238

was not appropriate to “give . . . credit for time that [Sexton had] 

served in violation of some other sentencing order.”

¶6 The court explained the basis of its sentencing decision to 

Sexton, stating that “there’s some frustration . . . among [Adult 

Probation and Parole] and a lot of the people working with you 

that you’ve had a lot of opportunities given to you.” The court 

stated that it understood that “addiction is tough” and “a very 

difficult thing,” but added,

You[’ve] got to make some wise choices when 

you’re out on the street. Most people when they 

are standing where you’re standing, they really are 

determined to stay clean, and I’m sure you’re 

feeling the same. And it’s tough when people have 

it all around you. You’ve got to figure out some 

tools to be able to resist that and make better 

choices.

I think everybody wants to see you be successful, 

but you’re the one that’s got to make those choices 

when the chips are [down], when it’s tough. I’ve 

given you kind of a middle-of-the-road sentence 

instead of going as harsh as the State wants. I 

haven’t gone quite that harsh, but I haven’t been as 

lenient either as [defense counsel] or you would 

like me to be, but it is to send you a message that 

we’ve got to try and clean it up. It’s got to start 

somewhere. And I’m not saying it’s starting with 

you, but you’re one of those that we’re going to get 

relatively tough on if you’re taking [drugs] into 

NUCCC.

¶7 Sexton appeals the district court’s decision to impose his 

misdemeanor sentences consecutively to the prison term that he 

was already serving.
State v. Sexton

20151069-CA 5 2016 UT App 238

¶8 A district court has statutory authority to impose 

consecutive sentences. Utah Code Ann. § 76-3-401 (LexisNexis 

2012). “When sentencing a defendant who is already serving a 

prison sentence for a prior felony offense, the district court must 

determine ‘if the sentences before the court are to run 

concurrently or consecutively with any other sentences the 

defendant is already serving.’” State v. McDaniel, 2015 UT App 

135, ¶ 5, 351 P.3d 849 (quoting Utah Code Ann. § 76-3-401(1)(b)). 

In making this determination, the court “shall consider the 

gravity and circumstances of the offenses, the number of victims, 

and the history, character, and rehabilitative needs of the 

defendant.” Utah Code Ann. § 76-3-401(2).

¶9 Sexton contends that the district court abused its 

discretion by ordering his sentences to be served consecutively 

to his existing prison sentence. In particular, he claims that the 

court failed to properly consider the statutory factors of the 

gravity and circumstances of the offense, the lack of a victim, 

and his rehabilitative needs. Regarding the gravity and 

circumstances of the offense, Sexton contends that the offense 

was “relatively minor” because possession of spice is classified 

as a class A misdemeanor, not a felony like “other major drugs.” 

And according to Sexton, “no one was victimized by the 

offense.” In terms of his rehabilitative needs, he argues that 

while acknowledging that “addiction is tough,” the court 

nonetheless “failed to appreciate that most offenders will relapse 

and will relapse on multiple occasions during their struggle with 

addiction.” Citing scientific literature and research regarding the 

physiological effects of drug addiction and the realities of 

relapse during the course of treatment and recovery, Sexton 

contends that the court “failed to treat [his] behavior 

as . . . symptoms of his disease.” Instead, he alleges, the court 

harshly sentenced him because it fundamentally misunderstood 

the nature of addiction and mistakenly perceived that Sexton 

could overcome his drug addiction merely by choosing to do so.
State v. Sexton

20151069-CA 6 2016 UT App 238

¶10 A sentencing court has wide discretion in sentencing 

defendants “because [a sentence] necessarily reflects the 

personal judgment of the court.” State v. Woodland, 945 P.2d 665, 

671 (Utah 1997) (citation and internal quotation marks omitted). 

While failure to consider “all legally relevant [sentencing] 

factors” is an abuse of discretion, State v. Helms, 2002 UT 12, ¶ 8, 

40 P.3d 626 (citation and internal quotation marks omitted), a 

sentencing court is not required to weigh all the factors equally, 

State v. Ashcraft, 2014 UT App 253, ¶ 5, 338 P.3d 247 (citing State 

v. Killpack, 2008 UT 49, ¶ 59, 191 P.3d 17). And we will not 

disturb consecutive sentences simply because the court might 

have “assessed the relevant factors differently” than the 

defendant. State v. Epling, 2011 UT App 229, ¶ 22, 262 P.3d 440.

¶11 To prevail on appeal, the defendant must “demonstrate 

that the district court did not properly consider all the factors,” 

McDaniel, 2015 UT App 135, ¶ 5. A defendant “cannot meet this 

burden by merely pointing to . . . the existence of mitigating 

circumstances.” State v. Bunker, 2015 UT App 255, ¶ 3, 361 P.3d 

155. Rather, we will uphold the district court’s decision if, based 

on the record, it is reasonable to assume that the court did 

properly consider the factors. See Helms, 2002 UT 12, ¶ 11. 

Ultimately, “[a]n appellant can show an abuse of discretion in 

the district court’s weighing of the relevant factors only by 

demonstrating that no reasonable person would take the view 

taken by the sentencing court.” McDaniel, 2015 UT App 135, ¶ 10 

(citation and internal quotation marks omitted).

¶12 We are not persuaded that the sentencing court failed to 

properly consider the relevant factors. Rather, we conclude that 

Sexton’s argument “comes down to a disagreement with the 

[sentencing] court’s weighing of the relevant sentencing factors,” 

see Bunker, 2015 UT App 255, ¶ 5, and fails to demonstrate any 

abuse of the court’s broad discretion in this area.

¶13 To begin with, Sexton attempts to downplay the 

seriousness of his offenses by characterizing them as minor and 
State v. Sexton

20151069-CA 7 2016 UT App 238

victimless. However, the court took a broader view of the 

circumstances. In particular, the district court expressed its 

concern that Sexton had been given “a lot of opportunities” with

“a lot of people” to succeed with his recovery—the violation 

marked Sexton’s fourth unsuccessful attempt at completing the 

addiction treatment program at NUCCC. And the court was 

especially concerned that Sexton had brought the drugs into 

NUCCC, where the presence and availability of drugs 

detrimentally affects other residents’ ability to successfully 

complete the program. Indeed, the court explained that, because 

Sexton brought the drugs into NUCCC, it was going to be 

“relatively tough on” him to reflect the seriousness of the 

offense, which given the context went beyond simple possession. 

And the court noted that it was imposing a “middle-of-the-road” 

sentence as a consequence for his behavior, recognizing that,

although “addiction is tough,” Sexton would need to “make 

better choices” and “try and clean it up” if he was ever going to 

succeed in recovery. Even though Sexton has a different view

from the court of the interrelationship between what he 

characterizes as no more than a relapse and the severity of its 

consequences, the fact that the sentencing court viewed the 

circumstances differently than Sexton is not a basis for 

overturning his sentence. See Epling, 2011 UT App 229, ¶ 22.

¶14 Regarding the rehabilitative needs factor, Sexton points to 

scientific literature and research concerning the realities of 

addiction, particularly the frequency—even inevitability—of 

relapse during the course of treatment and recovery. Sexton 

contends that the court abused its discretion by not weighing his 

rehabilitative needs more heavily in the calculus of its sentencing 

decision. However, none of the literature presented on appeal 

was presented to the court below. See State v. Do, 2015 UT App 

147, ¶¶ 9–10, 353 P.3d 172 (suggesting that the reviewing court 

was not required to take notice of the articles presented by the 

appellant to establish “the likelihood of relapse among drug 

addicts” where the appellant “did not present these articles to 
State v. Sexton

20151069-CA 8 2016 UT App 238

the district court at sentencing”); State v. Vazquez, 2014 UT App 

159, ¶ 5, 330 P.3d 760 (per curiam) (explaining that the appellant 

had not preserved his argument that the district court did not 

“fully consider ‘the realities of drug addiction’” where the 

appellant did not argue to the district court that “his relapse was 

not willful, essentially because he is addicted to drugs and 

relapses are common among addicts, even those who have 

successfully completed treatment”).

¶15 Moreover, even assuming the literature is properly before 

us, Sexton has not shown how the isolated quotes that he 

provides about the difficulties inherent in recovery from 

addiction somehow establish that, in light of the realities of the 

disease, it is per se improper under our sentencing guidelines for 

a court to impose certain consequences, such as consecutive 

terms of imprisonment. While we acknowledge the 

uncontroversial notion that recovery from drug addiction 

presents a serious challenge and is often punctuated by periods 

of relapse, that alone does not suggest, much less require, that 

serious consequences for possession of drugs—especially in a 

treatment facility—are inappropriate. Our legislature has not 

only criminalized possession of substances such as “spice,” see

e.g., Utah Code Ann. § 58-37-2(1)(f) (LexisNexis Supp. 2016)

(defining “controlled substance” for purposes of the Utah 

Controlled Substances Act), it has also authorized courts to 

sentence a defendant more harshly if the person is convicted of 

possession “while inside the exterior boundaries of property 

occupied by any correctional facility,” such as NUCCC, see 

id. § 58-37-8(2)(e); see also id. § 64-13-1(3) (LexisNexis Supp. 2016)

(defining “correctional facility” as “any facility operated to 

house offenders, either in a secure or nonsecure setting”).

¶16 Our district courts are also authorized to sentence 

consecutively so long as they consider the requisite factors, and 

there is no drug addiction exception, though certainly 

rehabilitative need related to drug addiction is a factor that can 
State v. Sexton

20151069-CA 9 2016 UT App 238

be taken into account like many others. See id. § 76-3-401(2)

(LexisNexis 2012). We have consistently held that a sentencing 

court, while it must consider the bundle of circumstances 

outlined in the consecutive sentencing factors as a whole, has

considerable discretion as to the weight given to each. See e.g.,

State v. Killpack, 2008 UT 49, ¶¶ 58–59, 191 P.3d 17 (noting that 

district courts are given “wide latitude and discretion in 

sentencing” in recognition of the fact that “they are best situated 

to weigh the many intangibles of character, personality, and 

attitude,” and that “[a]lthough courts must consider all legally 

relevant factors in making a sentencing decision, not all . . . 

factors are equally important” in every case (citations and 

internal quotation marks omitted)); State v. Youngblood, 2013 UT 

App 242, ¶ 4, 314 P.3d 1031 (per curiam) (affirming the 

imposition of consecutive sentences where the district court 

“found that consecutive prison sentences were merited” based 

“upon its review of the totality of the circumstances”). See 

generally Utah Code Ann. § 76-3-401(3) (providing the list of 

several factors that a court must consider in deciding whether to 

impose concurrent or consecutive sentences).

¶17 And here the court was not required to weigh Sexton’s 

rehabilitative needs more heavily than the other circumstances 

surrounding his offenses. See State v. Bunker, 2015 UT App 255, 

¶ 5, 361 P.3d 155 (rejecting the appellant’s contention that the 

sentencing court had abused its discretion where the court had 

considered all the legally relevant factors and the appellant’s 

“argument [came] down to a disagreement with the [sentencing] 

court’s weighing of the relevant sentencing factors”). As 

discussed above, the court clearly considered Sexton’s 

rehabilitative needs in making its decision. The court 

acknowledged that it understood the difficulties of addiction 

recovery, that it wanted Sexton to be able to “figure out some

tools to . . . make better choices,” and that “everybody wants to 

see [Sexton] be successful” in his recovery. Those concerns 

notwithstanding, it was not an abuse of discretion for the court 
State v. Sexton

20151069-CA 10 2016 UT App 238

to weigh other circumstances more heavily—namely, Sexton’s 

repeated failure to make progress toward his recovery despite 

being given “a lot of opportunities” with “a lot of people 

working with [him]” to do so and the fact that he had been 

caught with the drugs inside of the treatment facility where they 

could have been accessible not only to Sexton but to others 

attempting to complete recovery. See State v. Ashcraft, 2014 UT 

App 253, ¶ 5, 338 P.3d 247 (“Although courts must consider all 

legally relevant factors in making a sentencing decision, not all 

aggravating and mitigating factors are equally important, and 

[o]ne factor in mitigation or aggravation may weigh more than 

several factors on the opposite scale.” (alteration in original) 

(citation and internal quotation marks omitted)).

¶18 Thus, contrary to Sexton’s arguments on appeal, the court 

fully considered the gravity and circumstances surrounding 

Sexton’s offenses, the number of victims, and his rehabilitative 

needs. And given the court’s reasoning based on the 

circumstances before it, Sexton has not persuaded us “that no 

reasonable [person] would take the view adopted by the 

[sentencing] court.” See Bunker, 2015 UT App 255, ¶ 5 (first 

alteration in original) (citation and internal quotation marks 

omitted).

¶19 Finally, to the extent Sexton challenges the court’s 

decision to deny credit for time served in prison since the date of 

the offenses involved in this case, we cannot fault the court’s 

reasoning that it was inappropriate to give Sexton credit for time 

he was already serving as a result of violating probation in 

another case. That decision was well within the court’s broad 

discretion.

¶20 Accordingly, we affirm the district court’s decision to 

require Sexton to serve the sentences for his misdemeanor 

convictions consecutively to the prison sentence he was already 

serving.