2019 UT App 92

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

BRETT CLARK COCHRAN,

Appellant.

Amended Opinion1

No. 20170418-CA

Filed May 23, 2019

Third District Court, Salt Lake Department

The Honorable Royal I. Hansen

No. 121908371

Linda M. Jones, John J. Hurst, and Freyja R. Johnson, 

Attorneys for Appellant

Sean D. Reyes and Jeffrey D. Mann, Attorneys

for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which 

JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

HARRIS, Judge:

¶1 Brett Clark Cochran pled guilty to driving under the 

influence of alcohol (DUI), which in his case amounted to a 

third-degree felony because he had two other similar recent 

convictions. He was sentenced to a short jail term and three 

 

1. This Amended Opinion replaces the Opinion in Case No. 

20170418-CA that was issued on May 9, 2019. After our opinion 

issued, Cochran filed a petition for rehearing, and we called for a 

response. We grant the petition for the limited purpose of 

making certain deletions from our original opinion, which 

deletions do not alter our analysis or the outcome of the appeal. 
State v. Cochran

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years on probation. After completing his sentence, including 

compliance with the terms and conditions of probation, he asked 

the district court to reduce his conviction from a felony to a 

misdemeanor, pursuant to Utah Code section 76-3-402(2). The 

district court declined to do so, and Cochran now appeals that 

decision. We affirm.

BACKGROUND

¶2 On July 8, 2012, a police officer stopped Cochran for 

traffic violations, and soon learned that Cochran’s blood alcohol 

level was 0.181, over twice the then-effective legal limit. Cochran 

had been convicted of DUI on two other occasions within the 

previous three years, and Utah law treats the third DUI charge 

within any ten-year period as a third-degree felony, see Utah 

Code Ann. § 41-6a-503(2)(b) (LexisNexis 2018).2 The State 

charged Cochran with felony DUI, a charge to which he 

eventually pled guilty, and Cochran was sentenced to a 

suspended prison term, 62.5 days in jail, and a three-year term of 

probation.

¶3 During the term of Cochran’s probation, which he was 

allowed to complete from his home state of Montana, 

Cochran had two issues with compliance. The first issue 

occurred right at the beginning, when Cochran refused to sign 

the probation agreement. Following his refusal, the State filed a 

motion seeking an order commanding Cochran to appear and 

show cause why he should not be sanctioned for his 

noncompliance, but the district court declined to sign the State’s 

 

2. Because the statutory provisions in effect at the time of 

Cochran’s offense do not differ in any way material to our 

analysis from those now in effect, we cite to the current version 

of the Utah Code for convenience.
State v. Cochran

20170418-CA 3 2019 UT App 92

proposed order because Cochran had been incarcerated at the 

time of the event. The second issue occurred later in the 

probationary term, when Adult Probation and Parole (AP&P) 

alleged that Cochran had failed to undergo a substance abuse 

evaluation and complete treatment as directed. In connection 

with these allegations, AP&P reported that Cochran had a poor 

attitude, was “very difficult to work with,” and did not 

take his “probation seriously.” Ultimately, however, AP&P 

recommended that Cochran be granted an “alternative event”

for these violations and that he “be allowed to remain on 

probation.” Cochran eventually completed probation, including 

all recommended treatment, without any further mishaps, and 

the court—without objection from AP&P or the State—

terminated Cochran’s probation successfully in May 2016, and 

closed his case.

¶4 In December 2016, seven months after completing 

probation, Cochran filed a motion (402 Motion) asking the 

district court to reduce his conviction from a third-degree felony 

to a class A misdemeanor, pursuant to Utah Code section 76-3-

402(2). In support of the requested reduction, Cochran

claimed that his status as a convicted felon was “impeding 

his ability to engage in” his profession as an electrician because 

it was limiting “the number and type of jobs” for which he 

was eligible to apply. He also asserted that nothing in the 

nature of the offense should preclude a reduction in his case, 

and maintained that there was no evidence of “aggravating 

factors” such as an “aggravated blood alcohol level” or “any 

collision, injury, or restitution.” Furthermore, other than the 

two previous DUI offenses, there was “no indication of 

anything else on [Cochran’s] criminal history.” And finally, 

Cochran noted that he had completed probation successfully.

In sum, Cochran argued that the court should grant his 402 

Motion because a reduction would allow him to “resume the 

trajectory of his life,” and because “[i]t is in the interest[] of 
State v. Cochran

20170418-CA 4 2019 UT App 92

justice to reward a Defendant for his successful completion of 

probation.” The State, however, filed an objection to Cochran’s 

402 Motion, asking the district court to deny the motion based 

on “the nature of the offense, [Cochran’s] criminal history, and 

issues with [Cochran’s] compliance with the conditions of his 

probation.”

¶5 At the hearing on Cochran’s 402 Motion, the court stated 

that it had reviewed the motion and accompanying paperwork,

and asked if there was “anything else” that it “should know on 

behalf of the defendant.” The parties stipulated that the only 

crime Cochran had ever committed in Utah was the felony DUI

that is the subject of this case. Cochran’s counsel argued that a 

reduction was warranted in the interest of justice for the reasons 

articulated in the 402 Motion, specifically mentioning Cochran’s 

successful completion of probation and related treatment, as 

well as the employment limitations Cochran was experiencing 

based upon his status as a convicted felon. In response, the State

noted that Cochran’s argument about his employment 

limitations “sound[ed] reasonable,” that Cochran’s Utah DUI 

conviction would still be a lifetime enhanceable offense even if it 

were reduced to a misdemeanor, and told the court that it would 

“simply submit it.”

¶6 After listening to both sides, the court agreed that there 

were “lots of reasons” to grant Cochran’s motion. However, the 

court ultimately denied Cochran’s 402 Motion without prejudice

to it being refiled later. The court stated its reasoning as follows:

[W]hat I’d generally do, counsel, with felony DUIs 

is I have parties wait the 10-year period with 

successful completion and so I’m certainly willing 

to hear this again but I want to see that [Cochran] 

goes that period of time without picking up new 

charges. It sounds like he’s done some good things 

and that he’s gainfully employed. So I can see lots 
State v. Cochran

20170418-CA 5 2019 UT App 92

of reasons to grant that. But I find in the interest of 

justice and under these circumstances that we’re 

better served as a community to do that and so 

what I would do is deny the motion without 

prejudice with the understanding that at a point in 

time where we have a 10-year period without any 

new DUIs that have come up, then I [will be] 

inclined to hear that and, and proceed on that 

basis.

The court also explained that, because it had denied the 402 

Motion without prejudice, it anticipated that at “a point in time” 

when Cochran had completed “a 10-year period without any 

new DUIs” Cochran could bring a 402 Motion again. Following 

additional comments by Cochran’s counsel, the court reiterated 

its reasons for denying the motion, and noted that, although 

Cochran should be commended for his hard work, “at this 

juncture” “the danger to the community and the interest of 

justice outweigh[ed]” reducing the conviction.

ISSUE AND STANDARD OF REVIEW

¶7 Cochran appeals the district court’s denial of his 402 

Motion. Because sentencing “necessarily reflects the personal 

judgment of the court,” we “afford the [district] court wide 

latitude and discretion in sentencing.” State v. Boyd, 2001 UT 30, 

¶ 31, 25 P.3d 985 (quotations simplified). Accordingly, “[w]e 

review a [district] court’s denial of a motion to reduce the degree 

of a conviction for abuse of discretion.” State v. Salt, 2015 UT 

App 72, ¶ 9, 347 P.3d 414. Under this standard, we will affirm 

the court’s decision absent a showing that it “fail[ed] to consider 

all legally relevant factors,” or if “no reasonable person would 

take the view [it] adopted.” State v. Gomez, 2015 UT App 149, 

¶ 14, 353 P.3d 175 (quotations simplified).
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20170418-CA 6 2019 UT App 92

ANALYSIS

¶8 The applicable statutory language provides that, in cases 

in which a defendant is placed on probation, a district court 

“may[3] enter a judgment of conviction for the next lower degree 

of offense” if five conditions are met. See Utah Code Ann. § 76-3-

402(2) (LexisNexis 2017). Neither side in this case contests the 

existence of the first four conditions; instead, the dispute centers 

around the fifth one—whether “entering a judgment of 

conviction for the next lower degree of offense is in the interest 

of justice.” See id. § 76-3-402(2)(v).

¶9 Cochran contends that the district court abused its 

discretion in determining that it was not in the interest of 

justice for his conviction to be reduced to a misdemeanor. 

Specifically, Cochran asserts that the district court’s analysis 

was flawed because it applied its own “bright-line-rule” 

 

3. Although the parties did not raise this issue, we wonder 

whether a district court would be compelled to reduce a 

defendant’s sentence even if all five of the prerequisite 

conditions were met. The statute uses the term “may” rather 

than “shall,” and in another analogous context, we have held 

that “may” means “may,” and that even if all of a series of 

statutory prerequisites are met, a court still retains discretion to 

decline to make the change at issue. See Lay v. Lay, 2018 UT App 

137, ¶¶ 12–13, 427 P.3d 1221 (recognizing that in the Utah Code 

“[m]ay means that an action is authorized or permissive” and 

“shall” means “an action is required or mandatory,” and holding 

that, because the statute uses the permissive term “may,” a court 

is not required to adopt an “alternative” parent-time schedule 

even if all of the statutory conditions are met (quotations 

simplified)). However, we need not reach this issue in this case, 

because we conclude that the district court did not abuse its 

discretion in concluding that the fifth condition was not met.
State v. Cochran

20170418-CA 7 2019 UT App 92

rather than conducting a more general “interest-of-justice” 

analysis, which Cochran argues is required by the statutory 

language.4

¶10 As an initial matter, we do not share Cochran’s 

interpretation of the district court’s statements. Although the 

court expressed that its general practice in felony DUI cases was 

to wait until the defendant had gone ten years without 

committing another DUI before granting a 402 motion, we do 

not view the court’s statement as an ironclad vow that it would 

never vary that practice in an appropriate case. Indeed, 

immediately after noting its general practice, the court went on 

to explain that, “under these circumstances,” the community 

would be better served by denying the motion—in effect 

confirming that the court did consider more than just whether 

Cochran had gone ten years without any DUIs. In other similar

contexts, we have determined that it is not an abuse of discretion 

 

4. In his brief, Cochran urged this court to apply our supreme 

court’s “interest-of-justice” analysis from LeBeau v. State, 2014 UT 

39, 337 P.3d 254, to the circumstances of this case, and argued 

that the district court erred by not using the LeBeau analysis in 

deciding the 402 Motion. No Utah appellate court has yet 

required a LeBeau-style analysis in deciding a charge-reduction 

motion brought under Utah Code section 76-3-402. However, we 

need not decide here whether LeBeau’s analysis is required in 

this context, because at oral argument before this court, Cochran 

withdrew his argument that a district court’s failure to go 

through the LeBeau analysis is always erroneous. Instead, 

Cochran now maintains that a court may, but need not, consider 

LeBeau to the extent it may help inform the court’s analysis. In 

any event, Cochran no longer contends that it was necessarily an 

abuse of discretion for the court to have failed to apply LeBeau, 

and therefore we need not discuss the matter further.
State v. Cochran

20170418-CA 8 2019 UT App 92

for a court to decline to deviate from its “normal practice.” See 

State v. Sanchez, 2015 UT App 58, ¶ 11, 346 P.3d 701.

¶11 Furthermore, there is nothing in the record that would 

indicate that the district court failed or declined to fully consider 

all the relevant evidence in making its decision. For example, at 

the outset of the hearing, the court stated specifically that it had 

reviewed Cochran’s 402 Motion and inquired if there was 

“anything else [it] should know” in deciding the motion. By 

reviewing the written motion and the State’s objection, the court 

would have learned—if it did not know already—that Cochran’s 

three DUIs all took place in a relatively compact period of time 

(three years), and would have learned about Cochran’s two 

relatively minor issues with probation compliance. The district 

court had itself previously entered an order successfully 

terminating Cochran’s probation and closing the case, so the 

court was already aware that Cochran had successfully 

completed probation. At the hearing, the court specifically

commended Cochran for his recent progress and continued 

employment. The court listened to and considered counsel’s 

argument that Cochran’s felony conviction was hampering his 

employment opportunities. A court that considers all the 

circumstances before making a sentencing decision is usually 

found to have acted within its discretion. See, e.g., State v. Gomez, 

2015 UT App 149, ¶ 16, 353 P.3d 175 (holding that the court did 

not exceed its discretion in denying a 402(1) motion where “the 

record reflect[ed] that the court was aware of all the 

circumstances”).

¶12 In the end, Cochran has fallen short of demonstrating that 

“no reasonable person would take the view adopted by the 

[district] court.” See id. ¶ 14 (quotation simplified). Perhaps 

another judge might have granted Cochran’s 402 Motion, and 

perhaps it would have been completely within the court’s 

discretion to have done so here. But that does not make it an 

abuse of discretion for the court to deny the motion. Cf. Gunn 
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20170418-CA 9 2019 UT App 92

Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2015 

UT App 261, ¶¶ 21–24, 361 P.3d 703 (Orme, J., concurring) 

(upholding a district court’s change-of-venue decision, even 

though two of the reviewing judges would have made a 

different decision in the first instance, because the district court 

did not abuse its wide discretion in making its ruling). In this 

case, the court reviewed all the evidence presented, and 

considered all the circumstances of Cochran’s situation; after 

doing so, the court concluded that it was not in the interest of 

justice to grant Cochran’s 402 Motion, and stated reasonable

grounds for so ruling. Outside the unique context of LeBeau v. 

State, 2014 UT 39, 337 P.3d 254, see supra ¶ 9 n.3, nothing further 

is required of a court conducting an “interest-of-justice” analysis. 

In the end, we cannot conclude that the district court abused its 

discretion when it concluded that, despite the trouble Cochran’s 

status as a felon was causing him in the employment context,

“the danger to the community and the interests of justice 

outweigh[ed]” reducing Cochran’s conviction “at this juncture.”

See State v. Salt, 2015 UT App 72, ¶ 26, 347 P.3d 414 (holding that 

“[t]he [trial] court did not exceed its discretion when it 

determined that [the defendant’s] clean criminal history and 

potential job problems did not warrant . . . a reduction”); see also 

Sanchez, 2015 UT App 58, ¶¶ 6–7 (holding that the district court

did not abuse its discretion in denying defendant’s motion to 

reduce his conviction, even though defendant was “a hard 

worker” and the conviction “would subject him to deportation”).

¶13 Affirmed.