IN THE UTAH COURT OF APPEALS

‐‐‐‐ ooOoo

‐‐‐‐

State of Utah,

Plaintiff and Appellee,

v.

David W. Ward,

Defendant and Appellant. )

)

)

)

)

)

)

)

) PER CURIAM DECISION

Case No. 20120165

‐ CA

F I L E D

(December 13, 2012)

2012 UT App 346

‐‐‐‐‐

Fourth District, Heber Department, 111500136

The Honorable Derek P. Pullan

Attorneys: J. Edward Jones, Heber City, for Appellant

Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

‐‐‐‐‐

Before Judges Thorne, McHugh, and Roth.

¶1 Defendant David W. Ward was convicted of aggravated assault, a third degree

felony, following his guilty plea. He appeals his sentence, claiming the district court

abused its discretion by sentencing him to the statutory prison term of zero to five

years, rather than granting probation. We affirm.

¶2 Ward argues that the district court failed to properly consider aggravating and

mitigating circumstances. Ward adequately preserved the issues that he raises in this

appeal at the time of sentencing. We review the trial court’s sentencing decision for

abuse of discretion. See State v. Valdivinos

, 2003 UT App 432, ¶ 14, 82 P.3d 1167. “An

abuse of discretion results when the judge fails to consider all legally relevant factors or

if the sentence imposed is clearly excessive.” Id. (citations and internal quotation marks

omitted). “A defendant is not entitled to probation,” and “[t]he granting or withholdingof probation involves considering intangibles of character, personality and attitude, of

which the cold record gives little inkling.” See id

. ¶ 23. Only when the actions of the trial

judge are “so inherently unfair as to constitute an abuse of discretion” will an appellate

court overturn the trial court’s sentence. Id

.

¶3 The district court’s written sentencing order and oral ruling demonstrate its

careful consideration of aggravating and mitigating factors. The district court found

that the mitigating factors were that Ward was only twenty

‐ seven

‐ years old and he was

suffering from mental illness that was untreated at the time of the offense and up to the

time of his incarceration. As aggravating factors, the court found that Ward did not

appear to the district court to have taken responsibility for the harm he admittedly

caused, and he had a criminal history of similar offenses, i.e., unlawful restraint and

assault, although the prior offenses were misdemeanors. The court also found that

Ward had choked the victim to the point of unconsciousness and, as a person trained in

martial arts, he knew he had “the physical ability and training to cause serious injury to

others.” The district court ultimately found that “[w]ithout medication for his illness,

[Ward] is dangerous” and “[t]he Court has no guarantee that [Ward] will remain

medication compliant if placed on probation.” Finally, the district court recommended

that the Board of Pardons consider the presentence report and the competency

evaluations conducted in connection with this case and that Ward be granted mental

health treatment and access to medications.

¶4 The record demonstrates that the district court appropriately considered the

aggravating and mitigating factors in this case. Ward’s argument that the district court

discounted or failed to appropriately consider his mental illness is without merit.

Significantly, the sentencing order specifically states that, although Ward was found

competent to proceed, the “evaluations demonstrate a significant bi

‐ polar disorder

which was not treated until [Ward’s] incarceration in this case.” Ward’s disagreement

with the district court’s assessment of the factors does not demonstrate that the district

court did not consider all relevant factors in sentencing Ward to the statutory term

rather than to probation. See State v. Helms

, 2002 UT 12, ¶ 14, 40 P.3d 626.

¶5 Ward’s reliance on State v. Galli

, 967 P.2d 930 (Utah 1998), is misplaced. ‘This

court has repeatedly rejected the application of the Galli factors outside of cases

involving consecutive sentences.” State v. Moreau

, 2011 UT App 109, ¶ 8, 255 P.3d 689

20120165

‐ CA 2(mem.). This case does not involve consecutive sentencing and Galli is therefore

inapplicable.

¶6 Because we conclude that the district court considered all relevant factors and

that the sentence imposed was not clearly excessive, the district court did not abuse its

discretion in sentencing. Accordingly, we affirm.

____________________________________ William A. Thorne Jr., Judge

____________________________________ Carolyn B. McHugh, Judge

____________________________________ Stephen L. Roth, Judge

20120165

‐ CA 3