2017 UT App 50

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

ROBERT EARL CLINE,

Appellant.

Opinion

No. 20160181-CA

Filed March 23, 2017

Third District Court, Salt Lake Department

The Honorable Keith A. Kelly

No. 151906036

Brady Minow Smith, Attorney for Appellant

Simarjit S. Gill and Matthew J. Hansen, Attorneys

for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES

MICHELE M. CHRISTIANSEN and DAVID N. MORTENSEN concurred.

TOOMEY, Judge:

¶1 Robert Earl Cline appeals his sentence of 140 days in jail 

and 24 months of probation imposed after he pleaded guilty to 

attempted unlawful distribution of an intimate image, a class B 

misdemeanor. Cline argues the district court abused its 

discretion because it did not adequately consider several 

mitigating factors before imposing the sentence. Cline also seeks 

to withdraw his guilty plea without having moved to withdraw 

it before sentencing. We affirm.

¶2 In March 2015, while on probation, Cline sent his mother 

nude photographs of his ex-wife in an attempt to persuade her

that his ex-wife was “the one with the problem, not [him].” Cline 

also sent the images to his ex-wife’s mother. The State charged 
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20160181-CA 2 2017 UT App 50

Cline with the unlawful distribution of an intimate image, a class 

A misdemeanor. In November 2015, Cline pleaded guilty to the 

lesser charge of attempted unlawful distribution of an intimate 

image, a class B misdemeanor. He was represented by counsel 

when he entered his plea, and Cline, his attorney, and the judge 

signed the plea affidavit. Cline indicated that he understood the 

consequences of entering a guilty plea and that he knowingly 

and voluntarily pleaded guilty. During his sentencing hearing, 

Cline again admitted to attempting to unlawfully distribute an 

intimate image. 

¶3 After the State charged Cline with the unlawful

distribution of an intimate image in March 2015 and before his 

sentencing hearing in February 2016, Cline committed and 

pleaded guilty to two additional charges: criminal trespass and 

stalking.1 These charges stemmed from acts perpetrated against 

one of Cline’s former neighbors, and Cline had “gone so far as to 

adopt her last name in an attempt to usurp her ex-husband’s 

position in the home.” 

¶4 The district court considered the following aggravating 

factors before imposing sentence: Cline’s criminal history, 

including violations he committed while on probation; Cline’s 

history of ignoring court orders; a statement from Cline’s 

stalking victim that she lived in “constant fear” and “keep*s+ 

mace by the door” for protection; the occurrence of the stalking 

incident just three days after Cline had been released to pretrial 

services; and evidence suggesting Cline had a substance abuse

problem. The court also considered mitigating factors, including

defense counsel’s recommendation of mental health treatment; 

the fact that Cline’s criminal history involves misdemeanors, not 

felonies; Cline’s ability to visit his children; and Cline’s 

 

1. Cline appealed his sentences from the criminal trespass and 

stalking charges. The cases were consolidated and are being 

considered in a separate appeal. See State v. Cline, 2017 UT App 

49.
State v. Cline

20160181-CA 3 2017 UT App 50

statements that he had previously passed drug tests and had a 

job waiting for him in the oil fields.

¶5 After considering both mitigating and aggravating 

factors, the district court imposed a sentence of 180 days in jail 

and 24 months of probation, with the possibility of early release 

for completing a drug program. Later, because Cline was unable 

to participate in that particular program, the court reduced 

Cline’s jail time to 140 days. 

¶6 Cline argues the district court abused its discretion 

because it did not adequately consider “his character, attitude, 

and rehabilitative needs” when it imposed his sentence. We 

review a district court’s sentencing decision for abuse of 

discretion. State v. Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d 

1167.

¶7 In general, “a trial court’s sentencing decision 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.” State v. Killpack, 2008 UT 49, ¶ 59, 191 P.3d 

17 (citation and internal quotation marks omitted). When 

making sentencing decisions, courts weigh and consider the 

following factors: public safety, punishment, deterrence, 

incapacitation, restitution, and rehabilitation. See State v. Nuttall, 

861 P.2d 454, 458 (Utah Ct. App. 1993); State v. Rhodes, 818 P.2d 

1048, 1051 (Utah Ct. App. 1991). “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.” Killpack, 2008 UT 49, ¶ 59

(alteration in orginal) (citation and internal quotation marks 

omitted). In addition, a sentencing court is empowered to place a 

defendant on probation if it will “best serve the ends of justice 

and is compatible with the public interest.” Rhodes, 818 P.2d at 

1051. This is because “[t]he granting or withholding of probation 

involves considering intangibles of character, personality and 
State v. Cline

20160181-CA 4 2017 UT App 50

attitude, of which the cold record gives little inkling.” State v. 

Sibert, 310 P.2d 388, 393 (Utah 1957).

¶8 Cline argues the district court did not “adequately 

consider his character, attitude, and rehabilitative needs.” It is 

not apparent whether Cline argues the district court failed to 

consider these factors or that it improperly weighed the 

aggravating and mitigating factors. We address each potential 

claim.

¶9 To the extent Cline argues the court did not consider these 

factors, this is inaccurate. During the sentencing hearing, Cline’s 

counsel discussed his client’s rehabilitative needs. Further, the 

court had observed and knew of Cline’s poor attitude and lack of 

respect for the law and the court. For example, Cline talked over 

the sentencing judge several times during the sentencing 

hearing; in an earlier hearing, Cline continued to look at the 

audience despite the court’s admonition not to; and Cline was 

once dismissed from pretrial services for being “uncooperative, 

inappropriate, and aggressive.” Finally, the court had a 

legitimate concern that Cline posed a threat to public safety and 

the public interest and that he would once again violate 

probation and defy the court’s orders.

¶10 If Cline’s argument is that the district court improperly 

weighed the aggravating and mitigating factors, he has not 

shown how the district court’s actions “were so inherently unfair 

as to constitute an abuse of discretion.” See Killpack, 2008 UT 49, 

¶ 59 (citation and internal quotation marks omitted). In essence, 

his argument appears to be a disagreement with the court’s 

balancing efforts. Although the court gave more weight to the 

aggravating factors presented during the sentencing hearing, it 

was not an abuse of discretion to do so because “[o]ne factor in 

mitigation or aggravation may weigh more than several factors 

on the opposite scale.” See id. ¶ 59 (alteration in original) 

(citation and internal quotation marks omitted).
State v. Cline

20160181-CA 5 2017 UT App 50

¶11 Thus, the court acted well within its discretion and “there 

*was+ ample factual substance in the record to support” its 

sentencing decision. See Rhodes, 818 P.2d at 1051. Because the 

court adequately considered all the relevant factors, the sentence 

imposed was not an abuse of discretion, and we affirm it.

¶12 Cline also seeks to withdraw his guilty plea for attempted 

unlawful distribution of an intimate image. A defendant may 

withdraw his guilty plea “only upon leave of the court and a 

showing that it was not knowingly and voluntarily made.” Utah 

Code Ann. § 77-13-6(2)(a) (LexisNexis 2012). The defendant must 

move to withdraw the plea “before sentence is announced.” Id.

§ 77-13-6(2)(b). Further, “*a+ny challenge to a guilty plea not 

made within the time specified in Subsection (2)(b) shall be 

pursued under Title 78B, Chapter 9, Postconviction Remedies 

Act, and Rule 65C, Utah Rules of Civil Procedure.” Id. § 77-13-

6(2)(c); see also Gailey v. State, 2016 UT 35, ¶ 20, 379 P.3d 1278 

(“We therefore reaffirm our prior caselaw holding that after 

sentencing is entered, a defendant may not file a motion to 

withdraw a guilty plea or directly appeal the plea . . . .”). “[I]t is 

well-established that if a defendant fails to file a timely motion to 

withdraw his guilty plea, the appellate court lacks jurisdiction to 

consider any claim except a challenge to the sentence.” State v. 

Smith, 2011 UT App 336, ¶ 4, 263 P.3d 1219 (per curiam).

¶13 There is no evidence in the record that Cline moved or 

attempted to move to withdraw his guilty plea before the 

sentence was imposed. Cline’s only argument is that, contrary to 

being fully informed of his rights and signing the plea form, his

plea was not made knowingly and voluntarily. Because Cline 

did not timely move to withdraw his plea, and does not allege 

that he was unaware of the time limit, we lack jurisdiction to 

consider this request and do not reach the merits of his claim.

¶14 Affirmed.