2016 UT App 74

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

JERRY R. VALDEZ,

Appellant.

Per Curiam Decision

No. 20150402-CA

Filed April 14, 2016

Second District Court, Ogden Department

The Honorable Ernie W. Jones

No. 141902131

Samuel P. Newton , Attorney for Appellant

Sean D. Reyes and Laura B. Dupaix, Attorneys

for Appellee

Before JUDGES GREGORY K. ORME, MICHELE M. CHRISTIANSEN, and 

KATE A. TOOMEY.

PER CURIAM:

¶1 Jerry R. Valdez appeals from his sentences after pleading 

guilty to one count of failure to register as a sex offender and 

two counts of attempted unlawful sexual activity with a minor.

Valdez asserts that the district court erred in imposing 

consecutive sentences

¶2 We review the sentencing decision of the district court, 

including the decision to grant or deny probation, for an abuse 

of discretion. See State v. Valdovinos, 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. (citation and internal quotation marks 

omitted). Furthermore, “[a]n appellate court may only find 
State v. Valdez

20150402-CA 2 2016 UT App 74

abuse if it can be said that no reasonable [person] would take the 

view adopted by the trial court.” Id. (second alteration in 

original) (citation and internal quotation marks omitted).

¶3 Utah Code section 76-3-401 states the legally relevant 

sentencing factors a trial court must consider before determining 

whether sentences will be imposed concurrently or 

consecutively: “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) 

(LexisNexis 2012). However, as a general rule, a district court’s 

decision to impose consecutive sentences is upheld “whenever it 

would be reasonable to assume that the court” considered the 

statutory factors, even if the court “failed to make findings on 

the record.” State v. Helms, 2002 UT 12, ¶ 11, 40 P.3d 626 (citation 

and internal quotation marks omitted). Accordingly, it is the 

defendant’s burden to demonstrate that the district court did not 

properly consider the relevant factors, and appellate courts “will 

not assume that the trial court’s silence, by itself, presupposes 

that the court did not consider the proper factors as required by 

law.” Id. To do otherwise “would trample on the deference this 

court usually gives to the sentencing decisions of a trial court.” 

Id.

¶4 Valdez asserts that the district court failed to adequately 

consider his character and rehabilitative needs when it imposed 

consecutive sentences. Contrary to Valdez’s assertions, the 

record, taken as a whole, reveals that the district court did 

consider Valdez’s rehabilitative needs prior to sentencing. For 

example, Valdez presented the court with several letters from 

individuals supporting Valdez’s character and describing 

positive changes they had seen in him over the previous few 

years. The district court took a recess to read the letters. The 

district court also reviewed the Presentence Investigation Report 

and provided Valdez with an opportunity to address the court.

Further, prior to pronouncing its sentence the district court 
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20150402-CA 3 2016 UT App 74

acknowledged that Valdez had “a lot of support from family and 

friends.” Valdez points us to no information that he attempted to 

present to the court that it refused to consider. Thus, it is clear 

that the issue of Valdez’s potential rehabilitative needs was 

presented to and considered by the court. The district court 

simply concluded that the other factors supporting consecutive 

sentences outweighed those factors favoring concurrent 

sentences.

¶5 Specifically, the court focused on the fact that Valdez had 

been convicted of a similar crime some years before. Following 

that conviction, Valdez was “given a break” and sentenced to 

probation. However, Valdez was eventually sent to prison for 

violating probation. He subsequently was paroled on three 

separate occasions and returned to prison each time for violating 

the terms of his parole. Accordingly, the court was concerned by

the fact that Valdez not only did poorly on supervised release, 

but ultimately committed another crime involving a minor. 

Under the totality of the circumstances, we cannot say that the 

district court abused its discretion.

¶6 Affirmed.