2015 UT App 46

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THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

JOSEPH JOHN MIERA,

Defendant and Appellant.

Memorandum Decision

No. 20130788-CA

Filed February 26, 2015

Third District Court, Salt Lake Department

The Honorable Vernice S. Trease

No. 131903255

Joanna E. Landau and McCaye Christianson, 

Attorneys for Appellant

Sean D. Reyes and Daniel W. Boyer, Attorneys

for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision, 

in which JUDGES J. FREDERIC VOROS JR. and JOHN A. PEARCE 

concurred.

ORME, Judge:

¶1 Defendant Joseph John Miera pled guilty to burglary, a 

second degree felony. See Utah Code Ann. § 76-6-202 (LexisNexis 

2012). The district court sentenced Defendant to prison. 

Defendant appeals, arguing that the district court abused its 

discretion when it denied his request for probation. We affirm.

¶2 Defendant and a female associate gained entry to J.R.’s 

home after they knocked on the door and asked J.R. for some 

water for their dog. When J.R. graciously returned with the 
State v. Miera

20130788-CA 2 2015 UT App 46

water, Defendant struck J.R. in the face, knocking him to the 

ground. Two of Defendant’s male associates then kicked J.R.’s 

front door open and entered the home. One of those associates 

entered the bedroom of J.R.’s girlfriend and would not allow her

to leave. When Defendant and his associates eventually left, they 

took money, jewelry, and other valuables with them. Defendant 

was later arrested and charged. 

¶3 Pursuant to a plea bargain, Defendant pled guilty to 

burglary, a second degree felony, and the State stipulated to the 

supervised release of Defendant pending sentencing. During his 

release, Defendant was supervised by Adult Probation and 

Parole (AP&P). After entry of the plea but before sentencing, 

AP&P notified the trial court that Defendant had violated the 

conditions of his supervised release by failing to attend an 

appointment with AP&P. Defendant’s pretrial release was 

therefore revoked. 

¶4 At sentencing, Defendant’s counsel requested that 

Defendant receive probation. The district court instead 

sentenced Defendant to the statutory prison term of one to 

fifteen years and ordered restitution. 

¶5 We are now asked to decide whether the district court 

abused its discretion by sentencing Defendant to prison rather 

than placing him on probation. An appellate court will find an

abuse of discretion only if it can be said that “no reasonable 

person could adopt the view of the trial court.” State v. Daniels, 

2014 UT App 230, ¶ 7, 336 P.3d 1074. Accord State v. Gerrard, 584 

P.2d 885, 887 (Utah 1978). Defendant fails to meet this burden.

¶6 Defendant’s sentence is squarely within the scope of the 

applicable statute. See Utah Code Ann. § 76-3-203 (LexisNexis 

2012). That statute allows “[a] person who has been convicted of 

a [second degree] felony” to be sentenced to an indeterminate 

prison term “of not less than one year nor more than 15 years.” 

Id. This is precisely the sentence Defendant received. Defendant 

argues that his sentence is “inherently unfair” because it 
State v. Miera

20130788-CA 3 2015 UT App 46

“prevent[s] [him] from being able to work and contribute to the 

restitution he was ordered to pay.” Defendant’s inability to work 

while incarcerated is a burden common to essentially all inmates

and is not enough to establish that his statutorily authorized 

sentence was an abuse of discretion.

¶7 The rule in Utah has long been that

[p]robation is not a matter of right . . . . The 

granting or withholding of probation involves 

considering intangibles of character, personality 

and attitude, of which the cold record gives little 

inkling. These matters, which are to be considered 

in connection with the prior record of the accused, 

are of such nature that the problem of probation 

must of necessity rest within the discretion of the 

judge who hears the case. 

State v. Sibert, 310 P.2d 388, 393 (Utah 1957). The fact that

Defendant requested probation does not mean he is entitled to 

receive it. Indeed, “[t]he decision whether to grant probation is 

within the complete discretion of the trial court.“ State v. Rhodes, 

818 P.2d 1048, 1049 (Utah Ct. App. 1991) (emphasis added).

¶8 Here, the district court determined that probation should 

not be granted. In light of Defendant’s failure to abide by the 

terms of his pretrial release, his criminal record, and the nature 

and circumstances of the crime committed, we see no abuse of 

discretion. The district court’s decision will not be disturbed.

¶9 Affirmed.

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