2018 UT App 220

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

VICTORIA ASTA,

Appellant.

Opinion

No. 20160942-CA

Filed November 29, 2018

First District Court, Logan Department

The Honorable Brian G. Cannell

The Honorable Thomas L. Willmore

No. 151100933

Ashley E. Bown, Attorney for Appellant

Sean D. Reyes and Jeanne B. Inouye, 

Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES

DAVID N. MORTENSEN and MICHELE M. CHRISTIANSEN FORSTER

concurred.

HARRIS, Judge:

¶1 After Victoria Asta pled no contest to charges of burglary 

and assault against a police officer, the district court sentenced 

her to prison. Asta now appeals that sentence, asserting that the 

sentencing judge should have recused himself, and that the court 

abused its discretion in imposing the sentence. Asta also 

complains that the court failed to specifically address several of 

her objections to items contained within the presentence report

(PSR). We affirm Asta’s sentence, as well as the judge’s decision 

not to recuse himself, but remand for the limited purpose of 

addressing Asta’s objections to items contained within the PSR.
State v. Asta

20160942-CA 2 2018 UT App 220

BACKGROUND

¶2 On a November evening in Cache County, Utah, Asta and 

her boyfriend (Boyfriend) were out for a drive, with Asta behind 

the wheel. Boyfriend was wearing a “green tactical shirt” and a 

shoulder holster and had two handguns with him. At some 

point, Boyfriend exited the vehicle on foot, donned a ski mask, 

and broke into a house occupied by an elderly couple. When the 

husband confronted Boyfriend, Boyfriend pointed his gun at 

him and ordered him into the basement where his wife was 

watching television. As the owners were calling 911, Boyfriend 

helped himself to jewelry and other items from the house, and 

then fled the scene. 

¶3 After completing the burglary, Boyfriend got back in the 

car that Asta was driving. As they drove away from the scene, 

they passed a sheriff’s deputy who was responding to the 

owners’ 911 call. The deputy activated his overhead lights and 

attempted to stop Asta’s vehicle, but Boyfriend told her to “just 

keep driving, don’t stop,” and Asta kept driving. As Asta drove 

past the deputy, she and Boyfriend tried to hide their faces. The 

deputy turned to pursue them, and a lengthy and dangerous car 

chase ensued, one that eventually involved speeds of up to 90 

mph in and out of traffic on public roads, as well as detours 

across open fields. 

¶4 The deputy called for assistance, and another 

officer (Officer) eventually initiated a Pursuit Intervention 

Technique (PIT) maneuver designed to force the fleeing car 

to turn sideways and stop. The maneuver worked, and 

caused Asta’s vehicle to spin and come to a stop facing 

the direction it had been traveling. Officer then pulled 

his vehicle in front of Asta’s in an attempt to box it in, but 

Asta again refused to stop, this time driving her vehicle 

forward and causing it to collide with Officer’s, then scraping 

past Officer’s vehicle and eventually escaping. Officer later 

described the encounter as one in which Asta “rammed” his 

vehicle.
State v. Asta

20160942-CA 3 2018 UT App 220

¶5 A second high-speed car chase then ensued. Officers 

attempted another PIT maneuver, this time unsuccessfully. 

Eventually another officer used his patrol vehicle to push Asta’s 

vehicle off of the roadway, where Asta’s vehicle finally came to a 

stop only because it struck a tree. 

¶6 Officers then arrested Asta and Boyfriend. Inside the 

vehicle, officers found two handguns and a ski mask, among 

other items. Initially, neither Asta nor Boyfriend would give 

officers their physical address, and officers at first concluded 

that they were homeless. But officers eventually discovered 

where they lived and searched their residence, finding stolen 

jewelry and drug paraphernalia. 

¶7 In relation to her activities on the night in question, the 

State charged Asta with aggravated robbery and aggravated 

burglary, both first-degree felonies; assault against a police 

officer, a second-degree felony; and four additional counts. The 

State also charged Asta with seventeen other burglary- and theftrelated crimes alleged to have occurred before the November 

incident. These other charges were later dismissed pursuant to 

an agreement Asta made with the State to “meet with 

investigators and provide truthful information related to the 

State’s prosecution of [Boyfriend].” Eventually, with regard to 

the charges stemming from her activities on the night in 

question, Asta agreed to plead “no contest” to two seconddegree felonies: burglary, amended to a second-degree felony, 

and assault against a police officer. In exchange, the State agreed 

to drop all remaining charges.

¶8 After Asta entered her plea, Adult Probation and Parole 

(AP&P) prepared the PSR, and therein recommended that Asta 

be sentenced to prison. AP&P acknowledged that the applicable 

sentencing guideline matrix pointed to probation, rather than 

prison, as the presumptive sentence for someone in Asta’s 

position. However, AP&P nevertheless recommended prison 

due to certain “aggravating factors,” including Asta’s perceived 

“criminal mentality,” “lack of remorse,” and “refus[al] to 
State v. Asta

20160942-CA 4 2018 UT App 220

cooperate with law enforcement,” as well as the fact that the 

underlying crime included “ramm[ing] an occupied police car.” 

¶9 The PSR included a statement from Asta, in which she 

maintained that she did not know that Boyfriend intended to 

commit burglary when he exited the vehicle on the evening in 

question. Indeed, Asta stated that she and Boyfriend were “just 

driving around and exploring random dirt roads and just 

enjoying a little quiet time together,” and that Boyfriend got out 

of the car because he said he “had to go to the bathroom.” While 

he was doing so, Asta stated that she “told him [she] was going 

to drive ahead for a bit and see if [she] could find a gas station” 

where she could purchase snacks. She claimed Boyfriend was 

“acting strangely” after she picked him back up, and that she 

fled from police at Boyfriend’s urging. 

¶10 The day before the sentencing hearing, Asta filed a 

lengthy written objection to the PSR, arguing that AP&P’s 

recommendation was unwise and “entirely subjective.” Asta

specifically took issue with AP&P’s conclusion that she had 

failed to show remorse or to take responsibility for her crimes, 

pointing to her lengthy statement, included in the PSR, in which 

she apologized and expressed regret. 

¶11 At the sentencing hearing, Asta’s counsel addressed, at 

some length, Asta’s objections to the report, and made 

impassioned argument that Asta should be sentenced to 

probation rather than prison. In addition to argument from 

counsel, Asta herself provided a statement to the court, as did 

Asta’s mother. On the other side of the ledger, the court also 

heard from one of the victims of the burglary, and from Officer, 

who described for the court in person how Asta “rammed” his 

vehicle while he was inside it. The court also thoroughly 

questioned an AP&P supervisor about AP&P’s recommendation 

for a prison sentence. The State also argued, among other things,

that Asta’s claims about what happened that night were false, 

and that she had to have known what Boyfriend intended to do. 

In the course of making this argument, the prosecutor 
State v. Asta

20160942-CA 5 2018 UT App 220

mentioned that she did not “believe [the police] found any 

snacks in the car that she claimed she was going after.” 

¶12 At the conclusion of the sentencing hearing, the court 

sentenced Asta to prison on each count, with the sentences to 

run concurrently. In imposing the sentence, the court stated that 

it considered Asta’s crimes “heinous,” and stated its belief that, 

at least “as it relates to [her] relationship with Boyfriend and the 

events” in question, Asta had been acting in a “morally 

bankrupt” manner. The court also stated that it did not credit 

Asta’s explanation that she did not know that Boyfriend was 

going to commit burglary when he exited the car that night, and 

stated that it was especially concerned with the danger she had 

imposed on the members of the community by leading officers 

on two high-speed car chases. The court also expressed its 

concern that the crime included the “intentional act of ramming 

[Officer’s] vehicle as described here today.”

¶13 Shortly after sentencing, Asta’s counsel learned that the 

sentencing judge had himself been the victim of a home burglary 

in 2014, the year before the events in question. Asta filed a 

motion to disqualify, arguing that the burglary biased the judge 

and that the judge should have recused himself. The motion was 

referred to the presiding judge, who denied it. 

ISSUES AND STANDARDS OF REVIEW

¶14 Asta appeals, and raises three issues for our review. First, 

Asta asserts that the sentencing judge was obligated to recuse 

himself because he had been the victim of a home burglary in the 

year before Asta’s crimes, and that the reviewing judge 

erroneously denied her motion to disqualify the sentencing 

judge. “Determining whether a trial judge committed error by 

failing to recuse himself or herself under the Utah Code of 

Judicial Conduct is a question of law,” which we ordinarily 

review for correctness. State v. Van Huizen, 2017 UT App 30, ¶ 11, 

392 P.3d 933 (quotation simplified), cert. granted, 400 P.3d 1044 

(Utah 2017). However, if the trial judge “complie[s] exactly with 
State v. Asta

20160942-CA 6 2018 UT App 220

rule 29” of the Utah Rules of Criminal Procedure in handling the 

motion for disqualification, then the “burden shift[s] to the 

petitioners” to make an additional showing of either “actual bias

or abuse of discretion.” State v. Alonzo, 973 P.2d 975, 979 (Utah 

1998) (quotation simplified). Additionally, at least in cases in 

which rule 29 was invoked and followed, see Van Huizen, 2017 

UT App 30, ¶¶ 55–63, “any error of the trial judge in failing to 

recuse” must be disregarded absent a showing of “actual 

prejudice,” see State v. Gardner, 789 P.2d 273, 278 (Utah 1989); see 

also Utah R. Crim. P. 30(b) (“Any error, defect, irregularity or 

variance which does not affect the substantial rights of a party 

shall be disregarded”). 

¶15 Second, Asta asserts that the sentencing judge did not 

finally and thoroughly deal with all of her objections to the PSR. 

“Whether the trial court properly complied with a legal duty to 

resolve on the record the accuracy of contested information in 

sentencing reports is a question of law that we review for 

correctness.” State v. Samulski, 2016 UT App 226, ¶ 9, 387 P.3d 

595 (quotation simplified).

¶16 Third, Asta asserts that the sentencing judge abused its 

discretion by considering irrelevant or unreliable information 

and by sentencing her to prison rather than probation. “Because 

trial courts are afforded wide latitude in sentencing, a court’s 

sentencing decision is reviewed for an abuse of discretion. A 

court exceeds its discretion if it acts with inherent unfairness in 

imposing a sentence, imposes a clearly excessive sentence, or 

fails to consider all legally relevant factors.” State v. Neilson, 2017 

UT App 7, ¶ 15, 391 P.3d 398 (quotation simplified).1

 

1. After Asta’s brief was filed, the State filed a motion to strike 

certain exhibits attached to Asta’s brief on the ground that those 

exhibits were not part of the record. We granted that motion. 

Asta then sought several extensions of time within which to file 

a reply brief, but never did file one. Instead, after the State’s brief 

(continued...)
State v. Asta

20160942-CA 7 2018 UT App 220

ANALYSIS

I

¶17 First, Asta argues that the sentencing judge was obligated 

to recuse himself because he had been the victim of a residential 

burglary in 2014, the year prior to the events at issue here. The 

sentencing judge declined to grant the motion, and instead 

referred it to the presiding judge, who eventually denied it. We 

affirm that decision.

¶18 “A judge shall disqualify himself or herself in any 

proceeding in which the judge's impartiality might reasonably 

 

(...continued)

was filed, Asta filed a motion, grounded in rules 23 and 23B of 

the Utah Rules of Appellate Procedure, seeking leave to “amend 

her [opening] Brief to include a claim for ineffective assistance of 

counsel” (IAC), and for an order remanding the case to the trial 

court for additional fact-finding on a potential IAC claim. In her 

opening brief, Asta spent less than a page arguing, in the 

alternative, that her trial counsel had been ineffective; we 

perceive her post-brief motion seeking leave to state an IAC 

claim as an acknowledgment that any IAC claim contained in 

the opening brief was inadequately briefed. Asta’s motion for 

leave to bring that claim for the first time now is essentially a 

request to re-start the briefing in this case, and we decline Asta’s 

invitation to do so. It is a well-established rule that any claims 

not raised in the opening brief are waived. See Allen v. Friel, 2008 

UT 56, ¶ 8, 194 P.3d 903 (stating that “issues raised by an 

appellant in the reply brief that were not presented in the 

opening brief are considered waived and will not be considered

by the appellate court” (quotation simplified)). No additional 

briefing may be had “except with leave of the appellate court,” 

see Utah R. App. P. 24(c), and we decline to exercise our 

discretion to allow amendment here. Accordingly, we deny 

Asta’s motion for leave to amend and for remand. 
State v. Asta

20160942-CA 8 2018 UT App 220

be questioned.” Utah Code Jud. Conduct R. 2.11. “[W]hen a 

judge knows of circumstances that give rise to the reasonable 

appearance of bias, the judge is under an affirmative duty either 

to recuse or to disclose the facts that contribute to an appearance 

of partiality and allow the parties to decide whether to waive 

disqualification.” Van Huizen, 2017 UT App 30, ¶ 18. However, 

while parties are entitled to an impartial judge, “they are not 

entitled to a judge whose mind is a clean slate.” Lunt v. Lance, 

2008 UT App 192, ¶ 12, 186 P.3d 978. “The question of a judge's 

impartiality is determined by viewing the question through the 

eyes of a reasonable person, knowing all the circumstances.”

Fullmer v. Fullmer, 2015 UT App 60, ¶ 12, 347 P.3d 14 (quotation 

simplified).

¶19 But even in cases where a judge fails to strictly follow the 

Code of Judicial Conduct—and we stop well short of 

determining that any such failure existed in this case—a reversal

is not the automatic result. Indeed, our supreme court has ruled 

that a judge’s failure to strictly follow the Code of Judicial 

Conduct “does not necessarily mean that the defendant is 

entitled to a new trial,” because “[t]he parameters of defendants’ 

constitutional rights to a fair trial are defined by [rule 29 of the 

Utah Rules of Criminal Procedure] and relevant case law, not the 

Code of Judicial Conduct.” See State v. Neeley, 748 P.2d 1091, 1094 

(Utah 1988). Rule 29 of the Utah Rules of Criminal Procedure 

sets forth the process that a judge in a criminal case must follow 

when a litigant seeks the judge’s disqualification.2 A judge who 

is the target of a motion to disqualify has two options: the judge 

may grant the motion without further hearing, or the judge may 

certify the motion to a different judge for decision. See Utah R. 

Crim. P. 29(b)(2)(A) (stating that “[t]he judge against whom the 

motion and affidavit are directed shall, without further hearing, 

enter an order granting the motion or certifying the motion and 

 

2. Rule 63 of the Utah Rules of Civil Procedure sets forth a nearly 

identical process that is to be followed in civil cases. See Utah R. 

Civ. P. 63(c). 
State v. Asta

20160942-CA 9 2018 UT App 220

affidavit to a reviewing judge”). The target judge may not hold a 

hearing on the motion, and may not herself deny the motion. Id.

Other than either granting the motion or certifying the motion to 

another judge, the target judge “shall take no further action in 

the case until the motion is decided.” Id.

¶20 If these procedures are followed, then a judge’s decision 

not to recuse “does not constitute reversible error” “absent a 

showing of actual bias or an abuse of discretion.” State v. Alonzo, 

932 P.2d 606, 610–11 (Utah Ct. App. 1997) (quotation simplified), 

aff'd, 973 P.2d 975 (Utah 1998). In this case, Asta makes no 

argument that either the sentencing or reviewing judge in this 

case failed to follow the procedures set forth in rule 29. Because 

those procedures were followed here, Asta bears the heightened 

burden of demonstrating either actual bias or abuse of 

discretion. See Alonzo, 973 P.2d at 979. Asta makes no effort to 

demonstrate that the sentencing judge was actually biased, but 

does argue that the reviewing judge abused his discretion in 

denying the motion. 

¶21 Asta’s assertion in this regard is that the reviewing judge 

failed to perceive the significance of the fact that the sentencing 

judge had experienced a home burglary, and contends that this 

experience must necessarily have “created a presumptive 

question” regarding the judge’s impartiality. We, however, agree 

with the reviewing judge, who determined that Asta “[made] no 

effort to bridge the logical gap between a superficially similar 

crime committed against [the sentencing judge] in the past and 

his impartiality in this case.” Asta offers no specifics regarding 

the burglary suffered by the sentencing judge and, without 

more, we are unwilling to hold that a reviewing judge abuses his

discretion by failing to disqualify a judge who has previously 

been the victim of a burglary from any burglary case. In certain 

situations (for instance, if the judge had been a victim of a crime 

committed by the same person who later stood accused of a 

similar crime in the judge’s court), we might expect a reviewing 

judge to grant such a motion. But it cannot be that, in all cases 

involving all crimes, a judge must disqualify herself if she has 
State v. Asta

20160942-CA 10 2018 UT App 220

previously been the victim of any similar crime. The rule Asta 

advances is far too broad, and we decline to adopt it. We discern 

no abuse of discretion in the reviewing judge’s decision. 

¶22 Next, Asta asserts that she sustained actual prejudice as a 

result of the sentencing judge’s participation in the case, 

and asks for reversal on that basis. See Alonzo, 973 P.2d at 979 

(stating that “a trial judge’s failure to recuse based on the 

appearance of bias may be grounds for reversal if actual 

prejudice is shown” (quotation simplified)). We find Asta’s 

argument unpersuasive.

¶23 First, Asta asserts that the sentencing judge’s failure to 

disclose the fact that he was the recent victim of a home burglary 

“deprived Asta of the chance to utilize [r]ule 29A of the Utah 

Rules of Criminal Procedure.” That rule, however, only allows 

for a change of judge as a matter of right if all parties to a case 

agree. See Utah R. Crim. P. 29A(a) (stating that, in a criminal 

case, “all parties joined in the action may, by unanimous 

agreement . . . , change the judge assigned to the action”). Asta 

offers no indication that the State would ever have agreed to a 

change of judge, even if Asta had learned of the judge’s situation 

earlier. Accordingly, Asta would not have been able to avail 

herself of rule 29A in any event.

¶24 Second, Asta asserts that the judge’s failure to disclose 

“deprived Asta of the opportunity to appropriately prepare for 

her sentencing hearing and present information to the court 

concerning an appropriate sentence.” But the sentencing hearing 

in this case was quite thorough, and Asta gives no indication of 

the sort of information she might have presented to the court 

had she learned earlier of the judge’s situation. 

¶25 For all of these reasons, Asta has failed to persuade us 

that reversal is appropriate on the disqualification issue. 

Accordingly, we find no reversible error in the sentencing 

judge’s decision not to recuse himself, and we affirm the 

reviewing judge’s denial of the motion to disqualify. 
State v. Asta

20160942-CA 11 2018 UT App 220

II

¶26 Next, Asta challenges both the merits of her sentence, 

as well as the manner in which the district court addressed 

the objections she raised at sentencing to specific items in 

the PSR. We agree with Asta that the district court failed to 

make specific findings regarding most of her objections to 

items contained in the PSR, and we remand this case to 

the district court for the limited purpose of affording the 

district court another opportunity to do so. However, despite 

the district court’s failure to make specific findings on all of 

the objections raised, we see no abuse of discretion in 

the ultimate sentence imposed, and therefore affirm Asta’s 

sentence. 

A

¶27 Under Utah law, when a defendant raises specific 

objections to items contained within a PSR, a district court must

examine those objections and “shall make a determination of 

relevance and accuracy on the record.” Utah Code Ann. § 77-18-

1(6)(a) (LexisNexis Supp. 2018).3 In particular, this court has

stated that

once a defendant alleges factual inaccuracies in a 

[PSR], the district court must do three things: first, 

consider the objection raised; second, make 

findings on the record regarding the accuracy of 

the information at issue; and third, determine on 

the record the relevance of that information as it 

relates to sentencing.

 

3. Utah Code sections 77-18-1, 76-5-102, and 76-5-102.4, see supra

¶ 39, have been amended since Asta was sentenced in 2016. 

Because the pertinent text of the statutes has not changed, we 

cite to the current version of the statute for convenience.
State v. Asta

20160942-CA 12 2018 UT App 220

State v. Monroe, 2015 UT App 48, ¶ 6, 345 P.3d 755. This is 

important even if the alleged inaccuracies in the report do not 

turn out to be relevant to the sentence imposed, because “the 

[PSR] will follow [the defendant] through the justice system,” id.

¶ 10, and things that appear irrelevant at sentencing might 

become relevant years later at a parole hearing.

¶28 In this case, there is no doubt that Asta made objections to 

the PSR. Indeed, Asta filed a ten-page written document the 

day before the sentencing hearing in which she set forth 

certain objections to the contents of the PSR, and then at the 

sentencing hearing Asta emphasized many of those objections. 

Those objections generally fell into two categories. First, Asta 

pointed out a few minor factual inaccuracies in the PSR, 

including her age and her precise plea in both this case as well as 

the other dismissed cases. Second, and more substantively, Asta 

took issue with the PSR’s ultimate recommendation that Asta be 

sent to prison, as well as the specific basis for that

recommendation. Asta asserted that AP&P’s contention that 

certain aggravating circumstances were present was simply 

wrong, and raised specific challenges to AP&P’s conclusion that 

Asta had “no remorse,” “blames co-defendant,” “refused to 

cooperate with law enforcement,” and had “rammed” Officer’s 

vehicle.

¶29 There is also no doubt that these objections were 

discussed at great length during the sentencing hearing, and that 

the district court heard extensive argument from both sides on 

all of these issues, and considered each of these objections in the 

context of imposing sentence. Both Officer as well as an AP&P 

supervisor personally addressed the court, gave a statement, and 

answered questions; Officer spoke directly to the issue of 

whether Asta “rammed” his vehicle, and the AP&P supervisor

provided AP&P’s perspective on the aggravating circumstances. 

In addition, Asta’s attorney made an impassioned argument on 

all of the issues raised, and the court heard directly from both 

Asta as well as her mother. 
State v. Asta

20160942-CA 13 2018 UT App 220

¶30 However, at no point did the court pause to make specific 

rulings or findings on most of the objections raised. Implicit in 

the court’s remarks, as it imposed sentence upon Asta, were 

rulings on some of the objections. For instance, the court found 

that Asta had in fact committed an “intentional act of ramming 

[Officer’s] vehicle” on the night in question, and stated that it 

did not believe Asta’s claim that she was unaware that Boyfriend 

was going to commit burglary when he exited the vehicle. But

the court did not make a finding on Asta’s age or the form of her 

plea, and made no finding on whether Asta had shown remorse 

or whether she had refused to cooperate with law enforcement. 

We recognize that, to some extent, some of these issues are 

argumentative rather than strictly factual. However, in previous 

cases, Utah appellate courts have required district courts to 

make specific rulings and findings on issues such as whether a 

victim was “particularly vulnerable” and whether her injuries 

were “unusually extensive,” see State v. Jaeger, 1999 UT 1, ¶ 42, 

973 P.2d 404, and whether AP&P’s assessment of a defendant’s 

“attitude and lack of remorse” was accurate, see State v. Irey, 2017 

UT App 178, ¶ 4, 405 P.3d 876 (per curiam). 

¶31 When objections like these are raised, the district 

court must do three things: consider the objections, make 

findings on the record regarding their accuracy, and 

determine on the record the relevance of that information as 

it relates to sentencing. See Monroe, 2015 UT App 48, ¶ 6; see also

Utah Code Ann. § 77-18-1(6)(a). In this case, although the 

district court did consider Asta’s objections and weigh those

objections in the course of imposing sentence, at least with 

respect to most of the objections the district court did not ever 

take the second of the three prescribed steps: it did not make any 

actual findings about the accuracy of the objections. 

Accordingly, we must remand the case so that the district court 

can make those specific findings, because even if those findings 

did not make a difference to the court’s sentencing decision, they 

may become relevant to Asta at some point in the future, during 

(for instance) proceedings before the Board of Pardons and 

Parole. 
State v. Asta

20160942-CA 14 2018 UT App 220

¶32 It does not follow from the district court’s failure to make 

findings on each specific objection, however, that the sentence 

imposed is subject to reversal. In several instances, Utah 

appellate courts have affirmed a defendant’s sentence while 

remanding the case for the limited purpose of having the district 

court make findings on specific objections to the PSR. See, e.g., 

Jaeger, 1999 UT 1, ¶ 45; Irey, 2017 UT App 178, ¶ 6; Monroe, 2015 

UT App 48, ¶¶ 8–9.

¶33 In some of those cases, even though the defendant’s 

objections “were not adequately resolved on the record,” it was 

nevertheless clear that “the district court properly considered the 

objections before it sentenced [the defendant].” See Irey, 2017 UT 

App 178, ¶ 6. In this case, as noted above, Asta’s objections to the 

PSR were discussed at great length at the sentencing hearing. 

After considering Asta’s objections, as well as input from the 

State and from AP&P, the court sentenced Asta to prison, and 

cited three reasons for departing from the sentencing guidelines: 

that it believed Asta knew what Boyfriend was doing that 

evening; the risk Asta’s high-speed flight posed to the public; 

and Asta’s intentional act of ramming Officer’s vehicle. As 

noted, the court’s discussion of these factors at sentencing 

contained implicit findings regarding these issues and, as 

discussed in the next section, the court’s reliance on these factors 

in imposing sentence was entirely appropriate. 

¶34 While the court, in imposing sentence, did not specifically 

address many of Asta’s other objections to the PSR, there is no 

indication in the record that the court placed any particular 

reliance on the State’s or AP&P’s position in response to those 

other objections, or that the court found the subject matter of 

those other objections particularly relevant to its sentencing 

inquiry. When “[t]here is no indication in the record that the 

district court relied on the allegedly inaccurate information at 

sentencing,” there is no basis for reversal and resentencing, even 

though the court may not have made specific findings on all of 

the issues raised. Id.; see also State v. Moa, 2012 UT 28, ¶ 35, 282 

P.3d 985 (stating that “an appellate court cannot presume there 
State v. Asta

20160942-CA 15 2018 UT App 220

is evidence of reliance from a silent record or mere introduction 

of potentially irrelevant information”); Monroe, 2015 UT App 48, 

¶¶ 8–9 & n.3 (stating that “[w]e are not convinced that the 

district court’s failure to resolve Defendant’s objections requires 

reversal and resentencing,” in part because many of those 

objections “just did not matter”). Accordingly, in this case, we 

may affirm the district court’s sentencing decision, irrespective 

of its failure to fully dispose of all of Asta’s objections to the PSR, 

so long as the court’s sentencing decision was otherwise proper. 

B

¶35 And we find no abuse of discretion in the district court’s 

decision to sentence Asta to prison. Asta makes two arguments 

to the contrary, neither of which we find persuasive. First, Asta 

argues that the district court, in imposing sentence, relied upon 

information that was neither reliable nor relevant. Second, Asta 

asserts generally that the district court failed to adequately 

weigh or consider other information that Asta provided, and 

that the court therefore abused its discretion by sentencing her to 

prison rather than to probation. 

1

¶36 The Utah Constitution “requires that a sentencing 

judge act on reasonably reliable and relevant information 

in exercising discretion in fixing a sentence.” State v. Wanosik, 

2001 UT App 241, ¶ 34, 31 P.3d 615 (quotation simplified)

(referencing Article 1, Section 7 of the Utah Constitution), 

aff'd, 2003 UT 46, 79 P.3d 937; see also id. (stating that it is 

“a criminal defendant’s right to be sentenced based on relevant 

and reliable information regarding his crime, his 

background, and the interests of society”). However, a 

defendant challenging his sentence on the ground that the court 

improperly considered certain information bears the burden 

of demonstrating both that the court relied upon the information 

in question, and that the information “was unreliable or 

irrelevant.” Moa, 2012 UT 28, ¶¶ 35–36. Showing evidence 
State v. Asta

20160942-CA 16 2018 UT App 220

of reliance, “such as a judge’s affirmative representation of 

reliance, is necessary because neither our case law nor 

our statutes require a district court to make specific findings of 

fact in a sentencing order.” Id. (quotation simplified). We 

will not presume, absent some evidence, that a court 

actually relied on any particular piece of information. Id. And 

even “[w]hen there is evidence in the record showing a 

sentencing judge’s reliance on specific information, we will not 

consider it improper for a judge to rely on such information if 

the evidence in question had indicia of reliability and was 

relevant in sentencing.” Id. ¶ 36 (quotation simplified). 

¶37 Asta asserts that the district court relied on the following 

pieces of information that she contends are unreliable or 

irrelevant: that Asta “rammed” Officer’s vehicle; that Asta knew 

what Boyfriend intended to do when he exited the vehicle on the 

evening in question; that Asta refused to provide law 

enforcement with her home address; and that no snacks were 

found in the vehicle. 

¶38 There is no indication in the record, however, that 

the district court relied upon the last two of those pieces 

of information; at no point did the district court indicate that 

it found relevant the issue of whether Asta did or did 

not provide law enforcement with her home address, or whether 

any snacks were found inside the vehicle at the conclusion of 

the car chase. As noted, we will not presume reliance from 

the “mere introduction of potentially irrelevant information.”

Moa, 2012 UT 28, ¶ 35. Accordingly, Asta has failed to meet 

her burden with regard to these two pieces of information. 

¶39 The court did, however, clearly rely upon the other 

two pieces of information to which Asta points: that 

Asta “rammed” Officer’s vehicle, and that Asta had to 

have some knowledge of Boyfriend’s burglary plans 

that evening. We conclude that both of these pieces of 

information were reasonably reliable and unquestionably 

relevant. 
State v. Asta

20160942-CA 17 2018 UT App 220

¶40 With regard to the “ramming,” the court heard from 

Officer and specifically questioned him regarding the incident.

Officer provided a personal, firsthand account of the car chase 

and the PIT maneuver, and expressed to the court his belief that 

Asta had indeed “rammed” his vehicle. Moreover, it is 

undisputed that Asta pled “no contest” to second-degree felony 

assault against a police officer, a violation requiring “an attempt, 

with unlawful force or violence, to do bodily injury to another,”

with a “means or force likely to produce death or serious bodily 

injury.” See Utah Code Ann. § 76-5-102 (LexisNexis 2017); id.

§ 76-5-102.4(4). Thus, the very nature of the crime to which Asta 

pled “no contest” requires the inference that Asta intended to 

forcefully assault a police officer. In our view, whether the 

contact that occurred between Asta’s vehicle and Officer’s is best 

characterized as “ramming,” “colliding,” or “scraping” is 

ultimately inconsequential; the district court had before it 

credible information that Asta intended to assault a police 

officer, and that she used a car as her weapon of choice. 

Accordingly, the district court’s conclusion that Asta 

intentionally “rammed” Officer’s vehicle was based on 

reasonably reliable and relevant information. 

¶41 Finally, we find nothing improper about the court’s 

conclusion that Asta must have known something of Boyfriend’s 

nefarious plans on the evening in question. Again, Asta pled “no 

contest” to burglary, which requires intent to commit the crime. 

Moreover, the State had also dismissed nine other burglary 

charges against Asta in exchange for information regarding the 

State’s prosecution of Boyfriend, and the sentencing judge in this 

case had signed the orders dismissing those charges. See State v. 

Valdez, 2017 UT App 185, ¶ 13, 405 P.3d 952 (stating that “we 

disagree with [the defendant’s] specific contention that 

dismissed or reduced charges are irrelevant or unreliable 

information regarding the gravity and circumstances of [the 

defendant’s] crime or background”). Furthermore, it was 

undisputed that Boyfriend was wearing a shoulder holster and 

had two handguns in his possession. The district court properly 

relied on this information, which came from reliable sources and 
State v. Asta

20160942-CA 18 2018 UT App 220

was clearly relevant, in reaching its conclusion that Asta’s 

version of events was not credible. 

¶42 Accordingly, because Asta has failed to show that the 

district court actually relied on any information that was 

unreliable or irrelevant in reaching its sentencing decision, 

Asta’s first argument fails. 

2

¶43 Next, Asta argues that the district court failed to consider 

other factors and pieces of information, including her lack of 

prior criminal history, and that the court ultimately abused its 

discretion in sentencing her to prison rather than suspending her 

prison sentence and affording her the privilege of probation.

¶44 As noted above, sentencing decisions are generally

reviewed for abuse of discretion. See State v. Neilson, 2017 UT 

App 7, ¶ 15, 391 P.3d 398. But “a defendant is not entitled to 

probation,” see State v. Valdovinos, 2003 UT App 432, ¶ 23, 82 P.3d 

1167 (quotation simplified), and therefore, in particular, “the 

decision whether to grant probation is within the complete 

discretion of the trial court,” State v. Hernandez, 2016 UT App 

251, ¶ 9, 391 P.3d 349 (quotation simplified). Indeed, “[t]he 

granting or withholding of probation involves considering 

intangibles of character, personality and attitude, of which the 

cold record gives little inkling” and “must of necessity rest 

within the discretion of the judge who hears the case.”

Valdovinos, 2003 UT App 432, ¶ 23 (quotation simplified). 

Accordingly, the decision to grant or deny probation is reviewed 

for abuse of discretion, which is present only where the court 

“fails to consider all legally relevant factors or if the sentence

imposed is clearly excessive.” Id. ¶ 14 (quotation simplified). 

¶45 In this case, Asta asserts that the district court failed to 

consider several legally relevant factors, including most 

significantly her lack of prior criminal history, but also her 

asserted remorse, as well as her claims that she would be unable 
State v. Asta

20160942-CA 19 2018 UT App 220

to pay restitution if imprisoned, and that her culpability in these 

crimes should be viewed as far lower than Boyfriend’s. But Asta 

overlooks the fact that the district court had all of that 

information in front of it, and entertained lengthy argument on

all of those topics and more. Although the court did not make 

specific mention of all of these items in its sentencing decision, 

there is certainly no indication, in the record, that the district 

court refused to consider any of the information Asta presented. 

Under these circumstances, we will presume that the district 

court did in fact consider the information. See State v. Helms, 2002 

UT 12, ¶ 11, 40 P.3d 626 (stating that “we 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” unless “an 

ambiguity of facts makes the assumption unreasonable,” a 

statute requires written findings, or “a prior case states that 

findings on an issue must be made”); Hernandez, 2016 UT App 

251, ¶ 10 (stating that where “[t]he court was privy to all of [the 

presentencing] information, and there is no indication that it 

failed to consider any relevant factor or that it considered any 

improper factor in making its decision,” we will presume that 

the court considered the proper information). 

¶46 Finally, Asta asserts that the district court gave 

insufficient weight to the sentencing guidelines matrix that 

pointed, in Asta’s case, to probation instead of prison. But 

“sentencing matrices are advisory and do not create any right or 

expectation on behalf of the offender.” State v. Monzon, 2016 UT 

App 1, ¶ 12, 365 P.3d 1234 (quotation simplified). We cannot say 

that a court abused its discretion simply because it opted not to 

follow the sentencing matrix. As noted above, there were 

aggravating circumstances—most notably that Asta had led 

police on two separate high-speed car chases through the 

community, and had intentionally run into a police car in the 

process—that the district court found persuasive, and it was not 

an abuse of discretion in this case for the court to decline to 

follow the sentencing matrix. Indeed, “the fact that the district 

court assessed the relevant factors differently than a defendant 

would have liked does not indicate that it exceeded its 
State v. Asta

20160942-CA 20 2018 UT App 220

discretion.” See State v. Wood, 2018 UT App 98, ¶ 12, 427 P.3d 452 

(quotation simplified). 

CONCLUSION

¶47 We find no reversible error in the sentencing judge’s

actions regarding recusal, or in the reviewing judge’s denial of 

the motion to disqualify. We perceive no abuse of discretion in 

the district court’s decision to sentence Asta to prison, and 

accordingly affirm Asta’s sentence. However, the district court 

failed to completely resolve all of Asta’s objections to items 

contained within the PSR, and we therefore remand for the 

limited purpose of entering express findings on those objections.