IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

James Arnold Gardner,

Defendant and Appellant. )

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) PER CURIAM DECISION

Case No. 20111031

‐ CA

F I L E D

(December 28, 2012)

2012 UT App 368

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Third District, Salt Lake Department, 101909347

The Honorable Robin W. Reese

Attorneys: Debra M. Nelson and John K. West, Salt Lake City, for Appellant

Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee

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Before Judges McHugh, Voros, and Roth.

¶1 James Arnold Gardner appeals from his sentences after pleading guilty to two

counts of theft by receiving and one count of attempted theft, all third degree felonies.

Gardner asserts that the district court erred in imposing consecutive prison terms of

zero to five years, although the district court stayed imposition of the sentences and

imposed probation.

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

grant or deny probation, for 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 only20111031

‐ CA 2 find abuse if it can be said that no reasonable [person] would take the view adopted by

the trial court.” Id. (alteration in original) (citation and internal quotation marks

omitted).

¶3 Utah Code section 76

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‐ 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

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‐ 401(2) (LexisNexis 2012). However, as a general

rule, a district court’s consecutive sentencing decision 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.

Here, because Gardner argues that the district court should have sentenced him based

upon the recommendation of the presentence investigation report (PSI) prepared by

Adult Parole and Probation (AP&P), he seems to acknowledge that all relevant factors

for the district court’s consideration were contained within that report. Generally, if a

factor is discussed in the PSI, it is sufficient to demonstrate that the district court

considered the factor. See id. ¶ 13. Thus, Gardner’s disagreement with the decision

seems to be over the application of those factors to the case.

¶4 Based upon the circumstances, we cannot say that the district court abused its

discretion in sentencing Gardner to consecutive sentences, as opposed to concurrent

sentences, then suspending the prison terms and imposing probation. The record

demonstrates that Gardner had a significant criminal history, and that he had

previously been placed on probation several times, only one of which resulted in a

successful completion of the probation. In fact, Gardner committed the offenses at issue

in this case while on probation in a previous case. Furthermore, despite recommending

probation, the PSI noted that Gardner was “a very marginal candidate for probation.”

Cf. State v. Moreau

, 2011 UT App 109, ¶ 11, 255 P.3d 689 (noting that a court is not bound

by AP&P’s sentencing recommendations in a PSI). Under these circumstances, we20111031

‐ CA 3 cannot agree that no reasonable person would take the view adopted by the district

court. See Valdovinos

, 2003 UT App 432, ¶ 14.

¶5 Affirmed.

____________________________________ Carolyn B. McHugh, Judge

____________________________________ J. Frederic Voros Jr., Judge

____________________________________ Stephen L. Roth, Judge