2017 UT App 11



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Appell ee ,

v. L ANDIN D EE M OOSMAN , Appell ant

.

Memorandum Decision

N o. 20150588

- CA
Filed January 12, 2017

Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck

No. 151400319

Joanna E. Landau and Daniel M. Torrence

, Attorney s

for Appellant
Sean D. Reyes and Jeanne B. Inouye

, Attorney s

for Appellee

J UDGE J ILL M. P OHLMAN authored th is Memorandum Decision

, in
which J UDGES G REGORY K. O RME and S TEPHEN L. R OTH

concurred

.

POHLMAN

, Judge :

¶1 Landin Dee Moosman pleaded guilty to violating a protective order , resulting in his thi rd conviction for that offense.
While Moosman requested “another chance to go back on probation,” the district court imposed a term of imprisonment and revoked Moosman’s probation for his prior offenses.

M oosman appeals , asserting that the district court’s sentencing
decision was inherently unfair and based on irrelevant and
unreliable information. We affirm.

¶2 I n 2013 a woman (Mother) obtained a protective order against Moosman, with whom she shares a child. The protectiveState v. Moosman

20150588

- CA 2 2017 UT App 11 order contained a condition, to which Moosman and Mother stipulated , that they w ould not c ommunicate except for text messages regarding their child

. Moosman violated that provision several times by sending text messages to Mother about subjects other than thei r child. In 2014 Moosman twice pleaded guilty to violating a protective order, both th ird degree
felonies. The two resulting sentences were suspended in favor of probation. In 2015, while on probation for those offenses,

Moosman again sent text messages to Mother regarding subjects
other than the ir child. Moosman subsequently pleaded guilty to violating a protective order, again a third degree felony.

¶3 At sentencing the district court revoked Moosman’s probation for his two prior offenses and imposed both

p reviously suspended sentences, which were for indeterminate prison terms not to exceed five years. For the latest offense, Moosman was likewise sentenced to prison for an indeterminate term not to exceed five years. All three sentences were to run

concurre ntly. On appeal, Moosman assert s that the district court abused its discretion by imposing “a prison sentence over probation.” 1

¶4 “ We have tradi tionally afforded trial courts wide latitude and discretion in sentencing, recognizing that they are best
situated to weigh the many intangibles of character, personality and attitude, of which the cold record gives little inkling.” State v. Killpack

, 2008 UT 49, ¶ 58, 191 P.3d 17 (citations and internal

1 . Moosman does not distinguish between the district court’s imposition of a prison term for the latest offense, and the court’s revocation of probation and imposition of the previously suspended sentences. We need not address those differences in posture because Moosman’s arguments otherwise fail on appeal. Thus, we follow Moosman’s lead and treat all three sentences similarly.State v. Moosman

20150588

- CA 3 2017 UT App 11 quotation marks omitted). A trial court ’ s sentencing decision

ge nerally “ 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.” Id. ¶ 59 (cita tion and internal quotation marks omitted).

¶5 Moosman first challenges the district court’s sentencing
decision as inherently unfair and disproportionate to the allegedly “benign” conduct that gave rise to his three
convictions. The offenses involved what M oosman deems relatively minor infractions . The latest violation was perhaps the most innocuous, and Moosman asserts he sh ould have again been placed on probation. Moosman also points to other considerations that were before the district court and allegedly weighed in favor of probation.

¶6 At sentencing the district court expressed concern over the difficulty of the situation, in which there was “no [really] good answer for anyone.” While Moosman presented the court with an explanation to downplay each violat ion

— asserting that
it “was a mistake” or that it “wasn’t a threat”

— Moosman’s repeated violations of the protective order had put him before the court “time and time and time again.” Thus, following the recommendation of Adult Probation and Parole (AP&P) as provided in its presentence report, the court imposed a term of imprisonment.

¶7 “A defendant is not entitled to probation, but rather the trial court is empowered to place the defendant on probation if it thinks that will best serve the ends of justice an d is compatible with the public interest.” State v. Valdovinos

, 2003 UT App 432

, ¶ 23, 82 P.3d 1167 ( brackets, citation

, and int ernal quotation marks omitted). Although the district court could have taken a different approach and again placed Moosman on probation, the court’s sentencing decision was neither inherently unfair norState v. Moosman

20150588

- CA 4 2017 UT App 11 disproportionate to the underlying conduct and thus did not
constitute an abuse of discretion. Cf. State v. Wimberly , 2013 UT App 160, ¶¶ 20

– 22, 305 P.3d 1072 (concluding that the district court acted within its broad discretion in sentencing the defendant to prison rather than suspending the sentence and plac ing him on probation).

¶8 Moosman also asserts that the district court abused its discretion by relying on irrelevant and unrel iable information. During sentencing the court referred to a “dynamic [,]

. . . pretty well known in the literature and in experience ,” which suggests that Moosman is “ indeed a danger to ” Mother

. The court stated

, without further elaboration, that “there is a great deal of literature about the simple fact of not letting go, [and] continued efforts at control, however innocuous [that] may seem,” it is
nonetheless “ dangerous.”

¶9 “ T he due process clause of Article 1, Section 7 of the Utah Constitution, requires that a sentencing judge act on reasonably reliable and relevant information in exercising discretion in fixing a sentence .” State v. Howell , 707 P.2d 115, 118 (Utah 1985).

“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

sentenci ng.” State v. Moa , 2012 UT 28, ¶ 36, 282 P.3d 985 (citation and internal quota tion marks omitted). It is the defendant’s
burden to “ demonstrate that the information [relied upon] was unreliable or irrelevant .” Id.

¶10 In context, the district court’s statement was that a defendant’s ongoing attempts to control a former intimate partner a re indicative that the defendant remain s a danger to her

. While Moosman assails the district court’s reference to “literature” and “experience,” he does not assert that th e principle referenced by the district court was generallyState v. Moosman

20150588

- CA 5 2017 UT App 11 unreliable

. W e therefore do not conclude that it was. See id. (placing on the defendant the burden of showing unreliability ).

¶11 Moosman does claim that , as applied to him, the principle relied on by the dist rict court was irrelevant and unreliable
because he was not dangerous. In support, Moosman reiterates the arguments he made with regard to the asserted unfairness of the district court’s sentencing decision

— that, for example, his offenses involved nonviolent, nonthreatening, and relatively benign conduct. But t he premise of the district court’s reasoning was that interactions with and attempts to control a former intimate partner may appear benign and yet still indicate a n ongoing threat. Moosman has not presented any argument in response to that principle.

¶12 G iven Moos man’s r epeated violations of the protective
order and AP&P’s recommendation of imprisonment, we cannot conclude that “no reasonable person would take the view adopted by the trial court,” which was that, under the circumstances, imprisonment rather than probation was the appropriate sentence. See State v. Valdovinos , 2003 UT App 432, ¶ 14, 82 P.3d 1167 ( brackets, citation

, and internal quotation marks omitted). For these reasons, the judgment of the district
court is affirmed.