2017 UT App 46

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

SHANE WELLS LANDON,

Appellant.

Per Curiam Decision

No. 20160395-CA

Filed March 16, 2017

Third District Court, Salt Lake Department

The Honorable Paul B. Parker

No. 151913764

Alexandra S. McCallum and David P.S. Mack, 

Attorneys for Appellant

Sean D. Reyes and Jennifer Paisner Williams, 

Attorneys for Appellee

Before JUDGES MICHELE M. CHRISTIANSEN, KATE A. TOOMEY, and

DAVID N. MORTENSEN.

PER CURIAM:

¶1 Shane Wells Landon appeals the sentences on his 

convictions of attempted assault against a police officer, a third 

degree felony; failure to stop or respond at the command of an 

officer, a third degree felony; and driving under the influence of 

alcohol or drugs, a class B misdemeanor. We affirm.

¶2 Landon argues that the district court abused its discretion 

by sentencing him to prison rather than probation and by 

sentencing him to serve two consecutive terms of zero to five 
State v. Landon

20160395-CA 2 2017 UT App 46

years in prison.1 Specifically, Landon contends that the 

sentencing court abused its discretion “when it sentenced him to 

prison despite the intangible factors supporting probation, 

including his character, attitude, [and] rehabilitative needs.” 

Alternatively, he argues that the sentencing court abused its 

discretion by imposing consecutive sentences on his two felony 

convictions because the court did not give adequate weight to 

these factors.

¶3 “In general, a trial court’s sentencing decision 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.” State v. Killpack, 2008 UT 49, ¶ 59, 191 P.3d 

17 (citation and internal quotation marks omitted). Trial courts 

are afforded “wide latitude and discretion in sentencing, 

recognizing that they are best situated to weigh the many 

intangibles of character, personality and attitude.” Id. ¶ 58

(citation and internal quotation marks omitted). “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. Miera, 2015 UT App 46, ¶ 5, 345 P.3d 761 (quoting State v. 

Daniels, 2014 UT App 230, ¶ 7, 336 P.3d 1074).

¶4 After being stopped for a traffic violation, Landon chose 

to drive off. During the ensuing pursuit, Landon rammed the

police officer’s vehicle with his vehicle, and the officer sustained 

minor injuries. The Presentence Investigation Report (PSI) 

recommended a prison sentence, noting “the egregious nature of 

the instant offenses, [his] past criminal history indicating high 

 

1. The district court sentenced Landon on the class B 

misdemeanor to a jail term equal to the time he had already 

served. Thus, the sentence on that conviction presents no issue 

for appeal.
State v. Landon

20160395-CA 3 2017 UT App 46

risk behaviors, and his unsuccessful attempts at community 

supervision—the defendant committed the instant offenses 

while on probation for felony offenses.” The PSI scored Landon 

in the “intermediate sanctions” category under the sentencing 

guidelines, but he was considered to be in a high risk category of 

the Level of Service Inventory assessment. The State asked for a 

prison sentence. Landon asked the court to place him on 

probation, arguing that he took responsibility for his actions, 

expressed remorse, was committed to addressing his alcohol 

issues, had been attending Alcoholics Anonymous while jailed, 

had family support, and would have a job if placed on 

probation. Landon argued that his adult criminal history was not 

extensive and that this incident represented his only probation 

violation.

¶5 The district court sentenced Landon to prison, citing the 

recommendation from the PSI, stating that Landon deliberately 

attempted to injure the police officer, and noting that Landon 

had exhibited a poor attitude toward supervision and had only 

nominal success while on probation. While acknowledging 

Landon’s remorse and his desire to improve his life, the district 

court stated that it needed to “balance the interest of society 

against Landon’s interest.” In sentencing Landon to consecutive 

prison terms, the district court stated that it based its decision 

upon Landon’s “poor performance on probation and the violent, 

deliberate nature of this attack on a public servant.”

¶6 The district court did not abuse its discretion in 

sentencing Landon to prison rather than placing him on 

probation. A defendant is not entitled to probation as a matter of 

right. See State v. Sibert, 310 P.2d 388, 393 (Utah 1957). Because 

“[t]he granting or withholding of probation involves considering 

intangibles of character, personality and attitude,” id., “[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); see also State v. Valdovinos, 2003 UT App 
State v. Landon

20160395-CA 4 2017 UT App 46

432, ¶ 23, 82 P.3d 1167 (stating that due to the consideration of 

“intangibles,” “the problem of probation must of necessity rest 

within the discretion of the judge who hears the case” (citation 

and internal quotation marks omitted)). Landon’s core argument 

is that the district court did not adequately consider, or give 

appropriate weight to, his character, personality, and 

rehabilitative needs. The record demonstrates otherwise. The 

district court considered the PSI, the arguments of counsel, and 

statements by Landon and the victim. The sentence was within 

the statutory range and was not inherently unfair. Under the 

circumstances, this court will not disturb the sentencing 

decision.

¶7 Landon’s alternative argument is that the district court 

abused its discretion by sentencing him to serve consecutive 

prison terms. Landon argues that this issue was preserved for 

appeal by his argument that he should be placed on probation. 

“Generally, in order to preserve an issue for appellate review, a 

party must make a timely and specific objection before the trial 

court.” State v. Tingey, 2014 UT App 228, ¶ 3, 336 P.3d 608

(citation and internal quotation marks omitted). Landon “has not 

demonstrated that he specifically objected to or otherwise 

brought to the trial court’s attention the court’s alleged failure to 

consider the requisite statutory factors in imposing sentence.” 

See id. Landon’s argument for probation was not directed to the 

issues related to the imposition of concurrent or consecutive 

sentences and was “insufficient to alert the trial court to the 

specific error [Landon] now claims on appeal—that the court 

failed to consider relevant statutory factors before it imposed” 

consecutive prison terms. Id.

¶8 Accordingly, we review the claim that the district court 

erred in imposing consecutive sentences under Landon’s claim 

of plain error. In order to prevail under a plain error analysis, a 

party must establish that an error occurred, that the error should 

have been obvious to the trial court, and that the error was 
State v. Landon

20160395-CA 5 2017 UT App 46

harmful. See id. ¶ 7. Landon has not satisfied this burden. In 

determining whether to impose consecutive sentences, “the 

court shall consider 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, a court is not required to 

specifically refer to each of these factors in its ruling in order to 

demonstrate its consideration of the factors. See State v. 

Thorkelson, 2004 UT App 9, ¶ 13, 84 P.3d 854. The record reflects 

that the district court relied upon a PSI that specifically 

considered the statutory factors. After reviewing the PSI and the 

information received at sentencing, the district court identified 

the specific factors that it concluded supported the imposition of 

consecutive sentences as Landon’s “poor performance on 

probation and the violent, deliberate nature of the” offense. 

Furthermore, Landon’s argument is not that the district court 

failed to consider the statutory factors but that the court failed to 

afford appropriate weight to the factors of character, history, and 

rehabilitative needs. However, an argument that the court erred 

in its balancing of the factors is not an argument that supports a 

finding of any plain error. It is unnecessary to consider the 

remaining factors of the plain error analysis.

¶9 Finally, Landon’s argument that the imposition of 

consecutive sentences resulted in an illegal sentence that should 

be corrected under rule 22(e) of the Utah Rules of Criminal 

Procedure lacks merit. An illegal sentence “generally occurs in 

one of two situations: (1) where the sentencing court has no 

jurisdiction, or (2) where the sentence is beyond the authorized 

statutory range.” Id. ¶ 15. Landon’s challenges to the imposition 

of consecutive, rather than concurrent sentences, involves 

neither of these situations and was not otherwise “illegal.”

¶10 Accordingly, we affirm the sentence imposed by the 

district court.