2019 UT App 7

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

KELLY BRUCE COOMBS,

Appellant.

Opinion

No. 20151063-CA

Filed January 10, 2019

Fourth District Court, Provo Department

The Honorable Derek P. Pullan

Nos. 151401748 and 151402149

Emily Adams, Attorney for Appellant

Sean D. Reyes and Lindsey L. Wheeler, Attorneys 

for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN

concurred.

MORTENSEN, Judge:

¶1 Kelly Bruce Coombs was charged with two counts of 

child rape, two counts of child sodomy, and eleven counts of 

sexual exploitation of a minor for possession of child 

pornography. In exchange for Coombs’s guilty pleas to 

attempted child rape, attempted child sodomy, and sexual 

exploitation of a minor, the State dismissed the child rape and 

child sodomy charges. Coombs was sentenced to two concurrent 

terms of fifteen years to life. On appeal, Coombs argues that his 

counsel performed deficiently by not arguing for the application 

of an interests-of-justice proportionality analysis at his 

sentencing. Coombs asserts that such an analysis would have 

revealed his sentence to be arbitrary in comparison with the 
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seriousness of his crimes and the sentences for other offenses in 

Utah. Coombs argues that the sentencing court would have 

imposed a lighter sentence had it come to this realization. We are 

unpersuaded and affirm the sentence Coombs received.

BACKGROUND

¶2 Coombs was charged in two separate cases. One involved 

the sexual abuse of his stepdaughter (Victim); the other 

concerned his possession of child pornography. The two cases 

were consolidated in the sentencing court and on appeal.

Sexual Abuse of Victim

¶3 Coombs repeatedly raped and sodomized Victim from the 

time she was six years old until she turned nine. He committed 

this abuse knowing that Victim had been sexually abused 

previously by a different family member.

¶4 The abuse began when Victim lived with her mother, two 

brothers, and Coombs. Victim stated that since she did not have 

her “real dad,” she and Coombs “decided that [they] were going 

to do something as father and daughter”—a “father/daughter 

day.” While Coombs and Victim were sitting on Coombs’s bed,

Victim stated that Coombs showed her a picture on the Internet 

of a girl “sucking a penis.” Coombs suggested to Victim that it 

was “one of the options” for the two of them as a father and 

daughter activity. Victim testified that Coombs then took off his 

clothes, made her remove her clothes, and “touched” her vagina 

with his penis. Victim also testified that on the following day, 

Coombs “touched” her vagina with his penis a second time. On 

another occasion, Victim stated that Coombs “made” her go to 

his bedroom and “take off [her] clothes.” Coombs then “took off 

all his clothes” and “made [her] suck his penis.”

¶5 Coombs stopped his abuse of Victim for a brief time, but 

he resumed when the family moved to a new home in a 
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neighboring town. Victim testified that Coombs’s abuse started 

again “like a switch had turned back on” after the move. Victim 

stated that Coombs entered her bedroom one day while her 

mother was working. While Victim was on her bed and her

clothes were off, Coombs’s “penis touched [her] vagina” for a 

third time.

¶6 Victim also said that, while she was sleeping, Coombs 

snuck into her bedroom on numerous occasions in the new 

home, pulled down her shorts and underwear, and took 

photographs of her. When this intrusion caused her to wake, 

Victim recalled seeing Coombs “running out of her room.”

¶7 When Victim was nine years old, she disclosed to her 

grandmother that Coombs was sexually abusing her. Victim’s 

grandmother reported the abuse to local police a few days later.

Possession of Child Pornography

¶8 While Coombs was being investigated for sexually 

abusing Victim, an independent, parallel investigation into 

Coombs’s possession of child pornography was in progress. 

Coombs had downloaded at least eleven images of prepubescent 

females engaged in explicit sexual activity. These same images 

were later located on Coombs’s cell phone when it was seized

incident to his arrest for sexually abusing Victim. Upon 

discovering that Coombs was in possession of child 

pornography, law enforcement officers suspected he might be 

involved in manufacturing pornography involving Victim.

Summary of the Proceedings

¶9 For his sexual abuse of Victim, the State originally 

charged Coombs with two counts each of child rape and child 

sodomy, each carrying a presumptive prison sentence of 

twenty-five years to life. He was also charged with eleven counts 

of sexual exploitation of a minor for his possession of child 

pornography.
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20151063-CA 4 2019 UT App 7

¶10 But Coombs agreed to a plea deal with the State in 

exchange for reduced charges. He pled guilty to one count of 

attempted child rape, one count of attempted child sodomy, and 

eleven counts of sexual exploitation of a minor. As a factual basis 

to support the plea, the State cited evidence that Coombs “had 

attempted to have vaginal and oral sex with his nine-year-old 

step daughter,” that he had “put [Victim’s] mouth on his penis,” 

and that he possessed “at least 11 pictures/videos of child 

pornography depicting prepubescent children engaged in sexual 

activity.” In his plea affidavit, Coombs acknowledged that 

(1) “[his] penis touched [Victim’s] vagina, and [Victim’s] mouth 

touched [his] penis,” (2) “[Victim] was under 14 years of age,”

and (3) “[he] uploaded 11 images of child pornography to an 

online storage account.” In addition to accepting a guilty plea in 

exchange for reduced charges, the State agreed to recommend 

concurrent sentencing.

¶11 At the sentencing hearing, the court clarified that the 

presumptive sentence for attempted child rape and attempted 

child sodomy is a prison term of “15 years to life and with the 

provision that the court may impose a lesser sentence, 10 years 

to life, six years to life, or three years to life, if the interests of 

justice so require.”

¶12 Coombs’s counsel asked the sentencing court to impose 

the minimum sentence of three years to life, asserting that 

Coombs’s case represented “one of the rare instances where the 

[sentencing court] should deviate” from the presumptive 

sentence of fifteen years to life. Counsel argued that the 

following mitigating factors supported a “lesser punishment” for 

Coombs: (1) his minimal criminal history; (2) his age of 

twenty-six with “a significant life ahead of him” including 

“goals” and “aspirations”; (3) his openness to receiving 

treatment; (4) his employment prospects and strong family 

support; and (5) his desire to complete college-type courses.

¶13 The State asked for the presumptive sentence of fifteen 

years to life, arguing that the longer sentence would give 
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20151063-CA 5 2019 UT App 7

Victim time to grow into adulthood without having “to 

look over her shoulder at parole hearings” for Coombs. The State 

also asserted that “no amount of mitigating circumstances” 

could outweigh the circumstances of the abuse Coombs 

committed. The State noted that Coombs was in a position of 

trust and knew of prior abuse that Victim had suffered. 

Furthermore, Victim was of a “truly . . . vulnerable age” and was 

abused over a three-year period. And the abuse was not 

momentary or incidental but involved grooming and repeated 

instances of oral sex and rape. The State summarized its position 

in regard to mitigation: “[T]his is not a momentary touching in 

passing. This was a calculated thing knowing that he had a 

vulnerable victim that he preyed upon. . . . [Y]ou’ve got . . . three 

to four years of sexual offending. So again this is not a just 

momentary bad day.”

¶14 Before imposing the sentence, the court specifically 

considered whether to “depart from the presumptive sentence”

of fifteen years to life “in order to achieve the interests of 

justice.” The court acknowledged Coombs’s limited 

criminal history, acceptance of responsibility, strong family 

support, relative youth, amenability to supervision, desire for 

treatment, and remorse as mitigating circumstances. But the 

court also recognized aggravating circumstances, including the 

number of charges, the young age and vulnerability of Victim, 

the severity of Coombs’s actions (i.e., repeated attempts to 

commit rape and sodomy on a child), Coombs’s knowledge of 

Victim having been abused in the past, showing pornography to 

Victim in an attempt to normalize the behavior, and Coombs’s 

possession of child pornography where other minors were 

victimized. The court advised Coombs that its sentence was “not 

about imposing a judgment that [found him] one hundred 

percent evil,” but the court clarified that what Coombs “did to 

this child was evil.” Thus, the trial judge concluded, “In good 

conscience, I cannot find that the interests of justice are 

served by a lower range. You have committed great harm to this 

child, and you need to be—society needs to hold you 

accountable for that.”
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20151063-CA 6 2019 UT App 7

¶15 The court sentenced Coombs to: (1) fifteen years to life for 

attempted rape of a child; (2) fifteen years to life for attempted 

sodomy on a child; and (3) eleven terms of one to fifteen years 

for sexual exploitation of a minor. All the sentences were 

ordered to run concurrently with each other.

ISSUES AND STANDARDS OF REVIEW

¶16 On appeal, Coombs challenges the sentences he received 

for attempted rape and attempted sodomy1 by asserting that his 

plea counsel was ineffective in failing to argue for 

proportionality in sentencing under the interests-of-justice 

framework articulated by the Utah Supreme Court in LeBeau v. 

State, 2014 UT 39, 337 P.3d 254.2 “An ineffective assistance of 

counsel claim raised for the first time on appeal presents a 

question of law,” which we review for correctness. State v. Clark, 

2004 UT 25, ¶ 6, 89 P.3d 162.

¶17 While not specifically identifying it as a separate issue on 

appeal, Coombs also advances the argument that the sentencing 

court “erred . . . when it did not engage in the proportionality 

analysis” required by LeBeau. This argument differs from 

Coombs’s ineffective assistance of counsel argument in that it 

alleges error in how the district court sentenced Coombs. “When 

evaluating a sentencing determination, we traditionally afford 

 

1. Coombs does not challenge the sentences he received for 

sexual exploitation of a minor.

2. LeBeau requires sentencing courts to consider “(1) the 

seriousness of the defendant’s conduct in relation to the severity 

of the sentence imposed” and “(2) the severity of the sentence 

imposed in light of sentences imposed for other crimes in the 

same jurisdiction” when conducting a statutorily required 

“interests-of-justice analysis.” LeBeau v. State, 2014 UT 39, ¶ 41, 

337 P.3d 254.
State v. Coombs

20151063-CA 7 2019 UT App 7

the [sentencing] court wide latitude and discretion. Thus, we 

will reverse a . . . court’s sentencing decision only if it is an abuse 

of the judge’s discretion.” State v. Moa, 2012 UT 28, ¶ 34, 282 P.3d 

985 (cleaned up). 

ANALYSIS

I. Coombs Fails to Show That His Counsel Performed Deficiently

¶18 To establish that his attorney was ineffective, Coombs 

must prove both prongs of the Strickland test, namely, (1) that his 

counsel performed deficiently and (2) that he was prejudiced as 

a result. Strickland v. Washington, 466 U.S. 668, 687 (1984). 

Coombs first “must show that counsel’s performance was 

deficient. This requires showing that counsel made errors so 

serious that counsel was not functioning as the ‘counsel’ 

guaranteed the defendant by the Sixth Amendment. Second, 

[Coombs] must show that the deficient performance prejudiced 

the defense.” See id.

¶19 “It is not necessary to address both parts of the [Strickland] 

test when the defendant makes an insufficient showing on one.”

State v. Veale, 2012 UT App 131, ¶ 5, 278 P.3d 153. Specifically,

“there is no reason for a court deciding an ineffective assistance 

claim to approach the inquiry in the same order or even to 

address both components of the inquiry if the defendant makes 

an insufficient showing on one.” Strickland, 466 U.S. at 697. 

Because we conclude that Coombs has failed to show that his 

counsel performed deficiently, we will refrain from analyzing 

the second prong.

¶20 To succeed on the first prong of the Strickland test, 

Coombs “must overcome the strong presumption that his trial 

counsel rendered adequate assistance by persuading the court 

that there was no conceivable tactical basis for counsel’s actions. 

The court gives trial counsel wide latitude in making tactical 

decisions and will not question such decisions unless there is no 
State v. Coombs

20151063-CA 8 2019 UT App 7

reasonable basis supporting them.” State v. Clark, 2004 UT 25, 

¶ 6, 89 P.3d 162 (cleaned up). Therefore, Coombs must overcome 

the presumption that his counsel’s actions at sentencing might 

conceivably be considered sound trial strategy. See Benvenuto v. 

State, 2007 UT 53, ¶ 19, 165 P.3d 1195. Furthermore, “counsel’s

representation must be only objectively reasonable, not flawless 

or to the highest degree of skill.” Dows v. Wood, 211 F.3d 480, 487 

(9th Cir. 2000); see State v. King, 2018 UT App 190, ¶ 14 (“This 

standard does not guarantee an error-free trial.”). Performance is 

deficient under Strickland only when “no competent attorney” 

would have so acted. Premo v. Moore, 562 U.S. 115, 124 (2011). 

Thus, if this court is able to conceive of a reasonable tactical basis 

for trial counsel’s actions, then Coombs has not rebutted the 

strong presumption that his counsel performed reasonably. See 

Clark, 2004 UT 25, ¶ 7.

¶21 And this court can readily conceive of a reasonable 

tactical basis for Coombs’s counsel’s decision not to prompt the 

sentencing court to engage in the proportionality analysis

discussed in LeBeau. See LeBeau v. State, 2014 UT 39, ¶ 37, 337 

P.3d 254.3 We can formulate a tactical basis for trial counsel’s 

 

3. In State v. Martin, 2017 UT 63, 423 P.3d 1254, the Utah 

Supreme Court declined to reverse a sentencing court for failure 

to apply the framework of LeBeau where a formal 

proportionality analysis was not undertaken on the record. 

Recognizing the “daunting task” involved in undertaking a 

proportionality analysis, the Martin court stated: “[I]t is certainly 

not a task that we can require our district courts to perform 

without prompting or guidance from counsel.” Id. ¶ 66. We 

cannot read LeBeau and Martin as removing from defense 

counsel the discretion not to make certain arguments at 

sentencing. See generally Martin, 2017 UT 63; LeBeau, 2014 UT 39. 

Every case is different and defense counsel must retain wide 

discretion in determining what arguments will best benefit a 

client under the totality of the circumstances.
State v. Coombs

20151063-CA 9 2019 UT App 7

decision to avoid the topic of proportionality regarding (1) the 

potential relation to the gravity of Coombs’s crimes and (2) the 

potential comparison to the sentences imposed for other crimes 

in Utah. Because there are conceivable tactical bases for counsel’s 

decision to avoid the topic of proportionality, we conclude that 

Coombs has failed to show deficient performance and 

accordingly the claim of ineffective assistance fails. We address 

each of Coombs’s grievances in turn.

A. The Gravity of Coombs’s Crimes

¶22 Coombs first argues that his counsel acted deficiently in 

failing to direct the sentencing court’s attention to its duty to 

compare the gravity of Coombs’s offenses with the harshness of 

the penalty he might receive. See LeBeau v. State, 2014 UT 39, 

¶ 42, 337 P.3d 254.4 However, we conclude that it was reasonable 

for counsel to avoid comparing Coombs’s conduct with the 

severity of his sentencing, focusing instead on highlighting 

mitigating factors, namely, Coombs’s remorse, family support, 

willingness to engage in treatment, and lack of criminal history.

¶23 Arguing proportionality would not only have 

undermined the attempt to focus on Coombs’s positive 

attributes, but it would have necessitated counsel to delve into 

the gravity of Coombs’s sexual abuse of Victim. Over the course 

of several years, Coombs raped and sodomized Victim. He 

groomed her into fulfilling his sexual depravities by showing her 

pornographic pictures. He warped her perception of normal 

father-daughter activities by conning her into believing that 

sexual intimacy between father and daughter is normal and 

acceptable. He snuck into her room to take nude photographs of 

 

4. In our view, LeBeau constitutes blatant policy-based ad hoc 

review of legislative action not typically undertaken by the 

judicial branch. See LeBeau, 2014 UT 39, ¶¶ 26–37. We would 

hope that, given the appropriate opportunity, our supreme court 

will revisit whether LeBeau’s approach should continue.
State v. Coombs

20151063-CA 10 2019 UT App 7

her while she slept. He also victimized other children by 

downloading images of child pornography. And his abuse 

would have continued indefinitely but for Victim’s courage to 

inform others of the violence she had been suffering.5

 

5. On appeal, Coombs makes much of the fact that his crimes 

against Victim were not “violent.” His brief states that while 

Coombs “did admit to having oral and vaginal sex with 

[Victim], . . . there were never allegations of threats or physical 

harm.” This court strongly disagrees with this characterization 

of child sexual abuse. While there may have been no threats of 

physical harm, Victim stated in the original police report that 

Coombs threatened to leave the family if Victim, who was six 

years old at the time, did not agree to perform oral sex on him. 

Victim refrained from telling her mother about the abuse 

because she feared doing so would ruin her brothers’ lives, 

presumably because Coombs would be forced to leave the 

family. And even if there were no threats of bruise-causing 

violence, attempting to sodomize and rape a child is violent per 

se. Our own supreme court has noted that the Utah Legislature, 

in establishing a sentencing scheme for sexual offenses, 

“signaled its judgment that sexual crimes, which intrude on the 

fundamental bodily integrity of the victim like no others short of 

murder, are serious enough to warrant a sentence of [life 

without the possibility of parole].” LeBeau, 2014 UT 39, ¶ 49 

(emphasis added). “And sexual crimes, particularly those 

involving children, represent an especially heinous form of bodily 

insult.” Id. ¶ 50 (emphasis added). The facts in this case support 

the conclusion that the abuse Victim suffered constituted a 

violent assault on the dignity of her person. Victim continues to 

suffer psychological and emotional harm from Coombs’s years 

of abuse. Victim is “still mad, angry,” has “really bad outbursts,” 

and “goes through [pain] every day.” Victim will likely suffer 

from the effects of Coombs’s abuse for the rest of her life. As the 

State aptly notes in its appellate brief, “[T]he fact that [Coombs] 

may not have drawn blood or threatened [Victim] with a 

(continued...)
State v. Coombs

20151063-CA 11 2019 UT App 7

¶24 Had Coombs’s counsel argued for an interests-ofjustice proportionality analysis, he would have been forced to 

address and thereby highlight the profound gravity of Coombs’s 

sexual abuse of Victim. LeBeau requires a sentencing court to 

consider the “proportionality of the defendant’s sentence in 

relation to the severity of his offense.” Id. ¶ 37 (emphasis added). 

Thus, Coombs’s counsel would have necessarily been required 

to promote the questionable assertion that Coombs’s abuse of 

Victim proportionately deserved only a three-year sentence. 

Acknowledging the gravity of Coombs’s crimes while requesting 

a minimum sentence may have stretched the bounds of credulity 

well beyond the breaking point. Such an approach would have 

carried with it the significant risk that the sentencing court 

would conclude that, because Coombs failed to appreciate the 

gravity of his crimes, it should seriously consider the imposition 

of consecutive sentences. Indeed, focusing on Coombs’s positive 

attributes—the mitigating factor approach—to the exclusion of a 

proportionality exercise was by far the more persuasive and 

reasonable strategy given the extent of Coombs’s abuse of 

Victim. 

B. Sentences Imposed for Other Crimes

¶25 Coombs also argues that his counsel was ineffective for 

failing to alert the court to its duty to “compare the sentence 

being imposed [on Coombs] to the sentences imposed for other 

crimes in Utah.” LeBeau v. State, 2014 UT 39, ¶ 47, 337 P.3d 254. 

But we reach a contrary conclusion because it was reasonable for 

counsel to avoid comparing the sentence for Coombs’s crimes 

with those imposed for similar crimes in Utah. Comparing 

Coombs’s sentence with the statutory sentences for more or less 

serious crimes would have, again, served only to highlight the 

 

(...continued)

weapon to get her to submit does not mean that his crimes were 

non-violent and did not harm [Victim].”
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20151063-CA 12 2019 UT App 7

gravity of Coombs’s crimes and the favorable plea deal he 

received. 

¶26 Any discussion of sentencing comparison for similar 

crimes would have necessarily included the sentencing schemes 

for child rape and child sodomy. These are the very crimes with 

which Coombs was originally charged and which he admitted to 

committing. The Utah Code states that “any touching, however 

slight, is sufficient to constitute the relevant element of . . . rape 

of a child.” Utah Code Ann. § 76-5-407(2)(b) (LexisNexis 2017); 

see also id. § 76-5-402.1(1) (defining rape of a child).6 And “any 

touching, even if accomplished through clothing, is sufficient to 

constitute the relevant element of . . . sodomy on a child.” Id.

§ 76-5-407(3); see also id. § 76-5-403.1(1) (defining sodomy on a 

child). The sentence for these offenses is twenty-five years to life. 

See id. §§ 76-5-402.1(2)(a), 76-5-403.1(2)(a). Given that Coombs 

was originally charged with two counts of each crime related to 

his abuse of Victim, he faced a possible sentence guaranteed to 

have almost twice as long a prison stay before parole could be 

considered. See State v. Gray, 2016 UT App 87, ¶ 27, 372 P.3d 715 

(“The legislature has explicitly empowered sentencing courts to 

impose consecutive sentences.”). In contrast to the effective life 

sentence that Coombs could have received for the sexual abuse 

he admitted inflicting on Victim, he received a fifteen-year-to-life

sentence, making him eligible for parole at a relatively young 

age given the gravity of his crimes.

¶27 We conclude that Coombs’s counsel acted reasonably in 

focusing on mitigating factors rather than comparing sentencing 

options for his crimes with statutory sentencing schemes for 

other crimes. The State would have likely responded to a 

 

6. Because the relevant statutory provisions in effect when 

Coombs asserts that his counsel provided ineffective assistance

(i.e., at sentencing in December 2015) do not differ in any 

material way from those now in effect, we cite the current 

version of the Utah Code for convenience.
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20151063-CA 13 2019 UT App 7

proportionality argument by pointing out that Coombs had 

already avoided a much longer sentence in his plea deal—and 

now had the audacity to argue that the “proportionality 

principle” of “fairness” mandated the court to incarcerate him 

for a minimum sentence of three years to life. See LeBeau, 2014 

UT 39, ¶ 47. Indeed, such a comparison would have highlighted 

the favorable plea deal Coombs received. And it could have 

resulted in the sentencing court deciding to impose consecutive 

sentences against the State’s recommendation, thinking that the 

defendant did not appreciate the gravity of his actions. Thus, 

there was a conceivable tactical basis for counsel’s actions 

because arguing mitigation represented the safer course for 

Coombs.

II. The Sentencing Court Was Not Required to Engage in an 

Explicit LeBeau Analysis Without Prompting from Counsel

¶28 Coombs also argues that the sentencing court “erred . . . 

when it did not engage in the proportionality analysis” required 

by LeBeau. But courts can be presumed to have engaged in the 

proportionality analysis. See State v. Alvarez, 2017 UT App 145, 

¶ 4, 402 P.3d 191. It is well-established that, “[a]s a general rule, 

Utah courts presume that the [sentencing] court made all the 

necessary considerations when making a sentencing decision.” 

State v. Monzon, 2016 UT App 1, ¶ 21, 365 P.3d 1234 (cleaned up); 

see also State v. Moa, 2012 UT 28, ¶ 35, 282 P.3d 985 (same); State 

v. Helms, 2002 UT 12, ¶ 11, 40 P.3d 626 (“[W]e will not assume 

that the [sentencing] court’s silence, by itself, presupposes that 

the court did not consider the proper factors as required by 

law.”); Alvarez, 2017 UT App 145, ¶ 4 (stating that the sentencing 

court’s silence does not necessarily indicate the court did not 

consider required factors).7

 

7. In support of his argument that under LeBeau the sentencing 

court must conduct an explicit interests-of-justice analysis, 

Coombs cites State v. Jaramillo, 2016 UT App 70, ¶ 39, 372 P.3d 

(continued...)
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20151063-CA 14 2019 UT App 7

¶29 Furthermore, to the extent Coombs argues that the 

sentencing court plainly erred by not explicitly conducting on 

the record a proportionality analysis sua sponte, we agree with 

our supreme court that sentencing courts are required to 

conduct the analysis only when the parties raise the issue. See

State v. Martin, 2017 UT 63, ¶ 66, 423 P.3d 1254. “Ranging across 

the criminal code in an effort to (1) identify similar offenses and 

(2) compare their sentencing schemes to the sentence [Coombs] 

received . . . . is certainly not a task that we can require our 

[sentencing] courts to perform without prompting or guidance 

from counsel.” Id. And LeBeau itself implicitly acknowledges this 

limitation of the requirement to conduct a proportionality 

analysis, stating, “[C]ourts should consider all relevant facts 

raised by the parties about the defendant’s crime in relation to the 

harshness of the penalty.” LeBeau v. State, 2014 UT 39, ¶ 42, 337 

P.3d 254 (emphasis added); see also State v. Norton, 2018 UT App 

82, ¶ 79, 427 P.3d 312 (“[W]e will not fault the court for failing to 

conduct a sua sponte review of the Utah Code to identify similar 

offenses and then compare their sentencing schemes to the 

sentence it intended to impose on [the defendant].” (cleaned 

up)), cert. granted, 429 P.3d 465 (Utah 2018).

¶30 As we noted in the previous section analyzing the 

ineffective assistance claim, Coombs’s counsel had a conceivably 

rational tactical basis for not advancing a proportionality 

argument before the sentencing court. But it does not follow that

 

(...continued)

34. As we explained in State v. Alvarez, 2017 UT App 145, 

402 P.3d 191, Jaramillo’s rationale does not apply to defendants 

who were sentenced after LeBeau was issued: “Because LeBeau

and its proportionality requirement predated [the defendant’s] 

sentence, and because [the defendant] has not demonstrated 

that our presumption of appropriate sentencing consideration 

is inapplicable, we assume that the sentencing court duly 

considered the proportionality of [the defendant’s] sentence.” 

Id. ¶ 4.
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20151063-CA 15 2019 UT App 7

the sentencing court did not engage in a proportionality analysis 

just because Coombs’s counsel did not ask it to do so. Indeed,

nothing in the record overcomes the presumption that the 

sentencing court engaged in a proportionality analysis before 

imposing the sentence.8 To the contrary, the sentencing court 

specifically considered the question of whether to depart from 

the presumptive sentence of fifteen years to life “in order to 

achieve the interests of justice.” The court also addressed the 

severity of Coombs’s conduct when it advised him that what he 

“did to this child was evil.” The severity of Coombs’s abuse was 

further highlighted when the court told Coombs that “society 

needs to hold [him] accountable for” the “great harm to this 

child.”

¶31 Thus, we conclude that Coombs has failed to overcome 

the presumption of appropriate sentencing consideration by the 

sentencing court.

CONCLUSION

¶32 This court finds Coombs’s arguments unpersuasive. First, 

Coombs has not shown deficient performance of his counsel in

highlighting mitigating circumstances and foregoing a request 

that the sentencing court engage in a proportionality analysis. 

Second, we conclude that the presumption of appropriate 

sentencing considerations has not been overcome. 

¶33 Affirmed.

 

8. Coombs suggests that the sentencing court’s failure to use the 

term “proportionality” indicates that the presumption of 

appropriate sentencing consideration has been overcome. 

However, we note that LeBeau nowhere requires the court to 

invoke the term “proportionality” as an incantation to fulfill its 

obligations at sentencing. See generally LeBeau, 2014 UT 39.