2017 UT App 178

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

MICHAEL SHAUN IREY,

Appellant.

Per Curiam Opinion

No. 20160815-CA

Filed September 21, 2017

Fourth District Court, Provo Department

The Honorable Samuel D. McVey

No. 161401074

Emily Adams, Attorney for Appellant

Sean D. Reyes and Marian Decker, Attorneys

for Appellee

Before JUDGES GREGORY K. ORME, JILL M. POHLMAN, and DIANA 

HAGEN.

PER CURIAM:

¶1 Appellant Michael Shaun Irey appeals his sentence to 

concurrent prison terms of five-years-to-life on his conviction for 

operation or possession of a clandestine laboratory, a first degree 

felony, zero-to-five years on his conviction for distribution of a 

controlled substance, a third degree felony, and zero-to-365 days 

on his conviction for attempted aggravated assault, a class A 

misdemeanor. 

¶2 We review sentencing decisions for an abuse of discretion, 

State v. Neilson, 2017 UT App 7, ¶ 15, 391 P.3d 398, and we will 

find abuse only “if it can be said that no reasonable [person] 

would take the view adopted by the [sentencing] court,” State v. 

Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d 1167 (first alteration 
State v. Irey

20160815-CA 2 2017 UT App 178

in original) (citation and internal quotation marks omitted). A 

district court has broad discretion in deciding whether to order 

probation, because the “granting or withholding of probation 

involves considering intangibles of character, personality and 

attitude.” State v. Rhodes, 818 P.2d 1048, 1049 (Utah Ct. App. 

1991) (citation and internal quotation marks omitted). “The 

defendant is not entitled to probation, but rather the court is 

empowered to place the defendant on probation if it thinks that 

will best serve the ends of justice and is compatible with the 

public interest.” Id. at 1051. 

¶3 Irey raises two claims on appeal. First, he contends that 

the district court failed to satisfy its statutory obligation under 

Utah Code section 77-18-1(6)(a) to resolve alleged inaccuracies in 

the presentence investigation report (PSI). See Utah Code Ann. 

§ 77-18-1(6)(a) (LexisNexis Supp. 2016). Second, he contends that 

the district court abused its discretion in sentencing him to 

prison rather than granting him probation. The State concedes 

that the district court failed to resolve alleged inaccuracies in the 

PSI and that this case should be remanded for the limited 

purpose of resolving the alleged inaccuracies. However, the 

State also contends that Irey’s sentence should be affirmed

because the inaccuracies in need of correction were brought to 

the district court’s attention at the time of sentencing. 

¶4 At sentencing, Irey’s counsel noted that the PSI 

incorrectly stated that Irey had an extensive history of substance 

abuse related arrests. Defense counsel also claimed that the PSI

incorrectly stated that Irey had three probations that were 

terminated unsuccessfully, while elsewhere stating that Irey had 

“no history of previous supervised probation on record as an 

adult.” The PSI included no statements regarding the duration 

or outcome of any juvenile probation. Defense counsel also took 

issue with the PSI’s assessment of Irey’s attitude and lack of 

remorse. The district court asked if Irey wanted a new PSI 

“because there are obviously a couple of errors in here.” 

However, defense counsel declined, asking to “go forward with 

this report given the fact that [counsel had] made the 
State v. Irey

20160815-CA 3 2017 UT App 178

corrections.” The State also agreed on the record that the score 

for Irey’s criminal history in the sentencing recommendation 

should be reduced from “one” to “zero.” 

¶5 “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 (citation and internal quotation marks omitted). The 

State agrees that this case should be remanded for the limited 

purpose of resolving alleged inaccuracies in the PSI. While the 

district court considered and acknowledged Irey’s objections at

sentencing, the district court did not indicate on the record its 

determinations of accuracy and relevance. Because “the PSI will 

follow [Irey] through the justice system . . . it is important to 

make appropriate corrections to the report.” State v. Monroe, 2015 

UT App 48, ¶ 10, 345 P.3d 755. Accordingly, a limited remand is 

necessary to allow the district court to resolve that issue. 

¶6 Although we agree that Irey’s objections were not 

adequately resolved on the record, we conclude that the district 

court properly considered the objections before it sentenced Irey. 

See id. ¶ 8 (“We are not convinced that the district court’s failure 

to resolve Defendant’s objections requires reversal and 

resentencing.”). The record reflects that the district court 

“accepted the general accuracy of [the] corrections for purposes 

of imposing sentence.” Id. ¶ 9. There is no indication in the 

record that the district court relied on the allegedly inaccurate 

information at sentencing. Furthermore, Irey does not 

specifically argue that the inaccuracies in the PSI prejudiced him 

in sentencing, although Irey does argue that this court should 

not affirm his sentence on other grounds.

¶7 The district court identified two aggravating 

circumstances: unusually extensive property damage—in the 

approximate amount of $90,000—as a result of a fire caused by 

Irey’s operation of a clandestine lab and Irey’s threatening a 

potential drug purchaser with a gun. The district court identified 
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20160815-CA 4 2017 UT App 178

the mitigating circumstance that Irey was a fairly youthful 

offender. Based upon the information before it, including the 

inaccuracies in the PSI brought to the court’s attention, the 

district court concluded that Irey was not an appropriate 

candidate for probation. 

¶8 Irey argues that the district court abused its discretion by 

failing to adequately weigh aggravating and mitigating 

circumstances.1 A defendant in a criminal case “is not entitled to 

probation.” State v. Rhodes, 818 P.2d 1048, 1051 (Utah Ct. App. 

1991). An appellate court will not overturn the denial of 

probation unless it is “clear that the actions of the judge were so 

inherently unfair as to constitute an abuse of discretion.” Id. 

(emphasis omitted) (citation and internal quotation marks 

omitted). Irey has not demonstrated that the district court’s 

decision to sentence him to the statutory prison term was 

inherently unfair. His argument essentially “amounts to a 

disagreement with how the sentencing court weighed 

aggravating and mitigating factors. As we have previously 

stated, this is insufficient to demonstrate an abuse of discretion.” 

State v. Alvarez, 2017 UT App 145, ¶ 6. 

¶9 We remand for the limited purpose of resolving Irey’s 

objections to the PSI and affirm in all other respects. See Samulski, 

2016 UT App 226, ¶ 24.

 

1. Irey’s reliance on State v. Moreno, 2005 UT App 200, 113 P.3d 

992, for the proposition that the sentencing court was required to 

state on the record how it weighed aggravating and mitigating 

circumstances is misplaced. Moreno addressed a statutory 

requirement to state the rationale for imposing the lesser or 

greater of three statutory minimum mandatory terms prescribed 

by statute for the offense involved in that case. Id. ¶ 9. That 

situation is not present in Irey’s case.