2017 UT App 103

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

KEVIN MICHAEL SCOTT,

Appellant.

Opinion

No. 20130309-CA

Filed June 29, 2017

Fifth District Court, Cedar City Department

The Honorable G. Michael Westfall

No. 121500045

Matthew D. Carling, Attorney for Appellant

Sean D. Reyes and Kris C. Leonard, Attorneys

for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES

J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.

ROTH, Judge:

¶1 Kevin Michael Scott pleaded guilty to sexual abuse of a 

child and possession or use of a controlled substance.1 He 

appeals, claiming that he received constitutionally ineffective 

assistance of counsel prior to entering his plea, that the 

sentencing court erred in failing to sua sponte revisit his plea 

based on evidence of mental deficiency, and that the court failed 

to properly consider mitigating factors when it sentenced him. 

We affirm.

 

1. Scott’s convictions arose in separate cases below. We granted 

his motion to consolidate them on appeal.
State v. Scott

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¶2 In 2011, a detective interviewed a young teenager at the 

local Children’s Justice Center. The teenager disclosed that she 

had been involved in a sexual relationship with Scott when she 

was thirteen and he was eighteen. After learning that 

information, the detective brought Scott in for questioning about 

the relationship. Scott waived his Miranda rights, agreed to speak 

to the detective, and admitted to having sexual intercourse with 

the girl—then his girlfriend—on multiple occasions. The State 

charged Scott with rape of a child, a first degree felony. 

¶3 While that charge was pending and he was out on bail,

Scott failed to appear for a court hearing. The court therefore 

issued a bench warrant for Scott’s arrest, and the next day an 

officer stopped Scott based on the warrant. Scott initially resisted 

arrest by running away, but the officer caught him. The officer 

conducted a pat down search and discovered several pills that 

later tested positive for morphine. The State charged Scott with 

possession or use of a controlled substance, enhanced to a 

second degree felony due to proximity to a child-care facility, 

failure to stop at the command of a police officer, a class A 

misdemeanor, and interference with an arresting officer, a class 

B misdemeanor. After he was again released on bail, Scott 

absconded to Washington and another warrant issued for his 

arrest. Scott was eventually found in Washington and returned 

to Utah for trial.

¶4 Scott agreed to plead guilty to sexual abuse of a child, a 

second degree felony, and possession or use of a controlled 

substance, a third degree felony, in return for dismissal of the 

remaining charges. At the plea hearing, the court went through a 

colloquy with Scott, who indicated that he had no mental or 

physical deficiencies that would interfere with his ability to enter 

a guilty plea. Scott also indicated that he understood his rights 

and the basis for the charges against him and that he was 

satisfied with the representation he had received from defense 

counsel. The court then heard the factual basis for both pleas, 

confirmed that Scott knew he would be giving up important 
State v. Scott

20130309-CA 3 2017 UT App 103

rights by pleading guilty, and explained that he would need to 

register as a sex offender for life. Finally, the court accepted both 

guilty pleas and found that they were “freely, knowingly, 

intelligently and voluntarily made with understanding.” 

¶5 At sentencing, the court relied on information from a 

number of sources, including a neuropsychological evaluation 

prepared by the defense and a presentence investigation (PSI) 

report prepared by the State. The neuropsychological evaluation 

summarized Scott’s cognitive abilities as “impaired to low 

average.” The PSI report detailed Scott’s criminal and family 

histories and briefly described the results of the 

neuropsychological evaluation, a copy of which was attached to 

the report. After balancing “the safety of the community against 

the wants and needs of the defendant,” the PSI report ultimately 

recommended that “imprisonment best suited the situation.” 

The court also considered oral statements from Scott, the State, 

defense counsel, and Scott’s mother and father, as well as 

written statements from other family members and friends. The 

statements focused on mitigating circumstances such as Scott’s 

good nature and aptitude for rehabilitation. The court also heard 

statements which explained that Scott’s diminished executive 

reasoning, as detailed in the PSI report, was the result of a 

traumatic brain injury he had suffered some years earlier. The 

court sentenced Scott to serve concurrent terms of one to fifteen 

years for sexual abuse of a child and zero to five years for 

possession or use of a controlled substance.

¶6 On appeal, Scott argues that he received ineffective 

assistance of counsel because his attorney did not move to 

suppress the controlled-substance evidence on Fourth 

Amendment grounds. Scott also argues that, because the PSI 

report and neuropsychological evaluation indicated he had 

impaired cognitive abilities, the sentencing court committed 

plain error when it failed to reexamine sua sponte whether 

Scott’s guilty plea was knowing and voluntary.
State v. Scott

20130309-CA 4 2017 UT App 103

¶7 Our jurisdiction to consider these arguments is governed 

by the procedural posture of this case. The Utah Constitution 

provides that the accused generally has “the right to appeal in all 

cases.” Utah Const. art. I, § 12. The right to appeal is not 

absolute, however, because “guilty pleas operate as a waiver of 

the right to a direct appeal of the conviction on the crime 

charged.” State v. Taufui, 2015 UT App 118, ¶ 15, 350 P.3d 631 

(brackets, citation, and internal quotation marks omitted). “If a 

defendant wishes to challenge a guilty plea on direct appeal, he 

must first move to withdraw the plea . . . .” State v. Coleman, 2013 

UT App 131, ¶ 3, 302 P.3d 860 (per curiam). “If a defendant does 

not move to withdraw the plea, the only direct appeal available 

is the residual right to appeal the sentence.” State v. Nicholls, 2017 

UT App 60, ¶ 20. Indeed, failure to seek to withdraw a guilty 

plea creates a bar that prohibits this court from reviewing on 

direct appeal the plea itself or any proceeding that led to it. See

State v. Ott, 2010 UT 1, ¶ 18, 247 P.3d 344 (“[F]ailure to withdraw 

a guilty plea within the time frame dictated by [Utah’s plea 

withdrawal statute] deprives the trial court and appellate courts 

of jurisdiction to review the validity of the plea.”).

¶8 In this case, Scott challenges his convictions for crimes he 

pleaded guilty to. Because he never moved to withdraw his plea, 

we lack jurisdiction to consider any challenge not directed at the 

sentence he received. See id. That rule applies regardless of the 

nature of the errors—here, ineffective assistance of counsel and 

plain error—that Scott alleges occurred below. In State v. 

Rhinehart, our supreme court explained that, “by pleading guilty, 

the defendant . . . waives all nonjurisdictional defects, including 

alleged pre-plea constitutional violations.” 2007 UT 61, ¶¶ 14–15, 

167 P.3d 1046 (citation and internal quotation marks omitted) 

(rejecting on jurisdictional grounds an ineffective assistance of 

counsel claim raised on direct appeal following a guilty plea). 

And in State v. Reyes, the supreme court made clear that an 

appellate court cannot “use plain error to reach an issue over 

which it has no jurisdiction.” 2002 UT 13, ¶ 4, 40 P.3d 630. These 
State v. Scott

20130309-CA 5 2017 UT App 103

principles control our decision—we are powerless to address 

either of Scott’s first two arguments on appeal.

¶9 Scott’s remaining claim relates to his sentence, which we 

do have jurisdiction to review. See Nicholls, 2017 UT App 60, 

¶ 20. He argues that the court “failed to take into consideration 

the mitigating circumstances of Scott’s mental competency and 

[brain] injury” when it sentenced him. In support of his 

argument, Scott contends that, even though the “court [had] 

ample time to review [the] PSI and the Neuropsychological 

Evaluation,” “at sentencing it was clear that the court had taken 

none of [the mitigating circumstances from] the report[s] into 

consideration.” As proof, he focuses on the sentencing court’s 

statement that, but for Scott’s young age, “this would [have 

been] a really easy case” to sentence. As we understand it, Scott 

contends that this statement shows that the court ignored all 

mitigating factors other than the defendant’s age.

¶10 We afford the sentencing court wide latitude and will 

reverse a sentencing decision “only if it is an abuse of the judge’s 

discretion.” State v. Moa, 2012 UT 28, ¶ 34, 282 P.3d 985 (citation 

and internal quotation marks omitted). A sentence constitutes an 

abuse of discretion when the sentencing court “fails to consider 

all legally relevant factors, or . . . the sentence imposed is clearly 

excessive.” LeBeau v. State, 2014 UT 39, ¶ 16, 337 P.3d 254 

(citation and internal quotation marks omitted). We will thus 

find an abuse of discretion only if “no reasonable person would 

take the view adopted by the district court.” State v. Monzon, 

2016 UT App 1, ¶ 8, 365 P.3d 1234 (brackets, citation, and 

internal quotation marks omitted). Further, this court generally 

presumes that the sentencing court “made all the necessary 

considerations when making a sentencing decision.” Moa, 2012 

UT 28, ¶ 35. “Although courts must consider all legally relevant 

factors in making a sentencing decision, not all aggravating and 

mitigating factors are equally important, and one factor in 

mitigation or aggravation may weigh more than several factors 

on the opposite scale.” State v. Killpack, 2008 UT 49, ¶ 59, 191 P.3d 
State v. Scott

20130309-CA 6 2017 UT App 103

17 (brackets, citation, and internal quotation marks omitted), 

abrogated on other grounds as recognized by State v. Lowther, 2017 

UT 24.

¶11 The district court here did not make detailed findings of 

fact regarding the mitigating circumstances that Scott focuses on, 

but the record is clear that it considered mitigation broadly, 

including mental deficiency concerns. Indeed, the court brought 

up and investigated the possibility of reducing the severity of 

Scott’s conviction under Utah Code section 76-3-402, a process 

known as a 402 reduction. After noting “that there are some 

instances where a 402 reduction sua sponte by the Court is not 

permitted,” the court asked the State, “Is there any law that 

would prohibit me from reducing this second-degree felony to a 

third-degree felony for purposes of sentencing that you’re aware 

of?” To answer the question, the State and the court analyzed the 

statute. The court ultimately determined that a reduction was 

not available for convictions, like Scott’s, that require lifetime 

registration as a sex offender. See Utah Code Ann. § 76-3-

402(7)(b) (LexisNexis 2012). The court thus considered but was 

legally barred from reducing Scott’s conviction for sentencing 

purposes.

¶12 With that option for a reduced level of crime foreclosed, 

the court sentenced Scott in accord with the PSI report’s 

recommendation that he be committed to prison. In support of 

its decision, the court stated that Scott’s “casting the blame on 

the 13-year-old cause[d the court] a lot of concern.” The court 

also responded to the neuropsychological evaluation, 

particularly regarding Scott’s IQ, stating that the court did not 

“get the impression that [Scott was] struggling intelligencewise,” and that he “[wrote] well” and “express[ed himself] 

well.” And in conversation with Scott, the judge acknowledged 

the difficulty of the situation: “I wish I had more [sentencing] 

option[s] available to me. I do not believe that you are an 

appropriate candidate for probation. I think you’re a threat to . . . 

society for a number of reasons.” In addition to sentencing Scott 
State v. Scott

20130309-CA 7 2017 UT App 103

to prison, the court assessed a fine for the sexual abuse 

conviction. However, it ordered that Scott pay no fine for his 

drug conviction. The court also ordered that Scott serve the two 

sentences concurrently and recommended he receive credit for 

time served. Based on the court’s inability to reduce Scott’s 

conviction and its determination that Scott was not a good 

candidate for probation, the court’s sentencing decision was not 

clearly excessive. See LeBeau, 2014 UT 39, ¶ 16.

¶13 Nor can we conclude that the district court failed to take 

into account the relevant factors in determining Scott’s sentence. 

The court had substantial information in the form of a PSI report, 

a neuropsychological evaluation, letters and statements from 

Scott and his family members, and arguments of his counsel that 

addressed in some detail the mitigating factors that Scott claims 

on appeal the district court ignored, including Scott’s diminished 

mental capacity. We presume that the court fully considered all 

the information presented to it, see Moa, 2012 UT 28, ¶ 35, and 

Scott has not persuaded us that the presumption is undermined 

by the record in this case, which does not support Scott’s 

argument that the court failed to consider any mitigation other 

than his age.

¶14 In State v. Cline, 2017 UT App 50, this court rejected 

arguments that the sentencing court either “failed to consider 

[mitigating] factors” or “improperly weighed the aggravating 

and mitigating factors.” See id. ¶¶ 8–11. We concluded that, 

because the mitigating factors were discussed at the sentencing 

hearing, “[t]o the extent [the appellant] argues the court did not 

consider these factors, this is inaccurate.” Id. ¶ 9. We also noted 

that any argument “that the district court improperly weighed 

the aggravating and mitigating factors” appeared to be a 

“disagreement with the court’s balancing efforts.” Id. ¶ 10. We 

then held that “the court acted well within its discretion” when 

it “gave more weight to the aggravating factors presented 

during the sentencing hearing.” See id. ¶¶ 10–11.
State v. Scott

20130309-CA 8 2017 UT App 103

¶15 As in Cline, Scott appears to take issue with how much 

weight the court assigned to the various mitigating factors 

before it, contending that Scott’s diminished mental capacity was 

more important to the sentencing decision than the court gave it 

credit. However, a disagreement with the court on the 

appropriate weight for a given factor does not show an abuse of 

discretion because “one factor in mitigation or aggravation may 

weigh more than several factors on the opposite scale.” See id.

¶ 10 (brackets, citation, and internal quotation marks omitted). 

Here, the record demonstrates that the court was aware of 

mitigating factors from the written documents and the positive 

statements it received about Scott from his family and friends. 

And particularly because the sentencing court was open to 

reducing the severity of Scott’s sentence—it brought up the 

possibility of a 402 reduction on its own—we can safely infer 

that it considered those mitigating factors. Against that 

backdrop, Scott’s concern for the court’s statement that, but for 

Scott’s young age, “this would [have been] a really easy case” 

takes on different light. In the context of the sentencing hearing 

as a whole, the court’s statement about Scott’s age is reasonably 

read as an indication that the court found age to be the most 

important mitigating factor, not as an indication that the court 

ignored all other mitigating factors. Scott thus has not persuaded 

us that the sentencing court failed to properly consider 

mitigating factors, see id. ¶¶ 10–11, and we cannot say that no 

reasonable person would take the view adopted by the 

sentencing court, see State v. Monzon, 2016 UT App 1, ¶ 8, 365 

P.3d 1234.

¶16 We conclude that we do not have jurisdiction to consider 

Scott’s ineffective assistance of counsel and plain error claims on 

direct appeal, and he has not persuaded us that the court abused 

its discretion in sentencing him. Affirmed.