State Of Utah V. David E. Epling

2011 UT App 229
Filed July 21, 2011

The Utah Court of Appeals affirmed the trial court’s decision to impose consecutive rather than concurrent sentences after the defendant pleaded no contest to three counts of sexual abuse of a child.

Mr. Epling was charged with two counts of sodomy upon a child and four counts of aggravated sexual abuse of a child after his stepson revealed in an interview with the Provo Children’s Justice Center that his stepfather had been sexually abusing him over a two year period. Mr. Epling eventually pleaded no contest to three counts of sexual abuse of a child. At the sentencing hearing the court heard arguments from the State and from Mr. Epling’s criminal defense attorneys as well as testimony from the stepson’s uncle and guardian, who testified as to how the abuse had negatively affected the child, and from Mr. Epling’s former employer, who said that in spite of Mr. Epling’s alcohol problems and lack of emotion he would trust him with his own children. The trial court also had access to Mr. Epling’s presentence investigation report (PSI), which contained the results of a polygraph test, and psychosexual evaluation. After considering the evidence, the trial court sentenced Mr. Epling to three consecutive sentences of fifteen years in prison. Through his criminal defense attorneys, Mr. Epling appealed to the Utah Court of Appeals. The court of appeals upheld the trial court’s sentencing decision for the following reasons:

• The trial court considered all of the statutory factors.
  In deciding whether sentences will run concurrently or consecutively, a trial court is required to “consider the gravity and circumstances of the offense, the number of victims, and the history, character and rehabilitative needs of the defendant.” The trial court’s findings on each of these considerations do not have to be on the record as long as “it would be reasonable to assume that the court actually made such findings.” Such was the case here. The trial court’s reference to Mr. Epling’s involvement with ****ography indicated that the court had read the psychosexual report. The trial court’s reference to the CJC video indicated that the court had considered the gravity and circumstances of the offenses. In regards to number of victims, the stepson indicated in the CJC video that he had seen Mr. Epling sexually abuse his half-brother. With regards to Mr. Epling’s rehabilitation, both the criminal defense attorneys and the prosecution had argued the issue before the court. The court determined that based on Mr. Epling’s refusal to take responsibility for the crimes he was not amenable to treatment. Mr. Epling’s criminal defense attorneys argued on appeal that the trial court had stated that it was unaware whether Mr. Epling had taken a polygraph test, information which was included in the PSI. The court of appeals was unpersuaded by this argument because the results of a polygraph test are not a statutory factor that the trial court must consider.
• The trial court was not required to consider Mr. Epling’s claims of innocence in determining his sentence.
  Mr. Epling maintained through sentencing that he was innocent. However, Mr. Epling was repeatedly warned and understood that by pleading “no contest” he was admitting that he had committed the crimes with which he was charged. Therefore, the trial court had no obligation to consider whether he was in fact innocent.
• There was no reason the trial court should not consider Mr. Epling’s involvement with ****ography. Mr. Eplings’s criminal defense attorneys argued that Mr. Epling’s involvement with ****ography could not properly be considered in the court’s determination of his sentence because, as he did not admit to viewing illegal child ****ography, all of his behaviors with regards to ****ography were legal. The court of appeals was unconvinced, holding that there is no law or policy that prevents a trial court from taking into consideration a defendant’s legal activities.
• The trial court did not exceed its discretion by imposing consecutive rather than concurrent sentences.
  A trial court exceeds its discretion when it does not consider the statutory factors, imposes a sentence that exceeds the legal limits, or imposes a sentence that is inherently unfair. None of these things happened in this case. Mr. Epling would have liked the court to place more weight on the mitigating evidence presented by his criminal defense lawyers. But “[t]he fact that the trial court assessed the relevant factors differently than [he] would have liked does not mean that it exceeded its discretion.”