- Utah has a significant sentencing enhancements for “Habitual Violent Offenders” and “Repeat and Habitual Sex Offenders”
- State law also provides for enhanced sentences based on gang involvement and use of a dangerous weapon
Utah Constitution, Article 1, Section 9: Excessive bail shall not be required; excessive fines shall not be imposed; nor shall cruel and unusual punishments be inflicted. Persons arrested or imprisoned shall not be treated with unnecessary rigor.
Key Sentencing Enhancement Statutes
Offenses Committed in Concert with [Others] (Utah Code Ann. § 76-3-203.1)
Penalty range is increased by one degree if the trier of fact finds beyond a reasonable doubt that the person acted in concert with two or more persons. (Gang Enhancement)
Use of Weapon in Offenses Around School (Utah Code Ann. § 76-3-203.2)
Penalty range is increased by one degree: First degree felony cannot be suspended.
Penalty for Hate Crimes — Civil Rights Violation (Utah Code Ann. § 76-3-203.3)
Penalty range is increased by one degree for a person who commits any primary offense with the intent to intimidate or terrorize.
Habitual Violent Offender (Utah Code Ann. § 76-3-203.5)
Penalty range is increased by one degree.
Use of a Dangerous Weapon (Utah Code Ann. § 76-3-203.8)
Additional year added to the minimum sentence and up to 5 years added to the maximum sentence.
Previous Conviction for Dangerous Weapon Crime(Utah Code Ann. § 76-3-203.8)
Additional 5 to 10 year sentence to run consecutively.
Repeat and Habitual Sex Offenders (Utah Code Ann. § 76-3-407)
The maximum penalty for a sexual offense is increased by 5 years for each conviction of the defendant for a prior sexual offense.
The sentencing decision of a trial court is reviewed for abuse of discretion. This includes the decision to grant or deny probation, and the decision to impose consecutive sentences. See Utah v. Helms, 40 P.3d 626 (Utah 2002).
“An abuse of discretion results when the judge fails to consider all legally relevant factors or if the sentence imposed is clearly excessive.” Utah v. McCovey, 803 P.2d 1234, 1235 (Utah 1990) (citations omitted); see also Utah v. Valdovinos, 82 P.3d 1167 (Utah App. Ct. 2003). But an appeals court “may only find abuse if it can be said that no reasonable [person] would take the view adopted by the trial court.” Valdovinos, supra.
“A defendant is not entitled to probation,” and “[t]he granting or withholding of probation involves considering intangibles of character, personality and attitude, of which the cold record gives little inkling.” Id. Only when the actions of the trial judge are “so inherently unfair as to constitute an abuse of discretion” will an appellate court overturn the trial court's sentence. Id.
It is the defendant’s burden to demonstrate that the district court did not properly consider the relevant factors, and appellate courts “will not assume that the trial court's silence, by itself, presupposes that the court did not consider the proper factors as required by law.” Helms, supra.
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“[T]he test for cruel and unusual punishment in specific applications [is] whether the sentence imposed in proportion to the offense committed is such as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.” Utah v. Russell, 791 P.2d 188, 190 (Utah 1990)
Leading Court Discussions of Graham and Miller
State v. Martinez, 2013 UT 23, 304 P.3d 54 (May 03, 2013) (Graham only applies to juveniles; Graham does not hold that LWOP is identical to death in its constitutional implications and does not discuss victim impact testimony.)
State v. Perea, 2013 UT 68, 322 P.3d 624 (November 15, 2013) (Graham inapplicable to 19-year-old and homicide cases)
Utah v. Gibbons, 2009 WL 2973230, 2009 UT App 261 (Utah App. 2009) (upholding 15-year-to-life sentence for aggravating kidnapping).
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Utah v. Candedo, 232 P.3d 1008 (Utah 2010) (rejecting challenge to nine-year probation term for serious fraud offense, though noting “potential for a trial judge to arbitrarily impose an absurdly long probation period compared to the severity of the crime committed” and suggesting possibility of “a case where a defendant could successfully challenge a probation sentence that is truly arbitrary or discriminatory under the due process clause or prove that the probation statute is cruel and unusual.”).
Utah v. Real Property at 633 East 640 North, Orem, Utah, 994 P.2d 1254 (Utah 2000) (holding that forfeiture of residence was grossly disproportionate penalty, given small size of drug operation and relatively light sentence imposed).
Discussion of State Constitutional Provision
“Except for punctuation and insignificant stylistic changes, the Utah provision tracks the federal provision exactly, except for the last sentence of section 9 [of Article 1 of the Utah Constitution]. Of course, we are free in appropriate circumstances to give the Utah provision a broader interpretation. That is even suggested by the last sentence of section 9, which states: ‘Persons arrested or imprisoned shall not be treated with unnecessary rigor.’ That state constitutional guarantee has no counterpart in the Eighth Amendment. We need not in this case fully explicate the content and limitations of section 9; that is a task better done on a case-by-case basis. Nevertheless, we note that the last sentence of the Utah cruel and unusual punishment provision contained in section 9 is broader than the comparable federal provision.” Utah v. Bishop, 717 P.2d 261 (Utah 1986).
“The unnecessary rigor clause of the Utah Constitution protects persons arrested or imprisoned from the imposition of circumstances on them during their confinement that demand more of the prisoner than society is entitled to require. The restriction on unnecessary rigor is focused on the circumstances and nature of the process and conditions of confinement. By contrast, the cruel and unusual punishment clause in the state constitution is directed to the sentence imposed. While there is some overlap on a factual level, the purposes are different. Torture may be cruel and unusual but strict silence during given hours may not. Strict silence, however, may impose unnecessary rigor or unduly harsh restrictions on the service of one's otherwise proper sentence.” Dexter v. Bosko, 184 P.3d 592 (Utah 2008)