State v. Victoria Asta

HARRIS, Judge

Opinion First District Court, Logan Department
The Honorable Brian G. Cannell
The Honorable Thomas L. Willmore
No. 151100933 Ashley E. Bown, Attorney for Appellant Sean D. Reyes and Jeanne B. Inouye, Attorneys for Appellee JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES DAVID N. MORTENSEN and MICHELE M. CHRISTIANSEN FORSTER concurred. HARRIS, Judge: ¶1 After Victoria Asta pled no contest to charges of burglary and assault against a police officer, the district court sentenced her to prison. Asta now appeals that sentence, asserting that the sentencing judge should have recused himself, and that the court abused its discretion in imposing the sentence. Asta also complains that the court failed to specifically address several of her objections to items contained within the presentence report (PSR). We affirm Asta's sentence, as well as the judge's decision not to recuse himself, but remand for the limited purpose of addressing Asta's objections to items contained within the PSR.

¶2 On a November evening in Cache County, Utah, Asta and her boyfriend (Boyfriend) were out for a drive, with Asta behind the wheel. Boyfriend was wearing a "green tactical shirt" and a shoulder holster and had two handguns with him. At some point, Boyfriend exited the vehicle on foot, donned a ski mask, and broke into a house occupied by an elderly couple. When the husband confronted Boyfriend, Boyfriend pointed his gun at him and ordered him into the basement where his wife was watching television. As the owners were calling 911, Boyfriend helped himself to jewelry and other items from the house, and then fled the scene. ¶3 After completing the burglary, Boyfriend got back in the car that Asta was driving. As they drove away from the scene, they passed a sheriff's deputy who was responding to the owners' 911 call. The deputy activated his overhead lights and attempted to stop Asta's vehicle, but Boyfriend told her to "just keep driving, don't stop," and Asta kept driving. As Asta drove past the deputy, she and Boyfriend tried to hide their faces. The deputy turned to pursue them, and a lengthy and dangerous car chase ensued, one that eventually involved speeds of up to 90 mph in and out of traffic on public roads, as well as detours across open fields. ¶4 The deputy called for assistance, and another officer (Officer) eventually initiated a Pursuit Intervention Technique (PIT) maneuver designed to force the fleeing car to turn sideways and stop. The maneuver worked, and caused Asta's vehicle to spin and come to a stop facing the direction it had been traveling. Officer then pulled his vehicle in front of Asta's in an attempt to box it in, but Asta again refused to stop, this time driving her vehicle forward and causing it to collide with Officer's, then scraping past Officer's vehicle and eventually escaping. Officer later described the encounter as one in which Asta "rammed" his vehicle. mentioned that she did not "believe [the police] found any snacks in the car that she claimed she was going after." ¶12 At the conclusion of the sentencing hearing, the court sentenced Asta to prison on each count, with the sentences to run concurrently. In imposing the sentence, the court stated that it considered Asta's crimes "heinous," and stated its belief that, at least "as it relates to [her] relationship with Boyfriend and the events" in question, Asta had been acting in a "morally bankrupt" manner. The court also stated that it did not credit Asta's explanation that she did not know that Boyfriend was going to commit burglary when he exited the car that night, and stated that it was especially concerned with the danger she had imposed on the members of the community by leading officers on two high-speed car chases. The court also expressed its concern that the crime included the "intentional act of ramming [Officer's] vehicle as described here today." ¶13 Shortly after sentencing, Asta's counsel learned that the sentencing judge had himself been the victim of a home burglary in 2014, the year before the events in question. Asta filed a motion to disqualify, arguing that the burglary biased the judge and that the judge should have recused himself. The motion was referred to the presiding judge, who denied it.

¶14 Asta appeals, and raises three issues for our review. First, Asta asserts that the sentencing judge was obligated to recuse himself because he had been the victim of a home burglary in the year before Asta's crimes, and that the reviewing judge erroneously denied her motion to disqualify the sentencing judge. "Determining whether a trial judge committed error by failing to recuse himself or herself under the Utah Code of Judicial Conduct is a question of law," which we ordinarily review for correctness. State v. Van Huizen, 2017 UT App 30, ¶ 11, 392 P.3d 933 (quotation simplified), cert. granted, 400 P.3d 1044 (Utah 2017). However, if the trial judge "complie[s] exactly with rule 29" of the Utah Rules of Criminal Procedure in handling the motion for disqualification, then the "burden shift[s] to the petitioners" to make an additional showing of either "actual bias or abuse of discretion." State v. Alonzo, 973 P.2d 975, 979 (Utah 1998) (quotation simplified). Additionally, at least in cases in which rule 29 was invoked and followed, see Van Huizen, 2017 UT App 30, ¶¶ 55-63, "any error of the trial judge in failing to recuse" must be disregarded absent a showing of "actual prejudice," see State v. Gardner, 789 P.2d 273, 278 (Utah 1989); see also Utah R. Crim. P. 30(b) ("Any error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded"). ¶15 Second, Asta asserts that the sentencing judge did not finally and thoroughly deal with all of her objections to the PSR. "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 (quotation simplified). ¶16 Third, Asta asserts that the sentencing judge abused its discretion by considering irrelevant or unreliable information and by sentencing her to prison rather than probation. "Because trial courts are afforded wide latitude in sentencing, a court's sentencing decision is reviewed for an abuse of discretion. A court exceeds its discretion if it acts with inherent unfairness in imposing a sentence, imposes a clearly excessive sentence, or fails to consider all legally relevant factors." State v. Neilson, 2017 UT App 7, ¶ 15, 391 P.3d 398 (quotation simplified).

¶17 First, Asta argues that the sentencing judge was obligated to recuse himself because he had been the victim of a residential burglary in 2014, the year prior to the events at issue here. The sentencing judge declined to grant the motion, and instead referred it to the presiding judge, who eventually denied it. We affirm that decision. ¶18 "A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably previously been the victim of any similar crime. The rule Asta advances is far too broad, and we decline to adopt it. We discern no abuse of discretion in the reviewing judge's decision. ¶22 Next, Asta asserts that she sustained actual prejudice as a result of the sentencing judge's participation in the case, and asks for reversal on that basis. See Alonzo, 973 P.2d at 979 (stating that "a trial judge's failure to recuse based on the appearance of bias may be grounds for reversal if actual prejudice is shown" (quotation simplified)). We find Asta's argument unpersuasive. ¶23 First, Asta asserts that the sentencing judge's failure to disclose the fact that he was the recent victim of a home burglary "deprived Asta of the chance to utilize [r]ule 29A of the Utah Rules of Criminal Procedure." That rule, however, only allows for a change of judge as a matter of right if all parties to a case agree. See Utah R. Crim. P. 29A(a) (stating that, in a criminal case, "all parties joined in the action may, by unanimous agreement . . . , change the judge assigned to the action"). Asta offers no indication that the State would ever have agreed to a change of judge, even if Asta had learned of the judge's situation earlier. Accordingly, Asta would not have been able to avail herself of rule 29A in any event. ¶24 Second, Asta asserts that the judge's failure to disclose "deprived Asta of the opportunity to appropriately prepare for her sentencing hearing and present information to the court concerning an appropriate sentence." But the sentencing hearing in this case was quite thorough, and Asta gives no indication of the sort of information she might have presented to the court had she learned earlier of the judge's situation. ¶25 For all of these reasons, Asta has failed to persuade us that reversal is appropriate on the disqualification issue. Accordingly, we find no reversible error in the sentencing judge's decision not to recuse himself, and we affirm the reviewing judge's denial of the motion to disqualify.

¶26 Next, Asta challenges both the merits of her sentence, as well as the manner in which the district court addressed the objections she raised at sentencing to specific items in the PSR. We agree with Asta that the district court failed to make specific findings regarding most of her objections to items contained in the PSR, and we remand this case to the district court for the limited purpose of affording the district court another opportunity to do so. However, despite the district court's failure to make specific findings on all of the objections raised, we see no abuse of discretion in the ultimate sentence imposed, and therefore affirm Asta's sentence.

¶27 Under Utah law, when a defendant raises specific objections to items contained within a PSR, a district court must examine those objections and "shall make a determination of relevance and accuracy on the record." Utah Code Ann. § 77-18-1(6)(a) (LexisNexis Supp. 2018). In particular, this court has stated that

once a defendant alleges factual inaccuracies in a [PSR], the district court must do three things: first, consider the objection raised; second, make findings on the record regarding the accuracy of the information at issue; and third, determine on the record the relevance of that information as it relates to sentencing.