ORME, Judge
Opinion Fourth District Court, Provo Department
The Honorable Thomas Low
No. 171401387 Leah Jordana Aston and Dallas B. Young, Attorneys for Appellant Sean D. Reyes and Jonathan S. Bauer, Attorneys for Appellee JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES KATE APPLEBY and RYAN M. HARRIS concurred. ORME, Judge: ¶1 Defendant Jason Reed Akers appeals his sentences, arguing that the district court abused its discretion by relying on allegedly irrelevant and unreliable information contained in his presentence investigation report (the PSIR) when it imposed sentence. Alternately, Akers contends that his defense counsel rendered ineffective assistance by failing to object to the challenged information in the PSIR prior to sentencing. We affirm.
Judge Kate A. Toomey has resumed the use of her birth name and is now known as Judge Kate Appleby.
BACKGROUND
¶2 In April 2017, 38-year-old California resident Jason Reed Akers used a social media platform to "message" a teenager. The profile he reached out to indicated that it belonged to a 13-year-old girl who resided in Utah, but in reality it belonged to an undercover Special Agent with Homeland Security Investigations. Akers told the girl that he would be in Utah in two days and wanted to meet her. She quickly asked whether he was "cool" with her only being 13 years old. He answered, "Leave age out of this. Nobody should know, right?," and shortly thereafter he asked if she was a virgin. After she confirmed that she was, he told her that he wished to "take" her virginity and named the sexual acts he wanted the two of them to perform. Akers twice unsuccessfully requested that the girl send him pictures of her genitals, but her refusal did not prevent him from sending her a pornographic video and two photographs depicting a penis. ¶3 Akers and the girl arranged to meet at a park in Utah County. At the girl's request, Akers agreed to bring condoms, lubricant, an energy drink, and cookies. Akers also asked the girl whether she drank or smoked, to which she replied that she never had but would "be curious." Akers then told her that he would bring "special gummy worms, . . . THC special." ¶10 After the district court explained its sentencing decision, Akers's counsel requested that the district court reconsider its decision without relying on "activity that [Akers] did not plead guilty to, such as the methamphetamine or the THC." Counsel argued that the district court's consideration of that information put Akers "in a position where he cannot defend himself, where he cannot assert his innocence to those issues." The district court responded that it was ordinary practice for courts to consider the facts contained in presentence investigation reports, which often include "uncharged criminal activity." It further explained that for that reason presentence investigation reports are either stipulated to, or evidentiary hearings are held to "get the final set of facts [to which] everybody agrees." The district court declined to reconsider the sentence. Akers appeals.
To better facilitate recounting the facts of this case, we refer to the Special Agent by her undercover persona, "the girl," in this opinion.
"THC" is an acronym for "tetrahydrocannabinol," which is a "crystalline compound that is the main active ingredient of cannabis." Tetrahydrocannabinol, New Oxford American Dictionary 1794 (3d ed. 2010). In Utah, THC is categorized as a Schedule I controlled substance. See Utah Code Ann. § 58-37-4(2)(a)(iii)(AA) (LexisNexis Supp. 2018).
ISSUES AND STANDARDS OF REVIEW
¶11 Akers asserts that the district court erred by largely basing its sentencing decision on the fact that he was in possession of THC gummy worms at the time of his arrest. "The law." State v. Craft, 2017 UT App 87, ¶ 15, 397 P.3d 889 (quotation simplified).
Akers additionally contends that the district court had a statutory duty to make findings on the record regarding the accuracy and relevance of the information when his defense counsel objected to its reliance on the THC gummy worms in imposing sentence. Because the district court allegedly failed to meet its obligation, Akers argues that his case "should be remanded with instructions that the [district] court resolve [Akers's] objections to the inclusion of the irrelevant information in [the PSIR]." Although Utah Code section 77-18-1(6)(a) requires the district court to "make a determination of relevance and accuracy on the record" when parties object to the inclusion of unresolved information in presentence investigation reports, section 77-18-1(6)(b) requires the party to make the challenge "at the time of sentencing." See Utah Code Ann. § 77-18-1(6)(a)-(b) (LexisNexis Supp. 2018). Otherwise, "that matter shall be considered to be waived." Id. § 77-18-1(6)(b). Because Akers's defense counsel stated that the PSIR did not contain errors immediately before sentencing and challenged the inclusion of the information about THC gummy worms only after the district court imposed sentence, Akers waived any objections to the inclusion of the information in the PSIR. See State v. Franz, 2007 UT App 297U, para. 6 ("[W]hen trial counsel stated that he had reviewed the PSI with Defendant and 'there were no errors' in the PSI, he statutorily waived any objections to the document."). The district court therefore had no duty to hold an evidentiary hearing to address the objections belatedly made by Akers's defense counsel. On the record before us, it appears that the objections would have been unavailing in any event. The presence of the THC gummy worms in his vehicle was solidly documented.
ANALYSIS
I. Abuse of Discretion in Sentencing
¶13 District courts are permitted to "consider a wide range of evidence" when fashioning an appropriate sentence. State v. Howell, 707 P.2d 115, 118 (Utah 1985). But the latitude afforded to district courts is not without limit. The due process clause of the Utah Constitution requires district courts to base sentencing decisions "on reasonably reliable and relevant information." Id. See Utah Const. art. I, § 7. And "when there is evidence in the record showing a sentencing judge's reliance on specific information, we will not consider it improper for a judge to rely on such information if the evidence in question had indicia of reliability and was relevant in sentencing." State v. Moa, 2012 UT 28, ¶ 36, 282 P.3d 985 (quotation simplified). Thus, to show an abuse of discretion, a defendant bears the burden of establishing that the information the district court said it relied on in reaching its sentencing decision was unreliable or irrelevant. Id. ¶¶ 35-36. ¶14 In the present case, there is ample evidence in the record supporting the district court's reliance, when imposing sentence, on the information about Akers's possession of THC gummy worms. In explaining its decision to deviate from the PSIR's recommendation, the district court first noted that the combination of the gun, the THC gummy worms, and the methamphetamine made it appear that Akers intended to "kidnap a child, maybe kill it." The court further stated that it would not have sentenced Akers to prison "[h]ad any of those circumstances been different." But it was "the gun and the gummy [worms] that really concern[ed] the Court so much." This affirmative representation by the ¶21 For these reasons we hold that the information in the PSIR about the THC gummy worms was both reliable and relevant to Akers's sentencing and that the district court did not abuse its discretion in relying on the information when imposing sentence.
Moreover, even if Akers's defense counsel had timely objected to the information about the THC gummy worms in the PSIR, the State undoubtedly would have entered into evidence the messages in which Akers promised to bring the THC gummy worms for the girl.
Marijuana products that are designed to resemble commercially available gummy products, such as bears or worms, and other brightly colored candies are by their nature more appealing to children than marijuana in its traditional form. See Sean O'Connor & Sam Méndez, Concerning Cannabis-Infused Edibles: Factors That Attract Children to Foods 4-8 (Univ. Wash. Sch. Law, Cannabis Law Policy Project, June 28, 2016), https://lcb.wa.gov/publications/Marijuana/Concerning-MJ-Infused-Edibles-Factors-That-Attract-Children.pdf [https://perma.cc/2JJP-VTSM] (noting that children are attracted to foods that are "red, green, orange, and yellow" in color, shaped like "common candies [and] cookies" and with "sweet, fruity, and candy-like odors").
Akers argues that because he lawfully obtained the THC gummy worms for medicinal purposes in California, they could not form the basis for his restricted status in Utah. To support this contention, he cites Utah Code section 58-37-2, which states that a controlled substance does not include "any drug intended for lawful use in the diagnosis, cure, mitigation, treatment, or prevention of disease in human or other animals." Utah Code Ann. § 58-37-2(1)(f)(ii)(B) (LexisNexis 2016). But Akers fails to acknowledge that this provision is limited to "ephedrine, pseudoephedrine, norpseudoephedrine, or phenylpropanolamine," that are obtained as an "over-the-counter medication without prescription." Id. The limited scope of this statute does not exonerate Akers from being illegally in possession of THC in Utah, in 2017, regardless of whether he lawfully obtained it for medical purposes in California. See id. § 58-37-4(2)(a)(iii)(AA) (Supp. 2018) (categorizing THC as a Schedule I controlled substance).
II. Ineffective Assistance of Counsel
¶22 "Implicit in the Sixth Amendment's guarantee of counsel is the right to effective assistance of counsel." Lafferty v. State, 2007 UT 73, ¶ 11, 175 P.3d 530. A criminal defendant receives ineffective assistance when (1) "counsel's performance was deficient" and (2) that "deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). Defense counsel does not render deficient performance if counsel refrains from making futile objections. See Layton City v. Carr, 2014 UT App 227, ¶ 19, 336 P.3d 587. ¶23 Akers argues that his defense counsel performed deficiently when he did not object to the mention of the THC gummy worms in the PSIR. We disagree, because an objection to the inclusion of that information in the PSIR would have proven unsuccessful. ¶24 Utah Code section 77-18-1(6)(a) states:
Any alleged inaccuracies in the presentence investigation report . . . shall be brought to the attention of the sentencing judge, and the judge may grant an additional 10 working days to resolve the alleged inaccuracies of the report with the department. If after 10 working days the inaccuracies cannot be resolved,
the court shall make a determination of relevance and accuracy on the record.
Utah Code Ann. § 77-18-1(6)(a) (LexisNexis Supp. 2018) (emphasis added). As such, had Akers's defense counsel raised an objection to the inclusion of the challenged information in the PSIR, the district court would have been required to make a determination of relevance and accuracy of the information on the record. If the court determined the information to be both relevant and accurate, then the information would have remained in the PSIR and defense counsel's objection would have been unsuccessful. ¶25 The information in the PSIR was accurate and relevant. When asked about the THC gummy worms, Akers essentially acknowledged that he was in possession of them at the time of his arrest. Rather than deny their existence, he sought to justify his possession of them by referring to his eligibility in California to use medical marijuana. This explanation and his counsel's statement that the PSIR did not contain any errors strongly support a finding of reliability, which no doubt would have been supported by police testimony and the evidence log, had the State been put to its proof. ¶26 The district court also clearly considered the information to be relevant as it affirmatively represented that the THC gummy worms
significantly factored into its sentencing decision—and we have determined that it did not abuse its discretion in doing so.
See supra Part I.B. Akers's defense counsel
therefore did not perform deficiently when he did not raise an objection that would have ultimately proven to be futile.
Because we conclude that the performance of Akers's defense counsel was not deficient, we do not reach the prejudice prong of the ineffective assistance of counsel inquiry. See State v. Reid, 2018 UT App 146, ¶ 19, 427 P.3d 1261 ("A defendant's inability to establish either element defeats a claim for ineffective assistance of counsel."). --------
CONCLUSION
¶27 We conclude that the district court did not abuse its discretion by relying on information relating to the dismissed charges when it sentenced Akers. The information regarding his possession of THC gummy worms that he brought to his expected encounter with the girl was both reliable and relevant. Also, Akers did not receive ineffective assistance from his defense counsel because any objection to the inclusion of that information in the PSIR would have proven unsuccessful. ¶28 Affirmed.