Andrew LeBeau v. State of Utah

¶1 On certiorari, petitioner Andrew LeBeau asks us to

consider whether the court of appeals erred in affirming the district

court's imposition of a sentence of life without the possibility of

parole following Mr. LeBeau's conviction for aggravated kidnapping

pursuant to Utah Code section 76-5-302. Mr. LeBeau's conviction

stems from a domestic dispute triggered by Mr. LeBeau's suspicion

that his then-girlfriend, Stephanie, was engaged in an affair with

another man. At trial, Mr. LeBeau was convicted of aggravated

STATE v. LEBEAU

Opinion of the Court

1 Prior to trial, Mr. LeBeau also pled guilty to failure to respond

to an officer's signal to stop.

2

kidnapping, aggravated assault, and cruelty to an animal.1 The

district court imposed a sentence of life without the possibility of

parole (LWOP) for the aggravated kidnapping conviction, which

was to run consecutively to Mr. LeBeau's lesser sentences for the

other convictions.

¶2 Mr. LeBeau unsuccessfully challenged his sentence of

LWOP before the court of appeals. He now argues that the court of

appeals erred when it affirmed the district court's imposition of

LWOP because the district court failed to properly consider whether

the interests of justice warranted a lesser sentence as allowed for in

Utah's aggravated kidnapping statute. Because we conclude that the

district court improperly applied the sentencing provisions of

section 76-5-302 of the Utah Code, we reverse Mr. LeBeau's sentence

of LWOP and remand for new sentencing.

BACKGROUND

¶3 In early 2009, Mr. LeBeau and Stephanie were living

together, but they were experiencing trouble in their relationship.

Stephanie had moved out of their shared home for a period of time

before returning and, according to Mr. LeBeau, had been unfaithful

during the relationship. Both Stephanie and Mr. LeBeau struggled

with drug addiction. In early February, Stephanie moved out of the

couple's shared bedroom but continued to live in the house.

¶4 The couple was acquainted with a man named Mark, from

whom they occasionally purchased drugs. In February 2009, Mr.

LeBeau began to suspect that Stephanie was having an affair with

Mark. On February 23, 2009, Stephanie spent the afternoon and

evening with Mark. Mr. LeBeau repeatedly called Stephanie and

sent her text messages, but she ignored him. When Stephanie

returned home sometime between 10:30 and 11:00 that night, Mr.

LeBeau angrily confronted her about where she had been. Stephanie

testified that Mr. LeBeau became violent when she refused to explain

where she had been and began hitting and choking her.

¶5 As the argument escalated, Mr. LeBeau forced Stephanie

to accompany him to the garage, where he threatened to bind her

with duct tape and continued to behave violently. Mr. LeBeau

placed his dog in the back seat of Stephanie's car before forcing

Stephanie to get into the front seat, telling her they were going for a

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Opinion of the Court

3

"fast ride.” Mr. LeBeau then got into the driver's seat and began to

drive toward Mark's house.

¶6 As Mr. LeBeau drove, he attracted the attention of Sergeant

Marcelas Rapela of the Midvale Police Department. Sergeant Rapela

began to follow the couple's car, ultimately signaling Mr. LeBeau to

stop with lights and siren. Stephanie testified that she repeatedly

asked Mr. LeBeau to pull over. Rather than stopping, Mr. LeBeau

continued toward Mark's house. Mr. LeBeau initially turned onto

Mark's street heading in the wrong direction. While turning the car

around, Mr. LeBeau nearly crashed into Sergeant Rapela's patrol car

and accelerated rapidly toward Mark's house.

¶7 As the car accelerated, Stephanie opened the passenger

door in an attempt to jump from the car. Officer David Wilson, who

had arrived to assist Sergeant Rapela, observed Stephanie's foot

dragging along the road as the car accelerated. As the car raced

down Mark's street at approximately sixty miles per hour, it collided

with Mark's box-style truck, which was parked at the end of the

street.

¶8 Stephanie was thrown from the car on impact. Officer

Wilson testified that he observed Stephanie's body ricochet off the

passenger-side door as the collision occurred. Stephanie suffered

extensive injuries, including a broken eye socket, fractured femur,

fractured pelvis, broken arm, and shattered ankle. Mr. LeBeau's dog

was also injured in the crash and required surgery. Mr. LeBeau did

not suffer any significant injuries.

¶9 The State charged Mr. LeBeau with aggravated kidnapping

based on the serious bodily injury Stephanie suffered, attempted

murder, aggravated assault, failure to respond to an officer's signal

to stop, and cruelty to an animal. Mr. LeBeau pled guilty to failure

to respond to an officer's signal and was convicted by a jury of

aggravated kidnapping, aggravated assault, and cruelty to an

animal. Though the State argued at trial that Mr. LeBeau

intentionally crashed into Mark's truck in an attempt to kill

Stephanie, Mr. LeBeau claimed the collision occurred while he was

distracted trying to keep Stephanie from jumping out of the car. The

jury acquitted Mr. LeBeau of attempted murder.

¶10 At Mr. LeBeau's sentencing hearing, the court determined

that the sentencing matrices created by the Utah Sentencing

Commission were not applicable to Mr. LeBeau's case because

Utah's aggravated kidnapping statute created "a minimum

mandatory type sentence.” As a result of this determination, the

STATE v. LEBEAU

Opinion of the Court

The district court did consider other 2 mitigating factors not

presently before us. The court credited Mr. LeBeau with two

mitigating factors: (1) that Mr. LeBeau's imprisonment would work

a hardship on Mr. LeBeau's dependents, and (2) that all of Mr.

LeBeau's convictions arose from a single criminal episode. The court

also rejected Mr. LeBeau's claim that his imprisonment would

compromise his ability to make restitution, finding that the likeli-

(continued...)

4

court began with a presumptive sentence of LWOP and then

proceeded to consider whether the balance of aggravating and

mitigating factors warranted a reduction in Mr. LeBeau's sentence

to one of the statutorily allowed lesser sentences. The court

identified two aggravating factors on the record. First, it found that

Mr. LeBeau's continued refusal to accept responsibility for his

actions was an aggravating factor. Second, the court expressed

concern about the serious injuries Stephanie suffered as a result of

Mr. LeBeau's conduct.

¶11 The court then considered, and rejected, several mitigating

factors raised by Mr. LeBeau. First, Mr. LeBeau claimed to have

acted under a strong provocation because he believed Stephanie was

having an affair with Mark. The court rejected this mitigating factor,

stating, "There was no evidence presented that [Stephanie] was

having an affair. There was no evidence that she was involved in a

sexual relationship.” Second, Mr. LeBeau claimed to have a good

employment history and strong family ties, both of which indicate

rehabilitative potential. The court rejected Mr. LeBeau's claim

relating to his employment history, stating, "You were unemployed

at the time of this incident. I don't know how you can say that was

exceptionally good employment.” Similarly, the court refused to

consider Mr. LeBeau's family ties as a mitigating factor because Mr.

LeBeau had not "seen [his] mother or . . . sister for years at the time

they came to testify at trial.” Finally, Mr. LeBeau claimed that he

had an extended period of arrest-free time prior to this incident. The

court rejected this mitigating factor because Mr. LeBeau had an

outstanding arrest warrant in Alabama and had admitted to using

illegal drugs during that time period. The court found that the fact

that Mr. LeBeau had not been arrested for, nor convicted of, an

offense for several years prior to this incident did not necessarily

mean that Mr. LeBeau had been law abiding. The court thus refused

to consider Mr. LeBeau's relatively minor criminal history a

mitigating factor.2

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Opinion of the Court

2(...continued)

hood that Mr. LeBeau would ever be able to make restitution was

remote.

5

¶12 After weighing the aggravating and mitigating

circumstances, the district court found that the aggravating

circumstances were "substantial” and the mitigating circumstances

"almost non-existent.” It then imposed LWOP for the aggravated

kidnapping conviction, the most severe sentence allowed under

Utah Code section 76-5-302. The court also sentenced Mr. LeBeau to

zero to five years for both the aggravated assault and failure-torespond

convictions. Finally, the court imposed a suspended

sentence of 180 days for the cruelty-to-an-animal conviction and

ordered Mr. LeBeau's lesser sentences to run consecutively with his

LWOP sentence.

¶13 Mr. LeBeau timely appealed, arguing that the district court

abused its discretion in imposing a sentence of LWOP for his

aggravated kidnapping conviction. State v. Lebeau, 2012 UT App 235,

¶ 16, 286 P.3d 1. Specifically, Mr. LeBeau argued that the district

court failed to adequately consider the interests of justice, as

required by Utah Code section 76-5-302(4). See infra ¶ 24. According

to Mr. LeBeau, the district court abused its discretion by (1) failing

to consider as a mitigating factor that Mr. LeBeau acted under

provocation, (2) failing to give adequate weight to Mr. LeBeau's

family support and employment history, (3) failing to credit Mr.

LeBeau with his relatively minor prior criminal history, and (4)

imposing LWOP without consideration of the proper role of the

Board of Pardons and Parole in evaluating the rehabilitative

prospects of offenders. LeBeau, 2010 UT App 235 ¶¶ 13, 28, 30.

¶14 The court of appeals rejected Mr. LeBeau's arguments and

upheld his LWOP sentence. Id. ¶ 37. The appeals court found that

the district court "expressly considered all of [Mr. LeBeau's]

mitigating evidence” and that Mr. LeBeau had "demonstrated no

more than his disagreement with how the court weighed the

mitigating factors.” Id. ¶ 29. Additionally, the appeals court

reasoned that Mr. LeBeau's LWOP sentence was the presumptive

sentence prescribed by the Legislature and was, therefore,

appropriate. Id. ¶¶ 34–36.

¶15 We granted certiorari on the question of "[w]hether the

court of appeals erred in affirming the district court's imposition of

a sentence of life without parole pursuant to section 76-5-302(3) of

STATE v. LEBEAU

Opinion of the Court

3 The relevant subsections of Utah's aggravated kidnapping

(continued...)

6

the Utah Code.” We have jurisdiction pursuant to Utah Code

section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶16 "On certiorari, we review the decision of the court of

appeals and not that of the district court.” State v. Brake, 2004 UT 95,

¶ 11, 103 P.3d 699. We review the decision of the court of appeals

for correctness, granting "no deference to its conclusions of law.”

State v. Baker, 2010 UT 18, ¶ 7, 229 P.3d 650. To determine whether

the court of appeals erred in affirming Mr. LeBeau's sentence

requires that we consider the standard of review applicable to the

court of appeals' review of the sentence. When reviewing a district

court's sentencing decision, appellate courts "traditionally afford[]

the [district] court wide latitude and discretion.” State v. Moa, 2012

UT 28, ¶ 34, 282 P.3d 985 (alterations in original) (internal quotation

marks omitted). An appellate court will, therefore, only set aside a

sentence if the sentence represents an abuse of discretion, if the

district court "fails to consider all legally relevant factors, or if the

sentence imposed is clearly excessive.” State v. McCovey, 803 P.2d

1234, 1235 (Utah 1990) (footnote omitted) (internal quotation marks

omitted). However, a district court's sentencing determination

constitutes an abuse of discretion if such determination is based on

an erroneous interpretation of law. See State v. Barrett, 2005 UT 88,

¶¶ 14–17, 127 P.3d 682.

ANALYSIS

I. UTAH'S AGGRAVATED KIDNAPPING STATUTE

¶17 Mr. LeBeau was convicted of aggravated kidnapping

pursuant to section 76-5-302 of the Utah Code. Section 76-5-302

defines aggravated kidnapping as a first degree felony and

establishes a complex sentencing scheme that contemplates a range

of possible sentences based on the seriousness of the offender's

conduct. Mr. LeBeau was sentenced pursuant to subsection (3)(b),

which establishes that aggravated kidnapping resulting in "serious

bodily injury to another” is punishable by LWOP, "except as

provided in Subsection . . . (4).” UTAH CODE § 76-5-302(3)(b) (2008).

Subsection (4), in turn, allows a sentencing court to impose an

indefinite term of six, ten, or fifteen years to life if it finds that doing

so would be "in the interests of justice.”3 Id. § 76-5-302(4).

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Opinion of the Court

3(...continued)

statute provide:

(3) Aggravated kidnapping is a first degree felony punishable

by a term of imprisonment of:

(a) except as provided in Subsection (3)(b), (3)(c),

or (4), not less than 15 years and which may be for

life;

(b) except as provided in Subsection (3)(c) or (4),

life without parole, if the trier of fact finds that

during the course of the commission of the aggravated

kidnapping the defendant caused serious

bodily injury to another; or

(c) life without parole, if the trier of fact finds that

at the time of the commission of the aggravated

kidnapping, the defendant was previously convicted

of a grievous sexual offense.

(4) If, when imposing a sentence under Subsection (3)(a)

or (b), a court finds that a lesser term than the term

described in Subsection (3)(a) or (b) is in the interests of

justice and states the reasons for this finding on the

record, the court may impose a term of imprisonment of

not less than:

(a) for purposes of Subsection (3)(b), 15 years and

which may be for life; or

(b) for purposes of Subsection (3)(a) or (b):

(i) 10 years and which may be for life; or

(ii) six years and which may be for life.

UTAH CODE § 76-5-302(3)–(4).

7

¶18 The heart of Mr. LeBeau's challenge concerns the proper

interpretation of subsections (3)(b) and (4). Mr. LeBeau argues that

the district court failed to adequately consider the "interests of

justice” when sentencing him to LWOP. Though the court did

consider whether Mr. LeBeau's sentence should be reduced, it did

so by starting with a presumptive sentence of LWOP and then

considering "the aggravating and mitigating circumstances” of the

crime to determine if Mr. LeBeau's sentence should be reduced to

one of the lesser terms allowed for in subsection (4). Though the

district court did not expressly state its reasoning, it appears to have

interpreted the Legislature's use of the phrase "interests of justice”

as equivalent to the "aggravating and mitigating circumstances”

STATE v. LEBEAU

Opinion of the Court

8

recognized by the Utah Sentencing Commission as part of its

sentencing guidelines. Mr. LeBeau asserts that this was in error

because the Legislature's use of the phrase "interests of justice”

requires consideration of factors beyond the aggravating and

mitigating circumstances of his particular crime. Specifically, Mr.

LeBeau argues that the district court was required to consider (1) the

severity of an LWOP sentence, (2) whether a sentence of LWOP was

proportionate to the seriousness of Mr. LeBeau's crime, and (3) Mr.

LeBeau's rehabilitative potential. Further, Mr. LeBeau argues that

the district court erred when it rejected several of Mr. LeBeau's

proposed mitigating factors by employing incorrect legal standards

in its analysis.

¶19 Our task of reviewing Mr. LeBeau's sentence requires that

we interpret section 76-5-302 of the Utah Code, which calls for the

imposition of a sentence of LWOP unless the interests of justice

dictate a lesser sentence. We note, first, that any error on the part of

the district court in its interpretation of subsection (4)'s interests-ofjustice

language would be harmless if the district court were free to

sentence Mr. LeBeau to LWOP without considering the interests of

justice in the first instance. Thus, the threshold question is whether

the district court was required to engage in an interests-of-justice

analysis prior to sentencing Mr. LeBeau to LWOP under subsection

(3)(b). Because we conclude that the court was so required, we then

turn our attention to the proper meaning of "interests of justice” as

used in subsection (4). Finally, we consider Mr. LeBeau's claim that

the district court erred when it rejected several of his proposed

mitigating factors.

II. THE DISTRICT COURT WAS REQUIRED TO CONDUCT AN

INTERESTS-OF-JUSTICE ANALYSIS PRIOR TO SENTENCING

MR. LEBEAU TO LWOP

¶20 As with any question of statutory interpretation, our

primary goal is to effectuate the intent of the Legislature. State v.

Watkins, 2013 UT 28, ¶ 18, 309 P.3d 209. The best evidence of the

Legislature's intent is the statute's plain language. Marion Energy,

Inc. v. KFJ Ranch P'ship, 2011 UT 50, ¶ 14, 267 P.3d 863. "We

presume that the [L]egislature used each word advisedly and give

effect to each term according to its ordinary and accepted meaning.”

Taylor ex rel. C.T. v. Johnson, 1999 UT 35, ¶ 9, 977 P.2d 479 (internal

quotation marks omitted). Further, "we interpret[] statutes to give

meaning to all parts, and avoid[] rendering portions of the statute

superfluous.” Watkins, 2013 UT 28, ¶ 23 (alterations in original)

(internal quotation marks omitted). To do so, "we read the plain

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Opinion of the Court

9

language of the statute as a whole, and interpret its provisions in

harmony with other statutes in the same chapter and related

chapters.” State v. Barrett, 2005 UT 88, ¶ 29, 127 P.3d 682 (internal

quotation mark omitted).

¶21 Subsection (3)(b) of Utah's aggravated kidnapping statute

directs sentencing courts to impose a sentence of LWOP, "except as

provided in Subsection . . . (4).” UTAH CODE § 76-5-302(3)(b) (2008).

Subsection (4) allows the court to impose a lesser indefinite term if

it finds that doing so would be "in the interests of justice.” Id. § 76-5-

302(4). We read subsections (3) and (4) together as requiring an

interests-of-justice analysis. First, the plain language of subsection

(3)(b) directs the court to impose a sentence of LWOP "except as

provided in Subsection . . . (4).” Id. § 76-5-302(3)(b). Here, the word

"except” is followed by a phrase that describes the particular

manner or circumstance—as provided in subsection (4)—in which

a sentence of LWOP is not applicable. As such, subsection (3)(b) is

best read as establishing a presumptive sentence of LWOP while

also delineating the particular circumstance in which LWOP would

be inappropriate. It follows that, in order to determine whether

LWOP would be inappropriate, a court must engage in the interestsof-

justice analysis laid out in subsection (4). If courts were free to

impose LWOP without first considering the interests of justice, the

exception provided by the Legislature would be rendered

meaningless. Thus, we read subsections (3)(b) and (4) together as

requiring that sentencing courts consider the interests of justice to

determine whether a lesser sentence is appropriate.

¶22 Reading Utah's aggravated kidnapping statute as a whole

further supports this conclusion. The statute distinguishes three

types of aggravated kidnapping: (1) aggravated kidnapping,

(2) aggravated kidnapping resulting in serious bodily injury, and

(3) aggravated kidnapping committed by a defendant who has

previously been convicted of a "grievous sexual offense.” Id. § 76-5-

302(3). It then establishes different sentences for each. Id. For

example, a defendant convicted of aggravated kidnapping may be

sentenced to a sentence of fifteen years to life. Id. § 76-5-302(3)(a).

In contrast, defendants who have been previously convicted of a

grievous sexual offense or who cause substantial bodily injury in the

course of an aggravated kidnapping face a maximum sentence of

LWOP. Id. § 76-5-302(3)(b)–(c). This reflects the legislative judgment

that more serious offenses are deserving of harsher punishment.

¶23 Further bolstering our conclusion that the Legislature

intended to differentiate between different types of aggravated

STATE v. LEBEAU

Opinion of the Court

10

kidnapping, the Legislature directed that the maximum sentences

for aggravated kidnapping and aggravated kidnapping resulting in

serious bodily injury should be imposed "except as provided in

Subsection . . . (4),” which triggers the interests-of-justice analysis.

See id. § 76-5-302(3)(a)–(b). But the Legislature specifically directed

that defendants who have been previously convicted of grievous

sexual offenses may not be sentenced to one of the lesser terms

contained in subsection (4). Id. § 76-5-302(5). Thus, a sentencing

court has no option but to impose a sentence of LWOP for these

offenders. In contrast, defendants who cause substantial bodily

injury are eligible for a lesser sentence if the sentencing court

determines that such a reduction is in the interests of justice. Thus,

the Legislature provided for the possibility of a reduced sentence for

defendants sentenced under either subsection (3)(a) or (3)(b), but not

for those sentenced under subsection (3)(c). This tri-level distinction

makes clear the Legislature's judgment that not all aggravated

kidnappings are the same and evidences the Legislature's intent to

punish more "serious” kidnappings with harsher sentences.

¶24 Were we to conclude that sentencing courts could impose

the statutory presumptive sentence under subsections (3)(a) and

(3)(b) without first considering the interests of justice, it would

undermine the distinctions between the different types of

aggravated kidnapping drawn by the Legislature. Though the

language of subsection (4) is permissive, the statutory scheme makes

clear that the Legislature did not intend to give sentencing courts a

license to ignore this subsection altogether. Rather, reading

subsections (3) and (4) together, we conclude that the Legislature

intended sentencing courts to consider the interests of justice when

sentencing defendants under subsections (3)(a) or (3)(b), but not

under subsection (3)(c).

III. THE DISTRICT COURT FAILED TO PROPERLY CONSIDER

THE INTERESTS OF JUSTICE AS REQUIRED BY UTAH CODE

SECTION 76-5-302(4)

¶25 Having determined that the district court was required to

engage in an interests-of-justice analysis when sentencing Mr.

LeBeau, we turn our attention to what is required for such an

analysis. At sentencing, the court did consider whether a lesser

indeterminate sentence was appropriate for Mr. LeBeau. In doing

so, the court considered Mr. LeBeau's crime in light of the list of

aggravating and mitigating circumstances compiled by the Utah

Sentencing Commission in its sentencing guidelines. Though the

district court did not articulate its reasoning on the record, it appears

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Opinion of the Court

Mr. LeBeau argues that 4 an interests-of-justice analysis requires

courts to consider the totality of the circumstances. Though we

agree that the Legislature's use of the phrase "interests of justice”

requires consideration of factors beyond the aggravating and

mitigating circumstances of the crime, we conclude that the statute

requires a more focused analysis than Mr. LeBeau's proposed

totality-of-the-circumstances test.

11

that the court equated the weighing of these aggravating and

mitigating circumstances with an interests-of-justice analysis. Mr.

LeBeau argues that this was in error and that an interests-of-justice

analysis requires the court to consider factors other than the

aggravating and mitigating circumstances surrounding a particular

defendant and crime.4 We have yet to consider the import of the

Legislature's use of the phrase "interests of justice” in this context.

Therefore, our task is to determine what the Legislature intended

when it instructed courts to consider whether the interests of justice

would be served by imposing a lesser sentence.

¶26 We begin, as always, with the statutory text. Marion

Energy, Inc. v. KFJ Ranch P'ship, 2011 UT 50, ¶ 14, 267 P.3d 863. We

presume that the Legislature chose its words carefully, using each

term advisedly. State v. Barrett, 2005 UT 88, ¶ 29, 127 P.3d 682.

Absent some indication of contrary legislative intent, we give effect

to each term according to its ordinary meaning. Taylor ex rel. C.T. v.

Johnson, 1999 UT 35, ¶ 9, 977 P.2d 479. If the statutory language

remains ambiguous—meaning the statute is susceptible to two or

more reasonable interpretations—we may resort to other indications

of legislative intent, including legislative history and policy

considerations. State v. Watkins, 2013 UT 28, ¶ 24, 309 P.3d 209.

¶27 The Legislature did not provide a statutory definition of

"in the interests of justice.” Accordingly, we look to other sources

to derive the meaning of the phrase. See State v. Bagnes, 2014 UT 4,

¶ 14, 322 P.3d 719 (approving the use of dictionaries to ascertain the

"range of possible meanings that a statutory term may bear”

(internal quotation mark omitted)). Generally, the phrase "in the

interests of” connotes being "to the advantage or advancement of”

something. RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE

993 (2d ed. 1987); see also WEBSTER'S NEW COLLEGE DICTIONARY 744

(2007) (defining "in the interests of” as "for the sake of”). So,

something "in the interests of justice” will act to advance or promote

justice. But "justice” is an abstract notion that incorporates a variety

STATE v. LEBEAU

Opinion of the Court

12

of meanings. As used in this context, "justice” imparts notions of

impartiality or fairness, including the receipt of a "reward or penalty

as deserved.” WEBSTER'S NEW COLLEGE DICTIONARY 777. A sentence

"in the interests of justice” will therefore work to promote

impartiality or fairness and ensure the defendant receives the

penalty he deserves. While these definitions inform our

understanding of the Legislature's intent, they do not adequately

direct courts as to what they should actually consider when

confronted with a particular case. Accordingly, we must look for

further guidance.

¶28 The phrase "in the interests of justice” appears in many

other parts of the Utah Code, but is never specifically defined. See,

e.g., UTAH CODE § 75-7-204(2)(b) (2013) (allowing Utah courts to

entertain proceedings involving foreign trusts if "the interests of

justice would be seriously impaired” by dismissal); id. § 78B-1-136

(establishing a witness's right "to be detained only so long as the

interests of justice require”); id. § 77-8a-1(2)(d) (directing Utah courts

to jointly try co-defendants unless the court finds that separate trials

would be in "the interests of justice”); UTAH R. EVID. 807(a)(4)

(allowing courts to admit otherwise inadmissible hearsay statements

if doing so is in "the interests of justice”); UTAH R. APP. P. 5(f)

(directing that an appeal from an interlocutory order should only be

granted if in the "interests of justice”). What quickly becomes clear

is that the Legislature cannot have meant to use the phrase "in the

interests of justice” in the same manner in all these different

contexts.

¶29 The Legislature added the interests-of-justice language to

Utah's aggravated kidnapping statute in 2007 as part of a sweeping

revision of the penalties associated with sexual offenses and

kidnapping. See 2007 Utah Laws 2060–73. The Legislature crafted

a sentencing scheme substantially similar to that found in the

aggravated kidnapping statute in at least eight other criminal

statutes. See UTAH CODE §§ 76-4-102 (attempt), -204 (criminal

solicitation); id. §§ 76-5-301.1 (child kidnapping), -402 (rape), -402.1

(rape of a child), -402.2 (object rape), -404 (forcible sexual abuse), -

405 (aggravated sexual assault). Each of these statutes, except

solicitation and attempt, governs crimes involving kidnapping and

sexual assault. And in each case, the Legislature created a

presumptive sentence and instructed sentencing courts to consider

whether the interests of justice warranted a lesser sentence. Our

task, then, is to determine what the phrase means in the context of

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Opinion of the Court

5 As discussed below, the aggravating and mitigating circumstances

relating to a particular crime are certainly relevant to the

court's interests-of-justice analysis. Infra ¶¶ 42, 46. But aggravating

and mitigating circumstances are simply one facet of the proper

analysis.

13

the sentencing scheme crafted by the Legislature in these related

statutes.

A. Section 76-5-302(4)'s Interests-of-Justice Analysis Is not Equivalent

to Weighing the Aggravating and Mitigating Circumstances

¶30 As an initial matter, we conclude that the Legislature did

not intend the phrase "interests of justice” as a mere substitute for

the weighing of aggravating and mitigating circumstances

recognized by the Sentencing Commission.5 First, the plain language

of the statute does not support such an interpretation. The

Legislature instructed courts to consider the "interests of justice,”

not just to weigh the "aggravating and mitigating circumstances.”

Though the two concepts are related, they are not equivalent.

¶31 The Utah Sentencing Commission is empowered to create

sentencing guidelines designed to "increase equity in criminal

sentencing.” UTAH CODE § 63M-7-404(3). To that end, the

Sentencing Commission creates sentencing guidelines that include

a nonexhaustive list of aggravating and mitigating circumstances

that are used by courts in their sentencing decisions. See UTAH

ADULT SENTENCING AND RELEASE GUIDELINES 13 (2009). The

sentencing guidelines instruct courts to consider all of the

aggravating and mitigating circumstances of a particular crime

holistically when sentencing offenders. Id. at 12. Had the

Legislature intended courts to consider only the aggravating and

mitigating circumstances recognized by the Sentencing Commission

when sentencing defendants under Utah's aggravated kidnapping

statute, it had the means and knowledge to so instruct. Instead, the

Legislature directed courts to consider "the interests of justice.”

¶32 More tellingly, prior to 2007, section 76-3-201(7)(e) of the

Utah Code did instruct the courts to "consider sentencing guidelines

regarding aggravating and mitigating circumstances promulgated

by the Sentencing Commission” when "determining a just sentence.”

Defendants convicted of aggravated kidnapping were sentenced to

an indefinite term of six, ten, or fifteen years to life. UTAH CODE

§ 76-5-302(3) (2006). The court was required to impose the middleseverity

term of ten years to life, "unless there [were] circumstances

STATE v. LEBEAU

Opinion of the Court

Utah's capital sentencing 6 scheme continues to direct that juries

must consider the "totality of the aggravating and mitigating

circumstances” when deciding whether to impose the death penalty.

Utah Code § 76-3-207(5)(b). Section 76-3-207(4) presents a

nonexhaustive list of factors that may be considered.

14

in aggravation or mitigation of the crime.” Id. § 76-3-201(7)(a).

Section 76-3-201(7)(e) then directed the court to consider the

aggravating and mitigating circumstances recognized by the Utah

Sentencing Commission. However, this sentencing scheme was

removed from the Utah Code in the same revision that created the

interests-of-justice sentencing scheme in the related kidnapping and

sexual assault statutes.6 Compare 2007 Utah Laws 2064, with id. at

2069. In light of the Legislature's decision in 2007 to remove

references to the Sentencing Commission's list of aggravating and

mitigating factors, we do not read section 76-5-302(4)'s interests-ofjustice

language as equivalent to the previous aggravating-andmitigating-

circumstances language.

¶33 In Mr. LeBeau's case, the district court looked to the list of

aggravating and mitigating circumstances contained in the

sentencing guidelines and no further. Because the Legislature

replaced its previous aggravating-and-mitigating-circumstances

instruction with the new mandate to consider the interests of justice,

we conclude that the district court's analysis was in error. We now

turn our attention to what a proper interests-of-justice analysis

requires.

B. An Interests-of-Justice Analysis Requires Consideration of

Proportionality and the Defendant's Rehabilitative Potential

¶34 Though the Legislature did not specifically define

"interests of justice” in the aggravated kidnapping statute, it has

provided guidance elsewhere in the Utah Code. Section 76-1-106 of

the Utah Code directs that Utah's criminal code "shall be construed

according to the fair import of [its] terms to promote justice and to

effect the objects of the law and general purposes of [s]ection 76-1-

104.” (Emphasis added). Section 76-1-104 sets forth four general

goals of Utah's criminal code:

(1) Forbid and prevent the commission of offenses.

(2) Define adequately the conduct and mental state

which constitutes each offense and safeguard conduct

that is without fault from condemnation as criminal.

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Opinion of the Court

15

(3) Prescribe penalties which are proportionate to the

seriousness of offenses and which permit recognition [of]

differences in rehabilitation possibilities among individual

offenders.

(4) Prevent arbitrary or oppressive treatment of

persons accused or convicted of offenses.

(Emphasis added.)

¶35 The goals enumerated in section 76-1-104 relate to different

aspects of the criminal code. For example, subsection (2) relates to

the public definition of offenses. This necessarily incorporates ideas

of fair notice and due process because a just criminal code must

adequately inform those subject to it of the behaviors that will

expose them to criminal liability. Subsection (4) addresses the

treatment of individuals once they are brought into the criminal

justice system and recognizes the importance of fair treatment of

those individuals.

¶36 But it is subsection (3) that relates most closely to

sentencing. Subsection (3) articulates the legislative goal that

sentencing be proportionate to the seriousness of the defendant's

conduct and recognizes that individual offenders have different

potential for rehabilitation. Thus, reading sections 76-1-104 and 76-

1-106 together, we must construe our criminal code in ways that

"promote justice,” including principles of proportionality and a

recognition of the rehabilitative potential of individual defendants.

¶37 Keeping these basic principles in mind, we conclude that

the Legislature's use of the phrase "interests of justice” necessarily

requires the court to consider the proportionality of the defendant's

sentence in relation to the severity of his offense. Additionally, it

requires that sentencing judges appropriately weigh a defendant's

potential for rehabilitation.

1. A Proportionality Analysis Requires the Court to Consider the

Seriousness of the Defendant's Conduct When Compared to the

Severity of His Sentence and the Sentences Imposed for Different

Offenses

¶38 "The principle that a punishment should be proportionate

to the crime is deeply rooted and frequently repeated in commonlaw

jurisprudence.” Solem v. Helm, 463 U.S. 277, 284 (1983). For

example, the United States Supreme Court has long recognized the

existence of a proportionality principle in its jurisprudence related

to the Eighth Amendment's Cruel and Unusual Punishments Clause.

STATE v. LEBEAU

Opinion of the Court

16

U.S. CONST. amend. VIII; see, e.g., Weems v. United States, 217 U.S. 349

(1910) (recognizing that the Eighth Amendment prohibits grossly

disproportionate sentences). Though the Court has struggled to

effectively articulate the precise contours of the Eighth

Amendment's proportionality principle, see, e.g., Harmelin v.

Michigan, 501 U.S. 957 (1991), it has articulated a set of guiding

principles that can assist in our analysis.

¶39 It is important to note, first, that the Supreme Court's

proportionality jurisprudence arose in a very different context than

that with which we are now confronted. Typically, the Court was

confronted with a challenge to the constitutionality of a legislatively

enacted sentencing statute. See, e.g., Weems, 217 U.S. at 359; Rummel

v. Estelle, 445 U.S. 263, 265 (1980) (upholding a mandatory life

sentence with the possibility of parole under a recidivist statute for

a defendant's third nonviolent felony); Graham v. Florida, 560 U.S. 48,

75 (2010) (rejecting a sentence of LWOP for juveniles convicted of

nonhomicide crimes). As it has addressed these constitutional

challenges, the Court has struggled to balance deference to

legislative judgment as to the appropriate sentence for a particular

crime with the long-standing precept that sentences "should be

graduated and proportioned to [the] offense.” Weems, 217 U.S. at

367; see also Harmelin, 501 U.S. at 998–1001 (attempting to reconcile

the need for judicial deference to legislatively enacted sentences and

the need for proportionality). But the case before us presents a very

different question. We are not being asked to overturn a sentence

imposed by the Legislature on the grounds that it is constitutionally

disproportionate. Instead, our task is to ensure that courts properly

comply with the Legislature's instruction to undertake a

proportionality analysis when sentencing defendants pursuant to

section 76-5-302 of the Utah Code. Accordingly, while we take

guidance from the Supreme Court's proportionality jurisprudence,

we do so with the understanding that our analysis is necessarily

different.

¶40 In Solem, the Supreme Court considered the

constitutionality of a South Dakota recidivism statute that imposed

a sentence of LWOP on a defendant who had written a "no account”

check for $100, a class 5 felony under South Dakota law. 463 U.S. at

280–81 & n.5. Because the defendant had previously been convicted

of six other nonviolent felonies, his sentence was enhanced to that of

a class 1 felony, LWOP. Id. at 281. The defendant brought a

proportionality challenge under the Eighth Amendment, arguing

Cite as: 2014 UT 39

Opinion of the Court

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that LWOP was grossly disproportionate to his crime of passing a

$100 bad check. Id. at 283.

¶41 The Court enumerated three objective factors designed to

guide its proportionality analysis: (1) the seriousness of the

defendant's conduct in relation to the severity of the sentence

imposed, (2) the severity of the sentence imposed in light of

sentences imposed for other crimes in the same jurisdiction, and

(3) the severity of the sentence imposed in relation to sentences

imposed for the commission of the same crime in other jurisdictions.

Id. at 290–92. In State v. Gardner, this court considered a

constitutional challenge to a sentence of death for a defendant

convicted of aggravated assault while in prison. 947 P.2d 630 (Utah

1997). In a thorough discussion of Utah's Cruel and Unusual

Punishments Clause, Justice Durham articulated a test for

proportionality that is substantially similar to that which was

established in Solem. Id. at 639–40 (Durham, J., plurality opinion).

We find this reasoning persuasive and adopt the first two of these

factors for the purpose of section 76-5-302(4)'s interests-of-justice

analysis. But in the context before us, we see no indication that the

Legislature intended sentencing courts to consider the sentences

imposed by the legislatures of other jurisdictions. Accordingly, we

conclude that the third Solem factor is inappropriate for an interestsof-

justice analysis under section 76-5-302 of the Utah Code.

a. The seriousness of the defendant's conduct in relation to the

severity of his sentence

¶42 First, sentencing courts should consider "the gravity of the

offense and the harshness of the penalty.” Solem, 463 U.S. at 290–91.

This factor necessarily includes an examination of the nature and

circumstances of the defendant's crime. Though we decline to

articulate an exhaustive list of circumstances a court should

consider, we note that the list of aggravating and mitigating

circumstances created by the Utah Sentencing Commission provides

a good starting point. Many of the Sentencing Commission's

guidelines already take into account factors relevant to the gravity

of the defendant's conduct. However, we emphasize that courts

should not limit their inquiry merely to those factors recognized by

the Sentencing Commission. Rather, courts should consider all

relevant facts raised by the parties about the defendant's crime in

relation to the harshness of the penalty.

¶43 In general, nonviolent crimes should be viewed as less

serious than violent crimes. Id. at 292–93. The Legislature made a

STATE v. LEBEAU

Opinion of the Court

18

similar determination when it mandated enhanced penalties for

repeat violent offenders. See UTAH CODE § 76-3-203.5. Similarly, a

violent offense committed in the presence of a child constitutes an

aggravating factor during sentencing. Id. § 76-3-203.9. The

considered judgment of the Legislature indicates that such violent

offenses are to be considered as more serious than nonviolent ones.

¶44 The court may also consider the "absolute magnitude of

the crime.” Solem, 463 U.S. at 293. A crime that results in the loss of

more valuable property may be more serious than stealing a few

hundred dollars worth of retail goods. For example, in Utah, theft

is usually a class B misdemeanor if the value of the property stolen

is less than $500. UTAH CODE § 76-6-412(1)(d). In contrast, theft of

property valued above $5,000 is a second degree felony, reflecting

the Legislature's judgment that theft involving more valuable

property is a more serious offense. See id. § 76-6-412(1)(a).

¶45 Another important consideration is the culpability of the

offender. We generally agree with the notion that negligent conduct

is less serious than intentional conduct. Solem, 463 U.S. at 293; see

also UTAH CODE § 76-2-101(1) (establishing that a defendant must act

with at least criminal negligence to be guilty of an offense).

Moreover, a defendant's motivation for committing his crime is

highly relevant. For example, a homicide committed for monetary

gain should generally be viewed as more serious than manslaughter

that results from a defendant's reckless actions. Compare UTAH CODE

§ 76-5-202(1)(g) (establishing a homicide committed for pecuniary

gain as aggravated murder), with id. § 76-5-205 (defining

manslaughter). See also id. § 76-3-203.3(2)(a) (establishing increased

penalties for hate crimes committed "with the intent to intimidate or

terrorize another person”).

¶46 We emphasize that a court's consideration of this first

factor should be guided by its objective assessment of the nature and

circumstances of the defendant's crime in relation to the harshness

of the penalty. The above discussion is not intended to provide an

exhaustive list of factors because sentencing remains a highly factdependent

endeavor. And the Sentencing Commission's list of

aggravating and mitigating circumstances remain relevant for this

factor. On remand, the sentencing court should consider the

seriousness of Mr. LeBeau's conduct in light of the severe nature of

a sentence of LWOP when determining whether the interests of

justice warrant the imposition of one of subsection (4)'s lesser

sentences.

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Opinion of the Court

19

b. Sentences imposed for other crimes in Utah

¶47 Second, sentencing courts should compare the sentence

being imposed to the sentences imposed for other crimes in Utah.

A key proposition underlying the proportionality principle is

fairness. Defendants who commit more serious offenses should be

punished more severely than those who commit less serious crimes.

As part of a proportionality analysis, courts should consider the

sentences imposed for more and less serious crimes in order to

ensure that a particular defendant's sentence is not arbitrary.

¶48 For example, in Utah, a person who commits intentional

murder is guilty of a first degree felony punishable by an

indeterminate sentence of fifteen years to life in prison. UTAH CODE

§ 76-5-203(3). In order for a defendant who commits a murder to be

eligible for a sentence of LWOP, he must be convicted of aggravated

murder as defined by section 76-5-202 of the Utah Code. Id. § 76-3-

207.7. Aggravated murder requires that the defendant commit the

crime under circumstances that would justify such a severe sentence.

Id. § 76-5-202(1). For example, a murder accompanied by the sexual

abuse of a child or committed by the use of a weapon of mass

destruction would qualify for aggravated murder. Id. § 76-5-

202(1)(n)(ii), (2)(a). But absent the aggravating factors found in

section 76-5-202, a defendant who commits first degree murder can

expect a maximum sentence of life with the possibility of parole.

¶49 Other crimes for which the Legislature has established

LWOP as a possible sentence include a variety of sexual offenses, but

only if the defendant is a repeat offender. For example, aggravated

sexual assault, rape, and sodomy each carry a penalty of LWOP if

the defendant was previously convicted of a grievous sexual offense.

Id. §§ 76-5-405(2), -402(3)(c), -403(4)(c). In the case of a child victim,

the Legislature allows a sentence of LWOP for first-time offenders

if the defendant causes serious bodily injury. Id. §§ 76-5-404.1(5)(b),

-402.1(2)(b)(i), -403.1(2)(b)(i). When the Legislature established this

sentencing scheme for sexual offenses, it signaled its judgment that

sexual crimes, which intrude on the fundamental bodily integrity of

the victim like no others short of murder, are serious enough to

warrant a sentence of LWOP

¶50 In contrast, Mr. LeBeau was sentenced to LWOP for an

aggravated kidnapping in which no one was killed and which was

unaccompanied by the type of bodily and dignitary harm associated

with sexual assaults. We agree that murder is generally a more

serious crime than aggravated kidnapping. And sexual crimes,

STATE v. LEBEAU

Opinion of the Court

20

particularly those involving children, represent an especially

heinous form of bodily insult. Of course, the Legislature is

empowered to mandate a sentence of LWOP for aggravated

kidnapping. Gardner, 947 P.2d at 639 (plurality opinion) ("What

constitutes an adequate penalty is a matter of legislative judgment

and discretion . . . .” (internal quotation marks omitted)). But proper

deference to the Legislature in this case includes deference to the

entire sentencing scheme, including the Legislature's instruction that

courts should consider the interests of justice. Thus, the

proportionality principle incorporated into the Legislature's

interests-of-justice requirement demands consideration of the

penalties established by the Legislature for other crimes. On

remand, the sentencing court should look to the sentences prescribed

by our Legislature for other crimes to gain insight into whether the

interests of justice favor a lesser sentence for Mr. LeBeau.

¶51 Having provided some guidance as to the proper

proportionality analysis for the court on remand, we turn our

attention to the second interests-of-justice factor in the Utah Code,

the defendant's capacity for rehabilitation.

2. Proper Consideration of the Interests of Justice Includes Deference

to the Role of the Board of Pardons and Parole

¶52 As noted above, one of the goals of the Utah Criminal Code

is to promote justice through the imposition of penalties "which

permit recognition [of] differences in rehabilitation possibilities

among individual offenders.” UTAH CODE § 76-1-104(3). The Board

of Pardons and Parole (Board) has the power to "grant parole . . . as

provided by statute.” UTAH CONST. art. VII, § 12(2)(a). We have

previously recognized the important role the Board plays in Utah's

indeterminate sentencing scheme. State v. Smith, 909 P.2d 236, 244

(Utah 1995); Labrum v. Utah State Bd. of Pardons, 870 P.2d 902, 907

(Utah 1993). In Smith, we rejected the district court's imposition of

four consecutive sentences totaling a minimum mandatory sentence

of sixty years. 909 P.2d at 244–45. Section 76-3-401(2) of the Utah

Code directs district courts to consider the "rehabilitative needs of

the defendant” when determining whether to impose consecutive or

concurrent sentences. We held that the court's imposition of four

consecutive sentences was an abuse of discretion, in part because the

"Board is in a far better position than a court to monitor a

defendant's subsequent behavior and possible progress toward

rehabilitation while in prison and to adjust the maximum sentence

accordingly.” Id. at 244.

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Opinion of the Court

21

¶53 An important part of our reasoning in Smith centered on

the Legislature's decision to grant the Board broad authority to

determine what a particular defendant's maximum sentence should

be. Id. The court of appeals concluded that the Legislature's

decision to make LWOP the presumptive sentence for aggravated

kidnapping "essentially countermanded, for this crime, Utah's longstanding

sentencing philosophy of indeterminate sentencing.” State

v. Lebeau, 2012 UT App 235, ¶ 36, 286 P.3d 1. Were LWOP the only

sentencing option for Mr. LeBeau, we might agree. But the

Legislature instructed courts to consider the interests of justice when

imposing a sentence under the aggravated kidnapping statute,

expressly acknowledging that an indeterminate sentence is

appropriate in some cases. And as we have already noted, the

interests-of-justice analysis requires consideration of the defendant's

potential for rehabilitation.

¶54 Sentencing courts must consider all of the factors relevant

to a defendant's rehabilitative potential. We have previously

indicated that a defendant's age at the time of the commission of the

crime is relevant. State v. Strunk, 846 P.2d 1297, 1300–02 (Utah 1993).

Other relevant factors include the extent to which a defendant's

crime was tied to alcohol or drug addiction and the defendant's

prospects for treatment. The extent to which a defendant's criminal

history evidences continual violence is also relevant to his

rehabilitative potential. Finally, the Sentencing Commission's

guidelines, several of which relate to a defendant's capacity for

rehabilitation, may prove helpful to sentencing courts in their

analysis. We emphasize, however, that sentencing courts should

consider all relevant factors when evaluating the defendant's

rehabilitative potential.

¶55 In sum, sentencing courts should consider the

proportionality of a sentence to the seriousness of the defendant's

conduct and the defendant's potential for rehabilitation when

determining whether the interests of justice support a lesser

sentence. The sentencing court in this case failed to properly

consider the interests of justice when sentencing Mr. LeBeau. We

therefore reverse and remand for a new sentencing. Because the

sentencing court on remand will be required to consider the

aggravating and mitigating circumstances as part of its interests-ofjustice

analysis, and because Mr. LeBeau argued that the sentencing

court previously erred in evaluating several of his proposed

mitigating factors, we take this opportunity to provide guidance to

the sentencing court on remand.

STATE v. LEBEAU

Opinion of the Court

22

IV. THE DISTRICT COURT IMPROPERLY EVALUATED MR.

LEBEAU'S PROPOSED MITIGATING FACTORS

¶56 Mr. LeBeau argues that the district court erroneously

rejected several of his proposed mitigating factors, including (1) his

claim that he acted under strong provocation, (2) his relatively minor

criminal history, (3) his employment history, and (4) his family ties.

Because the district court will be required to assess these factors in

its interests-of-justice analysis on remand, we take this opportunity

to provide guidance as to the appropriate legal standards.

A. The District Court Applied the Incorrect Legal Standard when It

Rejected Mr. LeBeau's Claim that He Acted Under Provocation

¶57 At sentencing, Mr. LeBeau argued that he acted under

provocation the night he kidnaped Stephanie because he was upset

at the thought that she was having an affair with another man. The

district court rejected this claimed mitigating circumstance, stating,

"There was no evidence presented that [Stephanie] was having an

affair. There was no evidence that she was involved in a sexual

relationship. You came to that conclusion, but I found no basis for

that.” Mr. LeBeau argues that he was not required to prove that

Stephanie was actually engaged in a sexual relationship with Mark.

Rather, it was enough that Mr. LeBeau believed Stephanie was

having an affair and reacted in the heat of the moment because of

that belief.

¶58 We agree with Mr. LeBeau that the district court applied

the incorrect legal standard in its analysis of this mitigating factor.

Though we have never expressly addressed the question in this

context, we recently reiterated the proper legal standard to be

applied in the context of the affirmative defense of extreme

emotional disturbance. See Ross v. State, 2012 UT 93, ¶¶ 27–33, 293

P.3d 345. In Ross, we held that "the fact finder must determine

whether (1) subjectively, the defendant committed the [crime] while

under the influence of extreme emotional distress, and

(2) objectively, a reasonable person would have experienced an

extreme emotional reaction and loss of self-control under the

circumstances.” Id. ¶ 28. By analogy, determining whether Mr.

LeBeau acted under strong provocation the night he kidnaped

Stephanie requires the court to undertake a similar analysis, taking

into account both Mr. LeBeau's subjective experience and the

objective reasonableness of that experience.

¶59 In this case, the district court rejected Mr. LeBeau's claim

of provocation on the basis that Mr. LeBeau had not established that

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Opinion of the Court

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Stephanie was, in fact, having an affair. This had the effect of

requiring Mr. LeBeau to overcome a much greater hurdle than our

precedent requires. Mr. LeBeau was not required to demonstrate

that Stephanie and Mark were actually having an affair, only that

Mr. LeBeau reasonably believed they were. But the district court

wholly disregarded Mr. LeBeau's subjective experience in its

analysis. There is evidence in the record that Mr. LeBeau's actions

on the night in question were driven by his genuine belief that

Stephanie was having an affair with Mark. Shortly before the fateful

night, Stephanie had moved out of the couple's shared bedroom.

Stephanie testified that she spent the evening of February 23, 2009,

with Mark and that Mr. LeBeau was upset when she returned home.

Stephanie had refused to answer her cell phone while she was with

Mark and Mr. LeBeau repeatedly asked Stephanie where she had

been and with whom. After Stephanie told Mr. LeBeau that she had

been with Mark, the situation escalated. Stephanie testified that Mr.

LeBeau accused her of breaking his heart before forcing her into the

car and driving toward Mark's house.

¶60 Stephanie's testimony paints the picture of a man acting,

at least in part, out of jealousy and corroborates Mr. LeBeau's claim

that he reacted emotionally on the night in question. Though this

does not excuse Mr. LeBeau's deplorable actions, his subjective

emotional state was relevant to the mitigating factor of provocation.

On remand, the sentencing court should examine Mr. LeBeau's

actions in light of the proper legal standard to determine whether

Mr. LeBeau acted under provocation the night he kidnapped

Stephanie.

B. The District Court Improperly Weighed Mr. LeBeau's

Criminal History

¶61 Mr. LeBeau argues that the district court improperly

rejected his relatively minor criminal history as a mitigating factor.

We agree. Mr. LeBeau's criminal history includes a single conviction

from 1989 for first degree robbery, when Mr. LeBeau was a juvenile,

and a conviction for possession of marijuana in 1993. The

presentence report also showed that Mr. LeBeau had been arrest free

since 2001.

¶62 At sentencing, the district court rejected Mr. LeBeau's

criminal history as a mitigating factor because Mr. LeBeau had an

outstanding warrant for his arrest in Alabama and was living under

an assumed name at the time he kidnapped Stephanie. The court

also noted Mr. LeBeau's admitted drug use as a reason to find Mr.

STATE v. LEBEAU

Opinion of the Court

7 The presentence investigator also scored Mr. LeBeau's criminal

history on the sex offender matrix. It is unclear why this matrix was

used because Mr. LeBeau was not convicted of a sex offense and

there were no sexual overtones to the kidnapping he committed.

Nevertheless, that matrix recommends that a defendant with Mr.

LeBeau's criminal history be sentenced to fifteen years to life, with

a recommended sentence of twenty-one years.

24

LeBeau's criminal history nonmitigating. Though Mr. LeBeau's

history indicates that he was no angel, neither was he the type of

hardened criminal we normally associate with a sentence of LWOP.

¶63 Because the Legislature established a separate sentencing

scheme for aggravated kidnapping, we agree with the district court

judge that the sentencing guidelines established by the Utah

Sentencing Commission are not strictly applicable to Mr. LeBeau's

case. However, the sentencing guidelines were not rendered totally

irrelevant. In particular, the criminal history matrices still inform the

inquiry into the seriousness of the defendant's criminal history. The

Sentencing Commission is charged with developing sentencing

guidelines designed to "increase equity in criminal sentencing.”

UTAH CODE § 63M-7-404(3) (2013). We do not conclude that the

Legislature intended for sentencing courts to completely ignore the

wisdom of the Sentencing Commission guidelines when it

established the sentencing scheme for section 76-5-302 of the Utah

Code, particularly in light of the Legislature's instruction to consider

the interests of justice.

¶64 As Mr. LeBeau notes, his criminal history scores relatively

low on the general offender matrix.7 His score corresponds to a

recommended sentence of eight years for a first degree felony

involving injury to a person. According to the matrix, an offender

with Mr. LeBeau's criminal history score would receive a

recommended sentence of twenty years for first degree murder.

Though the sentencing matrices do not carry the same weight in

light of the sentencing scheme set out by the Legislature in the

aggravated kidnapping statute, they still provide insight into the

relative seriousness of a defendant's criminal history and provide an

important check against arbitrary sentencing. Thus, the district

court erred in completely disregarding the sentencing matrices when

considering whether Mr. LeBeau's criminal history was a mitigating

factor. On remand, the sentencing court should consider the

seriousness of Mr. LeBeau's criminal history, in light of the

Cite as: 2014 UT 39

Opinion of the Court

25

Sentencing Commission's guidelines, in order to determine whether

it is considered a mitigating factor.

C. The District Court Improperly Discounted Mr. LeBeau's

Employment History

¶65 Mr. LeBeau argues that the district court failed to properly

credit his employment history as a mitigating factor. The court

refused to consider Mr. LeBeau's employment history as a

mitigating factor because Mr. LeBeau was unemployed at the time

he committed his crime. However, the presentence report makes

clear that Mr. LeBeau was employed as a painter by the same

employer from May 2005, until he was laid off in December 2008,

only two months prior to his arrest. Though a defendant's

employment status at the time of his crime is certainly a relevant

factor, it is not solely determinative. In light of the severe economic

recession that gripped the country in 2008, which was particularly

devastating in the construction sector, the fact that Mr. LeBeau was

laid off and had yet to find new employment within a two-month

period cannot fairly be held against him. The district court erred

when it relied solely on the fact that Mr. LeBeau was unemployed at

the time he committed his crime. On remand, the court should

consider the reasons for Mr. LeBeau's unemployment and the

totality of his employment history when determining whether his

employment history should be considered a mitigating factor.

D. The District Court Improperly Discounted Mr. LeBeau's

Family Support

¶66 The district court refused to consider Mr. LeBeau's family

support structure as a mitigating factor because Mr. LeBeau "hadn't

seen [his] mother or [his] sister for years at the time they came to

testify at trial.” Again, while a defendant's physical contact with his

family is relevant, it cannot be determinative. Mr. LeBeau's family

all resides out of state. In large part due to the expense of travel,

prolonged physical separation of family members is a reality for

many today. But with technological innovations, families can

remain in close contact, even when physically separated. For

example, Mr. LeBeau's mother told the presentence investigator that

she and Mr. LeBeau talked on the phone monthly during the time he

was in Utah. Again, the district court's focus on only one aspect of

a potential mitigating factor was in error. On remand, the

sentencing court should consider the full extent of Mr. LeBeau's

family support and whether that can be considered a mitigating

factor.

STATE v. LEBEAU

JUSTICE LEE, dissenting

26

CONCLUSION

¶67 The court of appeals erred in affirming the district court's

imposition of a sentence of LWOP under section 76-5-302 of the Utah

Code. The district court erred when it considered only those

aggravating and mitigating circumstances recognized by the

Sentencing Commission instead of broadly considering the interests

of justice as required by subsection 76-5-302(4). Though the district

court is given broad discretion in sentencing decisions, that

discretion must be exercised in light of the proper legal standards.

Because the district court abused its discretion when sentencing Mr.

LeBeau, we vacate Mr. LeBeau's sentence of LWOP and remand for

further sentencing proceedings consistent with this opinion.

JUSTICE LEE, dissenting:

¶68 Utah law has long committed a range of sentencing

decisions to the sound discretion of the trial judge. The statute at

issue here, Utah Code section 76-5-302(3), appears to me to fall

squarely within this discretionary sentencing regime. It does so by

leaving the question of whether to impose a sentence of life without

parole for aggravated kidnapping to the trial judge's assessment of

the "interests of justice.”

¶69 The majority turns that discretionary standard on its head.

Instead of deferring to the historically broad discretion conferred on

trial judges, the court interprets the "interests of justice” standard to

require a sentencing judge to carefully consider specific factors that

the court deems relevant to an assessment of the "proportionality”

of a sentence and to the defendant's "potential for rehabilitation.”

Supra ¶ 55. I respectfully dissent. I find no basis in the statute for

imposing this rigid framework—imported from constitutional

jurisprudence in a case in which no constitutional challenge has been

asserted—on a judge exercising discretion under section 76-5-302(3).

I would interpret the statute to preserve the broad discretion long

conferred on trial judges on matters of discretionary sentencing. And

I would affirm the imposition of the sentence of life without parole

in this case, under the highly deferential "abuse of discretion”

standard of review.

I

¶70 In Utah as elsewhere, our law has long recognized a wide

berth of discretion for judges exercising the important duty of

Cite as: 2014 UT –

JUSTICE LEE, dissenting

See State v. 1 McGee, 2001 UT 69, ¶ 6, 31 P.3d 531 ("[D]istrict courts

have wide latitude and discretion in sentencing”); State v. Woodland,

945 P.2d 665, 671 (Utah 1997) ("We traditionally afford the trial court

wide latitude and discretion in sentencing.”); State v. Gerrard, 584

P.2d 885, 886 (Utah 1978) (noting that "sentencing procedures,

including the use of an evaluation, are clearly discretionary with the

trial court,” and explaining that "the exercise of discretion in

sentencing necessarily reflects the personal judgment of the court”).

2 See, e.g., State v. Sanwick, 713 P.2d 707, 708 (Utah 1986) ("Except

for . . . constitutional restraints, the trial court has broad discretion

in imposing sentence within the statutory scope. [The court] must be

permitted to consider any and all information that reasonably may

bear on the proper sentence for the particular defendant, given the

crime committed.” (internal quotation marks omitted)); Gerrard, 584

P.2d at 887 (sentence imposed by trial judge will not be reversed

unless it is beyond the "proper statutory penalty for the offense” or

unless it can be said that "no reasonable man would take the view

adopted by the trial court”). See also Dorszynski v. United States, 418

U.S. 424, 431 (1974) ("[O]nce it is determined that a sentence is

within the limitations set forth in the statute under which it is

imposed, appellate review is at an end.”); United States v. Tucker, 404

U.S. 443, 446–47 (1972) (acknowledging the trial judge's "wide

discretion in determining what sentence to impose,” including by

"conduct[ing] an inquiry broad in scope, largely unlimited . . . as to

the kind of information he may consider”; explaining that "a

sentence imposed by a federal district judge, if within statutory

limits, is generally not subject to review”); United States v. Colon, 884

F.2d 1550, 1552 (2d Cir. 1989) ("Prior to passage of the Sentencing

Reform Act, appellate review of sentences was unavailable unless

they exceeded statutory limits, resulted from material misinformation

or were based upon constitutionally impermissible considerations.”);

United States v. Dazzo, 672 F.2d 284, 289 (2d Cir. 1982)

("When the sentence imposed is within statutory limits, it is

generally not subject to review unless the trial court relied on either

material misinformation concerning the defendant or constitution-

(continued...)

27

imposing a criminal sentence.1 Such discretion is not without limits.

But so long as the judge imposes a sentence within the range of

punishments established by law, and based on an inquiry into the

nature of the offense and of the offender, the law has long upheld

the judge's prerogative of determining the appropriate sentence.2

STATE v. LEBEAU

JUSTICE LEE, dissenting

2(...continued)

ally impermissible factors.”); Carissa Byrne Hessick & F. Andrew

Hessick, Recognizing Constitutional Rights at Sentencing, 99 CAL. L.

REV. 47, 52 (2011) (noting that under discretionary sentencing

regimes, the judge "conduct[s] a separate sentencing proceeding at

which he . . . impose[s] a sentence within [a] statutory range based

on his assessment of 'sentencing' characteristics,” which encompass

"any number of factors” relevant to the offense, such as "harm to the

victim or the defendant's motive,” and "facts about the offender

himself”); Note, More Than A Formality: The Case for Meaningful

Substantive Reasonableness Review, 127 HARV. L. REV. 951, 952 (2014)

(noting that prior to the era of sentencing guidelines reform, "judges

enjoyed vast discretion to sentence defendants within a statutory

range,” and "sentencing appeals were allowed only under narrow

circumstances” and were "unreviewable” "[a]s a practical matter”);

Susan R. Klein, The Return of Federal Judicial Discretion in Criminal

Sentencing, 39 VAL. U. L. REV. 693, 693 (2005) (establishing that under

the traditional discretionary sentencing regime, sentencing judges

"ma[k]e all of the moral, philosophical, medical, penological, and

policy choices surrounding what particular sentence to impose upon

a particular offender,” making the sentencing judge the "master of

his courtroom”).

3 See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 481 (2000) (recognizing

that "judges in this country have long exercised

discretion . . . in imposing sentence within statutory limits in the

individual case”); Williams v. New York, 337 U.S. 241, 246 (1949)

(noting that "before and since the American colonies became a

nation, courts in this country and in England practiced a policy

under which a sentencing judge could exercise a wide discretion in

the sources and types of evidence used to assist him in determining

the kind and extent of punishment to be imposed within limits fixed

by law”); Klein, supra note 2, at 697 (explaining that prior to

sentencing guidelines reform, judges had "enormous and essentially

unbridled authority to impose a sentence anywhere within the

(continued...)

28

¶71 With a few limited exceptions, the law has also long

deferred to the trial judge's discretion in identifying the range of

offense-based and offender-based considerations relevant to the

ultimate decision as to where to fix the sentence within a statutory

range.3 For the most part, we have left it up to individual judges to

Cite as: 2014 UT –

JUSTICE LEE, dissenting

3(...continued)

legislatively prescribed range,” and "possessed full discretion to

consider any information about the offender and offense that they

thought relevant and helpful in determining the appropriate

sentence”).

4 See Gerrard, 584 P.2d at 887 (1978) (explaining that the trial court

"has the main responsibility for sentencing” and "attempts to arrive

at a proper sentence based on the facts and law before it”).

5 See Padilla v. Bd. of Pardons & Parole, 947 P.2d 664, 669 (Utah

1997) (explaining that the court sets "an indeterminate sentence as

provided by statute” which continues until the maximum amount

of time elapses unless the parole board "terminates or commutes the

punishment or pardons the offender”); UTAH ADULT SENTENCING

AND RELEASE GUIDELINES 1 (2013) ("An offender sentenced to prison

is legally subject to the full length of the sentence pronounced by the

sentencing judge. Ultimately, the final decision regarding the actual

length of incarceration is the responsibility of the Board of Pardons

and Parole: that decision may, or may not reflect the guideline

recommendation, and may be up to the full length of the indeterminate

range pronounced by the sentencing judge.”).

29

make a personal assessment of the factors he deems relevant to the

ultimate imposition of a sentence. And we have rooted that

approach in the trust we place in the trial judge, who has first-hand

interaction with the defendant and thus "the main responsibility for

sentencing.”4

¶72 Our Utah system of "indeterminate” sentencing

circumscribes the trial judge's discretion to some degree. It does so

by generally prescribing indeterminate sentencing ranges for various

categories of offenses, with the ultimate amount of time served being

decided not by the sentencing judge at the outset but by the parole

board in subsequent hearings.5 Under this system of indeterminate

sentencing, for example, a second-degree felony is generally subject

to a sentence of a prison term of one to fifteen years. UTAH CODE

§ 76-3-203(2). So a trial judge sentencing a defendant convicted on

such a charge would not impose a specific sentence within the

statutory range of one to fifteen years; he would simply impose a

sentence of one to fifteen years, and the defendant's actual time

served would be determined by a subsequent decision of the parole

board.

STATE v. LEBEAU

JUSTICE LEE, dissenting

30

¶73 But that does not mean that our judges do not exercise

discretion. First, not all sentencing decisions are subject to the

indeterminate sentencing regime, as this case illustrates. See UTAH

CODE § 76-5-302(3) (leaving it to the judge to decide whether to

impose a sentence of life without the possibility of parole for the

crime of aggravated kidnapping). Second, even as to offenses that

are subject to indeterminate sentences, the judge still is faced with

discretionary judgments—e.g., whether to place a defendant on

probation and/or suspend a prison sentence, whether to order that

sentences on multiple offenses be served concurrently or

consecutively, and whether to enter a conviction for a lower category

of offense under Utah Code section 76-3-402. See UTAH CODE § 76-3-

402(1) (authorizing sentencing court to enter a "judgment of

conviction for the next lower degree of offense” upon determination

that it would be "unduly harsh” to enter conviction at charged

level); id. § 76-3-402(2) (authorizing court to "enter a judgment of

conviction for the next lower degree of offense” if it "suspends the

execution of the sentence and places the defendant on probation”

and determines that it is in the "interests of justice” and the

defendant is successfully discharged from probation and meets other

conditions).

¶74 The process for exercising this discretion is regulated by

statute and by rule. Under Utah Code section 77-18-1(7), "[a]t the

time of sentence, the court shall receive any testimony, evidence, or

information the defendant or the prosecuting attorney desires to

present concerning the appropriate sentence.” (Emphasis added.)

This provision also requires that such "testimony, evidence, or

information shall be presented in open court on record and in the

presence of the defendant.” Id. Rule of Criminal Procedure 22 is to

the same general effect. It provides that "[b]efore imposing sentence

the court shall afford the defendant an opportunity to make a

statement and to present any information in mitigation of

punishment, or to show any legal cause why sentence should not be

imposed,” and also that "[t]he prosecuting attorney shall also be

given an opportunity to present any information material to the

imposition of sentence.” UTAH R. CRIM. P. 22(a) (emphasis added).

¶75 The point of these provisions is straightforward: Both the

defense and the prosecution have the opportunity to make a

presentation as to any considerations or information they deem

relevant to sentencing; and the judge then exercises his broad

discretion to impose a sentence based on the considerations he

Cite as: 2014 UT –

JUSTICE LEE, dissenting

6 State v. Sweat, 722 P.2d 746, 746 (Utah 1986) ("[S]o long as basic

constitutional safeguards of due process and procedural fairness are

afforded, the trial court has broad discretion in considering any and

all information that reasonably may bear on the proper sentence.”

(internal quotation marks omitted)). See also Klein, supra note 2, at

693 (noting that the judge in the traditional system of discretionary

sentencing "held a sentencing hearing if he wanted one, . . . heard

whatever evidence he felt relevant, and . . . made all of the moral,

philosophical, medical, penological, and policy choices surrounding

what particular sentence to impose upon a particular offender”).

7 State v. Killpack, 2008 UT 49, ¶ 18, 191 P.3d 17("[W]e review a

trial court's decision to deny probation under an abuse of discretion

standard and will overturn a sentencing decision only if it is clear

that the actions of the [trial] judge were so inherently unfair as to

constitute an abuse of discretion.” (internal quotation marks

omitted)); Gerrard, 584 P.2d at 887–88 (Utah 1978) ("Before this Court

will overturn the sentence given by the trial court, it must be clear

that the actions of the judge were so inherently unfair as to constitute

abuse of discretion.”).

8 See State v. Lipsky, 608 P.2d 1241, 1248 (Utah 1980) (information

in presentence report may not be considered in sentencing unless

provided to the defendant for the purpose of review and response;

holding that a "defendant's right to be sentenced on the basis of

information that is accurate can be protected only if the pre-sentence

report is disclosed to him prior to sentencing”). See also Note, supra

note 2, at 952 & n.6 (noting that in traditional discretionary sentencing

regimes, "judges enjoy vast discretion to sentence defendants

within a statutory range” and that "sentencing appeals [are] allowed

only under narrow circumstances,” as where they result from

"material misinformation” or are "based upon constitutionally

impermissible considerations” (quoting United States v. Colon, 884

F.2d 1550, 1552 (2d Cir. 1989))).

31

deems most salient.6 Appellate review of the sentencing judge's

decision, moreover, is limited. A sentence imposed in accordance

with the prescribed procedure is reviewed under an "abuse of

discretion” standard of review.7 And a judge may be deemed to have

abused his discretion only if the appellate court determines (a) that

he based his decision on considerations or information not properly

presented,8 or (b) that no reasonable judge would have entered such

STATE v. LEBEAU

JUSTICE LEE, dissenting

9 Gerrard, 584 P.2d at 887 (Utah 1978) (explaining that "the

exercise of discretion in sentencing necessarily reflects the personal

judgment of the court and the appellate court can properly find

abuse only if it can be said that no reasonable man would take the

view adopted by the trial court”); State v. Galli, 967 P.2d 930, 939

(Utah 1998) (same); State v. Branch, 919 P.2d 1228, 1235 (Wash. 1996)

(en banc) ("The length of an exceptional sentence will not be

reversed as clearly excessive absent an abuse of discretion . . . . A

sentence is clearly excessive if it is based on untenable grounds or

untenable reasons, or an action no reasonable judge would have

taken.”); Banks v. State, 732 So. 2d 1065, 1068 (Fla. 1999) (explaining

that sentencing discretion is only abused when "no reasonable

person would agree with the trial court's decision”).

10 See also Baine v. Beckstead, 347 P.2d 554, 560 (Utah 1959)

(affirming sentencing judge's decision not to suspend sentence and

impose probation); Williams v. Harris, 149 P.2d 640, 641–42 (Utah

1944) (affirming trial court's decision to revoke an order suspending

sentence).

32

a sentence under the circumstances.9

¶76 We have applied these standards in upholding the exercise

of the discretion of a trial judge in making the decision whether to

suspend a sentence on condition of probation. See State v. Killpack,

2008 UT 49, ¶ 191 P.3d 17, 23 (Utah 2008) (affirming decision to

commit adoptive mother to prison instead of probation on

conviction of child abuse homicide).10 In affirming such sentencing

decisions, we have confirmed that the trial courts have wide

discretion, while explaining that the exercise of such discretion is not

to be overridden on appeal absent a showing of abuse. Baine, 347

P.2d at 556; Williams, 149 P.2d at 642.

¶77 The sentencing judge's discretion as to the considerations

relevant to sentencing is not unlimited. But its limits are found in the

terms of the constitution. Thus, in State v. Lipsky, 608 P.2d 1241 (Utah

1980), we held that the information set forth in a presentence report

may not be considered in sentencing unless it is provided to the

defendant for the purpose of review and response. And we based

that decision on principles of notice and due process, explaining that

"fundamental fairness requires that procedures . . . in the sentencing

phase of a criminal proceeding be designed to insure that the

decision-making process is based on accurate information,” and

holding that a "defendant's right to be sentenced on the basis of

Cite as: 2014 UT –

JUSTICE LEE, dissenting

11 See Klein, supra note 2, at 693 & n.4 (indicating that in the

traditional scheme of discretionary sentencing, there are "no

standards to assist or confine the judge in making his determination;”

listing as limited exceptions the following: "(1) a sentence

imposed using constitutional criteria, such as race or political

viewpoint, Wayte v. United States, 470 U.S. 598 (1985); (2) a vindictive

sentence based upon a defendant's assertion of his constitutional

right to appeal his conviction, North Carolina v. Pearce, 395 U.S. 711

(1969); and (3) a term of years or fine so excessive compared to the

crime that it offended the Eighth Amendment's proportionality

requirement, Harmelin v. Michigan, 501 U.S. 957 (1991); United States

v. Bajakajian, 524 U.S. 321 (1998).”).

12 United States v. Kaba, 480 F.3d 152, 156 (2d Cir. 2007).

33

information that is accurate can be protected only if the pre-sentence

report is disclosed to him prior to sentencing.” Id. at 1248.

¶78 We have also identified another limitation on sentencing

in cases where such discretion is exercised in a manner interfering

with the authority afforded to the Board of Pardons and Parole by

statute and by the Utah Constitution. See UTAH CONST., art. VII, § 12

(recognizing authority of board to "grant parole . . . in all cases

except treason and impeachments, subject to regulations as provided

by statute”); UTAH CODE § 76-3-401 (allowing multiple sentences to

be imposed consecutively if the judge considers, among other

factors, the "rehabilitative needs of the defendant”). Thus, in State v.

Strunk, 846 P.2d 1297 (Utah 1993), we reversed the imposition of

consecutive sentences of a minimum of fifteen years for child

kidnapping and nine years for aggravated sexual assault for a

defendant who was sixteen years old at the time of his offense. Id. at

1300–02. In so doing, we held that such a sentence improperly

deprived the parole board of the "flexibility” guaranteed it by

statute and the constitution. Id. at 1301–02. And, in State v. Smith, 909

P.2d 236 (Utah 1995), we reversed a decision imposing consecutive

sentences amounting to "a minimum mandatory life sentence”

because it would "deprive the Board of Pardons of discretion to take

into account defendant's future conduct and possible progress

toward rehabilitation.” Id. at 245.

¶79 Courts in other jurisdictions have identified additional

factors that may not be considered at sentencing without

running afoul of the constitution11—factors such as race,12 national

STATE v. LEBEAU

JUSTICE LEE, dissenting

13 Id.; see also United States v. Borrero-Isaza, 887 F.2d 1349, 1355 (9th

Cir. 1989); United States v. Gomez, 797 F.2d 417, 419 (7th Cir. 1986).

14 United States v. Maples, 501 F.2d 985, 985–86 (4th Cir. 1974).

15 See Klein, supra note 2, at 699 ("The indeterminate sentencing

model began to unravel in the early 1970s, in response to criticism

that the rehabilitation model was a failure and that indeterminate

sentencing resulted in unwarranted disparities for similarly situated

defendants based on such illegitimate considerations as geography,

race, gender, socio-economic status, and judicial philosophy. The

sentencing reform movement, utilizing guidelines drafted by a

legislature or commission to tightly cabin judicial discretion, was

thus born at the state and federal levels.” (footnotes omitted)); Note,

supra note 2, at 952–53 (explaining that "the sentencing reform

movement of the 1970s and 1980s . . . was animated by a desire to

eliminate the unwarranted disparities perceived to be caused by

sentencing judges' unbridled discretion”). The majority's reaction to

the discretion afforded by our legislature under Utah Code section

76-5-302(3) seems to me to be animated by concerns that parallel

those of the sentencing reform movement that gave rise to sentencing

guidelines in federal law and in various states. Such concerns are

understandable. But if there is a problem, it is not in the statute at

issue here; it is in the overall scheme that we have long adopted. I

dissent from what I see as a piecemeal attempt at repeal or reform of

our discretionary system of sentencing. If we are to embrace reform,

we should do so comprehensively and carefully. And any such effort

(continued...)

34

origin,13 and gender.14 Except in these limited circumstances,

however, the law generally has left it to the sound discretion of the

trial judge to decide what offense-based or offender-based

considerations seemed most salient to the sentencing decision, and

to impose a sentence based on his discretionary judgment in light of

all of the considerations as he saw them.

¶80 The breadth of this sentencing discretion is not without

controversy. The flipside of broad discretion is the potential for

inconsistency. And that potential has generated a number of

responses to the traditional regime of discretionary sentencing

described above. One well-known response is the invocation of

"sentencing guideline” schemes aimed at replacing the individual

judge's discretion with a formulaic sentencing system adopted

pursuant to sentencing reform initiatives.15 Such schemes have been

Cite as: 2014 UT –

JUSTICE LEE, dissenting

15(...continued)

should start in the legislature, not in this court.

16 See generally Mistretta v. United States, 488 U.S. 361 (1989)

(discussing federal sentencing guidelines and upholding them

against constitutional attack; concluding that guidelines do not

amount to an unconstitutional delegation of legislative power nor a

violation of the principle of separation of powers); Kevin R. Reitz,

Sentencing Reform in the United States: An Overview of the Colorado Law

Review Symposium, 64 U. COLO. L. REV. 645 (1993) (discussing

sentencing reform efforts in the states); Daniel J. Freed, Federal

Sentencing in the Wake of Guidelines: Unacceptable Limits on the

Discretion of Sentencers, 101 YALE L.J. 1681 (1992) (discussing

sentencing reform efforts under federal law).

17 See e.g., Freed, supra note 16, at 1690 (criticizing the United

States Sentencing commission and its guidelines as "more complex,

inflexible, and severe than those devised by any other jurisdiction”

(footnotes omitted)); id. at 1686–87 (noting that soon after their

enactment and implementation, the federal guidelines "provoked

dismay and evasion in the federal courts and the bar” due to "a

powerful sense that the guidelines dictate unjust sentences in too

many cases,” and that "[m]any judges [] conform[ed] to the guidelines

with a deep sense of distress” due to their broad and rigid

requirements); KATE STITH & JOSE A. CABRANES, FEAR OF JUDGING:

SENTENCING GUIDELINES IN THE FEDERAL COURTS (1998) (arguing that

the most profound deficiency of the federal sentencing guidelines is

that they are unexplained, and therefore lawless, and calling for a

return of sentencing discretion to federal judges without "bureaucratic”

rules).

35

adopted at both the federal and state level.16 But although these

efforts have been lauded by commentators concerned about the

downsides of broad sentencing discretion, they have also met some

detractors.17 More significantly, the sentencing guidelines movement

has also run into constitutional resistance, culminating in a United

States Supreme Court decision striking down the "mandatory”

application of the federal guidelines on Sixth Amendment grounds.

United States v. Booker, 543 U.S. 220, 245 (2005).

¶81 Other responses to the traditional system of discretionary

sentencing have come in the form of constitutional challenges in the

courts. First was a challenge under the Eighth Amendment to the

imposition of the death penalty, based on the allegation that

STATE v. LEBEAU

JUSTICE LEE, dissenting

In 18 any event, the continuing viability of the Solem standard of

proportionality is an open question in cases not involving the death

(continued...)

36

discretionary sentencing as applied to the imposition of the death

penalty led to arbitrary decision-making, perhaps leading to racial

imbalances in the imposition of this sentence. That challenge

culminated in the Supreme Court's per curiam decision in Furman

v. Georgia, 408 U.S. 238 (1972), which resulted in a moratorium on the

death penalty for a period of time in which the states were given

time and some discretion to decide how to eliminate this

arbitrariness. And the Furman decision in turn led to the decision in

Gregg v. Georgia, in which the court lifted the moratorium after

upholding the constitutionality of a system in which Georgia and

other states fundamentally altered their traditional discretionary

sentencing system by (a) bifurcating their proceedings in a manner

separating the guilt and penalty phase, and (b) directing juries at

sentencing stage to exercise their discretion under instructions

limiting the death penalty to cases in which certain aggravating

circumstances are found to outweigh mitigating circumstances. Gregg

v. Georgia, 428 U.S. 153, 190–95 (1976).

¶82 The second main constitutional challenge to discretionary

sentencing came in Solem v. Helm, 463 U.S. 277 (1983). In Solem, the

Supreme Court struck down the imposition of a life sentence (under

a recidivism statute) for a conviction of passing a "no account” check

of $100. In so doing the court rejected the proposition that the Eighth

Amendment is limited to the proscription of the sorts of "cruel and

unusual punishments” decried as barbaric at the time of the

founding of the constitution, and embraced in addition a principle

of "proportionality.” Id. at 285, 288, 290. That principle, as the

majority notes, is one under which a court considering the

constitutionality of a sentence under an Eighth Amendment

challenge could assess the gravity of the offense at issue and the

harshness of the penalty, the sentences imposed on other criminals

in the same jurisdiction for similar offenses, and the sentences

imposed for imposition of the same crime in other jurisdictions. Id.

at 290–91.

¶83 The Solem standard, however, is not a generally applicable

limitation on sentencing discretion. It is a constitutional standard,

which is properly invoked only upon the assertion of an Eighth

Amendment challenge to a given sentence.18

Cite as: 2014 UT –

JUSTICE LEE, dissenting

18(...continued)

penalty. In Harmelin v. Michigan, 501 U.S. 957 (1991), the court

rejected an Eighth Amendment challenge to the imposition of a

sentence of life without parole for possession of cocaine, holding that

"mandatory penalties may be cruel, but they are not unusual in the

constitutional sense, having been employed in various forms

throughout our Nation's history.” Id. at 994. And on the applicability

of the Solem proportionality standard, the court was deeply splintered;

it ventured no majority view. See id. at 979–85 (opinion of

Scalia, J., joined by Rehnquist, C.J., concluding that Solem should be

overruled and articulating an originalist view of the Eighth Amendment

under which an "unusual punishment” is understood as a

particular mode of punishment that was infrequently imposed, not

one that was excessively lengthy in comparison to other punishments

imposed for similar crimes); id. at 996–1005 (opinion of

Kennedy, J., joined by O'Connor, J., and Souter, J., expressing

disagreement with aspects of the Solem test—particularly the "intraand

interjurisdictional” comparison of sentences for comparable

crimes—while expressing support for a "narrow proportionality

principle”); id. at 1009–27 (opinion of White, J., joined by Blackmun,

J., and Stevens, J., expressing support for the Solem standard and

concluding that Harmelin's sentence was unconstitutional; asserting

that the "narrow” proportionality principle favored by Justice

Kennedy effectively "eviscerates” Solem, leaving only an "empty

shell” in its place). Thus, after Harmelin, the general applicability of

the Solem standard of proportionality is a matter of grave doubt,

particularly in cases not involving the death penalty. See Richard S.

Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth

Amendment: Proportionality Relative to What?, 89 MINN. L. REV. 571,

581–84, 588–89 (2005) (discussing the ongoing debate regarding the

effect of Harmelin and subsequent cases on constitutional proportionality

analysis).

37

II

¶84 This history provides the background necessary for our

interpretation of the sentencing discretion prescribed in Utah Code

section 76-5-302(3). The statute is part and parcel of a longstanding

system of discretionary sentencing. Section 76-5-302(3) seems to me

to preserve that discretion. It does so by directing the judge to

impose the sentence he deems consistent with his sense of the

"interests of justice.”

STATE v. LEBEAU

JUSTICE LEE, dissenting

19 See UTAH CODE § 76-4-204(2) (conferring discretion on sentencing

judge to impose lesser sentence for crimes of solicitation if the

court finds that a lesser term is "in the interests of justice” and states

the reasons for this finding on the record); id. § 76-5-301.1 (providing

for downward departure in the "interests of justice” in child

kidnapping cases); id. § 76-5-402(4) (rape); id. § 76-4-102(2) (murder);

id. § 76-4-102(3) (); id. § 76-3-203.2(5) (use of dangerous weapon in

offenses committed on or about school premises).

20 See UTAH CODE § 78B-1-136 (establishing witness's right "to be

detained only so long as the interests of justice require”); id. § 77-8a-

1(2)(d) (requiring joint trial of co-defendants unless separate trials

would be "in the interests of justice”).

38

¶85 The hazy terms of the statute seem to me to emphasize the

breadth of the judge's discretion in sentencing. As used in our

sentencing scheme and elsewhere, this phrase appears to be little

more than a reinforcement of the court's broad discretion to impose

a sentence that it deems appropriate in light of the relevant

circumstances as perceived by the judge.

¶86 Most often, the notion of "interests of justice” is used to

impart discretion for a judge to depart downward from a

presumptive statutory sentence for a particular crime.19 The

implication, without more, is simply to reinforce the broad range of

a judge's discretion. And the phrase's general use in other wideranging

provisions of the code seems to reinforce this notion of

broad discretion.20

¶87 I find no room in the statutory authority to impose a

sentence "in the interests of justice” for the complex, detailed

sentencing standards prescribed by the majority. Granted, the

legislature does not always use "the phrase . . . in the same manner

in all the[] different contexts” in which it appears in our code. Supra

¶ 28. But to me that only reinforces the understanding of this phrase

as a general placeholder for a principle of broad judicial

discretion—discretion that may be exercised in different ways in

different contexts, but that is broad and not easily subject to reversal

on appeal.

¶88 I agree that the current version of section 76-5-302(3) is not

the equivalent of the now-repealed instruction to courts to impose

a sentence for aggravated kidnapping based on a consideration of

aggravating and mitigating circumstances identified by the Utah

Sentencing Commission. See supra ¶ 32 (citing UTAH CODE § 76-5-302

Cite as: 2014 UT –

JUSTICE LEE, dissenting

See 21 Rahofy v. Steadman, 2012 UT 70, ¶ 12 n.12, 289 P.3d 534

(identifying "stylistic changes” in legislative amendments that had

"no substantive effect on our analysis”); Gressman v. State, 2013 UT

63, ¶ 63, 323 P.3d 998 (Lee, J., dissenting) ("[T]he key question . . . is

whether the change under review is in fact material. Some legislative

amendments are not. Some are aimed only at clarification, or at

stylistic or semantic refinement.”).

22 See In re Estate of Hannifin, 2013 UT 46, ¶¶ 25–26, 311 P.3d 1016

(explaining that on "any matter of statutory construction of any

consequence, it will almost always be true” that the legislature could

have spoken more clearly, while indicating that such "failure to

speak more clearly” tells us nothing of consequence to our interpretation

of the language that it used); In re Adoption of Baby E.Z., 2011

UT 38, ¶ 75, 266 P.3d 702 (Lee, J., concurring) ("[O]ne can almost

always imagine clarifying amendments cutting both ways . . . . It

adds nothing analytically to hypothesize how Congress might have

spoken with greater clarity. We instead must simply ask what

Congress did say and interpret it as best we can.”).

39

(2007)). But I would not draw that inference from the mere fact of

amendment of the old scheme—much less from the fact that the

legislature "had the means and knowledge” to require consideration

of aggravating and mitigating circumstances if it intended to do so.

Supra ¶¶ 31–32. After all, the mere fact of a legislative amendment

tells us little or nothing about the reason for amendment—which

could either be an intent to abandon the old scheme in favor of a

different one, or simply a desire to reword the statute in equivalent

or synonymous terms.21 And the legislature's capacity to speak more

clearly—here as almost always—tells us absolutely nothing. It's true,

of course, that the legislature could have clearly reinforced the

mitigating and aggravating factors imposed under prior legislation;

but it also could have spoken more clearly the other way, expressly

repudiating those terms. So the failure to speak more clearly gets us

nowhere in the face of an ambiguity like this one.22

¶89 The majority presumes that any rejection of the old

mitigation-aggravation construct must have been a preference for

something even more restrictive. Thus, after announcing its

conclusion that the statute is not "equivalent to the previous

aggravating-and-mitigating circumstances language,” the court

assumes that the existing statutory standard must necessarily be

more restrictive than the one it replaced. Supra ¶ 32. And it then

proceeds to develop such a standard from the general "goals” stated

STATE v. LEBEAU

JUSTICE LEE, dissenting

23 Sentencing law in other jurisdictions confirms the understanding

of consideration of the interests of "justice” as a reference to

broad sentencing discretion. See United States v. Steiner, 239 F.2d 660,

662 (7th Cir. 1957) (noting the longstanding principle of "judicial

discretion” in sentencing, while explaining that it encompasses the

judge's prerogative of imposing a sentence "upon such terms and

conditions as the court deems best,” or in other words terms

consistent with "the ends of justice and the best interest of the public

as well as the defendant”(emphasis added) (citation omitted)));

United States v. Danilow Pastry Co., Inc., 563 F. Supp. 1159, 1166

(S.D.N.Y. 1983) (noting that in "1925[,] when the first federal

probation statute was enacted, every state had such a statute to give

judges discretion to suspend overly harsh sentences in the interests of

justice,” and speaking of the need for the law to "devise flexible

sentences” and to engage in "creative” sentencing "in the interests

of justice” (emphasis added)).

40

in our criminal code and from Eighth Amendment caselaw on

proportionality in sentencing (under Solem v. Helm).

¶90 I find no basis for such a standard in section 76-5-302(3).

Black's Law Dictionary defines "justice” as "[t]he fair and proper

administration of laws.” BLACK'S LAW DICTIONARY 942 (9th ed. 2009).

Thus, the statutory direction to the court to impose the sentence it

deems to be in the "interests of justice” is a straightforward

reiteration of the judge's duty to decide what seems most "fair and

proper.” That cannot properly be construed to require the court to

follow the rigid, detailed framework of aggravating and mitigating

circumstances.

¶91 Instead, the terminology of the statute is a straightforward

reiteration of the longstanding principle of broad sentencing

discretion. Our opinion in State v. Russell, 791 P.2d 188 (1990),

hammers this point home. There we rejected the notion that

discretion in sentencing is a matter that may be "surrendered to a

mathematical formula,” and reiterated instead the wide-ranging

discretion afforded to the sentencing judge. Id. at 192. And our

articulation of the essence of that discretion is telling. We stated that

the "overriding consideration” for a judge imposing a sentence "is

that the sentence be just.” Id. (Emphasis added.)23

¶92 I would accordingly read the terms of the governing

statute as a straightforward reiteration of the longstanding discretion

afforded to the sentencing judge. And I would not deem those terms

Cite as: 2014 UT –

JUSTICE LEE, dissenting

41

to be overridden by the "general purposes” articulated in the

preambular provisions of the criminal code. Supra ¶ 34. None of

these purposes identify, much less attempt to define, the meaning of

"interests of justice” in sentencing or even in our criminal law.

¶93 As the majority notes, section 76-1-106 does make a general

reference to "justice” (though not "interests of justice”). Supra ¶ 34.

But even that term is used only to prescribe a rather fuzzy canon of

construction of the code—to direct the courts to construe it

"according to the fair import of [its] terms to promote justice and to

effect the objects of the law and general purposes of [s]ection 76-1-

104.” Supra ¶ 34. This general canon seems to me to have little or

nothing to do with the question presented here—of the meaning of

"interests of justice” in a sentencing statute.

¶94 The majority cites this provision as a basis for importing an

analysis of the principles of proportionality and rehabilitation, since

the third of the four general purposes identified in section 104

encompasses the prescription of "penalties which are proportionate

to the seriousness of offenses and which permit recognition of

differences in rehabilitation possibilities among individual

offenders.” UTAH CODE § 76-1-104. In light of this general reference

to these principles, the court reads the "interests of justice”

consideration in section 76-5-302(3) to require an individualized

assessment of proportionality and rehabilitative potential in each

case prior to the imposition of a sentence under this statute.

¶95 I cannot agree with this approach. The general purposes

cited by the majority are purposes of the criminal code—not of trial

judges exercising discretion in sentencing. Thus, the general

purposes invoked by the court have no apparent connection to our

interpretation of the "interests of justice” consideration in sentencing

under section 76-5-302(3). That phrase, again, is a reinforcement of

the judge's broad sentencing discretion. And the longstanding

tradition of such discretion runs clearly contrary to the detailed

review for proportionality and rehabilitative potential prescribed by

the court.

¶96 The court's standard turns the above-recounted history on

its head. Traditionally, the principal limits on the judge's discretion

in sentencing have been constitutional in nature. Thus, except where

limited by the Eighth Amendment, principles of due process, or

otherwise, our law has long left it up to the judge to determine the

considerations that seem most salient to him and to impose an

appropriate sentence in light of those considerations. The court's

STATE v. LEBEAU

JUSTICE LEE, dissenting

24 The majority's approach has no logical stopping point. If it is

taken seriously and extended to its logical limits, today's decision

may eventually be understood to require proportionality review of

every sentence imposed in the courts of the State of Utah, since the

"interests of justice” are at least presumptively relevant to all

sentencing decisions. And even if the court's approach is limited to

sentences imposed under statutes expressly calling for consideration

of the "interests of justice,” the impact of today's decision still will

be sweeping, as that phrase is employed in a wide range of statutes

cited above. Supra ¶ 20, notes 19 & 20. That sweeping extension

would be troubling, as it would represent a broad judicial overhaul

of the discretionary sentencing regime that our law has long

adopted.

42

decision today inverts this inquiry. In a regime governed by highly

discretionary standards, and in a case in which the defendant has not

asserted a constitutional challenge to his sentence, the court

nonetheless reverses the sentence and remands for an evaluation of

considerations (of proportionality and rehabilitative potential)

heretofore arising only in case of a constitutional challenge to a

sentence.24

¶97 This will surely come as a shock to the district judge in this

case, who could not possibly have imagined being reversed for not

engaging an Eighth Amendment analysis of proportionality in a case

where no one had ever invoked the Eighth Amendment. And I

suppose it will even come as a shock to counsel for LeBeau, who are

being granted broad license to challenge the presumptive sentence

endorsed by the legislature on grounds they never advanced in the

proceedings below and thus have not preserved.

III

¶98 For the above reasons, I would interpret the terms of

section 76-5-302(3) to preserve the traditional, broad sentencing

discretion long afforded to trial judges in Utah. Thus, I would note

that before imposing a sentence in this case, the district judge was

required by statute to "receive any testimony, evidence, or

information the defendant or the prosecuting attorney desires to

present concerning the appropriate sentence.” UTAH CODE § 77-18-

1(7). But beyond that, and except as foreclosed by the limitations of

the Utah and United States Constitution, I would hold that the

sentencing decision under section 76-5-302(3) was committed to the

broad discretion of the judge to identify the considerations that he

Cite as: 2014 UT –

JUSTICE LEE, dissenting

25 See Paul H. Robinson & Barbara A. Spellman, Sentencing

Decisions: Matching the Decisionmaker to the Decision Nature, 105

COLUM. L. REV. 1124, 1136 (2005) ("[B]oth judges and juries are

properly excluded as decisionmakers because of the disparity

problem: To rely on either is to allow offenders brought before

different decisionmakers to be subject to different punishment

rules.”).

43

deemed appropriate in imposing a sentence that he deemed

consonant with the "interests of justice.” And I would affirm on that

basis, as I see nothing in this record to suggest that he abused his

sound discretion in imposing the sentence he selected.

¶99 I can understand a degree of discomfort with the sentence

imposed on LeBeau. From what I can tell on the face of the cold

record before us on this appeal, I suspect I may not have imposed

the sentence that was handed down in this case. But sentences in

Utah are not imposed on the basis of cold records. They are imposed

by trial judges, who are informed by a wealth of understanding and

firsthand experience that appellate judges lack. That is why our law

affords those judges such broad discretion, and why we limit our

review on appeal for the rare abuse of discretion.

¶100 I can also appreciate a degree of discomfort with the

discretionary sentencing scheme that we have adopted in Utah. As

I noted above, and as proponents of sentencing reform have been

advocating for decades, the downside of discretion is the potential

for arbitrariness.25 And that potential is certainly troubling. My point

is not to express a preference for a more regimented, guidelinesbased

approach to sentencing, or even disapproval of our existing

regime. The tradeoffs between case-by-case discretion and

guidelines-based sentencing formulas pose intractable dilemmas for

policymakers, and my understanding of the matter is far too limited

to feel confident in advocating for one over the other. Thus, my point

is more narrow. It is simply that despite the limitations of our

current regime, it is not our prerogative to remake it by judicial fiat.

I dissent from a decision that strikes me as a baseless move in that

direction.

¶67 The court of appeals erred in affirming the district court’s

imposition of a sentence of LWOP under section 76-5-302 of the Utah

Code. The district court erred when it considered only those

aggravating and mitigating circumstances recognized by the

Sentencing Commission instead of broadly considering the interests

of justice as required by subsection 76-5-302(4). Though the district

court is given broad discretion in sentencing decisions, that

discretion must be exercised in light of the proper legal standards.

Because the district court abused its discretion when sentencing Mr.

LeBeau, we vacate Mr. LeBeau’s sentence of LWOP and remand for

further sentencing proceedings consistent with this opinion.