Opinion
Case No. 20050993-CA.
February 23, 2007. (Not For Official Publication).
Second District, Ogden Department, 031905193 The Honorable Michael D. Lyon.
Randall W. Richards, Ogden, for Appellant.
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee.
BEFORE JUDGES GREENWOOD, BILLINGS, and McHUGH.
MEMORANDUM DECISION
Defendant James Christian Brannan was charged with unlawful sexual activity with a minor, a third degree felony. See Utah Code Ann. § 76-5-401 (2003). Pursuant to a plea agreement, Brannan entered a plea of guilty and mentally ill at the time of the offense (GAMI). See id. § 77-16a-103 (2003). After reviewing the reports of three alienists, the trial court sentenced Brannan to an indeterminate term, not to exceed five years, in the Utah State Prison. However, execution of the sentence was stayed, and the trial court ordered that Brannan be placed on probation and participate in mental health court. Brannan did not object to the sentence. Shortly after having been released on probation, Brannan was found in possession of a stolen vehicle — a violation of his probation. At the hearing on the probation violation, Brannan admitted to violating the terms of his probation, and as a result, the trial court revoked Brannan's probation and ordered the previously imposed sentence executed.
Brannan challenges his sentence of zero to five years in the custody of the Utah Department of Corrections as cruel and unusual punishment violative of the Eighth Amendment of the United States Constitution, see U.S. Const. amend. VIII, and Article 1, Section 9 of the Utah Constitution, see Utah Const. art. I, § 9. Brannan concedes that the imposition of a zero to five year sentence for unlawful sexual activity with a minor does not violate state or federal constitutional limits. Rather, Brannan argues that the trial court committed plain error when it sentenced him to prison because "it exceeds the parameters of `decency and human dignity'" to sentence a defendant with mental limitations to prison instead of the state hospital. We affirm.
We note that on appeal Brannan has not argued that his sentence violates his constitutional right to adequate medical care. Instead, Brannan only asserts that his commitment to the state prison instead of the state hospital is unconstitutionally cruel and unusual. Our review therefore is similarly limited. Cf. State v. Bishop, 717 P.2d 261, 268 (Utah 1986) ("It may be arguable that denying psychiatric treatment to one who has been found guilty and mentally ill . . . violates the prisoner's rights to adequate medical care but that is an issue apart from the constitutionality of the sentencing statute and the imposition of a sentence under it." (emphasis added)).
Brannan relies on sections of the Utah Code for the proposition that the Utah Legislature has addressed and, in Brannan's view, rejected imprisonment as a penalty for the mentally ill. See Utah Code Ann. §§ 77-16a-103 to-104 (2003). Brannan, however, misapprehends the legislature's position. Utah Code sections 77-16a-103 and-104 apply to defendants who have pleaded or been adjudged GAMI. See id. Contrary to Brannan's assertions, these sections do not forbid the imprisonment of those who are GAMI. Utah Code section 77-16a-103 provides that if a defendant who has pleaded GAMI "is later found not to be currently mentally ill, . . . the defendant shall be sentenced as any other offender," id. § 77-16a-103(3)(b), which could clearly include imprisonment or even death if merited by the crime, see State v. Young, 853 P.2d 327, 385 (Utah 1993) ("[T]he law provides that a defendant found GAMI may be sentenced to any punishment lawful for one found simply guilty, including death. . . ." (emphasis added)).
The legislature has also determined that imprisonment is appropriate for defendants who have pleaded GAMI and are found to be currently mentally ill if certain criteria are met. See Utah Code Ann. § 77-16a-104(3)(c). Under Utah Code section 77-16a-104(3)(c), the trial court shall place the defendant in the custody of the Utah Department of Corrections or a county jail "if the court determines that commitment to the [state hospital] . . . or probation . . . is not appropriate."Id. Thus, because the Utah Legislature has not deemed it excessive or in contravention of evolving standards of human decency to sentence mentally ill offenders to a term of imprisonment, we reject Brannan's contentions to the contrary.
Brannan contends that his prison sentence violates Article I, Section 9 of the Utah State Constitution. See Utah Const. art. I, § 9. We disagree. As previously noted, Brannan concedes that the statutory scheme imposing a zero to five year sentence for unlawful sexual activity with a minor does not violate state or federal constitutional limits. Instead, Brannan argues that the specific application of the statutory sentence amounts to cruel and unusual punishment because he was placed in prison instead of the state hospital. Therefore, "[d]efendant's challenge must meet the test for cruel and unusual punishment in specific applications: `whether the sentence imposed in proportion to the offense committed is such as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.'" State v. Russell, 791 P.2d 188, 190 (Utah 1990) (quoting State v. Bastian, 765 P.2d 902, 904 (Utah 1988)).
Brannan pleaded GAMI to unlawful sexual activity with a minor. See Utah Code Ann. § 76-5-401. At sentencing, the trial court found that Brannan was currently "suffer[ing] from a substantial mental disorder" and "behavioral problems." However, the trial court stopped short of determining that Brannan posed an immediate threat to himself or others and noted only that the court "had a concern that [Brannan] is dangerous to himself and others." The trial court also found that the state hospital would not accept Brannan for treatment and that Brannan was capable of leading a productive life. Thus, when balancing Brannan's "right to treatment against society's right to protection against a potentially dangerous individual," State v. Copeland, 765 P.2d 1266, 1271 (Utah 1988), we cannot say that Brannan's incarceration in the state prison instead of the state hospital would "shock the moral sense of all reasonable men as to what is right and proper under the circumstances." Russell, 791 P.2d at 190 (quotations and citations omitted). The Utah Supreme Court reached a similar conclusion in State v. Bishop, 717 P.2d 261 (Utah 1986), where it addressed whether it was cruel and unusual punishment for a mentally ill defendant to be held in prison until he was eligible for psychiatric care offered through the sex offenders program. See id. at 267-68. The supreme court held that the defendant's imprisonment did not run afoul of the state constitution and noted that "[a] conviction of guilty and mentally ill does not ipso facto entitle the defendant to be committed to the state hospital rather than the state prison." Id. at 268; see also State v. Lafferty, 2001 UT 19, ¶¶ 72-78, 20 P.3d 342 (holding that imposing punishment, including the death penalty, "on one who is to some degree mentally ill but not legally insane is not cruel and unusual punishment"); Bastian, 765 P.2d at 903-04 (rejecting defendant's claim that incarceration in prison was cruel and unusual because he was a candidate for psychiatric treatment).
It is important to note that a plea of GAMI does not indicate a reduced or insufficient mens rea to commit the offense. See State v. Young, 853 P.2d 327, 384-85 (Utah 1993) (noting that because a plea of GAMI focuses on sentencing rather than on mens rea, "the law provides that a defendant found GAMI may be sentenced to any punishment lawful for one found simply guilty, including death"); cf. Utah Code Ann. § 77-16a-103(3)(a) (2003) ("The defendant shall be advised that a plea of guilty and mentally ill at the time of the offense is a plea of guilty and not a contingent plea."). Rather, the only difference between a defendant that pleads guilty and a defendant that pleads GAMI is that for the GAMI defendant, the mental health "assessment process is automatically triggered" whereby they become eligible for mental health testing and alternative incarceration in mental facilities.Young, 853 P.2d at 385. Defendants pleading guilty but not GAMI are also eligible for testing and alternative incarceration; however, they "will have to raise [the issue of] mental illness [as a mitigating circumstance] sua sponte and perhaps carry some additional burden in producing evidence" at sentencing. Id.
Thus, Brannan was ineligible for alternative incarceration in the state hospital under Utah Code section 77-16a-104. See Utah Code Ann. § 77-16a-104 (2003). Under that section, a defendant found currently mentally ill is only eligible for alternative sentencing in the state hospital if the court finds by clear and convincing evidence that "because of his mental illness the defendant poses an immediate physical danger to self or others . . . and . . . the [state hospital] is able to provide the defendant with treatment, care, custody, and security that is adequate and appropriate to the defendant's conditions and needs."Id. § 77-16a-104(3)(a)(ii)(A), (B) (emphasis added).
Brannan also challenges his sentence under the Eighth Amendment to the United States Constitution, which forbids the infliction of "cruel and unusual punishment." U.S. Const. amend. VIII. For the same reasons we reject his state constitutional arguments, we also hold that his sentence is not excessive and does not contravene the "evolving standards of decency that mark the progress of a maturing society."Atkins v. Virginia, 536 U.S. 304, 311-12 (2002).
For the above reasons, we hold that the trial court did not commit reversible error in ordering that Brannan serve his sentence for unlawful sexual activity with a minor at the prison instead of committing him to the state hospital.
Affirmed.
Carolyn B. McHugh, Judge
WE CONCUR: Pamela T. Greenwood, Associate Presiding Judge
Judith M. Billings, Judge