State v. Jones , 733 Utah Adv. Rep. 26 ( 2013 )

2013 UT App 106_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
PATRICK JOSEPH JONES,
Defendant and Appellant.
Memorandum Decision
No. 20110273‐CA
Filed April 25, 2013
Third District, Salt Lake Department
The Honorable Robin W. Reese
No. 071905694
Debra M. Nelson, Attorney for Appellant
John E. Swallow and Christopher D. Ballard, Attorneys for
Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES JAMES Z. DAVIS and WILLIAM A. THORNE JR.
concurred.
ORME, Judge:
¶1 Defendant pled guilty to a charge of obstruction of justice,
a first degree felony,1 see Utah Code Ann. § 76‐8‐306(1) (LexisNexis
1
The maximum offense level for obstruction of justice,
standing alone, is a second degree felony. See Utah Code Ann. §
76‐8‐306(3) (LexisNexis 2008). However, the crime can be en‐
hanced to a first degree felony. See id. § 76‐3‐203.1.
State v. Jones
2008),2 and was sentenced accordingly. He now appeals the legality
of his sentence. We decline to disturb the sentence imposed.
¶2 In 2007, after being involved in a carjacking and shooting,
Defendant was charged with attempted murder, aggravated
kidnapping, and possession or use of a firearm by a restricted
person. When originally questioned about these crimes by police,
Defendant claimed that he knew nothing about the incident. More
than three years later, Defendant and the State entered into a plea
agreement. Pursuant to the plea agreement, Defendant pled guilty
to obstruction of justice, a first degree felony, and the State
dropped all other charges. Based on his guilty plea to a first degree
felony, Defendant was sentenced to an indeterminate term of five
years to life. See Utah Code Ann. § 76‐3‐203(1) (LexisNexis 2012).
Defendant now appeals, claiming his sentence is illegal.
¶3 While rule 22(e) of the Utah Rules of Criminal Procedure
permits this court to correct an illegal sentence at any time, Utah
courts have carefully circumscribed the application of this rule in
order to prevent abuse. See State v. Thorkelson, 2004 UT App 9, ¶ 15,
84 P.3d 854. Defendants cannot use rule 22(e) as “a veiled attempt
to challenge the underlying conviction by challenging the
sentence.” State v. Candedo, 2010 UT 32, ¶ 9, 232 P.3d 1008. Instead,
rule 22(e) applies only when a sentence is “patently” or
“manifestly” illegal. Id. “A ‘patently’ or ‘manifestly’ illegal sentence
generally occurs in one of two situations: (1) where the sentencing
court has no jurisdiction or (2) where the sentence is beyond the
authorized statutory range.” Thorkelson, 2004 UT App 9, ¶ 15. The
2
When no material changes have been made to statutory
provisions, we cite the current version of the Utah Code as a
convenience to the reader. Sections 76‐3‐203.1 and 76‐8‐306(1)
have been significantly amended since the incident at issue in
this case. Compare Utah Code Ann. §§ 76‐3‐203.1, 76‐8‐306(1)
(LexisNexis 2012) with id. §§ 76‐3‐203.1, 76‐8‐306(1) (LexisNexis
2008). Accordingly, we cite the versions of these provisions that
were in effect at the time of the incident.
20110273‐CA 2 2013 UT App 106State v. Jones
Utah Supreme Court has determined that a sentence is also illegal
if it is “ambiguous with respect to the time and manner in which it
is to be served, is internally contradictory, omits a term required to
be imposed by statute, is uncertain as to the substance of the
sentence, or is a sentence which the judgment of conviction did not
authorize.” State v. Yazzie, 2009 UT 14, ¶ 13, 203 P.3d 984 (citation
and internal quotation marks omitted).
¶4 Defendant first argues that his sentence is illegal because
“neither the plea colloquy nor the plea affidavit established or
identified the criminal offense and severity of conduct that
constituted a crime.” Essentially, Defendant argues that the
documents and procedure leading up to his guilty plea were
insufficient to identify a specific violation of law or justify a penalty
greater than a class A misdemeanor. Therefore, he concludes, the
sentence was illegal because it was based upon a plea in which the
“underlying ‘conduct that constitutes a criminal offense’ and the
level of severity were not established,” in violation of case law and
rule 11 of the Utah Rules of Criminal Procedure.
¶5 This is exactly the type of argument that Utah courts have
determined is not permissible under rule 22(e). See Candedo, 2010
UT 32, ¶ 9. In support of his claim of an illegal sentence, Defendant
attacks the plea affidavit, the plea colloquy, and the district court’s
adherence to rule 11 prior to sentencing. These complaints
regarding the district court’s conduct during the plea process do
not establish that the sentence was “manifestly” or “patently”
illegal, i.e., that the sentencing court was without jurisdiction or
exceeded the permitted statutory range in imposing sentence. See
Thorkelson, 2004 UT App 9, ¶ 15. Nor does Defendant demonstrate
that the sentence imposed is ambiguous, contradictory, incomplete,
uncertain, or unauthorized by the judgment. See Yazzie, 2009 UT 14,
¶ 13. Rather, his complaints focus exclusively on the validity of his
plea and resulting conviction.
¶6 Defendant’s complaints about presentencing irregularities
are the “ordinary or ‘run‐of‐the‐mill’ errors regularly reviewed on
20110273‐CA 3 2013 UT App 106State v. Jones
appeal,” rather than the errors in sentencing that rule 22(e) is
designed to address. See Thorkelson, 2004 UT App 9, ¶ 15. See also
Utah R. Crim. P. 22(e). Indeed, it is telling that none of the cases
cited by Defendant in support of his rule 22(e) argument involved
rule 22(e). See, e.g., State v. Moa, 2009 UT App 231, 220 P.3d 162;
State v. Alexander, 2009 UT App 188, 214 P.3d 889; State v. Lehi, 2003
UT App 212, 73 P.3d 985. All of these cases found error in the
underlying convictions or pleas; none dealt with the resulting
sentence, much less with setting a sentence aside as illegal. See, e.g.,
Moa, 2009 UT App 231, ¶ 15 (holding that inconsistencies in the
plea affidavit and colloquy constituted error); Alexander, 2009 UT
App 188, ¶ 14 (holding that the defendant did not sufficiently
understand the elements of the crime to which he pled guilty); Lehi,
2003 UT App 212, ¶ 17 (holding that failure by the trial court to
strictly adhere to rule 11 justified withdrawal of plea). Insofar as
Defendant’s claims are supported by facts relating only to the plea
process, they are merely a “veiled attempt to challenge the
underlying conviction by challenging the sentence,” and this court
is barred from considering them. Candedo, 2010 UT 32, ¶ 9. See State
v. Telford, 2002 UT 51, ¶ 7, 48 P.3d 228; Thorkelson, 2004 UT App 9,
¶¶ 15, 17.
¶7 Defendant next argues that his sentence was illegal because
it exceeded the maximum penalty permitted by statute. Defendant
pled guilty to obstruction of justice, a second degree felony given
the underlying conduct. See Utah Code Ann. § 76‐8‐306(1)
(LexisNexis 2008). However, the amended information, which was
the focus of the plea colloquy, was reviewed by Defendant, and
was incorporated into the plea agreement, clearly stated that the
offense was subject to an in‐concert enhancement under section 76‐
3‐203.1, elevating Defendant’s crime to a first degree felony. See id.
§ 76‐3‐203.1(3). Defendant was then sentenced to five years to
life—a sentence permissible under Utah law for a first degree
felony conviction. See id. § 76‐3‐203(1) (LexisNexis 2012). Defendant
pled guilty to an offense subject to enhancement, signed a plea
agreement clearly identifying his crime as a first degree felony, and
20110273‐CA 4 2013 UT App 106State v. Jones
received a sentence appropriate for a first degree felony conviction.
We therefore see no illegality in Defendant’s sentence.
¶8 Defendant also contends that there was insufficient evidence
to support the enhancement, that it was never referenced during
the plea hearings, and that he never admitted to the elements
required for the enhancement in any way, including in the signed
plea affidavit. But all of these arguments go to the adequacy of the
plea hearing, the voluntariness of his plea, and the propriety of the
resulting conviction—not to whether Defendant’s sentence was
within the range permitted by statute based on the first degree
felony to which he pled guilty. Defendant’s arguments concern the
types of errors that should have been the subject of a motion to
withdraw his guilty plea and an appeal from any denial of such a
motion; they are not appropriate grounds for invalidating his
sentence as illegal. Accordingly, Defendant’s appeal is unavailing.
20110273‐CA 5 2013 UT App 106