State v. Kropf , 2015 Utah App. LEXIS 238 ( 2015 )


Menu:
  •                         
    2015 UT App 223
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Plaintiff and Appellee,
    v.
    ROBERT C. KROPF,
    Defendant and Appellant.
    Opinion
    No. 20130792-CA
    Filed September 3, 2015
    Third District Court, West Jordan Department
    The Honorable Bruce C. Lubeck
    No. 091402852
    Debra M. Nelson and Christine Seaman, Attorneys
    for Appellant
    Sean D. Reyes and Tera J. Peterson, Attorneys
    for Appellee
    JUDGE STEPHEN L. ROTH authored this Opinion, in which
    JUDGES JAMES Z. DAVIS and KATE A. TOOMEY concurred.
    ROTH, Judge:
    ¶1      Robert C. Kropf appeals from the district court’s
    imposition of a permanent criminal stalking injunction. We
    affirm.
    BACKGROUND
    ¶2     In September 2010, Kropf pleaded guilty to two third
    degree felonies: stalking and failure to respond to an officer’s
    signal to stop. In exchange for his pleas, the State agreed to
    recommend that Kropf’s prison sentences run concurrently with
    each other and with other sentences Kropf was then serving. At
    State v. Kropf
    the combined plea and sentencing hearing, the district court
    advised Kropf that two zero-to-five-year prison sentences and
    two $5,000 fines constituted ‚the maximum penalties‛ for his
    offenses. The court then inquired about whether the parties had
    ‚anything else to talk about‛ before sentencing. The parties
    affirmatively indicated that there was nothing further to discuss.
    Accordingly, the district court accepted the sentencing
    recommendation and ordered Kropf to serve two concurrent
    sentences of zero-to-five years at the Utah State Prison. Kropf
    was released on parole on or about April 30, 2013.
    ¶3      In early April 2013, shortly before Kropf’s release, the
    person he had been stalking (the Petitioner) asked the district
    court to impose a permanent criminal stalking injunction against
    Kropf. The Petitioner asserted that Utah Code section 76-5-106.5
    (the stalking statute) ‚provides for permanent criminal stalking
    injunctions for victims of the crime of stalking‛ to be
    automatically imposed upon conviction. See Utah Code Ann.
    § 76-5-106.5(9)(b) (LexisNexis 2008) (providing that after a
    conviction of stalking, ‚*a+ permanent criminal stalking
    injunction shall be issued by the court without a hearing unless
    the defendant requests a hearing at the time of the conviction‛). 1
    Recognizing that after entry of sentence and final judgment the
    district court no longer had jurisdiction over Kropf, the
    Petitioner contended the failure to enter the injunction at the
    time of sentencing was an oversight amounting to clerical error
    under rule 30 of the Utah Rules of Criminal Procedure. Thus,
    Petitioner asserted, the court could correct that error despite the
    termination of its jurisdiction. Alternatively, the Petitioner
    contended that the failure to enter the injunction either resulted
    1. Because there have been substantive amendments to the
    stalking statute, we cite the 2008 version of the pertinent statute,
    which was the version in effect at the time of Kropf’s offenses.
    Otherwise, unless noted, we cite to the current version of
    pertinent statutes.
    20130792-CA                      2               
    2015 UT App 223
    State v. Kropf
    in Kropf receiving an illegal sentence, which the court had the
    authority to correct under rule 22 of the Utah Rules of Criminal
    Procedure, or amounted to inadvertent error subject to
    correction under rule 60(b)(6) of the Utah Rules of Civil
    Procedure. The district court scheduled a hearing on the
    Petitioner’s motion.
    ¶4     The day before the hearing, Kropf filed an objection to the
    entry of the injunction on the basis that the district court lacked
    jurisdiction to reopen the case after sentencing and, even if the
    court did have jurisdiction to enter the injunction, doing so
    would violate his double jeopardy and due process rights. The
    judge had not seen the objection beforehand, but once it was
    brought to the court’s attention at the hearing, the judge
    indicated that he would be willing to grant a continuance to
    allow the State or the Petitioner’s attorney2 an opportunity to
    respond. After both Kropf and the Petitioner informed the court
    2. Although the State was represented at the hearing, only the
    Petitioner, through her attorney, addressed the court. In a
    footnote in his brief on appeal, Kropf asserts that the Petitioner
    lacked standing to move for an injunction because she was not a
    party to the criminal case. In the district court, however, Kropf
    only challenged the Petitioner’s standing to assert rule 60(b) of
    the Utah Rules of Civil Procedure as a basis for reopening the
    sentencing. Thus, to the extent that Kropf is raising a standing
    argument about the Petitioner’s ability to seek an injunction on
    appeal, Kropf failed to preserve this issue or to identify any
    exceptions to the preservation rule. See State v. Garner, 
    2008 UT App 32
    , ¶¶ 11, 13, 
    177 P.3d 637
     (explaining that ‚*t+o preserve an
    issue for appeal, a defendant must enter an objection on the
    record that is both timely and specific‛ and if the claim is not
    preserved in the district court, then it ‚may not be raised on
    appeal‛ unless raised under certain exceptions (citations and
    internal quotation marks omitted)). We therefore do not address
    standing.
    20130792-CA                     3               
    2015 UT App 223
    State v. Kropf
    of their desire to proceed, Kropf argued that the court lacked
    authority to enter the injunction because its jurisdiction had
    ended on entry of the sentence and neither rule 30 nor rule 22 of
    the Utah Rules of Criminal Procedure cured that problem. He
    contended that although rule 30 allows the court to correct a
    clerical error, no clerical error occurred in his case because the
    ‚court does not have to impose a stalking injunction‛ and the
    court’s failure to impose one at sentencing therefore amounted
    to an exercise of its judicial discretion. Kropf conceded that rule
    22 authorizes a court to correct an illegal sentence, but he argued
    that because imposition of an injunction was discretionary, there
    was nothing ‚patently or manifestly illegal about the sentence‛
    imposed by the court. Alternatively, Kropf asserted that adding
    additional terms to his sentence more than two-and-a-half years
    after he entered his guilty pleas violated his constitutional
    protection against double jeopardy. The court determined that
    because the plain language of the stalking statute requires
    imposition of a permanent criminal stalking injunction once a
    defendant is convicted of stalking and an injunction had not
    been imposed as a part of sentencing, the sentencing court must
    have ‚simply overlooked‛ that requirement. That error, the
    court concluded, ‚qualifie*d+ under the rubric of clerical error‛
    pursuant to rule 30 and was therefore subject to correction. The
    court also agreed with the State that rule 22(e) of the Utah Rules
    of Criminal Procedure provided ‚a basis to modify the sentence‛
    because the injunction ‚absolutely was required to have been
    entered‛ as a term of the sentence. The court did not rule on
    Kropf’s double jeopardy argument but implicitly rejected it by
    deciding the substantive issue under rule 30 and rule 22.
    ¶5     Kropf then asked the court to schedule an evidentiary
    hearing, which he argued he was entitled to under the stalking
    statute, focusing on the substantive question of whether ‚the
    injunction actually should be imposed.‛ At the Petitioner’s
    suggestion, the district court asked Kropf if he was prepared to
    go forward with such a hearing immediately. Kropf did not
    present or proffer any evidence, and the district court denied
    20130792-CA                     4               
    2015 UT App 223
    State v. Kropf
    Kropf’s request for a later evidentiary hearing. In so ruling, the
    court concluded that ‚this has been a hearing‛ contemplated by
    the stalking statute. The court then imposed the stalking
    injunction. The court issued the injunction on a standard form
    and checked the box indicating that there was ‚good cause . . . to
    issue a permanent criminal stalking injunction, pursuant to
    Section 76-5-106.5.‛
    ¶6    Following the hearing, the court issued its written order.
    The court stated,
    The non-issuance of a permanent criminal stalking
    injunction was a mistake resulting from an
    oversight by the Court, and was not the result of
    judicial reasoning. The parties did not bring [the
    permanent criminal stalking injunction statute] to
    the attention of the Court and the Court failed to
    note that statute, but that statute required the entry
    of a permanent criminal stalking injunction in this
    case.
    ‚Because the non-issuance of the permanent criminal stalking
    injunction was an oversight rather than a judicial decision to not
    comply with the statute,‛ the district court concluded that it
    ‚retain*ed+ jurisdiction to correct that oversight pursuant to Utah
    R. Crim. P. 30(b).‛ The court also reiterated its conclusion that
    Kropf ‚had the opportunity to be heard‛ and was ‚not entitle*d+
    . . . to an evidentiary hearing to determine whether the entry of a
    permanent criminal stalking injunction [was] unnecessary or
    unduly burdensome.‛ The court did not include its rule 22
    ruling in the written order. Kropf appeals.
    ISSUES AND STANDARDS OF REVIEW
    ¶7    Kropf argues that the district court lacked jurisdiction to
    reopen his case to impose the injunction. Procedural questions
    ‚present questions of law that we review for correctness without
    20130792-CA                     5               
    2015 UT App 223
    State v. Kropf
    deference to the lower court’s ruling.‛ State v. Candedo, 
    2010 UT 32
    , ¶ 7, 
    232 P.3d 1008
    . Resolution of the jurisdiction question in
    this case depends also upon the propriety of the district court’s
    interpretation of the stalking statute. We review the district
    court’s interpretation of a statute for correctness. See State v.
    Johnson, 
    2009 UT App 382
    , ¶ 16, 
    224 P.3d 720
    .
    ¶8      Kropf also contends that in imposing the injunction, the
    district court deprived him of certain constitutional rights. Kropf
    claims that the constitutional protection against double jeopardy
    precluded the district court from ‚imposing the permanent
    criminal stalking injunction after judgment had already been
    imposed and Kropf had gained a legitimate interest in its
    finality.‛ He also argues that the district court violated his due
    process rights because he ‚was never given notice‛ that an
    injunction could be part of his criminal sentence and the
    injunction was entered without an evidentiary hearing.
    ‚Whether the entry of the district court’s amended order . . .
    violates protections afforded by the Double Jeopardy Clause or
    the Due Process Clause presents constitutional issues that are
    questions of law that *appellate courts+ review for correctness.‛
    State v. Rodrigues, 
    2009 UT 62
    , ¶ 12, 
    218 P.3d 610
    .
    ANALYSIS
    I. Jurisdiction to Impose the Permanent Criminal Stalking
    Injunction
    ¶9     Kropf first contends that the district court lacked
    jurisdiction to reopen his sentence and impose the injunction.
    Kropf’s opening argument is rooted in an analysis of rule 30(b)
    of the Utah Rules of Criminal Procedure, which was the basis of
    the court’s written order. But in its responsive brief, the State
    contends that the district court did have jurisdiction for
    affirmance on the basis not only of rule 30 but also rule 22. The
    State points out that in its oral ruling, the district court
    concluded that it had jurisdiction to impose the injunction
    20130792-CA                     6               
    2015 UT App 223
    State v. Kropf
    pursuant to both rule 30(b) and rule 22(e) of the Utah Rules of
    Criminal Procedure. While the district court’s written order does
    not cite rule 22 as a basis for its decision,3 an appellate court may
    affirm on any basis apparent in the record. Bailey v. Bayles, 
    2002 UT 58
    , ¶ 13, 
    52 P.3d 1158
    . We conclude that rule 22 best fits the
    circumstances here. Kropf had the opportunity to address rule
    22 below and on appeal after the State raised it, and the core
    contention of Kropf’s rule 30(b) argument—that the stalking
    statute makes imposition of a permanent criminal stalking
    injunction discretionary—is the central component of the rule 22
    analysis as well.4
    ¶10 Ordinarily, the district court’s jurisdiction over a criminal
    defendant ends upon imposition of a valid sentence and entry of
    final judgment. State v. Rodrigues, 
    2009 UT 62
    , ¶ 13, 
    218 P.3d 610
    .
    But ‚*u+nder rule 22(e) [of the Utah Rules of Criminal
    Procedure,] a court ‘may correct an illegal sentence, or a sentence
    imposed in an illegal manner, at any time.’‛ State v. Candedo,
    
    2010 UT 32
    , ¶ 9, 
    232 P.3d 1008
     (quoting Utah R. Crim. P. 22(e)).
    [An illegal sentence is] one which 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.
    3. The court instructed the State to include rule 22(e) as a basis
    for its ruling in the written order, and it is not apparent why
    there was no reference to that rule in the final order.
    4. Because our decision under rule 22 is dispositive, we do not
    reach Kropf’s other arguments that the error was not subject to
    correction under either rule 30 of the Utah Rules of Criminal
    Procedure or rule 60(b) of the Utah Rules of Civil Procedure.
    20130792-CA                      7                
    2015 UT App 223
    State v. Kropf
    State v. Yazzie, 
    2009 UT 14
    , ¶ 13, 
    203 P.3d 984
     (alteration in
    original) (emphasis added) (citation and internal quotation
    marks omitted); see also State v. Schmidt, 
    2015 UT App 96
    , ¶ 10,
    
    348 P.3d 1206
    .
    ¶11 In this case, whether the district court’s decision to enter
    the injunction was the correction of an illegal sentence depends
    upon the meaning of the portion of the stalking statute
    addressing permanent criminal stalking injunctions. If the
    statute required an injunction to be imposed, then the sentence
    omitted a mandatory term and was illegal. See Yazzie, 
    2009 UT 14
    , ¶ 13. When interpreting a statute, ‚our primary goal is to
    evince the true intent and purpose of the *Utah+ Legislature.‛
    Marion Energy, Inc. v. KFJ Ranch P’ship, 
    2011 UT 50
    , ¶ 14, 
    267 P.3d 863
     (citation and internal quotation marks omitted); accord State
    v. Harker, 
    2010 UT 56
    , ¶ 12, 
    240 P.3d 780
    . ‚A fundamental rule of
    statutory construction is that statutes are to be construed
    according to their plain language.‛ O'Keefe v. Utah State Ret. Bd.,
    
    956 P.2d 279
    , 281 (Utah 1998) (citation omitted); see also Harker,
    
    2010 UT 56
    , ¶ 12 (explaining that courts are to ‚presume that the
    legislature used each word advisedly and read each term
    according to its ordinary and accepted meaning‛) (citation and
    internal quotation marks omitted). Thus, ‚*t+he best evidence of
    the legislature’s intent is the plain language of the statute itself.‛
    Marion Energy, Inc., 
    2011 UT 50
    , ¶ 14 (citation and internal
    quotation marks omitted). ‚Only if the language of a statute is
    ambiguous do we resort to other modes of construction.‛
    O’Keefe, 956 P.2d at 281. Statutory language is ambiguous when
    ‚its terms remain susceptible to two or more reasonable
    interpretations after we have conducted a plain language
    analysis.‛ Marion Energy, Inc., 
    2011 UT 50
    , ¶ 15 (citation
    omitted). Finally, we ‚read the plain language of *a+ statute as a
    whole and interpret its provisions in harmony with other
    statutes in the same chapter and related chapters.‛ Harker, 
    2010 UT 56
    , ¶ 12 (alteration in original) (citation and internal
    quotation marks omitted).
    20130792-CA                      8                
    2015 UT App 223
    State v. Kropf
    ¶12   The stalking statute provides in relevant part,
    (9)(a) A conviction for stalking . . . serves as an
    application for a permanent criminal stalking
    injunction limiting the contact between the
    defendant and the victim.
    (b) A permanent criminal stalking injunction shall
    be issued by the court without a hearing unless the
    defendant requests a hearing at the time of the
    conviction. The court shall give the defendant
    notice of the right to request a hearing.
    (c) If the defendant requests a hearing under
    Subsection (9)(b), it shall be held at the time of the
    conviction unless the victim requests otherwise, or
    for good cause.
    (d) If the conviction was entered in a justice court, a
    certified copy of the judgment and conviction . . .
    must be filed by the victim in the district court as
    an application and request for a hearing for a
    permanent criminal stalking injunction.
    Utah Code Ann. § 76-5-106.5(9) (LexisNexis 2008). The parties
    present two competing interpretations of subsection (9)(b). Kropf
    argues that the word ‚shall‛ in the provision, ‚*a+ permanent
    criminal stalking injunction shall be issued by the court without a
    hearing unless the defendant requests a hearing,‛ does not
    amount to a mandate to issue the injunction but is rather a
    constraint on the process for imposing an injunction. See id.
    (emphasis added). Thus, according to Kropf, only if the
    defendant does not request a hearing must the injunction issue;
    but if the defendant requests a hearing, the court has discretion
    to issue the injunction, or not, based on what the parties present.
    In other words, under Kropf’s interpretation, the district court is
    required to issue a stalking injunction only if the defendant does
    not request a hearing, but if a hearing is requested, only the
    hearing is mandatory, not the injunction. The State, on the other
    hand, argues that the provision should be interpreted as if it
    20130792-CA                     9                
    2015 UT App 223
    State v. Kropf
    said, ‚A permanent criminal stalking injunction shall be issued.‛
    According to the State, the remainder of the sentence does not
    qualify the mandatory nature of the injunction; rather, it
    provides the defendant with the option to require an additional
    proceeding to address only the details of the injunction’s terms.
    Under this interpretation, the district court must issue a stalking
    injunction whether or not the defendant requests a hearing. The
    parties each contend that the plain language of the statute
    supports its position.
    ¶13 To support his interpretation, Kropf points to the statute’s
    use of the concept of an ‚‘application’‛ in subsection (9)(a),
    which treats the conviction as an application for a permanent
    criminal stalking injunction. Kropf argues that the word
    ‚application‛ ordinarily means ‚‘request,’ ‘petition,’ or ‘a form
    used in making a request.’‛ (Quoting Merriam-Webster’s
    Collegiate Dictionary 56 (10th ed. 2002).) Kropf thus argues that a
    conviction merely serves as a request that the court consider an
    injunction. He asserts that the statute’s mandatory hearing
    requirement (once invoked) lends further support to his reading
    of the statute as discretionary; otherwise, what need would there
    be for a hearing at all if the outcome—the issuance of the
    injunction—were foreordained? Rather, by providing for a
    hearing, Kropf contends, the Utah Legislature must have
    intended that a stalking injunction be imposed only if the results
    of the hearing supported the injunction’s entry. He thus argues
    that the stalking statute’s plain language ‚does not mandate the
    automatic imposition of an injunction but instead . . . only serves
    as an application initiating the process‛ of deciding whether or
    not to impose one.
    ¶14 The State counters that the stalking conviction’s role as an
    ‚application‛ creates no more than a mechanism meant to
    trigger permanent criminal stalking injunction proceedings.
    Once the conviction occurs and the ‚application‛ is made, the
    court must enter the injunction in accordance with the statute’s
    plain language, ‚[a] permanent criminal stalking injunction shall
    20130792-CA                     10              
    2015 UT App 223
    State v. Kropf
    be issued . . . .‛ See Utah Code Ann. § 76-5-106.5(9)(a)–(b). The
    issuance, however, must be accompanied by limited procedural
    protections: the defendant must be notified of his or her right to
    a hearing, and if requested, a hearing must be held. Only at the
    point when the defendant requests a hearing does the statute
    provide the district court with a modicum of discretion by
    itemizing the sort of relief that ‚*a+ permanent criminal stalking
    injunction may grant.‛ See id. § 76-5-106.5(10) (emphasis added)
    (including, among other things, that the defendant stay away
    from the victim and his or her family as well as the victim’s
    residence, property, school, and workplace and that the
    defendant refrain from communicating with the victim).
    According to the State, then, the court has no discretion about
    whether to issue a permanent injunction; rather, it has discretion
    only with regard to certain of its terms.
    ¶15 We agree with the State. Although the ‚application‛
    language Kropf cites could be read in support of his
    interpretation, the statutory language, when read as a whole,
    unambiguously mandates issuance of a permanent criminal
    stalking injunction once a defendant is convicted of stalking. See
    Harker, 
    2010 UT 56
    , ¶ 12 (instructing courts to ‚interpret
    [statutory] provisions in harmony with other statutes in the
    same chapter and related chapters‛) (citation and internal
    quotation marks omitted); see also Marion Energy, Inc., 
    2011 UT 50
    , ¶ 15 (describing a statute as ambiguous when ‚its terms
    remain susceptible to two or more reasonable interpretations
    after we have conducted a plain language analysis‛). As the
    State points out, the legislature provided that ‚[a] . . . stalking
    injunction shall be issued by the court‛ in response to the
    ‚application‛ created by a criminal stalking conviction. See Utah
    Code Ann. § 76-5-106.5(9)(b). The use of ‚shall‛ ‚is usually
    presumed mandatory and has been interpreted as such
    previously in this and other jurisdictions.‛ Board of Educ. of
    Granite Sch. Dist. v. Salt Lake County, 
    659 P.2d 1030
    , 1035 (Utah
    1983); accord Aaron & Morey Bonds v. Third Dist. Court, 
    2007 UT 24
    , ¶ 14 n.2, 
    156 P.3d 801
    . The only qualifier on ‚shall‛ is the
    20130792-CA                     11              
    2015 UT App 223
    State v. Kropf
    provision that the ‚injunction shall be issued by the court without
    a hearing unless the defendant requests a hearing.‛ Utah Code Ann.
    § 76-5-106.5(9)(b) (emphasis added). The emphasized language,
    however, does not mean that the court has discretion to
    determine whether to impose the permanent criminal stalking
    injunction upon conviction. Rather, it means simply that if the
    defendant requests a hearing, a hearing must be held before the
    injunction issues.
    ¶16 The purpose for requiring a hearing if the defendant
    requests one is to give the defendant an opportunity to address
    the particular terms of the mandatory injunction. The limited
    purpose of the hearing is apparent from reading the statute with
    the language of other provisions in the stalking statute. See
    Harker, 
    2010 UT 56
    , ¶ 12 (requiring that statutes be read
    ‚harmony with other statutes in the same chapter and related
    chapters‛) (citation and internal quotation marks omitted). First,
    a permanent criminal stalking injunction serves only to ‚limit*+
    the contact between the defendant and the victim.‛ Utah Code
    Ann. § 76-5-106.5(9)(a). It does not necessarily preclude all
    contact under all circumstances. Indeed, another provision gives
    the court options about the terms of the injunction, stating that
    ‚*a+ permanent criminal stalking injunction may grant the
    following relief‛ and then setting out a list of conditions that
    may be included. Id. § 76-5-106.5(10) (emphasis added). The
    ordinary use of ‚may‛ is permissive and thus implicates judicial
    discretion. Purcell v. Wilkins, 
    195 P. 547
    , 548 (Utah 1921); see also
    Grant v. Utah State Land Bd., 
    485 P.2d 1035
    , 1036–37 (Utah 1971).
    ¶17 Included in the list of conditions that ‚may‛ be part of the
    injunction are orders prohibiting contact between the defendant
    and the victim at the victim’s home, school, or place of
    employment; requiring the defendant to stay away from
    specified people or places ‚frequented regularly by the victim‛;
    and prohibiting direct or indirect attempts to communicate by
    various means with the victim or others associated with the
    victim. Utah Code Ann. § 76-5-106.5(10). But, for example, if the
    20130792-CA                     12               
    2015 UT App 223
    State v. Kropf
    defendant and the victim work in proximity to each other or
    have children together, some limited flexibility in the
    injunction’s terms may be desirable. Thus, it stands to reason
    that the district court would be provided with some discretion
    about the scope of a particular injunction. Finally, the
    juxtaposition of ‚shall‛ in reference to the issuance of an
    injunction and the holding of a hearing with ‚may‛ in reference
    to the scope of the injunction suggests that each term is intended
    to have its ordinary meaning. By using the mandatory ‚shall‛ in
    one provision and the permissive ‚may‛ in another, the
    legislature appears to have deliberately selected each term to
    delineate where the district court has discretion and where the
    court has none. See Harker, 
    2010 UT 56
    , ¶ 12 (explaining that
    courts are to ‚presume that the legislature used each word
    advisedly and read each term according to its ordinary and
    accepted meaning‛) (citation and internal quotation marks
    omitted). Thus, the court must enter a permanent criminal
    stalking injunction but has some discretion as to its terms.
    ¶18 The ‚application‛ concept lends further support to this
    interpretation. By having the conviction serve as an automatic
    application for an injunction rather than simply imposing the
    injunction automatically on conviction, the statute provides the
    defendant, the victim, and the district court an opportunity to
    address the details of an injunction’s terms before the injunction
    is imposed, while still ensuring that a permanent criminal
    stalking injunction in some form will issue as a consequence of
    the conviction. And by containing the injunction requirement
    within the criminal stalking statute, the legislature ensures that
    victims are provided with a remedy within the criminal process
    itself. There is good reason for this approach. A mandatory
    permanent criminal stalking injunction is an efficient and
    effective remedy against the threat inherent in the crime of
    stalking, a threat that is unlikely to have disappeared with the
    termination of a prison sentence or supervision. The nature of
    the crime often involves an obsessive and threatening focus that
    can leave a victim with the kind of long-term anxiety that only a
    20130792-CA                    13              
    2015 UT App 223
    State v. Kropf
    permanent legal constraint on the stalker can begin to address.
    Moreover, a criminal stalking injunction offers a permanent
    remedy that is unavailable through the more costly, complicated,
    and discretionary process of a civil stalking injunction case,
    which must be pursued by the victim.5
    ¶19 Our interpretation of ‚shall‛ as mandatory finds
    additional support in the stalking statute’s subsequent history.
    See Brock v. Pierce County, 
    476 U.S. 253
    , 263 (1986) (explaining
    that when the legislative history is ‚consistent with the statutory
    language and other legislative history, [it] provide[s] evidence of
    *the legislature’s+ intent‛ (citation omitted)). In 2012, the
    5. To obtain a civil stalking injunction, a victim must ‚file a
    verified written petition for a civil stalking injunction against the
    alleged stalker with the district court.‛ Utah Code Ann. § 77-3a-
    101(2) (LexisNexis 2012). ‚If the court determines that there is
    reason to believe that an offense of stalking has occurred, an ex
    parte civil stalking injunction may be issued . . . .‛ Id. § 77-3a-
    101(5)(a) (emphasis added). Once an ex parte civil injunction
    issues, the respondent has ten days to request an evidentiary
    hearing, which would require the victim to ‚show by a
    preponderance of the evidence that stalking . . . has occurred.‛
    Id. § 77-3a-101(6). At the hearing, the ‚court may modify, revoke,
    or continue the injunction.‛ Id. § 77-3a-101(7). Should the
    respondent fail to request a hearing or request a hearing outside
    of the ten-day period, the ‚ex parte civil stalking injunction
    automatically becomes a civil stalking injunction without further
    notice to the respondent and expires three years from the date of
    service.‛ Id. § 77-3a-101(9). Until it expires, the terms of a civil
    stalking injunction are subject to modification or dissolution if
    the petitioner requests it or if the respondent ‚show*s+ good
    cause.‛ Id. § 77-3a-101(10), (13). In contrast, ‚*a+ permanent
    criminal stalking injunction may be dissolved or dismissed only
    upon application of the victim.‛ Id. § 76-5-106.5(11) (LexisNexis
    2008) (current version at id. § 76-5-106.5(12) (2012)).
    20130792-CA                     14               
    2015 UT App 223
    State v. Kropf
    legislature amended the language in subsection (9)(b) to read,
    ‚[a] permanent criminal stalking injunction shall be issued by
    the court at the time of the conviction. The court shall give the
    defendant notice of the right to request a hearing.‛ Utah Code
    Ann. § 76-5-106.5(9)(b) (LexisNexis 2012). By grammatically
    disentangling the requirement to impose the injunction from the
    defendant’s right to a hearing, the legislature has more plainly
    expressed its intent that the injunction be a mandatory
    consequence of a stalking conviction. And the 2012 amendment’s
    separation of the two requirements—the injunction and a
    hearing on the defendant’s request—was meant to be a
    clarification rather than a substantive change from the prior
    statute. This is apparent from the legislature’s description of this
    change, along with all but one other modification in the 2012
    amendments, as simply ‚technical corrections.‛ Clarification of
    Stalking Injunctions and Protective Orders, ch. 383, 2012 Utah
    Laws 2100 (explaining that ‚*t+his bill allows a court to consider
    the defendant’s parental rights when issuing a stalking
    injunction; and makes technical corrections‛). An amendment is
    technical or clarifying ‚when it corrects a discrepancy or merely
    amplif[ies] . . . how the law should have been understood prior
    to *the amendment+.‛ Salt Lake County v. Holliday Water Co., 
    2010 UT 45
    , ¶ 43, 
    234 P.3d 1105
     (alterations and omission in original)
    (citation and internal quotation marks omitted) (addressing
    what a clarifying amendment is in the context of deciding
    whether the amendment was retroactive). Thus, a clarifying
    amendment generally ‚alters or explains language already
    present in the original statute‛ rather than ‚add*ing] new
    language or subsections that did not exist in any form before the
    amendments were made.‛ Gressman v. State, 
    2013 UT 63
    , ¶ 17,
    
    323 P.3d 998
     (citation and internal quotation marks omitted).
    Here, because the ‚technical corrections‛ to subsection (9)(b) did
    not modify its meaning but instead simply made that meaning
    more clear, the plain language of the 2012 version also supports
    our reading of the 2008 version.
    20130792-CA                     15               
    2015 UT App 223
    State v. Kropf
    ¶20 Kropf, however, points to language in other portions of
    the amended stalking statute that he argues support his
    interpretation that a permanent criminal stalking injunction is
    discretionary. For example, Kropf cites language in subsection
    (9)(d), which addresses the entry of a permanent criminal
    stalking injunction after a conviction in justice court. Subsection
    (9)(d) reads, ‚[i]f the conviction was entered in a justice court, a
    certified copy of the judgment and conviction . . . shall be filed
    by the victim in the district court as an application and request
    for a hearing for a permanent criminal stalking injunction.‛ Utah
    Code Ann. § 76-5-106.5(9)(d) (LexisNexis 2012). According to
    Kropf, this language shows that ‚a conviction does not
    automatically trigger the issuance of a permanent stalking
    injunction‛ but rather permits the victim to ask the court to grant
    such relief. However, for the reasons discussed above, we
    believe that the use of ‚application‛ in subsection (9)(d), as it
    does in subsection (9)(a), refers only to the initiation of the
    permanent criminal stalking injunction process, the result of
    which must be the imposition of the injunction. Moreover, the
    fact that when the conviction arises in justice court, the victim
    must take the additional step of actually filing an application is
    merely a reflection of the limited authority of the justice court,
    which does not have the power to order a permanent stalking
    injunction, thus requiring the filing of an actual application in
    the district court, which does.6
    6. Curiously, there does not appear to be any criminal stalking
    crime that actually falls within the jurisdiction of the justice
    court, making this provision essentially dormant. See Utah Code
    Ann. § 76-5-106.5(6)–(8) (LexisNexis 2012) (defining stalking as a
    class A misdemeanor or a second or third degree felony); id.
    § 78A-7-106(1) (‚Justice courts have jurisdiction over class B and
    C misdemeanors, violation of ordinances, and infractions
    committed within their territorial jurisdiction by a person 18
    years of age or older.‛).
    20130792-CA                     16               
    2015 UT App 223
    State v. Kropf
    ¶21 Kropf also contends that interpreting the stalking
    injunction as mandatory would render the provisions of the
    statute that address the degree of conviction ‚superfluous and
    nonsensical.‛ For example, subsection (7) defines third degree
    felony stalking to include both a conviction after the defendant
    has been ‚previously convicted of an offense of stalking‛ and a
    conviction after the defendant has ‚violated a permanent
    criminal stalking injunction.‛ Utah Code Ann. § 76-5-106.5(7)(a),
    (7)(d). According to Kropf, there is no reason for the legislature
    to have provided two paths to a conviction for third degree
    felony stalking if the injunction is mandatory because ‚a
    defendant previously convicted of an offense of stalking would
    necessarily have violated a permanent criminal stalking
    injunction.‛ (Citation and internal quotation marks omitted.)
    Kropf’s argument, however, assumes that the second offense of
    stalking must have targeted the same victim. If the defendant is
    charged with stalking a different victim, there would be no
    violation of any permanent criminal stalking injunction that
    would have issued in a prior case. And although a defendant
    who is again charged with stalking the same victim may be
    convicted of a third degree felony simply for violating the
    stalking injunction that was imposed as a mandatory
    consequence of the prior conviction, it is possible that no such
    injunction actually issued in a particular case, as this case
    illustrates—Kropf has twice been convicted of stalking the
    victim here with nary a criminal stalking injunction to show for
    it. Further, making a permanent injunction mandatory on
    conviction provides an important protection for the victim of
    such crimes: proving violation of a permanent injunction from a
    prior crime against the same victim is ordinarily much easier
    than would be the case were the State required to establish all
    the elements of stalking anew. And that ease of proof provides
    an added incentive for the stalker to leave the victim alone, thus
    enhancing the deterrent effect of the injunction and its value to
    20130792-CA                    17              
    2015 UT App 223
    State v. Kropf
    the victim. Accordingly, we conclude that these provisions do
    not support Kropf’s interpretation of the injunction component
    as discretionary.7
    ¶22 Finally, Kropf cites subsection (11), which addresses
    parent-time and custody after an injunction is imposed. That
    provision reads,
    If the victim and defendant have minor children
    together, the court may consider provisions
    regarding the defendant’s exercise of custody and
    parent-time rights while ensuring the safety of the
    victim and any minor children. If the court issues a
    permanent criminal stalking injunction, but
    declines to address custody and parent-time issues,
    a copy of the stalking injunction shall be filed in
    any action in which custody and parent-time issues
    are being considered and that court may modify
    the injunction to balance the parties’ custody and
    parent-time rights.
    Utah Code Ann. § 76-5-106.5(11) (LexisNexis 2012) (emphasis
    added). Kropf contends that in choosing the word ‚*i+f‛ to begin
    the second sentence, rather than ‚when‛ (or some other phrase
    that suggests that imposition of the injunction is mandatory), the
    legislature must not have intended for ‚all convictions *to+
    warrant the imposition of a permanent injunction.‛ Kropf fails to
    acknowledge, however, that this language was added in 2012
    and is not contained within the criminal stalking statute that is
    7. Kropf makes similar arguments regarding the variations of
    second degree felony stalking described in subsection (8). See
    Utah Code Ann. § 76-5-106.5(8) (LexisNexis 2012). For the
    reasons discussed with respect to the third degree felony
    variations, the provisions relating to second degree felony
    stalking also do not support Kropf’s interpretation.
    20130792-CA                    18              
    2015 UT App 223
    State v. Kropf
    applicable to Kropf, the 2008 version. But, to the extent that the
    language may inform the meaning of the 2008 version, it is not
    as favorable to his position as Kropf contends. In context, it is
    clear that the legislature used ‚if‛ to refer to the possibility that
    the mandatory injunction did not address parent-time or
    custody, not the possibility that a criminal stalking injunction
    had not issued at all. Although the legislature might have said
    ‚when the court issues a permanent criminal stalking injunction
    that declines to address custody and parent-time issues‛ or ‚if
    the court-issued permanent criminal stalking injunction fails to
    address custody and parent-time issues‛ to more precisely
    describe the circumstance, the language it did use does not
    justify an interpretation that renders discretionary the
    requirement, stated a few sentences earlier in the same statute,
    that ‚*a+ permanent criminal stalking injunction shall be issued
    by the court at the time of the conviction.‛ See 
    id.
     § 76-5-
    106.5(9)(b) (emphasis added); see also State v. Harker, 
    2010 UT 56
    ,
    ¶ 12, 
    240 P.3d 780
     (explaining that statutory provisions are to be
    read in harmony with each other). Moreover, because the
    language in subsection (11) does not call into doubt that the
    injunction requirement is mandatory in the 2012 version of the
    stalking statute, we cannot infer that it implies that the
    injunction requirement was discretionary in the 2008 version,
    which does not contain such language.8
    8. Kropf makes two additional arguments against imposing an
    injunction. First, Kropf argues that there is one additional fact
    that supports his interpretation of the injunction requirement as
    discretionary: issuance of the permanent criminal stalking
    injunction on the standard form, which requires a finding of
    good cause. Kropf, however, made this argument for the first
    time in his reply brief, and that is grounds in itself for not
    considering the argument. See State v. Chavez-Espinoza, 
    2008 UT App 191
    , ¶ 10 n.2, 
    186 P.3d 1023
     (explaining that ‚we will not
    review an issue first raised in a reply memorandum‛ because ‚‘a
    reply memorandum . . . shall be limited to rebuttal of matters
    (continued<)
    20130792-CA                     19               
    2015 UT App 223
    State v. Kropf
    ¶23 In sum, the plain language of the stalking statute
    demonstrates that imposition of a permanent criminal stalking
    injunction is mandatory upon conviction for stalking. Because of
    the mandatory nature of the injunction, we conclude that the
    district court’s failure to enter the injunction amounted to an
    omission of ‚a term required to be imposed by statute‛ as a
    consequence of Kropf’s stalking conviction. See State v. Yazzie,
    
    2009 UT 14
    , ¶ 13, 
    203 P.3d 984
     (citation omitted). Accordingly,
    the district court correctly concluded, once the error was brought
    to its attention, that there was a basis under rule 22 to correct the
    judgment to include the injunction. See Utah R. Crim. P. 22(e)
    (‚The court may correct an illegal sentence, or a sentence
    imposed in an illegal manner, at any time.‛).
    ¶24 Having concluded that rule 22 authorized the district
    court to enter a permanent criminal stalking injunction, we now
    consider whether double jeopardy or due process preclude the
    injunction.
    (2015 UT App 223
    State v. Kropf
    II. Constitutional Issues
    A.    Double Jeopardy
    ¶25 Kropf contends that imposition of the permanent criminal
    stalking injunction violated his constitutional right to be free
    from double jeopardy. Double jeopardy protects a defendant’s
    interest in the finality of a sentence by precluding subsequent
    prosecutions after acquittal or conviction and multiple
    punishments for the same offense. See State v. Rodrigues, 
    2009 UT 62
    , ¶ 36, 
    218 P.3d 610
    . According to Kropf, he expected the zero-
    to-five-year sentence and a fine to be the only possible
    consequences of the stalking conviction because at sentencing
    the district court explained that these constituted ‚the maximum
    penalties‛ for the offense and the State failed to request an
    injunction even after the court invited the parties to discuss any
    other issues related to sentencing. Thus, Kropf argues, by
    imposing the injunction, the district court added an additional,
    unexpected punishment for his conviction, thereby ‚‘upset*ting
    his] legitimate expectation of finality in his sentence.’‛ (Quoting
    Warnick v. Booher, 
    425 F.3d 842
    , 847 (10th Cir. 2005) (citation
    omitted).) The State responds that ‚because a criminal stalking
    injunction is not a criminal punishment‛ but rather is a measure
    designed to protect a victim’s safety, ‚double jeopardy does not
    apply.‛ (Citing Hudson v. United States, 
    522 U.S. 93
    , 98–99 (1997)
    (‚We have long recognized that the Double Jeopardy Clause
    does not prohibit the imposition of all additional sanctions that
    could, in common parlance, be described as punishment. The
    Clause protects only against the imposition of multiple criminal
    punishments for the same offense.‛ (citations and internal
    quotation marks omitted)).) We conclude that because the
    injunction was a mandatory consequence of Kropf’s conviction
    and the original sentence thus ‚omit[ted] a term required to be
    imposed by statute,‛ see Yazzie, 
    2009 UT 14
    , ¶ 13 (citation
    omitted), double jeopardy does not preclude imposition of the
    injunction.
    20130792-CA                    21                
    2015 UT App 223
    State v. Kropf
    ¶26 The Utah Supreme Court has determined that ‚*a+s a rule,
    illegal sentences are void and neither create rights nor impair or
    affect any rights.‛ 
    Id. ¶ 17
    . ‚Additionally, because a sentence is
    illegal, the jurisdiction of the district court continues until a valid
    sentence is imposed.‛ 
    Id.
     ‚Double jeopardy is therefore not
    violated when a judge merely corrects an inadvertently illegally
    imposed sentence.‛ 
    Id. ¶ 18
     (citation and internal quotation
    marks omitted). In this case, the stalking statute required an
    injunction to be imposed at sentencing as a consequence of the
    conviction. See Utah Code Ann. § 76-5-106.5(9) (LexisNexis 2008).
    The district court, however, failed to comply with this mandate.
    Because an illegal sentence includes one that ‚omits a term
    required to be imposed by statute,‛ the district court retained
    jurisdiction to correct the initial oversight and to add the
    mandatory term to Kropf’s sentence. See Yazzie, 
    2009 UT 14
    , ¶ 13
    (citation omitted). In doing so, the court did not disrupt any
    reasonable expectation of finality because a defendant cannot
    legitimately expect a sentence that fails to comply with the
    mandatory terms of the statute. See 
    id. ¶¶ 17
    –18.
    ¶27 Kropf argues, however, that he had a reasonable
    expectation of finality in this sentence because he ‚had not had a
    stalking injunction imposed against [him] as a result of his two
    previous stalking convictions.‛ But, as we have discussed, due to
    the mandatory nature of the injunction, Kropf could not
    reasonably have expected that no injunction would be imposed
    in either prior case; rather, Kropf received a sort of unearned
    windfall in the earlier cases due to the sentencing courts’
    oversights. See supra note 8. Kropf has not explained how such a
    happenstance, even if repeated twice, establishes a legitimate
    expectation of finality in this case. Accordingly, we conclude that
    the district court’s imposition of a criminal stalking injunction
    did not violate Kropf’s constitutional right against double
    jeopardy.
    20130792-CA                      22                
    2015 UT App 223
    State v. Kropf
    B.    Due Process
    ¶28 Finally, Kropf contends that the district court deprived
    him of due process because he ‚was never given notice‛ that an
    injunction could be part of his criminal sentence and the
    injunction was entered without an evidentiary hearing.
    ¶29 Due process is not formulaic. McBride v. Utah State Bar,
    
    2010 UT 60
    , ¶ 16, 
    242 P.3d 769
     (noting that ‚the demands of due
    process rest on the concept of basic fairness of procedure and
    demand a procedure appropriate to the case and just to the
    parties involved‛ (citation and internal quotation marks
    omitted)). Its minimum requirements are satisfied, however,
    when the defendant receives ‚timely and adequate notice and an
    opportunity to be heard in a meaningful way.‛ 
    Id.
     (citation and
    internal quotation marks omitted).
    ¶30 In this case, Kropf did not receive the required notice of
    his ‚right to request a hearing‛ to occur ‚at the time of the
    conviction.‛ See Utah Code Ann. § 76-5-106.5(9)(b), (9)(c)
    (LexisNexis 2008). But once the Petitioner filed a motion to
    reopen the case to issue the injunction and the court set a hearing
    on that motion at which Kropf had the opportunity to be heard,
    the minimum requirements of due process were satisfied. See
    McBride, 
    2010 UT 60
    , ¶ 16.
    ¶31 Kropf nevertheless contends that the hearing he received
    did not comply with the requirements of the stalking statute. In
    particular, Kropf argues that because the ‚hearing was limited to
    whether the decision to not impose a stalking injunction . . . was
    an error,‛ he was denied the opportunity ‚to proffer factual
    arguments and evidence in opposition of the stalking
    injunction.‛ We have foreclosed Kropf’s claim that his due
    process rights were violated by the denial of an evidentiary
    hearing for this purpose with our determination that the
    injunction is a mandatory component of a sentence for a stalking
    conviction.
    20130792-CA                     23              
    2015 UT App 223
    State v. Kropf
    ¶32 Moreover, in making his argument that he was denied an
    evidentiary hearing to oppose imposition of the injunction,
    Kropf does not contend that he was denied an opportunity to
    address the terms of the injunction. Indeed, on appeal, he neither
    makes a complaint about the specific terms imposed by the
    injunction nor describes any evidence regarding such terms that
    he would have presented had a hearing been held. Cf. Salt Lake
    City v. Almansor, 
    2014 UT App 88
    , ¶ 11, 
    325 P.3d 847
     (concluding
    that the defendant had not established any harm as a result of
    the court’s decision to go forward with trial despite the absence
    of the defendant’s witness because he did ‚not address the
    anticipated content of the witness’s testimony at all, nor [did] he
    demonstrate how her testimony would have helped the
    defense‛). Because Kropf does not appeal the specific terms of
    the injunction entered, we will not consider whether the court
    deprived him of any due process right when it established the
    injunction’s terms. See Allen v. Friel, 
    2008 UT 56
    , ¶ 7, 
    194 P.3d 903
    (‚In an instance where the court has appellate jurisdiction, an
    appellant must allege the lower court committed an error that
    the appellate court should correct. If an appellant does not
    challenge a final order of the lower court on appeal, that decision
    will be placed beyond the reach of further review.‛).
    ¶33 Because we have concluded that the district court did not
    violate Kropf’s constitutional rights, we affirm the imposition of
    the injunction under rule 22 of the Utah Rules of Criminal
    Procedure.
    CONCLUSION
    ¶34 The 2008 version of the stalking statute mandated
    imposition of the injunction upon a defendant’s conviction and
    after a hearing, if one was requested. Because the original
    sentence omitted the injunction, the court correctly exercised its
    jurisdiction to reopen the sentence to impose the injunction. We
    also conclude that Kropf was not deprived of his constitutional
    20130792-CA                     24               
    2015 UT App 223
    State v. Kropf
    rights to be free from double jeopardy and to receive due
    process. Double jeopardy is not violated when the district court
    corrects an illegal sentence. The court also afforded Kropf due
    process by setting a hearing once the Petitioner requested the
    injunction and allowing Kropf to be heard at that hearing.
    ¶35   We therefore affirm.
    20130792-CA                   25              
    2015 UT App 223