State v. Jones ( 2015 )

2015 UT App 200THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
KIBB VERN JONES,
Appellant.
Per Curiam Decision
No. 20150101-CA
Filed August 13, 2015
Fifth District Court, St. George Department
The Honorable G. Michael Westfall
No. 071501240
Gary G. Kuhlmann and Nicolas D. Turner, Attorneys
for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
Before JUDGES JAMES Z. DAVIS, MICHELE M. CHRISTIANSEN, and
KATE A. TOOMEY.
PER CURIAM:
¶1 Kibb Vern Jones appeals the trial court’s denial of his
motion to correct an illegal sentence pursuant to rule 22(e) of the
Utah Rules of Criminal Procedure. We affirm.
¶2 Rule 22(e) states that a court “may correct an illegal
sentence, or a sentence imposed in an illegal manner, at any
time.” Utah R. Crim. P. 22(e). An illegal sentence is one that “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 984State v. Jones
(citation and internal quotation marks omitted). Rule 22(e)
“presupposes a valid conviction and therefore cannot be used as
a veiled attempt to challenge the underlying conviction by
challenging the sentence.” State v. Candedo, 2010 UT 32, ¶ 9, 232
P.3d 1008 (citation and internal quotation marks omitted).
¶3 This case is before the court on a sua sponte motion for
summary disposition on the basis that the appeal does not raise
substantial issues meriting further consideration by this court.
Jones first asserts that his appeal raises substantial issues
regarding compliance with rule 11 of the Utah Rules of Criminal
Procedure in the acceptance of a guilty plea. However, the
amended judgment and sentence entered on August 13, 2008,
states that the jury found Jones guilty of aggravated assault and
that the jury also found that Jones was “subject to an enhanced
penalty . . . because [he] was aided or encouraged by at least two
other persons in committing the offense and was aware that he
was so aided and encouraged and each of the other persons was
physically present or participated as a party to the offense.”
Furthermore, even assuming that Jones had entered a guilty
plea, rule 22(e) cannot be used “to challenge the underlying
conviction by challenging the sentence.” See id.¶4 Without stating any factual context for the claim, Jones
“contends that State and Federal Constitutional due process
protections prohibit the manner in which Utah Code [section]
76-3-203.1 was applied to enhance [his] sentence.” In his rule
22(e) motion, Jones argued that he was sentenced under an
unconstitutional statute and moved the court to remove the
enhancement of his sentence under section 76-3-203.1 and order
his immediate release. In State v. Lopes, 1999 UT 24, 980 P.2d 191,
the Utah Supreme Court held that the “gang enhancement
statute creates a new and separate offense and, therefore, the
[Utah Criminal] Code requires each element of [the] crime [to] be
proved beyond a reasonable doubt.” Id. ¶ 22. The supreme court
further stated that “this determination [cannot] be made by a
20150101-CA 2 2015 UT App 200State v. Jones
judge absent a waiver of the right to a jury trial.” Id. ¶ 21. The
factual issues concerning enhancement of the offense under
section 76-3-203.1 in this case were determined by the jury, and
the district court sentenced Jones in accordance with the jury’s
verdict. We reiterate that rule 22(e) is not a means to challenge
Jones’s conviction of the enhanced offense based upon the jury’s
verdict. 1
¶5 To the extent that Jones challenges the role of the Utah
Board of Pardons and Parole, those issues as applied to his case,
are not within the ambit of rule 22(e) and must be pursed, if at
all, under rule 65B of the Utah Rules of Civil Procedure. See State
v. Thurman, 2014 UT App 119, ¶ 4, 327 P.3d 1240 (per curiam).
¶6 Accordingly, we affirm.
1. The language from State v. Yazzie, 2009 UT 14, ¶ 14, 203 P.3d
984, quoted by Jones in his memorandum opposing summary
judgment, pertains to a district court’s imposition of a new
sentence when correcting an illegal sentence and cautions the
sentencing court to avoid imposing a sentence that will have a
chilling effect on the right to appeal or that evidences
vindictiveness. The quoted language does not pertain to any fact
situation related to this case.
20150101-CA 3 2015 UT App 200