State v. Robertson

This opinion is subject to revision before final
publication in the Pacific Reporter
2015 UT 44
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
D. CHRIS ROBERTSON,
Appellant.
No. 20140268
Filed June 9, 2015
Third District, West Jordan
The Honorable Terry L. Christiansen
No. 111401510
Attorneys:
Sean D. Reyes, Att’y Gen., Jeffrey S. Gray, Asst. Att’y Gen.,
Salt Lake City, for appellee
Elizabeth Hunt, Salt Lake City, for appellant
PER CURIAM:
¶ 1 In the proceedings below, the defendant, D. Chris
Robertson, was charged with multiple counts of sexual
exploitation of a minor. He claimed the prosecution violated Utah
Code section 76-1-404 and his constitutional rights of freedom
from double jeopardy. The district court denied Mr. Robertson’s
motion to dismiss. He was convicted on all counts and was
sentenced to concurrent one-to-fifteen-year terms in prison.
¶ 2 Mr. Robertson appealed. He filed with the district court a
motion to stay the sentence and an application for a certificate of
probable cause. That court denied the motion and application by
issuing a preprinted order that listed the various grounds for
rejecting a request for release from incarceration pending appeal.
It checked only the box indicating that the appeal was unlikely to
result in reversal.
STATE v. ROBERTSON
Opinion of the Court
¶ 3 Mr. Robertson did not raise any appellate challenge (by
motion or otherwise) to the district court’s denial of his request
for a stay and a certificate of probable cause. The court of appeals
subsequently affirmed. Mr. Robertson petitioned for a writ of
certiorari, which this court granted. Briefing and argument on the
merits of the petition are pending. Mr. Robertson has now filed
directly with this court a motion for a stay of his sentence and an
application for a certificate of probable cause.
¶ 4 Utah Rule of Criminal Procedure 27 permits a district court
to stay a sentence and issue a certificate of probable cause when a
criminal conviction is appealed. The grounds for relief are a
determination by clear and convincing evidence that “the
defendant is not likely to flee,” UTAH R. CRIM P. 27(b)(1)(B)(i),
“does not pose a danger to the safety of any other person or the
community,” id. 27(b)(1)(B)(ii), and that the issues raised on
appeal present “a substantial question of law or fact reasonably
likely to result in reversal, an order for a new trial or a sentence
that does not include a term of incarceration in jail or prison,” id.
27(b)(2)(A). Under subpart (b)(6) “[a] party dissatisfied with the
relief granted or denied [by the trial court] may petition the court
in which the appeal is pending for relief.” Id. 27(b)(6) (emphasis
added). Thus, the potential relief afforded by subpart (b)(6)
consists of an appellate review of the trial court’s denial of the
original motion for a stay and application for certificate of
probable cause, and the request for that review must be filed in
conjunction with a direct appeal. Mr. Robertson did not avail
himself of the provisions of subpart (b)(6) on appeal, and that
appeal has been completed. This court has exercised its discretion
to grant the petition for a writ of certiorari, but the case now
pending before us is not an appeal during which the trial court’s
denial of a stay and application for certificate of probable cause
may be challenged in the first instance under subpart (b)(6).
Accordingly, the motion and application are denied.
2