State v. Wynn

2017 UT App 211THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DENNIS TERRY WYNN,
Appellant.
Opinion
No. 20150492-CA
Filed November 16, 2017
Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 061906774
Elizabeth Hunt, Attorney for Appellant
Sean D. Reyes, Laura B. Dupaix, and Andrew F.
Peterson, Attorneys for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
concurred.
MORTENSEN, Judge:
¶1 More than nine years ago, Dennis Terry Wynn
(Defendant) was sentenced to prison and ordered to pay
restitution in excess of $700,000. Now he argues, among other
things, that that amount renders his sentence illegal. Because we
conclude that Defendant is not entitled to relief under the many
theories he advances, we affirm the district court’s denial of his
several motions.
BACKGROUND
¶2 In 2006, the State charged Defendant with nineteen
felonies, including securities fraud, theft, and a pattern of
State v. Wynn
unlawful activity. The district court dismissed two of these
charges at a preliminary hearing and Defendant was bound over
on the remaining seventeen. Defendant was shortly thereafter
indicted in federal court on seven counts of mail and securities
fraud. The state district court stayed proceedings until
Defendant resolved his federal indictments. In November 2007,
Defendant pled guilty to a single count of mail fraud in the
federal court. In conjunction with that plea, Defendant was
sentenced to federal prison and ordered to pay more than
$15 million in restitution.
¶3 Before he surrendered to federal prison, Defendant and
the State reached an agreement on his seventeen state charges.
Defendant agreed to plead guilty to four counts of securities
fraud—two second degree felonies and two third degree
felonies. The parties also agreed that “Defendant will serve any
state prison sentence concurrent with his federal prison time”
and that “Defendant shall pay $100,000 to [the] State at
sentenc[ing]; final amount of restitution to be determined by Oct
6, as between counsel.”
¶4 When Defendant entered his guilty pleas, the state district
court explained that it would order “full and complete
restitution in an amount of at least $100,000, but probably . . .
many times more than that” and asked Defendant, “Is that what
you understand?” Defendant responded, “Yes, sir.” Defendant
also indicated that he understood the sentence the district court
planned to enter: “on two of the counts one to fifteen years in
prison . . . and two other counts zero to five years in prison, all
counts to run concurrently and to run concurrent with the
federal time.”
¶5 On October 6, 2008, the State submitted a request for a
restitution order, indicating the full amount of restitution was
$782,068.63. Defendant did not object to that amount or to the
request for a restitution order, and on October 23, 2008, the
district court signed the order for the amount requested. Both
the State’s request and the district court’s order indicated that
20150492-CA 2 2017 UT App 211State v. Wynn
the restitution would be paid to twenty-three victims named in
an attached list.
¶6 After he completed his federal prison sentence, Defendant
was transferred to the Utah State Prison. In May 2013, Defendant
appeared at a hearing before the Utah Board of Pardons and
Parole (the Board). The hearing officer, in discussing
Defendant’s outstanding restitution, explained, “So at this point
I have restitution is owed in the amount of $782,068.63. It says
$100,000 of this has been paid, and there’s a balance of $682,068;
is that correct?” Defendant indicated that he had not “seen those
figures” but that it “sounds correct.”
¶7 Nearly two years after that hearing, Defendant filed a
motion under rule 22(e) of the Utah Rules of Criminal
Procedure, seeking to correct an illegal sentence. He argued that
his sentence “was illegally imposed through the violation of [his]
constitutional right to effective assistance of counsel.” He
claimed that his plea agreement assured he “would serve no
time in the Utah State Prison” but that his counsel “failed to
ensure that [Defendant] would serve no time in state prison.” He
further claimed that his sentence was “unconstitutional because
the restitution ordered is inaccurate, and trial counsel entirely
forfeited [Defendant’s] right to an accurate determination of
restitution in the state case.” Defendant contended that the
State’s restitution request “encompassed restitution for
dismissed counts[] . . . and for other people who were not tied to
any count at all.” In his view, “As there was no conviction or
agreement by [Defendant] to pay restitution for anything
beyond the counts he pled to, trial counsel should have objected
to the restitution request, which exceeded what [Defendant] was
legally required to pay by hundreds of thousands of dollars.”
¶8 The State opposed Defendant’s rule 22(e) motion, and
Defendant replied by filing an additional motion that set forth
alternative claims: If the district court determined that the
sentence was not an illegal sentence under rule 22, it should
nevertheless set the sentence aside because either (1) the
restitution amount was a clerical error that could be corrected at
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any time under rule 30(b) of the Utah Rules of Criminal
Procedure, or (2) Defendant was entitled to relief under rule
60(b)(6) of the Utah Rules of Civil Procedure because the
restitution order was entered by default. Defendant
contemporaneously requested discovery pertaining to “plea
bargaining and negotiations in this case”; “restitution in this
case, to include an accounting of who received the $100,000
originally paid”; “written or recorded statements of [Defendant]
or any other potential or actual witnesses in this case”; “physical
evidence gathered by the prosecution team members”;
exculpatory evidence; a list of potential and actual witnesses;
and other information seemingly unrelated to the motions
pending before the district court.
¶9 The district court denied Defendant’s motions. It
determined that “Defendant’s claim of ineffective assistance of
counsel does not fall within the narrow parameters of Rule 22(e)
review” and that “Defendant has not shown the sentence itself to
be otherwise illegal.” It further determined that, regarding the
amount of restitution ordered, “there is no clerical error
correctable through Rule 30(b).” And it determined that
Defendant’s rule 60(b) motion was untimely.1 Finally, “[h]aving
determined that [it] [did] not have jurisdiction,” the district court
denied Defendant’s request for discovery.
¶10 Defendant now appeals the denial of his motions.
ISSUES AND STANDARDS OF REVIEW
¶11 On appeal, Defendant challenges the district court’s
reasoning and ultimate decision in denying each of his motions.
We review for correctness the district court’s denial of
1. The district court alternatively decided that “[b]ecause
Defendant’s claims are available under the [Post-Conviction
Remedies Act], they are necessarily unavailable under 60(b) in
this case.”
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Defendant’s rule 22(e) and 30(b) motions. See State v. Rodrigues,
2009 UT 62, ¶ 11, 218 P.3d 610 (explaining that interpretation of
“rule 30(b) of the Utah Rules of Criminal Procedure[] . . . is a
question of law that we review for correctness” (citation and
internal quotation marks omitted)); State v. Fairchild, 2016 UT
App 205, ¶ 16, 385 P.3d 696 (“[W]hen the legality of a sentence is
challenged, a question of law is presented, which we review for
correctness.”). We normally review discovery orders “under an
abuse of discretion standard,” Pinder v. State, 2015 UT 56, ¶ 20,
367 P.3d 968, but because the district court denied Defendant’s
motion for discovery for lack of jurisdiction, we review this issue
for correctness, see State v. Nicholls, 2006 UT 76, ¶ 3, 148 P.3d 990(explaining that denial of a motion based on “lack of subject
matter jurisdiction[] . . . presents a question of law, which we
review for correctness, granting no deference to the district
court”). Finally, we review the district court’s “denial of a 60(b)
motion under an abuse of discretion standard of review.”
Menzies v. Galetka, 2006 UT 81, ¶ 54, 150 P.3d 480.
ANALYSIS
¶12 At the outset, we acknowledge a theme woven
throughout the State’s arguments on appeal: that Defendant’s
motions below were all attempts to avoid the requirements of
our Post-Conviction Remedies Act. See generally Utah Code Ann.
§§ 78B-9-101 to -405 (LexisNexis 2012). Under the PCRA, a
defendant generally must file a petition “within one year after
the cause of action has accrued.” Id. § 78B-9-107(1). The State
argues that Defendant’s “motions below and his arguments on
appeal are nothing more than a transparent attempt to skirt the
statutory time limits—which have long since expired—for
collaterally challenging his sentence.” We decline to consider
whether Defendant could or should have brought his challenges
under the PCRA and instead decide each issue as Defendant
presents it to us. In doing so, we conclude that each of the issues
presented for our review fails on its merits.
20150492-CA 5 2017 UT App 211State v. Wynn
I. Defendant’s Sentence Was Not Illegal
¶13 We first consider the district court’s denial of Defendant’s
motion for review of an illegal sentence, brought under rule
22(e) of the Utah Rules of Criminal Procedure. That rule allows a
court to “correct an illegal sentence, or a sentence imposed in an
illegal manner, at any time.” Utah R. Crim. P. 22(e) (2016).2
¶14 Defendant argues that “because his sentence was imposed
through ineffective assistance of counsel, it was illegally
imposed, and subject to correction under the plain language of
rule 22(e).” He also asserts that the restitution order, being part
of Defendant’s sentence, “was manifestly and patently illegal as
it far exceeded [his] legal responsibility for restitution” and
should be corrected under rule 22(e).
¶15 The district court determined that, concerning his prison
sentence, “Defendant has failed to show that the sentence is
manifestly illegal with regard to sentence length and Defendant
has likewise not asserted any facial constitutional challenge to
2. This rule was amended during the pendency of this appeal.
The quoted language comes from the earlier version of rule
22(e). Whether the amendment applies retroactively or not, see
State v. Guard, 2015 UT 96, ¶ 37, 371 P.3d 1, the result would be
the same. The earlier version of the rule discusses a court’s
ability to “correct an illegal sentence,” see Utah R. Crim. P. 22(e)
(2016), but the amended version no longer uses the term
“illegal,” see id. (2017). Instead, the amended version
incorporates the factors frequently considered by courts in
determining whether a particular sentence was illegal, see, e.g.,
State v. Fairchild, 2016 UT App 205, ¶ 29, 385 P.3d 696, and
directs that when one of those factors is present, “[t]he court may
correct [the] sentence.” See Utah R. Crim. P. 22(e) (2017). Thus,
whether analyzing Defendant’s challenge under the old or new
version of the rule, we would consider the same factors. Compare
infra ¶ 16, with Utah R. Crim. P. 22(e) (2017).
20150492-CA 6 2017 UT App 211State v. Wynn
the sentences.” Concerning the amount of restitution, the court
determined that Defendant had “not shown that the claim can be
easily corrected without the need for fact-intensive analysis” and
thus Defendant’s claim did “not fall within the narrow
parameters of Rule 22(e).” (Citing State v. Houston, 2015 UT 40,
¶ 18, 353 P.3d 55.)
A. Defendant’s Challenge to His Prison Sentence
¶16 The district court was correct in denying Defendant’s rule
22(e) motion because Defendant’s claim of ineffective assistance
of counsel is not the sort of claim properly pursued under rule
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 984 (alteration in original)
(citation and internal quotation marks omitted).
¶17 Defendant argues that his sentence was illegal because it
was “imposed in violation of [his] constitutional right to
effective assistance of counsel.” The extent to which rule 22(e)
applies to constitutional challenges was addressed by the Utah
Supreme Court in Houston: “We . . . hold that under rule 22(e), a
defendant may bring constitutional challenges that attack the
sentence itself and not the underlying conviction, and which do
so as a facial challenge rather than an as-applied inquiry.” 2015
UT 40, ¶ 26 (citation omitted).
¶18 Defendant challenges the process by which the district
court arrived at the sentence and judgment; his challenge rests
on the performance of his attorney in this particular case. This is
akin to an as-applied challenge to the process involved and is
not a facial challenge to the sentence and judgment as entered. It
is not the sort of challenge properly pursued under rule 22(e).
Our decision is informed by the following reasoning found in
State v. Headley:
20150492-CA 7 2017 UT App 211State v. Wynn
Defendant’s claims of ineffective assistance of
counsel and erroneous fact findings by the
sentencing judge are simply not cognizable under
Rule 22(e). Defendant has not cited any caselaw
holding otherwise and has also not offered any
reasoned analysis for why Rule 22(e) should apply
to his case. The sentence imposed was permissible
under applicable statutes, and the trial court
properly resolved factual disputes presented to it.
Defendant raises no claims legitimately related to
whether the sentence was illegal or “imposed in an
illegal manner.”
2002 UT App 58U, para. 9 (Greenwood, J., concurring in the
result) (citations omitted). Like the defendant in Headley,
Defendant here cites no case law interpreting rule 22(e) in the
manner he urges. And his sentence was in accordance with
relevant statutes. That Defendant “has been serving concurrent
time since October 9, 2008 on what he expected to be a five year
state and federal sentence” does not change the legality of that
sentence. (Emphasis added.) Defendant’s statement in support of
his guilty plea acknowledged the “maximum sentence that may
be imposed for each crime to which I am pleading guilty,”
including fifteen years for a single second degree felony count of
securities fraud. And that is precisely the sentence imposed by
the district court.
¶19 We thus conclude that the district court properly denied
Defendant’s rule 22(e) motion because, as that court held,
“Defendant’s claim of ineffective assistance of counsel does not
fall within the narrow parameters of Rule 22(e).”
B. Defendant’s Challenge to His Restitution Obligation
¶20 Defendant next argues that his “sentence is also
unconstitutional because the restitution ordered is inaccurate,
and trial counsel was ineffective in entirely forfeiting
[Defendant’s] right to an accurate determination of restitution in
the state case.” This argument fails for the same reason we
20150492-CA 8 2017 UT App 211State v. Wynn
rejected Defendant’s challenge to the length of his prison
sentence: ineffective-assistance claims “are simply not
cognizable under Rule 22(e).” Id.
¶21 But we would affirm the district court’s order in any
event because Defendant cannot show that he was harmed by
any purported deficiency in his counsel’s performance. It is well
settled that to succeed on a claim of ineffective assistance of
counsel, a defendant must demonstrate “that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984).
¶22 At sentencing, Defendant agreed that the final restitution
amount would likely be “many times more than” $100,000. And
at his hearing before the Board, Defendant indicated that the
purported remaining balance of $682,068 “sounds correct.” Now,
on appeal, Defendant concludes, without analysis or
explanation, that the correct restitution amount is “apparently
$138,116.18.” Defendant’s agreement at the time of his plea, and
his representations at the hearing before the Board, stand in
direct conflict with the assertions he now makes on appeal.
Given the position taken by Defendant closer to the time of his
sentencing, it is difficult to see how a change in his counsel’s
performance could have resulted in a different restitution
amount. Thus, even if rule 22(e) could be used to remedy
deficient performance by Defendant’s counsel, his underlying
ineffective-assistance claim is unmeritorious.
¶23 We affirm the district court’s denial of Defendant’s rule
22(e) motion as it pertained to the amount of restitution.
II. The Amount of Restitution Ordered Was Not a Clerical Error
¶24 Defendant alternatively argues that the restitution
amount ordered could be corrected under rule 30(b) of the Utah
Rules of Criminal Procedure. That rule provides: “Clerical
mistakes in judgments, orders or other parts of the record and
errors in the record arising from oversight or omission may be
20150492-CA 9 2017 UT App 211State v. Wynn
corrected by the court at any time and after such notice, if any, as
the court may order.” Utah R. Crim. P. 30(b).
In determining whether an error was clerical, we
generally focus on three factors: (1) whether the
order or judgment that was rendered reflects what
was done or intended, (2) whether the error is the
result of judicial reasoning and decision making,
and (3) whether the error is clear from the record.
State v. Perkins, 2014 UT App 60, ¶ 10, 322 P.3d 1184 (citation and
internal quotation marks omitted).
¶25 Defendant suggests that because there was no agreement
that he “would pay restitution for people not named as victims
in the case, or for victims in counts to which he did not plead
guilty,” the first factor weighed in favor of granting his rule
30(b) motion. He asserts that “the restitution order does not
comport with the intent of the parties” because he never agreed
to pay restitution for the dismissed counts. “While the intent of
the parties may be taken into account in the clerical error
analysis, it is ultimately the intent of the court or fact finder that
is binding.” State v. Rodrigues, 2009 UT 62, ¶ 15, 218 P.3d 610.
¶26 Even assuming that Defendant, in entering his plea
agreement, did not intend to pay restitution to all alleged
victims,3 our inquiry must rest on the district court’s intention.
The district court intended to require Defendant to pay
restitution for all alleged victims, as demonstrated by its decision
to enter, in its own words, a restitution order “for the amended
counts to which Defendant entered pleas of guilty, as well as the
3. And this really is an assumption made solely for the purpose
of deciding this issue. We do not reach the question of whether
Defendant’s plea was based on an agreement to pay restitution
for all alleged victims or only the victims associated with the
charges to which he pled guilty.
20150492-CA 10 2017 UT App 211State v. Wynn
remaining counts that were dismissed by plea agreement.” And
any claimed error in that intention actually speaks to the second
factor outlined in Perkins, see 2014 UT App 60, ¶ 10, and
demonstrates that the amount of restitution was the result of a
claimed judicial error rather than a clerical one.
¶27 “[A] judicial error is one made in rendering the judgment
and results in a substantively incorrect judgment.” Rodrigues,
2009 UT 62, ¶ 14 (citation and internal quotation marks omitted).
“A clerical error is one made in recording a judgment that results
in the entry of a judgment which does not conform to the actual
intention of the court.” Id. (emphasis added) (citation and
internal quotation marks omitted). Defendant’s position hints at
an erroneous judicial decision—the decision to require
Defendant to pay full restitution to all alleged victims, rather
than to the specific victims associated with the charges to which
he pled guilty—rather than a scrivener’s error made when the
restitution amount was entered.
¶28 The amount of restitution for all of the charged counts
was, as represented by the State, $782,068.63. The district court
accordingly entered a restitution order for that amount. Where
Defendant assigns error is in the decision to require payment for
the dismissed counts. Defendant does not claim error in the
court’s calculation of restitution. Cf. id. ¶¶ 4, 23–26 (explaining
that an “error in the amount of restitution owed was not the
product of judicial reasoning” where there had been a
miscalculation in multiplying monthly child support arrears
over a set period of time). He does not claim that the court
erroneously memorialized the restitution amount when entering
the order. Cf. State v. Lorrah, 761 P.2d 1388, 1389–90 (Utah 1988)
(per curiam) (allowing correction of a sentence for clerical error
when “the notation ‘maximum mandatory term’ should
properly read ‘minimum mandatory term’”). Thus, he does not
claim the sort of error that can properly be considered clerical.
Accordingly, because the claimed error is “the result of judicial
reasoning and decision making,” see Rodrigues, 2009 UT 62, ¶ 14,
20150492-CA 11 2017 UT App 211State v. Wynn
it is not the sort of error correctible under rule 30(b), and the
district court was correct to deny Defendant’s rule 30(b) motion. 4
III. Defendant’s Rule 60(b)(6) Motion Was Untimely
¶29 Next, Defendant argues that the restitution order should
be set aside under rule 60(b) of the Utah Rules of Civil Procedure
because it was entered without objection due to “egregious
ineffective assistance.” See Utah R. Civ. P. 60(b)(6) (allowing
courts to set aside judgments and orders for any “reason that
justifies relief”). This argument essentially attempts to recast
Defendant’s earlier claims of ineffective assistance of counsel. See
supra Part I. We need not decide whether rule 60(b) is a proper
mechanism for asserting claims of ineffective assistance, because
the district court based its denial of Defendant’s motion on its
determination that the motion was untimely. “[A] district court
has broad discretion in ruling on a motion to set aside an order
or judgment under rule 60(b), and ‘[t]hus, we review a district
court’s denial of a 60(b) motion under an abuse of discretion
standard.’” Metropolitan Water Dist. of Salt Lake & Sandy v. Sorf,
2013 UT 27, ¶ 12, 304 P.3d 824 (second alteration in original)
(quoting Menzies v. Galetka, 2006 UT 81, ¶ 54, 150 P.3d 480).
¶30 Rule 60 requires that motions “under paragraph (b) must
be filed within a reasonable time.” Utah R. Civ. P. 60(c). What
4. We note that the third factor referenced in State v. Perkins, 2014
UT App 60, ¶ 10, 322 P.3d 1184, also supports our conclusion.
Any error that Defendant claims in this regard is not clear on the
record. The record indicates that Defendant agreed to pay many
times more than $100,000 in restitution. It also indicates that,
after making a $100,000 payment, Defendant thought that
$682,068 “sound[ed] correct” for the outstanding restitution
amount. See supra ¶ 22. Because the amounts previously
acknowledged by Defendant are consistent with the amount of
restitution ordered, his attempts to now argue that the record
supports his current positions are unconvincing.
20150492-CA 12 2017 UT App 211State v. Wynn
constitutes a reasonable time under rule 60(b)(6) depends on
“the facts of each case, considering such factors as the interest in
finality, the reason for the delay, the practical ability of the
litigant to learn earlier of the grounds relied upon, and prejudice
to other parties.” Menzies, 2006 UT 81, ¶ 65 (citation and internal
quotation marks omitted). The district court determined that,
under the facts of this case, the six and a half years that passed
between entry of the restitution order and the filing of
Defendant’s rule 60(b) motion made his motion untimely. We
cannot say that this determination was an abuse of the district
court’s discretion. See Knight Adjustment Bureau v. Brockbank,
2006 UT App 196U, para. 2 (per curiam) (acknowledging a trial
court’s “broad discretion to rule on a rule 60(b) motion” and
determining that the trial court in that case “did not abuse its
discretion in denying the motion” as untimely when it “was filed
a year and a half after the judgment’s entry” (citation and
internal quotation marks omitted)).
¶31 We focus our discussion on two related factors considered
by the district court—Defendant’s reason for delay in filing his
motion and his practical ability to learn earlier the grounds
relied upon. See Menzies, 2006 UT 81, ¶ 65. Defendant asserts that
the reason for his delay in filing his motion to set aside the
restitution order was that until he “received the default order [5]
from present counsel in December of 2014 and learned that it
illegally held him responsible for paying people other than those
underlying the counts he pled to and had agreed to pay, he had
5. Defendant refers to the restitution order throughout his briefs
as a default order or default judgment. But because Defendant
acknowledges that he agreed to pay restitution, and because
there is no dispute that Defendant appeared for the proceeding
in which he entered a guilty plea, we do not view this particular
order as a default judgment. See Default Judgment, Black’s Law
Dictionary (10th ed. 2014) (defining “default judgment” as a
“judgment entered against a defendant who has failed to plead
or otherwise defend against the plaintiff’s claim”).
20150492-CA 13 2017 UT App 211State v. Wynn
no reason to know that the restitution order was amiss.” But this
flies in the face of his representations to the district court “that
he first learned about the restitution order amount at the May
2013 parole hearing.” Furthermore, the district court found that
Defendant “provide[d] no explanation as to why he did not
learn of the restitution order, filed in this case in October 2008,
between 2008 and 2013.”
¶32 For purposes of our analysis, we assume that Defendant
knew the details of the restitution order either by May 2013 or by
December 2014. If we accept the representations he made to the
district court, he knew by May 2013. If we accept Defendant’s
current contention that he failed to learn about the restitution
order until December 2014, we nevertheless have no difficulty
concluding that he should have known the details of the order by
May 2013. That was when Defendant appeared before the Board
and agreed that the outstanding restitution amount of $682,068
“sound[ed] correct.” It is not reasonable that Defendant would
have heard that outstanding restitution amount in May 2013,
agreed at the time that it seemed correct, and taken until March
2015 to realize that the amount might somehow have been
incorrect notwithstanding his earlier agreement to the contrary.
And aside from reiterating his claims that his original counsel
performed deficiently in 2008, Defendant offers us—and he
offered the district court—no explanation for this delay. In other
words, giving Defendant the benefit of believing that he did not
know about the amount of restitution ordered until May 2013,
there is no excuse given for why it took him nearly two more
years to file a motion to set aside the restitution order.
¶33 Similarly, Defendant’s appearance at the May 2013
hearing before the Board speaks to the “practical ability of the
litigant to learn earlier of the grounds relied upon, and prejudice
to other parties.” See Menzies, 2006 UT 81, ¶ 65 (citation and
internal quotation marks omitted). On this point, we agree with
the district court that Defendant “does not appear to have acted
diligently to pursue a possible relief from judgment.” Once
again, Defendant attempts to explain away his lack of action by
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pointing to the purported inaction of his defense counsel some
six years before filing his rule 60(b) motion. Because Defendant
does not explain why he failed to take action after his May 2013
hearing, we determine that it was not an abuse of discretion for
the district court to conclude that Defendant did not exercise the
diligence necessary for relief under rule 60(b) and that
Defendant’s motion was therefore untimely.6
IV. The District Court Lacked Jurisdiction to Order Discovery
¶34 Finally, Defendant argues that the district court
erroneously denied his motion for discovery. That denial was
based on the district court’s determination that it did not have
jurisdiction to order the discovery requested. Defendant relies on
the court’s “ongoing jurisdiction to correct [his] illegally
imposed sentence, including the default restitution order,[7]
pursuant to Utah [Rules of Criminal Procedure] 30(b) and 22(e)”
to support his contention that the district court did have the
requisite jurisdiction. But because Defendant’s argument is
based on a faulty premise, it fails.
¶35 While district courts generally retain jurisdiction to
correct illegal sentences, Defendant’s sentence was not illegal
and thus this particular district court did not have continuing
jurisdiction to order discovery. See State v. Montoya, 825 P.2d 676,
679 (Utah Ct. App. 1991) (“Once a court imposes a valid
sentence, it loses subject matter jurisdiction over the case.”); see
also Thompson v. Wardley Corp., 2016 UT App 197, ¶ 23, 382 P.3d
682 (“When a court dismisses a rule 60(b) motion as untimely,
6. There are additional considerations in reviewing a district
court’s denial of a rule 60(b) motion than timeliness. See Menzies
v. Galetka, 2006 UT 81, ¶ 64, 150 P.3d 480. But “there is no need to
consider whether there is a basis for setting aside a . . . judgment
if the motion was not made in a timely manner.” See id.
7. See supra ¶ 31 note 5.
20150492-CA 15 2017 UT App 211State v. Wynn
the court lack[s] jurisdiction to consider the merits of the
motion.” (alteration in original) (citation and internal quotation
marks omitted)).
¶36 We therefore affirm the district court’s denial of
Defendant’s motion for discovery.
CONCLUSION
¶37 Defendant has failed to demonstrate that he was entitled
to relief under rules 22 or 30 of the Utah Rules of Criminal
Procedure or rule 60 of the Utah Rules of Civil Procedure. And
because the district court properly denied each of Defendant’s
motions brought under those rules, it did not have jurisdiction to
order further discovery and properly denied Defendant’s
discovery motion on that basis.
¶38 Affirmed.
20150492-CA 16 2017 UT App 211