State v. Speed

2017 UT App 76THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JASON MICHAEL SPEED,
Appellant.
Opinion
No. 20150011-CA
Filed May 4, 2017
Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 101901272
Joel J. Kittrell and Kristina H. Ruedas, Attorneys
for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN concurred.
ROTH, Judge:
¶1 Jason Michael Speed appeals the district court’s denial of
his motion for relief from judgment and his request for a
restitution hearing. We affirm.
BACKGROUND
¶2 In February 2010, Speed was charged with one count of
theft by deception, a second degree felony. See Utah Code Ann.
§§ 76-6-405, -412 (LexisNexis 2012). The information alleged that
in his role as a supervisor at an ‚outsource service center for
Verizon Wireless,‛ Speed discounted ‚high-end‛ phones to
nothing, had them sent to his address, and then resold them for
State v. Speed
his own profit. The information indicated that the ‚amount
discounted on the*+ phones‛ Speed disposed of in this way was
$123,153.
¶3 Speed pleaded guilty to one count of third degree felony
theft by deception in August 2010. Before sentencing, the court
ordered a presentence investigation report (PSI). The PSI
included a recommendation that Speed be placed on probation
for thirty-six months and pay restitution. The PSI specified
$126,547 as the amount of restitution, a figure which Speed’s
employer told Adult Probation and Parole (AP&P) was the value
of the cell phones Speed had taken and sold.
¶4 In an October 2010 hearing, Speed was sentenced to an
indeterminate prison term of zero to five years, which the court
suspended. He was placed on probation for thirty-six months
and was ordered to comply with certain conditions of probation,
including paying restitution.
¶5 During the sentencing hearing, defense counsel addressed
the court regarding the amount of restitution. He asserted that
Speed had ‚taken full responsibility‛ for what he had done and
had even ‚gotten two jobs . . . in anticipation of having a large
financial obligation related to this case.‛ Speed admitted,
however, that as of the date of the hearing, he had set aside
nothing to pay for restitution and had instead ‚been trying to
catch up on previous debt.‛ Counsel stated that Speed was ‚still
a little bit in question as to whether or not that full [restitution]
amount was attributable to him,‛ and that even though Speed
unlawfully appropriated many phones, the restitution amount
recommended by AP&P represented ‚the full retail value of
these phones,‛ which was an amount counsel asserted ‚almost
nobody ever pays.‛
¶6 The sentencing court expressed concern ‚that *Speed had+
done nothing to address the issue of restitution that exceeds
$126,000.‛ The court was particularly troubled that Speed had
made no effort at repayment when he was ‚more responsible, by
20150011-CA 2 2017 UT App 76State v. Speed
far, than any of [his] co-defendants,‛1 given that ‚*t+en, 15
times . . . more restitution‛ was attributable to him. During the
sentencing portion of the hearing, the court ordered Speed to
serve a prison term of zero to five years but suspended all but
the time already served and ordered him to complete thirty-six
months of probation supervised by AP&P. After setting forth a
number of terms of Speed’s probation, the court concluded, ‚Pay
restitution in the amount of $126,547.‛ The court advised defense
counsel that it would ‚let *him+ approach later‛ about restitution
but explained to Speed,
I want to get this on rather than deferring it. I want
you to make monthly payments every single
month toward the restitution. I will let you work
with AP&P towards that, but I want them to
immediately start getting reimbursed for their
losses . . . . I really expect you to make significant
advances towards dealing with this enormous
restitution, that you need to make your victim
whole.
¶7 Defense counsel then stated that he had spoken with the
State ‚about having a restitution hearing to determine what
court-ordered and total restitution would be.‛ Following this
remark, an exchange between defense counsel and the court
ensued:
THE COURT: Well, get closer. If there are
disputes[,] I set a lot of these restitution hearings
because it’s murky. So what I want you to do is file
a motion for restitution.
[DEFENSE COUNSEL]: Okay.
1. Three others were similarly charged in connection with the
scheme. Their cases are not at issue in this appeal.
20150011-CA 3 2017 UT App 76State v. Speed
THE COURT: And with some specifics about what
I can look at before we get to the restitution
hearing—
[DEFENSE COUNSEL]: Right.
THE COURT:—and nobody knows anything.
[DEFENSE COUNSEL]: Yeah. I think—it’s not a
complicated—I don’t think it’s going to be a
complicated hearing. The only issue is really
addressing his availability to pay and those
resources he has available to pay this whole
amount.
THE COURT: Well, let’s get all of that
documentation then.
[DEFENSE COUNSEL]: Okay.
THE COURT: I will set it for hearing.
[DEFENSE COUNSEL]: Okay. And, Your Honor,
how long do we have to file that motion, just so—
THE COURT: Whenever you want.
[DEFENSE COUNSEL]: Okay. Thank you.
¶8 The original sentence, judgment, and commitment (the
original judgment) entered after the sentencing hearing in
October 2010 included among the probation conditions the
statement, ‚Pay Restitution,‛ but no dollar amount was
identified. However, in February 2012, the court amended the
judgment to identify the restitution amount as $126,547 (the
corrected judgment), the amount recommended in the PSI and
specified by the court in its verbal order to ‚*p+ay restitution in
the amount of $126,547‛ at the sentencing hearing. The corrected
20150011-CA 4 2017 UT App 76State v. Speed
judgment also added that restitution was ‚in behalf of‛ Speed’s
employer.
¶9 Subsequent to the sentencing hearing, AP&P filed three
progress reports recommending that Speed’s probation be closed
as successful. The first two were filed four and nine months after
the hearing, respectively, and the court denied both. The last
report filed in September 2013 listed $126,547 as the amount
ordered in restitution and indicated that as of September 24,
2013, Speed had made payments of only $1,418. Upon receipt of
the third report, the court notified the parties that they had
fourteen days to submit ‚any objections or other input regarding
AP&P’s recommendation‛ to close Speed’s probation. Neither
side responded, and on October 16, 2013, the court ordered
Speed’s probation terminated. The court noted ‚that because
restitution is still outstanding, termination cannot be successful‛
and referred the remaining restitution to the Office of State Debt
Collection.
¶10 Two weeks later, the court received a letter from Speed
requesting a restitution hearing. In the letter, Speed stated that
he had never had a restitution hearing and that his counsel never
informed him of his entitlement to one. He asserted that he
‚*had been+ on probation for eighteen months when *he+
received [his] first notice with an amount owed for restitution,‛
and by that point, over $7,000 in interest had accrued. He
requested a hearing so that the court could ‚review *his+ ability
to pay.‛
¶11 New defense counsel filed a motion for relief from the
judgment and a request for a restitution hearing. In the motion,
Speed asserted that relief was justified under rule 60(b)(4)
because the judgment awarding restitution was void. See Utah R.
Civ. P. 60(b)(4) (providing that a ‚court may relieve a party or its
legal representative from a judgment, order, or proceeding‛ if
‚the judgment is void‛). Speed made two claims. First, he
argued that the order was void because, as a jurisdictional
matter, the restitution statute requires that court-ordered
20150011-CA 5 2017 UT App 76State v. Speed
restitution be entered at ‚either the time of the sentence or
within one year after sentencing,‛ and he claimed that the
sentencing court ‚did not determine and enter court-ordered
restitution until‛ the corrected judgment, ‚more than one year
after *he+ was sentenced.‛ Second, Speed argued that ‚his right
to due process‛ was infringed, claiming that, because the State
‚did not file a request for restitution,‛ he ‚never received notice
of the proposed restitution amount and an opportunity to be
heard‛ ‚prior to the restitution amount being entered.‛ As a
result, he requested that the court either strike the restitution
order or re-open his case and hold a full restitution hearing.
¶12 At a subsequent hearing, the district court denied Speed’s
motion for relief from judgment and ordered that ‚the
restitution amount will remain as it is and will remain with Utah
State Debt Collection.‛ As to the jurisdiction issue, the court
determined that, based upon the transcript of the sentencing
hearing, ‚the court did order restitution as part of the
sentence . . . in the amount of $126,547.‛ The court also found
that the omission of the exact number from the original
judgment was essentially a clerical error and that the corrected
judgment accurately shows ‚the restitution that was ordered on
the day of [the] sentencing [hearing].‛ Accordingly, the court
rejected Speed’s argument that the judgment was void on
jurisdictional grounds.
¶13 Similarly, the court rejected Speed’s request for a
restitution hearing on the basis that he had been denied due
process, finding that he had notice of the amount of restitution
sought and had been provided opportunities to be heard. The
court noted in particular that the AP&P report indicated that the
amount of loss attributed to Speed was $126,547, the exact
amount awarded in restitution. It noted that ‚*t+here was a
restitution amount ordered‛ at sentencing and that the exact
amount of restitution so ordered was included in the third AP&P
progress report, which also noted that Speed had made
payments of approximately $1,400 toward that amount. Finally,
the court noted that, although Speed had received notice of the
20150011-CA 6 2017 UT App 76State v. Speed
restitution amount on multiple occasions, ‚other than the
colloquy at sentencing, nothing was made of the restitution‛
‚until well after the case was closed.‛ In particular, the district
court noted that after receiving AP&P’s recommendation that
probation be terminated, the court had notified the parties in
writing, asking whether any party objected to the unpaid
balance of restitution and interest being referred to the Office of
State Debt Collection, and Speed had filed no objection. The
court therefore determined that Speed had ‚waived any issue
regarding restitution,‛ and it denied his request for a restitution
hearing.
¶14 Speed appeals from the district court’s denial of his post-
judgment motion. We affirm.
ISSUES AND STANDARDS OF REVIEW
¶15 Speed argues that the district court2 abused its discretion
when it denied his post-judgment rule 60(b) motion. ‚Normally,
the district court’s denial of a rule 60(b) motion is reviewed for
abuse of discretion.‛ Migliore v. Livingston Financial, LLC, 2015
UT 9, ¶ 25, 347 P.3d 394. However, Speed’s rule 60(b) motion
requested relief under subsection (b)(4), and a district court ‚has
no discretion with respect to a void judgment because the
determination that a judgment is void implicates the court’s
jurisdiction.‛ Id. As a result, ‚the propriety of the jurisdictional
determination, and hence the decision not to vacate, becomes a
question of law upon which we do not defer to the district
2. Different judges presided at the sentencing hearing in 2010
and the later hearing in 2014 regarding Speed’s motion for relief
from judgment and request for a restitution hearing. For
convenience, we refer to the sentencing hearing judge as ‚the
sentencing court,‛ and the later judge reviewing the post-
judgment motion as ‚the district court.‛
20150011-CA 7 2017 UT App 76State v. Speed
court.‛ Id. (brackets, citation, and internal quotation marks
omitted).
ANALYSIS
I. The Scope of Review is Limited.
¶16 On appeal, Speed contends he is entitled to relief from the
district court’s denial of his post-judgment motion because the
restitution order was not entered within the jurisdictional time
frame established by the restitution statute. Speed argues the
sentencing court erroneously required defense counsel to file a
motion before scheduling further restitution proceedings in
contravention of the hearing requirements of the restitution
statute and the State did not sufficiently prove that he caused the
amount of loss claimed against him. He alternatively argues that
his trial counsel was ineffective for failing to file the restitution
motion requested by the sentencing court.
¶17 Our ability to consider Speed’s claims is limited by the
procedural context in which they arose. This appeal follows from
the district court’s denial of his post-judgment motion for relief.
Speed did not file a direct appeal from the original judgment or
the corrected judgment. The original judgment was filed in
October 2010 and the corrected judgment in February 2012, but
no appeal was taken from either, and by the time Speed filed his
post-judgment motion in April 2014, the time for filing an appeal
had long since passed.3 See Utah R. App. P. 4(a) (providing that,
‚*i+n a case in which an appeal is permitted as a matter of right
from the trial court to the appellate court, the notice of appeal . . .
3. We express no opinion on whether Speed could have filed a
direct appeal from the corrected judgment. For the purposes of
this decision, it is enough to note that the time for filing an
appeal from either judgment has passed.
20150011-CA 8 2017 UT App 76State v. Speed
shall be filed with the clerk of the trial court within 30 days after
the date of entry of the judgment or order appealed from‛).
¶18 As a result, Speed is limited to challenging the district
court’s denial of his request for post-judgment relief. In his post-
judgment motion, Speed made two arguments to the district
court—that the restitution order was void under rule 60(b)(4) for
lack of jurisdiction, and that the restitution obligation should be
re-opened for a restitution hearing because he was denied his
due process rights of notice and an opportunity to be heard.
¶19 For purposes of this appeal, we consider both arguments
to be requests for relief from a void judgment under rule
60(b)(4).4 A successful rule 60(b)(4) request for relief provides
relief from judgments entered without constitutionally required
due process as well as those entered without jurisdiction. See
Migliore v. Livingston Financial, LLC, 2015 UT 9, ¶¶ 26–27, 347
P.3d 394 (explaining that rule 60(b)(4) provides relief from
judgments that are rendered without ‚jurisdiction of the subject
matter or parties, or the judgment was entered without the
notice required by due process,‛ which means ‚notice
reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them
an opportunity to present their objections‛ (citations and
internal quotation marks omitted)). Below, Speed expressly
relied on rule 60(b)(4) as the basis for his jurisdictional
argument, and his request for a restitution hearing is in
4. Speed filed his rule 60(b) motion nearly three and a half years
after the sentencing court entered the original judgment.
Although generally rule 60(b) motions must be filed ‚not more
than 90 days after entry of the judgment or order‛ or ‚within a
reasonable time,‛ Utah R. Civ. P. 60(c), ‚where the judgment is
void the time limitations of rule 60(b) have no application,‛
Migliore v. Livingston Financial, LLC, 2015 UT 9, ¶ 24, 347 P.3d 394(brackets, ellipsis, citation, and internal quotation marks
omitted).
20150011-CA 9 2017 UT App 76State v. Speed
substance a request for relief from a judgment rendered void by
denial of fundamental due process. See Frito-Lay v. Utah Labor
Comm’n, 2009 UT 71, ¶ 27, 222 P.3d 55 (explaining that ‚courts
are to look at the substance of a motion, not merely its title, to
determine its validity‛). For instance, he asserted that he was
entitled to have the restitution amount recalled from the Office
of State Debt Collection and his case re-opened for a restitution
hearing because he ‚never received notice of the proposed
restitution amount‛ before it was entered or ‚an opportunity to
be heard‛ on the issue and, as a result, ‚his right to due process
*was+ infringed.‛ And at the hearing on the post-judgment
motion, his counsel argued that Speed had not waived his right
to a hearing because ‚there was no request for restitution ever
filed by the State,‛ he did not have ‚actual notice . . . of a
restitution amount being sought in a hearing,‛ and he did not
receive ‚legal notice . . . notifying him that he had an
opportunity to challenge amounts that were entered by the court
pursuant to the presentence report.‛
¶20 As we explain further below, however, an appeal from a
denial of a rule 60(b) motion ‚is narrow in scope,‛ and ‚does not,
at least in most cases, reach the merits of the underlying
judgment from which relief was sought.‛ Franklin Covey Client
Sales, Inc. v. Melvin, 2000 UT App 110, ¶ 19, 2 P.3d 451 (citation
and internal quotation marks omitted); accord Fisher v. Bybee,
2004 UT 92, ¶¶ 10–11, 104 P.3d 1198. Thus, to ensure that this
appeal ‚does not provide an alternative vehicle for challenging
the merits of a judgment that are more properly addressed
through normal appellate review,‛ see Migliore, 2015 UT 9, ¶ 29,
our review is limited to the district court’s denial of the relief
Speed sought under rule 60(b)(4) to set aside the restitution
order as void for lack of jurisdiction and as a violation of his
right to procedural due process. This means that, to the extent
that the issues Speed raises on appeal involve errors by the court
or his counsel that do not implicate the fundamental validity of
the restitution order, we will not address them. His relief from
errors of that sort lay in a direct appeal.
20150011-CA 10 2017 UT App 76State v. Speed
¶21 We first consider Speed’s jurisdictional argument, and
then his due process claim. We conclude by addressing his
ineffective assistance of counsel claim.
II. The Restitution Order Is Not Void for Lack of Jurisdiction.
¶22 Utah Code section 77-38a-302 provides that ‚*w+hen a
defendant is convicted of criminal activity that has resulted in
pecuniary damages, . . . the court shall order that the defendant
make restitution to victims of crime.‛ Utah Code Ann. § 77-38a-
302(1) (LexisNexis 2008).5 ‚In determining restitution, the court
shall determine complete restitution and court-ordered
restitution.‛ Id. § 77-38a-302(2). Complete restitution is the
‚restitution necessary to compensate a victim for all losses
caused by the defendant.‛ Id. § 77-38a-302(2)(a). To determine
complete restitution, the court must consider, among other
things, ‚the cost of the damage or loss if the offense resulted in
damage to or loss or destruction of property of a victim.‛ Id.
§ 77-38a-302(5)(b)(i).
¶23 Court-ordered restitution, on the other hand, is ‚the
restitution the court having criminal jurisdiction orders the
defendant to pay as a part of the criminal sentence.‛ Id. § 77-38a-
302(2)(b). In determining court-ordered restitution, the court
must address the defendant’s ability to pay, which includes
consideration of ‚the financial resources of the defendant‛ and
‚the burden that payment of restitution will impose,‛ as well as
‚the rehabilitative effect on the defendant of the payment of
restitution and the method of payment‛ and ‚other
circumstances which the court determines may make restitution
inappropriate.‛ Id. § 77-38a-302(5)(c)(i)–(iv). Court-ordered
restitution ‚may be identical in amount to complete
restitution‛—that is, the court may order a defendant to pay in
restitution the full amount of the loss attributable to the
5. We refer to the version of Utah Code section 77-38a-302 that
was in effect at the time Speed was charged.
20150011-CA 11 2017 UT App 76State v. Speed
defendant’s criminal activity or a lesser amount, depending on
the court’s assessment of the applicable factors. See State v.
Thomas, 2016 UT App 79, ¶ 4, 372 P.3d 87 (per curiam) (citation
and internal quotation marks omitted).
¶24 During the time period pertinent to the issue in this
case—sentencing through entry of the corrected judgment—the
restitution statute contained a jurisdictional constraint on a
sentencing court’s authority to order restitution: court-ordered
restitution must be determined ‚at the time of sentencing or
within one year after sentencing.‛6 Utah Code Ann. § 77-38a-
302(2)(b), -302(5)(d)(i). In State v. Poole, 2015 UT App 220, 359
P.3d 667, we explained that, under the pre-amended statute, if a
sentencing court did not order court-ordered restitution in a
specific amount within the one-year time frame, it lost
jurisdiction to make the order at all. Id. ¶¶ 19–21. In Poole, at the
time of sentencing, the State had presented the court with only a
preliminary assessment of the loss, and the court did not enter
an order but instead agreed to hold the issue of restitution open
for one year to permit the State to determine the final amount of
loss. Id. ¶ 2. The State filed a motion for restitution barely within
the year, but by the time the court entered its restitution order,
fifteen months had passed since sentencing. Id. ¶ 4. We held that,
because the restitution statute required restitution orders to be
entered within one year of sentencing, and the district court did
not order restitution in a specific amount until fifteen months
afterward, the court lacked jurisdiction to enter the restitution
order. Id. ¶¶ 20–22.
6. The definition of ‚court-ordered restitution‛ in Utah Code
section 77-38a-302 was amended in 2016 to remove this time
constraint. See Utah Code Ann. § 77-38a-302(2)(b) (LexisNexis
Supp. 2016). Court-ordered restitution is now described as ‚the
restitution the court having criminal jurisdiction orders the
defendant to pay as a part of the criminal sentence.‛ Id. Neither
party disputes that the previous version of the statute applies
here.
20150011-CA 12 2017 UT App 76State v. Speed
¶25 Citing Poole, Speed argues that the sentencing court here
‚did not order a certain amount of restitution within one year of
sentencing,‛ as the restitution statute required. Specifically, he
asserts that during the sentencing hearing the court failed to
order that Speed pay any specific amount of restitution. Instead,
he contends that the sentencing court decided only complete
restitution and failed to determine the amount Speed would
actually be required to pay as court-ordered restitution. Likening
the circumstances of his case to those in Poole, he also contends
that no specific restitution amount was ordered until the
corrected judgment was entered sixteen months after the
original judgment—beyond the jurisdictional limit. Speed
contends that the corrected judgment’s restitution order is
therefore void.
¶26 We agree with the district court, however, that the
sentencing court ‚order*ed+ restitution as part of the
sentence . . . in the amount of $126,547‛ and that the failure to
include the exact amount of restitution in the original judgment
amounted to a clerical error.
¶27 During the sentencing hearing, the court suspended
Speed’s prison sentence and placed him on probation for thirty-
six months, to be supervised by AP&P. Among the conditions of
Speed’s probation that the court stated on the record was, ‚Pay
restitution in the amount of $126,547.‛ Prior to the hearing, the
court had received the PSI, which contained information about
Speed’s employment, financial, educational, and current living
situations, as well as the exact amount of loss the victim
attributed to Speed’s criminal actions—$126,547. At the
beginning of the hearing, the court verified that both parties had
reviewed the PSI. And during the hearing, the court focused on
the restitution issue, expressing its concern that, at the time of
sentencing many months after the events, Speed had ‚done
nothing to address the issue of restitution,‛ despite the fact that
he was ‚more responsible, by far, than any of *his+ co-
defendants.‛ Both defense counsel and Speed himself provided
additional information regarding Speed’s income prospects and
20150011-CA 13 2017 UT App 76State v. Speed
family situation. And after delivering its oral order that Speed
pay $126,547 in restitution, the court explained to Speed and
defense counsel that, although it would consider further
arguments about the restitution ‚later,‛ it ‚want*ed+ to get this
on rather than deferring it‛ and that it expected Speed to
‚immediately‛ begin making ‚payments every single month
toward the restitution.‛
¶28 Given the sentencing court’s explicit order of restitution
and the tenor of the court’s interchange with Speed and his
counsel, we are not persuaded that the focus on restitution
during the sentencing hearing amounted to a mere discussion in
which the court determined only complete restitution, without
an actual order that Speed pay that amount as part of his
criminal sentence. To the contrary, the court plainly ordered
Speed to pay restitution in a specific sum as part of his criminal
sentence; by its terms this amounts to court-ordered restitution.
See Utah Code Ann. § 77-38a-302(2)(b) (LexisNexis 2008)
(defining court-ordered restitution as ‚the restitution the court
having criminal jurisdiction orders the defendant to pay as a
part of the criminal sentence at the time of sentencing‛); see also
State v. Laycock, 2009 UT 53, ¶ 30, 214 P.3d 104 (noting that court-
ordered restitution may be ordered in an amount identical to the
amount of loss attributable to the defendant’s criminal
activities). Although Speed argues that the court’s willingness to
‚let *defense counsel+ approach later‛ regarding any disputes
about the amount of restitution should be interpreted as
undermining the directive force of the court’s statement, ‚Pay
restitution in the amount of $126,547,‛ we conclude that the
unequivocal nature of that statement and the court’s subsequent
admonition that Speed ‚immediately‛ begin making monthly
payments to address the ‚enormous restitution‛ leave no room
for doubt that the court ordered Speed to pay $126,547 in
restitution at the sentencing hearing, even though the court
opened the door to the possibility of an adjustment by
permitting Speed to file a motion to revisit the amount if he were
so inclined. Thus, Speed was ordered to pay a definite amount of
restitution ‚as a part of [his] criminal sentence at the time of
20150011-CA 14 2017 UT App 76State v. Speed
sentencing,‛ as the restitution statute required. See Utah Code
Ann. § 77-38a-302(2)(b).
¶29 Furthermore, we agree with the district court’s conclusion
that the sentencing court’s failure to include the amount in the
original written judgment was merely a clerical error. The
original written judgment included an express order that Speed
‚*p+ay restitution‛ as a condition of his probation but did not
include an amount. Rule 30(b) of the Utah Rules of Criminal
Procedure permits a court sua sponte to correct clerical mistakes
in judgments or orders that arise ‚from oversight or omission.‛
Such errors may be corrected ‚at any time.‛ Utah R. Crim. P.
30(b). As our supreme court has explained, the purpose of this
rule ‚is to correct clerical errors so that the record reflects what
was actually done or intended‛ at the time. State v. Rodrigues,
2009 UT 62, ¶ 14, 218 P.3d 610 (citation and internal quotation
marks omitted). ‚A clerical error, as contradistinguished from
judicial error, is not the deliberate result of the exercise of
judicial reasoning and determination,‛ State v. Lorrah, 761 P.2d
1388, 1389 (Utah 1988) (per curiam) (citation and internal
quotation marks omitted); rather, it is a mistake ‚made in
recording a judgment that results in the entry of judgment which
does not conform to the actual intention of the court,‛ Rodrigues,
2009 UT 62, ¶ 14 (citation and internal quotation marks omitted).
‚Thus, our clerical error analysis generally focuses on (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.‛ Id. ‚To ascertain the clerical
nature of the mistake, [we] will look to the record to harmonize
the intent of the court with the written judgment.‛ Lorrah, 761
P.2d at 1389.
¶30 The Rodrigues factors fully support the district court’s
conclusion that the omission of a specific restitution amount in
the original judgment was the result of clerical error. First, it is
apparent that the omission of a specific amount after the order
‚*p+ay restitution‛ resulted in an incomplete memorialization of
20150011-CA 15 2017 UT App 76State v. Speed
what the court ordered during the sentencing hearing. As we
have discussed, even though the court expressed a willingness to
reconsider the amount of restitution at some point in the future,
the court nonetheless clearly ordered Speed to pay the sum of
$126,547 as a condition of his probation. The corrected written
judgment adds that precise number to the ‚*p+ay restitution‛
component of the final judgment. And between sentencing and
the corrected judgment, it does not appear that any additional
documentation or further restitution proceedings occurred that
might have had some bearing on the inclusion of an exact
amount in the corrected judgment; indeed, as the district court
noted in the post-judgment hearing, ‚other than the colloquy at
the sentencing [between defense counsel and the court], nothing
was made of the restitution‛ ‚until well after the case was
closed.‛ Thus, the corrected judgment does no more than rectify
a mistaken omission of the exact restitution amount the
sentencing court ordered Speed to pay.
¶31 Second, it does not appear that the failure to include the
specific amount in the original judgment was the result of
judicial reasoning or decision making. See Rodrigues, 2009 UT 62,
¶ 14. A judicial error is ‚the deliberate result of the exercise of
judicial reasoning and determination,‛ while a clerical error is
not. Id. ¶ 23 (citation and internal quotation marks omitted).
Certainly, the sentencing court’s initial decision to order Speed
to pay restitution in the exact amount of the loss indicated in the
PSI was undoubtedly a reasoned judicial decision. See id. ¶ 25
(explaining that a district court’s ‚determination of restitution
required judicial reasoning and decision making‛). However, the
omission of that number from the final judgment was merely an
oversight in the preparation of the written document; the later
amendment of the judgment to reflect the court’s actual
restitution decision itself required no exercise of judgment on the
part of the court. Rather, adding the restitution amount that the
sentencing court expressly determined during the hearing was a
simple ministerial act to correct an omission ‚mechanical in
nature.‛ Id. ¶ 29 (‚An error is clerical when it is a mistake or
20150011-CA 16 2017 UT App 76State v. Speed
omission mechanical in nature which is apparent on the
record.‛(citation and internal quotation marks omitted)).
¶32 Finally, the ‚error . . . is apparent on the record.‛ See id.(citation and internal quotation marks omitted). The sentencing
court ordered that Speed pay restitution in a specific amount
and the original judgment ordered him to ‚[p]ay restitution‛ but
omitted the amount. Thus, the amendment of the restitution
portion of the judgment to include the amount of restitution as
$126,547 to be paid in behalf of Speed’s employer simply
conforms the judgment to the court’s original intent, plainly
expressed during the sentencing hearing. Accordingly, we
conclude that the omission in the original judgment is clear from
the record.
¶33 Therefore, we agree with the district court that the
omission of the amount from the original judgment was not
legally significant—during the sentencing hearing, the court
unambiguously ordered that Speed pay $126,547, and the
omission of that sum from the original judgment was
unintentional. As a result, we conclude that the corrected
judgment was merely a memorialization of what had already
occurred and was not a restitution order made beyond the
jurisdictional time limit of the restitution statute.
¶34 Nonetheless, Speed argues that the sentencing court could
not have intended to mandate court-ordered restitution, because
it did not have sufficient information regarding the required
factors at the time of the sentencing hearing. In essence, he
contends that the court intended to determine only complete
restitution during the sentencing hearing but, due to a lack of
information, reserved the amount of court-ordered restitution
for future proceedings. He also argues that the State has ‚failed
to prove [that] the amount of restitution was caused by [his]
criminal activities‛ and that the sentencing court impermissibly
placed the burden of proving causation on Speed.
20150011-CA 17 2017 UT App 76State v. Speed
¶35 To the extent Speed’s arguments bear on the
determination of whether the court intended to order him to pay
$126,547 in restitution, we have already determined that the
record of the hearing as a whole supports a conclusion that it
did. See supra ¶ 28. And to the extent that he argues that the
court committed error in this determination in the first place, the
subject is beyond the scope of our review.
¶36 As we have explained, due to the procedural posture of
Speed’s appeal, our review is limited to whether the district
court correctly denied his rule 60(b)(4) motion. We ‚narrowly
construe the concept of a void judgment in the interest of
finality,‛ and ‚*a+ judgment is not void merely because it is
erroneous.‛ Migliore v. Livingston Financial, LLC, 2015 UT 9, ¶ 26,
347 P.3d 394 (citation and internal quotation marks omitted).
‚Rather, a judgment is void only if the rendering court lacked
authority,‛ id. ¶ 29, meaning that ‚the court that rendered it
lacked jurisdiction of the subject matter[] or parties or the
judgment was entered without the notice required by due
process,‛ Judson v. Wheeler RV Las Vegas, LLC, 2012 UT 6, ¶ 18,
270 P.3d 456 (citation and internal quotation marks omitted). As
a result, we will not review legal errors that should have been
raised in a direct appeal, ‚lest Rule 60(b) become a substitute for
timely appeals.‛ See Fisher v. Bybee, 2004 UT 92, ¶¶ 10–11, 104
P.3d 1198 (citation and internal quotation marks omitted).
¶37 Both of Speed’s contentions—that the court lacked
sufficient information to order restitution and that the causation
determination was unsupportable—are assertions of legal error
the court might have committed in arriving at its restitution
order. Even if the court failed to consider the factors specified by
the restitution statute, this sort of error does not implicate the
court’s fundamental jurisdiction to enter an order of restitution.
See Migliore, 2015 UT 9, ¶ 29. Similarly, even if Speed is correct
that there was insufficient evidence to support a conclusion that
the restitution order accurately represented ‚the losses related to
*his+ criminal activities‛ or that the sentencing court
impermissibly shifted to him the burden of proving the absence
20150011-CA 18 2017 UT App 76State v. Speed
of a causal relationship between his offense and the amount of
restitution sought, the errors he identifies are legal, not
jurisdictional. As a result, such challenges to the court’s
restitution order are beyond the scope of his appeal from the
district court’s rule 60(b)(4) decision, which was necessarily
limited to whether the restitution order was void.
¶38 In sum, we conclude that the sentencing court ordered
Speed to pay restitution in the amount of $126,547 during the
sentencing hearing and that the omission of the exact amount
from the original written judgment was merely a clerical error.
As a result, unlike in State v. Poole, 2015 UT App 220, 359 P.3d
667, the sentencing court had jurisdiction when it made its
restitution order at sentencing and when it entered judgment
shortly thereafter. The restitution order is therefore not void on
jurisdictional grounds.
III. The Restitution Order Is Not Void on Due Process Grounds.
¶39 In his post-judgment motion, Speed also argued that he
was entitled to a restitution hearing because, ‚prior to the
restitution amount being entered,‛ he was ‚given no notice‛ of
the amount and he also never received ‚an opportunity to be
heard‛ on the issue. He contended that his right to a restitution
hearing was ‚triggered‛ when he requested a hearing by letter a
couple of weeks after his case had been closed, see Utah Code
Ann. § 77-38a-302(4) (LexisNexis 2008), and that ‚*b+ecause the
restitution amount was part of a criminal sentence[] and failure
to pay it jeopardized [his] liberty interest, his right to due
process *had been+ infringed.‛ Accordingly, he requested that
the court recall the remaining restitution owed from the Office of
State Debt Collection and ‚re-open his case [to] hold a full
restitution hearing.‛
¶40 As explained above, we cannot consider mere legal error
in the procedural context of a motion to set aside a judgment
under rule 60(b). We therefore consider this issue to be, in
substance, a rule 60(b)(4) request for relief from a judgment
20150011-CA 19 2017 UT App 76State v. Speed
rendered void by violation of Speed’s constitutional right of due
process. Indeed, on appeal, Speed initially frames the issue as
one implicating due process, as he did in the post-judgment
motion. Quoting State v. Gibson, 2009 UT App 108, 208 P.3d 543,
he contends that he ‚‘has all the due process rights inherent in [a
restitution+ hearing,’‛ and contends that he was ‚never afforded
a full and complete restitution hearing despite his objection to
the amount of restitution.‛ See id. ¶ 15. But apart from that,
Speed’s due process argument is, at its core, an argument that
the sentencing court failed to comply with the hearing
requirements of the restitution statute. Specifically, he contends
we should reverse the district court’s decision to deny his
request for a restitution hearing because the sentencing court
misapplied the restitution statute when it ‚require*d+ defense
counsel to file a motion for restitution prior to scheduling the
hearing, [which] adds an additional requirement not
contemplated by the statute,‛ and that ‚*o+nce *the sentencing
court] was aware that the defense and the prosecutor had a
dispute over restitution, [it] should have scheduled the
restitution hearing‛ immediately. He also argues it would be
‚unfair and contrary to Utah law to find that *he+ waived his
right to a restitution hearing by his counsel’s failure to file a
motion not contemplated by the statute, particularly when trial
counsel was given an open-ended deadline to do so.‛
¶41 In determining whether a claimed denial of due process
renders a judgment void, we consider whether the appellant
received the ‚fundamental principles of procedural fairness‛—
that is, whether the appellant had adequate notice of the claims
against him and an opportunity to respond. State v. Weeks, 2000
UT App 273, ¶ 8, 12 P.3d 110 (brackets, citation, and internal
quotation marks omitted), aff’d, 2002 UT 98, 61 P.3d 1000; see also
Migliore v. Livingston Financial, LLC, 2015 UT 9, ¶ 27, 347 P.3d
394.
¶42 For example, in Migliore, the appellant requested relief
under rule 60(b)(4), claiming that he had been denied due
process when summary judgment was entered against him
20150011-CA 20 2017 UT App 76State v. Speed
based on his failure to respond to the plaintiff’s request for
admissions, asserting that ‚he was deprived of notice, denied the
opportunity to respond to *the appellee’s claims+, and denied a
fair opportunity to submit evidence‛ on his own behalf. 2015 UT
9, ¶ 23. The supreme court did not inquire whether the
applicable notice requirements of the rules of civil procedure
were followed but limited its review to determining whether the
appellant had received procedural due process—i.e., whether
the appellant ‚had notice of *the appellee’s+ claims and an
opportunity to respond.‛ Id. ¶ 27. The court concluded that the
appellant was not denied due process where the record showed
that he had actual notice of the claims filed against him and had
responded by filing motions and objections and making
discovery responses, albeit limited ones. Id. (‚Thus, the evidence
on the record clearly indicates that [the appellant] had notice of
[the appellee’s+ claims and an opportunity to respond.‛). The
court otherwise declined to consider any of the ‚underlying
merits of the original summary judgment determination.‛
Id. ¶ 29.
¶43 Likewise, we will not consider the underlying merits of
the sentencing court’s restitution award or any related legal
errors. Rather, we are instead limited to considering only
whether Speed received adequate notice and the opportunity to
be heard. We determine that Speed’s alleged error does not rise
to the level of a fundamental denial of due process sufficient to
render the restitution award void. Even if the sentencing court
misapplied the restitution statute by requiring Speed to file a
motion with supporting documentation before it scheduled a
restitution hearing—a question we do not decide—that alleged
error did not fundamentally deprive Speed of notice related to
the restitution ordered against him or an opportunity to be heard
on the issue. See State v. Hegbloom, 2014 UT App 213, ¶¶ 14–19,
22, 362 P.3d 921 (concluding that an appellant collaterally
attacking a civil protective order on the basis that it was void
was not denied due process, even though he did not receive an
evidentiary hearing before the order was entered against him,
because he ‚received notice *of the protective order
20150011-CA 21 2017 UT App 76State v. Speed
proceeding], . . . stated his intention to seek an evidentiary
hearing, and was instructed how to do so,‛ but then failed to
follow through); cf. State v. Gomez, 887 P.2d 853, 855 (Utah 1994)
(concluding that the appellant’s due process rights as to his
sentence were not violated in relation to an ex parte
communication between the court and the appellant’s probation
officer where the appellant was provided ‚all factual
information upon which the court based his sentence,‛ including
‚the purpose and substance of the *ex parte+ communication,‛
but then ‚failed to avail himself of the opportunity‛ to question
the probation officer about the communication in an evidentiary
hearing); Joseph v. Salt Lake City Civil Service Comm’n, 2002 UT
App 254, ¶ 10, 53 P.3d 11 (‚The fundamental requirement of due
process is the opportunity to be heard, at a meaningful time and
in a meaningful manner, and, when this opportunity is granted a
complainant, who chooses not to exercise it, that complainant
cannot later plead a denial of procedural due process.‛
(emphasis, citation, and internal quotation marks omitted)).
¶44 Here, as in Migliore, it was clear during the sentencing
hearing that Speed had notice of the amount of loss being
claimed against him. The amount was contained in the PSI,
which defense counsel stated he and Speed had reviewed, and
the court stated the amount more than once during the hearing.
It was also clear, as we have explained above, that Speed had
notice that the sentencing court ordered him to pay restitution as
a condition of his probation in the full amount of that loss.
¶45 Further, even assuming that the sentencing court violated
the restitution statute when it required that Speed file a motion
and provide additional documentation to facilitate a subsequent
restitution hearing, the court afforded Speed the opportunity to
be heard on the issue. And Speed has pointed to no evidence
suggesting that, had he filed the motion in the manner invited by
the sentencing court, the court would have denied him the
requested hearing. See Hegbloom, 2014 UT App 213, ¶ 14 n.3
(noting, in response to the appellant’s allegation that an order
was void on the basis of a due process violation because he did
20150011-CA 22 2017 UT App 76State v. Speed
not receive an evidentiary hearing before it was entered, that the
appellant did not assert that ‚had he objected to the
commissioner’s finding in the manner she prescribed, the district
court would have denied him an evidentiary hearing‛). To the
contrary, during the sentencing hearing the court expressly
afforded Speed the opportunity to challenge the amount of both
complete and court-ordered restitution when it indicated that it
would let defense counsel ‚approach later‛ regarding the
restitution issue and stated that it would schedule the hearing
once defense counsel filed the motion. And Speed has not
directed us to any authority suggesting that the alleged failure to
comply with the restitution statute’s hearing requirements
amounts to a procedural due process violation sufficient to void
the restitution judgment entirely. Cf. Ward v. Anderson, 494 F.3d
929, 935 (10th Cir. 2007) (‚*T+he question raised in a procedural
due process challenge is whether the level of process afforded to
the [appellants] passed constitutional muster, not whether [the
appellee] followed statutes or regulations. [A] failure to comply
with state or local procedural requirements does not necessarily
constitute a denial of due process; the alleged violation must
result in a procedure which itself falls short of standards derived
from the Due Process Clause.‛ (fourth alteration in original)
(citation and internal quotation marks omitted)).
¶46 Thus, even if the sentencing court’s request for a motion
to be filed before scheduling further restitution proceedings was
an error under the restitution statute, we are not persuaded that
the restitution order was rendered in violation of Speed’s
constitutional guarantee of due process; Speed was given
appropriate notice of the restitution claim and afforded an
opportunity to be heard. See Migliore v. Livingston Financial, LLC,
2015 UT 9, ¶ 27, 347 P.3d 394. That Speed failed to thereafter
avail himself of the opportunity provided or further pursue the
restitution issue until well after the time for appeal had passed is
not something that can be rectified through a rule 60(b)(4) due
process challenge. See id. ¶¶ 26–29.
20150011-CA 23 2017 UT App 76State v. Speed
IV. Speed’s Ineffective Assistance of Counsel Claim Is Not
Reviewable Here.
¶47 Finally, Speed argues that he received ineffective
assistance of counsel ‚when his trial counsel failed to properly
object to the amount of restitution and file a motion as requested
by the [sentencing court+.‛ He claims that his trial counsel ‚knew
that [he] disputed the full amount of restitution and wanted a
hearing‛ and that the sentencing court expressly ‚directed *trial
counsel+ to file a motion for restitution.‛ He also claims that he
was prejudiced ‚by failing to receive his statutory right to a full
and complete restitution hearing, and from being burdened with
a debt of restitution that will be close to impossible for him to
pay off given his circumstances.‛
¶48 However, as we have discussed, the only basis for relief
from the restitution order that Speed asserted in his post-
judgment motion was a claim under rule 60(b)(4) that the order
was void for lack of jurisdiction because the sentencing court
had failed to enter a specific restitution amount until more than
a year after sentencing and because he did not have notice of the
amount or an opportunity to be heard. He did not assert that his
trial counsel’s ineffectiveness was a basis for relief from the
sentencing court’s judgment in his post-judgment motion. As a
result, because this claim relates to his trial counsel’s
performance and was not raised as a basis for relief in his post-
judgment motion, it has not been preserved and is therefore
beyond the scope of our limited review. See Seamons v. Brandley,
2011 UT App 434, ¶¶ 2–3, 268 P.3d 195 (per curiam) (explaining
that ‚to preserve an issue for appeal, the issue must be presented
to the [district] court in such a way that the [district] court has an
opportunity to rule on that issue‛ and that ‚*t+he preservation
rule applies to every claim, including constitutional questions‛
(citation and internal quotation marks omitted)).
¶49 In any event, Speed’s ineffective assistance argument
appears to be simply an extension of his argument that the
sentencing court abused its discretion by requiring him to file a
20150011-CA 24 2017 UT App 76State v. Speed
motion with supporting documentation before affording him the
statutory hearing—i.e., it is a claim of error premised upon the
existence of a statutory right. Indeed, he argues that he was
unable to exercise a ‚statutory right‛ due to his counsel’s
performance. He has not argued that his trial counsel’s allegedly
ineffective assistance amounted to a due process deprivation of
constitutional significance or that the sentencing court’s
judgment is otherwise rendered void based upon the deficient
representation. See Migliore v. Livingston Financial, LLC, 2015 UT
9, ¶ 26, 347 P.3d 394.
¶50 As a result, we decline to reach the merits of Speed’s
ineffective assistance of counsel argument, because it was not
preserved in the district court and it is beyond the scope of this
appeal.
CONCLUSION
¶51 Due to the procedural posture of this case, our review is
limited to the district court’s denial of Speed’s post-judgment
motion. Speed has not demonstrated that the sentencing court’s
restitution order was void under rule 60(b)(4) on jurisdictional or
due process grounds—the only two grounds asserted in the
motion—and he has therefore failed to demonstrate that the
district court’s denial of his motion to set the restitution order
aside was improper. We therefore affirm.
20150011-CA 25 2017 UT App 76