State v. Milligan, 2012 UT App 47

On July 3, 2006, Milligan and co-defendant Heimuli fired at an unarmed group at a party, killing Vaenuku and injuring Durr.
Witnesses testified about Milligan’s statements and a crown tattoo motif; the tattoo reference was excluded but later mentioned by a witness.
Milligan was convicted of first-degree murder and second-degree attempted murder; a special verdict found use of a dangerous weapon.
Initial sentencing used minimums with consecutive terms; the State later moved to correct an illegal sentence after a May 2006 statutory amendment.
The trial court amended the sentence to reflect the new minimums, again ordering consecutive terms; Milligan appealed.
The court ultimately remanded for a narrow resentencing review on the consecutive/concurrent issue.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the tattoo remark required a mistrial	Milligan contends the tattoo remark prejudiced the jury and warranted mistrial.	State argues the remark was non-deliberate, minimal, and not outcome-determinative.	Mistrial affirmed not required; no substantial influence on verdict
Whether the correction of an illegal sentence without a hearing violated right to appear and defend	Milligan asserts he was denied the right to appear and defend against the amendment.	State says no hearing was needed for correction of an illegal sentence when original sentencing occurred with presence.	Not plain error; remand to allow defense against consecutive sentencing due to the amended minimum
Whether counsel was ineffective for not objecting to the amendment and whether a hearing was required	Milligan argues ineffective assistance for failing to object to the amendment and lack of hearing.	State contends no opportunity to object was necessary for clerical correction; a hearing would be needed if outcome could change.	Counsel ineffective for not objecting; remand for defense on consecutive sentencing

State v. Allen, 2005 UT 11 (Utah Supreme Court, 2005) (standard for mistrial denial and prejudice)
State v. Butterfield, 2001 UT 59 (Utah Supreme Court, 2001) (evidence as grounds for new trial when substantially influences verdict)
State v. Wach, 2001 UT 35 (Utah Supreme Court, 2001) (reliability of witness testimony in light of other evidence)
State v. Rodrigues, 2009 UT 62 (Utah Supreme Court, 2009) (presence and allocution; clerical vs. illegal sentence correction)
State v. Lorrah, Utah, 1988 (Utah Supreme Court, 1988) (clerical error correction framework and presence at sentencing)
State v. Martinez, 2001 UT 12 (Utah Supreme Court, 2001) (prejudice and probability of different outcome due to counsel)
United States v. Jackson, 923 F.2d 1494 (11th Cir. 1991) (right to appear when corrections implicate legal analysis)
Connolly, 618 F.2d 553 (9th Cir. 1980) (correction of illegal sentence when no disputed facts)