343 P.3d 719
Utah Ct. App.2015Background
- In 2003 Theodore J. Samul pleaded guilty to attempted aggravated sexual assault (first-degree range listed) and attempted aggravated kidnapping (plea paperwork listed as first-degree, 3 years–life). He was sentenced to consecutive terms of 3 years–life each and restitution.
- Samul did not appeal. In 2012 he filed a pro se motion under Utah R. Crim. P. 22 and 11 and Utah Code §77-13-6 seeking correction of sentence, motion to withdraw guilty pleas, ineffective assistance claims, restitution reimbursement, and fees.
- The State agreed the attempted aggravated kidnapping sentence was illegal (should be second-degree: 1–15 years) and asked the court to correct it under rule 22(e).
- The trial court amended the kidnapping sentence nunc pro tunc (to 1–15 years) the same day it was raised; Samul objected that he was denied an opportunity to allocute regarding the correction and other pending claims.
- The trial court ruled the sentence correction was proper under rule 22(e) but dismissed Samul’s motion to withdraw his pleas as untimely and declined to adjudicate his restitution and fee claims; it did not resolve whether he had been advised of appeal rights under rule 22(c).
- On appeal the court considered (1) whether Samul was entitled to allocution before the sentence correction, (2) whether his plea-withdrawal motion was timely, and (3) whether the trial court erred by not addressing his rule 22(c) claim and other ancillary claims.
Issues
| Issue | State's Argument | Samul's Argument | Held |
|---|---|---|---|
| 1) Was Samul entitled to allocution before the court corrected an illegal sentence under rule 22(e)? | No — correction reduced the sentence, was a ministerial compliance with statute, and defendant had allocuted at original sentencing. | Yes — court should have afforded another chance to present mitigation that could affect concurrency. | Affirmed: No additional allocution required where correction reduced sentence, involved no new judicial decision-making, and defendant already had opportunity to allocute. |
| 2) Did the rule 22(e) correction restart the 30-day statutory window to move to withdraw guilty pleas? | No — rule 22(e) is limited to sentencing errors and does not reopen time to attack convictions; correction does not reset withdrawal window. | Yes — the September 21, 2012 memorandum correcting sentence made the order final and restarted the 30-day withdrawal period. | Affirmed: Correction did not restart the withdrawal period; Samul’s April 2012 plea-withdrawal motion was untimely and the court lacked jurisdiction. |
| 3) Could Samul challenge consecutive sentences after the sentence correction without being present? | Not necessary — correction was ministerial and unlikely to have changed court’s exercise of discretion on concurrency. | He should be allowed to defend against consecutive-imposition as in Milligan. | Affirmed: Unlike Milligan, the correction reduced the sentence and record showed the court would likely still order consecutive terms. No basis to remand on concurrency. |
| 4) Did the trial court err by not resolving Samul’s Rule 22(c) (appeal-rights advisement), restitution reimbursement, and fee claims? | Agreed the court should address rule 22(c) but argued restitution/fee claims are outside scope of rule 22(e). | Argued the court should rule on all raised claims, including reimbursement and fees. | Partial reversal/remand: Remand for evidentiary hearing on rule 22(c) (whether he was advised of appeal rights). No remand for restitution/fee claims because they fall outside rule 22(e). |
Key Cases Cited
- State v. Milligan, 287 P.3d 1 (Utah Ct. App. 2012) (ministerial correction of illegal sentence may not entitle defendant to re-allocution; remand limited where consecutive/concurrent decision could have changed)
- State v. Smith, 286 P.3d 314 (Utah Ct. App. 2012) (successful rule 22(e) correction does not reopen statutory window to withdraw a guilty plea)
- State v. Ostler, 31 P.3d 528 (Utah 2001) (timing for plea-withdrawal motion runs from final disposition of the district court)
- Manning v. State, 122 P.3d 628 (Utah 2005) (procedure and burden to reinstate appellate time where court failed to advise defendant of appeal rights)
- State v. Rodrigues, 218 P.3d 610 (Utah 2009) (right to allocution and that clerical corrections do not trigger renewed allocution)