293 P.3d 1103

Utah Ct. App.

2012

STATE of Utah, Plaintiff and Appellee, v. Charles Brandon PETERSON, Defendant and Appellant.

No. 20110682-CA

Court of Appeals of Utah.

Dec. 20, 2012.

2012 UT App 363

therefore may not be appropriately raised before this court on review. Nicol timely filed her appeal of the administrative law judge‘s decision, but she did not file a timely memorandum supporting her appeal. Thus, her balancing argument was not considered by the Board since the memorandum was not received until after the Board had considered her appeal.

¶7 Nicol filed the memorandum with her request for reconsideration, but the memorandum appears to be beyond the scope of review on reconsideration. A request for reconsideration may be made when there has been a change in conditions or if there was a mistake as to the facts. See Utah Admin. Code R994-508-401(2). A change of conditions may include a change in the law. See id. R994-508-401(2)(a). “A mistake as to facts is limited to material information which was the basis for the decision.” Id. R994-508-401(2)(b). A mistake of fact does not include an error in the application of the statute or rules. See id. Nicol does not assert a change in condition or a mistake of fact but rather challenges the Board‘s application of the law to the facts by arguing that the Board should have applied a balancing test to determine whether culpability was shown. Under the rule, that is beyond the scope of reconsideration. See id. Generally, issues not raised in the agency proceedings are considered waived and will not be considered by a court on review. Esquivel v. Labor Comm‘n, 2000 UT 66, ¶34, 7 P.3d 777.

¶8 Second, even if Nicol‘s argument can be considered preserved, the balancing test does not sway in her favor. She asserts that the Board should have considered her work record, length of employment, and the likelihood that the conduct would be repeated, and weighed those factors against the seriousness of the offense and the employer‘s interests. Here, Nicol had been employed for just over one year. Her work record was positive for the time she was there. However, this does not outweigh the seriousness of her conduct and the extent to which it jeopardizes the employer‘s interests.

¶9 Nicol intentionally violated a rule prohibiting manipulating one‘s own account, knowing that it was inappropriate and that she would be subject to discipline. She completed the transaction even after being told that doing so would be at her own risk. Based on her deliberate choice to put her own interests above bank policy, Nicol called into question her reliability in her position, which, by its nature, permitted access to accounts and funds. The bank had a legitimate interest in controlling access to accounts, and Nicol‘s failure to adhere to policy jeopardized that interest. In addition, because it was a deliberate choice, this does not appear to be a “good faith error in judgment.” Rather, Nicol reversed the fees while fully aware of the inappropriateness of her actions. Accordingly, the Board‘s determination that Nicol‘s conduct was “so serious that continuing the employment relationship would jeopardize the employer‘s rightful interest” is rational and reasonable, and culpability is established.

¶10 As a result, we decline to disturb the Board‘s decision.

Debra M. Nelson and Kerri S. Priano, Salt Lake City, for Appellant.

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee.

Before Judges ORME, McHUGH, and CHRISTIANSEN.

MEMORANDUM DECISION

McHUGH, Judge:

¶1 Charles Brandon Peterson challenges his sentence of 360 days in jail for one count of possession or use of a controlled substance, a third degree felony. See Utah Code Ann. § 58-37-8(2)(a)(i) (LexisNexis 2012).¹ We dismiss the appeal as moot.

¶2 Peterson appeals his sentence on the basis that the trial court abused its discretion in sentencing him to jail because it did so without a presentence report and did not rely on reasonably reliable and relevant information. In sentencing Peterson on June 27, 2011, to 360 days in jail, the trial court gave him credit for time served and invited Peterson to petition the court for early release if he successfully completed a drug treatment program while incarcerated. The State argues that Peterson‘s appeal is moot because he was released from jail on December 24, 2011, and his case is now closed. Thus, the State contends that the requested relief of resentencing cannot affect Peterson‘s rights.

¶3 We exercised our discretion to treat the State‘s argument as a suggestion of mootness and invited a response from Peterson. See Utah R.App. P. 37(a) (providing that each party has a duty “to inform the court of any circumstances which have transpired subsequent to the filing of the appeal or other proceeding which render moot one or more of the issues raised“). Peterson admits that he “is no longer incarcerated in relation to this case and the trial court ordered the case to be closed upon completion of his jail sentence.” Nevertheless, Peterson states that he “wishes to exercise his right to appeal” and asks us to dismiss the suggestion of mootness. However, Peterson advances no argument that the appeal is not moot, and he does not have a right to an advisory opinion from this court.²

¶4 “‘Generally, we will not decide a case that is moot.‘” In re Adoption of L.O., 2012 UT 23, ¶18, 282 P.3d 977 (quoting In re C.D., 2010 UT 66, ¶11, 245 P.3d 724). An issue becomes moot while an appeal is pending if “‘circumstances change so that the controversy is eliminated, thereby rendering the relief requested impossible or of no legal effect.‘” Id. (quoting Richards v. Baum, 914 P.2d 719, 720 (Utah 1996)). In other words, “[w]here the issues that were before the trial court no longer exist, the appellate court will not review the case.” Id. (quoting Richards, 914 P.2d at 720).

¶5 Here, Peterson does not challenge his conviction, so the collateral consequences attendant to an unlawful conviction are not at issue. See State v. Martinez, 925 P.2d 176, 177 (Utah Ct.App. 1996) (” [A] criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed ....” (alteration in original) (quoting Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968))). He instead limits his appeal to the legality of his sentence. The sentencing order states, “Case is closed upon completion of jail sentence,” and Peterson admits that his jail sentence has been completed and his case closed. Thus, the relief he requests—resentencing—is “impossible or of no legal effect.” See In re Adoption of L.O., 2012 UT 23, ¶18, 282 P.3d 977. Accordingly, the issues raised on appeal are moot. See State v. Davis, 721 P.2d 894, 895 (Utah 1986) (per curiam) (“However questionable the procedures employed in entering the formal order of sentence, the matter is now moot since defendant has served his sentence and has received a formal termination of probation.“).

¶6 Dismissed.

¶7 WE CONCUR: GREGORY K. ORME and MICHELE M. CHRISTIANSEN, Judges.

Notes

Because a subsequent amendment did not substantively change the relevant provision of the Utah Code, we cite the current version for the convenience of the reader. Compare Utah Code Ann. § 58-37-8(2)(a)(i) (LexisNexis Supp. 2010), with id. (2012).

Nor does Peterson argue that, under the facts of this case, we can consider his appeal under an exception to the mootness doctrine. See, e.g., State v. Fife, 911 P.2d 989, 991 (Utah Ct.App. 1996) (discussing the public policy exception to the mootness doctrine).

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