Case Information
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T HE U TAH C OURT OF A PPEALS
S TATE OF U TAH , Plaintiff and Appellee, v.
T HEODORE J AMES S AMUL , Defendant and Appellant.
Opinion No. 20121008-CA Filed January 29, 2015 Third District Court, Salt Lake Department The Honorable Judith S.H. Atherton No. 021913406 John B. Plimpton and Kerri S. Priano, Attorneys for Appellant
Sean D. Reyes and Kris C. Leonard, Attorneys for Appellee S ENIOR J UDGE R USSELL W. B ENCH authored this Opinion, in which J UDGES G REGORY K. O RME and J. F REDERIC V OROS J R . concurred.
BENCH, Senior Judge: Theodore James Samul appeals from an amended sentence
and from the dismissal of his motion to withdraw his 2003 guilty pleas. We affirm in part and reverse in part and remand. 1. The Honorable Russell W. Bench, Senior Judge, sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
BACKGROUND Samul was charged with aggravated sexual assault and
aggravated kidnapping based on allegations that he choked, bit, raped, and threatened to kill his sister after she asked him to drive her home from a family party. On March 24, 2003, he pleaded guilty to one count of attempted aggravated sexual assault and one count of attempted aggravated kidnapping. The written statement in support of the guilty pleas listed both crimes as first degree felonies, each carrying a prison term of three years to life. At a sentencing hearing on May 12, 2003, the prosecutor and defense counsel addressed the court. After defense counsel had highlighted facts in mitigation and argued in favor of concurrent sentences, the trial court asked Samul whether he had anything to add. Samul responded, “No. I think it’s all been said.” The trial court then stated that because Samul’s crimes were “disturbing in a number of different ways,” the court would “keep [him] in prison as long as [it] possibly [could] because . . . it’s the only safe way to sentence [him] for [the] victim and for the community at large.” The trial court sentenced Samul to two consecutive terms of three years to life in prison. In addition, the trial court ordered Samul to pay $2,094.68 in restitution. Samul did not appeal his sentences. ¶3 Nine years later, in 2012, Samul filed a pro se motion to correct the sentences pursuant to rules 22 and 11 of the Utah Rules of Criminal Procedure and section 77-13-6 of the Utah Code. In the motion, Samul asserted that the trial court imposed his sentences in violation of rule 22(c) of the Utah Rules of Criminal Procedure by failing to advise Samul of his right to appeal and the time period for doing so. Samul also asserted that the trial court violated rule 11(e) of the Utah Rules of Criminal Procedure by accepting Samul’s guilty pleas without informing him of various rights. In addition, Samul moved to withdraw his guilty pleas and raised claims of ineffective assistance of counsel. Samul requested that the court set aside his sentences and resentence him. He also requested an evidentiary hearing on his motions, reimbursement of restitution, and merger of his convictions. In its response to Samul’s motion, the State argued that the
motion to withdraw the guilty pleas was untimely and asked the court to dismiss it. However, the State urged the court to amend Samul’s sentence on his attempted aggravated kidnapping conviction under rule 22(e) of the Utah Rules of Criminal Procedure. The State explained that the crime of attempted aggravated kidnapping is a second degree felony and that the trial court had sentenced Samul to three years to life, which, under the relevant statute, is a punishment reserved for attempt crimes that are first degree felonies. See Utah Code Ann. § 76-4-102(1) (LexisNexis Supp. 2014). The State therefore agreed that Samul’s [2]
sentence for attempted aggravated kidnapping was an illegal sentence that should be corrected to a term of one to fifteen years. See id. § 76-3-203(2) (LexisNexis 2012) (providing that a person convicted of a second degree felony may be sentenced to a term of not less than one year or more than fifteen years in prison). Thereafter, Samul filed a reply, a request for an award of all legal expenses and fees incurred in filing his pro se motion, and a request to submit for decision.
¶5 At a hearing on July 13, 2012, the prosecutor acknowledged that her office had encouraged the court to impose the original sentence on the attempted aggravated kidnapping conviction without having researched the appropriate sentence. The trial judge responded, “[W]e all should have known . . . that the sentence and the level of offense for the attempted aggravated kidnapping was in error.” Samul’s counsel addressed the court [3] and explained that Samul had “raised a myriad of issues . . . related to deprivation of rights” that he wanted to address. When the court asked whether counsel had anything further regarding the resentencing, defense counsel answered, “No . . . [but] we would 2. Where recent amendments to the Utah Code do not affect our analysis, we cite the current version of the Utah Code for the reader’s convenience.
3. Samul filed his motion pro se but was later appointed counsel. ask that nothing be done today, including the resentencing.” The trial judge then stated that she was “anxious to go forward with the resentencing” and that she “want[ed] to correct this error as soon as possible.” The judge explained that the Board of Pardons “certainly will take a look at the amended sentence,” which “can make a differen[ce]” because “one to 15 years is substantially different from a three to life” sentence. Defense counsel again asked the judge to wait a couple of weeks to act.
¶6 After initially agreeing to postpone correcting the error, the trial court signed an amended sentence later that day. The court’s order adjusted Samul’s sentence on the attempted aggravated kidnapping conviction to a prison term of one to fifteen years. In all other respects, the amended sentence remained the same as the May 2003 sentence, with a three-years-to-life sentence on the attempted aggravated sexual assault conviction and an order that the sentences run consecutively.
¶7 At the rescheduled sentencing review hearing on August 31, 2012, defense counsel asked the court to set the matter over so that defense counsel could confer with the prosecutor regarding the issues of ineffective assistance of counsel, merger, and plea withdrawal. The following discussion of the amended sentence ensued:
THE COURT: Let’s see. So I amended the sentence, correct?
DEFENDANT SAMUL: I objected to the amended sentence. I objected to all of that. You said that you were going to—you weren’t going to rule on any matter until you could hear all the issues because I had so many issues that needed to be addressed. THE COURT: Uh-huh (affirmative).
DEFENDANT SAMUL: And you said you’d set the matter over, and it was supposed to be done [two weeks later], and it got continued until today. THE COURT: I amended the sentence effect[ive] nunc pro tunc to May 12th of 2003, which doesn’t—so it has been amended to reflect the correct sentence, which . . . I did to benefit Mr. Samul because he’s been in custody for a long time. So the Board now has the correct sentence. . . .
. . . .
THE COURT: [There was an] error in the plea affidavit that designated [attempted aggravated kidnapping] as a three to life . . . first degree [felony] . . . as opposed to a second degree, one to fifteen. Clearly, that’s of concern. I don’t know what the remedy is. I mean, the immediate remedy is to correct it, which I did nunc pro tunc, which changes his position before the Board of Pardons. The other remedies you’ll just have to educate me on. All right. . . . .
DEFENDANT SAMUL: I’m unclear as to what happened because at the last hearing, . . . my understanding on leaving the courtroom was that nothing was going to happen until I came back the next time . . . . And now you’re saying that you corrected the sentence or something already? THE COURT: I corrected the sentence to be consistent with what you pled to. Let me . . . make sure you understand what this means and what nunc pro tunc means. I amended this effective May 12th of 2003. This changes—
DEFENDANT SAMUL: As it was then?
THE COURT:—considerably your position before the Board of Pardons. And the soonest I can do that I did, because it’s to your benefit that I did that—clearly to your benefit. It’s . . . a different looking case, and so the Board of Pardons, I felt, needed to have that information as soon as possible. DEFENDANT SAMUL: Well, that’s contrary to my understanding though because— THE COURT: Okay. Well, that— DEFENDANT SAMUL: —I have other issues. THE COURT: It is what it is now.
DEFENDANT SAMUL: Right, but I have other issues.
THE COURT: You have—that’s what your attorney is going to talk to you about.
[DEFENSE COUNSEL]: Let me talk to you in the holding cell.
THE COURT: That is fine. I think we’re done. [DEFENSE COUNSEL]: Thank you, Your Honor.
The trial court’s minute entry for the hearing noted that it had “previously amended the sentence nunc pro tunc” and that it would take no further action that day.
¶8 On September 21, 2012, the trial court issued a written memorandum decision addressing the issues Samul had submitted for decision. The trial court first explained the illegal sentence on Samul’s attempted aggravated kidnapping conviction. The court indicated that Samul’s sentence “is corrected to reflect the actual legally appropriate sentence for Attempted Aggravated Kidnapping,” pursuant to rule 22(e) of the Utah Rules of Criminal Procedure. The trial court therefore “[ordered] that [Samul] serve an indeterminate term at the Utah State Prison of 1 to 15 years on Count II, to run consecutively to Count I.” The court then turned to the remaining issues, ruling that it lacked jurisdiction to hear those challenges. The court explained that the “issue of ineffective assistance of counsel is an appellate issue or subject to a civil action in this court.” The court then determined that the motions to set aside the convictions and to withdraw the guilty pleas were not timely and accordingly dismissed them. Samul appeals. [4]
ISSUES AND STANDARDS OF REVIEW Samul first argues that the trial court violated rule 22(a) of
the Utah Rules of Criminal Procedure and his right to allocution
and due process when it corrected his illegal sentence. “The denial
of the right to allocution is an issue of law that we review for
correctness.”
West Valley City v. Walljasper
,
¶10 Next, Samul argues that the trial court erred in denying his motion to withdraw his guilty pleas. “In determining whether a motion to withdraw a guilty plea is timely and whether the trial court has jurisdiction to rule on that motion, we give no deference to the trial court’s rulings but review them for correctness, as 4. In its brief, the State challenged this court’s jurisdiction, arguing that Samul’s notice of appeal was not timely filed. We ordered supplemental briefing on this jurisdictional issue after oral argument. In its supplemental briefing, the State withdrew its objection to this court’s jurisdiction over the appeal.
questions of law.”
State v. Smith
,
¶11 Finally, Samul argues that the trial court erred in failing to
rule on his claim that the trial court violated rule 22(c) of the Utah
Rules of Criminal Procedure and on his requests for restitution
reimbursement and legal fees. “Procedural issues present questions
of law, which we review for correctness.”
State v. Kragh
, 2011 UT
App 108, ¶ 9,
ANALYSIS
I. Allocution
¶12
Samul contends that the trial court erred in correcting his
sentence without affording him another opportunity to make a
statement and introduce mitigating evidence. Samul argues that
before amending his sentence, the trial court should have allowed
him to present new information that may have resulted in
concurrent sentences. The State counters that Samul was not
entitled to allocute where the court corrected an illegal sentence to
bring the sentence into compliance with the statutory mandate,
where the correction reduced the sentence, and where Samul
appeared and defended at the original sentencing hearing and had
the opportunity for allocution. We agree with the State.
“In Utah, allocution is both a constitutional and statutory
right.”
State v. Udy
,
before a trial court corrects an illegal sentence under rule 22(e) of the Utah Rules of Criminal Procedure. Rule 22(e) states, “The court may correct an illegal sentence, or a sentence imposed in an illegal manner, at any time.” Utah R. Crim. P. 22(e).
¶15 This court addressed whether a defendant has the right to
appear and defend against a corrected sentence in
State v. Milligan
,
¶16 On appeal, Milligan argued that the trial court plainly erred
by amending his sentence without providing him an opportunity
to appear before the court and defend against the amendment, and
that his trial counsel performed ineffectively by failing to object to
the trial court’s error.
Id.
¶¶ 6, 10. As this court explained, “the trial
court’s inadvertent imposition of a sentence shorter than the
statutory minimum . . . was not the result of the trial court’s
reasoning and decision making, but rather resulted from the trial
court’s misunderstanding, arising in part from counsel’s error, of
the correct minimum sentence for first-degree murder.”
Id.
¶ 16
(citations and internal quotation marks omitted). “As soon as the
court was advised of the illegality of [Milligan]’s sentence, by
reason of its failure to follow the [statute], it was its duty to comply
with the statute.”
Id.
(alterations in original) (citation and internal
quotation marks omitted). This court therefore held that “because
Milligan had an opportunity to appear and defend at the
sentencing hearing and the amendment of the length of his
sentence did not involve any judicial reasoning or decision
making,” he was not entitled to appear and defend against the
increase in the length of his sentence for murder.
Id.
¶¶ 16, 18;
cf.
State v. Rodrigues
,
¶17 Nevertheless, this court agreed with Milligan that his
counsel was constitutionally ineffective for not objecting to the trial
court’s decision to amend Milligan’s sentence in his absence.
Milligan
,
¶18 Under the facts of the case before us, we are not persuaded
that Samul was entitled to appear and defend before the trial court
amended his sentence. We reach this conclusion for several
reasons. First, it is significant that the amended sentence resulted
in a reduction of Samul’s sentence.
See
Fed. R. Crim. P. 43(b)
(providing that a defendant need not be present when the
proceeding involves the correction or reduction of sentence);
see
also Milligan
,
sentence for attempted aggravated kidnapping did not involve any judicial reasoning or decision making. See Milligan , 2012 UT App 47, ¶¶ 16, 18. Similar to Milligan , the trial court inadvertently imposed a sentence outside of the statutory scheme because of its “misunderstanding, arising in part from counsel’s error, of the correct minimum sentence for” attempted aggravated kidnapping. See id. ¶ 16. The trial court’s amendment of the attempted aggravated kidnapping sentence was not the result of the trial court’s reasoning and decision making, because the trial court had a “duty to comply with the statute” once it was advised of the illegality of the sentence. See id. ¶¶ 16, 18 (citation and internal quotation marks omitted). Samul’s sentence could therefore be corrected “without any legal analysis or further exercise of judicial discretion.” See id. ¶ 14.
¶20 Third, Samul had already been given “an opportunity to
make a statement and to present any information in mitigation of
punishment, or to show any legal cause why sentence should not
be imposed.”
See
Utah R. Crim. P. 22(a). At the 2003 sentencing
hearing, Samul’s counsel urged the court to consider mitigating
factors, including Samul’s claimed remorse for his conduct, his
efforts at rehabilitation, and his character and work ethic. After
defense counsel and the prosecutor finished their statements, the
trial court gave Samul an opportunity to speak before sentencing,
thereby satisfying his right to allocute. Therefore Samul had
“already been afforded an opportunity to appear and defend in the
original sentencing hearing.”
See State v. Milligan
,
(continued...) See Milligan , 2012 UT App 47, ¶¶ 17–18. Samul has not met his burden. In imposing the original sentence, the trial court explained that Samul’s conduct was “disturbing in a number of different ways” and noted the violence Samul had inflicted on the victim was “extreme, psych[ologically and] physically.” Based on these facts, the trial court expressed its intent to “keep [Samul] in prison as long as [it] possibly can.” In light of the trial court’s comments in imposing the original sentence, we are not persuaded that the trial court might have imposed concurrent sentences had it known that the statutory sentence for attempted aggravated kidnapping was shorter than the three years to life that it originally imposed. ¶22 In summary, Samul was not entitled to appear and defend against the amended sentence, because the amended sentence was a reduction, the amendment of the length of his sentence did not involve any judicial reasoning or decision making, and Samul appeared, defended, and allocuted at the original sentencing hearing. Furthermore, because we are not persuaded that Samul could have convinced the trial court to impose concurrent sentences, the trial court did not err in entering the amended sentence.
II. Motion to Withdraw Guilty Pleas Samul next contends that the trial court erred in ruling that
his motion to withdraw his guilty pleas was untimely. Samul 5. (...continued)
ineffective assistance of counsel, see id. ¶ 17. Samul has not raised an ineffective assistance of counsel claim on appeal. Milligan is also distinguishable on the ground that this court determined that Milligan’s arguments may have convinced the trial court to impose concurrent sentences because the trial court erroneously entered a sentence shorter than the mandatory minimum sentence. Id. In contrast, the trial court here erroneously entered a sentence longer than the statutory sentence for one of Samul’s convictions. See supra ¶ 18.
argues that because the September 21, 2012 memorandum decision was the final sentencing order, his motion to withdraw his pleas, which was filed in April 2012, was timely. In contrast, the State argues that the correction of Samul’s illegal sentence did not restart the time for withdrawing Samul’s pleas and that his motion to withdraw was therefore untimely.
¶24 When Samul entered his pleas in 2003, the plea withdrawal
statute allowed a defendant to file a motion to withdraw a guilty
plea “within 30 days after the entry of the plea.”
See
Utah Code
Ann. § 77-13-6(2)(b) (Lexis 1999). Our supreme court interpreted
this statute to mean that the thirty-day limit for filing a motion to
withdraw a guilty plea begins to “run[] from the date of final
disposition of the case at the district court.”
State v. Ostler
, 2001
UT 68, ¶¶ 11, 13,
6. By the time Samul was sentenced, the plea withdrawal statute
had been amended to require a defendant to file a motion to
withdraw a guilty plea only “before sentence is announced.” Utah
Code Ann. § 77-13-6(2)(b) (LexisNexis Supp. 2003). Samul asserts
that the earlier version of the plea withdrawal statute applies in his
case. The State does not challenge this assertion but claims that the
various amendments to the plea withdrawal statute are irrelevant
in this case. For purposes of our analysis, we assume without
deciding that Samul is correct that the earlier version of the plea
withdrawal statute applies.
See State v. Abeyta
,
¶26 Rule 22(e) allows the court to “correct an illegal sentence, or
a sentence imposed in an illegal manner, at any time.” Utah R.
Crim. P. 22(e). “A request to correct an illegal sentence under rule
22(e) presupposes a valid conviction. Therefore, issues concerning
the validity of a conviction are not cognizable under rule 22(e).”
State v. Brooks
,
rule 22(e) restarts the time period for moving to withdraw a guilty
plea is foreclosed by this court’s decision in
State v. Smith
, 2012 UT
App 247,
two guilty pleas. The trial court’s correction under rule 22(e) did
not amend the sentence with respect to Samul’s plea to attempted
aggravated sexual assault. Samul’s motion to withdraw that plea,
filed nine years after the trial court entered his sentence for
attempted aggravated sexual assault, was clearly untimely under
the plea withdrawal statute.
See
Utah Code Ann. § 77-13-6(2)(b)
(Lexis 1999);
State v. Ostler
, 2001 UT 68, ¶¶ 11, 13, 31 P.3d 528.
Likewise, Samul’s motion to withdraw his plea on the attempted
aggravated kidnapping count was untimely filed. Contrary to
Samul’s claim, the trial court’s correction under rule 22(e) of the
sentence on that count did not give Samul “the opportunity to
move to withdraw his guilty plea many years after the thirty-day
deadline expired.”
See Smith
,
III. Remaining Claims That the Trial Court Did Not Reach ¶30 Last, Samul argues that the trial court erred in failing to rule on all of the claims he presented for adjudication with his rule 22(e) motion, including his claim for restitution reimbursement, his claim for legal fees, and his claim that the trial court violated rule 22(c) of the Utah Rules of Criminal Procedure. Samul further contends that because his sentence was imposed in violation of rule 22(c), his sentences for both counts were imposed in an illegal manner . The State opposes Samul’s arguments regarding restitution and legal fees, arguing that those claims are outside the scope of rule 22(e). The State, however, agrees with Samul that the trial court erred in failing to address his rule 22(c) claim and recognizes that we should remand the case to the trial court to evaluate the claim and assess a remedy if necessary.
¶31 Rule 22(c) states that “[f]ollowing imposition of sentence, the
court shall advise the defendant of defendant’s right to appeal and
the time within which any appeal shall be filed.” Utah R. Crim. P.
22(c)(1). The court’s compliance with rule 22(c) “is the most reliable
way to ensure that defendants are made aware of the important
constitutional right to appeal a conviction or sentence.”
State v.
Kabor
,
¶32 Under rule 4(f) of the Utah Rules of Appellate Procedure
and the steps outlined in
Manning v. State
,
¶33
Samul’s pro se rule 22(e) motion to correct illegal sentences
raised a claim under rule 22(c), arguing that the trial court failed to
advise him of his right to appeal his sentence and the time period
to file a notice of appeal. The trial court should have adjudicated
the rule 22(c) claim that Samul raised in his rule 22(e) motion to
correct illegal sentences. The parties agree that the transcript of the
2003 sentencing hearing does not include an advisement from the
court regarding Samul’s “right to appeal and the time within which
any appeal shall be filed.”
See
Utah R. Crim. P. 22(c)(1). The written
statement in support of the guilty pleas does not indicate that
Samul was otherwise informed of his right to appeal. On the
contrary, Samul was given to understand that “if [he] were
convicted by a jury or judge, [he] would have the right to appeal
[his] conviction and sentence” and that he “underst[ood] that [he
was] giving up [his] right to appeal [his] conviction if [he] plead[ed]
guilty.” Additionally, the transcript of the change of plea hearing
is not in the record on appeal. The record in this case therefore does
not contain “evidence that [Samul] was actually made aware of his
right to appeal.”
See Kabor
,
CONCLUSION
¶35 The trial court did not err in correcting Samul’s illegal sentence for attempted aggravated kidnapping without first affording him an opportunity to appear and defend against the correction. Samul was present and had the opportunity to speak at the original sentencing hearing, and the trial court’s amended sentence corrected Samul’s sentence to the maximum allowed by law and resulted in a reduction of his overall sentence. Under these circumstances, Samul was not entitled to allocute again when the trial court corrected his illegal sentence. Furthermore, because the correction did not restart the time period for filing a motion to withdraw, the trial court correctly dismissed Samul’s motion to withdraw his guilty pleas for lack of jurisdiction. However, the trial court erred in failing to adjudicate Samul’s claim that the trial court neglected to inform him of his right to appeal and of the time period in which to do so. We therefore remand for the trial court to hold an evidentiary hearing and resolve this claim. Accordingly, we affirm, except for the limited remand for the trial court to consider whether Samul was adequately informed of his appeal rights.