Case Information
*1 231 _________________________________________________________
T HE U TAH C OURT OF A PPEALS
S TATE OF U TAH , Plaintiff Appellee, v.
S HAYNE E. T ODD , Defendant Appellant. Memorandum Decision No.
Filed September
Third District, Salt Lake Department Honorable Randall N. Skanchy
No.
Debra M. Nelson, Attorney for Appellant
John E. Swallow Laura B. Dupaix, Attorneys Appellee
J UDGE G REGORY K. O RME authored Memorandum Decision, J UDGES J AMES Z. D AVIS C AROLYN B. M C H UGH
concurred.
ORME, Judge:
¶1 Shayne Todd appeals district court’s denial motion to correct 22(e) Criminal Procedure. affirm. jury convicted Todd murder. As result
same episode, he pled guilty to purchasing possessing dangerous weapon. He subsequently sentenced to five years life prison murder conviction, fifteen years prison dangerous weapon conviction. court ordered sentences run consecutively. attempted challenge his
State v. Todd
convictions through both direct appeal and postconviction review, but he was unsuccessful.
¶3 sentencing report prepared by Adult Probation and Parole following his convictions estimated that under Sentence and Release Guidelines (the Guidelines), Todd would serve total twenty ‐ six ‐ ‐ ‐ half years in prison. However, his parole hearing in 2001 immediately following sentencing, Todd informed that he would be granted another parole hearing until 2029, thus virtually guaranteeing he would be incarcerated least twenty ‐ eight years. Nine years later, issued an order entitled “Special Attention Review,” determined no change be made to sentence his 2029 hearing date would remain place. order listed length Todd’s sentence murder as “5–100 years.” Todd filed pro se motion under 22(e) Utah Criminal Procedure, arguing had altered sentence sentence was therefore illegal. district court denied motion. appeals. We review legality sentence correctness. State Thorkelson UT App 9, ¶ 9, 854. ¶4 Rule 22(e) allows “correct an illegal or sentence imposed manner, time.” R. Crim. P. 22(e). Because no time bar rule, use “narrowly circumscribed,” UT 51, ¶ 5, P.3d (per curiam), cannot be as “a veiled attempt to challenge underlying conviction challenging sentence,” Candedo, UT ¶ 9, An “illegal sentence generally occurs two situations: (1) where sentencing court no jurisdiction (2) where sentence beyond authorized statutory range.” Thorkelson, App 15. first argues characterization his modified sentence statutory range was illegal. He modification violated his rights. agree with district court’s assessment
State listing Todd’s sentence as “5–100 years” his murder conviction “is merely the numerical designation the Board of Pardons to reflect” his five ‐ year ‐ to ‐ life sentence. Supreme Court twice recognized the difficulty life sentences present when real ‐ world numerical calculations of prisoner’s sentence need to be made. Schreuder , 712 P.2d 277 (Utah (“Pointing out the obvious difficulty of carrying out a sentence ‘life minus thirty months,’ Court referred matter to Board Pardons . . . . A similar reference is appropriate here.”) (citing Jaramillo , P.2d 395 1971)); Jaramillo , P.2d at (“No elaboration is necessary to make apparent difficulties be encountered in trying to determine carry out maximum sentence life imprisonment, minus months.”). Indeed, courts this state have deferred to Board when it comes to computing actual numerical terms sentence to be served. See Schreuder , P.2d 277; Jaramillo , (“The answer to perplexity to be found practical common sense. Both prison authorities Board have available to them total record of defendant.”). ¶6 We see no error use its numerical computation when calculating Todd’s eligibility on his life sentence. In our view, such designation appears be “practical common sense.” Jaramillo record is clear Board not altering modifying Todd’s sentence. fact, order setting forth numerical computation, Board itself stated “no change” had been made Todd’s custodial status. Because we determine did alter sentence, no illegal sentence for correct no concerns us address. because exceeded authority when fixed definite term within indeterminate thus allegedly violating multiple provisions Constitution. Utah Supreme Court has already considered rejected similar arguments. 2002 *4 UT 51, ¶¶ 2–3; Padilla Board , P.2d 664, (Utah 1997). Padilla , prisoner challenged the Board’s power to make parole determinations, claiming violated the separation of powers doctrine found in article V, section the Utah Constitution. P.2d at 668. The Court held that
the fact that the Board has been given power [to fix parole date] does not mean that the Board exercises “sentencing” power. Rather, the Board merely exercises constitutional authority to commute terminate indeterminate sentence that, but the discretion, run until maximum period is reached. Id. 669. The Court determined that “while courts have power been given power to pardon parole. These are two separate distinct powers, neither which invades province other.” Id. Court came same conclusion another case prisoner “attack[ed] constitutionality Utah’s indeterminate sentencing scheme.” , ¶ 2. Telford court, relying on Padilla , determined was “no basis [the Court] depart from [its] established precedent” indeterminate sentencing was indeed constitutional. Id. therefore conclude “the exercise parole power setting determinate parole dates does not violate . . . Constitution” not on those grounds. Padilla 669. Finally, right Constitution violated when set
date anticipated by Guidelines. argument doubtful, given Guidelines are, after all, only guidelines. Preece House (“The state sentencing guidelines board pardons do have force effect law. Consequently, ‘expectation release’ derived from guidelines best tenuous.”). But in *5 event this issue properly before because we are limited appeal considering issues related only legality sentence. Candedo, 9, Renn 680, (determining 65B Civil Procedure proper avenue challenging postponement hearing time frame recommended Guidelines). decline address it.
¶9 Affirmed.