State Of Utah v. Candedo

• Decision Date: 14 May 2010
• Docket Number: No. 20080183.,20080183.
• Citation: 2010 UT 32,232 P.3d 1008
• Parties: STATE of Utah, Plaintiff and Respondent,v.Francisco A. CANDEDO, Defendant and Petitioner.
• Court: Utah Supreme Court

232 P.3d 1008

2010 UT 32

STATE of Utah, Plaintiff and Respondent,v.Francisco A. CANDEDO, Defendant and Petitioner.

No. 20080183.

Supreme Court of Utah.

May 14, 2010.

COPYRIGHT MATERIAL OMITTED

Mark L. Shurtleff, Att'y Gen., Kenneth A. Bronston, Asst. Att'y Gen., Salt Lake City, for plaintiff.

Lori J. Seppi, Salt Lake City, for defendant.

On Certiorari to the Utah Court of Appeals

PARRISH, Justice:

INTRODUCTION

¶ 1 Francisco Candedo was placed on nine years of probation after pleading guilty to three felonies arising from his participation in a fraudulent investment scheme. Candedo did not object to the term of probation at sentencing. Instead, on direct appeal to the court of appeals, he challenged the legality of his probation sentence under rule 22(e) of the Utah Rules of Criminal Procedure or, alternatively, under the doctrine of exceptional circumstances. Candedo argued that his nine-year probation sentence, authorized under Utah Code section 77-18-1(10)(a)(i), violated his substantive due process rights. The court of appeals affirmed his sentence without reaching the merits by finding that his claim failed to meet the requirements of either rule 22(e) or the doctrine of exceptional circumstances.

¶ 2 On certiorari, Candedo argues that (1) the court of appeals erred in holding that his due process arguments could not be raised under either rule 22(e) or the doctrine of exceptional circumstances, and (2) the imposition of a nine-year probation term violates his right to due process. We hold that the court of appeals erred in failing to reach the merits of Candedo's constitutional claim under rule 22(e). But we nevertheless hold that Candedo's probation sentence does not violate his substantive due process rights and is therefore constitutional. Because we reach the merits of Candedo's claim under rule 22(e), we need not address the applicability of the exceptional circumstances doctrine.

BACKGROUND

¶ 3 Francisco Candedo and others operated a fraudulent pyramid investment scheme that defrauded 146 Utah victims. The victims, including many elderly individuals, lost their retirement funds, their homes, their credit ratings, and their jobs. The Utah Attorney General's Office computed restitution for the victims at $3,373,060.

¶ 4 In 2005, Candedo pled guilty to three felonies: one count of securities fraud, a second-degree felony; one count of sales by an unlicensed broker-dealer or agent, a third-degree felony; and, one count of employing an unlicensed broker-dealer or agent, a third-degree felony. The district court sentenced Candedo to concurrent terms of one-to-fifteen years for the second-degree felony and zero-to-five years for each third-degree felony. Although the presentence report recommended incarceration and restitution, the court suspended Candedo's prison sentence, imposed 108 months, or nine years, of probation and ordered restitution in the amount of $3,373,060.¹ The sentencing court indicated that it ordered the lengthy probation term specifically because of the amount of restitution Candedo owed.

¶ 5 Candedo challenged the legality of his probation term on direct appeal to the court of appeals, arguing that his nine-year probation term ordered pursuant to Utah's probation statute violates substantive due process under the Utah and United States Constitutions. Because Candedo conceded that his due process claim was not preserved in the district court, he argued that the court of appeals could reach the merits of his claim under either rule 22(e) of the Utah Rules of Criminal Procedure or the doctrine of exceptional circumstances.

¶ 6 The court of appeals held that Candedo's claim did not meet the requirements of rule 22(e) or the exceptional circumstances doctrine. See State v. Candedo, 2008 UT App 4, ¶ 10, 176 P.3d 459. Candedo filed a petition for certiorari, which we granted. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(a) (2008).

STANDARD OF REVIEW

¶ 7 “On certiorari, we review the decision of the court of appeals, not the trial court.” State v. Billsie, 2006 UT 13, ¶ 6, 131 P.3d 239. Procedural and constitutional questions present questions of law that we review for correctness without deference to the lower court's ruling. Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177.

ANALYSIS

I. RULE 22(e) ALLOWS U.S. TO REACH THE MERITS OF CANDEDO'S CONSTITUTIONAL CLAIM

¶ 8 Candedo argues that the court of appeals should have reached the merits of his constitutional claim under rule 22(e) of the Utah Rules of Criminal Procedure. We agree.

¶ 9 Under rule 22(e), a court “may correct an illegal sentence, or a sentence imposed in an illegal manner, at any time.” Utah R.Crim. P. 22(e). Rule 22(e) applies to sentences that are manifestly or patently illegal. See State v. Telford, 2002 UT 51, ¶ 5, 48 P.3d 228; State v. Brooks, 908 P.2d 856, 860 (Utah 1995). The “sweeping” language of rule 22(e) allows an appellate court to “vacate the illegal sentence without first remanding the case to the trial court, even if the matter was never raised before.” Brooks, 908 P.2d at 860. The preservation rule does not apply “because an illegal sentence is void and, like issues of jurisdiction, [may be raised] at any time. For this reason, rule 22(e) claims must be narrowly circumscribed to prevent abuse.” Telford, 2002 UT 51, ¶ 5, 48 P.3d 228 (internal quotation marks and citations omitted) (alteration in original). Additionally, rule 22(e) “presupposes a valid conviction” and therefore cannot be used as a veiled attempt to challenge the underlying conviction by challenging the sentence.² Brooks, 908 P.2d at 860.

¶ 10 Based on language in Telford, the court of appeals held that Candedo's due process claim did not fall within the ambit of rule 22(e). State v. Candedo, 2008 UT App 4, ¶ 6, 176 P.3d 459. Specifically, the court of appeals determined that an illegal sentence can occur only “where either ‘the sentencing court has no jurisdiction, or ... the sentence is beyond the authorized statutory range.’ ” Id. (quoting State v. Thorkelson, 2004 UT App 9, ¶ 15, 84 P.3d 854)(alteration in original). We disagree.

¶ 11 The court of appeals' definition of illegal sentence entirely precludes allegations of constitutional violations as a basis for challenging a sentence. This narrow definition is contrary to our holding in Telford, where we used rule 22(e) to reach the petitioner's claim that his sentence was unconstitutional. Although we rejected Telford's separation of powers and Eighth Amendment challenges to his sentence, we reached and considered the merits of those challenges under rule 22(e). Telford, 2002 UT 51, ¶¶ 3-4, 48 P.3d 228. We refused to consider Telford's constitutional arguments only where he failed to raise an “articulable basis for attacking his sentence.” Id. ¶ 6. Because an illegal sentence under rule 22(e) includes constitutional violations, an appellate court must allow a petitioner to raise constitutional, as well as jurisdictional and statutory challenges, to his or her sentence under rule 22(e).

¶ 12 This conclusion is consistent with our recent decision in State v. Yazzie, where we adopted the following definition of illegal sentence within the context of rule 22(e):

“[An illegal sentence is] one which is ambiguous with respect to the time and manner in which it is to be served, is internally contradictory, omits a term required to be imposed by statute, is uncertain as to the substance of the sentence, or is a sentence which the judgment of conviction did not authorize.”

2009 UT 14, ¶ 13, 203 P.3d 984 (quoting United States v. Dougherty, 106 F.3d 1514, 1515 (10th Cir.1997)) (alteration in original). In Yazzie, this Court determined that the defendant's sentence was illegal “because it did not comply with the statutory requirement to determine concurrent or consecutive sentencing at the time of final judgment.” Id. ¶ 12. The judge determined at a probation revocation hearing that the defendant's sentences should run consecutively with his previously imposed sentences. Id. ¶ 10. However, pursuant to statute, the determination of concurrent or consecutive sentencing must take place at the time of final judgment. See

id. ¶ 11.

¶ 13 While we used the definition of illegal sentence in Yazzie to address the failure of a sentencing court to comply with express statutory provisions, the same definition also encompasses Candedo's alleged constitutional violations. Specifically, if an offender's sentence is unconstitutional, the sentence is not authorized by the “judgment of conviction,” and is therefore illegal.

¶ 14 The State contends that Candedo fails to address the threshold question of whether a nine-year probation sentence is “patently” or “manifestly” illegal. But when a petitioner raises an articulable basis for challenging the constitutionality of a sentence, the court may reach the issue of whether the sentence is “patently” or “manifestly” illegal after considering the merits of the claim, not beforehand. We therefore hold that the court of appeals erred in failing to reach the merits of Candedo's substantive due process challenge because the definition of illegal sentence under rule 22(e) is sufficiently broad to include constitutional violations that threaten the validity of the sentence. This holding allows us to reach the merits of Candedo's claim and thus we need not address the applicability of the exceptional circumstances doctrine. We now turn to the merits of Candedo's due process claim.

II. UTAH'S PROBATION STATUTE IS CONSTITUTIONAL AND CANDEDO'S SUBSTANTIVE DUE PROCESS RIGHTS WERE NOT VIOLATED

¶ 15 Utah's probation statute “authorizes a court to impose probation as a sentencing alternative, but nowhere does it provide a limitation on the length of probation a court may set.” State v. Wallace, 2006 UT 86, ¶ 16, 150 P.3d 540. Indeed, as interpreted by this court in Wallace,³ a sentencing court has full discretion to determine the length of a defendant's probation under...