State v. Anderson

• Decision Date: 17 February 2009
• Docket Number: No. 20070328.,20070328.
• Citation: 2009 UT 13,203 P.3d 990
• Parties: STATE of Utah, Plaintiff and Respondent, v. David Scott ANDERSON, Defendant and Petitioner.
• Court: Utah Supreme Court

203 P.3d 990

2009 UT 13

STATE of Utah, Plaintiff and Respondent, v.David Scott ANDERSON, Defendant and Petitioner.

No. 20070328.

Supreme Court of Utah.

February 17, 2009.

Mark L. Shurtleff, Att'y Gen., J. Frederic Voros, Jr., Matthew D. Bates, Asst. Att'ys Gen., Salt Lake City, for plaintiff.

Joan C. Watt, Debra M. Nelson, C. Bevan Corry, Salt Lake City, for defendant.

On Certiorari to the Utah Court of Appeals.

NEHRING, Justice:

INTRODUCTION

¶ 1 In this case, we consider whether the court of appeals correctly construed Utah Code section 76-3-401,¹ which governs the imposition of concurrent or consecutive sentences.David Scott Anderson, the defendant in this case, pled guilty to theft.A district court judge placed Mr. Anderson on probation, staying the prison sentence of zero to five years.A year later, after being convicted of two counts of aggravated robbery while on probation, a second judge sentenced Mr. Anderson to two consecutive indeterminate terms of not less than six years.This judge did not address Mr. Anderson's earlier theft sentence.Later, a third judge, who had replaced the first judge who imposed Mr. Anderson's theft sentence, revoked Mr. Anderson's probation for theft and committed him to prison.The third judge determined that the prison commitment for the theft sentence was to run consecutively to the prison commitment for the aggravated robberies, which Mr. Anderson was then serving.Mr. Anderson appealed.He claimed that the third judge lacked the authority to impose a consecutive sentence because such a determination was not authorized by law.Mr. Anderson contended further that the second judge who sentenced him for his robbery offenses was the only judge who had the authority to decide whether to impose concurrent or consecutive sentences relating to the earlier theft conviction.The court of appeals found no error in the sentencing and affirmed.We reverse the court of appeals' decision and vacate Mr. Anderson's consecutive sentence as ordered by the third judge.

BACKGROUND

¶ 2 On December 4, 2003, David Scott Anderson pled guilty to one third degree felony count of theft.The district court judge imposed a sentence under Utah's indeterminate sentencing of zero to five years in prison.The judge suspended the prison commitment and placed Mr. Anderson on probation for eighteen months.

¶ 3 Several months later while on probation for theft, Mr. Anderson pled guilty to two first degree felony counts of aggravated robbery.A second judge sentenced Mr. Anderson to two indeterminate terms of not less than six years in prison on each count.The second judge ordered the sentences to run concurrent with one another but made no mention of whether these sentences would run concurrent or consecutive to Mr. Anderson's earlier theft sentence.

¶ 4 During this time, Adult Probation and Parole filed an affidavit and an Order to Show Cause with a third judge, who had replaced the first judge who had sentenced Mr. Anderson for theft, which stated that Mr. Anderson's probation should be revoked.The affidavit averred that Mr. Anderson had been convicted of two first degree felony counts of aggravated robbery and would soon be sentenced for those offenses.Several months after the second judge sentenced Mr. Anderson for his crimes of aggravated robbery, the third judge revoked Mr. Anderson's probation and executed the suspended sentence of zero to five years in prison.The third judge also ordered that the executed theft sentence run consecutive to the aggravated robbery sentences.Mr. Anderson challenged this ruling on appeal.

¶ 5 A divided panel of the court of appeals affirmed.State v. Anderson,2007 UT App 68, ¶¶ 15-16, 157 P.3d 809.The court of appeals' majority held that the term "served," as used in Utah Code section 76-3-401, described the authority of a court to impose concurrent or consecutive sentences for a defendant who at the time of sentencing is "already serving" a sentence.Id.¶ 9.The majority held that "served means incarcerated" and that a defendant who is on probation at the time of being sentenced for a new offense is not serving a sentence for the earlier crime.Id.¶ 7.The court of appeals further held, "Reading the statute as a whole, we conclude that section 76-3-401(1)(b) does not authorize a court to order a sentence concurrent or consecutive to another sentence that has not yet been both imposed and executed."Id.¶ 11.We granted certiorari review pursuant to our jurisdiction under Utah Code section 78A-3-102(5)(2008).²

STANDARD OF REVIEW

¶ 6"On certiorari, we review the decision of the court of appeals and not that of the district court."State v. Brake,2004 UT 95, ¶ 11, 103 P.3d 699.Because the issue before us is purely one of statutory interpretation, "[w]e conduct [our] review for correctness, ceding no deference to the court of appeals."Id.In our review of the court of appeals' decision, we examine the standard of review it applied to the district court's ruling.Id.The court of appeals appropriately used the correctness standard when it reviewed the underlying issue of statutory interpretation.State v. Anderson,2007 UT App 68, ¶ 4, 157 P.3d 809.

ANALYSIS

¶ 7 The majority of the court of appeals held that probation does not fall within the definition of a sentence being served as meant by the phrase "`any other sentences the defendant is already serving.'"State v. Anderson,2007 UT App 68, ¶ 15, 157 P.3d 809(quotingUtah Code Ann. § 76-3-401(1)(b)(2003)).Under the court of appeals' interpretation, a judge sentencing a defendant cannot determine consecutive or concurrent sentencing in relation to a suspended sentence for which the defendant is currently serving probation.In contrast, we find that a clear statutory mandate limits the authority of a judge, who placed a defendant on probation after suspension of a prison sentence, to execute only the suspended sentence upon revocation of the defendant's probation.SeeUtah Code Ann. § 77-18-1(12)(e)(iii)(2008).³That judge does not have the authority to make a later concurrent or consecutive ruling.Salt Lake City v. Jaramillo,2007 UT App 32, ¶ 16, 156 P.3d 839.

¶ 8We agree with the dissenting judge of the court of appeals and hold that probation is a sentence that a defendant serves as used in section 76-3-401(1)(b).

I.THE THIRD JUDGE DID NOT HAVE THE AUTHORITY TO MAKE A CONSECUTIVE OR CONCURRENT SENTENCING DETERMINATION

¶ 9 The determination to run Mr. Anderson's previously suspended theft sentence consecutive to the sentences imposed and executed by the second judge was beyond the third judge's authority.Once probation has been revoked, a district court judge has the authority to execute only the previously imposed sentence.Utah Code Ann. § 77-18-1(12)(e)(iii)(2008)("If probation is revoked, ... the sentence previously imposed shall be executed.");see alsoSalt Lake City v. Jaramillo,2007 UT App 32, ¶ 12, 156 P.3d 839("[O]nce a defendant is sentenced and placed on probation, revocation of probation can result only in the sentence previously imposed [being] executed."(second alteration in original)(internal quotation marks omitted)).After revoking Mr. Anderson's probation, the third judge had jurisdiction to execute only the previously imposed sentence of zero to five years.SeeUtah Code Ann. § 77-18-1(2)(b)(iii), (12)(e)(iii).

¶ 10 The third judge overstepped his authority when he determined that the sentence for theft was to run consecutively to the sentences for the two counts of aggravated robbery.In view of this clear limited grant of authority, we are puzzled by the court of appeals' pronouncement that "the circumstances presented to Judge Reese [the third judge]required him to make the concurrent/consecutive determination at the probation revocation hearing in which he sought to impose and execute the previously suspended sentence."State v. Anderson,2007 UT App 68, ¶ 14, 157 P.3d 809(emphasis added).Whether the third judge could make the concurrent or consecutive determination is a question that at least merits debate.That the third judge was required to make that determination merits no discussion.He was not.The only authority that the third judge possessed was to execute the first judge's sentence.Utah Code Ann. § 77-18-1(12)(e)(iii).The court of appeals held in Jaramillo that the concurrent or consecutive determination cannot be made for the first time at a probation revocation hearing.2007 UT App 32, ¶ 16, 156 P.3d 839.In Jaramillo,the court of appeals analyzed when the determination of concurrent or consecutive sentencing should be made.Id.¶ 13.The court inquired "whether the determination of concurrent or consecutive terms of incarceration is a function of the sentence itself, which must be imposed prior to probation, or is merely a function of the execution of the sentence."Id.

¶ 11The Jaramillo court was faced with the issue of a district court judge imposing consecutive sentencing for simultaneously imposed sentences at the time of probation revocation.The court held that under section 76-3-401(1)"the determination of whether two simultaneously imposed sentences are to be served concurrently or consecutively is to be made at the time of sentencing, and may not be made for the first time upon the revocation of probation."Id.¶ 16.We agree with this holding and hold that section 76-3-401(1) applies not only to simultaneously imposed sentences but also to "sentences the defendant is already serving,"Utah Code Ann. § 76-3-401(1)(b).⁴

¶ 12 Because Mr. Anderson was convicted for only one count of theft, there was no need for the first judge to make a concurrent or consecutive sentencing determination when he imposed the sentence.The third judge, therefore, was limited to executing only the previously imposed sentence.It is inappropriate for a judge to make a concurrent or consecutive sentencing determination based on future...