State v. Brooks

• Decision Date: 27 November 1995
• Docket Number: No. 940146,940146
• Citation: 908 P.2d 856
• Parties: STATE of Utah, Plaintiff and Respondent, v. Corey Lynn BROOKS, Defendant and Petitioner.
• Court: Utah Supreme Court

Page 856

908 P.2d 856

STATE of Utah, Plaintiff and Respondent, v. Corey Lynn BROOKS, Defendant and Petitioner.

No. 940146.

Supreme Court of Utah.

Nov. 27, 1995.

Jan Graham, Atty. Gen., J. Kevin Murphy, Asst. Atty. Gen., Salt Lake City, for plaintiff.

Joan C. Watt, Salt Lake City, for defendant.

ON CERTIORARI TO THE UTAH COURT OF APPEALS

ZIMMERMAN, Chief Justice:

After a jury trial, Corey Lynn Brooks was convicted of aggravated robbery, a first degree felony, in violation of section 76-6-302 of the Utah Code, and aggravated burglary, a first degree felony, in violation of section 76-6-203 of the Utah Code. Brooks appealed his convictions, and we poured the appeal to the court of appeals. There, Brooks asserted that the trial court erred in not removing certain jurors for cause and that his trial counsel was constitutionally ineffective. Brooks also argued that because the convictions for robbery and burglary arose out of the same operative facts, one was the lesser included crime of the other and to convict and sentence him for both amounted to punishing him twice for the same crime. He asked that his "illegal sentence" be set aside.

The court of appeals affirmed the convictions on the merits, addressing Brooks' first two arguments but refusing to address his argument that he was being punished twice for the same crime. State v. Brooks, 868 P.2d 818 (Utah Ct.App.1994). We granted Brooks' petition for a writ of certiorari to address the court of appeals' refusal to consider the lesser-included-offense issue. 883 P.2d 1359 (Utah 1994). We affirm.

Responding to an advertisement offering a diamond ring for sale, Brooks went to the home of Stephanie and Martha Vert. Brooks said he wanted to purchase the ring and would come back the next morning. When Brooks arrived, Stephanie, who was home alone, let him in. Brooks came in, picked up the diamond ring, pointed a pistol at Stephanie, and forced her into the bathroom, where he ordered her to handcuff herself to the pipes under the sink. Brooks then rummaged through the house, took several thousand dollars worth of jewelry, including the diamond ring, and fled the scene. He was eventually apprehended when friends to whom he had boasted about the robbery turned him in.

Brooks' first trial resulted in a hung jury. After a second trial, a jury convicted him of aggravated robbery and aggravated burglary. The trial court sentenced Brooks on both convictions but ordered that the sentences be served concurrently and also ordered him to pay fines and restitution. ¹

Brooks appealed the convictions on the three grounds mentioned above, all of which were raised for the first time on appeal. The court of appeals addressed only Brooks' first two arguments, both of which it found meritless. Brooks, 868 P.2d at 823-26.

Brooks' third contention before the court of appeals was that "his convictions for robbery and burglary illegally punish[ed] him twice for the same crime." Id. at 821. He argued that burglary and robbery were in a lesser included relationship because on the facts, he could not have committed one without necessarily committing the other. Under our statutes and case law, one cannot be convicted of both a stated crime and a lesser crime that is necessarily included in the proof of the greater. Utah Code Ann. § 76-1-402(3); see, e.g., State v. Bradley, 752 P.2d 874, 877 (Utah 1985) (per curiam); State v. Hill, 674 P.2d 96, 97 (Utah 1983). Therefore, Brooks argued, his conviction and sentence for both burglary and robbery were illegal. Brooks, 868 P.2d at 826. He asserted that under Utah Rule of Criminal Procedure 22(e), which provides that "[t]he court may correct an illegal sentence, or a sentence imposed in an illegal manner, at any time," the court of appeals could correct his illegal sentence even though the issue was raised for the first time on appeal.

The court of appeals refused to address this issue because it concluded that rule 22(e) does not allow an appellate court to address an illegal sentence for the first time on appeal. Brooks, 868 P.2d at 826. The court relied on State v. Gallegos, 849 P.2d 586, 591-92 (Utah Ct.App.1993), for the proposition that despite rule 22(e)'s apparently open language, it grants continuing jurisdiction only to trial courts to correct an illegal sentence "at any time." Because it concluded that Brooks still had a remedy in the trial court, the court of appeals also declined to address the legality of Brooks' conviction and sentence under either a plain error analysis or an ineffective assistance of counsel analysis. Brooks, 868 P.2d at 826 n. 11. Brooks sought a writ of certiorari, and we granted the petition to consider the court of appeals' refusal to address the legality of Brooks' sentence.

We first state the applicable standard of review. The standard of review for a simple legal interpretation of a rule or statute is correctness. "Legal determinations ... are defined as those which are not of fact but are essentially of rules or principles uniformly applied to persons of similar qualities and status in similar circumstances." State v. Pena, 869 P.2d 932, 935 (Utah 1994). When reviewing legal determinations, an "appellate court decides the matter for itself and does not defer in any degree to the trial judge's determination of law." Id. at 936. The same standard applies when we review a court of appeals decision on such a question. See Landes v. Capital City Bank, 795 P.2d 1127, 1129 (Utah 1990) ("We accord no particular deference to conclusions of law, whether made by the trial court or the court of appeals, but review such conclusions for correctness.").

We conclude that the court of appeals erred in holding that it lacked the authority under rule 22(e) to address a claim of an illegal sentence for the first time on appeal. However, we also conclude that an appellate court may not review the legality of a sentence under rule 22(e) when the substance of the appeal is, as it is here, a challenge, not to the sentence itself, but to the underlying conviction. Accordingly, we conclude that the court of appeals did not err in refusing to decide whether Brooks was illegally sentenced.

In holding that it lacked the authority to address for the first time on appeal the claim of an illegal sentence, the court of appeals relied on its earlier decision in Gallegos, which, in turn, interpreted our decision in State v. Babbel, 813 P.2d 86 (Utah 1991) ("Babbel II "). Understanding why the court of appeals panel's reliance on Gallegos was misplaced in the instant case requires some explanation. Gallegos was convicted of four counts of distributing or arranging to distribute a controlled substance. Because of prior convictions for the same crime, his sentences were enhanced by reason of section 58-37-8(1)(b) of the Utah Code. Gallegos, 849 P.2d at 588, 591. Gallegos appealed the enhanced penalties. He stated that his prior convictions, upon which the enhancements were based, were still under appeal. On this factual ground, he argued that he should not have had his second set of sentences enhanced before the first set of appeals was concluded because if the first set of convictions were overturned, he would have no way to challenge the enhancements later on. The court of appeals rejected this argument, holding that Gallegos could petition the trial court for resentencing under rule 22(e) if the prior convictions were overturned. Id. at 591-92. To support its holding, the Gallegos court cited this court's decision in Babbel II for the proposition that rule 22(e) gives the trial court continuing jurisdiction to correct illegal sentences at any time. Id.

We conclude that in Gallegos, the court of appeals correctly applied Babbel II. We did state there that a trial court can always correct an illegal sentence. The confusion arose when the court of appeals panel in the instant case read Gallegos to have interpreted Babbel II as implicitly denying that an appellate court could also address an illegal sentence claim raised for the first time on appeal. See Brooks, 868 P.2d at 826. This was a misreading of Gallegos and of Babbel II.

The court of appeals' misinterpretation of Gallegos and Babbel II rested on our statement in Babbel II that "[rule 22(e) ] specifically provides that because an illegal sentence is void, a trial court may correct an illegal sentence at any time." 813 P.2d at 88 (emphasis added); see Gallegos, 849 P.2d at 591-92 (citing Babbel II ). However, Babbel II must be read in context. Babbel appealed his convictions for aggravated sexual assault and aggravated kidnaping. Although the state had not raised the issue before the trial court or in its brief before this court, at oral argument it asserted that the sentences imposed for Babbel's convictions were improper because the trial court had relied on sentencing guidelines that treated Babbel's convictions as routine felonies rather than on then newly established and more severe minimum mandatory sentencing guidelines applicable in kidnaping and sexual abuse cases. We addressed the issue raised for the first time on appeal, and although affirming Babbel's convictions, we vacated the sentences because they were plainly unlawful. State v. Babbell, 770 P.2d 987, 993-94 (Utah 1989) ("Babbell I "). We remanded the case for resentencing.

Babbel appealed again after his resentencing, claiming that the more severe sentences imposed under the new guidelines violated statutory law and the double jeopardy clauses of the state and federal constitutions. Babbel II, 813 P.2d at 87-88. We upheld the new sentences, stating that double jeopardy does not prohibit the correction of an illegal sentence even if the new sentence is more severe than the previously imposed illegal sentence. Id. at 88-89. We also stated in the course of our discussion that trial courts have the power to correct an illegal sentence "at any time, whether before or after an appeal, and even if there...