State v. Candedo

• Decision Date: 04 January 2008
• Docket Number: No. 20050899-CA.,20050899-CA.
• Citation: 2008 UT App 4,176 P.3d 459
• Parties: STATE of Utah, Plaintiff and Appellee, v. Francisco A. CANDEDO, Defendant and Appellant.
• Court: Utah Court of Appeals

176 P.3d 459

2008 UT App 4

STATE of Utah, Plaintiff and Appellee, v. Francisco A. CANDEDO, Defendant and Appellant.

No. 20050899-CA.

Court of Appeals of Utah.

January 4, 2008.

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

Mark L. Shurtleff, atty. gen., and Kenneth A. Bronston, asst. atty. gen., Salt Lake City, for Appellee.

Before GREENWOOD, P.J., McHUGH and ORME, JJ.

MEMORANDUM DECISION

McHUGH, Judge:

¶ 1 Francisco A. Candedo appeals his conviction for one count each of Securities Fraud, a second degree felony, see Utah Code Ann. §§ 61-1-1, -21 (2006), and Sales by an Unlicensed Agent and Employing an Unlicensed Agent, both third degree felonies, see id. §§ 61-1-3, -21 (2006).¹ Candedo argues that this court should reverse because either (1) the trial court may not impose consecutive terms of probation under the Utah Code of Criminal Procedure, see Utah Code Ann, § 77-18-1(10)(a)(i) (Supp.2007), or (2) section 77-18-1(10)(a)(i), as interpreted by State v. Wallace, 2006 UT 86, 150 P.3d 540, violates substantive due process under the Utah and U.S. constitutions. We affirm.

¶ 2 First, Candedo asserts that the trial court exceeded its statutory authority by sentencing him to 108 months of probation. See Utah Code Ann. § 77-18-1(10)(a)(i). A trial court's sentencing decision, including whether to grant or deny probation, is reviewed under an abuse of discretion standard. See State v. Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d 1167. "An abuse of discretion results when the judge fails to consider all legally relevant factors or if the sentence imposed is clearly excessive." Id. (internal quotation marks omitted). The sentencing statute at issue here states that "[p]robation may be terminated at any time at the discretion of the court or upon completion without violation of 36 months probation in felony or class A misdemeanor cases."² Utah Code Ann. § 77-18-1(10)(a)(i). After reviewing section 77-18-1(10)(a)(i) in Wallace, the Utah Supreme Court held that "our law currently provides no statutory limitation on the length of probation a trial court may impose." 2006 UT 86, ¶ 14, 150 P.3d 540 (emphasis added).

¶ 3 Candedo argues that the Utah statute does not give a trial court the authority to impose consecutive terms of probation, an issue raised but not addressed in Wallace. See id. ¶ 4. However, this characterization of Candedo's sentence does not accurately reflect the trial court's probation order. In the sentencing order, the Order of Probation section specifies that "[t]he defendant is placed on probation for 108 month(s)"; nowhere does that section use the term "consecutive."³ See State v. Denney, 776 P.2d 91, 92-93 (Utah Ct.App.1989) ("Where the language of a judgment is clear and unambiguous, it must be given effect as it is written.... Although, the judge may have intended the terms to run consecutively, we do not examine his intent where the written order is unequivocal." (internal quotation marks and alteration omitted)).

¶ 4 Even assuming that the juxtaposition of the Order of Probation section and Probation Conditions section rendered this order equivocal, Wallace indicates that imposing thirty-six months for each count would nevertheless be within the trial court's authority:

We granted certiorari on two issues: whether section 77-18-1(10)(a)(i) creates a thirty-six-month limitation for a term of probation as to any felony conviction; and whether terms of probation for multiple convictions may be imposed consecutively. Because we conclude that the Legislature has not limited terms of probation to any particular time period, we need not and do not reach the second issue.

2006 UT 86, ¶ 4, 150 P.3d 540 (emphasis added). Wallace holds that there is "no statutory time limitation on probation." Id. ¶ 16. Because a trial court is not time limited in its authority to impose probation, see id. ¶ 14, the 108-month sentence is not "clearly excessive." See Valdovinos, 2003 UT App 432, ¶ 14, 82 P.3d 1167. Consequently, as in Wallace, we need not consider whether—assuming such a limitation did exist—the trial court could circumvent that limit by ordering consecutive probation periods where multiple crimes were committed. We hold that the trial court did not exceed its discretion in sentencing Candedo to 108 months of probation.

¶ 5 Second, Candedo argues that the probation statute, as interpreted by Wallace, violates his due process rights under the Utah and U.S. constitutions. Candedo concedes that he did not properly preserve his due process argument in the trial court. However, he asserts that he can still appeal this issue under rule 22(e) of the Utah Rules of Criminal Procedure, or, alternatively, under the exceptional circumstances doctrine. We disagree with both of these contentions.

¶ 6 Under rule 22(e) of the Utah Rules of Criminal Procedure, an appellate court "may correct an illegal sentence, or a sentence imposed in an illegal manner, at any time." Utah R.Crim. P. 22(e). However, rule 22(e) only applies to a "`patently'" or "`manifestly' illegal sentence," State v. Thorkelson, 2004 UT App 9, ¶ 15, 84 P.3d 854 (quoting State v. Brooks, 908 P.2d 856, 860 (Utah 1995); State v. Telford, 2002 UT 51, ¶ 5, 48 P.3d 228), which the Utah Supreme Court has defined as occurring where either "the sentencing court has no jurisdiction, or ... the sentence is beyond the authorized statutory range." Id. (citing Telford, 2002 UT 51, ¶ 5 n. 1, 48 P.3d 228). Here, there is no dispute that the trial court had jurisdiction. Furthermore, in light of the supreme court's statutory interpretation of section 77-18-1(10)(a)(i) and its holding that a "twelve-year probation does not constitute an illegal sentence," State v. Wallace, 2006 UT 86, ¶ 16, 150 P.3d 540, Candedo's nine-year probation is not an illegal sentence. Therefore, Candedo's claim that his sentence violates his due process rights is not reviewable under rule 22(e).

¶ 7 Alternatively, Candedo argues that this court can review his constitutional claim, despite his failure to raise it in the trial court, under the exceptional circumstances doctrine. "The exceptional circumstances concept serves as a `safety device,' to assure that `manifest injustice does not result from the failure to consider an issue on appeal.'" State v. Irwin, 924 P.2d 5, 8 (Utah Ct.App.1996) (quoting State v. Archambeau, 820 P.2d 920, 923 (Utah Ct.App.1991)); see also State v. Nelson-Waggoner, 2004 UT 29, ¶ 23, 94 P.3d 186 ("[The exceptional circumstances doctrine is] reserv[ed] ... for the most unusual circumstances where our failure to consider an issue that was not properly preserved for appeal would have resulted in manifest injustice."). It is "used sparingly, properly reserved for truly exceptional situations, for cases ... involving `rare procedural anomalies.'" Irwin, 924 P.2d at 11 (quoting State v. Dunn, 850 P.2d 1201, 1209 n. 3 (Utah 1993)); see, e.g., In, re T.M., 2003 UT App 191, ¶ 16, 73 P.3d 959 (determining that an "amendment [to the termination statute] was `a change in law or the settled interpretation of law'" and therefore "the exceptional circumstances exception applie[d]" (emphasis added)). Candedo argues that, because the Utah Supreme Court had not yet held that trial courts could impose unlimited probationary terms,⁴ he "`had no particular need to' argue the probation statute violated substantive due process." (Quoting Irwin, 924 P.2d at 10.) He bases this argument on the inference from decisions of the court of appeals, prior to Wallace, that there were statutory limitations on probation. See State v. McDonald, 2005 UT App 86, ¶ 21, 110 P.3d 149 ("The probationary term for a class C misdemeanor may not exceed twelve months pursuant to Utah Code section 77-18-1(10)(a)([i])." (emphasis omitted)), cert. denied, 124 P.3d 251 (Utah 2005); State v. Robinson, 860 P.2d 979, 982 (Utah Ct.App.1993) ("[T]he maximum formal probation periods for ... a class B misdemeanor[] and ... a class A misdemeanor[] are respectively twelve months and thirty-six months...." (citation omitted)). But see State v. Wallace, 2005 UT App 434, ¶ 18 n. 10, 124 P.3d 259 ("We are not bound by cases which, in dicta, assume without deciding that Utah Code section 77-18-1(10)(a)(i) creates maximum probationary periods."), aff'd, 2006 UT 86, 150 P.3d 540. However, we do not find this argument sufficiently compelling to satisfy the doctrine of exceptional circumstances.

¶ 8 First, we fail to see how the supreme court's decision in Wallace—by clarifying section 77-18-1(10)(a)(i) in a way that is detrimental to Candedo's 22(e) claim—supports the argument that Candedo failed to raise his constitutional claim at trial because of previous decisions of this court. Although decided Candedo might have believed that the trial court imposed an illegal probationary term by exceeding the statutory limits allegedly approved in McDonald and Robinson, we do not see how the confidence in that claim interfered with his ability to evaluate his due process argument. See McDonald, 2005 UT App 86, ¶ 21, 110 P.3d 149; Robinson, 860 P.2d at 982. Candedo was always free to assert both arguments in the trial court.⁵ Moreover, the fact that the trial court imposed such a long period of probation—after. disagreeing with Candedo's assertion that it did not have the authority to do so—should have put Candedo on notice that his due process rights were arguably implicated.⁶

¶ 9 Furthermore, the constitutional limitations of probation terms were not addressed in Wallace or either of the two cases Candedo cites in support of his exceptional circumstances argument. Even if Candedo reasonably believed that he could later appeal the sentence under rule 22(e), he could have asserted his due process claim as well. We will not expand the exceptional circumstances exception to include Candedo's situation as it does not rise to the level of a "rare procedural anomal[y]," See Irwin, 924 P.2d at 11 (quoting Dunn, 850 P.2d at 1209...