State v. Kropf

• Decision Date: 03 September 2015
• Docket Number: No. 20130792–CA.,20130792–CA.
• Citation: 360 P.3d 1,2015 UT App 223
• Parties: STATE of Utah, Plaintiff and Appellee, v. Robert C. KROPF, Defendant and Appellant.
• Court: Utah Court of Appeals

360 P.3d 1

2015 UT App 223

STATE of Utah, Plaintiff and Appellee,

v.Robert C. KROPF, Defendant and Appellant.

No. 20130792–CA.

Court of Appeals of Utah.

Sept. 3, 2015.

Debra M. Nelson and Christine Seaman, for Appellant.

Sean D. Reyes, Salt Lake City and Tera J. Peterson, for Appellee.

Opinion

ROTH, Judge:

¶ 1 Robert C. Kropf appeals from the district court's imposition of a permanent criminal stalking injunction. We affirm.

BACKGROUND

¶ 2 In September 2010, Kropf pleaded guilty to two third degree felonies: stalking and failure to respond to an officer's signal to stop. In exchange for his pleas, the State agreed to recommend that Kropf's prison sentences run concurrently with each other and with other sentences Kropf was then serving. At the combined plea and sentencing hearing, the district court advised Kropf that two zero-to-five-year prison sentences and two $5,000 fines constituted “the maximum penalties” for his offenses. The court then inquired about whether the parties had “anything else to talk about” before sentencing. The parties affirmatively indicated that there was nothing further to discuss. Accordingly, the district court accepted the sentencing recommendation and ordered Kropf to serve two concurrent sentences of zero-to-five years at the Utah State Prison. Kropf was released on parole on or about April 30, 2013.

¶ 3 In early April 2013, shortly before Kropf's release, the person he had been stalking (the Petitioner) asked the district court to impose a permanent criminal stalking injunction against Kropf. The Petitioner asserted that Utah Code section 76–5–106.5(the stalking statute) “provides for permanent criminal stalking injunctions for victims of the crime of stalking” to be automatically imposed upon conviction. SeeUtah Code Ann. § 76–5–106.5(9)(b)(LexisNexis 2008) (providing that after a conviction of stalking, “[a] permanent criminal stalking injunction shall be issued by the court without a hearing unless the defendant requests a hearing at the time of the conviction”).¹Recognizing that after entry of sentence and final judgment the district court no longer had jurisdiction over Kropf, the Petitioner contended the failure to enter the injunction at the time of sentencing was an oversight amounting to clerical error under rule 30 of the Utah Rules of Criminal Procedure. Thus, Petitioner asserted, the court could correct that error despite the termination of its jurisdiction. Alternatively, the Petitioner contended that the failure to enter the injunction either resulted in Kropf receiving an illegal sentence, which the court had the authority to correct under rule 22 of the Utah Rules of Criminal Procedure, or amounted to inadvertent error subject to correction under rule 60(b)(6) of the Utah Rules of Civil Procedure. The district court scheduled a hearing on the Petitioner's motion.

¶ 4 The day before the hearing, Kropf filed an objection to the entry of the injunction on the basis that the district court lacked jurisdiction to reopen the case after sentencing and, even if the court did have jurisdiction to enter the injunction, doing so would violate his double jeopardy and due process rights. The judge had not seen the objection beforehand, but once it was brought to the court's attention at the hearing, the judge indicated that he would be willing to grant a continuance to allow the State or the Petitioner's attorney²an opportunity to respond. After both Kropf and the Petitioner informed the court of their desire to proceed, Kropf argued that the court lacked authority to enter the injunction because its jurisdiction had ended on entry of the sentence and neither rule 30nor rule 22 of the Utah Rules of Criminal Procedurecured that problem. He contended that although rule 30allows the court to correct a clerical error, no clerical error occurred in his case because the “court does not have to impose a stalking injunction” and the court's failure to impose one at sentencing therefore amounted to an exercise of its judicial discretion. Kropf conceded that rule 22authorizes a court to correct an illegal sentence, but he argued that because imposition of an injunction was discretionary, there was nothing “patently or manifestly illegal about the sentence” imposed by the court. Alternatively, Kropf asserted that adding additional terms to his sentence more than two-and-a-half years after he entered his guilty pleas violated his constitutional protection against double jeopardy. The court determined that because the plain language of the stalking statute requires imposition of a permanent criminal stalking injunction once a defendant is convicted of stalking and an injunction had not been imposed as a part of sentencing, the sentencing court must have “simply overlooked” that requirement. That error, the court concluded, “qualifie[d] under the rubric of clerical error” pursuant to rule 30and was therefore subject to correction. The court also agreed with the State that rule 22(e) of the Utah Rules of Criminal Procedureprovided “a basis to modify the sentence” because the injunction “absolutely was required to have been entered” as a term of the sentence. The court did not rule on Kropf's double jeopardy argument but implicitly rejected it by deciding the substantive issue under rule 30and rule 22.

¶ 5 Kropf then asked the court to schedule an evidentiary hearing, which he argued he was entitled to under the stalking statute, focusing on the substantive question of whether “the injunction actually should be imposed.” At the Petitioner's suggestion, the district court asked Kropf if he was prepared to go forward with such a hearing immediately. Kropf did not present or proffer any evidence, and the district court denied Kropf's request for a later evidentiary hearing. In so ruling, the court concluded that “this has been a hearing” contemplated by the stalking statute. The court then imposed the stalking injunction. The court issued the injunction on a standard form and checked the box indicating that there was “good cause ... to issue a permanent criminal stalking injunction, pursuant to Section 76–5–106.5.”

¶ 6 Following the hearing, the court issued its written order. The court stated,

The non-issuance of a permanent criminal stalking injunction was a mistake resulting from an oversight by the Court, and was not the result of judicial reasoning. The parties did not bring [the permanent criminal stalking injunction statute] to the attention of the Court and the Court failed to note that statute, but that statute required the entry of a permanent criminal stalking injunction in this case.

“Because the non-issuance of the permanent criminal stalking injunction was an oversight rather than a judicial decision to not comply with the statute,” the district court concluded that it “retain[ed] jurisdiction to correct that oversight pursuant to Utah R.Crim. P. 30(b).” The court also reiterated its conclusion that Kropf “had the opportunity to be heard” and was “not entitle [d] ... to an evidentiary hearing to determine whether the entry of a permanent criminal stalking injunction [was] unnecessary or unduly burdensome.” The court did not include its rule 22ruling in the written order. Kropf appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 7 Kropf argues that the district court lacked jurisdiction to reopen his case to impose the injunction. Procedural questions “present questions of law that we review for correctness without deference to the lower court's ruling.” State v. Candedo,2010 UT 32, ¶ 7, 232 P.3d 1008. Resolution of the jurisdiction question in this case depends also upon the propriety of the district court's interpretation of the stalking statute. We review the district court's interpretation of a statute for correctness. See State v. Johnson,2009 UT App 382, ¶ 16, 224 P.3d 720.

¶ 8 Kropf also contends that in imposing the injunction, the district court deprived him of certain constitutional rights. Kropf claims that the constitutional protection against double jeopardy precluded the district court from “imposing the permanent criminal stalking injunction after judgment had already been imposed and Kropf had gained a legitimate interest in its finality.” He also argues that the district court violated his due process rights because he “was never given notice” that an injunction could be part of his criminal sentence and the injunction was entered without an evidentiary hearing. “Whether the entry of the district court's amended order ... violates protections afforded by the Double Jeopardy Clause or the Due Process Clause presents constitutional issues that are questions of law that [appellate courts] review for correctness.” State v. Rodrigues,2009 UT 62, ¶ 12, 218 P.3d 610.

ANALYSIS

I. Jurisdiction to Impose the Permanent Criminal Stalking Injunction

¶ 9 Kropf first contends that the district court lacked jurisdiction to reopen his sentence and impose the injunction. Kropf's opening argument is rooted in an analysis of rule 30(b) of the Utah Rules of Criminal Procedure, which was the basis of the court's written order. But in its responsive brief, the State contends that the district court did have jurisdiction for affirmance on the basis not only of rule 30but also rule 22. The State points out that in its oral ruling, the district court concluded that it had jurisdiction to impose the injunction pursuant to both rule 30(b)and rule 22(e) of the Utah Rules of Criminal Procedure. While the district court's written order does not cite rule 22as a basis for its decision,³an appellate court may affirm on any basis apparent in the record. Bailey v. Bayles,2002 UT 58, ¶ 13, 52 P.3d 1158. We conclude that rule 22best fits the circumstances here. Kropf had the opportunity to address rule 22below and on appeal after the State raised it, and the core contention of Kropf's rule 30(b)argument—that the stalking statute makes imposition of a permanent criminal stalking injunction discretionary—is the central component...