State v. Samora, 20021038.

• Decision Date: 21 September 2004
• Docket Number: No. 20021038.,20021038.
• Citation: 2004 UT 79,99 P.3d 858
• Parties: STATE of Utah, Plaintiff and Petitioner, v. Manuel Ernesto SAMORA, Defendant and Respondent.
• Court: Utah Supreme Court

99 P.3d 858

2004 UT 79

STATE of Utah, Plaintiff and Petitioner, v. Manuel Ernesto SAMORA, Defendant and Respondent.

No. 20021038.

Supreme Court of Utah.

September 21, 2004.

Mark L. Shurtleff, Att'y Gen., Jeanne B. Inouye, Asst. Att'y Gen., Kevin Murphy, Salt Lake City, for plaintiff.

Joan C. Watt, John K. West, Salt Lake City, for defendant.

On Certiorari to the Utah Court of Appeals

DURRANT, Justice:

¶ 1 After pleading guilty to attempted unlawful control of a motor vehicle with intent to temporarily deprive, Defendant Manuel Ernesto Samora was sentenced in absentia to the maximum jail time and ordered to pay the maximum fine the relevant sentencing statute allowed. Due to certain infringements of Defendant's rights that occurred during sentencing, the court of appeals vacated the sentence and remanded for resentencing. On remand, the trial court once again imposed the maximum jail time and fine and also ordered Defendant to pay restitution to the victim. On appeal from the second sentence, the court of appeals again vacated the sentence, holding that the trial court had improperly imposed a harsher sentence on resentencing. We granted the State's petition for certiorari to review the issue of whether a defendant who has his sentence vacated pursuant to rule 22(e) of the Utah Rules of Criminal Procedure may claim the constitutional and statutory protections that generally preclude the imposition of harsher sentences on resentencing. We affirm.

BACKGROUND

¶ 2 On April 18, 2000, Defendant Manuel Ernesto Samora was charged with unlawful control of a motor vehicle with the intent to temporarily deprive, a third degree felony. On August 8, 2000, Samora pleaded guilty to attempted unlawful control of a motor vehicle with intent to temporarily deprive, a class A misdemeanor. Apparently as part of the plea agreement, Samora agreed to pay restitution to the victim, his former girlfriend. The trial judge ordered Samora to make an appointment with Adult Probation and Parole in order to prepare a presentence investigation report and informed Samora that a sentencing hearing would be held on September 22, 2000.

¶ 3 Samora failed to appear for both the preparation of the presentence report and for the sentencing hearing. Without conducting any inquiry into Samora's actions, the trial court determined that Samora had voluntarily failed to appear and sentenced him in absentia to the maximum jail time of one year and imposed the maximum fine of $2500. The court did not specifically impose any restitution as part of the order. Samora's counsel did not object.

¶ 4 Samora appealed his sentence to the court of appeals. State v. Samora, 2001 UT App 266U, 2001 WL 1021098 (per curiam)(memorandum decision) ("Samora I"). While his appeal was pending, Samora was arrested and began serving his one-year sentence. In reviewing the sentence, the court of appeals determined that the trial court had violated Samora's due process rights and Utah Rule of Criminal Procedure 22(a) because the court had failed to "make an adequate inquiry into the actual voluntariness of Samora's absence," had failed to "provide Samora the opportunity to present information through counsel in mitigation of punishment" or "provide the prosecutor an opportunity to present information relevant to sentencing," and had failed to "base the sentencing decision on relevant and reliable information." Id. The court of appeals vacated the sentence and remanded for resentencing. Id.

¶ 5 Samora was present for resentencing. At the hearing, he requested that the court reduce or waive his fine so that he would be able to pay the restitution to which he had agreed as part of the plea agreement. Samora also requested that the court give him credit for time served. The trial court again ordered the maximum jail time and fine, just as it had in Samora's first sentence. In addition, the court ordered Samora to pay restitution in the amount of $744.80.¹

¶ 6 Samora again appealed to the court of appeals, this time arguing that the trial court had inappropriately imposed a harsher sentence on resentencing by ordering restitution in addition to the jail time and fine already imposed in the original sentence. State v. Samora, 2002 UT App 384, ¶ 1, 59 P.3d 604 ("Samora II"). The court of appeals reversed and remanded, holding that due process and section 76-3-405 of the Utah Code precluded the imposition of a harsher sentence and that the State had failed to meet its burden of establishing that the harsher sentence did not violate the statutory and constitutional protections. See id. at ¶ 23.

¶ 7 The State petitioned for certiorari, arguing that because Samora's first sentence was vacated pursuant to rule 22(e) of the Utah Rules of Criminal Procedure, it was void and therefore not subject to the usual constitutional and statutory protections against harsher sentences on resentencing. Therefore the State reasoned that the trial court was not precluded from imposing a harsher sentence on remand. We granted the State's petition to review this issue.

STANDARD OF REVIEW

¶ 8 The State presents only one issue for certiorari review: "Can a sentence be illegal for purposes of [Utah Rule of Criminal Procedure] 22(e), but nevertheless limit the range of resentencing on remand?"

¶ 9 "On certiorari, we review the decision of the court of appeals, not the decision of the trial court." State v. Wanosik, 2003 UT 46, ¶ 9, 79 P.3d 937. The State presents a question of law, which we review for correctness. Id.

ANALYSIS

I. SAMORA'S INITIAL SENTENCE WAS VACATED PURSUANT TO RULE 22(e)

¶ 10 As a preliminary matter, Samora argues that the issue presented by the State for review "is not well taken since a fair reading of Samora I fails to demonstrate that the [c]ourt of [a]ppeals reviewed the illegally imposed sentence pursuant to [r]ule 22(e)." While Samora correctly observes that the Samora I court did not specifically articulate the grounds on which it reviewed Samora's sentence, when Samora I is read in conjunction with the court of appeals' subsequent opinion in Samora II, it is apparent that the sentence was vacated pursuant to rule 22(e).

¶ 11 We observe that in this case Samora's counsel did not object to the initial sentence or to the form of the proceedings during the original sentencing hearing. In the absence of an objection preserving an issue, there are limited grounds on which an appellate court may review the issue for the first time on appeal. In re Schwenke, 2004 UT 17, ¶ 34, 89 P.3d 117 (citing State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994)). In most cases, the issue may be addressed only if the appellant demonstrates plain error or extraordinary circumstances. Id. at ¶ 34 n. 6 (citing Lopez, 886 P.2d at 1113). In addition, a court may review an "illegal sentence" or a "sentence imposed in an illegal manner" pursuant to rule 22(e), which allows for correction of an illegal sentence "at any time." Utah R.Crim. P. 22(e).

¶ 12 Although Samora argued both plain error and extraordinary circumstances in his appellate brief in Samora I, the court of appeals did not specify whether it reached the issue based on plain error or extraordinary circumstances, or pursuant to rule 22(e). Despite this omission, it is clear from a reading of Samora II that the sentence was vacated pursuant to rule 22(e). In Samora II, the State argued, as it does before this court, that Samora's first sentence was illegal and that "an illegal sentence is void and not subject to [constitutional or statutory] sentence protections." Samora II, 2002 UT App 384 at ¶ 15, 59 P.3d 604. In response, the court of appeals stated that "[t]he sentence itself was not illegal, but the manner in which it was imposed was contrary to law. Furthermore, allowing a harsher sentence when the original sentence was imposed in an illegal manner would have a `chilling effect on the right to appeal.'" Id. at ¶ 16 (emphasis added) (quoting State v. Babbel, 813 P.2d 86, 88 (Utah 1991) ("Babbel II")). The use of this terminology persuades us that the court of appeals was referring to the types of sentences identified in rule 22(e). See Utah R.Crim. P. 22(e) ("The court may correct an illegal sentence, or a sentence imposed in an illegal manner, at any time."). This conclusion is bolstered by the dissent's assertion in Samora II that Samora's first sentence was vacated pursuant to rule 22(e). In his dissent, Judge Bench stated that the "initial sentence ... was illegal because it was improperly imposed in [d]efendant's absence. That was precisely how the first appeal was argued. When we remanded the case, we expressly noted that the court may correct an illegal sentence at any time." Samora II, 2002 UT App 384 at ¶ 32 (Bench, J., dissenting) (citing Samora I, 2001 UT App 266U at n. 1).

¶ 13 Thus, a fair reading of Samora I and Samora II indicates that Samora's first sentence was vacated under rule 22(e). Specifically, the sentence was found to have been "imposed in an illegal manner" because the trial court had violated Samora's rights under Utah Rule of Criminal Procedure 22(a) during sentencing. We note that in State v. Wanosik we declined to address the narrow issue of whether a rule 22(a) error constitutes an "illegal sentence, or a sentence imposed in an illegal manner" subject to review under rule 22(e) because it was not necessary for us to reach the issue at that time. 2003 UT 46 at ¶ 16 n. 1, 79 P.3d 937. Although we do not address today all types of errors that may qualify for review under rule 22(e), we hold that a sentence imposed in violation of rule 22(a) of the Utah Rules of Criminal Procedure may be considered a "sentence imposed in an illegal manner" under rule 22(e). Accordingly, we will address the issue presented by the State regarding whether sentences vacated pursuant to rule 22(e) may limit a court's discretion on resentencing.

II. CONSTITUTIONAL AND STATUTORY PROTECTIONS APPLY TO SENTENCES VACATED...