State v. Samul

• Decision Date: 29 January 2015
• Docket Number: No. 20121008–CA.,20121008–CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Theodore James SAMUL, Defendant and Appellant.
• Court: Utah Court of Appeals

343 P.3d 719

2015 UT App 23

STATE of Utah, Plaintiff and Appellee

v.Theodore James SAMUL, Defendant and Appellant.

No. 20121008–CA.

Court of Appeals of Utah.

Jan. 29, 2015.

John B. Plimpton and Kerri S. Priano, for Appellant.

Sean D. Reyes and Kris C. Leonard, Salt Lake City, for Appellee.

Senior Judge RUSSELL W. BENCH authored this Opinion, in which Judges GREGORY K. ORME and J. FREDERIC VOROS JR. concurred.¹

Opinion

BENCH, Senior Judge:

¶ 1 Theodore James Samul appeals from an amended sentence and from the dismissal of his motion to withdraw his 2003 guilty pleas. We affirm in part and reverse in part and remand.

BACKGROUND

¶ 2 Samul was charged with aggravated sexual assault and aggravated kidnapping based on allegations that he choked, bit, raped, and threatened to kill his sister after she asked him to drive her home from a family party. On March 24, 2003, he pleaded guilty to one count of attempted aggravated sexual assault and one count of attempted aggravated kidnapping. The written statement in support of the guilty pleas listed both crimes as first degree felonies, each carrying a prison term of three years to life. At a sentencing hearing on May 12, 2003, the prosecutor and defense counsel addressed the court. After defense counsel had highlighted facts in mitigation and argued in favor of concurrent sentences, the trial court asked Samul whether he had anything to add. Samul responded, “No. I think it's all been said.” The trial court then stated that because Samul's crimes were “disturbing in a number of different ways,” the court would “keep [him] in prison as long as [it] possibly [could] because ... it's the only safe way to sentence [him] for [the] victim and for the community at large.” The trial court sentenced Samul to two consecutive terms of three years to life in prison. In addition, the trial court ordered Samul to pay $2,094.68 in restitution. Samul did not appeal his sentences.

¶ 3 Nine years later, in 2012, Samul filed a pro se motion to correct the sentences pursuant to rules 22 and 11 of the Utah Rules of Criminal Procedure and section 77–13–6 of the Utah Code. In the motion, Samul asserted that the trial court imposed his sentences in violation of rule 22(c) of the Utah Rules of Criminal Procedure by failing to advise Samul of his right to appeal and the time period for doing so. Samul also asserted that the trial court violated rule 11(e) of the Utah Rules of Criminal Procedure by accepting Samul's guilty pleas without informing him of various rights. In addition, Samul moved to withdraw his guilty pleas and raised claims of ineffective assistance of counsel. Samul requested that the court set aside his sentences and resentence him. He also requested an evidentiary hearing on his motions, reimbursement of restitution, and merger of his convictions.

¶ 4 In its response to Samul's motion, the State argued that the motion to withdraw the guilty pleas was untimely and asked the court to dismiss it. However, the State urged the court to amend Samul's sentence on his attempted aggravated kidnapping conviction under rule 22(e) of the Utah Rules of Criminal Procedure. The State explained that the crime of attempted aggravated kidnapping is a second degree felony and that the trial court had sentenced Samul to three years to life, which, under the relevant statute, is a punishment reserved for attempt crimes that are first degree felonies. See Utah Code Ann. § 76–4–102(1) (LexisNexis Supp.2014).² The State therefore agreed that Samul's sentence for attempted aggravated kidnapping was an illegal sentence that should be corrected to a term of one to fifteen years. See id. § 76–3–203(2) (LexisNexis 2012) (providing that a person convicted of a second degree felony may be sentenced to a term of not less than one year or more than fifteen years in prison). Thereafter, Samul filed a reply, a request for an award of all legal expenses and fees incurred in filing his pro se motion, and a request to submit for decision.

¶ 5 At a hearing on July 13, 2012, the prosecutor acknowledged that her office had encouraged the court to impose the original sentence on the attempted aggravated kidnapping conviction without having researched the appropriate sentence. The trial judge responded, “[W]e all should have known ... that the sentence and the level of offense for the attempted aggravated kidnapping was in error.” Samul's counsel³ addressed the court and explained that Samul had “raised a myriad of issues ... related to deprivation of rights” that he wanted to address. When the court asked whether counsel had anything further regarding the resentencing, defense counsel answered, “No ... [but] we would ask that nothing be done today, including the resentencing.” The trial judge then stated that she was “anxious to go forward with the resentencing” and that she “want[ed] to correct this error as soon as possible.” The judge explained that the Board of Pardons “certainly will take a look at the amended sentence,” which “can make a differen[ce]” because “one to 15 years is substantially different from a three to life” sentence. Defense counsel again asked the judge to wait a couple of weeks to act.

¶ 6 After initially agreeing to postpone correcting the error, the trial court signed an amended sentence later that day. The court's order adjusted Samul's sentence on the attempted aggravated kidnapping conviction to a prison term of one to fifteen years. In all other respects, the amended sentence remained the same as the May 2003 sentence, with a three-years-to-life sentence on the attempted aggravated sexual assault conviction and an order that the sentences run consecutively.

¶ 7 At the rescheduled sentencing review hearing on August 31, 2012, defense counsel asked the court to set the matter over so that defense counsel could confer with the prosecutor regarding the issues of ineffective assistance of counsel, merger, and plea withdrawal. The following discussion of the amended sentence ensued:

THE COURT: Let's see. So I amended the sentence, correct?

DEFENDANT SAMUL: I objected to the amended sentence. I objected to all of that. You said that you were going to—you weren't going to rule on any matter until you could hear all the issues because I had so many issues that needed to be addressed.

THE COURT: Uh-huh (affirmative).

DEFENDANT SAMUL: And you said you'd set the matter over, and it was supposed to be done [two weeks later], and it got continued until today.

THE COURT: I amended the sentence effect[ive] nunc pro tunc to May 12th of 2003, which doesn't—so it has been amended to reflect the correct sentence, which ... I did to benefit Mr. Samul because he's been in custody for a long time. So the Board now has the correct sentence....

....

THE COURT: [There was an] error in the plea affidavit that designated [attempted aggravated kidnapping] as a three to life ... first degree [felony] ... as opposed to a second degree, one to fifteen. Clearly, that's of concern. I don't know what the remedy is. I mean, the immediate remedy is to correct it, which I did nunc pro tunc, which changes his position before the Board of Pardons. The other remedies you'll just have to educate me on. All right.

....

DEFENDANT SAMUL: I'm unclear as to what happened because at the last hearing, ... my understanding on leaving the courtroom was that nothing was going to happen until I came back the next time.... And now you're saying that you corrected the sentence or something already?

THE COURT: I corrected the sentence to be consistent with what you pled to. Let me ... make sure you understand what this means and what nunc pro tunc means. I amended this effective May 12th of 2003. This changes—

DEFENDANT SAMUL: As it was then?

THE COURT: —considerably your position before the Board of Pardons. And the soonest I can do that I did, because it's to your benefit that I did that—clearly to your benefit. It's ... a different looking case, and so the Board of Pardons, I felt, needed to have that information as soon as possible.

DEFENDANT SAMUL: Well, that's contrary to my understanding though because—

THE COURT: Okay. Well, that—

DEFENDANT SAMUL: —I have other issues.

THE COURT: It is what it is now.

DEFENDANT SAMUL: Right, but I have other issues.

THE COURT: You have—that's what your attorney is going to talk to you about.

[DEFENSE COUNSEL]: Let me talk to you in the holding cell.

THE COURT: That is fine. I think we're done.

[DEFENSE COUNSEL]: Thank you, Your Honor.

The trial court's minute entry for the hearing noted that it had “previously amended the sentence nunc pro tunc” and that it would take no further action that day.

¶ 8 On September 21, 2012, the trial court issued a written memorandum decision addressing the issues Samul had submitted for decision. The trial court first explained the illegal sentence on Samul's attempted aggravated kidnapping conviction. The court indicated that Samul's sentence “is corrected to reflect the actual legally appropriate sentence for Attempted Aggravated Kidnapping,” pursuant to rule 22(e) of the Utah Rules of Criminal Procedure. The trial court therefore “[ordered] that [Samul] serve an indeterminate term at the Utah State Prison of 1 to 15 years on Count II, to run consecutively to Count I.” The court then turned to the remaining issues, ruling that it lacked jurisdiction to hear those challenges. The court explained that the “issue of ineffective assistance of counsel is an appellate issue or subject to a civil action in this court.” The court then determined that the motions to set aside the convictions and to withdraw the guilty pleas were not timely and accordingly dismissed them. Samul appeals.⁴

ISSUES AND STANDARDS OF REVIEW

¶ 9 Samul first argues that the trial court violated rule 22(a) of the Utah Rules of Criminal Procedure and his right to allocution and due process when it corrected his illegal sentence. “The denial of the right to allocution is an issue of law that we review for correctness.” West Valley City v....