State v. Udy

• Decision Date: 30 August 2012
• Docket Number: No. 20100726–CA.,20100726–CA.
• Citation: 716 Utah Adv. Rep. 42,2012 UT App 244,286 P.3d 345
• Parties: STATE of Utah, Plaintiff and Appellee, v. Ronald Dean UDY, Defendant and Appellant.
• Court: Utah Court of Appeals

286 P.3d 345

716 Utah Adv. Rep. 42

2012 UT App 244

STATE of Utah, Plaintiff and Appellee,

v.Ronald Dean UDY, Defendant and Appellant.

No. 20100726–CA.

Court of Appeals of Utah.

Aug. 30, 2012.

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

Mark L. Shurtleff and Andrew F. Peterson, Salt Lake City, for Appellee.

Before Judges McHUGH, ORME, and THORNE.

OPINION

McHUGH, Presiding Judge:

¶ 1 Ronald Dean Udy appeals from his concurrent sentences of one to fifteen years in prison for securities fraud, a second degree felony, and zero to five years in prison for false statements in a securities document, a third degree felony. SeeUtah Code Ann. § 61–1–1 (2011) (securities fraud); id. § 61–1–16 (false statements); id. § 61–1–21 (penalties).¹ We vacate the sentences and remand for resentencing.

BACKGROUND

¶ 2 The Utah Division of Securities (the Division) revoked Udy's broker-dealer/agent license on October 9, 2003, for issuing unregistered securities in violation of a Stipulation and Consent Order, and barred him from employment with any licensed broker-dealer or investment advisor in Utah. Nonetheless, Udy continued to offer and sell promissory notes. On December 21, 2005, the State charged Udy with four felony counts related to his alleged solicitation of loans from dozens of victims: one count of making false statements in a securities document, two counts of securities fraud, and one count of sale by an unlicensed broker-dealer or agent. The State calculated that Udy owed nearly $14.7 million in restitution, an amount that Udy challenged. On December 3, 2007, Udy entered a guilty plea to one count of securities fraud and one count of false statements in a securities document and the State dismissed the other charges. The trial court held the plea in abeyance on the condition that Udy pay restitution to all of the identified victims and obey all securities laws. Just nine days after the plea, Udy solicited an additional $50,000 from one of his previous victims. The victim reported Udy to the Division in June 2009. As a result, the trial court revoked Udy's plea in abeyance and entered his plea as guilty.

¶ 3 At a “sentencing” hearing on May 3, 2010 (the First Hearing), defense counsel represented that Udy was working on a “business deal” with an expected “$15 million” commission with which Udy planned to pay restitution. Udy personally addressed the court and described the deal. He also apologized to the State and to the victims. According to Udy, the deal would fail if he were incarcerated because he was “the middle man on it.” Although the State was skeptical, some of the victims asked the trial court to give Udy time to finalize the deal so that he could repay them. The trial court asked Udy how long he needed to close the deal, to which Udy replied, “60 days at most.”

¶ 4 The trial court then announced that it was “ready to sentence” Udy and stated,

I'm going to give him 1 to 15 on the two second degree felonies; ² zero to 5 on the third; stay the imposition of that sentence. I'm going to make him do a year in jail. And then after the year in jail, he'll be on 36 months probation. But this is the deal. Right now it's May 3rd. We'll go to June, July and I'm going to cut you a little slack here, if you have—we'll set a review on the 2nd of August—no, ... I'll give you even some more time. Let's do the review on the 3rd of August, 8:30 in the morning. You have these people paid off because this money has come in in the 60 day time frame, I'll reconsider the jail sentence and I may cut it down. You'll do a little jail. [There's] going to be a little punitive aspect to it, but I'm willing to do that and some of those people have urged me to do that. And if you don't, you're going to do the year regardless.

After further discussion, the trial court warned that if the restitution was not paid within three months, Udy was “at least going to go to jail, and he may go to prison.” The court explained that it was “relying on what he's telling me right now and I'm really skeptical.... It just sounds like a lot of hot air.”

¶ 5 An unsigned document titled “Minutes Sentencing Sentence, Judgment, Commitment” (the First Order) from the First Hearing states that Udy was sentenced to suspended prison terms, and that “if the defendant pays off all victims, court will consider jail sentence, if the victims are not paid off, defendant will serve the 365 days as ordered.” The First Order characterized the hearing set for August 3, 2010 (the Second Hearing), as a “Review Hearing.”

¶ 6 At the Second Hearing, Udy's counsel informed the trial court that Udy had been unable “to make substantial restitution payments,” but asked for more time to complete the deal, stating, “[I]f [Udy] is taken into custody today, ... it's very likely that that particular business deal would fall through.” When trial counsel then submitted a letter and an email and attempted “to bring the Court up to speed with respect to what has been occurring,” the trial court interrupted, stating, “[G]ive me a break. I gave him a drop dead date and I let him tell me how long it would take. Did I not?” After Udy's counsel acknowledged, “You did, your honor,” the court stated, “It's over. It's over.” Udy's attorney then attempted to speak, stating, “Your Honor—” but the court interjected, “No, no, no. It's over. I gave him an opportunity....” After refusing to hear from the defense, the trial court invited the State to comment, eliciting the State's “feeling” that the letter “was just printed up,” and its “instinctual feeling” that “Mr. Udy is probably being scammed and he's taken some of this ... latest money that he's received from people, sent it on to this bigger fish that's scamming him.” The State concluded by stating, “[T]he bottom line is that this money is not coming,” to which the trial court responded, “I don't believe it is either.”

¶ 7 Udy's counsel again attempted to speak, stating, “Your Honor, I have another matter—” at which point the trial court cut him off with, “No. No, we're not talking any more. Enough is enough. And I said jail time.” The trial court then stated that it had “revisited this ... and I feel so sorry for these people who have been ripped off.” The trial court then sentenced Udy to concurrent prison terms of one to fifteen years and zero to five years. Udy's counsel protested the sentence, saying that he understood “prison was suspended [and] that he was sentenced to one year in the Salt Lake County Jail.” The trial court replied, “No, I'm backing up on that.... I initially said that I was going to give him a year in jail. I'm not. He lied to me. And if he lies to me, then he's going to pay the price.... So he's going to prison. And I did sentence him to prison, but I suspended it. Now he's going forthwith.”

¶ 8 In response to trial counsel's request for further explanation, the trial court stated its belief that Udy had intentionally deceived the court at the May hearing when “he assured [the court] that that money would be here so he could pay off those people.... He lied.... He doesn't get the benefit of the better sentence.” Udy's counsel then stated that the trial court had already sentenced Udy to one year in jail but had offered “a discount” if he was able to pay the restitution. The trial court disagreed, explaining that it had offered Udy “the benefit of the doubt” and provided him an “opportunity” to show that he deserved leniency. However, the court indicated that it was going to “pull the plug” on the jail sentence because of Udy's admission to the offenses and Udy's dishonesty about the restitution efforts.

¶ 9 On the same day as the Second Hearing, the trial court signed and entered a document titled “Minutes Sentence, Judgment, Commitment,” memorializing the prison sentence. The trial court later signed and entered a “ruling” explaining that at the First Hearing, Udy “was sentenced on the felony charges which were suspended and he was given a year in jail,” but that because Udy “had misrepresented and lied to the court regarding his ability” to repay the victims, the court “amended the sentence and sent [Udy] to prison rather than imposing the jail term ordered [at the First Hearing].”

¶ 10 Udy filed a timely appeal and also filed a Motion to Correct Sentence under rule 22(e) of the Utah Rules of Criminal Procedure.

ISSUES AND STANDARD OF REVIEW

¶ 11 Udy challenges his prison sentence as a violation of federal and state constitutional protection against double jeopardy. SeeU.S. Const. amend. V (“[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”); Utah Const. art. I, § 12 (“[N]or shall any person be twice put in jeopardy for the same offense.”). Alternatively, Udy claims that the trial court violated his right to allocution and due process when it refused to allow him to make a statement or introduce mitigating evidence during the Second Hearing. We review these questions of law for correctness. See Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177.

ANALYSIS

I. Double Jeopardy

¶ 12 Udy claims that the trial court subjected him to double jeopardy by increasing his sentence after he had a legitimate expectation of finality in it. The State contends that we should decline to address Udy's double jeopardy claim because it is not preserved. If we do consider the claim, the State argues that Udy was not sentenced until the Second Hearing. In response, Udy asserts that he preserved the double jeopardy claim in his rule 22(e) motion filed in the trial court. Even if that motion did not preserve the claim, Udy contends that we should consider his claim, either because the sentence is illegal and can be challenged at any time or because his trial counsel was ineffective in failing to preserve the double jeopardy claim. ³ We need not consider whether Udy's double jeopardy claim is preserved because Udy can raise his double jeopardy claim for the first time on appeal.

A. Rule...