State v. Todd , 312 P.3d 936 ( 2013 )

2013 UT App 231_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
SHAYNE E. TODD,
Defendant and Appellant.
Memorandum Decision
No. 20110885‐CA
Filed September 26, 2013
Third District, Salt Lake Department
The Honorable Randall N. Skanchy
No. 991906743
Debra M. Nelson, Attorney for Appellant
John E. Swallow and Laura B. Dupaix, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES JAMES Z. DAVIS and CAROLYN B. MCHUGH
concurred.
ORME, Judge:
¶1 Shayne Todd appeals the district court’s denial of his motion
to correct an illegal sentence under rule 22(e) of the Utah Rules of
Criminal Procedure. We affirm.
¶2 In 2001, a jury convicted Todd of murder. As a result of the
same episode, he also pled guilty to purchasing or possessing a
dangerous weapon. He was subsequently sentenced to five years
to life in prison for the murder conviction, and one to fifteen years
in prison for the dangerous weapon conviction. The court ordered
the sentences to run consecutively. Todd attempted to challenge his
State v. Todd
convictions through both direct appeal and postconviction review,
but he was unsuccessful.
¶3 The sentencing report prepared by Adult Probation and
Parole following his convictions estimated that under the Utah
Sentence and Release Guidelines (the Guidelines), Todd would
serve a total of twenty‐six‐and‐a‐half years in prison. However,
at his parole hearing in 2001 immediately following sentencing,
Todd was informed that he would not be granted another parole
hearing until 2029, thus virtually guaranteeing that he would be
incarcerated for at least twenty‐eight years. Nine years later, the
Board of Pardons issued an order entitled “Special Attention
Review,” which determined that no change would be made to
Todd’s sentence and that his 2029 parole hearing date would
remain in place. The Board’s order listed the length of Todd’s
sentence for murder as “5–100 years.” Todd filed a pro se motion
under rule 22(e) of the Utah Rules of Criminal Procedure, arguing
that the Board had altered his sentence and that the sentence was
therefore illegal. The district court denied the motion. Todd
appeals. We review the legality of a sentence for correctness. State
v. Thorkelson, 2004 UT App 9, ¶ 9, 84 P.3d 854.
¶4 Rule 22(e) allows us to “correct an illegal sentence, or a
sentence imposed in an illegal manner, at any time.” Utah R. Crim.
P. 22(e). Because there is no time bar under the rule, its use is
“narrowly circumscribed,” State v. Telford, 2002 UT 51, ¶ 5, 48 P.3d
228 (per curiam), and it cannot be used as “a veiled attempt to
challenge the underlying conviction by challenging the sentence,”
State v. Candedo, 2010 UT 32, ¶ 9, 232 P.3d 1008. An “illegal sentence
generally occurs in one of two situations: (1) where the sentencing
court has no jurisdiction or (2) where the sentence is beyond the
authorized statutory range.” Thorkelson, 2004 UT App 9, ¶ 15.
¶5 Todd first argues that the Board’s characterization of his
sentence modified the sentence beyond its statutory range and was
therefore illegal. He also argues that the modification violated his
due process rights. We agree with the district court’s assessment
20110885‐CA 2 2013 UT App 231State v. Todd
that listing Todd’s sentence as “5–100 years” for his murder
conviction “is merely the numerical designation used by the Board
of Pardons to reflect” his five‐year‐to‐life sentence. The Utah
Supreme Court has twice recognized the difficulty that life
sentences present when real‐world numerical calculations of a
prisoner’s sentence need to be made. State v. Schreuder, 712 P.2d
264, 277 (Utah 1985) (“Pointing out the obvious difficulty of
carrying out a sentence of ‘life minus thirty months,’ the Court
referred the matter to the Board of Pardons . . . . A similar reference
is appropriate here.”) (citing State v. Jaramillo, 481 P.2d 394, 395
(Utah 1971)); Jaramillo, 481 P.2d at 395 (“No elaboration is necessary
to make apparent the difficulties that would be encountered in
trying to determine and carry out a maximum sentence of life
imprisonment, minus 30 months.”). Indeed, the courts of this state
have deferred to the Board when it comes to computing the actual
numerical terms of a sentence to be served. See Schreuder, 712 P.2d
at 277; Jaramillo, 481 P.2d at 395 (“The answer to this perplexity is
to be found in practical common sense. Both the prison authorities
and the Board of Pardons have available to them the total record of
the defendant.”).
¶6 We see no error in the Board’s use of its numerical
computation when calculating Todd’s parole eligibility on his life
sentence. In our view, such a designation appears to be one of
“practical common sense.” See Jaramillo, 481 P.2d at 395. The record
is clear that the Board was not altering or modifying Todd’s
sentence. In fact, in the Board’s order setting forth its numerical
computation, the Board itself stated that “no change” had been
made to Todd’s custodial status. Because we determine that the
Board did not alter Todd’s sentence, there is no illegal sentence for
us to correct and no due process concerns for us to address.
¶7 Todd also argues that his sentence is illegal because the
Board exceeded its authority when it fixed a definite term within
an indeterminate sentence, thus allegedly violating multiple
provisions of the Utah Constitution. The Utah Supreme Court has
already considered and rejected similar arguments. See Telford, 2002
20110885‐CA 3 2013 UT App 231State v. Todd
UT 51, ¶¶ 2–3; Padilla v. Board of Pardons, 947 P.2d 664, 669 (Utah
1997). In Padilla, a prisoner challenged the Board’s power to
make parole determinations, claiming it violated the separation of
powers doctrine found in article V, section 1 of the Utah
Constitution. 947 P.2d at 668. The Court held that
the fact that the Board has been given this power [to
fix a parole date] does not mean that the Board
exercises a “sentencing” power. Rather, the Board
merely exercises its constitutional authority to
commute or terminate an indeterminate sentence
that, but for the Board’s discretion, would run until
the maximum period is reached.
Id. at 669. The Court also determined that “while the courts have
the power to sentence, the Board has been given the power to
pardon and parole. These are two separate and distinct powers,
neither of which invades the province of the other.” Id. The Court
came to the same conclusion in another case in which a prisoner
“attack[ed] the constitutionality of Utah’s indeterminate sentencing
scheme.” See Telford, 2002 UT 51, ¶ 2. The Telford court, relying
on Padilla, determined that there was “no basis for [the Court]
to depart from [its] established precedent” and that indeterminate
sentencing was indeed constitutional. Id. ¶ 3. We therefore
conclude that “the Board’s exercise of its parole power in setting
determinate parole dates does not violate . . . the Utah
Constitution” and that Todd’s sentence is therefore not illegal on
those grounds. Padilla, 947 P.2d at 669.
¶8 Finally, Todd argues that his right to due process under the
Utah Constitution was violated when the Board set parole for a
date beyond that anticipated by the Guidelines. The argument is
doubtful, given that the Guidelines are, after all, only guidelines.
See Preece v. House, 886 P.2d 508, 511 (Utah 1994) (“The state
sentencing guidelines used by the board of pardons do not have
the force and effect of law. Consequently, any ‘expectation of
release’ derived from the guidelines is at best tenuous.”). But in
20110885‐CA 4 2013 UT App 231State v. Todd
any event this issue is not properly before us because we are
limited in this appeal to considering issues related only to the
legality of Todd’s sentence. See State v. Candedo, 2010 UT 32, ¶ 9,
232 P.3d 1008. See also Renn v. Board of Pardons, 904 P.2d 677, 680,
685 (Utah 1995) (determining that rule 65B of the Utah Rules of
Civil Procedure is the proper avenue for challenging the
postponement of a parole hearing beyond the time frame
recommended in the Guidelines). We therefore decline to address
it.
¶9 Affirmed.
20110885‐CA 5 2013 UT App 231