State of Utah v. DeBoard

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Kelly Ray DeBoard,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981387-CA

F I L E D
April 1, 1999

1999 UT App 101 -----

Third District, Salt Lake Department
The Honorable Michael L. Hutchings

Attorneys:
Catherine L. Begic and Deborah Kreeck Mendez,Salt Lake City, for Appellant
Jan Graham and Laura B. Dupaix, Salt Lake City, for Appellee

-----

Before Judges Wilkins, Davis, and Orme.
PER CURIAM:

DeBoard did not have counsel at the May 13, 1998, hearing, and requests this court to vacate his sentence and remand for re-sentencing. However, because DeBoard was represented by counsel at a hearing on June 19, 1998, during which he was formally sentenced, his claim raises a question of mootness. See generally State v. Martinez, 925 P.2d 176 (Utah Ct. App. 1996).

An issue on appeal is considered moot when "the requested judicial relief cannot affect the rights of the litigants." State v. Sims, 881 P.2d 840, 841 (Utah 1994)(citations omitted). Even if we accept DeBoard's claim concerning counsel and sentencing, we cannot put him in a better position than he is already in because DeBoard had an opportunity to be represented by counsel at the June 19th sentencing hearing.

Utah courts have invoked an exception to mootness for an issue that "although technically moot as to a particular litigant at the time of appeal, is of wide concern, affects the public interest, is likely to recur in a similar manner, and, because of the brief time any one person is affected, would otherwise likely escape judicial review." Wickham v. Fisher, 629 P.2d 896, 899 (Utah 1981). However, the exception does not apply. The underlying issue of the case--"that sentencing is a critical stage in a criminal proceeding and that defendants have a right to counsel during sentencing"--is already well settled. State v. Martinez, 925 P.2d at 178 (citations omitted).

Accordingly, the trial court is affirmed.
 
 

_____________________________
Michael J. Wilkins,
Presiding Judge
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Gregory K. Orme, Judge