State of Utah v. Burr

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Robert C. Burr,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000336-CA

F I L E D
October 19, 2000
  2000 UT App 288 -----

Second District, Ogden Department
The Honorable Pamela G. Heffernan

Attorneys:
Robert C. Burr, Draper, Appellant Pro Se
L. Dean Saunders, Ogden, for Appellee

-----

Before Judges Jackson, Billings, and Orme.

PER CURIAM:

Appellant Robert C. Burr appeals the denial of a motion to correct an illegal sentence under Rule 22 of the Utah Rules of Criminal Procedure. This case is before the court on the State's motion for summary affirmance.

The sentence imposed was within statutory limits; however, Burr contends the sentence was imposed in an illegal manner because he was not personally provided with a copy of the presentence report. The sentencing transcript reflects that the trial court confirmed that defense counsel had the opportunity to review the presentence report. The trial judge also asked Burr whether he understood the sentencing recommendation made in the report, and Burr responded in the affirmative.

Utah Code Ann. § 76-3-404(b)(i) (1999) states that "the court, prosecutor, and the defendant or his attorney shall be provided with" the written presentence report. (Emphasis added.) Similarly, Utah Code Ann. § 77-18-1(6)(a) (1999) states, in part, that "[t]he department shall provide the presentence report to the defendant's attorney, or the defendant if not represented by counsel, the prosecutor, and the court for review three working days prior to sentencing." (Emphasis added); see also Neel v. Holden, 886 P.2d 1097, 1102 n.4 (Utah 1996) (stating section 77-18-1(6)(a) requires that "the defendant or the defendant's attorney be provided, prior to sentencing, with a written presentence report"). Burr cites no authority for his claim that the court must affirmatively determine whether a defendant who is represented by counsel has personally received or actually reviewed the report. Burr failed to establish that his sentence was either illegal or imposed in an illegal manner, and the trial court did not err in denying the motion.

The State also argues that Burr failed to timely move to withdraw his guilty plea under Utah Code Ann. § 77-13-6 (1999). Burr did not file any motion to withdraw his guilty plea in the trial court, and the issue is not properly before this court on appeal. The request to withdraw the guilty plea was based solely upon the Rule 22(e) motion. See State v. Arviso, 1999 UT App 381,¶¶9-11, 993 P.2d 894 (holding guilty plea may be withdrawn in the limited circumstance where plea bargain contemplated a particular sentence subsequently determined to be illegal). Having determined that the sentence was not illegal or imposed in an illegal manner, there is no basis from which to conclude that Burr should be allowed to withdraw his guilty plea.

Affirmed.
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge