State of Utah, v. Headley

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Thomas C. Headley,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990462-CA

F I L E D
February 28, 2002 2002 UT App 58 -----

Third District, Salt Lake Department
The Honorable Tyrone Medley

Attorneys:
Edward R. Montgomery, Salt Lake City, for Appellant
Mark L. Shurtleff and Thomas Brunker, Salt Lake City, for Appellee

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Before Judges Jackson, Greenwood, and Thorne.

JACKSON, Presiding Judge:

Thomas Headley appeals the district court's denial of his Motion to Correct Illegal Sentence submitted under Rule 22(e) of the Utah Rules of Criminal Procedure. He contends the district court erred in ruling that his motion did "not attack the legality of the sentence imposed nor the manner in which the sentence was imposed." Headley's contention is two-fold: (1) his counsel at sentencing provided ineffective assistance; and (2) the sentencing court relied on information in the presentence report that the court knew was false. We affirm.

A district court's Rule 22(e) decision is a legal question that we review for correctness, see State v. Brooks, 908 P.2d 856, 858-59 (Utah 1995); State v. Patience, 944 P.2d 381, 384-85 (Utah Ct. App. 1997), and we can affirm the decision "if it is sustainable on any legal ground or theory apparent on the record." State v. Finlayson, 2000 UT 10,¶31, 994 P.2d 1243. Rule 22(e) of the Utah Rules of Criminal Procedure provides for resentencing when a sentence is illegal or "imposed in an illegal manner." Utah R. Crim. P. 22(e). The definition of an "illegal sentence" has been construed narrowly to include only sentences "where the sentence does not conform to the crime of which the defendant has been convicted."(1) State v. Parker, 872 P.2d 1041, 1043 n.2 (Utah Ct. App. 1994). Utah law has no comprehensive definition of sentences "imposed in an illegal manner"; however, the Utah Supreme Court has ruled that a sentence is imposed in an illegal manner when a defendant is deprived of his or her Sixth Amendment right to counsel during sentencing.(2) See Kuehnert v. Turner, 28 Utah 2d 150, 499 P.2d 839, 841 (1975) (concluding that the sentence was illegal because the defendant did not have counsel at sentencing, was not informed of his Sixth Amendment rights during sentencing, and had not knowingly and intelligently waived his Sixth Amendment rights).(3) In Kuehnert, the Utah Supreme Court stated that the presence of counsel at sentencing is necessary so that there is a real opportunity to present to the court facts in extenuation of the offense or in explanation of the defendant's conduct, as well as to correct any errors or mistakes in reports of the defendant's past record and to appeal to the equity of the court in its administration and enforcement of penal laws. Id. at 840-41.(4)

Headley first claims his counsel at sentencing provided ineffective assistance, thus depriving him of his Sixth Amendment right. To support his claim, Headley makes six assertions, four are as follows: (1) he asserts that his challenge to misinformation in the presentence investigation report was rejected by the sentencing court because it was poorly handled by sentencing counsel; (2) he challenges several factual statements contained in the presentence investigation report; (3) he asserts that "his own counsel accused him of being involved in incest when that information was not otherwise before the court"; and (4) he asserts that "his [sentencing] counsel convinced a witness with potentially exculpatory evidence not to cooperate with [Headley]." Each of these four assertions has some connection with the presentence investigation report, which is not in the record on appeal. Further, no other information in the record supports these assertions. Accordingly, as discussed below, we are unable to address them.

Next, Headley claims the sentencing court imposed a $10,000 fine without reason and without objection by his counsel. We find no mention of a $10,000 fine in the record. The only fines mentioned in the sentencing context, a $1,000 recoupment fee and an unspecified amount to "pay for costs of extradition and for therapy of victim," are found in the sentencing transcript and the Judgment filed three days later. Finally, Headley alleges that "his counsel intentionally tried to prevent him from pursuing an appeal." However, the record reflects that Headley filed a notice of appeal on September 24, 1992, but voluntarily moved to dismiss his appeal to "file a motion to withdraw his plea of guilty." Headley's motion was granted on October 8, 1992, and the record contains no indication of subsequent attempts to appeal the case.

Without the presentence report or other information which may or may not be in the sentencing court record, the record submitted to us is inadequate for our review of Headley's ineffective assistance claim. All we have are Headley's unilateral, bald assertions of misconduct. As we have stated, When a defendant predicates error to [an appellate court], he has the duty and responsibility of supporting such allegation by an adequate record. Absent that record, a defendant's assignment of error stands as a unilateral allegation which the reviewing court has no power to determine. [An appellate court] simply cannot rule on a question which depends for its existence upon alleged facts unsupported by the record. Consequently, in the face of an [in]adequate record on appeal, [we] must assume the regularity of the proceedings below. State v. Penman, 964 P.2d 1157, 1162 (1998) (internal quotations and citations omitted) (alterations in original); see also State v. Litherland, 2000 UT 76,¶17, 12 P.3d 92 ("Where the record appears inadequate in any fashion, ambiguities or deficiencies resulting therefrom simply will be construed in favor of a finding that counsel performed effectively."). Accordingly, we reject Headley's Sixth Amendment claim.

Next, Headley claims the sentencing court was biased because it relied on information in the presentence report that the court knew was false. Utah Code Ann. § 77-18-1(6) (Supp. 2001) gives a sentencing judge discretion in evaluating information in a presentence report and requires the judge to "make a determination of relevance and accuracy on the record." Here, the sentencing judge made a determination of the relevance and accuracy of the presentence report, deciding the presentence report was "comprehensive in all the details," and stating that those working on elements of the presentence report "do a pretty good job." The sentencing court has broad discretion to resolve factual disputes for or against a defendant, see id., and we cannot say the court exceeded its discretion in making this determination. Further, without the presentence report, the record is inadequate and "'[we] must assume the regularity of the proceedings below.'" Penman, 964 P.2d at 1162 (citation omitted) (alteration in original).

Accordingly, we affirm the district court's denial of Headley's Rule 22(e) motion for resentencing.
 
 

______________________________
Norman H. Jackson,
Presiding Judge

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I CONCUR:
 
 

______________________________
William A. Thorne Jr., Judge -----

GREENWOOD, Judge (concurring in the result):

I concur in the result reached by my colleagues, but would affirm on what I perceive to be a more straightforward basis. As stated by the majority, the trial court denied defendant's Rule 22(e) motion because the motion did "not attack the legality of the sentence imposed nor the manner in which the sentence was imposed." The trial court was correct.

Defendant's claims of ineffective assistance of counsel and erroneous fact findings by the sentencing judge are simply not cognizable under Rule 22(e). Defendant has not cited any caselaw holding otherwise and has also not offered any reasoned analysis for why Rule 22(e) should apply to his case. See State v. Thomas, 961 P.2d 299, 305 (Utah 1998) (briefs must include "reasoned analysis based on [cited] authority"). The sentence imposed was permissible under applicable statutes, and the trial court properly resolved factual disputes presented to it. Defendant raises no claims legitimately related to whether the sentence was illegal or "imposed in an illegal manner." Utah R. Crim. P. 22(e). On that basis, I would affirm.
 
 

______________________________
Pamela T. Greenwood, Judge

1. Nonconforming sentences include those where the sentence exceeds the statutory limits. See, e.g., State v. Higginbotham, 917 P.2d 545, 551 (Utah 1996) (concluding that the sentence was illegal because statute only authorized one year enhancement and the court enhanced sentence by two years); State v. Patience, 944 P.2d 381, 388 (Utah Ct. App. 1997) (noting that the sentence was illegal because it exceeded statutory term). Nonconforming sentences also occur when the court is without jurisdiction to impose a sentence. See, e.g., State v. Hurst, 777 P.2d 1029, 1036 n.6 (Utah 1989) (stating that sentences can be attacked when beyond the jurisdiction of the sentencing court); State v. Arviso, 1999 UT App 381,¶¶5-8, 993 P.2d 894 (stating that the sentence was illegal because Supremacy Clause deprived sentencing court of jurisdiction); State v. Grate, 947 P.2d 1161, 1168 (Utah Ct. App. 1997) (stating that the sentence was illegal because court did not have jurisdiction to revoke probation).

2. Other jurisdictions have defined sentences imposed in an illegal manner as those that are within statutory and jurisdictional limits, but violate a defendant's rights, see, e.g., Government of the V.I. v. Martinez, 239 F.3d 293, 299 n.3 (3rd Cir. 2001); State v. McNellis, 546 A.2d 292, 305-06 (Conn. Ct. App. 1988); State v. Sieler, 554 N.W.2d 447, 479 (S.D. 1996); cf. State v. Anderson, 661 P.2d 716, 720-24 (Haw. Ct. App. 1983); State v. Brooks, 589 A.2d 444, 447 (Maine 1991); or that are based on erroneous information. See, e.g., United States v. Katzin, 824 F.2d 234, 238 (3rd Cir. 1987).

3. Kuehnert, which discusses illegal sentences under the rules in force prior to Rule 22(e), was not cited in the parties' briefs.

4. See also McConnell v. Rhay, 393 U.S. 2, 4, 89 S. Ct. 32, 33-34 (1968) ("As we said in Mempa[ v. Rhay, 389 U.S. 128, 135, 88 S. Ct. 254, 257 (1967)], 'the necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances[,] and in general aiding and assisting the defendant to present his case as to sentence is apparent.' The right to counsel at sentencing must, therefore, be treated like the right to counsel at other stages of adjudication." (Citation omitted.)).