State of Utah v. Thomas

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Richard Dee Thomas,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010553-CA

F I L E D
February 7, 2002 2002 UT App 31 -----

Third District, Salt Lake Department
The Honorable Paul G. Maughan

Attorneys:
Richard Dee Thomas, Draper, Appellant Pro Se -----

Before Judges Billings, Davis, and Thorne.
PER CURIAM:

Appellant Richard Dee Thomas appeals the denial of his Motion to Correct Illegal Sentence and Arrest Judgment. Thomas's conviction was affirmed on direct appeal. See State v. Thomas, 961 P.2d 299 (Utah 1998); State v. Thomas, 1999 UT App 51.

Thomas's motion purportedly challenged an illegal sentence or a sentence imposed in an illegal manner under Rule 22(e) of the Utah Rules of Criminal Procedure; however, the motion constitutes a challenge to the underlying conviction, not the sentence. He contended that his sentence is illegal because the underlying conviction was rendered by a court he claims lacked subject matter jurisdiction. As such, the motion was not a valid Rule 22(e) motion. "[R]ule 22(e) does not allow an appellate court to review the legality of a sentence when the substance of the appeal is not a challenge to the sentence itself, but to the underlying conviction." State v. Brooks, 908 P.2d 856, 860 (Utah 1995). "A request to correct an illegal sentence under rule 22(e) presupposes a valid conviction" and "issues concerning the validity of a conviction are not cognizable under rule 22(e)." Id. The motion filed in district court and the brief filed in this court each challenge the underlying felony conviction, which was previously affirmed on appeal. Accordingly, the arguments cannot be considered by this court in a review of the legality of the sentence.

Similarly, Thomas's motion was not an appropriate motion to arrest judgment, which must be filed "prior to the imposition of sentence." Utah R. Crim. P. 23. A motion to arrest judgment filed after both sentencing and direct appeal is clearly untimely and procedurally incorrect.

Even if considered as a petition for post-conviction relief, claims made pursuant to Salt Lake City v. Ohms, 881 P.2d 84 (Utah 1994) could have been raised in his direct appeal. See Utah Code Ann. § 78-35a-106 (1996) (precluding post-conviction relief on grounds that could have been but were not raised on appeal). Thomas's claim that the circuit court lacked jurisdiction to issue a bindover on a felony charge following a preliminary hearing is wholly without merit.

We affirm the denial of the Motion to Correct Illegal Sentence or to Arrest Judgment.
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
William A. Thorne, Jr., Judge