State v. Jones

State v. Jones

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

David Thayne Jones,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040152-CA
 

F I L E D
(December 9, 2004)
 

2004 UT App 459

 

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Second District, Ogden Department

The Honorable W. Brent West

Attorneys: David Thayne Jones, Draper, Appellant Pro Se

Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Orme.

PER CURIAM:

    This case is before the court on its own motion for summary disposition on the alternative grounds of lack of jurisdiction or that the issues presented are so insubstantial as to not merit further consideration. See Utah R. App. P. 10. The State has conceded, and we agree, that this court has jurisdiction. The trial record did not contain documents critical to determining the timeliness of the notice of appeal. The trial court docket also does not reference the documents. Apparently, this is because the documents were inadvertently filed in the record of a civil case in which Jones is a litigant. Now that the documents have been located, it is apparent that this court has jurisdiction. Therefore, we address the issue of whether the issues presented are substantial enough to merit further consideration by this court.

    This is an appeal of the trial court's denial of Jones's motion to correct an illegal sentence, pursuant to rule 22(e) of the Utah Rules of Criminal Procedure. In his motion, Jones argued that: (1) his counsel at the plea hearing was ineffective; (2) the trial court lacked subject matter jurisdiction to accept the plea, or impose sentence, because there was an insufficient factual basis for the offense of attempted homicide.

    Jones has filed numerous appeals in this court and the supreme court. Several of them relate, as does this appeal, to a conviction entered in 1990 of attempted homicide. This appeal appears to be another attempt to appeal the conviction, this time under the guise of a motion to correct an illegal sentence.

    The trial court denied Jones's motion for two reasons: (1) the court had already addressed the same argument in prior petitions; (2) Jones had already filed one prior motion to correct an illegal sentence. In the first motion the trial court agreed and corrected the sentence. The trial court determined that Jones did not raise the current issues in that motion and cannot continue refiling the same motions with new issues; rather, he must allege all issues supporting the motion at one time.

    Jones has not responded to this court's motion. However, in the motion filed in the trial court, he argued that evidence of the element of intent was lacking. He asserted that he was only driving twenty-five miles per hour when he hit the other vehicle. Further, he claimed that the evidence that he intentionally crashed into the other vehicle because he mistakenly thought it was his ex-girlfriend's car was hearsay and fabrication. As a result, he claimed the trial court lacked subject matter jurisdiction because there was an insufficient factual basis to support the guilty plea.

    The State, however, correctly argues that a motion to correct an illegal sentence may not be used to attack the conviction. See State v. Telford, 2002 UT 51,¶7, 48 P.3d 228; State v. Reyes, 2002 UT 13,¶¶3-4, 40 P.3d 630; State v. Brooks, 908 P.2d 856, 860 (Utah 1995). While a rule 22(e) motion may be used to correct a sentence imposed under circumstances in which the trial court had no jurisdiction, it cannot be used to argue insubstantial evidence resulted in a lack of jurisdiction. See Telford, 2002 UT 51 at ¶5 n.1.

    The issues on appeal are also insubstantial because Jones has argued these same issues, not only before the trial court, but before this court as well. As the State points out, in Jones's first motion to correct an illegal sentence, he challenged the sentence, but also improperly challenged the conviction. When the trial court denied the part of the motion that challenged the conviction, Jones appealed to this court. This court agreed that Jones could not attack the validity of a conviction by use of a rule 22(e) motion. See State v. Jones, 2002 UT App 12,¶2. Further, a request to correct an illegal sentence presupposes that the conviction is valid. See id.

    Jones has also argued the same issues he presents in this appeal from the dismissal of a post-conviction petition regarding this same conviction. In the petition, he argued that his counsel was ineffective because he allowed Jones to plead guilty to an offense for which there was insufficient evidence. He argued that there was insufficient evidence to support the offense of attempted homicide.

    Jones also filed a motion to withdraw his plea to the offense underlying this appeal. He made the same argument and the motion was denied by the trial court.

    We summarily affirm the trial court's denial of Jones's motion based on rule 22(e) of the Utah Rules of Criminal Procedure.

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Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

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Gregory K. Orme, Judge