State v. Perry

State v. Perry

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

Clifford W. Perry,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040840-CA
 

F I L E D
(February 3, 2005)
 

2005 UT App 45

 

-----

Third District, Salt Lake Department

The Honorable Robin W. Reese

Attorneys: Clifford W. Perry, Draper, Appellant Pro Se

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

-----

Before Judges Billings, Greenwood, and Thorne.

PER CURIAM:

    Clifford W. Perry appeals from the denial of his second motion to correct an illegal sentence under rule 22(e) of the Utah Rules of Criminal Procedure. This case is before the court on a sua sponte motion for summary disposition.

    This court affirmed Perry's conviction and sentence on direct appeal. See State v. Perry, 899 P.2d 1232 (Utah Ct. App. 1995). The trial court denied Perry's first motion to correct an illegal sentence in 1998 and a motion to set aside the conviction in 1999. Perry's second motion to correct an illegal sentence was based upon Blakely v. Washington, 124 S. Ct. 2531 (2004), a recent case applying the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000). Perry contended that under Blakely, the trial judge could not have determined the facts supporting imposition of the most severe of three minimum mandatory terms of imprisonment for his conviction of aggravating kidnapping, and those facts must have been determined by a jury.(1)

    Perry argues, without adequate analysis, that Blakely applies to a trial court's determination of which of the three statutory minimum mandatory sentences should be imposed. However, the State correctly notes that Blakely and other cases following Apprendi all address a judge's determination to exceed a statutory maximum sentence, a circumstance not presented by this case. In addition, Blakely distinguished McMillan v. Pennsylvania, 477 U.S. 79, 81 (1986), which held that a defendant was not entitled to a jury determination of a fact that required the trial judge to impose a minimum mandatory sentence of imprisonment. The Blakely court observed that the Pennsylvania sentencing scheme "imposed a statutory minimum if a judge found a particular fact," but did not authorize a sentence in excess of the maximum otherwise allowed for the offense. 124 S. Ct. at 2538. Perry's sentence did not involve an increase beyond the statutory maximum sentence. He has not articulated a basis for application of the Blakely holding to a statute requiring imposition of a minimum mandatory sentence within the statutory range for the offense.

    The State also correctly notes that on the same day Blakely was decided, the United States Supreme Court decided Schriro v. Summerlin, 124 S. Ct. 2519, 2526-27 (2004), in which it held that the rule announced in Apprendi and applied in Ring v. Arizona, 536 U.S. 584 (2002), was a procedural rule that did not have retroactive application to cases already final on direct review. Perry's conviction and sentence was affirmed on direct review. See State v. Perry, 899 P.2d 1232 (Utah Ct. App. 1995). Rule 22(e) applies to correct only a "patently" or "manifestly" illegal sentence. State v. Thorkelson, 2004 UT App 9,¶15, 84 P.2d 854. Perry's citation to Thorkelson and State v. Telford, 2002 UT 51, 48 P.3d 228, does not support his claim for relief. As noted in both Thorkelson and Telford, a sentence is patently or manifestly illegal when the sentencing court lacks jurisdiction or imposed a sentence beyond the authorized statutory range. See Telford, 2002 UT 51 at ¶5; Thorkelson, 2004 UT App 9 at ¶15. Neither of those situations is presented by this case.

    We affirm the denial of Perry's second motion to correct an illegal sentence.

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Pamela T. Greenwood, Judge

______________________________

William A. Thorne Jr., Judge

1.Utah Code section 76-5-302(3) states: "Aggravated Kidnapping is a first degree felony punishable by imprisonment for an indeterminate term of not less than 6, 10, or 15 years and which may be for life. Imprisonment is mandatory in accordance with Section 76-3-406." Utah Code Ann. § 76-5-302(3) (2003).