State of Utah v. Orellana

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Karl Orellana,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010045-CA

F I L E D
February 7, 2002 2002 UT App 29 -----

Third District, Salt Lake Department
The Honorable Leon A. Dever

Attorneys:
Gregory G. Skordas, Salt Lake City, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Greenwood.
BILLINGS, Associate Presiding Judge:

Defendant first argues the trial court exceeded its discretion by revoking Defendant's probation because he did not willfully violate the conditions of his probation. "[I]n order to prevail . . . defendant 'must show that the evidence of a probation violation, viewed in a light most favorable to the trial court's findings, is so deficient that the trial court abused its discretion in revoking defendant's probation.'" State v. Peterson, 869 P.2d 989, 991 (Utah Ct. App. 1994) (quoting State v. Jameson, 800 P.2d 798, 804 (Utah 1990)).

Furthermore, "in order for a trial court to revoke probation based on a probation violation, the court must determine by a preponderance of the evidence that the violation was willful." Peterson, 869 P.2d at 991. "Willful" in this context, however, does not mean "intentional." See State v. Maestas, 2000 UT App 22,¶24, 997 P.2d 314, cert. denied, 4 P.3d 1289 (Utah 2000). Instead, "a finding of willfulness 'merely requires a finding that the probationer did not make bona fide efforts to meet the conditions of his probation.'" Peterson, 869 P.2d at 991 (quoting State v. Archuleta, 812 P.2d 80, 82 (Utah Ct. App. 1991)).

In reviewing the evidence, we conclude the trial court did not abuse its discretion by finding that Defendant willfully violated the conditions of his probation and revoking Defendant's probation. Representatives of the Utah State Tax Commission testified that Defendant did not supply them with the requested documentation. Furthermore, Defendant made no payments on his fines or restitution because he claimed to be financially unable to do so. However, he continued to work for his own family-run business, which he testified had not made money in at least the previous two years, and never attempted to find outside employment. Finally, the trial court specifically ordered Defendant to complete 50 hours of community service a month at an organization approved by the prosecutor, such as a soup kitchen. However, the trial court found that "[Defendant] didn't bother to do that." Based on this evidence, we conclude the trial court did not abuse its discretion in revoking Defendant's probation.

Defendant also argues the trial court erred when it sentenced him to consecutive sentences. However, as the State correctly points out, this court lacks jurisdiction to hear this issue because Defendant failed to file a timely notice of appeal from the final sentencing judgment. See Utah R. App. P. 4(a) (notice of appeal must be filed within 30 days after the date of entry of the judgment). Defendant's sentence was entered on December 17, 1999. He had 30 days to appeal this sentence. "Failure to file a timely notice of appeal deprives this court of jurisdiction over the appeal."(1) Reisbeck v. HCA Health Serv. of Utah, Inc., 2000 UT 48,¶5, 2 P.3d 447.

In response, Defendant contends this issue did not need to be preserved in order to be appealed to this court because the sentence was "patently illegal," relying on Rule 22(e) of the Utah Rules of Criminal Procedure. The essence of Defendant's argument is that he disagrees with the trial court's sentencing decision and believes the trial court abused its discretion when it sentenced him. Such a claim is not cognizable under Rule 22(e). "An 'illegal sentence' under Rule 22(e) applies to situations where the sentence does not conform to the crime of which the defendant has been convicted, or the sentence was imposed in an illegal manner." State v. Parker, 872 P.2d 1041, 1043 n.2 (Utah Ct. App. 1994). Therefore, because Defendant did not appeal his sentence within 30 days of the entry of judgment, and because his sentence is not an illegal sentence within Rule 22(e), this court has no jurisdiction to review his claim.
 
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge -----

WE CONCUR:
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
Pamela T. Greenwood, Judge

1. Defendant's argument that his Motion to Correct Illegal Sentence preserved the issue for appeal, which was filed November 15, 2000, fails for the same reason.