State of Utah v. Angelos

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Tommy Lee Angelos,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010509-CA
 

F I L E D
(May 22, 2003)
 

2003 UT App 162

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Second District, Farmington Department

The Honorable Jon M. Memmott

Attorneys: Scott L. Wiggins, Salt Lake City, for Appellant

Mark L. Shurtleff and Jeffrey T. Colemere, Salt Lake City, for Appellee

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Before Judges Jackson, Billings, and Davis.

JACKSON, Presiding Judge:

Angelos appeals and requests that his sentence be vacated and the case remanded for further proceedings. He claims the Drug Court committed two constitutional errors when he was sentenced on May 15, 2001, after he failed to comply with his prior Plea in Abeyance: (1) he was not represented by counsel and (2) he was denied due process.

The State responds with the argument that any error on May 15th is moot because the court realized its errors and corrected them by affording Angelos a new sentencing hearing on November 13, 2001. We agree that Angelos's claim is moot because he had adequate notice and counsel present at the resentencing hearing. Thus, the constitutional infirmities were corrected.(1) See State v. Martinez, 925 P.2d 176, 177 (Utah Ct. App. 1996).

Angelos asserts, however, that the Drug Court was divested of jurisdiction when he filed a notice of appeal with this court on June 14, 2001, after his first hearing. Thus, he argues that the Drug Court could not hold a rehearing to correct its prior errors.

Neither of the parties' briefs cited us to rule 22(e) of the Utah Rules of Criminal Procedure, which provides: "The court may correct an illegal sentence, or a sentence imposed in an illegal manner, at any time." The parties agree that the sentence at Angelos's first hearing was imposed in an illegal manner. Because the statute authorizes the court to correct this kind of sentence "at any time," the court had jurisdiction to do so in November 2001 regardless of the appeal. Since the November sentence was imposed in a legal manner, i.e., without legal error, the May errors were corrected. Accordingly, Angelos's November sentence is affirmed.

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Norman H. Jackson,

Presiding Judge

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WE CONCUR:

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Judith M. Billings,

Associate Presiding Judge

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James Z. Davis, Judge

1. Utah courts recognize an exception for an issue that "although technically moot as to a particular litigant at the time of appeal, is of wide concern, affects the public interest, is likely to recur in a similar manner, and because of the brief time any one person is affected, would otherwise likely escape judicial review." Wickham v. Fisher, 629 P.2d 896, 899 (Utah 1981). Because the record here is inadequate, we cannot reach the public interest exception. Nevertheless, we note that the constitutional rights of defendants in Drug Court are not diminished by the informal nature of the proceedings.