State v. McGuire

State v. McGuire

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Shawn C. McGuire,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030418-CA
 

F I L E D
January 13, 2005
 

2005 UT App 13

 

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Third District, Salt Lake Department

The Honorable Paul G. Maughan

Attorneys: Joan C. Watt and Nisa J. Sisneros, Salt Lake City, for Appellant

Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

    Shawn C. McGuire appeals the sentence entered by the trial court. McGuire also appeals an order denying a motion to reconsider the sentence.

    McGuire pleaded guilty to operation of a clandestine laboratory, a first degree felony under the circumstances of this case. See Utah Code Ann. §§ 58-37d-4(1)(a),-5 (2004 Supp.). On August 12, 2002, the trial court sentenced McGuire to an indeterminate term of "not less than five years and which may be life in the Utah State Prison." Rather than file an appeal, on August 13, 2002, McGuire filed a "motion to reconsider sentence." The motion was denied on April 1, 2003, on the basis that there were no grounds upon which to "reconsider" the sentence, and that the trial court lacked jurisdiction to reconsider a legally imposed sentence. McGuire subsequently filed this appeal.

    An appeal must be filed within thirty days from the entry of a final judgment or order. See Utah R. App. P. 4. In a criminal case, it is "the sentence itself which constitutes a final judgment from which the appellant has the right to appeal." State v. Bower, 2002 UT 100,¶4, 57 P.3d 1065. The "30-day period for filing a notice of appeal in a criminal case . . . is jurisdictional and cannot be enlarged by this [c]ourt." State v. Johnson, 635 P.2d 36, 37 (Utah 1981).

    McGuire's notice of appeal was filed eight months after entry of the sentence by the trial court, long past the jurisdictional deadline. See Utah R. App. P. 4. However, McGuire argues that the time for filing an appeal was tolled in this case because McGuire filed a "motion to reconsider sentence" the day after the sentence was issued.(1)

    Once a court imposes a valid sentence, it loses subject matter jurisdiction over the case. State v. Montoya, 825 P.2d 676, 679 (Utah Ct. App. 1991). However, rule 22(e) of the Utah Rules of Criminal Procedure provides a mechanism by which a defendant may attack "an illegal sentence, or a sentence imposed in an illegal manner, at any time." Utah R. Crim. P. 22(e). McGuire sought reconsideration of the sentence which was imposed after his guilty plea was entered in this case. Giving McGuire the benefit of the doubt, his motion to reconsider his sentence may be construed as a motion pursuant to rule 22(e). See Montoya, 825 P.2d at 679.

    The district court's jurisdiction over the resentencing turns on whether the initial sentence was legal. Id. (citing State v. Babbell, 813 P.2d 86, 88 (Utah 1991)). Under Montoya, this court must "determine whether the initial sentence was valid. If it was valid, the trial court would have had no further subject matter jurisdiction to resentence [defendant]. Likewise, this court would have no jurisdiction to hear the appeal." Id.

    An illegal sentence under rule 22(e) must be "patently" or "manifestly" illegal. State v. Thorkelson, 2004 UT App 9,¶15, 84 P.3d 854. "A 'patently' or 'manifestly' illegal sentence generally occurs in one of two situations: (1) where the sentencing court has no jurisdiction, or (2) where the sentence is beyond the authorized statutory range." Id. McGuire's challenge to his sentence does not fall under either situation. Instead, McGuire challenges the decision of the trial court to deny probation and sentence him to prison, a decision that is "within the complete discretion of the trial court." State v. Rhodes, 818 P.2d 1048, 1049 (Utah Ct. App. 1991). As in Thorkelson, the error alleged by McGuire involves an "ordinary or 'run-of-the-mill' error regularly reviewed on appeal under rule 4(a) of the Utah Rules of Appellate Procedure." Thorkelson, 2004 UT App 9 at ¶15.(2) There is no showing that there was anything illegal about McGuire's sentence.

    Jurisdiction to resentence McGuire would require an illegality in the initial sentence. Because the initial sentence was legal, the district court lost subject matter jurisdiction over the sentence. See Montoya, 825 P.2d at 680. Likewise, this court has no jurisdiction. See id. Lacking jurisdiction, we are required to dismiss the appeal. See Loffredo v. Holt, 2001 UT 97,¶11, 37 P.3d 1070.

    Accordingly, we dismiss this appeal for lack of jurisdiction.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge

1. McGuire argues that the "motion to reconsider" the sentence was actually a motion to "alter or amend the judgment" under rule 59(e) of the Utah Rules of Civil Procedure, thereby tolling the time for appeal under rule 4 of the Utah Rules of Appellate Procedure. See Utah R. App. P. 4(b). McGuire's attempt to categorize his "motion to reconsider" the sentence as a motion under rule 59 is unavailing because rule 22 of the Utah Rules of Criminal Procedure specifically applies to sentences. See Utah R. Crim P. 22; Utah R. Civ. P. 81(e) ("These rules of procedure shall also govern in any aspect of criminal proceedings where there is no other applicable statute or rule . . . ."). The fact that a remedy under rule 22(e) is extremely limited does not alter this outcome.

2. Moreover, there is no showing that the trial court abused its discretion, let alone entered an "illegal sentence, or a sentence imposed in an illegal manner[.]" Utah R. Crim. P. 22(e).