2019 UT App 187



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Appellee
, v. R OBERT B RIAN W ALTON , Appellant

.

Opinion N o. 20170977

- CA Filed November 21, 2019

Third District Court, Salt Lake Department The Honorable Paul B. Parker No. 121903179 The Honorable Mark S. Kouris No. 161907013
Deborah L. Bulkeley
, Attorney for Appellant Sean D. Reyes and Jeffrey S. Gray
, Attorney s for Appellee

J UDGE K ATE A PPLEBY authored th is Opinion
, in which J UDGES M ICHELE M. C HRISTIANSEN F ORSTER and R YAN M. H ARRIS concurred.

APPLEBY
, Judge :

¶1 In 2014, Robert Brian Walton entered an Alford plea 1 to one count of retali ation against a witness , KB , a woman he had previously dated

. As part of his sentence , Walton agreed to the

1. “An Alford plea is a type of guilty plea in which a defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty.” State v. Archuleta , 2019 UT App 136, ¶ 5 n.2, 449 P.3d 223 (quotation simplified).State v. Walton

20170977

- CA 2 2019 UT App 187 entry of a permanent criminal stalking injunction (Injunction)
, which prohibited him from contacting KB and her family. In 2017, after violating the I njunction, Wal ton asked the district
court to vacate the Injunction as an “illegal sentence.” The court denied the motion and we affirm.

BACKGROUND

¶2 Walton and KB started dating in 2010 but the relationship began to sour the following year. In 2011, KB tried to end the relationship but W alton continued to contact her. Walton went to KB ’s work place after repeatedly calling her, to convince her to go to his house

. He yelled, “K now your place. Submit, woman.” KB called the police and made a report. After KB filed the police report, Walton began contacting her saying she needed to “fix” the report and “get rid of it” because i t was going to hurt his

career.

¶3 KB made several other police reports that same year. On one occasion, Walton went to KB ’s birthday part y and got into an altercation with one of the guests. He showed up at her apartment the following day and demanded information abo ut the police report she filed. He refused to leave her apartment and demanded she “ sleep with him ” and “tried to take [her]

c lothes off.” KB sent a text message to one of he r coworkers to call the police.

¶4 Over the next several mont hs, Walton continued to contact and send text messages to KB , telling her, “ You’re fucked. You’re in so much trouble. You need to take care of this.” Walton also told KB “he was g onna take [her] out like game.” When asked at the preliminary hearing what she thought that statement meant, KB responded
, “I took it as a threat. I said,

‘ A re you threatening me? ’ ”

— at which point Walton hung up the phone.State v. Walton

20170977

- CA 3 2019 UT App 187 ¶5 In early 2012, KB received a text message from Walton telling her she “should go home
, ” she was in “so much trouble
, ” and “ignorin g this [was] going to cost [her] dearly.” These
statements scared KB and she called the police who offered to escort h er to he r apartment after work. About one month later, Walton showed up at KB ’s apartment and tried to get money from her. He followed her from her apartment to her car. After

a nother car pulled into the parking lot
, Walton walked away saying, “[Y] ou deserv e every thing you’re gonna get.”

¶6 KB attempted to cut off all communication w ith Walton but he continued to call her and send her text messages. KB even tried moving her household in an effort to get him to leave her alone. She moved her belongings at nig ht and du ring times she thought he would not be around. But within a couple of days, Walton left her a note on her door and a voicemail telling her he wanted money and to meet him at a cafe acro ss the street from her new apartment

. KB stated she was not sure how Walton was able to find her new address and thought he may have followed her from work. After this, KB began staying at her parents’ house. She was frightened and tried to have Walton served with a civil stalking injunction.

¶7 On e day, KB stopped at her new apartment after work to collect some belongings to take to her parents’ house. She parked on the street and noticed a car pull up nearby. Once KB realized it was Walton, she turned around and ran back to her car. Before KB was able to lock herself in her car, Walton ran towa rd her and opened the car door. Walton grabbed KB by her hair and began hitting her head against the steering wheel. S he started honk ing the horn. He demanded she give him her cell phone ; she told him it was in the ba ck and she could not get to it. As the struggle continued, KB began screaming and hitting the panic button on her car keys

. KB dropped her keys and Walton grabbed them. She begged Walton to giv e back her keys and let her go. Walton responded he wo uld not unless she paid him money and signed paperwork stating he was not a threa t to her.State v. Walton

20170977

- CA 4 2019 UT App 187 During this time, Walton pulled KB out of the car and again grabbed her hair and began hitting her head on the back win dow

. He threatened to “snap [her] neck ” if she did not sign the documents. A woman drove by and asked KB if sh e was okay. Walton told the woman
, “Don’t wor ry about it, she’s just crazy.” The woman asked if she should call the police

. KB told Walton that if he gave the woman KB ’s car keys then K B would sign the papers. KB signed the documents and Walton threw her k eys to the woman and told KB , “I know you’ve called the police.” As he was leaving he said to KB , “If you call the police I will hunt you down for as long as it takes and kill you.” KB got into the woman’s car with her and called the police.

¶8 The State charged Walton with (1) retaliation against a witness , victim, or informant, a third

- degree felony; (2) stalking, a class A misdemeanor; (3) assault, a class B misdemeanor; (4) unlawful de tention, a class B misdemeanor; and (5) threat of

v iolence, a class B misdemeanor. In this opinion, we refer to this criminal case, filed in 2012, as the Retaliation Case. Walton and the State entered into a plea agreement that was preapproved by the district court under rule 11 of the Utah Rules of Criminal Procedure. Walton entered an Alford plea to retaliation against a witness , and the remaining charges , in addition to other criminal charges on a separate matter relating to KB, were dismissed

. As p art of the plea agreement, the State agreed not to prosecute Walton for any other potential criminal charges arising f rom his relationship with KB before the date of the plea agreement. Walton also agreed to the entry of the Injunction , which prohibited hi m from contacting KB and her family. Also

c onsistent with the plea agreement, the court sentenced Walton to 330 days in jail with credit for t ime served and closed the case.

¶9 After the district court sentenced Walton and closed the case, the State presented Walton with the Injunction

. The court asked whether Walton agreed to have the Injunction entered against him and he responded that he had “absolutely noState v. Walton

20170977

- CA 5 2019 UT App 187 problem not contacting [ KB ] ” and agreed to have it imposed. The court signed, sealed, and served it on Walton that day.

¶10 About eighteen months later, Walton contacted KB in violation of the Injunction

. KB stated that , one day, while she

was using her laptop on her front porch, Wa lton approached her with his “hands up ” and proceeded to talk to her. Walton asked KB what she was going to do to “help his situation.” KB asked whether he was looking for money but he told her he wanted her help to “save his good name.” Walton repeatedly asked KB whether sh e was going to call the police. After about an hour of

co nversation, Walton walked away. KB called the police to notify them that Walton violated the Injunction

.
¶11 The next day, KB went to work and Walton pulled into the parking lot and again engaged in conversation with her. He asked her if she was going to call the police. She told Walton she could not talk to him and walked into the office building. Later that day, while KB was driving, Walton pulled up next to her and it looked as though he was trying to talk to her. KB did not roll down h er window and Wa lton drove off. KB called t he police and sent an email to the prosecutor, letting him kn ow about the Injunction violation s

.
¶12 The State charged Walton with three counts of stalking in violation of the Injunction

. In this opinion, we refer to this second case, filed in 2016, as the Stalking Case. Walton responded to the Stalking Case in part by filing a motion in the Retaliation Case , invoking rule 22(e) of the Utah Rul es of Criminal Procedure and asking the court t o correct the sentence that had been imposed upon him in the Retaliation C ase

. Specifically, Walton contended that the imposition of the Injunction in the Retaliation C ase was improper and illegal, and asserted that, without the Injunction, the charges in the Stalking C ase were groundless. The court denied the motion.

¶13 Several months later, Walton and the State entered into a plea agreement resolving the Stalking Case

. Pursuant to thatState v. Walton

20170977

- CA 6 2019 UT App 187 agreement, Walton entered an Alford plea to one count of stalking
, and th e State dismissed the other two counts with prejudice. The court sentenced Walton to a suspended, in determinate prison term of zero to five years and placed Walton on probation for thirty

- six months

. The court also issued another permanent criminal stalkin g injunction that prohibit ed Walton from contacting KB , her family, and the employees of the district attorney’s office. Walton filed a motion to reconsider the court’s order on his rule 22(e) motion

. In the motion, he asked the court to terminate his probation and “mind [its] own business” because he had been punished enough and would now be labeled “a stalker for time and memoriam .” The court denied the motions.

ISSUE AND STANDARD OF REVIEW

¶14 Walton argues that, in the Retaliation case, the district
court erred in denying his motion to vacate the Injunction under rule 22(e) of the Utah Rules of Criminal Procedure. 2 We review the denial of a rule 22(e) motion for correctness. State v. Wynn , 2017 UT App 211, ¶ 11, 407 P.3d 1113.

ANALYSIS

¶15 Walton argues the district court erred in failing to correct his sentence under rule 22(e) of the Utah Rules of Criminal Procedure. He contends a permanent criminal stalking injunction can be imposed only upon a conviction for stalking,

2

. Walton also argues if we find the Injunction was entered as an illegal sentence, then we also should vacate his subsequent stalking conviction for violating t he Injunction

. But Walton failed to timely appeal his conviction in the Stalking Case and therefore we decline to reach the merits of his argument on this issue.State v. Walton

20170977

- CA 7 2019 UT App 187 no t retaliation against a witness
, and the Injunction exceeded the statutorily authorized maximum sentence

. 3

¶16 Under rule 22(e) (1) of the Utah Rules of Criminal Procedure, a district court can correct a sentence at any time if it (1) “ exceeds the statutorily authorized maximums
, ” (2) “ is less than statutorily required minimums
, ” (3) “ violates Double Jeopardy ,” (4) “ is ambiguous as to the time and manner in which it is to be served
, ” (5) “ is internally contradictory
, ” or (6) “ omits a condition requ ired by statute or includes a condition prohibited by statute. ” In this case, Walton invokes the first and the last of these categories, arguing the Injunction “exceeds the statutorily authorized maximums” and “includes a condition prohibited by statute.” Uta h R. Crim. P. 22(e)(1)(A), (F).

¶17 Walton argues the Injunction “exceeds the statutorily authorized maximums,” id. R. 22(e)(1)(A), because the Injunction is a life

- long restriction that extends his sentence we ll beyond the five

- year maximum for a third

- degree felony conviction o f retaliation against a witness
, s ee Utah Code Ann. § 76

- 8

- 508.3(2) (LexisNexis 2017 ) ( providing that retaliation against a witness convictions are third

- degree felonies); i d. § 7 6

- 3

- 203 (3) ( articulating that prison sentence s for third

- degree felonies are not to exceed five years). Walton is mistaken. The term “maximums” used in rule 22(e) refers to the maximum periods for incarceration described in Utah Code section 76

- 3

- 203. This

3

. The State argues we can affirm Walton’s conviction on the basis that the Injunction was entered as part of his plea agreement, not his sente nce, and theref ore rule 22(e) is inapplicable. We disagree. In State v. Kropf , this court applied rule 22(e) in the context of evaluating whether a permanent criminal stalking injunction was an illegal sentence. 2015 UT App 223, ¶ 24, 360 P.3d 1. According ly, we conclude the I njunction was part of Walton’s sentence that, if illegal, could be remedied under rule 22(e).State v. Walton

20170977

- CA 8 2019 UT App 187 provision does not limit the court’s ab ility to impose other sanctions, such as stalking injunctions, that may exceed a term of five years

.
¶18 And nothing in the retaliation statute

— or in any other statute of which we are aware

— prohibit s district courts from imposing permanent criminal s talking injunct ions as part of a sentence. Id. § 76

- 8

- 508.3

. Walton contends because the stalking
statute authorizes district courts to enter permane nt criminal stalking injunctions upon a conviction for stalking, such injunctions are appropriately imposed only in this context and not for convictions of retaliation against a witness

. Id. § 76

- 5

- 106.5(9)(b) ( Supp. 2019)

. But t his misses the point. Under r ule 22(e) , a sentence may be deemed illegal if it includes a condition prohibited by statute. Utah R. Crim

. P. 22(e)(1) (F). Walton has not identified a ny statute prohibiting district courts from entering stalking injunctions as part of a sentence for a conviction of retaliation against a witness.

¶19 Furthermore, absent circumstances not present here (for instance, a “mistake as to the law in effect at the time the parties entered into the plea agreement,” State v. Patience , 944 P.2d 381, 388 (Utah Ct. App. 1997)), Walton cannot accept the benefits of a plea bargain and then argue that the sentence imposed as part of that bargain was invalid after it does not work in his favor. The State offered Walton a favorable plea deal in exchange for the
ent ry of the Injunction. It agreed to dismiss the remaining charges in the information, to dismiss other out sta nding charges relating to KB , to for go prosecution of any other crimes relating
to KB that occurred prior to the plea date, and that Walton should be sentenced to 330 days in ja il with credit for time served. Importantly, when asked whether he agreed to having the Injunction entered against him, Walton responded he had “absolutely n o problem not contacting [ KB ]

. ” We conclude that
, under the se circumstances , Walton cannot agree to a particular
sentence , enjoy its benefits, and then attempt to withdraw it after the court imposes the stipulation

.State v. Walton

20170977

- CA 9 2019 UT App 187 CONCLUSION

¶20 The district court did not err in denying Walton’s motion to correct his sentence because imposing the Injunction was not an illegal sentence under rule 22(e) . Affirmed.