2019 UT App 187

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

ROBERT BRIAN WALTON,

Appellant.

Opinion

No. 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, Attorneys

for Appellee

JUDGE KATE APPLEBY authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS

concurred.

APPLEBY, Judge:

¶1 In 2014, Robert Brian Walton entered an Alford plea1 to 

one count of retaliation 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).
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entry of a permanent criminal stalking injunction (Injunction), 

which prohibited him from contacting KB and her family. In 

2017, after violating the Injunction, Walton 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 Walton continued to contact her. Walton went

to KB’s workplace after repeatedly calling her, to convince her to 

go to his house. He yelled, “Know 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 it 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 party and got into 

an altercation with one of the guests. He showed up at her 

apartment the following day and demanded information about 

the police report she filed. He refused to leave her apartment

and demanded she “sleep with him” and “tried to take [her] 

clothes off.” KB sent a text message to one of her coworkers to 

call the police.

¶4 Over the next several months, 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 gonna 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, 

‘Are 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 “ignoring this [was] going to cost [her] dearly.” These 

statements scared KB and she called the police who offered to 

escort her to her 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 

another car pulled into the parking lot, Walton walked away 

saying, “[Y]ou deserve everything you’re gonna get.” 

¶6 KB attempted to cut off all communication with 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 night and during 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 across 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 One 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 toward her 

and opened the car door. Walton grabbed KB by her hair and 

began hitting her head against the steering wheel. She started

honking the horn. He demanded she give him her cell phone;

she told him it was in the back 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 give back her keys and let 

her go. Walton responded he would not unless she paid him 

money and signed paperwork stating he was not a threat 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 

window. He threatened to “snap [her] neck” if she did not sign 

the documents. A woman drove by and asked KB if she was 

okay. Walton told the woman, “Don’t worry 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 KB would 

sign the papers. KB signed the documents and Walton threw her 

keys 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 detention, a class B misdemeanor; and (5) threat of 

violence, 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 

part of the plea agreement, the State agreed not to prosecute 

Walton for any other potential criminal charges arising from his 

relationship with KB before the date of the plea agreement. 

Walton also agreed to the entry of the Injunction, which 

prohibited him from contacting KB and her family. Also 

consistent with the plea agreement, the court sentenced Walton 

to 330 days in jail with credit for time 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 no 
State 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, Walton 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 she was going to call the police. After about an hour of 

conversation, 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 her window and Walton drove off. KB called the 

police and sent an email to the prosecutor, letting him know 

about the Injunction violations.

¶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 Rules of 

Criminal Procedure and asking the court to correct the sentence 

that had been imposed upon him in the Retaliation Case.

Specifically, Walton contended that the imposition of the 

Injunction in the Retaliation Case was improper and illegal, and 

asserted that, without the Injunction, the charges in the Stalking 

Case 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 that 
State v. Walton

20170977-CA 6 2019 UT App 187

agreement, Walton entered an Alford plea to one count of 

stalking, and the State dismissed the other two counts with 

prejudice. The court sentenced Walton to a suspended, 

indeterminate prison term of zero to five years and placed 

Walton on probation for thirty-six months. The court also issued 

another permanent criminal stalking injunction that prohibited 

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 the 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

not 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 required 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.” Utah 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 well beyond the 

five-year maximum for a third-degree felony conviction of 

retaliation against a witness, see Utah Code Ann. § 76-8-508.3(2)

(LexisNexis 2017) (providing that retaliation against a witness 

convictions are third-degree felonies); id. § 76-3-203(3) 

(articulating that prison sentences 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 sentence, and therefore 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. Accordingly, we conclude the 

Injunction 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 ability 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—prohibits district courts from 

imposing permanent criminal stalking injunctions as part of a 

sentence. Id. § 76-8-508.3. Walton contends because the stalking 

statute authorizes district courts to enter permanent 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 this misses the point. Under rule 

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 any 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 

entry of the Injunction. It agreed to dismiss the remaining 

charges in the information, to dismiss other outstanding charges 

relating to KB, to forgo 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 jail with credit for time 

served. Importantly, when asked whether he agreed to having 

the Injunction entered against him, Walton responded he had 

“absolutely no problem not contacting [KB].” We conclude that, 

under these 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.