2016 UT App 53



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Appell ee , v. R OY D ON R OBERTSON , Appell ant

.
Per Curiam Decision

N o. 20160051

- CA Filed March 24, 2016

Seventh District Court, Price Department The Honorable George M. Harmond No s

. 101700387 , 111700160
Roy Don Robertson , Appellant Pro Se Sean D. Reyes and Marian Decker , Attorney s for Appellee

Before J UDGE S S TEPHEN L. R OTH , M ICHELE M. C HRISTIANSEN , and K ATE A. T OOMEY

.

PER CURIAM:

¶1 Appellant Roy D on Robertson appeals the district court’s denial of his motion to correct an illegal sentence pursuant to rule 22(e) of the Utah Rules of Criminal Procedure . We affirm

.
¶2 Rule 22(e) states that a court “may correct an illegal sentence, or a se ntence imposed in an illegal manner, at any time.” Utah R. Crim. P. 22(e). An illegal sentence is one that “is ambiguous with respect to the time and manner in which it is to be served, is internally contradictory, omits a term required to be imposed by st atute, is uncertain as to the substance of the sentence, or is a sentence which the judgment of conviction did not authorize.” State v. Yazzie , 2009 UT 14, ¶ 13, 203 P.3d 984 (citation and internal quotation marks omitted). Rule 22(e)State v. Robertson

20160051

- CA 2 2016 UT App 53 “presupposes a valid conviction and therefore cannot be used as a veiled attempt to challenge the underlying conviction by challenging the sentence.” State v. Candedo , 2010 UT 32, ¶ 9, 232 P.3d 1008 (citation and internal quotation marks omitted). “[U]nder rule 22(e), a defend ant may bring constitutional challenges that attack the sentence itself and not the underlying conviction, and which do so as a facial challenge rather than an

as

- applied inquiry.” State v. Houston , 2015 UT 40, ¶ 26, 353 P.3d 55.

¶3 In district court case num ber 101700387, the court sentenced Robertson to prison terms of zero to five years for theft and zero to five years for obstruction of justice and a jail term of zero to six months for criminal mischief, with the terms to run concurrently. In case number 1 11700160, the court sentenced Robertson to a prison term of zero to five years for theft and jail terms of zero to one year for assault against a police officer and zero to one year for burglary of a vehicle, with the terms to run concurrently. The court ordered the sentences in the two cases to run concurrently. 1 Finally, the court ordered restitution and recommended that Robertson be placed in the mental health treatment program at the Utah State Prison. A presentence investigation report prepared for se ntencing revealed a criminal history dating back to 1980 that included convictions for several violent offenses, drug

- related offenses, and theft offenses.

¶4 In his rule 22(e) motion, Robertson argued that his sentence was illegal because the prosecutor’s in appropriate

1

. Although Robertson’s filing also refers to case number 041700057, that case was not addressed in the December 31, 2015 order on a motion to correct an illegal sentence that is the subject of this appeal. Therefore, no issues pertaining to that case are before this court on appeal.State v. Robertson

20160051

- CA 3 2016 UT App 53 o verstatement of the severity of his criminal record caused an enhancement of his sentence . The district court rejected that claim because Robertson’s theft was appropriately punished as a third degree felony under Utah Code section 76

- 6

- 412 (1) (b)(ii)

. See Utah Code Ann. § 76

- 6

- 412 (1)(b)(ii) (LexisNexis Supp. 2014 ). Under section 76

- 6

- 412, theft is punishable as a third degree felony if the actor has been convicted twice of any theft, robbery, or burglary with intent to comm i t theft, any fraud o ffense, or any attempt to commit those types of offenses within the previous ten years. In denying the rule 22(e) motion, the district court determined that , at the time of Robertson’s sentencing in October 2012, his criminal history disclosed theft offens es within the past ten years

— a burglary in 2004 and a retail theft in 2010. The district court correctly determined that Robertson’s sentence was authorized by statute and was not illegal. In addition, the district court also properly rejected the claim th at the State falsely enhanced Robertson’s criminal history because the presentence investigation report disclosed a series of violent offenses.

¶5 To the extent that Robertson’s rule 22(e) motion challenged the accuracy of the presentence investigation report , t he district court correctly found that Robertson waive d the claims because they were not raised at the time of sentencing. See id. § 77

- 18

- 1(6)(b).

¶6 Robertson also challenged the constitutionality of his sentence, arguing that the court imposed an enhanc ed sentence in retaliation for his exercise of his constitutional right to petition the government for redress of grievances , that the sentence

was the result of a conspiracy , or that the sentence was disproportionate to his offenses and therefore constituted cruel and unusual punishment. The se constitutional claim s do not present a fac ial challenge to the statute under which he was sentenced and instead constitute an argument that the statute

was a pplied in an unconstitutional manner. Because theState v. Robertson

20160051

- CA 4 2016 UT App 53 constitutional claim s required a factual analysis and were not limited to a claim of facial unconstitutionality, the district court correctly concluded that the claims were beyond the scope of a rule 22(e) motion. See Houston , 2015 UT 40, ¶ 26.

¶7 Accordingly, we affirm the denial of the motion to correct an illegal sentence.