2016 UT App 53

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

ROY DON ROBERTSON,

Appellant.

Per Curiam Decision

No. 20160051-CA

Filed March 24, 2016

Seventh District Court, Price Department

The Honorable George M. Harmond

Nos. 101700387, 111700160

Roy Don Robertson, Appellant Pro Se

Sean D. Reyes and Marian Decker, Attorneys

for Appellee

Before JUDGES STEPHEN L. ROTH, MICHELE M. CHRISTIANSEN, and 

KATE A. TOOMEY.

PER CURIAM:

¶1 Appellant Roy Don 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 sentence 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 statute, 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) 
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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 defendant 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 number 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 111700160, 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 sentencing 

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 inappropriate 

 

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

overstatement 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 commit theft, any fraud offense, 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 offenses 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 that 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, 

the district court correctly found that Robertson waived 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 enhanced 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. These constitutional claims do not 

present a facial challenge to the statute under which he was 

sentenced and instead constitute an argument that the statute 

was applied in an unconstitutional manner. Because the 
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20160051-CA 4 2016 UT App 53

constitutional claims 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.