2013 UT App 231

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

S TATE OF U TAH

, Plaintiff and Appellee,

v.

S HAYNE E. T ODD

, Defendant and Appellant.

Memorandum Decision

No. 20110885

‐ CA

Filed September 26, 2013

Third District, Salt Lake Department

The Honorable Randall N. Skanchy

No. 991906743

Debra M. Nelson, Attorney for Appellant

John E. Swallow and Laura B. Dupaix, Attorneys

for Appellee

J UDGE G REGORY K. O RME authored this Memorandum Decision,

in which J UDGES J AMES Z. D AVIS and C AROLYN B. M C H UGH

concurred.

ORME, Judge:

¶1 Shayne Todd appeals the district court’s denial of his motion

to correct an illegal sentence under rule 22(e) of the Utah Rules of

Criminal Procedure. We affirm.

¶2 In 2001, a jury convicted Todd of murder. As a result of the

same episode, he also pled guilty to purchasing or possessing a

dangerous weapon. He was subsequently sentenced to five years

to life in prison for the murder conviction, and one to fifteen years

in prison for the dangerous weapon conviction. The court ordered

the sentences to run consecutively. Todd attempted to challenge hisState v. Todd

convictions through both direct appeal and postconviction review,

but he was unsuccessful.

¶3 The sentencing report prepared by Adult Probation and

Parole following his convictions estimated that under the Utah

Sentence and Release Guidelines (the Guidelines), Todd would

serve a total of twenty

‐ six

‐ and

‐ a

‐ half years in prison. However,

at his parole hearing in 2001 immediately following sentencing,

Todd was informed that he would not be granted another parole

hearing until 2029, thus virtually guaranteeing that he would be

incarcerated for at least twenty

‐ eight years. Nine years later, the

Board of Pardons issued an order entitled “Special Attention

Review,” which determined that no change would be made to

Todd’s sentence and that his 2029 parole hearing date would

remain in place. The Board’s order listed the length of Todd’s

sentence for murder as “5–100 years.” Todd filed a pro se motion

under rule 22(e) of the Utah Rules of Criminal Procedure, arguing

that the Board had altered his sentence and that the sentence was

therefore illegal. The district court denied the motion. Todd

appeals. We review the legality of a sentence for correctness. State

v. Thorkelson

, 2004 UT App 9, ¶ 9, 84 P.3d 854.

¶4 Rule 22(e) allows us to “correct an illegal sentence, or a

sentence imposed in an illegal manner, at any time.” Utah R. Crim.

P. 22(e). Because there is no time bar under the rule, its use is

“narrowly circumscribed,” State v. Telford

, 2002 UT 51, ¶ 5, 48 P.3d

228 (per curiam), and it 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. An “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.” Thorkelson, 2004 UT App 9, ¶ 15.

¶5 Todd first argues that the Board’s characterization of his

sentence modified the sentence beyond its statutory range and was

therefore illegal. He also argues that the modification violated his

due process rights. We agree with the district court’s assessment

20110885

‐ CA 2013 UT App 231 2State v. Todd

that listing Todd’s sentence as “5–100 years” for his murder

conviction “is merely the numerical designation used by the Board

of Pardons to reflect” his five

‐ year

‐ to

‐ life sentence. The Utah

Supreme Court has twice recognized the difficulty that life

sentences present when real

‐ world numerical calculations of a

prisoner’s sentence need to be made. State v. Schreuder

, 712 P.2d

264, 277 (Utah 1985) (“Pointing out the obvious difficulty of

carrying out a sentence of ‘life minus thirty months,’ the Court

referred the matter to the Board of Pardons

. . . . A similar reference

is appropriate here.”) (citing State v. Jaramillo

, 481 P.2d 394, 395

(Utah 1971)); Jaramillo

, 481 P.2d at 395 (“No elaboration is necessary

to make apparent the difficulties that would be encountered in

trying to determine and carry out a maximum sentence of life

imprisonment, minus 30 months.”). Indeed, the courts of this state

have deferred to the Board when it comes to computing the actual

numerical terms of a sentence to be served. See Schreuder

, 712 P.2d

at 277; Jaramillo

, 481 P.2d at 395 (“The answer to this perplexity is

to be found in practical common sense. Both the prison authorities

and the Board of Pardons have available to them the total record of

the defendant.”).

¶6 We see no error in the Board’s use of its numerical

computation when calculating Todd’s parole eligibility on his life

sentence. In our view, such a designation appears to be one of

“practical common sense.” See Jaramillo

, 481 P.2d at 395. The record

is clear that the Board was not altering or modifying Todd’s

sentence. In fact, in the Board’s order setting forth its numerical

computation, the Board itself stated that “no change” had been

made to Todd’s custodial status. Because we determine that the

Board did not alter Todd’s sentence, there is no illegal sentence for

us to correct and no due process concerns for us to address.

¶7 Todd also argues that his sentence is illegal because the

Board exceeded its authority when it fixed a definite term within

an indeterminate sentence, thus allegedly violating multiple

provisions of the Utah Constitution. The Utah Supreme Court has

already considered and rejected similar arguments. See Telford

, 2002

20110885

‐ CA 2013 UT App 231 3State v. Todd

UT 51, ¶¶ 2–3; Padilla v. Board of Pardons

, 947 P.2d 664, 669 (Utah

1997). In Padilla

, a prisoner challenged the Board’s power to

make parole determinations, claiming it violated the separation of

powers doctrine found in article V, section 1 of the Utah

Constitution. 947 P.2d at 668. The Court held that

the fact that the Board has been given this power [to

fix a parole date] does not mean that the Board

exercises a “sentencing” power. Rather, the Board

merely exercises its constitutional authority to

commute or terminate an indeterminate sentence

that, but for the Board’s discretion, would run until

the maximum period is reached.

Id. at 669. The Court also determined that “while the courts have

the power to sentence, the Board has been given the power to

pardon and parole. These are two separate and distinct powers,

neither of which invades the province of the other.” Id. The Court

came to the same conclusion in another case in which a prisoner

“attack[ed] the constitutionality of Utah’s indeterminate sentencing

scheme.” See Telford

, 2002 UT 51, ¶ 2. The Telford court, relying

on Padilla

, determined that there was “no basis for [the Court]

to depart from [its] established precedent” and that indeterminate

sentencing was indeed constitutional. Id. ¶ 3. We therefore

conclude that “the Board’s exercise of its parole power in setting

determinate parole dates does not violate

. . . the Utah

Constitution” and that Todd’s sentence is therefore not illegal on

those grounds. Padilla

, 947 P.2d at 669.

¶8 Finally, Todd argues that his right to due process under the

Utah Constitution was violated when the Board set parole for a

date beyond that anticipated by the Guidelines. The argument is

doubtful, given that the Guidelines are, after all, only guidelines.

See Preece v. House

, 886 P.2d 508, 511 (Utah 1994) (“The state

sentencing guidelines used by the board of pardons do not have

the force and effect of law. Consequently, any ‘expectation of

release’ derived from the guidelines is at best tenuous.”). But in

20110885

‐ CA 2013 UT App 231 4State v. Todd

any event this issue is not properly before us because we are

limited in this appeal to considering issues related only to the

legality of Todd’s sentence. See State v. Candedo, 2010 UT 32, ¶ 9,

232 P.3d 1008. See also Renn v. Board of Pardons

, 904 P.2d 677, 680,

685 (Utah 1995) (determining that rule 65B of the Utah Rules of

Civil Procedure is the proper avenue for challenging the

postponement of a parole hearing beyond the time frame

recommended in the Guidelines). We therefore decline to address

it.

¶9 Affirmed.

20110885

‐ CA 2013 UT App 231 5