State v. Apadaca

358 P.3d 1124

2015 UT App 212

STATE of Utah, Plaintiff and Appellee

v.Joseph Lee APADACA, Defendant and Appellant.

No. 20140008–CA.

Court of Appeals of Utah.

Aug. 20, 2015.

Scott L. Wiggins, Salt Lake City, for Appellant.

Sean D. Reyes, Salt Lake City, and Daniel W. Boyer, for Appellee.

Judge KATE A. TOOMEY authored this Memorandum Decision, in which Judge STEPHEN L. ROTH concurred. Judge JAMES Z. DAVIS concurred in the result.

Memorandum Decision

TOOMEY, Judge:

¶ 1 Joseph Lee Apadaca raises two issues on appeal. First, he appeals from his sentence on the ground that he was denied the right to allocute at his sentencing hearing. Because we conclude that his sentence was not imposed in an illegal manner, we lack jurisdiction to consider his allocution claims and dismiss them. Second, Apadaca challenges the trial court's denial of his motion to reinstate the time to appeal the court's dismissal of his robbery conviction and sentence. On this issue, we affirm.

¶ 2 Apadaca was charged with two counts of aggravated robbery, first-degree felonies, and possession of a firearm by a restricted person, a third-degree felony, for committing two robberies—the Kim's Fashions robbery and the Baskin Robbins robbery. During his jury trial, defense counsel moved for a mistrial based on allegations of prosecutorial misconduct. Further discussions revealed the prosecutor met with the witnesses of the Kim's Fashions robbery in preparation for trial, and instead of using an array of photographs or a line-up, the prosecutor showed one of the witnesses a single photograph of Apadaca. Then, when the witness testified at trial that he had never seen Apadaca's photograph, the prosecutor made no attempt to correct the record. The prosecutor also showed Apadaca's photograph to a Baskin Robbins robbery eyewitness, but only after she identified him in a pretrial hearing. See generally Larsen v. Davis County, 2014 UT App 74, ¶¶ 2–3, 324 P.3d 641 (providing further background regarding the prosecutor's misconduct in Apadaca's case). Because the court concluded the jury had been “sufficiently tainted” to make it “impossible ... to go forward with this particular jury,” it granted Apadaca's mistrial motion.

¶ 3 Defense counsel then proposed a plea deal under which Apadaca would plead guilty to two second-degree-felony robbery charges in exchange for the State's dismissal of the remaining felony possession of a firearm charge and two other unrelated cases pending against him. The State accepted this deal, agreed to recommend concurrent sentencing, and agreed that Apadaca would have an hour-long contact visit with his family. In his plea affidavit, Apadaca waived several constitutional rights, including his right to appeal his conviction. He also acknowledged he was subject to the maximum potential penalty of fifteen years for each robbery and he conceded that if he wished to withdraw his guilty pleas, he had to do so before sentencing.

¶ 4 A new judge presided at the sentencing hearing. He stated he had been “brought up to speed” on Apadaca's case. Then he asked defense counsel, “Anything else I need to know?” Counsel responded, “No your honor, just to reiterate for Mr. Apadaca's satisfaction that the two matters would be run concurrent[ly].” The court sentenced Apadaca to two concurrent one-to-fifteen year prison terms and recommended that these terms also run concurrently with his out-of-state prison sentence.² Twenty-two days after sentencing, Apadaca moved to withdraw his guilty plea, but the court denied the motion as untimely. See Utah Code Ann. § 77–13–6 (LexisNexis 2012).

¶ 5 Nearly three months after sentencing, the State moved the court to dismiss Apadaca's conviction for the Kim's Fashions robbery and “then correct the record of sentence to reflect imposition of one, 1–15 year sentence.” In the motion, the State noted that the Kim's Fashions robbery eyewitnesses' testimonies were “so tainted by the actions of the prosecutor in that case that any attempt to retry the defendant on that count would not have been done in good-faith.” It also explained that the motion to dismiss Apadaca's plea-based conviction and sentence was an “act[ ] in the interest of justice” and the State did “not presuppose that the defendant entered his plea involuntarily or unknowingly.” The court granted the State's motion without Apadaca or his counsel present, and dismissed the Kim's Fashions robbery conviction. Consistent with this, the court made Apadaca's sentence reflect only the sentence for the Baskin Robbins robbery—his only remaining conviction.

¶ 6 In response to the court's order, Apadaca filed another unsuccessful motion to withdraw his plea. After that, Apadaca appealed. In a per curiam decision, this court affirmed the trial court's decision. See State v. Apadaca, 2011 UT App 276, ¶ 4, 261 P.3d 104 (per curiam). We explained that although Apadaca's appeal was timely to challenge the denial of his second motion to withdraw his guilty plea, it was not timely to challenge his sentence. Id. ¶ 3. Accordingly, we concluded that we lacked jurisdiction to review “any issues relating to the underlying judgment.” Id. ¶¶ 3–4.

¶ 7 Apadaca subsequently moved to reinstate the time to appeal the court's decision to dismiss his conviction and sentence pursuant to Manning v. State, 2005 UT 61, 122 P.3d 628. Specifically, he argued the trial court deprived him of his right to appeal the court's decision to dismiss the Kim's Fashions robbery and inappropriately deprived him of “the right to counsel during the resentencing proceedings.” The trial court denied Apadaca's Manning motion, concluding that Apadaca misconstrued the nature of the court's correction. It explained the correction “merely reflect[ed] the State's voluntary dismissal of one of the charges” and did not make “any changes to [Apadaca's] other charge, the duration of its sentence, or as to its sentence running concurrently with the prison term that [Apadaca] was serving in the State of Idaho.” The court found that Apadaca had “expressly waived his right to appeal” when he signed the plea affidavit. Apadaca appeals.

I. Allocution

¶ 8 Apadaca raises two arguments regarding his right to allocute at the sentencing hearing. He first argues the court erroneously deprived him of due process and the right to allocute under rule 22(a) of the Utah Rules of Criminal Procedure “by not affirmatively affording [him] the opportunity to make a statement, present any information in mitigation of punishment, or show cause why the prison sentence should not be imposed.” Apadaca next argues that his trial counsel performed ineffectively by “failing to affirmatively request that the sentencing court allow [him] to address the court.” He contends this court retains jurisdiction to review these claims because courts “ ‘may correct an illegal sentence, or a sentence imposed in an illegal manner, [at] any time.’ ” (Quoting Utah R. Crim. P. 22(e).) The State responds that we lack jurisdiction to analyze these issues because Apadaca did not timely appeal his original sentence and the court did not err in not affording Apadaca an opportunity to allocute. We agree.

¶ 9 Although we generally lack jurisdiction to consider appeals that were not filed within the “30–day period for filing notice of appeal in a criminal case,” see State v. Bowers, 2002 UT 100, ¶ 5, 57 P.3d 1065 (citation and internal quotation marks omitted), courts “may correct an illegal sentence, or a sentence imposed in an illegal manner, at any time,” Utah R. Crim. P. 22(e). The language of rule 22(e) allows an appellate court to “vacate the illegal sentence without first remanding the case to the trial court, even if the matter was never raised before.” State v. Brooks, 908 P.2d 856, 860 (Utah 1995). Moreover, our supreme court has previously determined “that a sentence imposed in violation of rule 22(a) of the Utah Rules of Criminal Procedure may be considered a sentence imposed in an illegal manner under rule 22(e).” State v. Samora, 2004 UT 79, ¶ 13, 99 P.3d 858 (internal quotation marks omitted). Thus, we consider whether Apadaca's right to allocute was violated for the limited purpose of determining whether the trial court imposed his sentence in an illegal manner.

¶ 10 Rule 22(a) provides, “Before imposing sentence[,] the court shall afford the defendant an opportunity to make a statement and to present any information in mitigation of punishment, or to show any legal cause why sentence should not be imposed.” Utah R. Crim. P. 22(a). “ ‘[F]rom both the plain language of rule 22 and the approach of other jurisdictions with similar rules, ... the “shall afford” language requires trial courts to affirmatively provide the defense an opportunity to address the court and present reasonably reliable and relevant information in the mitigation of a sentence.’ ” State v. Graziano, 2014 UT App 186, ¶ 4, 333 P.3d 366 (omission in original) (quoting State v. Wanosik, 2003 UT 46, ¶ 23, 79 P.3d 937 ). “In order for a trial court to ‘affirmatively provide’ the defense an opportunity for allocution, the supreme court has instructed that a ‘simple verbal invitation or question will suffice, but it is the court which is responsible for raising the matter.’ ” Id. ¶ 5 (quoting Wanosik, 2003 UT 46, ¶ 23, 79 P.3d 937 ). “Violations of a defendant's right to allocution usually involve situations where the court has prevented or prohibited the defendant from speaking altogether or imposed sentence in the defendant's absence.” Id.

¶ 11 Here, Apadaca argues the sentencing-hearing transcript demonstrates that the trial court failed to invite or otherwise provide him with the opportunity to address the court. At the sentencing hearing, after the court acknowledged that it had “been brought up to speed,” the court implicitly invited the defense to allocute by saying “Anything else I need to know?” Although the court's invitation was not specifically directed at Apadaca, in context, this “simple...