State v. Vaughn

2011 UT App 411

266 P.3d 202

696 Utah Adv. Rep. 51

STATE of Utah, Plaintiff and Appellee,

v.Raymond Harvey VAUGHN, Defendant and Appellant.

No. 20100772–CA.

Court of Appeals of Utah.

Dec. 1, 2011.

John Pace, Salt Lake City, for Appellant.

Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee.

Before Judges McHUGH, VOROS, and CHRISTIANSEN.

OPINION

McHUGH, Associate Presiding Judge:

¶ 1 Raymond Harvey Vaughn appeals his sentences for two class A misdemeanors: sexual abuse of a minor, see Utah Code Ann. § 76–5–401.1 (2008), and enticing a minor over the Internet, see id. § 76–4–401. Vaughn argues that trial counsel rendered ineffective assistance by seeking consecutive rather than concurrent sentences and by requesting that the sentences be served in prison rather than in jail. He also argues that the sentences were illegal because the trial court lacked jurisdiction to order the Utah State Prison to immediately enroll Vaughn in sex offender treatment and mental health treatment. We dismiss both claims for lack of subject matter jurisdiction.

BACKGROUND

¶ 2 In April 2008, Vaughn pleaded guilty to sexual abuse of a minor in violation of Utah Code section 76–5–401.1 (the 2008 charge). See id. § 76–5–401.1. Vaughn was sentenced to 365 days in jail with credit for three days of time served. The court suspended this sentence and placed Vaughn on probation for thirty-six months. In 2009, the State charged Vaughn with enticing a minor over the Internet in violation of Utah Code section 76–4–401 (the 2009 charge), see id. § 76–4–401, to which Vaughn pleaded guilty in October 2009.

¶ 3 After Vaughn's guilty plea to the 2009 charge, a single sentencing and revocation hearing was held regarding both cases. At that hearing on December 1, 2009, defense counsel represented that Vaughn wished to serve his sentences at the Utah State Prison with the hope that there would be “a better option of getting treatment [at the Utah State Prison] than [in Tooele County].” The State agreed that the prison would be more likely to provide such treatment and indicated that a therapist who had examined Vaughn also believed prison was the only place Vaughn “c[ould] have structure and get the treatment” he needed. Recognizing that Adult Probation and Parole had recommended that Vaughn's two sentences run consecutively, defense counsel suggested that the sentences be “close to that year mark or a year and a day to make sure that jurisdictionally it's the correct thing to do, but that [the court] not extend that time too much.” In response, the State expressed concern that if the sentences ran concurrently, there might not be enough time for Vaughn to receive treatment at the prison and that it feared that the prison “[wouldn't] do anything and they'll just parole [him].” Vaughn's counsel then indicated that Vaughn “want [ed him] to actually ask the [c]ourt for a two-year sentence at the prison.” Although defense counsel felt compelled to communicate Vaughn's request, he also informed the trial court that Vaughn was constitutionally entitled to credit for time served, thereby calling into question whether the sentences could be a full two years.

¶ 4 The trial court sentenced Vaughn to an indeterminate term not to exceed one year on the 2009 charge and revoked Vaughn's probation with respect to the 2008 charge, thereby reinstating Vaughn's 365–day sentence. In both instances, Vaughn was given appropriate reductions in his sentences for time served. The trial court also ordered that the sentences run consecutively and that Vaughn's commitment be served at the prison. The trial court then stated,

I'm going to order the Department of Corrections to get Mr. Vaughn into sex offender treatment and mental health treatment in the prison as soon as possible, and not follow their normal course which is to let him serve most of his commitment before they get him into treatment.... I want the treatment to start as soon as he can be put into that program. I want that in the commitment.

In response, Vaughn personally expressed his satisfaction, stating,

I know if I don't get this prison sentence, I will be back in jail or I will end up doing something that will send me to prison, so I think I need a rude awakening. So I just hope that you will give me this chance to get my life on track.

¶ 5 Shortly after the hearing, the trial court executed a “Minutes Post Sentencing Judgment/Commitment Sentence, Judgment, Commitment” (Post Sentencing Judgment/Commitment) for each crime. The Post Sentencing Judgment/Commitments each include a “Post Sentence Jail Note,” stating, “[T]he Court orders the prison to immediately enroll [Vaughn] into sex offender and mental health treatment.”

¶ 6 Approximately eight months after sentencing, on July 27, 2010, the trial court held a review hearing because Vaughn had not been placed in a treatment program at the prison and wanted to be released. After receiving information from defense counsel that Vaughn had only thirty-nine days left to serve on his sentences,¹ the trial court ordered the “case closed” and purported to terminate Vaughn's sentences.

¶ 7 A week later, the trial court held another review hearing that was attended by counsel for the Board of Pardons and Parole (the Board), who argued that the Board had jurisdiction over Vaughn's release pursuant to Utah Code section 77–27–5(1)(a). See Utah Code Ann. § 77–27–5(1)(a) (Supp.2011) ² (“The Board of Pardons and Parole shall determine by majority decision when and under what conditions ... persons committed to serve sentences in class A misdemeanor cases at penal or correctional facilities which are under the jurisdiction of the Department of Corrections ... may ... [have] their sentences commuted or terminated.”). Thus, the Board asserted that the trial court was without jurisdiction to terminate Vaughn's sentences at the earlier hearing. The trial court was persuaded and reinstated Vaughn's sentences. In doing so, the trial court clarified that Vaughn's sentences were to run consecutively, meaning that he still had “a year to serve.”

ISSUES AND STANDARDS OF REVIEW

¶ 8 On appeal, Vaughn first argues that trial counsel rendered ineffective assistance by asking the trial court for consecutive sentences to be served in prison, rather than concurrent sentences to be served in jail. Generally, we review “ ‘[a]n ineffective assistance of counsel claim raised for the first time on appeal ... [as] a question of law.’ ” State v. Perry, 2009 UT App 51, ¶ 9, 204 P.3d 880 (quoting State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162). However, if Vaughn's appeal is untimely, we lack subject matter jurisdiction to consider this issue on the merits and must dismiss Vaughn's appeal of this issue. See State v. Bowers, 2002 UT 100, ¶¶ 4–5, 57 P.3d 1065.

¶ 9 Next, Vaughn contends that the inclusion of the Post Sentence Jail Notes in the Post Sentencing Judgment/Commitments renders his sentences illegal because the trial court lacked jurisdiction to order the prison to place Vaughn in treatment programs. Whether a sentence is illegal “presents a question of law that we review for correctness.” State v. Dana, 2010 UT App 374, ¶ 3, 246 P.3d 756.

ANALYSIS

I. If Vaughn's Sentences Are Valid, His Appeal Is Untimely.

¶ 10 Under rule 4(a) of the Utah Rules of Appellate Procedure, an appeal as of right from the trial court ordinarily must “be filed with the clerk of the trial court within [thirty] days after the date of entry of the judgment or order appealed from.” Utah R.App. P. 4(a). “In a criminal case, it is ‘ the sentence itself which constitutes a final judgment from which appellant has the right to appeal.’ ” Bowers, 2002 UT 100, ¶ 4, 57 P.3d 1065, (quoting State v. Gerrard, 584 P.2d 885, 886 (Utah 1978)). “ ‘[T]he [thirty]-day period for filing an appeal in a criminal case ... is jurisdictional and cannot be enlarged by this [c]ourt.’ ” Id. ¶ 5 (third alteration in original) (omission in original). Accordingly, “failure to perfect an appeal is a jurisdictional failure requiring dismissal of the appeal.” Id. Utah Code section 77–18a–1(1)(b) provides, however, that a defendant may appeal as of right from “an order made after judgment that affects the substantial rights of the defendant.” Utah Code Ann. § 77–18a–1(1)(b) (2008). Vaughn contends that he had thirty days to appeal from the August 3, 2010 hearing ³ because it resulted in a postjudgment order that “affected [his] substantial rights.”

¶ 11 At the August 3, 2010 hearing, the trial court considered the effect of its July 27, 2010 ruling, which purported to “terminate Mr. Vaughn's sentence[s].” The trial court correctly determined that it had lacked jurisdiction to terminate Vaughn's sentences when it attempted to do so at the July 27, 2010 hearing. See generally Utah Code Ann. § 77–27–5 (“The Board ... shall determine by majority decision when and under what conditions ... persons committed to serve sentences in class A misdemeanor cases ... may be released upon parole ... or their sentences commuted or terminated.”); State v. Schultz, 2002 UT App 297, ¶ 8, 56 P.3d 974 (“An action to terminate a prison sentence and parole supervision is within the exclusive authority of the Board.”). Indeed, “[o]nce a court imposes a valid sentence, it loses subject matter jurisdiction over the case.” State v. Montoya, 825 P.2d 676, 679 (Utah Ct.App.1991).

¶ 12 A judgment or order entered by a court lacking subject matter jurisdiction is void and does not affect the rights of any party. See Van Der Stappen v. Van Der Stappen, 815 P.2d 1335, 1337 (Utah Ct.App.1991); see also Johnson v. Johnson, 2010 UT 28, ¶¶ 8–9, 234 P.3d 1100 (holding that, without subject matter jurisdiction, a court is without authority to adjudicate the case). The trial court lost jurisdiction over Vaughn upon sentencing him to prison. See Montoya, 825 P.2d at 679. As a result, its July 27, 2010 order was void and neither it, nor the trial court's August 3, 2010 ru...