State v. Robertson

2016 UT App 53
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
R OY DON R OBERTSON ,
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 S TEPHEN L. R OTH , M ICHELE M. C HRISTIANSEN , and
K ATE 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

State v. Robertson
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.