State v Thurman

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
2014 UT App 119
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
STEVEN D. THURMAN,
Defendant and Appellant.
Per Curiam Decision
No. 20140257-CA
Filed May 30, 2014
Third District Court, Salt Lake Department
The Honorable L.A. Dever
No. 911900907
Steven D. Thurman, Appellant Pro Se
Sean D. Reyes and Marian Decker, Attorneys for Appellee
Before JUDGES GREGORY K. ORME, MICHELE M. CHRISTIANSEN, and
SENIOR JUDGE PAMELA T. GREENWOOD.1
PER CURIAM:
¶1 Steven D. Thurman appeals the trial court’s order denying
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) provides 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

State v. Thurman
2. Furthermore, Thurman pled guilty to the first degree felony. By
pleading guilty, Thurman is deemed to have admitted all of the
essential elements of the crime charged. State v. Rhinehart, 2007 UT
61, ¶ 15, 167 P.3d 1046.
3. Although sentencing is a judicial function, under Utah’s
indeterminate sentencing scheme, the Board fixes the number of
years to be served and grants parole within its sole discretion.
“[W]hile 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.” Padilla v. Utah Bd. of Pardons and Parole, 947 P.2d 664, 669
(Utah 1997). Further, even though Thurman’s term has been
(continued...)
20140257-CA 2 2014 UT App 119
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. Rule 22(e) “presupposes
a valid conviction and therefore cannot be used as a veiled attempt
to challenge the underlying conviction by challenging the sen-
tence.” State v. Candedo, 2010 UT 32, ¶ 9, 232 P.3d 1008.
¶3 The challenges raised by Thurman are beyond the scope of
rule 22(e). He first argues that the first degree felony charge was
not warranted by his conduct and, therefore, his sentence is illegal
because the conviction is improper. However, rule 22(e) cannot be
used to challenge the validity of a conviction. See id.2
¶4 Thurman also argues that the Board of Pardons and Parole
exceeded its jurisdiction when it determined that Thurman would
serve a natural life term. However, challenges to the Board’s
decision must be pursued, if at all, under rule 65B of the Utah Rules
of Civil Procedure. See Utah R. Civ. P. 65B(a), (d). The Board’s
decision about the actual term to be served by Thurman is not
within the scope of rule 22(e).3

State v. Thurman
3. (...continued)
determined to be natural life, under Board rules he may seek a
special attention review to request relief if exceptional
circumstances arise. See Utah Admin. Code R. 671-311-1.
20140257-CA 3 2014 UT App 119
¶5 Finally, Thurman argues that his sentence is limited to thirty
years under Utah Code section 76-3-401(4). However, by its plain
language, section 76-3-401 does not apply to Thurman. See Utah
Code Ann. § 76-3-401(4) (Michie 1991). First, the section governs
the calculation of sentences when consecutive sentences for
multiple charges are imposed. Id. Thurman was not subject to
multiple sentences because he pled guilty to a single charge and the
other charges were dismissed. Second, the sentence limitation
asserted by Thurman does not apply where any sentence imposed
authorizes a life term. Id. “[T]his [thirty-year] limitation does not
apply if an offense for which the defendant is sentenced authorizes
. . . a maximum sentence of life imprisonment.” Id. Thurman was
sentenced to an indeterminate term of not less than five years and
which may be for life. Because Thurman’s sentence could be a
maximum of life imprisonment, the thirty-year limit does not apply
to his sentence.
¶6 Affirmed.