State v. Holbrook

1. The Honorable Russell W. Bench and the Honorable Pamela T.
Greenwood, Senior Judges, sat by special assignment as authorized
by law. See generally Utah Code Jud. Admin. R. 11-201(6).
2014 UT App 97
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
KURT HOLBROOK JR.,
Defendant and Appellant.
Memorandum Decision
No. 20090669-CA
Filed May 1, 2014
Fourth District Court, Provo Department
The Honorable James R. Taylor
No. 051403584
Leslie W. Slaugh and Richard A. Roberts,
Attorneys for Appellant
Sean D. Reyes and Jeanne B. Inouye,
Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which SENIOR JUDGES RUSSELL W. BENCH and
PAMELA T. GREENWOOD concurred.1
CHRISTIANSEN, Judge:
¶1 Defendant Kurt Holbrook Jr. appeals the district court’s
denial of his motion to reduce the degree of his convictions. We
affirm.

State v. Holbrook
20090669-CA 2 2014 UT App 97
¶2 On March 8, 2006, Defendant pled guilty to two counts of
unlawful sexual activity with a minor, both third degree felonies.
See Utah Code Ann. § 76-5-401 (LexisNexis 2003). Defendant’s plea
was made pursuant to a written plea agreement between
Defendant and the State. As part of that agreement, the State
agreed to recommend, upon Defendant’s satisfactory completion
of probation, reduction of his felony convictions to class A
misdemeanors for sexual battery. On March 29, 2006, Defendant
filed a motion to reduce the degree of his convictions pursuant to
Utah Code section 76-3-402. On July 12, 2006, the district court
sentenced Defendant to serve 360 days in jail and placed Defendant
on supervised probation for thirty-six months. At the conclusion of
the sentencing hearing and after discussing the conditions of
Defendant’s probation, the district court addressed Defendant’s 402
motion. The court expressed its intent to grant the 402 motion at
the end of Defendant’s probation term based on the State’s
recommendation so long as Defendant complied with the terms
and conditions of his probation.
¶3 After successfully completing his probation in January 2009,
Defendant filed a notice of completion of his probation and a notice
to submit his 402 motion. The State responded by acknowledging
that the plea agreement “was entered into in good faith by both
sides” and that the State still stood by its agreement. Accordingly,
the State recommended the reduction in Defendant’s convictions.
The State also informed the district court that the Utah Legislature
had amended section 76-3-402 to prohibit a reduction in a
conviction during the time a defendant is required to register as a
sex offender, i.e., until ten years after the termination of sentence.
The court denied Defendant’s 402 motion on June 29, 2009, and
Defendant timely appeals.
¶4 The central issue raised on appeal is whether the district
court erred by denying Defendant’s 402 motion. The primary basis
of the court’s decision was its determination that Utah Code section
76-3-402 precluded the court’s consideration of Defendant’s 402
motion until Defendant was no longer required to register as a sex
offender. We review for correctness a district court’s determination

State v. Holbrook
20090669-CA 3 2014 UT App 97
as to the applicable law in a given case. State v. Johnson, 2012 UT 68,
¶ 9, 290 P.3d 21.
¶5 Our supreme court has held that the “right to seek a
reduction in conviction” is a substantive right that “vests at the
time of initial sentencing.” Id. ¶ 15. Thus, “motions to reduce a
conviction are governed by the version of [Utah Code section 76-3-
402] in effect at the time of initial sentencing.” Id. ¶ 19. Therefore,
resolution of this case turns on the law in effect at the time of
Defendant’s sentencing on July 12, 2006. When Defendant
committed his crimes in 2005 and when he pled guilty in March
2006, section 76-3-402 did not prohibit a reduction in the degree of
a conviction for registered sex offenders. See Utah Code Ann. § 76-
3-402 (LexisNexis 2003). However, by the time Defendant was
sentenced, the legislature had amended section 76-3-402 to include
the limitation that “a person required to register as a sex offender
under Section 77-27-21.5 is not eligible to obtain a reduction of the
conviction that requires the person to register as a sex offender . . .
until the registration requirements under Section 77-27-21.5 have
expired.” Id. § 76-3-402(6)(a) & amend. notes (Supp. 2006) (effective
July 1, 2006). At all relevant times, Defendant’s convictions for
felony unlawful sexual activity with a minor under Utah Code
section 76-5-401 were explicitly included within section 77-27-21.5’s
list of qualifying crimes for classification of a defendant as a sex
offender. Id. § 77-27-21.5(1)(e)(i)(c) (2003); id. § 77-27-21.5(1)(f)(i)(c)
(Supp. 2006) (recodified at id. §§ 77-41-102, -105 (LexisNexis 2012)).
And section 77-27-21.5 required sex offenders to register annually
“for the duration of the sentence and for ten years after termination
of sentence.” Id. § 77-27-21.5 (9)(a) (2003); id. § 77-27-21.5(10)(a)
(Supp. 2006). Thus, at the time Defendant was sentenced in July
2006, the law specifically prohibited a reduction in the degree of his
convictions until ten years after Defendant had completed his
incarceration and probation. Accordingly, when the district court
considered Defendant’s motion to reduce his convictions in 2009,
Defendant was not eligible for a reduction because the registration
requirements under section 77-27-21.5 had not yet expired.
¶6 In its decision, the district court incorrectly stated that “at
the time of . . . Defendant’s plea in 2006, [section 77-27-21.5] did not

State v. Holbrook
2. We recognize that at the time the district court issued its ruling
in 2009, it did not have the benefit of our supreme court’s guidance
in State v. Johnson, 2012 UT 68, 290 P.3d 21.
3. Defendant challenges the district court’s denial of his section 402
motion on numerous other grounds. However, because our
holding affirming the district court’s application of section 76-3-402
is dispositive, we need not address these arguments. See State v.
Mora, 2003 UT App 117, ¶ 21 n.3, 69 P.3d 838.
20090669-CA 4 2014 UT App 97
require sex offender registration for a violation of Section 76-5-
401.” As discussed above, section 77-27-21.5 did require sex
offender registration for violations of section 76-5-401, including
the felony charges for which Defendant was convicted, and this
requirement was in place when Defendant committed the offense,
when he pled guilty, and when he was sentenced. Id. § 77-27-21.5
(1)(e)(i)(c) (LexisNexis 2003); id. § 77-27-21.5(1)(f)(i)(c) (Supp. 2006).
After observing, mistakenly, that the legislature subsequently
amended section 77-27-21.5 to include offenses under section 76-5-
401, the district court engaged in a retroactivity analysis to
determine whether section 76-3-402’s limitation on reducing a
conviction should be applied to Defendant. After concluding that
the amendment to section 77-27-21.5 was a procedural statute, the
district court retroactively applied section 76-3-402’s limitation. See
State v. Clark, 2011 UT 23, ¶ 12, 251 P.3d 829. But this analysis was
unnecessary because the governing statutory framework setting
forth the limitation on Defendant’s 402 motion was already in place
at the time Defendant was sentenced. See Johnson, 2012 UT 68, ¶ 19.
Therefore, even though the district court’s underlying reasoning
was faulty, the court was ultimately correct in its application of2
section 76-3-402’s limitation and in its denial of Defendant’s 402
motion.
¶7 Affirmed.3