State v. Watring

2017 UT App 100

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JARED MICHAEL WATRING,
Appellant.

Opinion
No. 20150841-CA
Filed June 22, 2017

Second District Court, Farmington Department
The Honorable John R. Morris
No. 151700133

Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Aaron G. Murphy, Attorneys
for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and DAVID N. MORTENSEN concurred.

TOOMEY, Judge:

¶1 Jared Michael Watring appeals the district court’s
decision to correct his 2015 sentence after the court ordered him
to serve the sentence concurrently with rather than consecutively
to previously imposed sentences. Watring contends the court
lacked jurisdiction to correct the sentence and erred in
determining it had made a clerical error in ordering that the
sentences run concurrently. We affirm.

¶2 Watring was sentenced in December 2011 on three drug
charges—two third degree felonies and one class B
misdemeanor. The district court sentenced Watring to an
indeterminate prison term not to exceed five years for each of the
felony charges. It sentenced Watring to 182 days of jail time for
State v. Watring

the misdemeanor charge. The court suspended the prison and
jail terms and ordered Watring to serve thirty-six months on
probation and to complete the Regional Substance Abuse
Treatment program (RSAT).

¶3 In January 2015, Watring was charged with possession of
a controlled substance with intent to distribute, a second degree
felony, and possession or use of a controlled substance, a class B
misdemeanor. On February 2, 2015, during a hearing and after
accepting a plea offer from the State, Watring pleaded guilty to
one third degree felony. He waived the waiting period for
sentencing, and the court immediately sentenced him. The court
sentenced Watring to a suspended prison term of zero to five
years on the condition that he serve three years of probation and
successfully complete RSAT. The court did not address
Watring’s 2011 sentences, including whether the 2015 sentence
would run concurrently with or consecutively to them. It
concluded the hearing by explaining that Watring needed to
return the next day to discuss matters related to RSAT. Of
particular importance to this appeal, the court entered its signed
minutes of the February 2 hearing the same day. The minutes
reflect the court’s failure to determine whether Watring’s 2015
sentence would run concurrently with or consecutively to the
2011 sentences: that section of the minutes was left blank.

¶4 On February 3, 2015, Watring appeared before the district
court to discuss RSAT. The court apologized for going on “auto
pilot” at the previous day’s hearing. Defense counsel added,
“That’s kind of what we talked about. I don’t think we’ve ever
admitted [Watring’s] probation violation, so we’ll start there
today.”1 Watring then admitted that by committing the 2015

1. It is unclear from the record, but it appears the parties had a
conversation with the court between the February 2 and
February 3 hearings about Watring’s probation violation and the
(continued…)

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State v. Watring

drug offense, he violated the terms of his 2011 probation and
therefore could no longer participate in RSAT. The court asked
defense counsel how the probation violation would affect his
sentencing recommendation, to which defense counsel
responded that because “the RSAT team is done with
[Watring],” he recommended the court impose jail terms on the
2011 and 2015 offenses that would run concurrently. In light of
the news of Watring’s probation violation and defense counsel’s
recommendation, the court explained it wanted to review
Watring’s pre-sentence report and continue sentencing for one
week.

¶5 On February 4, 2015, the day after the RSAT hearing, the
district court filed a second minute entry regarding the
February 2 hearing. Contrary to the original minute entry, the
court stated, “All cases and charges may run concurrent.”

¶6 On February 10, 2015, the district court held a hearing to
address Watring’s probation violation and to determine whether
his sentences would run concurrently or consecutively. Defense
counsel recommended concurrent sentences but asked that, in
the event the court imposed consecutive sentences, the court
recommend that Watring be accepted into the Con-Quest drug
rehabilitation program. The State recommended consecutive
sentences, emphasizing that Watring committed a drug offense
while he was attending RSAT, began associating with
individuals who undermined his efforts to rehabilitate, and led
another RSAT participant to join him in committing the drug
offense. After considering the recommendations, the court
revoked probation as to each of Watring’s charges and imposed
all of the original sentences, highlighting the large quantity of
drugs Watring possessed during the 2015 offense and the harm

(…continued)
need to revisit sentencing on the 2015 offense, since that issue
was not addressed at the February 2 hearing.

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State v. Watring

he had caused another RSAT participant. The court ordered the
2011 sentences to run concurrently with one another but
consecutively to the 2015 sentence. The court also recommended
Watring for the Con-Quest program. The court’s signed minutes
reflected these orders.

¶7 In July 2015, Watring filed a motion to correct his 2015
sentence, arguing it was illegal because the second minute entry
of the February 2 hearing stated his sentence would run
concurrently with the 2011 sentences, but at the February 10
hearing, the court ordered it to run consecutively to those
sentences. The court denied the motion.

¶8 In its ruling, the district court explained that under rule
22(e) of the Utah Rules of Criminal Procedure, it could correct an
illegal sentence at any time. The court acknowledged it made
two separate errors. The court first erred when, at the February 2
hearing, it failed to address whether Watring’s 2015 sentence
would run concurrently with or consecutively to the 2011
sentences, rendering the 2015 sentence illegal. Second, the court
made a clerical error when it filed a second version of its minutes
for the February 2 hearing, which noted that Watring’s sentences
would run concurrently. The court stated, “It was not the
Court’s intent to order [Watring’s] sentences to run concurrent
and the Court was unaware that the Minute Entry included this
language when it signed and entered the Minute Entry.” The
court corrected the clerical error by issuing an amended minute
entry. The court then explained it had already corrected its error
of failing to address whether the sentences would run
concurrently or consecutively at the February 2 hearing when it
ordered the sentences to run consecutively at the February 10
hearing and that the February 10 minutes “accurately reflect[ed]
the corrected sentences.” Accordingly, the court denied the
motion. Watring appeals.

¶9 Watring argues the second minute entry of the February 2
hearing ordering the sentences to run concurrently constitutes a

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State v. Watring

valid sentence and therefore the court lacked jurisdiction to
correct the second minute entry. Whether a court has subject
matter jurisdiction is a question of law, which we review for
correctness. State v. Young, 2014 UT 34, ¶ 5, 337 P.3d 227.

¶10 An illegal sentence occurs where it “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 (emphasis added)
(citation and internal quotation marks omitted). “The court may
correct an illegal sentence, or a sentence imposed in an illegal
manner, at any time.” 2 Utah R. Crim. P. 22(e) (2016). Thus, the
court does not lose jurisdiction over an illegal sentence “until
that sentence has been corrected.” State v. Thorkelson, 2004 UT
App 9, ¶ 10, 84 P.3d 854 (citation and internal quotation marks
omitted). By contrast, “once a court imposes a valid sentence, it
loses subject matter jurisdiction over the case.” Id. (citation and
internal quotation marks omitted).

¶11 Under the Utah Code, sentencing courts

shall state on the record and shall indicate in the
order of judgment and commitment:

(a) if the sentences imposed are to run
concurrently or consecutively to each other;
and

2. Rule 22(e) of the Utah Rules of Criminal Procedure was
amended in May 2017 and now provides in relevant part: “The
court may correct a sentence when the sentence imposed: . . . (6)
omits a condition required by statute or includes a condition
prohibited by statute.”

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State v. Watring

(b) if the sentences before the court are to
run concurrently or consecutively with any
other sentences the defendant is already
serving.

Utah Code Ann. § 76-3-401(1) (LexisNexis 2012). Section 401(1)
required the district court, when imposing sentence for
Watring’s 2015 offense, to specify whether the sentence would
run concurrently with or consecutively to the 2011 sentences. But
the court did not do so at the February 2 hearing where it
imposed the sentence, and it did not address the issue in the
original minute entry that contained the order of judgment and
commitment. In fact, there was no discussion at all about
concurrent or consecutive sentences at the February 2 hearing.
Because the court omitted “a term required to be imposed by
statute,” the sentence was illegal. See Yazzie, 2009 UT 14, ¶ 13
(citation and internal quotation marks omitted). The second
minute entry, filed on February 4, contradicted the court’s clear
intention to continue sentencing, which it announced the
previous day at the February 3 hearing, and therefore did not
correct the illegal sentence. See id. Rather, the court corrected the
illegal sentence when it imposed consecutive sentences at the
February 10 hearing.

¶12 Watring also argues the district court erred when it
determined the second minute entry was a clerical error as
described in rule 30(b) of the Utah Rules of Criminal Procedure.
Specifically, he argues the error was not clerical because the
prison term for the 2015 offense was suspended, which, from his
point of view, accurately reflected the court’s intention to impose
concurrent sentences. “[T]he interpretation of a rule of
procedure is a question of law that we review for correctness.”
State v. Rodrigues, 2009 UT 62, ¶ 11, 218 P.3d 610 (alteration in
original) (citation and internal quotation marks omitted).

¶13 Rule 30(b) of the Utah Rules of Criminal Procedure states,
“Clerical mistakes in judgments, orders or other parts of the

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State v. Watring

record and errors in the record arising from oversight or
omission may be corrected by the court at any time.” The
purpose of this rule “is to correct clerical errors so that the record
reflects what was actually done or intended.” Rodrigues, 2009 UT
62, ¶ 14 (citation and internal quotation marks omitted). There is
a distinction “between clerical errors and judicial errors; [t]he
distinction . . . depends on whether [the error] was made in
rendering the judgment or in recording the judgment as
rendered.” Id. (alterations and omission in original) (citation and
internal quotation marks omitted). Thus, an error made in
recording the judgment is clerical, but an error made in
rendering the judgment is judicial. Id. “[O]ur clerical error
analysis generally focuses on (1) whether the order or judgment
that was rendered reflects what was done or intended,
(2) whether the error is the result of judicial reasoning and
decision making, and (3) whether the error is clear from the
record.” Id.

¶14 In light of these factors, we conclude the error was
clerical. The second version of the minutes did not reflect what
the court intended, see id., because the court had not yet
addressed whether the sentences should run concurrently or
consecutively, and the day before the second minutes were filed,
the court announced its decision to continue sentencing for one
week so it could review the pre-sentence report. The error was
made in recording the judgment, not as a result of judicial
reasoning. See id. Moreover, only one week transpired between
the time the court filed the second minutes and the time it held
the February 10 hearing.

¶15 It appears the court was unaware that it had mistakenly
ordered concurrent sentences, because it did not address this
issue at the February 10 hearing. And when analyzing whether
an error is clerical, “it matters little whether an error was made
by the court clerk, the jury foreman, counsel, a party, or the
judge.” Id. (citation and internal quotation marks omitted). It is
also telling that neither Watring nor his counsel addressed the

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second minutes at the February 10 hearing. The record suggests
Watring and his counsel were under the impression the court
had yet to decide whether the sentences were to run
concurrently or consecutively, as evidenced by defense counsel’s
statement at the February 10 hearing that, if the court was not
agreeable to concurrent sentences, he would ask it to
recommend Watring to the Con-Quest program. Indeed,
Watring did not move the court to correct the sentences until
months after it imposed them, ostensibly when he stumbled
across the clerical error. Thus, it is clear from the record that the
court made a clerical error. See id.

¶16 We conclude the court did not lose jurisdiction to correct
the sentences and the filing of the second minutes of the
February 2 hearing was a clerical error.

¶17 Affirmed.

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