State v. Walton

2019 UT App 187

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ROBERT BRIAN WALTON,
Appellant.

Opinion
No. 20170977-CA
Filed November 21, 2019

Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 121903179
The Honorable Mark S. Kouris
No. 161907013

Deborah L. Bulkeley, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray, Attorneys
for Appellee

JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.

APPLEBY, Judge:

¶1 In 2014, Robert Brian Walton entered an Alford plea 1 to
one count of retaliation against a witness, KB, a woman he had
previously dated. As part of his sentence, Walton agreed to the

1. “An Alford plea is a type of guilty plea in which a defendant
does not expressly admit his guilt, but nonetheless waives his
right to a trial and authorizes the court for purposes of the case
to treat him as if he were guilty.” State v. Archuleta, 2019 UT App
136, ¶ 5 n.2, 449 P.3d 223 (quotation simplified).
State v. Walton

entry of a permanent criminal stalking injunction (Injunction),
which prohibited him from contacting KB and her family. In
2017, after violating the Injunction, Walton asked the district
court to vacate the Injunction as an “illegal sentence.” The court
denied the motion and we affirm.

BACKGROUND

¶2 Walton and KB started dating in 2010 but the relationship
began to sour the following year. In 2011, KB tried to end the
relationship but Walton continued to contact her. Walton went
to KB’s workplace after repeatedly calling her, to convince her to
go to his house. He yelled, “Know your place. Submit, woman.”
KB called the police and made a report. After KB filed the police
report, Walton began contacting her saying she needed to “fix”
the report and “get rid of it” because it was going to hurt his
career.

¶3 KB made several other police reports that same year. On
one occasion, Walton went to KB’s birthday party and got into
an altercation with one of the guests. He showed up at her
apartment the following day and demanded information about
the police report she filed. He refused to leave her apartment
and demanded she “sleep with him” and “tried to take [her]
clothes off.” KB sent a text message to one of her coworkers to
call the police.

¶4 Over the next several months, Walton continued to
contact and send text messages to KB, telling her, “You’re
fucked. You’re in so much trouble. You need to take care of
this.” Walton also told KB “he was gonna take [her] out like
game.” When asked at the preliminary hearing what she thought
that statement meant, KB responded, “I took it as a threat. I said,
‘Are you threatening me?’”—at which point Walton hung up the
phone.

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State v. Walton

¶5 In early 2012, KB received a text message from Walton
telling her she “should go home,” she was in “so much trouble,”
and “ignoring this [was] going to cost [her] dearly.” These
statements scared KB and she called the police who offered to
escort her to her apartment after work. About one month later,
Walton showed up at KB’s apartment and tried to get money
from her. He followed her from her apartment to her car. After
another car pulled into the parking lot, Walton walked away
saying, “[Y]ou deserve everything you’re gonna get.”

¶6 KB attempted to cut off all communication with Walton
but he continued to call her and send her text messages. KB even
tried moving her household in an effort to get him to leave her
alone. She moved her belongings at night and during times she
thought he would not be around. But within a couple of days,
Walton left her a note on her door and a voicemail telling her he
wanted money and to meet him at a cafe across the street from
her new apartment. KB stated she was not sure how Walton was
able to find her new address and thought he may have followed
her from work. After this, KB began staying at her parents’
house. She was frightened and tried to have Walton served with
a civil stalking injunction.

¶7 One day, KB stopped at her new apartment after work to
collect some belongings to take to her parents’ house. She parked
on the street and noticed a car pull up nearby. Once KB realized
it was Walton, she turned around and ran back to her car. Before
KB was able to lock herself in her car, Walton ran toward her
and opened the car door. Walton grabbed KB by her hair and
began hitting her head against the steering wheel. She started
honking the horn. He demanded she give him her cell phone;
she told him it was in the back and she could not get to it. As the
struggle continued, KB began screaming and hitting the panic
button on her car keys. KB dropped her keys and Walton
grabbed them. She begged Walton to give back her keys and let
her go. Walton responded he would not unless she paid him
money and signed paperwork stating he was not a threat to her.

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State v. Walton

During this time, Walton pulled KB out of the car and again
grabbed her hair and began hitting her head on the back
window. He threatened to “snap [her] neck” if she did not sign
the documents. A woman drove by and asked KB if she was
okay. Walton told the woman, “Don’t worry about it, she’s just
crazy.” The woman asked if she should call the police. KB told
Walton that if he gave the woman KB’s car keys then KB would
sign the papers. KB signed the documents and Walton threw her
keys to the woman and told KB, “I know you’ve called the
police.” As he was leaving he said to KB, “If you call the police I
will hunt you down for as long as it takes and kill you.” KB got
into the woman’s car with her and called the police.

¶8 The State charged Walton with (1) retaliation against a
witness, victim, or informant, a third-degree felony; (2) stalking,
a class A misdemeanor; (3) assault, a class B misdemeanor; (4)
unlawful detention, a class B misdemeanor; and (5) threat of
violence, a class B misdemeanor. In this opinion, we refer to this
criminal case, filed in 2012, as the Retaliation Case. Walton and
the State entered into a plea agreement that was preapproved by
the district court under rule 11 of the Utah Rules of Criminal
Procedure. Walton entered an Alford plea to retaliation against a
witness, and the remaining charges, in addition to other criminal
charges on a separate matter relating to KB, were dismissed. As
part of the plea agreement, the State agreed not to prosecute
Walton for any other potential criminal charges arising from his
relationship with KB before the date of the plea agreement.
Walton also agreed to the entry of the Injunction, which
prohibited him from contacting KB and her family. Also
consistent with the plea agreement, the court sentenced Walton
to 330 days in jail with credit for time served and closed the case.

¶9 After the district court sentenced Walton and closed the
case, the State presented Walton with the Injunction. The court
asked whether Walton agreed to have the Injunction entered
against him and he responded that he had “absolutely no

20170977-CA 4 2019 UT App 187
State v. Walton

problem not contacting [KB]” and agreed to have it imposed.
The court signed, sealed, and served it on Walton that day.

¶10 About eighteen months later, Walton contacted KB in
violation of the Injunction. KB stated that, one day, while she
was using her laptop on her front porch, Walton approached her
with his “hands up” and proceeded to talk to her. Walton asked
KB what she was going to do to “help his situation.” KB asked
whether he was looking for money but he told her he wanted
her help to “save his good name.” Walton repeatedly asked KB
whether she was going to call the police. After about an hour of
conversation, Walton walked away. KB called the police to
notify them that Walton violated the Injunction.

¶11 The next day, KB went to work and Walton pulled into
the parking lot and again engaged in conversation with her. He
asked her if she was going to call the police. She told Walton she
could not talk to him and walked into the office building. Later
that day, while KB was driving, Walton pulled up next to her
and it looked as though he was trying to talk to her. KB did not
roll down her window and Walton drove off. KB called the
police and sent an email to the prosecutor, letting him know
about the Injunction violations.

¶12 The State charged Walton with three counts of stalking in
violation of the Injunction. In this opinion, we refer to this
second case, filed in 2016, as the Stalking Case. Walton
responded to the Stalking Case in part by filing a motion in the
Retaliation Case, invoking rule 22(e) of the Utah Rules of
Criminal Procedure and asking the court to correct the sentence
that had been imposed upon him in the Retaliation Case.
Specifically, Walton contended that the imposition of the
Injunction in the Retaliation Case was improper and illegal, and
asserted that, without the Injunction, the charges in the Stalking
Case were groundless. The court denied the motion.

¶13 Several months later, Walton and the State entered into a
plea agreement resolving the Stalking Case. Pursuant to that

20170977-CA 5 2019 UT App 187
State v. Walton

agreement, Walton entered an Alford plea to one count of
stalking, and the State dismissed the other two counts with
prejudice. The court sentenced Walton to a suspended,
indeterminate prison term of zero to five years and placed
Walton on probation for thirty-six months. The court also issued
another permanent criminal stalking injunction that prohibited
Walton from contacting KB, her family, and the employees of the
district attorney’s office. Walton filed a motion to reconsider the
court’s order on his rule 22(e) motion. In the motion, he asked
the court to terminate his probation and “mind [its] own
business” because he had been punished enough and would
now be labeled “a stalker for time and memoriam.” The court
denied the motions.

ISSUE AND STANDARD OF REVIEW

¶14 Walton argues that, in the Retaliation case, the district
court erred in denying his motion to vacate the Injunction under
rule 22(e) of the Utah Rules of Criminal Procedure. 2 We review
the denial of a rule 22(e) motion for correctness. State v. Wynn,
2017 UT App 211, ¶ 11, 407 P.3d 1113.

ANALYSIS

¶15 Walton argues the district court erred in failing to correct
his sentence under rule 22(e) of the Utah Rules of Criminal
Procedure. He contends a permanent criminal stalking
injunction can be imposed only upon a conviction for stalking,

2. Walton also argues if we find the Injunction was entered as an
illegal sentence, then we also should vacate his subsequent
stalking conviction for violating the Injunction. But Walton
failed to timely appeal his conviction in the Stalking Case and
therefore we decline to reach the merits of his argument on this
issue.

20170977-CA 6 2019 UT App 187
State v. Walton

not retaliation against a witness, and the Injunction exceeded the
statutorily authorized maximum sentence. 3

¶16 Under rule 22(e)(1) of the Utah Rules of Criminal
Procedure, a district court can correct a sentence at any time if it
(1) “exceeds the statutorily authorized maximums,” (2) “is less
than statutorily required minimums,” (3) “violates Double
Jeopardy,” (4) “is ambiguous as to the time and manner in which
it is to be served,” (5) “is internally contradictory,” or (6) “omits
a condition required by statute or includes a condition
prohibited by statute.” In this case, Walton invokes the first and
the last of these categories, arguing the Injunction “exceeds the
statutorily authorized maximums” and “includes a condition
prohibited by statute.” Utah R. Crim. P. 22(e)(1)(A), (F).

¶17 Walton argues the Injunction “exceeds the statutorily
authorized maximums,” id. R. 22(e)(1)(A), because the Injunction
is a life-long restriction that extends his sentence well beyond the
five-year maximum for a third-degree felony conviction of
retaliation against a witness, see Utah Code Ann. § 76-8-508.3(2)
(LexisNexis 2017) (providing that retaliation against a witness
convictions are third-degree felonies); id. § 76-3-203(3)
(articulating that prison sentences for third-degree felonies are
not to exceed five years). Walton is mistaken. The term
“maximums” used in rule 22(e) refers to the maximum periods
for incarceration described in Utah Code section 76-3-203. This

3. The State argues we can affirm Walton’s conviction on the
basis that the Injunction was entered as part of his plea
agreement, not his sentence, and therefore rule 22(e) is
inapplicable. We disagree. In State v. Kropf, this court applied
rule 22(e) in the context of evaluating whether a permanent
criminal stalking injunction was an illegal sentence. 2015 UT
App 223, ¶ 24, 360 P.3d 1. Accordingly, we conclude the
Injunction was part of Walton’s sentence that, if illegal, could be
remedied under rule 22(e).

20170977-CA 7 2019 UT App 187
State v. Walton

provision does not limit the court’s ability to impose other
sanctions, such as stalking injunctions, that may exceed a term of
five years.

¶18 And nothing in the retaliation statute—or in any other
statute of which we are aware—prohibits district courts from
imposing permanent criminal stalking injunctions as part of a
sentence. Id. § 76-8-508.3. Walton contends because the stalking
statute authorizes district courts to enter permanent criminal
stalking injunctions upon a conviction for stalking, such
injunctions are appropriately imposed only in this context and
not for convictions of retaliation against a witness. Id. § 76-5-
106.5(9)(b) (Supp. 2019). But this misses the point. Under rule
22(e), a sentence may be deemed illegal if it includes a condition
prohibited by statute. Utah R. Crim. P. 22(e)(1)(F). Walton has not
identified any statute prohibiting district courts from entering
stalking injunctions as part of a sentence for a conviction of
retaliation against a witness.

¶19 Furthermore, absent circumstances not present here (for
instance, a “mistake as to the law in effect at the time the parties
entered into the plea agreement,” State v. Patience, 944 P.2d 381,
388 (Utah Ct. App. 1997)), Walton cannot accept the benefits of a
plea bargain and then argue that the sentence imposed as part of
that bargain was invalid after it does not work in his favor. The
State offered Walton a favorable plea deal in exchange for the
entry of the Injunction. It agreed to dismiss the remaining
charges in the information, to dismiss other outstanding charges
relating to KB, to forgo prosecution of any other crimes relating
to KB that occurred prior to the plea date, and that Walton
should be sentenced to 330 days in jail with credit for time
served. Importantly, when asked whether he agreed to having
the Injunction entered against him, Walton responded he had
“absolutely no problem not contacting [KB].” We conclude that,
under these circumstances, Walton cannot agree to a particular
sentence, enjoy its benefits, and then attempt to withdraw it after
the court imposes the stipulation.

20170977-CA 8 2019 UT App 187
State v. Walton

CONCLUSION

¶20 The district court did not err in denying Walton’s motion
to correct his sentence because imposing the Injunction was not
an illegal sentence under rule 22(e). Affirmed.

20170977-CA 9 2019 UT App 187