State v. Fairchild

2016 UT App 205
THE UTAH C OURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
S TEVEN M ICHAEL F AIRCHILD,
Appellant.
Opinion
No. 20131118-CA
Filed September 29, 2016
First District Court, Logan Department
The Honorable Kevin K. Allen
No. 111101239
Thomas S. Bowman, Aaron K. Bergman, and Wayne
K. Caldwell, Attorneys for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which JUDGES
M ICHELE M. C HRISTIANSEN and K ATE A. TOOMEY concurred.
ORME, Judge:
¶1 	Defendant 	Steven 	Michael 	Fairchild 	appeals 	the 	trial
court’s denial of his motion for a new trial and its imposition of
consecutive sentences. The issues on appeal relate to the fairness
of the trial and sentence. We affirm.

State v. Fairchild
20131118-CA 	2 	2016 UT App 205
BACKGROUND1
¶2 	On November 16, 2011, Defendant and his girlfriend
(Girlfriend) agreed to rob a bank. The couple left Logan, Utah,
where Defendant resided, and drove to West Valley City, Utah,
where friends paid them $100 to deliver psychedelic mushrooms
the following day. Next, Defendant and Girlfriend drove to a
pawnshop in Evanston, Wyoming, in the middle of the night.
Girlfriend parked the car and waited for Defendant, who went
inside, remained for less than two minutes, and returned with five
guns.
¶3 	The next day, the couple drove back to Logan, where they
decided to rob a gas station instead of a bank. The couple entered
the targeted gas station, Girlfriend wearing a red bandana and
baggy clothing and Defendant dressed in a black ski mask, a black
jacket, 	jeans, 	and 	white 	shoes. 	Each 	had 	a 	gun. 	Girlfriend
remained by the gas station door as Defendant walked into the
store toward the cash register. Defendant waved a gun in an
employee’s face and ordered her to open the cash drawer.
Defendant stole the money from the register and a pack of Camel
brand cigarettes and then fled. During the course of the robbery,
a second employee came out of the storeroom, saw Defendant,
and heard him order the first employee to “[o]pen the registers.”
She also saw Girlfriend.
¶4 	That 	night, 	the 	couple 	bought 	and 	delivered 	the
psychedelic 	mushrooms 	they 	had 	promised 	their 	friends.
Meanwhile, police had been investigating the robbery at the gas
station. As a part of the investigation, a third gas station employee
(Employee) viewed surveillance video of the robbery, which
included a recording of the robber’s voice. Based on his voice,
Employee recognized the gunman as Defendant. She was familiar
1. “When reviewing a jury verdict, we examine the evidence and
all 	reasonable 	inferences 	drawn 	therefrom 	in 	a 	light 	most
favorable to the verdict, and,” unless otherwise noted, “we recite
the facts accordingly.” State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116.

State v. Fairchild
20131118-CA 	3 	2016 UT App 205
with Defendant’s voice because of extensive interaction with him:
he was a regular customer at the gas station; she had previously
hired him to build her porch; and she had recommended him for
a job at her other place of employment, where he was hired and
where they occasionally crossed paths. Employee also identified
him in a video from his November 13 visit to the gas station when
she said that he bought Camel cigarettes from her.2
¶5 	Police 	also 	showed 	photographs 	of 	the 	robbery 	to
Defendant’s 	parole 	officer 	(Parole 	Officer). 	Parole 	Officer
observed that the male suspect’s clothing matched the clothes
Defendant wore during a parole visit the day before the robbery.
Police 	arrested 	Defendant 	and 	Girlfriend 	on 	November 	20.
During the arrest, police searched Defendant’s truck and found
Girlfriend’s bandana and wallet in the glove compartment, a pack
of Camel brand cigarettes by the ashtray, a cooler that contained
a large quantity of psychedelic mushrooms, and four guns.3
¶6 	The State charged Defendant with one count of aggravated
robbery, a first degree felony; four counts of possession of a
firearm by a restricted person, a second degree felony; one count
of possession of a controlled substance with intent to distribute, a
second 	degree 	felony; 	and 	four 	counts 	of 	receiving 	stolen
property, a second degree felony. The State also sought to enhance
Defendant’s sentence by having him designated as a habitual
violent 	offender. 	The 	parties 	agreed 	that 	the 	judge 	would
determine whether Defendant was a habitual violent offender
and that the remaining issues would be tried to a jury.
¶7 	Before trial, the State moved to admit evidence, under rule
404(b) 	of 	the 	Utah 	Rules 	of 	Evidence, 	that 	Defendant 	was
convicted of robbing two Logan banks in December 1998 and
2. At trial, Defendant testified that the cigarettes were Pall Mall
brand, not Camel.
3. After delivering the psychedelic mushrooms, Defendant sold
one of the guns.

State v. Fairchild
20131118-CA 	4 	2016 UT App 205
January 1999. The State argued that this evidence would show
motive, plan, intent, and identity and that it was not attempting
to 	impugn 	Defendant’s 	character 	or 	establish 	his 	criminal
propensity. The court denied the State’s motion and ordered that
it not put on evidence of Defendant’s prior crimes at trial. One day
before trial, Defendant moved to sever the “restricted person”
requirement from the rest of the restricted-person-in-possession-
of-a-firearm 	charge. 	Instead, 	the 	parties 	stipulated 	that 	the
“restricted person” requirement was satisfied. The court agreed,
ordering 	that 	it 	would 	instruct 	the 	jury 	as 	to 	Defendant’s
restricted status but “would not allow any evidence regarding
[Defendant’s] previous convictions or the reasons why he is a
restricted person.”
¶8 	Despite the 404(b) pretrial order and the stipulation, there
were multiple references to Defendant’s status as a parolee during
trial. First, during the State’s opening statement, the prosecutor
told 	the 	jury 	that 	Parole 	Officer 	“was 	a 	supervisor 	over
[Defendant’s parole],” and Defendant’s trial counsel did not
object. Indeed, trial counsel characterized Parole Officer in much
the same way during his own opening statement. Later, Parole
Officer testified that he knew Defendant in his capacity as a parole
officer, stating that “in June of 2011, [Defendant] paroled from
prison to my caseload.” But he did not say why Defendant
previously had been imprisoned, and the prosecutor asked no
follow-up 	questions. 	Defendant 	objected 	and 	moved 	for 	a
mistrial. The trial court denied the mistrial motion.
¶9 	During closing arguments, Defendant’s trial counsel and
the prosecutor each referred to Defendant’s status as a parolee.
First, trial counsel said, “in the late fall of 2011, [Defendant] and
[Girlfriend] went to the office of [Parole Officer]. They asked . . .
permission to live together, to further their relationship. [He]
granted their request.” 	And 	the 	prosecutor repeated 	Parole
Officer’s name 	and title before stating, “He supervised the
defendant.”

State v. Fairchild
20131118-CA 	5 	2016 UT App 205
¶10 	When the court was preparing to instruct the jury that
Defendant was a restricted person, the prosecutor suggested that
the instruction include that Defendant was on parole at the time
of the gas station robbery. The court refused, stating, “Well, I
don’t want to bring any more attention to that fact, frankly. I
shouldn’t have—well, parole, we’re okay with that.” The court
ultimately issued a limiting instruction, informing the jury that
Parole Officer only mentioned Defendant’s parole to show that he
knows the defendant and is familiar with him. Do
not use it for any other purpose. It is not evidence
that the defendant is guilty of the crimes for which
he is now on trial. . . . You may not convict a person
simply because you believe he may have committed
some other acts at another time.
¶11 	The jury also heard testimony from Girlfriend, the two
employees who were at the gas station during the robbery, and
Employee. One of the employees testified that the robber had blue
eyes, but Defendant has brown eyes. The State also presented the
gas station’s surveillance video, which showed the male suspect
wore a dark hooded jacket, jeans, and white shoes. And it
presented evidence of the items police found in Defendant’s
truck—the 	bandana, 	wallet, 	Camel 	cigarettes, 	psychedelic
mushrooms, and guns.
¶12 	The jury returned a guilty verdict on each of the ten counts
against Defendant. The court then initiated a bench trial on the
issue of whether Defendant was a habitual violent offender. It
determined that he was. At sentencing, the trial court imposed
indeterminate sentences of five years to life for aggravated
robbery and each of the four weapons possession charges, one to
fifteen years for the drug possession charge, and one to fifteen
years for each theft by receiving stolen property charge. The court

State v. Fairchild
20131118-CA 	6 	2016 UT App 205
ordered that these sentences run consecutively to each other and
to the sentence Defendant was already serving.4
¶13 	Defendant then filed a motion for new trial, arguing that
the statements during trial that he was on parole violated the
pretrial order and unfairly prejudiced him. The court denied
Defendant’s motion, ruling that Parole Officer’s testimony did not
violate the pretrial order and that, even if it did, the error was
harmless both because the totality of the evidence supported
conviction and because the curative instruction ameliorated any
potential harm.
¶14 	Finally, Defendant filed a motion challenging the legality
of his sentence. Citing Utah Code section 76-3-401, he asserted
that consecutive sentences can never exceed thirty years. The trial
court denied the motion on the ground that Defendant received
five sentences with a maximum sentence of life imprisonment and
the thirty-year limitation does not apply to offenses with the
possible maximum sentence of life imprisonment. See Utah Code
Ann. § 76-3-401(1)(6)(b) (LexisNexis 2012). Defendant appeals the
trial court’s denial of his motion for a new trial and his sentence.
ISSUES AND STANDARDS OF REVIEW
¶15 	Defendant first argues that the trial court erred when it
denied his motion for new trial because, as he contends, the
multiple references to his status as a parolee violated the trial
court’s 	pretrial 	order 	and 	his 	rights 	to 	due 	process, 	the
presumption of innocence, and a fair trial. “We will not reverse a
trial court’s denial of a motion for a new trial absent a clear abuse
of discretion.” State v. Maestas, 2012 UT 46, ¶ 103, 299 P.3d 892. A
trial court abuses its discretion where “no reasonable [person]
would take the view adopted by the trial court.” State v. Gerrard,
4. 	Having 	been 	on 	parole 	before 	robbing 	the 	gas 	station,
Defendant returned to prison to serve his remaining sentence for
a prior bank robbery soon after his November 20 arrest.

State v. Fairchild
20131118-CA 	7 	2016 UT App 205
584 P.2d 885, 887 (Utah 1978). “[W]e review the legal standards
applied by the trial court in denying such a motion for correctness
. . . [and] the trial court’s factual findings for clear error.” State v.
Pinder, 2005 UT 15, ¶ 20, 114 P.3d 551 (citation and internal
quotation marks omitted).
¶16 	Defendant also argues that his sentence is illegal because
the 	trial 	court 	did 	not 	expressly 	consider 	the 	mandatory
sentencing 	factors 	and 	ordered 	ten 	consecutive 	sentences,
meaning—in Defendant’s view—that he will not be eligible for
parole for another seventy years. Defendant insists that the trial
court did so “with an admitted purpose of depriving the Board of
Pardons of any consideration for rehabilitation.” Trial courts have
broad discretion in sentencing. State v. Fedorowicz, 2002 UT 67, ¶
63, 52 P.3d 1194. Thus, we ordinarily review sentencing decisions
for an abuse of discretion. State v. McDonald, 2005 UT App 86, ¶ 9,
110 P.3d 149. But when the legality of a sentence is challenged, a
question of law is presented, which we review for correctness. See
State v. Houston, 2015 UT 40, ¶ 16, 353 P.3d 55; State v. Yazzie, 2009
UT 14, ¶ 6, 203 P.3d 984.
ANALYSIS
I. New Trial Motion
¶17 	Defendant first asserts that the trial court abused its
discretion when it denied his motion for new trial. He contends
that he is entitled to a new trial because Parole Officer’s testimony
and the other references to his status as a parolee violated the trial
court’s pretrial order and denied him his rights to due process, the
presumption of innocence, and a fair trial. “A trial court may
grant a new trial ‘in the interest of justice if there is any error or
impropriety which had a substantial adverse effect upon the
rights of a party.’” Maestas, 2012 UT 46, ¶ 103 (quoting Utah R.

State v. Fairchild
20131118-CA 	8 	2016 UT App 205
Crim. P. 24(a)).5 A new trial is not necessary, however, where the
errors “are sufficiently inconsequential that we conclude there is
no reasonable likelihood that the error affected the outcome of the
proceedings.” State v. Verde, 770 P.2d 116, 120 (Utah 1989).
Accordingly, a new trial is not merited where the errors are
harmless. Id.
¶18 	We are not convinced that the trial court had to exclude all
evidence of Defendant’s status as a parolee. Defendant argued
that he was not the man who robbed the gas station, meaning the
State had to prove the suspect’s identity, and evidence of past
crimes may be admissible to help establish identity. See Utah R.
Evid. 	404(b)(2). 	But 	having 	ruled 	in 	its 	pretrial 	order 	that
“evidence 	pertaining 	to 	the 	prior 	robberies” 	could 	not 	be
admitted at trial, it is perplexing that the trial court permitted the
jury to hear references to Defendant’s status as a recently released
parolee in opening and closing argument and during Parole
Officer’s testimony. See State v. Decorso, 1999 UT 57, ¶ 21, 993 P.2d
837 (“[I]f the court determines that the evidence is being offered
only to show the defendant’s propensity to commit crime, then it
is inadmissible and must be excluded at that point.”). Because the
trial court had already determined in its pretrial order that the
evidence violated rule 404, the evidence should not have been
admitted and failure to exclude it was erroneous.
¶19 	Nevertheless, we cannot conclude that Defendant was
prejudiced by these statements.6 In denying Defendant’s motion
5. Under certain circumstances harm is presumed, State v. Maestas,
2012 UT 46, ¶ 53, 299 P.3d 892, but Defendant has made no such
argument. Thus, we only consider whether Defendant suffered
actual prejudice.
6. Defendant also argues on appeal that a new trial was merited
because the trial court committed plain error when it failed to stop
the State from eliciting the problematic testimony from Parole
(continued…)

State v. Fairchild
20131118-CA 	9 	2016 UT App 205
for new trial, the trial court correctly concluded that any violation
of its pretrial order was harmless. Errors are harmless when
“there is no reasonable likelihood that the error affected the
outcome of the proceedings.” Verde, 770 P.2d at 120. And we
require that the error be substantial enough that “the likelihood
of 	a 	different 	outcome 	[is] 	sufficiently 	high 	to 	undermine
confidence in the verdict.” State v. Knight, 734 P.2d 913, 920 (Utah
1987). Cf. State v. S.H., 2002 UT 118, ¶ 26, 62 P.3d 444 (“[E]ven if
we assume that the evidence was improper, an appellate court
will not overturn a jury verdict for the admission of improper
evidence if the admission of the evidence did not reasonably
[a]ffect the likelihood of a different verdict.”).
¶20 	Here the challenged statements were harmless because
even excluding the challenged statements, the jury had before it
ample evidence to support Defendant’s convictions. Defendant
based 	his 	entire 	defense 	on 	the 	theory 	that 	someone 	else
committed the robbery. Thus, evidence tying Defendant to the
crime would have been particularly useful to the jury in weighing
the facts. And the jury heard testimony from several witnesses
who placed Defendant at the scene of the robbery. The State also
presented physical evidence linking him to the drug and gun
crimes. When the weight of the evidence supports conviction, we
will not reverse merely because one bit of evidence was tainted.
See, e.g., State v. Dalton, 2014 UT App 68, ¶¶ 30–32, 331 P.3d 1110
(declining to overturn a jury verdict on the basis that the jury
Officer and because trial counsel was ineffective for failing to
object to that testimony. We decline to separately address these
issues because regardless of whether the trial court committed
plain error or trial counsel was ineffective, we are not convinced
that Defendant was harmed by the statements in question. By
holding that the trial court’s error in permitting the jury to hear
references 	to 	Defendant’s 	parole 	status 	was 	harmless, 	we
necessarily also conclude that its failure to act sua sponte to
prevent the testimony and trial counsel’s failure to challenge the
testimony were harmless.

State v. Fairchild
20131118-CA 	10 	2016 UT App 205
heard inadmissible character evidence and determining “[t]here
was abundant other evidence to support” the verdict when two
witnesses, including the victim, testified to the issue in dispute).
¶21 	At Defendant’s trial, there were four witnesses, other than
Parole Officer, who identified Defendant as the robber. Girlfriend
testified to her own role in the crimes and that Defendant, her
then-boyfriend, was her accomplice. It is conceivable that she
fabricated her story, given that she agreed to testify against
Defendant as part of a plea bargain and that their relationship had
soured, but such circumstances present a credibility question for
the jury to resolve. See State v. Dunn, 850 P.2d 1201, 1213 (Utah
1993). And because her story was consistent with the other
evidence presented by the State, a reasonable jury could find her
credible. The State also offered testimony from three gas station
employees. The two employees who were at the gas station at the
time of the robbery were eyewitnesses, who described the clothes
the male and female robbers wore during the robbery. Employee,
who knew Defendant well, identified Defendant based on the
sound of his voice on the video recording of the robbery.
¶22 	Furthermore, 	there 	was 	extensive 	physical 	evidence
implicating Defendant in the crimes. Upon searching his truck,
police found a cooler containing psychedelic mushrooms, which
supported Girlfriend’s account and the drug charges; multiple
firearms, which supported Girlfriend’s account and the weapons
possession charges; a pack of Camel filtered cigarettes, which
supported Girlfriend’s account, one store employee’s account,
and the robbery charge; and Girlfriend’s wallet and bandana,
which 	linked 	her—and 	him 	through 	her 	testimony—to 	the
robbery. Thus, there was substantial evidence upon which a
reasonable jury could conclude that Defendant was in fact the
perpetrator of these crimes.
¶23 	Additionally, any potential harm to Defendant was limited
because the references to his parole status were sporadic and
vague. A serious problem was averted because the specific nature
of his past crimes was never discussed. For all the jury knew,

State v. Fairchild
20131118-CA 	11 	2016 UT App 205
Defendant might have been on parole for cattle rustling or tax
evasion rather than bank robbery. And the trial court sought to
limit the impact of the references by giving a curative instruction.
The Utah Supreme Court has held that both of those factors—the
absence of details regarding the past crimes and the use of a
curative instruction—limit the potential harm to a defendant.
State v. Griffiths, 752 P.2d 879, 883 (Utah 1988). See also State v.
Allen, 2005 UT 11, ¶¶ 11, 42–44, 108 P.3d 730 (affirming the district
court’s denial of a mistrial following a witness’s statement that the
defendant was asked to take a lie detector test when “the reference
was vague” and did not include details such as the defendant’s
having taken and failed the test and where the court gave a
curative instruction); State v. Cooper, 2011 UT App 412, ¶ 21 n.11,
275 	P.3d 	250 	(identifying 	several 	cases 	in 	which 	curative
instructions have successfully been used to remedy errors at trial).
¶24 	Nonetheless, 	Defendant 	asserts 	that 	he 	was 	harmed
because the jury could not reasonably have concluded that he was
guilty based only on the properly admitted evidence and would
not have so concluded had it not heard evidence of his parole
status. While Defendant disputes the strength of the evidence
against 	him, 	the 	points 	Defendant 	raises—including 	the
testimony that the male robber’s eyes were blue, while his are
brown, and that the stolen cigarettes were Camels, while he
smokes Pall Malls—are insubstantial under the circumstances
and do not undermine the overwhelming evidence supporting his
convictions. Cf. State v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346 (“[A]
defendant 	must 	demonstrate 	first 	that 	the 	evidence 	was
insufficient to support a conviction of the crime charged and
second that the insufficiency was so obvious and fundamental
that the trial court erred in submitting the case to the jury.”).
¶25 	Thus, the references to Defendant being out of prison on
parole 	did 	not 	prejudice 	Defendant. 	Because 	he 	was 	not
prejudiced, the trial court did not abuse its discretion in denying
his motion for a new trial.

State v. Fairchild
20131118-CA 	12 	2016 UT App 205
II. Sentence
¶26 	Defendant also contends that the trial court abused its
discretion in sentencing him. He first insists that the trial court
failed to consider the statutory sentencing factors, in violation of
Utah Code section 76-3-401. Second, he argues that the sentence
of ten prison terms to be served consecutively means the total
minimum time he will serve is thirty years, beginning only after
he completes his previous prison sentence, making it likely he will
be in prison for about seventy years total. Defendant argues this
amounts to a de facto life sentence that deprives the Board of
Pardons and Parole of its lawful discretion.
A. 	Statutory Factors
¶27 	Defendant argues that the trial court failed to consider the
factors set out in Utah Code section 76-3-401, which states that a
court deciding whether multiple felony offenses merit concurrent
or 	consecutive 	sentences 	“shall 	consider 	the 	gravity 	and
circumstances of the offenses, the number of victims, and the
history, character, and rehabilitative needs of the defendant.”
Utah Code Ann. § 76-3-401(2) (LexisNexis 2012). On appeal, we
will only review claims that were properly preserved in the trial
court because it is “in the interest of orderly procedure[ that] the
trial court . . . be given an opportunity to address a claimed error
and, if appropriate, correct it.” Holgate, 2000 UT 74, ¶ 11 (citation
and internal quotation marks omitted). Stated another way, for a
claim to be properly before us, appellants must first have “raise[d]
the issue in the trial court ‘in such a way that the trial court has an
opportunity to rule on that issue.’” State v. Bird, 2015 UT 7, ¶ 10,
345 P.3d 1141 (quoting Pratt v. Nelson, 2007 UT 41, ¶ 15, 164 P.3d
366). And appellants must also provide us with a record citation,

State v. Fairchild
20131118-CA 	13 	2016 UT App 205
documenting that their claims were preserved. Utah R. App. P.
24(a)(5)(A).7
¶28 	Defendant asserts that his “Motion for New Sentence and
Motion to Correct Sentence” preserved his sentencing-factors
argument. But that motion did not specifically address the
sentencing factors, instead asserting that under Utah Code section
76-3-401(6)(a) 	consecutive 	sentences 	can 	never 	exceed 	thirty
years.8 The Supreme Court has identified three factors to help
courts assess whether a claim is properly preserved: (1) whether
the issue was timely raised, (2) whether the issue was specifically
raised, 	and 	(3) 	whether 	appellant 	“introduce[d] 	supporting
evidence or relevant legal authority.” Pratt, 2007 UT 41, ¶ 15
(citation 	and 	internal 	quotation 	marks 	omitted). 	Because
Defendant’s motion did not specifically raise his sentencing-
factors argument with the trial court, and he points us to no other
place in the record preserving the issue, we conclude that he did
not provide the trial court with an opportunity to rule on the issue
and that it is not preserved for appeal.
¶29 	Defendant argues, however, that regardless of whether his
claim was properly preserved for appeal in the usual way, rule
7. Other than his argument that we should review the sentence
under rule 22(e) of the Utah Rules of Criminal Procedure, see infra
¶ 29, Defendant has not argued the applicability of any of the
exceptions to our preservation rule.
8. The trial court concluded that the sentence in this case does not
violate the thirty-year limitation because it falls into one of the
statutory exceptions, namely that he was sentenced for five
offenses 	that 	carry 	a 	potential 	maximum 	sentence 	of 	life
imprisonment. The statute allows consecutive sentences to exceed
thirty 	years 	when 	“an 	offense 	for 	which 	the 	defendant 	is
sentenced authorizes the death penalty or a maximum sentence of
life 	imprisonment.” 	Utah 	Code 	Ann. 	§ 	76-3-401(6)(b)(i)
(LexisNexis 2012).

State v. Fairchild
20131118-CA 	14 	2016 UT App 205
22(e) of the Utah Rules of Criminal Procedure allows this court to
“correct an illegal sentence, or a sentence imposed in an illegal
manner, at any time.” Utah R. Crim. P. 22(e). Unfortunately for
Defendant, rule 22(e) is not the kind of catch-all he envisions, but
is instead reserved for correcting “patently or manifestly illegal
sentence[s].” State v. Thorkelson, 2004 UT App 9, ¶ 15, 84 P.3d 854
(citation and internal quotation marks omitted). Because they are
not limited by our preservation requirement, “rule 22(e) claims
must be narrowly circumscribed to prevent abuse,” State v.
Telford, 2002 UT 51, ¶ 5, 48 P.3d 228 (per curiam), and they do not
include “ordinary or ‘run-of-the-mill’ errors regularly reviewed
on 	appeal 	under 	rule 	4(a) 	of 	the 	Utah Rules 	of 	Appellate
Procedure,” Thorkelson, 2004 UT App 9, ¶ 15. Thus, for purposes
of rule 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 (quoting United States
v. Dougherty, 106 F.3d 1514, 1515 (10th Cir. 1997)) (defining illegal
sentences in double jeopardy context). Accord State v. Dana, 2010
UT App 374, ¶ 6, 246 P.3d 756 (applying the Yazzie definition in
holding a sentence was illegal for rule 22(e) purposes).
¶30 	Defendant argues that instead of using the statutory factors
to 	guide 	his 	sentencing, 	the 	court 	relied 	on 	a 	variety 	of
objectionable items. First, he suggests that the court intended “to
deprive 	anyone 	from 	second 	guessing 	the 	decision 	to 	lock
[Defendant] in prison and throw away the key.” Defendant also
contends that the prosecutor misrepresented the employees’
testimony 	regarding 	the 	fear 	they 	felt, 	that 	there 	were
discrepancies in the evidence the court relied on in sentencing,
and that the court made generalizations about Defendant’s unmet
potential 	instead 	of 	identifying 	the 	specific 	facts 	and
circumstances 	that 	informed 	its 	sentencing 	decision. 	These
alleged 	sentencing 	errors 	are 	not 	“patently” 	or 	“manifestly
illegal”; they are “run-of-the-mill errors regularly reviewed on

State v. Fairchild
20131118-CA 	15 	2016 UT App 205
appeal under rule 4(a) of the Utah Rules of Appellate Procedure.”
Thorkelson, 2004 UT App 9, ¶ 15 (citations and internal quotation
marks omitted).
¶31 	And because Defendant has not otherwise preserved the
issue, we decline to review the challenge to his sentence based on
the claim that the trial court failed to consider the statutory
sentencing factors in imposing sentence.
B. 	Board of Pardons Discretion
¶32 	Defendant next argues that the trial court abused its
discretion by imposing what he characterizes as a de facto life
sentence. He insists that by ordering him to serve so many
consecutive sentences the trial court has kept the Board of
Pardons from having the opportunity to review his case for
another seventy years, which would be after his 102nd birthday.
He contends that this is an illegal sentence under the Utah
Constitution’s grant of broad discretion to the Board to determine
whether a prisoner is to be paroled, see Utah Const. art. VII, §
12(2)(a), because he cannot reasonably expect to survive beyond
the time required by the sentence, which he asserts would be the
first time the Board could lawfully review his sentence. But
Defendant’s 	theory 	assumes 	that 	while 	the 	Board 	has 	the
discretion to review maximum sentences, it does not have the
ability to review minimum sentences.9 This is simply not the case.
9. Defendant relies on State v. Smith, 909 P.2d 236 (Utah 1995), in
asserting that consecutively served sentences that total more years
than the defendant can reasonably expect to live denies the Board
of its discretion. While Defendant correctly identifies a substantial
concern the Supreme Court expressed in Smith, see id. at 244–45,
he fails to acknowledge that the legal landscape has shifted since
that decision was issued. In 1996, the Legislature revised the
relevant statutes to make clear that the Board indeed has plenary
and unreviewable discretion, so long as it takes steps to assure
(continued…)

State v. Fairchild
20131118-CA 	16 	2016 UT App 205
¶33 	We have recently characterized the roles of the sentencing
court and the Board as “‘two separate and distinct powers’”
within our indeterminate sentencing system. State v. Gray, 2016
UT App 87, ¶ 31, 372 P.3d 715 (quoting Padilla v. Utah Board of
Pardons & Parole, 947 P.2d 664, 669 (Utah 1997)). The sentencing
court sets indeterminate sentences in accordance with the relevant
statutes, and the Board subsequently reviews those indeterminate
sentences at any time during the course of the sentence to
determine the appropriate sentence an inmate will actually serve.
See Gray, 2016 UT App 87, ¶ 31. Under that system, the trial court
does not have the power, as Defendant fears, to limit the Board’s
discretionary review.
CONCLUSION
¶34 	Defendant has not shown that he was harmed by the
admission of evidence that he was recently released from prison
and on parole, even though that evidence violated the trial court’s
pretrial order. And he has not demonstrated that the trial court
abused 	its 	discretion 	in 	denying 	his 	motion 	for 	new 	trial.
Defendant failed to preserve his claim that the trial court did not
properly consider the statutory sentencing factors in imposing his
sentence, and that gap cannot be filled by rule 22(e) of the Utah
Rules of Criminal Procedure because Defendant does not raise a
that inmates receive due process. Utah Code Ann. § 77-27-5(3)
(LexisNexis 2012). Thus, the Board is now authorized to review a
sentence at any time. When the trial court says the Board will be
able to review the sentence is of no moment, and we decline to
take judicial notice, as Defendant has asked us to do, of the date
on which his first parole hearing is currently set, as even that is
subject to change in the exercise of the Board’s broad discretion.
See Finlayson v. Finlayson, 874 P.2d 843, 847 (Utah Ct. App. 1994)
(“Judicial 	notice 	is 	taken 	on 	appeal 	only 	where 	there 	is 	a
‘compelling “countervailing principle” to be served.’”) (quoting
Mel Trimble Real Estate v. Monte Vista Ranch, Inc., 758 P.2d 451, 456
(Utah Ct. App. 1988)).

State v. Fairchild
20131118-CA 	17 	2016 UT App 205
facial challenge to the legality of his sentence. Nor did the
sentence imposed intrude on the authority of the Board of
Pardons and Parole.
¶35 	Affirmed.