State v. Gardner

2010 UT 44
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, No. 20100345
Plaintiff/Appellee,
v. F I L E D
Ronnie Lee Gardner,
Defendant/Appellant. June 4, 2010
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Third District, Salt Lake
The Honorable Robin W. Reese
No. 851907002
Attorneys: Mark L. Shurtleff, Att’y Gen., Thomas Brunker,
Erin Riley, Asst. Att’ys Gen., Robert L. Stott,
Salt Lake City, for plaintiff
Megan Blythe Moriarty, Salt Lake City, Jon M.
Sands, Phoenix, AZ, Andrew Parnes, Ketchum, ID,
for defendant
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PER CURIAM:
¶1 The Appellant Ronnie Lee Gardner has challenged the
Warrant of Execution issued by the trial court in this death
penalty case. He argues that the trial court erred in declining
to consider claims going to the validity of his death sentence as
“legal reasons” for not issuing the warrant pursuant to Utah Code
section 77-19-9 (2008). He advanced no other challenges to the
warrant. The State argues that this court does not have
appellate jurisdiction to review the issuance of the warrant, but
urges us to treat the appeal as an original petition for
extraordinary writ. The State further argues that the trial
court did not abuse its discretion in issuing the warrant because
issues related to the validity of Appellant’s sentence are not
“legal reasons” within the meaning of the statute.
¶2 The State is correct in pointing out that a criminal
defendant may appeal “a final judgment of conviction” or “an
order made after judgment that affects the substantial rights of
the defendant.” Utah Code Ann. § 77-18a-1(1)(a)-(b) (Supp.
2009). The issuance of an execution warrant is the ministerial
direction that the sentence of death already imposed be
implemented; it is neither a judgment of conviction nor an order
that affects the rights of the defendant. The sentence itself is

No. 20100345 2
the judgment from which an appeal may be taken, and an order to
execute the sentence is not itself a sentence. State v. Andrews,
843 P.2d 1027, 1028 (Utah 1992). Therefore, we conclude that the
issuance of a warrant is not an appealable order. In view of
this conclusion, it is apparent that a defendant would have no
legal remedy for the issuance of a warrant not in compliance with
the law unless it could be reviewed pursuant to a petition for
extraordinary writ. The State concedes that this “court has
extraordinary writ jurisdiction to review” whether Judge Reese’s
ruling that denied Mr. Gardner’s application for relief under 77-
19-9 “was an abuse of discretion.” Based on this concession, we
will consider the appeal as a petition for extraordinary writ
under rule 65B of the Utah Rules of Civil Procedure.
¶3 Under our standards for reviewing extraordinary writ
requests, we limit such review to determining whether the trial
court has regularly pursued its authority and has not abused its
discretion. State v. Barrett, 2005 UT 88, ¶ 26, 127 P.3d 682.
The trial court held that the “legal reason[s]” referred to in
Utah Code section 77-19-9(2) are limited to reasons that would
render the warrant itself or the issuance process defective, and
do not include reasons why the underlying sentence is invalid.
We agree. The statute requires the trial court to review only
the procedural status of the case and to determine that no direct
or collateral attacks on the judgment are pending, that no stays
are in effect, and that there are no procedural defects in the
warrant application process. Once that determination has been
made the trial court “shall” issue the warrant. Utah Code Ann.
§ 77-19-9(2). The statute does not permit review of substantive
claims that the underlying sentence is invalid such as those
raised here by Mr. Gardner. To construe the “legal reason”
language as Mr. Gardner proposes would not only be inconsistent
with the functional nature of the warrant process, but also would
be inconsistent with the procedural scheme outlined for
resolution of substantive challenges to criminal judgments by the
Post Conviction Remedies Act. See id. § 78B-9-102 (2008)
(setting forth the “sole remedy” for a defendant “who has
exhausted all other legal remedies” to challenge a criminal
conviction).
¶4 We therefore hold that the trial court’s interpretation
of Utah Code section 77-19-9 was correct, and that it did not
abuse its discretion in issuing the warrant. The request for
extraordinary relief is denied.
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