State v. Anderson

2007 UT App 68, 157 P.3d 809, 572 Utah Adv. Rep. 24, 2007 Utah App. LEXIS 57, 2007 WL 610406

• Court: Court of Appeals of Utah
• Decided: March 1, 2007
• Docket: 20041095-CA
• Status: Published

Opinions

OPINION

THORNE, Judge:

T1 Defendant David Scott Anderson appeals the district court's order imposing Defendant's suspended theft sentence to run consecutive to his aggravated robbery sentences. We affirm.

BACKGROUND

2 On December 4, 2008, Defendant pleaded guilty to theft, in violation of Utah Code section 76-6-404, see Utah Code Ann. § 76-6-404 (2003), and Judge Frank G. Noel sentenced Defendant to an indeterminate prison term not to exceed five years. Judge Noel suspended the sentence and placed Defendant on probation for eighteen months under the supervision of Adult Probation and Parole. On August 16, 2004, Defendant pleaded guilty to two counts of aggravated robbery, in violation of Utah Code section 76-6-302, see Utah Code Ann. § 76-6-302 (2003), and Judge Judith S. Atherton sentenced Defendant to two concurrent indeterminate terms of at least six years imprisonment.

T3 Adult Probation and Parole filed an affidavit with Judge Robin W. Reese, who had replaced Judge Noel as the judge overseeing Defendant's probation on the 20083 theft charge. The affidavit stated that Defendant violated the conditions of his probation by having been charged with the offense of aggravated robbery. On December 6, 2004, Judge Reese held a hearing to show cause, revoked Defendant's probation, and imposed the original sentence of zero to five years. Judge Reese ordered the theft sentence to run consecutively to Defendant's aggravated robbery sentences. Defendant appeals from Judge Reese's order.

ISSUE AND STANDARD OF REVIEW

14 In his appeal, Defendant claims that Judge Reese lacked authority under Utah Code section 76-3-401 to order his theft sentence to run consecutively to his aggravated robbery sentences.¹ See Utah Code Ann. § 76-3-401 (2008). This question is one of statutory interpretation, which we review for correctness. See State v. Barrelt, 2005 UT 88, ¶ 14, 127 P.3d 682.

ANALYSIS

T5 Defendant claims that Judge Ather-ton-not Judge Reese-had the authority under Utah Code section 76-3-401(1)(b) to determine whether Defendant's aggravated robbery sentences would run concurrently or consecutively with his suspended theft sentence. Defendant asserts that Judge Ather-ton had the authority to determine the concurrent/consecutive issue because at the time she sentenced Defendant on his aggravated robbery convictions, he was deemed to be "already serving" his theft sentence due to his probationary status. Utah Code Ann. § 76-3-401(1)(b). Judge Atherton imposed Defendant's aggravated robbery sentences concurrent to one another, and Defendant argues that because Judge Atherton imposed concurrent sentences that all other sentences should run concurrently to the aggravated robbery sentences.

I. Interpretation of Utah Code section 76-3-401(1)(b)

16 Utah Code section 76-3-401(1) establishes the cireumstances in which a court is required to make a determination pertaining to the imposition of concurrent or consecutive felony sentences. See id. § 76-3-401(1). A court must determine, when a defendant has been adjudged guilty of multiple felony offenses, "(a) if the sentences imposed are to run concurrently or consecutive, ly to each other; and (b) if the sentences before the court are to run concurrently or consecutively with any other sentence the defendant is already serving." Id. (emphasis added). Pursuant to section (1)(b), a court must run the sentences before it concurrently or consecutively to another sentence if the defendant is actually serving another sentence. See id. § 76-3-401(1)(b). Therefore, we must determine when a defendant is deemed to be "already serving" a sentence for purposes of applying section 76-3-401(1)(b). Defendant asserts that at the time of his aggravated robbery sentencing he was already serving a sentence on his theft conviction because Judge Noel had already sentenced him and he was fulfilling his probationary term accordingly. In contrast, the State asserts that at the time of Defendant's aggravated robbery sentencing Defendant was not already serving his theft sentence because the sentence had been suspended and Defendant was not serving any of the prison term.

T7 Interpreting the language "any other sentences the defendant is already serving" to exclude, as the State asserts, time spent while on probation is consistent with the legislature's use of the verb "served" throughout the statute. Id. In the balance of the statute served means incarcerated. See id. § 76-3-401. "In reading the language of an act, ... we seek to render all parts [of the statute] relevant and meaningful, and we therefore (presume the legislature use[d] each term advisedly and ... according to its ordinary meaning"" State v. Tooele County, 2002 UT 8, ¶ 10, 44 P.3d 680 (additional quotations and citation omitted) (alterations and second omission in original) (quoting Nelson v. Salt Lake County, 905 P.2d 872, 875 (Utah 1995)).

1 8 Throughout section 76-3-401, the legislature consistently uses the word served to mean incarcerated. See Utah Code Anu. § 76-3-401. This is demonstrated in several subsections of the statute. See id. § 76-3-401(8) ("[Dletermining the effect of consecutive sentences and the manner in which they shall be served, the Board of Pardons and Parole shall treat the defendant as though he has been committed for a single term that consists of the aggregate of the validly imposed prison terms." (emphasis added)); see id. § 76-3-401(9) ("When ... sentences are imposed to run concurrently with the other or with a sentence presently being served, the term that provides the longer remaining imprisonment[²] constitutes the time to be served." (emphasis added)); see id. § 76-3-401(10) ("This section may not be construed to restrict the number or length of individual consecutive sentences that may be imposed or to affect the validity of any sentence so imposed, but only to limit the length of sentences actually served under the commitments." (emphasis added)).

T9 Interpreting the language "any other sentences the defendant is already serving" to include, as Defendant asserts, instances where a defendant has already been sentenced, albeit suspended, would render the statute internally inconsistent. If the legislature had intended subsection (1)(b) to apply to suspended sentences, it would have substituted "already serving," id. § 76-3-401(1)(b), with "has already been sentenced," id. § 76-3-401(7)(c), as expressly stated in subsection (7)(c). In interpreting a statute, "the expression of one [term] should be interpreted as the exclusion of another [and that] ... omissions in statutory language should 'be taken note of and given effect.?" Biddle v. Washington Terrace City, 1999 UT 110,¶14, 993 P.2d 875 (citation omitted) (quoting Kennecoft Copper Corp. v. Anderson, 30 Utah 2d 102, 514 P.2d 217, 219 (19783)).

T10 In subsection (7)(c), the legislature expressed its intention to apply the aggregate maximum sentence limitation of subsection (6)(a) to defendants who have "already been sentenced." Utah Code Ann. § 76-3-401(7)(c). Likewise, if the legislature had intended to allow a court to apply section (1)(b) to suspended sentences it would have used the same language articulated in subsection (7)(c) "has already been sentenced."³ Id. The legislature's use of the language "has already been sentenced" in subsection (7)(c), should be taken note of and its omission in subsection (1)(b) should be interpreted as purposeful. Id.

¶11 Reading the statute as a whole, we conclude that section 76-38-401(1)(b) does not authorize a court to order a sentence concurrent or consecutive to another sentence that has not yet been both imposed and executed. See Thomas v. Color Country Mom., 2004 UT 12, ¶ 9, 84 P.3d 1201 (stating that statutes should be read as a whole, and their terms construed consistently). When Judge Atherton sentenced Defendant on his aggravated robbery convictions, Defendant's theft sentence had been suspended. Since the theft sentence was suspended and the execution of Defendant's theft sentence was stayed, Defendant should not be deemed to be already serving the theft sentence. See id. Judge Atherton did not, ⁴ and could not, order Defendant's aggravated robbery sentences to run concurrently or consecutively to his already suspended theft sentence. Rather, she correctly ordered that they be served concurrent as to each other, without referencing other sentences not yet being served.

IIL. Sufficiently Definite Event for Commencement

of the Consecutive Sentence

T12 Interpreting the statute as authorizing a court to impose a concurrent or consecutive sentence to a suspended sentence would create potential implementation problems. In the instant case, when Judge Atherton sought to impose the aggravated robbery sentences there was no sufficiently definite event for commencement of a consecutive order because it was not clear when or if the suspended theft sentence would be executed. However, any uncertainty or implementation problems are resolved when the concurrent/consecutive determination is reserved for the court seeking to execute the suspended sentence.

13 This approach is consistent with decisions from other jurisdictions faced with similar sentencing issues. The Oregon Court of Appeals in State v. DeChenne, 39 Or.App. 901, 594 P.2d 831 (1979), reversed a sentencing order that directed a sentence to run consecutively to a suspended sentence.⁵ See id. at 832. See also State v. White, 18 Ohio St.3d 340, 481 N.E.2d 596 (1985) (reversing a sentencing order that directed a sentence to run consecutively to a sentence that had not yet been imposed). But see State v. Mail-colm, 2003 Ohio 5629, 1117-24 (Ct.App.) (treating a suspended sentence as being a sentence previously imposed and subsequently affirming a trial court order imposing a sentence consecutive to another sentence yet to be reimposed). The DeChenne court reasoned that "[the principal requirement in imposing a consecutive sentence is that there be a sufficiently definite event for commencement of the consecutive sentence in order that the Corrections Division may implement that sentence.⁶ } Id.

T14 Conversely, the cireumstances presented to Judge Reese required him to make the concurrent/consecutive determination at the probation revocation hearing in which he sought to impose and execute the previously suspended sentence.⁷ Defendant, while on probation, incurred intervening convictions of aggravated robbery. And, at the time of the probation revocation hearing, Defendant was serving his aggravated robbery sentences at the Utah State Prison. Thus, in executing the previously imposed sentence, Judge Reese was required by section 76-3-401(1)(b) to determine the manner in which the theft sentence was to be served relative to the aggravated robbery sentences.⁸ As such, Judge Reese did not err in determining whether the sentences were to run concurrently or consecutively to one another.

CONCLUSION

T15 Section 76-3-401(1)(b) requires a court to decide whether the sentence for any felony offense(s) should be served concurrently or consecutively to another sentence being served at the time of the sentencing. See Utah Code Ann. § 76-8-401(1)(b). Because the statute, under subsection (1)(b), requires such a determination only when a defendant is "already serving" another sentence, it does not authorize a court to order a sentence concurrent or consecutive to a suspended sentence. Id. Moreover, an interpretation of the language "any other sentences the defendant is already serving" to include time spent while on probation is inconsistent with the legislature's use of the verb "served" throughout the statute to mean incarcerated. Id. We apply the statute in accordance with the previously articulated statutory interpretation, and hold that Judge Reese-not Judge Atherton-had the authority to determine whether the theft sentence and the aggravated robbery sentences were to be imposed concurrently or consecutively to one another.

T 16 Defendant's theft sentence, although previously imposed, had been suspended pri- or to his sentencing hearing on his aggravated robbery convictions. As a result, Defendant was not already serving a sentence at the time of his sentencing hearing before Judge Atherton. Therefore, Judge Atherton did not have the authority to address, nor did she address, the issue of whether the aggravated robbery charges were to run concurrently or consecutively to Defendant's suspended theft sentence. On the other hand, Defendant was serving his aggravated robbery sentences at the time Judge Reese sought to execute Defendant's suspended theft sentence. Consequently, Judge Reese was required to determine whether Defendant's suspended theft sentence would run concurrently or consecutively to his aggravated robbery sentences. Accordingly, we affirm Judge Reese's order indicating that Defendant's theft sentence is to run consecutively with his aggravated robbery sentences.

1117 I CONCUR: CAROLYN B. McHUGH, Judge.

1 . Defendant also asserts that Judge Reese's order increased his sentence, and therefore, violates the constitutional and statutory protections against double jeopardy. See U.S. Const. amend V; Utah Const. art. I, § 12; Utah Code Ann. § 77-1-6(2)(a) (2003). Defendant raises this claim for the first time on appeal. '" '[Wle will review issues raised for the first time on appeal only if exceptional circumstances or "plain error" exists"" Timm v. Dewsnup, 2003 UT 47, ¶ 39, 86 P.3d 699 (quoting Salt Lake City v. Ohms, 881 P.2d 844, 847 (Utah 1994)). Defendant does not argue that plain error occurred or exceptional circumsiances exist. Therefore, we decline to address Defendant's double jeopardy claim.

2 . Imprisoned is defined to mean "sentenced and committed to a secure facility, ... the sentence has not been terminated or voided, and the person is not on parole, regardless of where the person is located." Utah Code Ann. § 76-3-401(12) (emphasis added).

3 . A defendant fulfilling a term of probation has already been sentenced, but is not serving a sentence because the underlying sentence has been suspended.

4 . The dissent states that the record before us does not reveal whether Judge Atherton was even aware of the theft sentence. However, the record reveals that Judge Atherton ordered a presentence investigation report, which typically includes a section on the defendant's criminal history. The presentence investigation report was received prior to sentencing. Thus, it is likely Judge Atherton had knowledge of the theft sentence.

5 . State v. DeChenne, 39 Or.App. 901, 594 P.2d 831 (1979), was superseded by Oregon Revised Statutes section 137.122 as recognized in State v. Smith, 95 Or.App. 76, 767 P.2d 480 (1989). However, section 137.123 impliedly repealed section 137.122. See State v. Duran, 108 Or.App. 282, 814 P.2d 182 (1991).

6 . Although we agree with the DeChenne court's reasoning, we do not agree with the remedy imposed. See DeChenne, 39 Or.App. 901, 594 P.2d 831. The DeChenne court reversed the county court's order imposing its sentence to run consecutively to a suspended sentence and remanded for resentencing. See id. On remand, the DeChenne court instructed the county court that it "may impose a sentence to run concurrent[ly] with or consecutivelly] to the executed . sentence." Id. at 903, 594 P.2d 831. We believe that, under Utah's sentencing statutes, this approach would be error. The court executing the previously suspended sentence was the only court with authority to make the concurrent/consecutive determination. Therefore, a remand to the county court was inappropriate.

7 . In Salt Lake City v. Jaramillo, 2007 UT App 32, we held that "the determination of whether two simultaneously imposed sentences are to be served concurrently or consecutively is to be made at the time of sentencing, and may not be made for the first time upon the revocation of probation." Id. at 116. However, the instant case is distinguishable. First, the trial court in Jaramillo failed to specify concurrent or consecutive terms for the two misdemeanor convictions before the trial court at the initial sentencing. Conversely, in the present case neither Judge Noel nor Judge Atherton failed to expressly specify concurrent or consecutive terms; rather, it was not possible for either judge to make the determination at the time of initial sentencing because in both instances Defendant was not yet serving another sentence. Second, felony sentencing issues that involve circumstances similar to those in Jaramillo, where sentences are to be imposed for two or more charges at the same hearing, are governed by Utah Code section 76-3-401(1)(a). See Utah Code Ann. § 76-3-401(1)(a) (requiring sentencing judge to consider "sentences imposed" relative to "each other"). The sentencing issue in the current case, where sentences are imposed in different cases by different judges at different times, is governed by section 76-3-401(1)(b). Therefore, pursuant to section (1)(b), Judge Reese while executing the suspended theft sentence properly made the concurrent/consecutive determination pertaining to the aggravated robbery sentence that Defendant was currently serving. See id. § 76-3-401(1)(b) (requiring seniencing judge to consider sentences the defendant is "already serving").

8 . Defendant also asserts that even if Judge Reese had the authority to make the concurrent/consecutive determination, the record fails io demonstrate that the appropriate procedure was followed. Defendant raises this claim for the first time on appeal, and does not argue that plain error occurred or exceptional circumstances exist. _" '[Wle will review issues raised for the first time on appeal only if exceptional circumstances or 'plain error' exists."" Timm, 2003 UT 47 at 139, 86 P.3d 699 (quoting Ohms, 881 P.2d at 847). Therefore, we do not address this issue.