State v. Wallace

2006 UT 86, 150 P.3d 540, 567 Utah Adv. Rep. 41, 2006 Utah LEXIS 223, 2006 WL 3716810
CourtUtah Supreme Court
DecidedDecember 19, 2006
Docket20051115
StatusPublished
Cited by28 cases

This text of 2006 UT 86 (State v. Wallace) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wallace, 2006 UT 86, 150 P.3d 540, 567 Utah Adv. Rep. 41, 2006 Utah LEXIS 223, 2006 WL 3716810 (Utah 2006).

Opinion

WILKINS, Associate Chief Justice:

T1 The defendant in this case was placed on twelve years of probation for six felony convictions related to his participation in a fraudulent investment scheme. He argues that Utah Code section 77-18-1(10)(a)@) imposes a three-year limitation on his probation and that a twelve-year term of probation therefore constitutes an illegal sentence. We find no such limitation in that provision or elsewhere in the Utah Code and therefore affirm.

l BACKGROUND

2 The defendant, Gerald Steven Wallace, participated in a Ponzi scheme 1 that defrauded several homeowners of more than half a million dollars from the equity in their homes. He was convicted of selling an unregistered security, selling a security without a license, engaging in a pattern of unlawful activity, and three counts of securities fraud. The trial court sentenced him to four 1-to-15-year prison terms and two O-to-5-year terms to run consecutively, potentially placing him in prison for the rest of his life. The court then suspended the prison terms and imposed 144 months (12 years) of probation.

13 The trial court explained that it was setting an extended period of probation specifically for the purpose of giving Wallace "as long an opportunity as possible to make restitution payments." The court imposed no fine but made Wallace jointly and severally liable with the other scheme participants for $626,000 in restitution. Recognizing the unlikelihood of Wallace ever being able to pay off the entire amount, the court ordered that a restitution plan be drawn up that would take into account both the severity of the charges and his ability to pay. As with any probationer, Wallace was required to review and sign his probation agreement, acknowledging the terms of his probation. His alternative would have been to decline the terms and serve his sentence in prison.

1 4 Wallace appealed to the Utah Court of Appeals, challenging both the sufficiency of the evidence supporting his convictions and the legality of the twelve-year term of his probation. State v. Wallace, 2005 UT App 434, ¶ 7-9, 124 P.3d 259. The court of appeals affirmed on both issues, holding that although section 77-18-1(10)(a)(i) of the Utah Code states that a court "may" terminate probation at thirty-six months, nothing in the code requires it to limit probation to that amount of time. Id. §18. We granted cer-tiorari on two issues: whether section 77-18-1(10)(a)) creates a thirty-six-month limitation for a term of probation as to any felony conviction; and whether terms of probation for multiple convictions may be imposed consecutively. Because we conclude that the Legislature has not limited terms of probation to any particular time period, we need not and do not reach the second issue.

ANALYSIS

T5 On certiorari, we review the decision of the court of appeals, not that of the trial court. State v. Billsie, 2006 UT 13, ¶ 6, 131 P.3d 239. Because the issues before us primarily present questions of statutory interpretation, which are questions of law, we review for correctness. State v. Barrett, 2005 UT 88, ¶ 14, 127 P.3d 682.

16 Before the court of appeals, Wallace challenged the legality of his twelve-year probationary term. He argued there, and here, that section 77-18-1(10)(a)() of the Utah Code of Criminal Procedure limits probation to a maximum of thirty-six months for one or more felony convictions and that his 144-month probation therefore constitutes an illegal sentence under Utah law. The State countered that the statute imposes no such limitation and that, even if it did, the Utah *542 Criminal Code allows for consecutive terms of probation for multiple convictions. Under the latter theory, Wallace would be serving six consecutive two-year terms of probation, one for each of his six felony convictions. In this instance, however, the trial court entered an order for one 144-month term of probation, not six consecutive terms.

T7 Under the Utah Criminal Code, "a court may sentence a person convicted of an offense ... to probation unless otherwise specifically provided by law." Utah Code Ann. § 76-8-201(2), (2)(c) (2008). Wallace argues that one such specifically provided limitation is found in section 77-18-1(10)(a)(G), which states, "Probation may be terminated at any time at the discretion of the court or upon completion without violation of 86 months probation in felony or class A misdemeanor cases, or 12 months in cases of class B or C misdemeanors or infractions."

T8 Wallace urges us to interpret this provision as placing a three-year statutory limit on probation for felony convictions. Essentially, he argues that the provision should be read to say, "Probation may be terminated at any time at the discretion of the court, but shall be terminated upon completion without violation of 86 months probation...." The court of appeals, on the other hand, concluded that the phrase "may be terminated" applies to both "at any time" and "upon completion ... of 386 months." See Wallace, 2005 UT App 484, ¶ 18, 124 P.3d 259. This reading, Wallace suggests, renders half the provision superfluous. He argues that the word "or" operates to disjoin the "upon completion" clause from the initial verb phrase, "may be terminated." Consequently, he proposes that we should read into the statute an implied "shall" to supply the missing verb and to avoid the superfluity.

¶ 9 When interpreting a statute, we must generally presume the legislature used each term thoughtfully. 'We therefore strive to give appropriate meaning to each term and to avoid an interpretation that renders portions of the statute superfluous or inoperative. See, eg., State v. Tooele County, 2002 UT 8, ¶ 10, 44 P.3d 680. That approach can be reasonably applied, however, only to statutes in which the plain language, or the language and legislative history combined, reasonably accommodates such a reading. In rare cases, where the statutory language supports no such reconciliatory interpretation, we "decline to insert ... a substantive [term] by judicial fiat." 2 Our task is to interpret the words used by the legislature, not to correct or revise them. When the words are clear, however incongruous they may appear in policy application, we will interpret them as written, leaving to the legislature the task of making corrections when warranted.

1 10 In this case, adopting Wallace's interpretation would require us to insert the term "shall" into the statute. We decline to do so for two reasons. First, the statute employs the permissive term "may" in contrast to the compulsory term "shall." Second, in the relevant provision's most recent amendment, the Utah Legislature specifically removed the term "shall" from the former version and replaced it with "may."

1 11 Prior to 1989, the statute read, "Upon completion without violation of 18 months' probation in felony or class A misdemeanor cases, or six months in class B misdemeanor cases, the probation period shall be terminated, unless earlier terminated by the court." 3 We held in State v. Green that this former language created a "strong mandate" requiring that probation terminate at the prescribed time absent violation.

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Cite This Page — Counsel Stack

Bluebook (online)
2006 UT 86, 150 P.3d 540, 567 Utah Adv. Rep. 41, 2006 Utah LEXIS 223, 2006 WL 3716810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wallace-utah-2006.