Simper v. Board of Pardons Parole

2024 UT App 122

THE UTAH COURT OF APPEALS

LARRY R. SIMPER,
Appellant,
v.
BOARD OF PARDONS AND PAROLE,
Appellee.

Opinion
No. 20230070-CA
Filed August 29, 2024

Third District Court, Salt Lake Department
The Honorable Barry G. Lawrence
No. 220901162

Larry R. Simper, Appellant Pro Se
Sean D. Reyes and Andrew Dymek,
Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and JOHN D. LUTHY
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Larry R. Simper pleaded guilty to eight felonies and a
misdemeanor. Simper was sentenced to prison, and as part of his
sentence, the district court ordered Simper to pay restitution.
Eight years after the restitution orders were entered as civil
judgments, Simper filed a petition for extraordinary relief
pursuant to rule 65B of the Utah Rules of Civil Procedure,
asserting that the orders were invalid because the Utah Board of
Pardons and Parole (the Board) had exceeded its jurisdiction and
violated due process by issuing the orders after the expiration of
his sentences. The district court agreed in part with Simper and
struck one of the restitution orders but concluded that the other
orders were valid and remained in effect.
Simper v. Board of Pardons

¶2 On appeal, Simper argues the district court should have
invalidated all the restitution orders. His attack again centers on
whether the Board exceeded its jurisdiction by signing the orders
after the expiration of his sentences. For the reasons set forth
below, we agree with Simper that the Board lacked jurisdiction to
order restitution in this case. We therefore vacate the restitution
orders.

BACKGROUND

¶3 In 2004, Simper pleaded guilty to a misdemeanor. Simper
was sentenced to probation and ordered to pay $700 in restitution.

¶4 In 2007, Simper pleaded guilty to eight felonies in four
cases. The district court consolidated the four cases for sentencing
purposes. Adult Probation and Parole prepared a presentence
investigation report outlining the monetary losses suffered by the
victims in each case for restitution purposes.

¶5 In January 2008, the district court sentenced Simper to an
indeterminate term of up to five years in the Utah State Prison for
each of his felony convictions, with all sentences to run
concurrently. The expiration date of these consolidated sentences
was set as January 26, 2013. Simper was also ordered to pay full
restitution to the victims in each case.

¶6 The following month, the district court held a sentencing
hearing in Simper’s misdemeanor case. Finding that Simper’s
guilty pleas in the felony cases were a violation of the terms of his
misdemeanor probation, the court revoked Simper’s probation
and sentenced him to a term of up to one year in the Utah State
Prison, to run consecutively with the concurrent five-year felony
sentences he was already serving. The expiration date for the
misdemeanor conviction was eventually set as January 25, 2014.

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Simper v. Board of Pardons

¶7 On January 25, 2014, Simper’s sentence in the
misdemeanor case expired. On February 20, the Board held a
restitution hearing. Simper was not present at the hearing, nor is
there evidence that he actually received notice of the hearing. On
March 4, the Board issued a decision and order encapsulating the
restitution amounts set by the Board during the restitution
hearing. A few weeks later, on March 26, the Board sent the
resulting restitution orders to the district court to be entered as
civil judgments against Simper.

¶8 In February 2022, nearly eight years after the restitution
orders were entered, Simper filed a Petition for Extraordinary
Relief Pursuant to Rule 65B of the Utah Rules of Civil Procedure.
Simper asked the district court to invalidate the orders on two
grounds. First, he argued the Board lacked jurisdiction to enter
the orders because the Board issued the orders after the expiration
of his sentences. Second, Simper argued the orders were entered
in violation of his right to due process because he did not receive
notice of, nor did he attend, the restitution hearing.

¶9 Thereafter, the Board filed a motion for summary
judgment, which Simper responded to with a cross-motion for
summary judgment. In a written order, the district court granted
in part and denied in part the parties’ cross-motions. The court
rejected Simper’s jurisdictional argument outright, reasoning that
subsection 77-27-6(2)(c) 1 of the Utah Code required the Board to
enter an order of restitution within sixty days of the termination
of a sentence and Simper’s “aggregate sentence expired January
26, 2014[,] and the Board issued its order of restitution and sent

1. The applicable provisions of the Utah Code in effect when the
Board signed the restitution orders have been substantially
amended. We cite the version in effect at the time the orders were
signed. See State v. Clark, 2011 UT 23, ¶ 13, 251 P.3d 829 (“[W]e
apply the law as it exists at the time of the event regulated by the
law in question.”).

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Simper v. Board of Pardons

the orders to the [district] court[] within . . . 60 days.” Conversely,
the court found that Simper’s due process argument was not
entirely without merit, recognizing that Simper “did not receive
notice, nor was he present at [the restitution] hearing.” As a result,
the court concluded that “the failure by the Board to notify
[Simper] of the hearing was a denial of [his] due process rights,
and any substantive decision arising from that hearing [was]
void.”

¶10 Based on the foregoing, the district court determined “that
the Board’s orders of restitution that were sent to the [district]
court[] on March 26, 2014, are valid only to the extent that they
affirmed orders of specific dollar amounts already made.” The
court accordingly struck one order that did not satisfy that
criterion but upheld all other orders.

ISSUE AND STANDARD OF REVIEW

¶11 Simper appeals the district court’s order, raising multiple
issues for our review. As an initial matter, Simper argues the
Board lacked jurisdiction to enter all the restitution orders in his
case. Whether the Board has jurisdiction to issue a restitution
order is a question of statutory construction that we review for
correctness. See State v. Poole, 2015 UT App 220, ¶ 5, 359 P.3d 667.
Because we agree with Simper that the Board lacked jurisdiction
to enter the orders, we need not address the other issues raised on
appeal.

ANALYSIS

¶12 Simper argues the Board did not have jurisdiction to enter
any of the restitution orders in his case because the Board failed
to sign the orders within the time period prescribed by statute.
Consequently, he asserts that the orders are void and must be
vacated. We agree.

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Simper v. Board of Pardons

¶13 The Crime Victims Restitution Act provides that after a
criminal defendant pleads guilty to a crime that has “resulted in
pecuniary damages, . . . the court shall order that the defendant
make restitution.” Utah Code § 77-38a-302(1) (2014). “Any
pecuniary damages that have not been determined by the court
within one year after sentencing may be determined by the
Board . . . .” Id. § 77-38a-302(5)(d)(ii); see also id. § 77-27-6(2)(b). The
Board’s authority to order restitution is not limitless, however,
and must instead be exercised within the time frame proscribed
by statute:

(c) Except as provided in Subsection (2)(d), the
[B]oard shall make all orders of restitution within 60
days after the termination or expiration of the
defendant’s sentence.

(d) If, upon termination or expiration of a
defendant’s sentence, the [B]oard has continuing
jurisdiction over the defendant for a separate
criminal offense, the [B]oard may defer making an
order of restitution until termination or expiration
of all sentences for that defendant.

Id. § 77-27-6(2)(c)–(d).

¶14 Here, the Board issued Simper’s restitution orders on
March 26, 2014. The district court concluded that the orders were
timely under subsection 77-27-6(2)(c) because they were entered
within sixty days after the expiration of Simper’s sentence. In
reaching this conclusion, the court agreed with the Board’s
position that Simper’s sentences all expired at the same time—on
January 25, 2014. 2 The court reasoned that because Simper was

2. In its ruling, the district court inconsistently referred to the date
that Simper’s sentence expired. At one point, the court stated that
(continued…)

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sentenced to a five-year prison term for his felony convictions and
was later sentenced for a separate misdemeanor conviction, the
sentence for which was ordered to run consecutively to the felony
sentences, the Board was required to treat the sentences as an
aggregate term with a single expiration date. See generally id. § 76-
3-401(8) (stating that when a court imposes consecutive sentences,
the Board “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”).

¶15 Simper argues the district court’s determination that the
Board’s restitution orders were timely under subsection 77-27-
6(2)(c) was incorrect because (1) the court improperly applied
section 76-3-401 to aggregate his sentences and (2) by improperly
aggregating his sentences, the court sidestepped subsection 77-27-
6(2)(d), which he contends is the controlling statute. For its part,
the Board maintains the court properly applied section 76-3-401
to aggregate Simper’s sentences.

¶16 Although both parties advance several arguments
supporting their respective positions regarding the applicability
of section 76-3-401, we view one of Simper’s arguments as
dispositive. That is, Simper contends that section 76-3-401 does
not apply in this case because, “by its own terms,” the statute
cannot be used to aggregate a misdemeanor sentence with a
felony sentence. 3 Simper is correct. Subsection (6)(a) of section 76-

the sentence expired on January 26, but it later stated that the
expiration date was January 25. Simper maintains that his
misdemeanor sentence expired on January 25. Ultimately, as will
be discussed, the difference is immaterial in this case.

3. The Board asserts this argument was not preserved because
Simper did not specifically argue below that section 76-3-401 does
not “apply to a misdemeanor sentence.” We disagree. As Utah
(continued…)

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3-401 states that “[i]f a court imposes consecutive sentences, the
aggregate maximum of all sentences imposed may not exceed 30
years imprisonment.” Id. § 76-3-401(6)(a). Subsection (8) then
provides that “[w]hen the limitation of Subsection (6)(a) applies,”
the Board is to “treat the defendant as though he has been
committed for a single term that consists of the aggregate of the
validly imposed prison terms.” Id. § 76-3-401(8). But subsection
(11) then clarifies that “[t]his section may not be construed to limit
the authority of a court to impose consecutive sentences in
misdemeanor cases,” id. § 76-3-401(11), making the limitation of
subsection (6)(a) inapplicable to misdemeanors. And because the
limitation of subsection (6)(a) does not apply to misdemeanors,
the direction in subsection (8) to treat a defendant “as though he
has been committed for a single term that consists of the aggregate
of the validly imposed prison terms” likewise does not apply in
the context of misdemeanors. See id. § 76-3-401(8). Thus, as we
have concluded previously, section 76-3-401 “by its own terms,
[simply] does not apply to misdemeanor offenses.” Salt Lake City
v. Jaramillo, 2007 UT App 32, ¶ 14, 156 P.3d 839; see also Utah Code
§ 76-3-401(1) (“A court shall determine, if a defendant has been
adjudged guilty of more than one felony offense, whether to
impose concurrent or consecutive sentences for the offenses.”
(emphasis added)). Accordingly, the court was wrong to conclude
that the Board could aggregate all of Simper’s sentences under

appellate courts have repeatedly recognized, “issues must be
preserved, not arguments for or against a particular ruling on an
issue raised below.” Federated Cap. Corp. v. Deutsch, 2018 UT App
118, ¶ 17, 428 P.3d 51 (quotation simplified). The issue Simper
raised before the district court was the proper interpretation and
application of section 76-3-401. Simper’s appellate argument is
merely an additional argument concerning the issue that was
already raised—the proper interpretation of the statute. We
determine the issue is therefore preserved for our consideration.

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section 76-3-401 where one was imposed for a misdemeanor
offense and the others were felonies.

¶17 Having concluded that section 76-3-401 does not apply and
that the district court therefore should not have aggregated
Simper’s misdemeanor sentence with his felony sentence, we next
turn to the plain language of the governing statute to determine
whether the restitution orders were timely. As noted above,
subsection 77-27-6(2)(c) requires the Board to enter “all orders of
restitution within 60 days” after the expiration of the defendant’s
sentence, “[e]xcept as provided in Subsection (2)(d).” That is,
pursuant to subsection (2)(d), the Board may “defer” ordering
restitution at the time the defendant’s sentence expires if “the
[B]oard has continuing jurisdiction over the defendant for a
separate criminal offense.” Utah Code § 77-27-6(2)(d). And that is
the situation in this case. Simper was sentenced to a term of up to
five years in prison for his four consolidated felony cases. Then,
the following month, Simper was sentenced to a term of up to one
year in prison for his separate misdemeanor conviction. That
sentence was to run consecutively with the five-year sentence he
was already serving. Thus, at the time that Simper’s sentence in
the four consolidated felony cases expired on January 26, 2013, the
Board still had continuing jurisdiction over him for his separate
misdemeanor offense, which sentence did not expire until
January 26, 2014. The Board was therefore required to enter all
restitution orders by the time Simper’s sentence in the
misdemeanor case expired. See id. In other words, the plain
language of subsection 77-27-6(2)(c) provides the Board with sixty
extra days to order restitution after the termination or expiration
of a defendant’s sentence. But the Board is not afforded that extra
sixty days when it has continuing jurisdiction over a defendant
for a separate offense. In that situation, the Board must enter an
order of restitution before the “termination or expiration of all
sentences for that defendant.” Id. Accordingly, because the Board
did not enter Simper’s restitution orders until March 26, 2014—

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two months after the sentence imposed on his misdemeanor
offense terminated—the restitution orders were not timely.

¶18 In short, the district court improperly applied section 76-3-
401 to aggregate Simper’s misdemeanor sentence with his felony
sentence. As a result, the court incorrectly determined that the
Board was required to issue Simper’s restitution orders in
accordance with the timing provision in subsection 77-27-6(2)(c)
rather than the timing provision in subsection (2)(d). And
pursuant to subsection (2)(d), the Board’s orders were not timely.

CONCLUSION

¶19 The Board did not have jurisdiction to enter the restitution
orders in Simper’s case. The district court misinterpreted the
language of the governing statute and improperly aggregated all
of Simper’s sentences. We therefore vacate the Board’s restitution
orders.

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