State v. Yazzie

2009 UT 14
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20060525
Plaintiff and Appellee,
v.
F I L E D
Brandon Dominic Yazzie,
Defendant and Appellant. 	February 17, 2009
---
Third District, Salt Lake
The Honorable Sheila A. McCleve
No. 051900375
Attorneys: 	Mark L. Shurtleff, Att’y Gen., J. Frederic Voros,
Jr., Asst. Att’y Gen., Salt Lake City, for plaintiff
Joan C. Watt, Patrick W. Corum, Salt Lake City, for
defendant
---
On Certification from the Utah Court of Appeals
NEHRING, Justice:
INTRODUCTION
¶1 	This case comes before us in conjunction with State v.
Anderson, 2009 UT 13, 203 P.3d 990, which we also decide today.
In both cases, we are asked to decide the appropriate occasion
for determining concurrent or consecutive sentencing.
Additionally, in this case, we are asked to determine whether
double jeopardy provisions are violated if a district court judge
corrects an illegal sentence or an illegally imposed sentence.
We hold that in this case Judge Sheila McCleve was the
appropriate judge to determine consecutive sentencing for the
defendant. 	We recognize, however, that Judge McCleve’s original
sentence was illegal because it did not follow the statutory
provisions requiring concurrent or consecutive sentencing
determinations to be made at the time of final judgment. 	Judge

1 While the Utah consecutive sentencing statute included a
presumption of concurrent sentencing, that presumption was
repealed in 2002. 	Consecutive Sentencing, ch. 129, § 1, 2002
Utah Laws 419.
No. 20060525 	2
McCleve’s later correction of the sentence was an appropriate
remedy and did not violate double jeopardy provisions.
BACKGROUND
¶2 	On March 24, 2003, Defendant Brandon Dominic Yazzie
pled guilty to two counts of forcible sexual abuse, both second
degree felonies. 	Judge Dennis Fuchs imposed a sentence of two
consecutive terms of one to fifteen years. 	The prison terms were
then suspended, and Mr. Yazzie was placed on probation for
thirty-six months.
¶3 	Two years later, Mr. Yazzie was convicted of two third
degree felonies, one for criminal mischief and one for burglary.
Judge McCleve sentenced Mr. Yazzie to two consecutive
indeterminate prison terms not to exceed five years each. 	The
prison terms imposed by Judge McCleve were then suspended, and
Mr. Yazzie was ordered to serve 365 days in jail and be on
probation for thirty-six months. 	Judge McCleve made no mention
in the sentencing order of whether the prison terms were to run
concurrent with or consecutive to the sentence imposed by Judge
Fuchs. 1 	Information about Mr. Yazzie’s previous conviction was
available to Judge McCleve in the presentence report produced by
Adult Probation and Parole. 	In fact, Adult Probation and Parole
recommended that Judge McCleve should order probation to run
concurrently with the probation ordered by Judge Fuchs but that
the prison terms should run consecutively. 	The same day that
Judge McCleve placed Mr. Yazzie on probation, Judge Fuchs held a
disposition hearing in which he revoked and restarted Mr.
Yazzie’s probation.
¶4 	After Mr. Yazzie was released from jail, he failed to
report to Adult Probation and Parole and, two months later, was
arrested after an altercation with a police officer. 	Judge Fuchs
again revoked Mr. Yazzie’s probation and executed the previously
imposed prison sentence of two consecutive terms of one to
fifteen years. 	A week later, Judge McCleve revoked Mr. Yazzie’s
probation with her court and executed the two indeterminate terms
of not to exceed five years each. 	This time, however, Judge
McCleve ordered the sentence executed by her to run consecutive
to the sentence executed by Judge Fuchs. 	Mr. Yazzie objected to
this change in sentencing, but because Judge McCleve believed
that there was a presumption of consecutive sentencing, she

2 Under Utah Code section 76-3-401(1), the district court
when imposing concurrent or consecutive sentences must state its
determination “on the record and . . . indicate [the
determination] in the order of judgment and commitment.” 	By
requiring concurrent or consecutive sentencing determinations to
be made at the time of the final judgment, a defendant also
receives finality of judgment and can then appeal if he chooses
(continued...)
3 	No. 20060525
overruled the objection. 	She also based her decision to overrule
Mr. Yazzie’s objection on the foundation that she did not know of
Mr. Yazzie’s prior conviction or violation.
¶5 	Mr. Yazzie argues on appeal that Judge McCleve
overstepped the authority given her in Utah Code sections 76-3-
401(1) and 77-18-1(12)(e)(iii) when, at the probation revocation
hearing, she included a requirement that the original sentence
executed by her run consecutively to the sentence previously
executed by Judge Fuchs. 	The court of appeals certified this
case to us pursuant to rule 43 of the Utah Rules of Appellate
Procedure. 	We have jurisdiction pursuant to Utah Code section
78A-3-102(3)(b) (2008).
STANDARD OF REVIEW
¶6 	Sentencing decisions are generally reviewed under an
abuse of discretion standard. 	State v. Perez, 2002 UT App 211,
¶ 25, 52 P.3d 451. 	The underlying issue here, however, is one of
statutory interpretation, which we review for correctness,
affording no deference to a lower court’s legal conclusions.
Sill v. Hart, 2007 UT 45, ¶ 5, 162 P.3d 1099.
ANALYSIS
¶7 	The issue before us is whether a district court can,
following revocation of probation, resentence a defendant to
require that previously imposed sentences be served
consecutively. 	Mr. Yazzie first argues that when a district
court revokes probation, it may execute only the previously
suspended sentences. 	Mr. Yazzie then argues that by making the
consecutive sentencing determination at the probation revocation
hearing, Judge McCleve violated constitutional and statutory
protections against double jeopardy.
¶8 	In State v. Anderson, 2009 UT 13, 203 P.3d 990, an
opinion that is released today and is a companion to this case,
we held that determinations of concurrent or consecutive
sentencing are to be made at the time of final judgment. 2 	In

2 (...continued)
to do so. 	See State v. Bowers, 2002 UT 100, ¶ 4, 57 P.3d 1065
(“In a criminal case, it is the sentence itself which constitutes
a final judgment from which [the] appellant has the right to
appeal.” (emphasis in original) (internal quotation marks
omitted)).
3 The legislature amended Title 76 of the Utah Code in 2008.
Because there were no substantive changes made to section 76-3-
401, we cite to the 2008 version.
No. 20060525 	4
Anderson, however, we did not reach the issue of double jeopardy
that is presented here. 	We disagree with Mr. Yazzie that double
jeopardy is implicated when a judge in the same position as Judge
McCleve makes a concurrent or consecutive sentencing
determination after revoking probation. 	Rather, when the
determination is not made at final judgment, the original
sentence is illegal. 	Because a judge always retains the
jurisdiction to correct an illegal sentence, the determination of
concurrent or consecutive sentencing at a later time is not a
violation of double jeopardy provisions. 	In this case, Judge
McCleve simply corrected a previously illegal sentence and
therefore double jeopardy does not apply.
I. 	CONCURRENT OR CONSECUTIVE SENTENCING DETERMINATIONS ARE TO BE
MADE AT THE TIME OF FINAL JUDGMENT
¶9 	Judge McCleve should have made the determination to run
Mr. Yazzie’s sentence consecutive to the sentence imposed by
Judge Fuchs at the time she entered final judgment. 	In State v.
Anderson, we held that under Utah Code section 76-3-401(1)
determinations of concurrent or consecutive sentencing are to be
made at the time of final judgment for both simultaneously
imposed sentences and sentences currently being served. 	2009 UT
13, ¶ 27, ___ P.3d ___. 	We also held that “probation is a
sentence” and is applicable when determining whether a sentence
should run concurrently with or consecutively to “‘any other
sentences the defendant is already serving.’” 	Id. ¶ 21 (quoting
Utah Code Ann. § 76-3-401(1)(b) (2008)). 3
¶10 	In light of these holdings, it is appropriate that
Judge Fuchs did not make any concurrent or consecutive sentencing
determinations, as he could not look to later crimes when he
executed the previously suspended prison sentences. 	It was also
appropriate that Judge McCleve made the determination to run
consecutively the sentence she imposed with the sentence imposed
by Judge Fuchs. 	A problem arose, however, when Judge McCleve

4 In State v. Telford, we noted that “rule 22(e) [might] be
employed to correct a sentence under circumstances where the
sentencing court had no jurisdiction, or to correct a sentence
beyond the authorized statutory range.” 	2002 UT 51, ¶ 5 n.1, 48
P.3d 228.
5 	No. 20060525
made that determination at the probation revocation hearing
rather than at the time of final judgment.
¶11 	Final judgment is the appropriate time to determine
concurrent or consecutive sentencing because, at that time,
judges have before them all the information they need about the
defendant. 	Section 76-3-401(2) states that “[i]n determining
whether state offenses are to run concurrently or consecutively,
the court 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). 	To help the judge make this determination, a presentence
report, which contains the required information, may be ordered.
¶12 	In this case, Judge McCleve had a presentence report
prepared by Adult Probation and Parole. 	The report discussed Mr.
Yazzie’s previous crimes and even recommended that Judge McCleve
should order probation to run concurrently with the probation
ordered by Judge Fuchs but that the prison sentences should run
consecutively. 	When issuing her final judgment, however, Judge
McCleve made no mention of the sentence imposed by Judge Fuchs or
whether the sentences should be concurrent or consecutive. 	As a
result, the sentence originally imposed by Judge McCleve was
illegal because it did not comply with the statutory requirement
to determine concurrent or consecutive sentencing at the time of
final judgment.
II. 	BECAUSE AN ILLEGAL SENTENCE CAN BE CORRECTED AT ANY TIME
WITHOUT VIOLATING DOUBLE JEOPARDY, JUDGE MCCLEVE’S LATER
DETERMINATION OF CONSECUTIVE SENTENCING CORRECTED HER EARLIER
ILLEGAL SENTENCE
¶13 	A district court does not violate a defendant’s right
to double jeopardy when it corrects an illegally imposed
sentence. 	A “court may correct an illegal sentence, or a
sentence imposed in an illegal manner, at any time.” 	Utah R.
Crim. P. 22(e). 	We have never explicitly defined an illegal
sentence, though we have given examples. 4 	The Court of Appeals
for the Tenth Circuit, however, has promulgated a definition that
we find appropriate.

No. 20060525 	6
[An illegal sentence is] one which 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.
United States v. Dougherty, 106 F.3d 1514, 1515 (10th Cir. 1997)
(internal quotation marks omitted).
¶14 	In adopting this definition, we pause to reiterate a
caution we previously stated in State v. Samora, 2004 UT 79, 99
P.3d 858. 	In Samora, we affirmed the court of appeals’ vacation
of a harsher sentence that was imposed after the original
sentence was found to be illegal due to infringement of the
defendant’s rights. 	Id. ¶ 1. 	The state argued that
constitutional and statutory protections that prevent the
imposition of harsher sentences were inapplicable to a defendant
who has his sentence vacated pursuant to rule 22(e). 	Id. 	We
disagreed and stated that “‘there may be circumstances under
which even a corrected illegal sentence may be fundamentally
unfair, [and] thus violative of due process.’” 	Id. ¶ 20 (quoting
State v. Babbel, 813 P.2d 86, 88 (Utah 1991) (alterations in
original)). 	We concluded that “there are instances where an
‘illegal sentence’ or a ‘sentence imposed in an illegal manner’
may present . . . [a] chilling effect on a defendant’s basic
right to appeal and the potential for vindictiveness at
resentencing.” 	Id. ¶ 25. 	Thus, when a district court corrects
an illegal sentence, it must avoid any actions that may have a
real, rather than very speculative, “chilling effect on the
constitutional right to appeal.” 	Id. ¶ 21 (internal quotation
marks omitted). 	Nor may vindictiveness play a part in a new
sentence that a defendant receives after successfully challenging
an illegal sentence. 	Babbel, 813 P.2d at 87; see also Alabama v.
Smith, 490 U.S. 794, 798 (1989) (“Due process of law, then,
requires that vindictiveness against a defendant for having
successfully attacked his first conviction must play no part in
the sentence he receives after a new trial.” (internal quotation
marks omitted)).
¶15 	If a judge corrects an illegal sentence and there is no
chilling effect and no evidence of vindictiveness, then double
jeopardy provisions are not violated. 	In Babbel, we vacated the
defendant’s original sentences “because they did not conform to
the statutory punishments for the offenses for which he was
convicted.” 	813 P.2d at 86. 	When harsher sentences that were in

7 	No. 20060525
line with statutory requirements were imposed, the defendant
again appealed. 	Id. at 87. 	He argued that the new sentences
violated (1) Utah statutory prohibitions against harsher
sentences being imposed after a direct review or collateral
attack and (2) double jeopardy clauses of the state and federal
constitutions. 	Id. 	We held that while we had vacated the
original sentences, we had “simply recognized in effect the clear
power of the trial court to correct an illegal sentence,
irrespective of [an] appeal.” 	Id. at 88. 	We also held that
“[t]he law is well established that the double jeopardy clause
does not prohibit the correction of an inadvertently illegally
imposed sentence.” 	Id.
¶16 	In reviewing this case, we find that Judge McCleve did
not follow the statutory requirement of section 76-3-401(1) to
“indicate in the order of judgment and commitment . . . if the
sentences before the court are to run concurrently or
consecutively with any other sentences the defendant is already
serving.” 	Utah Code Ann. § 76-3-401(1) (2008). 	As a result, she
“omit[ted] a term required to be imposed by statute.” 	Dougherty,
106 F.3d at 1515. 	Mr. Yazzie’s original sentence was therefore
illegal.
¶17 	As a rule, illegal sentences are void and neither
create rights nor impair or affect any rights. 	Babbel, 813 P.2d
at 88; see also State v. Lee Lim, 7 P.2d 825, 827 (Utah 1932).
Additionally, because a sentence is illegal, the jurisdiction of
the district court continues until a valid sentence is imposed.
Babbel, 813 P.2d at 88. 	As a result, the district court can
correct the sentence at any time, which includes before, after,
“and even if there is no appeal.” 	Id. 	Judge McCleve’s later
determination, in effect, corrected the illegally imposed
sentence.
¶18 	Based on our analysis in Anderson, Judge McCleve was
the correct judge to determine concurrent or consecutive
sentencing and therefore her later correction of the original
omission is in line with statutory and legal allowances for
correcting illegal sentences. 	Double jeopardy is therefore not
violated when a judge merely corrects an “inadvertently illegally
imposed sentence.” 	Id.; see also Bozza v. United States, 330
U.S. 160, 166 (1947) (“This Court has rejected the ‘doctrine that
a prisoner, whose guilt is established, by a regular verdict, is
to escape punishment altogether, because the court committed an
error in passing the sentence.’” (quoting In re Bonner, 151 U.S.
242, 260 (1894))).

No. 20060525 	8
CONCLUSION
¶19 	In conclusion, we hold that determinations of
concurrent or consecutive sentencing are to be made at the time
of final judgment. 	If such a determination is not made at that
time, the sentence is illegal because it does not comply with
statutory requirements. 	The sentence is therefore void, and the
district court judge retains jurisdiction to correct the sentence
at any time. 	As a result, the correction of an illegal sentence
or an illegally imposed sentence does not violate double jeopardy
provisions. 	We therefore affirm Mr. Yazzie’s conviction and
Judge McCleve’s consecutive sentencing determination.
---
¶20 	Associate Chief Justice Durrant and Justice Parrish
concur in Justice Nehring’s opinion.
---
DURHAM, Chief Justice, concurring:
¶21 	For the same reasons I articulated in State v.
Anderson, 2009 UT 13, ¶¶ 29-38, 203 P.3d 990, a companion case
also decided today, I concur but write separately because I do
not believe that Judge McCleve imposed an illegal sentence on Mr.
Yazzie within the statutory framework or the legislative intent.
The statute provides:
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. 	The
court shall state on the record and shall
indicate in the order of judgment and
commitment: 	. . . if the sentences before
the court are to run concurrently or
consecutively with any other sentences the
defendant is already serving.
Utah Code Ann. § 76-3-401(1)(b) (2008). 	I concluded in Anderson:
[T]he first court to execute a prison
sentence for a defendant who is already
incarcerated is the court that should
determine whether its sentence is to run
concurrent with or consecutive to the prison
sentence already being served. 	In other

9 	No. 20060525
words, where a defendant who, while on
probation supervised by court A, commits
another crime for which court B sentences him
to prison, it should be court A that
determines, when revoking probation, that the
prison sentence thus executed will run
consecutively to or concurrently with the
prison sentence the defendant is already
serving.
2009 UT 13, ¶ 30. 	Probation is “an act of grace by the court
suspending the imposition or execution of a convicted offender’s
sentence upon prescribed conditions.” 	Utah Code Ann. § 77-27-
1(10). 	Because probation is not a sentence that a defendant is
already serving, the decision whether a sentence should be
imposed consecutively or concurrently cannot be made until an
already-incarcerated defendant is being sent to prison.
¶22 	As I explained in Anderson, policy reasons also support
this reading. 	2009 UT 13, ¶¶ 31-38. 	Utah Code section 76-3-
401(2) provides that “the court shall consider the gravity and
circumstances of the offenses, the number of victims, and the
history, character, and rehabilitative needs of the defendant” in
determining whether sentences should run consecutively or
concurrently. 	The judge determining sentencing should be the
judge with the most information about the defendant. 	The judge
who has the benefit of the entire record, including probation
revocation hearings and sentencing hearings, and knows the
defendant has been incarcerated and not just had probation
revoked and reinstated, is the proper judge to decide concurrent
or consecutive sentencing.
¶23 	Judge McCleve made this determination at the proper
time. 	Both Judge Fuchs and Judge McCleve had suspended prison
sentences to allow Mr. Yazzie to meet probationary conditions.
After it was determined that Mr. Yazzie violated his probation,
Judge Fuchs first ordered Mr. Yazzie to prison. 	Mr. Yazzie then
appeared before Judge McCleve, who properly determined whether
the prison sentence Mr. Yazzie would serve should run
concurrently with or consecutively to the prison sentence he was
already serving pursuant to the sentence imposed by Judge Fuchs.
In this case, Judge McCleve had the benefit of the entire record,
including the reasons why Mr. Yazzie violated probation, and the
matters contained in Judge Fuchs’s sentencing hearing, in making
the consecutive/concurrent determination. 	Although the majority
points out that at the time Judge McCleve ordered Mr. Yazzie to
serve probation she had received an Adult Probation and Parole
presentence report discussing Mr. Yazzie’s previous crimes and

No. 20060525 	10
recommending probation run concurrently but prison sentences run
consecutively, Judge McCleve did not necessarily know whether Mr.
Yazzie would be ordered to serve a prison sentence. 	At the time
Mr. Yazzie first appeared before Judge McCleve, Mr. Yazzie was
already on probation ordered by Judge Fuchs. 	Judge Fuchs did not
send Mr. Yazzie to prison for allegedly committing another crime,
but revoked and reinstated probation. 	It is impossible to
predict whether district judges will revoke and reinstate
probation or order a defendant to prison, for what reasons
defendants will violate probation, what changing circumstances
will affect defendants’ status, or what extenuating circumstances
will arise affecting the consecutive or concurrent determination.
The legislature may have revoked the presumption that, absent a
court order to the contrary, multiple sentences are to be served
concurrently for that very reason; it may have wanted the courts
to make the consecutive/concurrent determination from all the
information available in every case.
¶24 	As I stated in Anderson, there is precedent for the
positions of both the majority and this concurring opinion. 	It
would be helpful for the legislature to revisit the statutes to
clarify whether probation is a sentence already being served
within the meaning of Utah Code section 76-3-401(1)(b) and at
what time the determination of concurrent or consecutive
sentencing should be made.
---
¶25 	Justice Wilkins concurs in Chief Justice Durham’s
opinion.