State v. Candedo

2010 UT 32
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. 20080183
Plaintiff and Respondent,
v.
F I L E D
Francisco A. Candedo,
Defendant and Petitioner. May 14, 2010
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Third District, Salt Lake
The Honorable Stephen L. Henriod
No. 031900400
Attorneys: Mark L. Shurtleff, Att’y Gen., Kenneth A. Bronston,
Asst. Att’y Gen., Salt Lake City, for plaintiff
Lori J. Seppi, Salt Lake City, for defendant
---
On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶1 Francisco Candedo was placed on nine years of probation
after pleading guilty to three felonies arising from his
participation in a fraudulent investment scheme. Candedo did not
object to the term of probation at sentencing. Instead, on
direct appeal to the court of appeals, he challenged the legality
of his probation sentence under rule 22(e) of the Utah Rules of
Criminal Procedure or, alternatively, under the doctrine of
exceptional circumstances. Candedo argued that his nine-year
probation sentence, authorized under Utah Code section 77-18-
1(10)(a)(I), violated his substantive due process rights. The
court of appeals affirmed his sentence without reaching the
merits by finding that his claim failed to meet the requirements
of either rule 22(e) or the doctrine of exceptional
circumstances.
¶2 On certiorari, Candedo argues that (1) the court of
appeals erred in holding that his due process arguments could not

1 On November 4, 2009, Candedo filed a suggestion of
mootness pursuant to Utah Rule of Appellate procedure 37(a) that
requires a defendant to “inform the court of any circumstances
which have transpired subsequent to the filing of the appeal.”
Candedo did not take the position that his appeal had become
moot, but he let the court know that Adult Probation and Parole
removed Candedo from supervised probation and placed him on
“court probation to continue to monitor the repayment of the
restitution amount.” State of Utah Adult Probation and Parole,
Protected Progress/Violation Report, November 6, 2009. Because
Candedo is still under court probation and is subject to contempt
or reinstatement of his original sentence if he fails to remit
his restitution payments, we agree that his appeal is not moot.
See State v. Nones, 2000 UT App 211, ¶¶ 13-16, 11 P.3d 709
(holding that a trial court supervising restitution payments has
(continued...)
No. 20080183 2
be raised under either rule 22(e) or the doctrine of exceptional
circumstances, and (2) the imposition of a nine-year probation
term violates his right to due process. We hold that the court
of appeals erred in failing to reach the merits of Candedo’s
constitutional claim under rule 22(e). But we nevertheless hold
that Candedo’s probation sentence does not violate his
substantive due process rights and is therefore constitutional.
Because we reach the merits of Candedo’s claim under rule 22(e),
we need not address the applicability of the exceptional
circumstances doctrine.
BACKGROUND
¶3 Francisco Candedo and others operated a fraudulent
pyramid investment scheme that defrauded 146 Utah victims. The
victims, including many elderly individuals, lost their
retirement funds, their homes, their credit ratings, and their
jobs. The Utah Attorney General’s Office computed restitution
for the victims at $3,373,060.
¶4 In 2005, Candedo pled guilty to three felonies: one
count of securities fraud, a second-degree felony; one count of
sales by an unlicensed broker-dealer or agent, a third-degree
felony; and, one count of employing an unlicensed broker-dealer
or agent, a third-degree felony. The district court sentenced
Candedo to concurrent terms of one-to-fifteen years for the
second-degree felony and zero-to-five years for each third-degree
felony. Although the presentence report recommended
incarceration and restitution, the court suspended Candedo’s
prison sentence, imposed 108 months, or nine years, of probation
and ordered restitution in the amount of $3,373,060.1 The

1 (...continued)
the option to hold a defendant in contempt or impose a suspended
jail term if the defendant fails to remit his restitution
payments).
3 No. 20080183
sentencing court indicated that it ordered the lengthy probation
term specifically because of the amount of restitution Candedo
owed.
¶5 Candedo challenged the legality of his probation term
on direct appeal to the court of appeals, arguing that his nine-
year probation term ordered pursuant to Utah’s probation statute
violates substantive due process under the Utah and United States
Constitutions. Because Candedo conceded that his due process
claim was not preserved in the district court, he argued that the
court of appeals could reach the merits of his claim under either
rule 22(e) of the Utah Rules of Criminal Procedure or the
doctrine of exceptional circumstances.
¶6 The court of appeals held that Candedo’s claim did not
meet the requirements of rule 22(e) or the exceptional
circumstances doctrine. See State v. Candedo, 2008 UT App 4,
¶ 10, 176 P.3d 459. Candedo filed a petition for certiorari,
which we granted. We have jurisdiction pursuant to Utah Code
section 78A-3-102(3)(a) (2008).
STANDARD OF REVIEW
¶7 “On certiorari, we review the decision of the court of
appeals, not the trial court.” State v. Billsie, 2006 UT 13,
¶ 6, 131 P.3d 239. Procedural and constitutional questions
present questions of law that we review for correctness without
deference to the lower court’s ruling. Chen v. Stewart, 2004 UT
82, ¶ 25, 100 P.3d 1177.
ANALYSIS
I. RULE 22(e) ALLOWS US TO REACH THE MERITS OF CANDEDO’S
CONSTITUTIONAL CLAIM
¶8 Candedo argues that the court of appeals should have
reached the merits of his constitutional claim under rule 22(e)
of the Utah Rules of Criminal Procedure. We agree.
¶9 Under rule 22(e), a court “may correct an illegal
sentence, or a sentence imposed in an illegal manner, at any
time.” Utah R. Crim. P. 22(e). Rule 22(e) applies to sentences
that are manifestly or patently illegal. See State v. Telford,

2 Rule 22(e) is not properly invoked for “ordinary or ‘run-
of-the mill’ errors” that are appropriately reviewed under rule
4(a) of the Utah Rules of Appellate Procedure. State v.
Thorkelson, 2004 UT App 9, ¶ 15, 84 P.3d 854. Such errors may
include “a trial court’s failure to consider requisite statutory
factors before imposing consecutive sentences [and] . . . a
denial of due process resulting from a trial court’s failure to
consider mitigating evidence.” State v. Garner, 2008 UT App 32,
¶ 17, 177 P.3d 637 (citing Thorkelson, 2004 UT App 9, ¶¶ 11-12).
No. 20080183 4
2002 UT 51, ¶ 5, 48 P.3d 228; State v. Brooks, 908 P.2d 856, 860
(Utah 1995). The “sweeping” language of rule 22(e) allows an
appellate court to “vacate the illegal sentence without first
remanding the case to the trial court, even if the matter was
never raised before.” Brooks, 908 P.2d at 860. The preservation
rule does not apply “because an illegal sentence is void and,
like issues of jurisdiction, [may be raised] at any time. For
this reason, rule 22(e) claims must be narrowly circumscribed to
prevent abuse.” Telford, 2002 UT 51, ¶ 5 (internal quotation
marks and citations omitted)(alteration in original).
Additionally, rule 22(e) “presupposes a valid conviction” and
therefore cannot be used as a veiled attempt to challenge the
underlying conviction by challenging the sentence.2 Brooks, 908
P.2d at 860.
¶10 Based on language in Telford, the court of appeals held
that Candedo’s due process claim did not fall within the ambit of
rule 22(e). State v. Candedo, 2008 UT App 4, ¶ 6, 176 P.3d 459.
Specifically, the court of appeals determined that an illegal
sentence can occur only “where either ‘the sentencing court has
no jurisdiction, or . . . the sentence is beyond the authorized
statutory range.’” Id. (quoting State v. Thorkelson, 2004 UT
App 9, ¶ 15, 84 P.3d 854)(alteration in original). We disagree.
¶11 The court of appeals’ definition of illegal sentence
entirely precludes allegations of constitutional violations as a
basis for challenging a sentence. This narrow definition is
contrary to our holding in Telford, where we used rule 22(e) to
reach the petitioner’s claim that his sentence was
unconstitutional. Although we rejected Telford’s separation of
powers and Eighth Amendment challenges to his sentence, we
reached and considered the merits of those challenges under rule
22(e). Telford, 2002 UT 51, ¶¶ 3-4. We refused to consider
Telford’s constitutional arguments only where he failed to raise
an “articulable basis for attacking his sentence.” Id. ¶ 6.
Because an illegal sentence under rule 22(e) includes
constitutional violations, an appellate court must allow a

5 No. 20080183
petitioner to raise constitutional, as well as jurisdictional and
statutory challenges, to his or her sentence under rule 22(e).
¶12 This conclusion is consistent with our recent decision
in State v. Yazzie, where we adopted the following definition of
illegal sentence within the context of rule 22(e):
“[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.”
2009 UT 14, ¶ 13, 203 P.3d 984 (quoting United States v.
Dougherty, 106 F.3d 1514, 1515 (10th Cir. 1997)) (alteration in
original). In Yazzie, this Court determined that the defendant’s
sentence was illegal “because it did not comply with the
statutory requirement to determine concurrent or consecutive
sentencing at the time of final judgment.” Id. ¶ 12. The judge
determined at a probation revocation hearing that the defendant’s
sentences should run consecutively with his previously imposed
sentences. Id. ¶ 10. However, pursuant to statute, the
determination of concurrent or consecutive sentencing must take
place at the time of final judgment. See id. ¶ 11.
¶13 While we used the definition of illegal sentence in
Yazzie to address the failure of a sentencing court to comply
with express statutory provisions, the same definition also
encompasses Candedo’s alleged constitutional violations.
Specifically, if an offender’s sentence is unconstitutional, the
sentence is not authorized by the “judgment of conviction,” and
is therefore illegal.
¶14 The State contends that Candedo fails to address the
threshold question of whether a nine-year probation sentence is
“patently” or “manifestly” illegal. But when a petitioner raises
an articulable basis for challenging the constitutionality of a
sentence, the court may reach the issue of whether the sentence
is “patently” or “manifestly” illegal after considering the
merits of the claim, not beforehand. We therefore hold that the
court of appeals erred in failing to reach the merits of
Candedo’s substantive due process challenge because the
definition of illegal sentence under rule 22(e) is sufficiently
broad to include constitutional violations that threaten the
validity of the sentence. This holding allows us to reach the
merits of Candedo’s claim and thus we need not address the

3 Candedo’s brief dedicates a substantial amount of space to
challenging our interpretation of Utah’s probation statute in
Wallace. Since the Wallace decision was issued in 2006, the
legislature has neither modified nor altered the language in
Utah’s probation statute. We therefore see no basis for
revisiting our ruling in that case.
No. 20080183 6
applicability of the exceptional circumstances doctrine. We now
turn to the merits of Candedo’s due process claim.
II. UTAH’S PROBATION STATUTE IS CONSTITUTIONAL AND CANDEDO’S
SUBSTANTIVE DUE PROCESS RIGHTS WERE NOT VIOLATED
¶15 Utah’s probation statute “authorizes a court to impose
probation as a sentencing alternative, but nowhere does it
provide a limitation on the length of probation a court may set.”
State v. Wallace, 2006 UT 86, ¶ 16, 150 P.3d 540. Indeed, as
interpreted by this court in Wallace,3 a sentencing court has
full discretion to determine the length of a defendant’s
probation under Utah’s probation statute. Id. ¶¶ 12-16. Candedo
argues that Utah’s probation statute, as interpreted by Wallace
and as applied in this case, violates his substantive due process
rights. Specifically, Candedo argues that he has a fundamental
right to liberty once the purposes of probation are completed.
He asserts that the only purpose of probation is rehabilitation,
which can only be accomplished, if at all, in a relatively short
period of time. He accordingly reasons that the imposition of a
nine-year term of probation violated his substantive due process
rights. We begin by addressing whether Candedo’s substantive due
process claim implicates a fundamental right, thus triggering a
heightened degree of scrutiny, or whether rational basis review
applies. After determining that Candedo’s claim does not
implicate a fundamental right, we address the merits of his
substantive due process claim under rational basis review.
A. Because Candedo’s Claim Does Not Implicate a Fundamental
Right, Rational Basis Review Applies
¶16 When undertaking a substantive due process analysis
under both article I, section 7 of the Utah Constitution and the
Fourteenth Amendment of the United States Constitution, this
court applies a rational basis test unless the governmental
action implicates a fundamental right or interest. See Judd ex
rel. Montgomery v. Drezga, 2004 UT 91, ¶ 30, 103 P.3d 135
(“Generally, we apply a rational basis test in substantive due
process cases. However, this rational basis test is replaced by
a more stringent test in cases where the rights impacted by the
legislation are deemed to be ‘fundamental.’” (internal citations

7 No. 20080183
omitted)). In the criminal sentencing context, petitioners like
Candedo often argue “that the right to be free from deprivations
of liberty as a result of arbitrary sentences is fundamental” and
that the statute authorizing the sentence is subject to strict
scrutiny. Chapman v. United States, 500 U.S. 453, 464-65 (1991).
However, the United States Supreme Court has explained that
we have never subjected the criminal process
to [that] sort of truncated analysis . . . .
Every person has a fundamental right to
liberty in the sense that the Government may
not punish him unless and until it proves his
guilt beyond a reasonable doubt at a criminal
trial conducted in accordance with the
relevant constitutional guarantees. But a
person who has been so convicted is eligible
for, and the court may impose, whatever
punishment is authorized by statute for his
offense so long as that penalty is not cruel
and unusual, and so long as the penalty is
not based on an arbitrary distinction that
would violate the Due Process Clause of the
Fifth Amendment.
Id. at 465.
¶17 Where a defendant has been found guilty, and no
arbitrary distinction in sentencing is present, courts apply a
rational basis standard in reviewing sentencing statutes. Id.;
see also United States v. Angelos, 345 F. Supp. 2d 1227, 1235-36
(D. Utah 2004), aff’d, 433 F.3d 738 (10th Cir. 2006) (applying a
rational basis review to petitioner’s claim that sentencing
guidelines violated equal protection and due process); United
States v. Bredy, 209 F.3d 1193, 1197 (10th Cir. 2000)(“Due
process requires only that a sentencing scheme be rational.”);
United States v. Eaton, No. 99-6151, 2000 U.S. App. LEXIS 4496 at
*10 (10th Cir. Mar. 21, 2000) (holding the same); United States
v. Perez-Chavez, 422 F.Supp. 2d 1255, 1265 (D. Utah 2005)
(“‘[U]nless a law infringes upon a fundamental right or
classifies along suspect lines such as race, the court’s review
is limited to determining whether there is a rational basis for
the law.’” (quoting Angelos, 345 F. Supp. 2d at 1235-36)). Under
this type of review, the court determines whether the statute or
its application “is rationally related to a legitimate state
interest.” Gardner v. Bd. of County Comm’rs, 2008 UT 6, ¶ 33,
178 P.3d 893.
¶18 Candedo does not argue that his nine-year probation
sentence was based on an arbitrary distinction such as race or

4 We have scoured Utah’s probation statute, including the
specific provisions cited by Candedo, and are unable to find any
indication that rehabilitation is the “legislatively-stated
purpose of probation” as Candedo asserts. While our case law
(continued...)
No. 20080183 8
that he was treated differently from other similarly situated
defendants. Instead, Candedo asserts that the only purpose of
probation is rehabilitation and that its rehabilitative purpose,
if achieved at all, will be achieved within a relatively short
period of time. We disagree with both of these premises. Even
were we to accept them, however, they do not give rise to the
conclusion that Candedo’s probation sentence implicates a
fundamental right because a defendant’s liberty interest may be
infringed by a rational criminal sentence once he has been found
guilty as long as the sentence is not cruel or unusual,
arbitrary, or discriminatory. See Chapman, 500 U.S. at 465.
Candedo is admittedly guilty of the crimes committed and thus a
court is authorized to impose a sentence pursuant to the terms of
a rational sentencing statute. Because no fundamental right is
implicated, we will apply a rational basis standard to our review
of the probation statute and its application in this case.
B. Candedo’s Substantive Due Process Claim Fails Because the
Probation Statute Is Rationally Related to a Legitimate State
Interest and His Sentence Was Not Arbitrary
¶19 “When a fundamental right is not at issue, a statute
will not violate substantive due process if it is rationally
related to a legitimate state interest.” Gardner, 2008 UT 6,
¶ 33. Further, our rational basis analysis is limited “to
determin[ing] whether the legislature overstepped the bounds of
its constitutional authority in enacting [the statute at issue],
not whether it made wise policy in doing so.” Judd, 2004 UT 91,
¶ 15.
¶20 Candedo argues that Utah’s probation statute is not
rationally related to the legislatively-stated purpose of
probation, which is rehabilitation. Specifically, Candedo
asserts that rehabilitation, if achieved at all, will be achieved
within a relatively short period of time--five years or less.
Thus, lengthy probation terms, such as the one imposed in this
case, are not rationally related to a valid legislative purpose
and therefore violate due process.
¶21 We are unpersuaded that the only legitimate and
legislatively stated purpose of Utah’s probation statute is
rehabilitation of the offender who is placed on probation.4 Our

4 (...continued)
certainly indicates that rehabilitation is a significant
objective of probation, the statute itself gives no explicit
indication of such legislative intent.
9 No. 20080183
case law recognizes numerous legitimate purposes of probation,
including rehabilitation, State v. Spiers, 361 P.2d 509, 511
(Utah 1961), as well as protection of society, deterrence,
punishment, and restitution, among others. See State v. Rhodes,
818 P.2d 1048, 1051 (Utah Ct. App. 1991). Moreover, the very
mechanism of restitution is made more effective when the
defendant is on probation. To address these legitimate state
interests, Utah’s probation statute authorizes the court to
impose certain conditions of probation, including to “make
restitution or reparation to the victim or victims with interest
in accordance with Title 77, Chapter 38a, Crime Victims
Restitution Act; and comply with other terms and conditions the
court considers appropriate.” Utah Code Ann. § 77-18-
1(8)(a)(ix)-(x) (2008). We conclude that Utah’s probation
statute generally, as well as the term of probation to which
Candedo was sentenced, are rationally related to the state’s
legitimate interest in making victims whole through payment of
restitution in addition to the other stated needs for probation.
¶22 We want to be clear that an absence of maximum time
limits in the probation statute does not raise the same
constitutional concerns as those raised in Kansas v. Hendricks
regarding civil commitment statutes. 521 U.S. 346 (1997). There
are several fundamental differences between the Utah probation
statute and civil commitment statutes like the one at issue in
Hendricks. First, defendants who are civilly committed have not
been found guilty of a crime, but rather are detained based on
mental incapacitation for an indefinite period of time. See
Hendricks, 521 U.S. at 358 (discussing various state statutes
that allow civil commitment for mentally ill sex offenders). The
Kansas civil commitment statute at issue in Hendricks applies to:
(1) a presently confined person who . . . has
been convicted of a sexually violent offense
and is scheduled for release; (2) a person
who has been charged with a sexually violent
offense but has been found incompetent to
stand trial; (3) a person who has been found
not guilty by reason of insanity of a
sexually violent offense; and (4) a person
found not guilty of a sexually violent
offense because of a mental disease or
defect.

No. 20080183 10
Id. at 352 (internal quotation marks omitted). In contrast,
those sentenced under the Utah probation statute have been found
guilty after a trial or a proceeding consistent with due process
and are not scheduled for release. Second, as recognized in
Hendricks, civilly committed defendants should be afforded
incremental monitoring to ensure they are not detained longer
than necessary to overcome their mental incapacitation. Id. at
364. However, defendants sentenced under the Utah probation
statute must serve the duration of the probation sentence imposed
and are not held under probation indefinitely, but only as long
as lawfully mandated by a trial court after a determination of
guilt. Utah Code Ann. §§ 77-18-1(2)(a) and 77-18-1(10)(a)(i).
It is therefore not necessary to impose additional incremental
monitoring for defendants sentenced to probation.
¶23 Finally, while we recognize the potential for a trial
judge to arbitrarily impose an absurdly long probation period
compared to the severity of the crime committed, these concerns
are not present in Candedo’s case. The court was authorized to
sentence Candedo to a fifteen-year prison sentence, but instead
imposed the nine-year probation sentence and ordered restitution
to the victims of his fraud, a far less severe sentence. We can
envision a case where a defendant could successfully challenge a
probation sentence that is truly arbitrary or discriminatory
under the due process clause or prove that the probation statute
is cruel and unusual, but such a case is not before us now.
¶24 Under a rational basis standard of review, a statute
will meet the requirements of due process “if it has ‘a
reasonable relation to a proper legislative purpose, and [is]
neither arbitrary nor discriminatory.’” Tindley v. Salt Lake
City Sch. Dist., 2005 UT 30, ¶ 29, 116 P.3d 295 (quoting
Condemarin v. University Hosp., 775 P.2d 348, 356 (Utah 1989))
(alternation in original). None of the concerns about potential
arbitrary sentences are present in this case because Candedo’s
nine-year probation term is shorter than the fifteen-year prison
sentence he could have received under the statutory sentencing
scheme. Additionally, there is no evidence that the sentencing
judge treated Candedo differently from other defendants on
account of race or other suspect classifications or discriminated
against him in any way. Finally Candedo does not make the
argument that his sentence was cruel and unusual in violation of
the Eighth Amendment of the United States Constitution or article
I section 9 of the Utah Constitution. In short, Candedo’s
constitutional challenge to his sentence fails.

11 No. 20080183
CONCLUSION
¶25 We hold that the court of appeals erred by refusing to
reach the merits of Candedo’s constitutional claim under rule
22(e). Specifically, the court of appeals failed to properly
construe an “illegal sentence” to include constitutional
violations. Courts must consider constitutional as well as
statutory and jurisdictional challenges to sentences under rule
22(e). But we do not find that Utah’s probation statute violates
due process because the statute is rationally related to the
legitimate state interest in restitution, among other interests.
Accordingly, Candedo’s constitutional challenge to the imposition
of his nine-year probationary term under Utah’s probation statute
fails. We therefore affirm the district court’s decision to
order restitution and a nine-year probationary term.
---
¶26 Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins and Justice Nehring concur in Justice Parrish’s
opinion.