State v. Wilkerson

2020 UT App 160
THE UTAH C OURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
D EVIN LEE WILKERSON ,
Appellant.
Opinion
No. 20190633-CA
Filed November 27, 2020
Fourth District Court, Provo Department
The Honorable M. James Brady
No. 181402439
Bryson King and Douglas J. Thompson, Attorneys
for Appellant
Sean D. Reyes and Jonathan S. Bauer, Attorneys
for Appellee
J UDGE R YAN M. HARRIS authored this Opinion, in which J UDGES
D AVID N. MORTENSEN and D IANA HAGEN concurred.
HARRIS, Judge:
¶1 	Under Utah law, persons who spend time incarcerated in
county jails may be required to reimburse the county for “the
cost 	of 	incarceration.” 	See 	Utah 	Code 	Ann. 	§ 76-3-201(6)
(LexisNexis 2017) (the Pay-to-Stay Statute). After pleading guilty
to 	one 	misdemeanor 	count 	of 	drug 	possession, 	Devin 	Lee
Wilkerson was ordered to pay $1,939.65 to Utah County for the
cost of his 111-day pre-plea detention in the Utah County Jail.
Wilkerson appeals that restitution order, asserting that the Pay-
to-Stay Statute does not authorize reimbursement for jail time
served prior to conviction. He also asserts that the court’s
restitution order violated principles of due process. We affirm.

State v. Wilkerson
20190633-CA 	2 	2020 UT App 160
BACKGROUND
¶2 	One night in August 2018, Wilkerson and a friend were
skateboarding in a road near an intersection. A police officer
patrolling nearby saw the two men and stopped them, believing
that their skateboarding in the street was unlawful. The officer
soon 	discovered 	that 	there 	was 	a 	valid 	warrant 	out 	for
Wilkerson’s arrest. The officer then arrested Wilkerson, searched
him, and found methamphetamine on his person. Wilkerson was
booked into the Utah County Jail that same day, and a few days
later the State charged him with drug possession—which in his
case 	was 	charged 	as 	a 	third-degree 	felony 	due 	to 	prior
convictions—and possession of drug paraphernalia, a class B
misdemeanor. Soon thereafter, after spending approximately
sixteen 	days 	in 	jail, 	Wilkerson 	was 	released 	on 	his 	own
recognizance while the case proceeded.
¶3 	Several 	weeks 	later, 	Wilkerson 	failed 	to 	appear 	at 	a
scheduled hearing in the case, and the court issued a warrant for
his 	arrest. 	Wilkerson 	was 	subsequently 	arrested 	and 	again
booked into the Utah County Jail, where he spent more than
ninety additional days before he posted bail. In total, Wilkerson
ended up spending 111 days in the Utah County Jail, all of
which took place pre-plea and pre-sentencing.
¶4 	Eventually, Wilkerson negotiated a plea agreement with
the State, under which the State agreed to reduce the drug
possession count to a class A misdemeanor and to dismiss the
paraphernalia count, and Wilkerson agreed to plead to the
reduced 	charge 	of 	attempted 	drug 	possession. 	The 	court
sentenced Wilkerson on the same day he entered his plea. The
court ordered Wilkerson to serve a one-year jail sentence, but
suspended that sentence and placed Wilkerson on probation.
Among 	other 	conditions 	of 	probation, 	the 	court 	ordered
Wilkerson to “serve 111 days in jail,” but gave Wilkerson credit

State v. Wilkerson
20190633-CA 	3 	2020 UT App 160
for the 111 days he had already served, and did not require
Wilkerson to spend any additional time in jail.
¶5 	At the sentencing hearing, which took place in July 2019,
Wilkerson’s counsel anticipated that the State would ask for
reimbursement 	under 	the 	Pay-to-Stay 	Statute, 	noting 	that
“because [Wilkerson] has now been convicted of a misdemeanor,
he is subject to restitution requirements” under that statute.
Counsel noted that the statute exempted individuals who did
not have “the ability to pay,” but acknowledged that Wilkerson
had the ability to make reimbursement payments. Instead of
asserting that the statute was inapplicable to Wilkerson on
indigency grounds, counsel asked “for the Court to make a
finding that [the Pay-to-Stay Statute] does not apply in a case
where a defendant does not receive further time after conviction
that results in incarceration at a county jail facility.” The State
took the opposite position, asserting that the statute authorized
reimbursement even for pre-conviction incarceration, so long as
the defendant was eventually convicted of the crime that was
holding him in jail and sentenced to serve a period of time that
included the time already served.
¶6 	After hearing arguments of counsel, the court declined to
immediately rule on the issue, ordering Wilkerson’s sentence
stayed until it could resolve the reimbursement issue. The court
invited the parties to submit briefing on the question of the
applicability of the Pay-to-Stay Statute, which invitation both
parties accepted. After reviewing the parties’ briefing, the court
sided with the State, and issued a written order commanding
Wilkerson to pay restitution for the 111 days he served in jail, an
amount the State computed to be $1,939.65.
¶7 	Wilkerson then filed a motion to vacate the restitution
portion of his sentence under rule 22(e) of the Utah Rules of
Criminal Procedure, asserting that the restitution order was
illegal and that it violated principles of due process. However,

State v. Wilkerson
20190633-CA 	4 	2020 UT App 160
Wilkerson 	advanced 	only 	the 	same 	argument 	that 	he 	had
advanced before, in his post-sentence brief: that he was “not
subject to” the Pay-to-Stay Statute because “he was not actually
incarcerated at the county jail following sentencing.” Thus, the
only asserted due process violation he identified was the court’s
application of the statute to him under these circumstances. The
court denied Wilkerson’s motion in a written order.
ISSUES AND STANDARDS OF REVIEW
¶8 	Wilkerson appeals the restitution order, and asks us to
review 	two 	issues. 	First, 	he 	asserts 	that 	the 	district 	court
incorrectly interpreted and applied the Pay-to-Stay Statute. “We
review 	questions 	of 	statutory 	interpretation 	for 	correctness,
affording no deference to the district court’s legal conclusions.”
Grimm v. DxNA LLC, 2018 UT App 115, ¶ 14, 427 P.3d 571
(quotation simplified). Second, Wilkerson appeals the denial of
his post-sentencing motion that invoked both rule 22(e) of the
Utah Rules of Criminal Procedure and due process. We review
the court’s denial of that motion for correctness. See Salt Lake City
Corp. v. Jordan River Restoration Network, 2012 UT 84, ¶ 105, 299
P.3d 990 (“Generally, due process issues present questions of
law that we review for correctness.” (quotation simplified)); see
also State v. Walton, 2019 UT App 187, ¶ 14, 455 P.3d 1066 (“We
review the denial of a rule 22(e) motion for correctness.”).
ANALYSIS
I
¶9 	Wilkerson first asserts that the Pay-to-Stay Statute, by its
terms, does not apply to him, and that the district court therefore
erred when it ordered him to reimburse the county for the time
he spent in jail. That statute, in relevant part, reads as follows:

State v. Wilkerson
20190633-CA 	5 	2020 UT App 160
In addition to any other sentence the court may
impose, . . . the defendant shall pay restitution to
the county for the cost of incarceration and costs of
medical care provided to the defendant while in
the county correctional facility before and after
sentencing if . . . the defendant is convicted of
criminal activity that results in incarceration in the
county correctional facility.
Utah Code Ann. § 76-3-201(6)(a)(i) (LexisNexis 2017). Wilkerson
interprets this statute as authorizing reimbursement only for jail
time served following conviction and sentence. The State, by
contrast, sees no such restriction in the statutory language, and
asserts that the district court correctly ordered restitution here.
¶10 	As we consider this question of statutory interpretation,
we keep in mind our supreme court’s instruction that “the point
of 	statutory 	interpretation 	is 	to 	ascertain 	the 	intent 	of 	the
legislature.” In re adoption of B.H., 2020 UT 64, ¶ 31 (quotation
simplified). And the best evidence of legislative intent is the
language our legislature used to express that intent. See Hertzske
v. Snyder, 2017 UT 4, ¶ 10, 390 P.3d 307 (“The best indicator of
legislative 	intent 	is 	the 	plain 	language 	of 	the 	statutes
themselves.”). When the statutory language is unambiguous, we
do “not look beyond the same to divine legislative intent”
because 	“we 	are 	guided 	by 	the 	rule 	that 	a 	statute 	should
generally be construed according to its plain language.” State v.
Malo, 2020 UT 42, ¶ 22, 469 P.3d 982 (quotation simplified); see
also Scott v. Scott, 2017 UT 66, ¶ 22, 423 P.3d 1275 (“When we can
ascertain the intent of the legislature from the statutory terms
alone, no other interpretive tools are needed, and our task of
statutory 	construction 	is 	typically 	at 	an 	end.” 	(quotation
simplified)). But if the relevant statutory language is ambiguous,
“we generally resort to other modes of statutory construction
and seek guidance from legislative history and other accepted

State v. Wilkerson
20190633-CA 	6 	2020 UT App 160
sources.” Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50,
¶ 15, 267 P.3d 863 (quotation simplified).
¶11 	A statute is considered ambiguous if “its terms remain
susceptible to two or more reasonable interpretations after we
have conducted a plain language analysis.” Id.; see also Sachs v.
Lesser, 2008 UT 87, ¶ 17, 207 P.3d 1215 (“A statute is ambiguous
when it may reasonably be understood to have two or more
plausible 	meanings.” 	(quotation 	simplified)). 	A 	party’s
“suggested 	interpretation” 	of 	a 	statute 	is 	not 	reasonable,
however, when it “contradicts the plain language of the statute.”
State v. Watkins, 2013 UT 28, ¶ 27, 309 P.3d 209, superseded by
statute on other grounds as stated in Christensen v. Juab School Dist.,
2017 UT 47, ¶ 14, 424 P.3d 108; cf. Saleh v. Farmers Ins. Exch., 2006
UT 20, ¶ 17, 133 P.3d 428 (stating, in the context of contractual
interpretation, that “to merit consideration as an interpretation
that creates an ambiguity, the alternative rendition must be
based upon the usual and natural meaning of the language used
and may not be the result of a forced and strained construction”
(quotation simplified)).
¶12 	Here, 	Wilkerson 	argues 	that 	the 	relevant 	statutory
language is ambiguous, and can be reasonably interpreted in
two 	different 	ways. 	Wilkerson 	acknowledges 	the 	State’s
interpretation: that the statute authorizes reimbursement for jail
time spent both “before and after sentencing,” as long as the jail
time was the result of the same criminal activity of which the
defendant was ultimately convicted. See Utah Code Ann. § 76-3-
201(6)(a)(i). But Wilkerson advances a second interpretation, one
that 	he 	asserts 	is 	also 	a 	plausible 	reading 	of 	the 	relevant
language: that a defendant is subject to reimbursement “only if
incarcerated after conviction, regardless of time spent at the
county jail facility before that event.”
¶13 	The State’s proffered interpretation 	is reasonable and
supported by the plain language of the statute, and Wilkerson

State v. Wilkerson
20190633-CA 	7 	2020 UT App 160
does not argue otherwise. Indeed, as the State points out, the
phrase “before and after sentencing” includes, by definition, jail
time spent before sentencing, a span of time that itself must
include—given that conviction always precedes sentencing—any
jail time spent prior to conviction. The only limit imposed by the
statutory language is that the defendant must be convicted “of
criminal activity that results in incarceration” at the county jail,
see id., a limitation that does not necessarily have anything to do
with whether the jail time occurred before or after conviction.
Under this interpretation, Wilkerson was subject to a restitution
order for the 111 days he spent in jail, because he was convicted
of criminal activity for which he was ultimately sentenced to 111
days in jail, regardless of whether that jail time was served
before or after sentencing.
¶14 	Wilkerson’s proffered interpretation, by contrast, is not
supported by the plain meaning of the statutory language, and
requires us to read crucial terms out of the statute. When reading
a statute, we must “give meaning to each word used, wherever
possible,” because we “presume that the legislature used each
word advisedly.” In re J.M., 2020 UT App 52, ¶ 28, 463 P.3d 66
(quotation 	simplified). 	The 	chief 	problem 	with 	Wilkerson’s
interpretation is that it does violence to the phrase “before and
after sentencing.” See Utah Code Ann. § 76-3-201(6)(a). The plain
meaning of that phrase indicates that any incarceration served as
a result of criminal activity for which the defendant is convicted
is subject to restitution, regardless of whether the incarceration
occurred 	“before 	or 	after 	sentencing.” 	See 	id. 	Wilkerson’s
argument 	that 	the 	statute 	authorizes 	restitution 	only 	for
incarceration served after conviction requires us to either ignore
the 	plain 	language 	of 	“before 	and 	after 	sentencing,” 	or 	to
interpret that phrase in a way at odds with its plain language.
¶15 	Wilkerson notes, however, that the statute authorizes
reimbursement, even “before and after sentencing,” only “if the
defendant 	is 	convicted 	of 	criminal 	activity 	that 	results 	in

State v. Wilkerson
20190633-CA 	8 	2020 UT App 160
incarceration” 	at 	the 	county 	jail. 	See 	id. 	§ 	76-3-201(6)(a)(i).
Wilkerson focuses on the term “incarceration,” which he notes is
not defined in the Pay-to-Stay Statute, and posits that the term
should be construed to mean only post-sentencing or post-
conviction incarceration, and should be construed to exclude
pre-conviction incarceration. In aid of this argument, Wilkerson
asks us to import a definition of “incarceration” from a different
part 	of 	the 	Utah 	Code, 	invoking 	an 	interpretive 	tool 	we
occasionally use when a statutory term is undefined within the
section where it is found. See, e.g., O’Hearon v. Hansen, 2017 UT
App 214, ¶ 26, 409 P.3d 85 (“When a term is not defined within a
particular section of the Utah Code, courts may also look to
other sections of the Utah Code to see whether the same term is
defined elsewhere.”). Wilkerson points us to section 78B-9-401.5
of the Utah Code, which is part of our statute concerning
“Postconviction 	Determination 	of 	Factual 	Innocence.” 	That
statute allows any person convicted of a crime but later found to
be “factually innocent” to recover monetary compensation from
the State for time spent incarcerated. See generally Utah Code
Ann. 	§ 	78B-9-405 	(LexisNexis 	2017). 	In 	that 	context, 	our
legislature defined “[p]eriod of incarceration” as “any sentence
of 	imprisonment, 	including 	jail, 	which 	was 	served 	after
judgment of conviction.” See id. § 78B-9-401.5(4).
¶16 	But as the State points out, it would be erroneous to
deduce that our legislature, in enacting the Pay-to-Stay Statute,
intended to import the definition of “incarceration” from the
factual innocence statute, for two reasons. First, the Pay-to-Stay
Statute, 	including 	its 	language 	regarding 	incarceration, 	was
enacted in 2003. See County Correctional Facility Reimbursement
Act, ch. 280, 2003 Utah Laws 1286. The factual innocence statute,
by contrast, was first enacted in 2008, see Exoneration and
Innocence Assistance Act, ch. 358, 2008 Utah Laws 2296, but its
definition of “incarceration” was not added until 2010, see Post
Conviction Remedies Act Amendment, ch. 153, § 2, 2010 Utah
Laws 739, 740 (enacting a new section to define “[p]eriod of

State v. Wilkerson
20190633-CA 	9 	2020 UT App 160
incarceration” and other terms). It is unreasonable to conclude
that our legislature, in enacting the Pay-to-Stay Statute in 2003,
intended 	to 	incorporate 	a 	specialized 	definition 	of
“incarceration” that it would not codify, even in a different
context, for another seven years. Had our legislature intended
the 	2010 	definition 	of 	“incarceration” 	used 	in 	the 	factual
innocence statute to apply to the previously enacted Pay-to-Stay
Statute, we are confident it would have said so more clearly.1
¶17 	Second, and more substantively, Wilkerson’s proffered
interpretation 	of 	“incarceration” 	runs 	counter 	to 	the 	plain
language of other parts of the Pay-to-Stay Statute, which allow
restitution for jail time served “in the county correctional facility
before 	and 	after 	sentencing.” 	See 	Utah 	Code 	Ann. 	§ 	76-3-
201(6)(a). We cannot import a definition of a term from another
section of the Utah Code when that imported definition directly
1. Moreover, not only did the legislature fail to specify that the
2010 definition of incarceration found in the factual innocence
statute 	should 	apply 	to 	the 	previously 	enacted 	Pay-to-Stay
Statute, the legislature made a statutory amendment in 2019 that
suggests the opposite intent. That year, the legislature added a
requirement that county jails submit an annual report disclosing
whether and to what extent they require pay-to-stay restitution.
See Restitution Reporting Act, ch. 252, § 1, 2019 Utah Laws 1620,
1620–21 (codified at Utah Code Ann. § 17-22-32.2 (LexisNexis
Supp. 2019)). In that statute, the legislature defined “inmate” as
“an 	individual 	who 	is 	currently 	incarcerated 	or 	who 	was
formerly incarcerated at a county jail, regardless of whether the
individual is convicted of a crime.” See Utah Code Ann. § 17-22-
32.2(1)(b). Thus, in the pay-to-stay context, the legislature has
exhibited an understanding that “incarceration” simply means
time served in jail, regardless of whether that time was served
before or after conviction and sentence.

State v. Wilkerson
20190633-CA 	10 	2020 UT App 160
contradicts 	express 	language 	found 	elsewhere 	in 	the 	actual
statute at issue.
¶18 	In 	this 	situation, 	where 	the 	term 	“incarceration” 	is
undefined 	in 	the 	relevant 	statute 	and 	no 	other 	statutory
definition applies, we simply apply the plain meaning of the
term. See Muddy Boys, Inc. v. Department of Commerce, 2019
UT 	App 33, ¶ 	16, 440 P.3d 741 (“Where a statutory term
is 	undefined, 	we 	must 	endeavor 	to 	determine 	its
plain 	and 	ordinary 	meaning.”). 	And 	the 	plain 	meaning 	of
“incarceration” 	is 	simply 	confinement 	in 	jail 	or 	prison,
without regard to whether that time was served before or
after 	conviction, 	sentencing, 	or 	any 	other 	milestone. 	See
Incarceration, Black’s Law Dictionary (11th ed. 2019) (defining
“incarceration” as “[t]he act or process of confining someone;
imprisonment”); 	see 	also 	Incarceration, 	Cambridge
Dictionary, https://dictionary.cambridge.org/us/dictionary/englis
h/incarceration 	[https://perma.cc/9QH5-8S9D] 	(defining
“incarceration” 	as 	“the 	act 	of 	putting 	or 	keeping 	someone
in prison or in a place used as a prison” and “the act of
keeping 	someone 	in 	a 	closed 	place 	and 	preventing 	them
from 	leaving 	it”); 	Incarceration, 	Merriam-Webster,
https://www.merriam-webster.com/dictionary/incarceration
[https://perma.cc/AQ4V-KFT4] 	(defining 	“incarceration” 	as
“confinement in a jail or prison: the act of imprisoning someone
or the state of being imprisoned”).
¶19 	In 	short, 	we 	do 	not 	consider 	Wilkerson’s 	proffered
interpretation 	of 	the 	Pay-to-Stay 	Statute 	to 	be 	reasonably
supported by the plain language of the statute. Given that we
perceive only one reasonable interpretation of the statute—the
one proffered by the State—we conclude that the Pay-to-Stay
Statute is, in this context, unambiguous. It has two definite
carceral prerequisites: that the defendant have been incarcerated
in a county correctional facility before or after sentencing, and
that 	the 	defendant 	eventually 	be 	convicted 	of 	the 	criminal

State v. Wilkerson
20190633-CA 	11 	2020 UT App 160
activity that “results in” his or her incarceration.2 See Utah Code
Ann. 	§ 76-3-201(6). Once 	those 	conditions 	are 	satisfied, 	and
assuming that all other conditions of the statute (including lack
of indigency) are met, a court may order a defendant to repay
the county for the costs of his or her incarceration, even if that
incarceration 	was 	served 	prior 	to 	conviction 	or 	prior 	to
sentencing. See id.
¶20 	And 	in 	this 	case, 	these 	carceral 	prerequisites 	were
satisfied. Wilkerson was taken to the Utah County Jail because
he was arrested for and charged with drug possession. He spent
111 days in custody on that charge before finally pleading guilty
to 	a 	reduced 	count 	of 	misdemeanor 	drug 	possession. 	At
sentencing, the district court ordered him to serve 111 days in
jail on that charge, but gave him credit for time served.3 Thus, all
2. In this case, because Wilkerson was eventually sentenced to
serve the entire 111 days—rather than a lesser amount—in jail,
all of his jail time was unquestionably a consequence of his
criminal activity; we need not here decide the more difficult
causal question that may arise in a pay-to-stay case in which a
defendant is sentenced to serve a shorter time in jail than he or
she had already served prior to sentence. See infra note 3.
3. Two members of this panel served as district court judges,
and we understand the judicial impulse to impose sentence,
in cases like this, in the exact amount of days already served
(here, 111 days), rather than in a—perhaps smaller—amount of
days designed to be “proportionate to the gravity of the offense
and 	the 	culpability 	of 	the 	offender.” 	See 	Utah 	Sentencing
Comm’n, 	Adult 	Sentencing 	& 	Release 	Guidelines 	3 	(2020),
https://justice.utah.gov/Sentencing/Guidelines/Adult/2020%20
Adult%20Sentencing%20and%20Release%20Guidelines.pdf
[https://perma.cc/C8ZQ-6S2N]. In many cases, it may not matter
for any practical purpose whether a defendant is sentenced to
(continued…)

State v. Wilkerson
20190633-CA 	12 	2020 UT App 160
of the time Wilkerson spent in jail was related to criminal
activity for which he was ultimately convicted, and all of that
time 	was 	ultimately 	included 	in 	his 	sentence. 	Under 	these
circumstances, 	the 	court’s 	interpretation 	of 	the 	Pay-to-Stay
Statute was correct, and it did not err in ordering restitution.
II
¶21 	Wilkerson next appeals the district court’s denial of his
post-sentencing motion, in which he claimed that he was denied
due process of law. “Generally speaking,” a party must make “a
timely and specific objection . . . in order to preserve an issue for
appeal.” State v. Pinder, 2005 UT 15, ¶ 45, 114 P.3d 551 (quotation
simplified). To do so, the party must raise the issue with the
district court “in such a way that the [district] court has an
opportunity to rule on that issue.” In re adoption of Baby E.Z., 2011
UT 38, ¶ 25, 266 P.3d 702 (quotation simplified). Before the
district court, the only “due process” claim that Wilkerson raised
in his post-sentencing motion was his contention that the court
(…continued)
the full amount (here, 111) or some lesser amount (say, 30 or 60)
of the already-served days in jail. However, where the Pay-to-
Stay Statute is in play, such distinctions might matter. We do not
purport to here answer the question whether, had Wilkerson
been sentenced to only, say, 60 days in jail, despite the fact that
he had already served 111 days, he could be ordered to pay
restitution for the entire 111 days. Nor do we decide whether the
Pay-to-Stay Statute would apply if Wilkerson had ultimately
been convicted but was sentenced to no jail time. But until those
questions are definitively answered, we encourage sentencing
judges 	in 	pay-to-stay 	cases 	to 	avoid 	reflexively 	imposing
sentence in the exact amount of days already served, and instead
to consider whether that amount of days, or a different amount,
would best serve the goals of sentencing and incarceration.

State v. Wilkerson
20190633-CA 	13 	2020 UT App 160
had erroneously interpreted the Pay-to-Stay Statute. That claim,
while certainly preserved, has been addressed on its merits and
rejected above in Part I, and we need not consider it further here.
¶22 	On appeal, Wilkerson attempts to raise new due process
concerns that were not brought to the attention of the district
court. Here, Wilkerson asserts, for the first time, that the Pay-to-
Stay Statute itself provides inadequate due process protections,
and that the district court denied him due process in this case.
Such concerns are not preserved for appellate review, because
Wilkerson did not give the district court “an opportunity to rule
on” them. See id. (quotation simplified). “We will consider an
unpreserved claim only if the appellant demonstrates that one of
the exceptions to our preservation doctrine has been satisfied.”
State v. Morris, 2017 UT App 112, ¶ 12 n.5, 400 P.3d 1183. In this
vein, Wilkerson asks us to consider this issue under rule 22(e) of
the Utah Rules of Criminal Procedure or, alternatively, to review
it for plain error.
¶23 	Wilkerson’s 	rule 	22(e) 	arguments, 	however, 	invoke 	a
now-superseded version of the rule. Until 2017, the rule broadly
provided that a “court may correct an illegal sentence, or a
sentence imposed in an illegal manner, at any time.” Utah R.
Crim. P. 22(e)(1) (2016); see also State v. Candedo, 2010 UT 32, ¶ 9,
232 	P.3d 	1008 	(referring 	to 	the 	language 	of 	rule 	22(e) 	as
“sweeping” (quotation simplified)). And, as Wilkerson correctly
points out, our supreme court interpreted that version of the rule
as giving appellate courts the authority, at least in some cases, to
vacate facially unconstitutional sentences at any time, even when
a constitutional challenge was unpreserved. See State v. Houston,
2015 UT 40, ¶¶ 18–20, 353 P.3d 55 (noting that “[r]ule 22(e)
operates 	as 	another 	limited 	exception 	to 	the 	preservation
doctrine” and “allows an appellate court to vacate an illegal
sentence even if the legality of the sentence was never raised in
the proceedings below,” and holding that the rule “encompasses

State v. Wilkerson
20190633-CA 	14 	2020 UT App 160
facial 	constitutional 	challenges 	to 	the 	sentence 	that 	do 	not
implicate a fact-intensive analysis” (quotation simplified)).
¶24 	But rule 22(e) was amended in 2017. In that amendment,
the “sweeping” language allowing a court to correct any “illegal
sentence” “at any time” was removed, and replaced with more
limiting provisions authorizing a court to “correct a sentence”
only when the “sentence imposed” met any one of six specific
conditions. See Utah R. Crim. P. 22(e)(1) (2018). We “must apply
the law in effect at the time of the occurrence regulated by that
law.” State v. Clark, 2011 UT 23, ¶ 11, 251 P.3d 829 (quotation
simplified). Because Wilkerson’s arrest occurred in 2018 and his
sentencing took place in 2019, the version of rule 22(e) that
applies here is the current version, not the pre-2017 version. And
Wilkerson 	makes 	no 	argument 	that 	any 	of 	the 	situations
enumerated 	in 	the 	current 	version 	of 	the 	rule 	have 	any
application here. Thus, Wilkerson has not demonstrated an
entitlement to any relief under the current version of rule 22(e).
¶25 	Finally, Wilkerson has also failed to demonstrate that the
district 	court 	plainly 	erred 	by 	not 	sua 	sponte 	recognizing
constitutional 	infirmity 	in 	its 	application 	of 	the 	Pay-to-Stay
Statute in this case. To establish plain error, a party “must show
that (i) an error exists; (ii) the error should have been obvious to
the [district] court; and (iii) the error is harmful, i.e., absent the
error, 	there 	is 	a 	reasonable 	likelihood 	of 	a 	more 	favorable
outcome for the appellant.” State v. Almaguer, 2020 UT App 117,
¶ 11, 472 P.3d 326 (quotation simplified). And “for an error to be
obvious to the [district] court, the party . . . must show that the
law governing the error was clear, or plainly settled, at the time
the alleged error was made.” State v. Johnson, 2017 UT 76, ¶ 20,
416 P.3d 443 (quotation simplified).
¶26 	Wilkerson makes no attempt to analyze these standards,
and 	argues 	only 	in 	passing 	that 	the 	Pay-to-Stay 	Statute 	is
“plainly unconstitutional for violating due process.” Under these

State v. Wilkerson
20190633-CA 	15 	2020 UT App 160
circumstances, 	Wilkerson 	has 	failed 	to 	carry 	his 	burden 	of
demonstrating that the district court plainly erred by failing to
intervene, especially where, as here, the applicable statute does
contain certain procedural safeguards, see Utah Code Ann. § 76-
3-201(6)(a), (c) (LexisNexis 2017), and Wilkerson appears to have
been afforded quite a bit of procedural process in this case,
including a sentencing hearing at which he was represented by
counsel where the applicability of the Pay-to-Stay Statute was
raised and discussed, as well as the specific opportunity for
briefing on the applicability of the Pay-to-Stay Statute prior to
the district court’s written ruling. Wilkerson simply has not
carried his burden of demonstrating plain error.
CONCLUSION
¶27 	The district court did not err in its interpretation and
application 	of 	the 	Pay-to-Stay 	Statute 	in 	this 	case. 	And
Wilkerson has failed to carry his burden of demonstrating error
in the district court’s denial of his post-sentencing motion.
¶28 	Affirmed.