State v. Sulz

2014 UT App 46
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
STEVEN SULZ,
Defendant and Appellant.
Memorandum Decision
No. 20121072-CA
Filed February 21, 2014
Fourth District Court, Provo Department
The Honorable James R. Taylor
No. 101402874
Douglas J. Thompson, Attorney for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES J. FREDERIC VOROS JR. and JOHN A. PEARCE
concurred.
ROTH, Judge:
¶1 Steven Sulz appeals from the district court’s sua sponte
correction of his prison sentence. We affirm.
¶2 Sulz engaged in a series of criminal acts that led to
numerous charges in the district court. On November 4, 2010,
Sulz pleaded guilty to distribution of or arranging to distribute
heroin, a second degree felony, Utah Code Ann. § 58-37-8(1)(b)(i)
(LexisNexis 2012), in exchange for dismissal of five other drug-
related charges. The plea form specifically identified distribution
of heroin as a second degree felony subject to a sentence of one

State v. Sulz
20121072-CA 2 2014 UT App 46
to fifteen years in prison. During the plea colloquy, the court
confirmed that Sulz understood that pleading guilty to a second
degree felony would result in a one-to-fifteen-year prison term.
At the same hearing, the court accepted guilty pleas in a separate
case (the second case) for charges of third degree felony
distribution of marijuana and class A misdemeanor fraud.
Although the court sentenced Sulz on two other cases that day, it
set a later date for sentencing on the charges to which he had just
pleaded.
¶3 On December 16, 2010, the district court sentenced Sulz
on the heroin distribution conviction as well as on the two
convictions in the second case.1 When pronouncing sentence on
the heroin distribution charge, the district court identified Sulz’s
conviction as ‚a single third degree felony‛ and sentenced him to
‚zero to five *years+ at the Utah State prison.‛ (Emphasis added.)
In the second case, the court identified the marijuana
distribution charge as ‚a second degree felony,‛ instead of a
third degree felony, and sentenced Sulz to ‚*o+ne to 15 years in
the Utah State Prison‛ on that conviction. The court ordered the
sentences to run concurrently with each other but consecutive to
the sentences it had imposed on November 4. The court then
suspended the prison sentences and placed Sulz on probation for
thirty-six months. A minute entry of the proceeding indicates
that the court sentenced Sulz on the distribution of heroin
conviction as a second degree felony, consistent with his plea,
but listed the prison sentence as zero to five years, as the court
had stated. Sulz never asked for a reduction of sentence under
Utah Code section 76-3-402 (section 402). See id. § 76-3-402
(providing a sentencing court discretion to reduce the degree of
the conviction by one degree and to sentence accordingly).
¶4 Approximately two years later, after multiple probation
violations, including the commission of several new felonies, the
district court revoked Sulz’s probation and imposed the
1. The district court also sentenced Sulz in a third case, but that
sentence is not pertinent to the issue presented on appeal.

State v. Sulz
20121072-CA 3 2014 UT App 46
suspended prison sentences. At the revocation hearing, the court
sua sponte noted an error in its original sentence on the heroin
distribution conviction. Specifically, the court stated that it was
‚obviously incorrect‛ to have imposed a sentence of zero to five
years for distribution of heroin, which is a second degree felony.
The court explained that the sentence was ‚something *it had+ to
correct‛ because a sentence that did not comply with the
statutory term was illegal. After a short recess, defense counsel
agreed that the sentence was incorrect but asserted that
‚*t+heoretically, the Court could have granted [a sentence
reduction under section] 402 at the time of sentencing that
wasn’t on the record.‛ The district court disagreed, explaining
that Sulz never requested a sentence reduction and that it was
never the court’s intention to reduce Sulz’s sentence. The court
then changed the sentence on the heroin distribution conviction
to one-to-fifteen-years imprisonment and ordered Sulz
committed to the Utah State Prison.
¶5 According to Sulz, the district court did not have the
authority to retroactively change his sentence because ‚*o+nce a
court imposes a valid sentence, it loses subject matter
jurisdiction over the case.‛ See State v. Vaughn, 2011 UT App 411,
¶ 11, 266 P.3d 202 (alteration in original) (citation and internal
quotation marks omitted). Sulz asserts that the original sentence
was ‚valid‛ because, at the time of the original sentencing, the
district court had the authority under section 402 to reduce his
conviction one degree—from a second to a third degree felony.
Normally, a second degree felony conviction carries a prison
term of one to fifteen years. Utah Code Ann. § 76-3-203(2).
Section 402, however, provides,
If at the time of sentencing the court, having regard
to the nature and circumstances of the offense of
which the defendant was found guilty and to the
history and character of the defendant, and after
having given any victims present and the
prosecuting attorney an opportunity to be heard,
concludes it would be unduly harsh to record the

State v. Sulz
20121072-CA 4 2014 UT App 46
conviction as being for that degree of offense
established by statute, the court may enter a
judgment of conviction for the next lower degree of
offense and impose sentence accordingly.
Id. § 76-3-402(1). Thus, Sulz asserts, because reduction of a
second degree felony to a third degree felony is authorized by
section 402, the district court’s modification of Sulz’s sentence
was improper under rule 22 of the Utah Rules of Criminal
Procedure, which permits only the ‚correct*ion of+ an illegal
sentence,‛ Utah R. Crim. P. 22(e). The State responds that, under
the circumstances, the district court simply exercised its
authority under rule 30 of the rules of criminal procedure to
correct a clerical error in the sentence. We agree with the State
that the unique circumstances of the case make the district
court’s change to the sentence merely a correction of clerical
error.2 Our conclusion also eliminates any need to reach the
question of whether the original sentence was illegal under rule
22.
¶6 Rule 30(b) of the Utah Rules of Criminal Procedure
authorizes the district court, at any time, to correct ‚*c+lerical
mistakes in judgments, orders or other parts of the record arising
from oversight or omission.‛ Id. R. 30(b). ‚A clerical error, as
contradistinguished from judicial error, is not the deliberate
result of the exercise of judicial reasoning and determination.‛
State v. Lorrah, 761 P.2d 1388, 1389 (Utah 1988) (per curiam)
(citation and internal quotation marks omitted). To assess
whether an error is clerical, we focus on ‚(1) whether the order
2. The State filed a motion for summary dismissal of Sulz’s
appeal rather than a brief. Sulz filed a reply brief, in which he
contends that the State’s motion is not responsive to the claims
he raised in his opening brief and requests that the motion be
stricken. We treat the State’s motion as a responsive brief but
note that even if we disregarded the State’s filing, we would not
be persuaded by Sulz’s arguments. The motion for summary
dismissal is mooted by our decision here.

State v. Sulz
20121072-CA 5 2014 UT App 46
or judgment that was rendered reflects what was done or
intended, (2) whether the error is the result of judicial reasoning
and decision making, and (3) whether the error is clear from the
record.‛ State v. Rodrigues, 2009 UT 62, ¶ 14, 218 P.3d 610.
¶7 The court’s original zero-to-five-year sentence was a
clerical error. Sulz entered a plea to second degree felony heroin
distribution and signed a plea agreement that expressly stated
that he was facing one to fifteen years in prison. The district
court accepted this plea and set sentencing for a future date
along with sentencing on the second case, which included a
third degree felony conviction for distribution of marijuana. At
the sentencing hearing, the court apparently transposed the
degrees of conviction for the heroin and marijuana distribution
convictions, mistakenly imposing the sentence for a third degree
felony on the heroin distribution conviction and the sentence for
a second degree felony on the distribution of marijuana
conviction. Sulz never requested a section 402 reduction in the
degree of his heroin distribution conviction, and the minute
entry from the December 2010 hearing, while recording the
court’s pronouncement that Sulz was to serve zero to five years
in prison, states that the sentence was for a second degree felony,
not a third. At the subsequent probation revocation hearing, the
court notified the parties of its error and indicated that because it
had not intended to reduce Sulz’s conviction, it had to ‚correct‛
the error.3 On this record, it is apparent that the court originally
intended to sentence Sulz on a second degree felony conviction,
consistent with the parties’ expectations, and that it simply made
a mistake in carrying out that intent. Accordingly, all three parts
3. Although not pertinent to the resolution of our case, we note
that while the district court did not correct the corresponding
error in the sentence for the marijuana distribution conviction at
the same time, it appears that the court, on Sulz’s motion, later
amended that sentence to zero to five years, the statutory term
for a third degree felony. State v. Sulz, No. 101403028, minute
entry (May 9, 2013).

State v. Sulz
20121072-CA 6 2014 UT App 46
of the Rodrigues test lead us to conclude that the district court’s
error in sentencing Sulz was clerical. See id.
¶8 This determination is consistent with other cases in which
we have addressed district court errors in sentencing. In State v.
Jackson, 2008 UT App 431U, the defendant negotiated a
complicated plea agreement that disposed of four separate
criminal cases. Id. para. 2. The trial court accepted the plea
agreement, but when it imposed the sentences, it ‚deviated
slightly‛ from the plea agreement’s concurrent sentencing
provision. Id. The court later corrected the sentences, stating that
it ‚had ‘not intend*ed+ to deviate from the agreement of the
parties’‛ but ‚had ‘made a mistake when announcing
consecutive or concurrent sentences on some of the cases.’‛ Id.
para. 3 (alteration in original). We upheld the trial court’s
decision to correct the sentences on the basis that ‚*b+ecause the
original sentences, as announced, did not accurately reflect the
trial court’s intended judgment,‛ ‚the trial court’s misstatement
of *the d+efendant’s sentences was a clerical error, subject to
correction‛ under rule 30. Id. para. 7; see also Rodrigues, 2009 UT
62, ¶¶ 21–22, 34 (upholding the district court’s correction of a
restitution order where the amount of restitution was incorrectly
presented by the state because the record clearly demonstrated
that ‚the district court intended to order restitution in
conformity with the plea agreement‛).
¶9 We are not persuaded by Sulz’s claim that he is
prejudiced by the correction because he had a ‚legal and
legitimate expectation that the maximum punishment he would
face [on the distribution of heroin conviction] was five years.‛ As
a general matter, when a defendant pleads guilty, his reasonable
expectations regarding sentencing are limited by the terms of the
plea agreement. See Rodrigues, 2009 UT 62, ¶ 39 (explaining that
there was no double jeopardy violation when the trial court
corrected a restitution order because the defendant ‚had no
legitimate expectation of finality in the original order of
restitution where it did not reflect what he had agreed to in the
plea agreement‛); cf. Beal v. Turner, 454 P.2d 624, 626 (Utah 1969)

State v. Sulz
20121072-CA 7 2014 UT App 46
(explaining that there is no constitutional right to probation or
parole). And Sulz does not cite to any authority in support of his
claim that he gained a sort of vested interest in the court’s
mistake in sentencing him to a shorter term than the plea
agreement provided. Accordingly, we do not consider the claim
further.
¶10 We affirm the district court’s decision to correct the error
in the original sentence on Sulz’s heroin distribution conviction
to accord with the statutory punishment for a second degree
felony.
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