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State v. Wynn

Court of Appeals of Utah

November 16, 2017

State of Utah, Appellee,
v.
Dennis Terry Wynn, Appellant.

         Third District Court, Salt Lake Department The Honorable Paul B. Parker No. 061906774

          Elizabeth Hunt, Attorney for Appellant.

          Sean D. Reyes, Laura B. Dupaix, and Andrew F. Peterson, Attorneys for Appellee.

          Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen concurred.

          MORTENSEN, JUDGE.

         ¶1 More than nine years ago, Dennis Terry Wynn (Defendant) was sentenced to prison and ordered to pay restitution in excess of $700, 000. Now he argues, among other things, that that amount renders his sentence illegal. Because we conclude that Defendant is not entitled to relief under the many theories he advances, we affirm the district court's denial of his several motions.

         BACKGROUND

         ¶2 In 2006, the State charged Defendant with nineteen felonies, including securities fraud, theft, and a pattern of unlawful activity. The district court dismissed two of these charges at a preliminary hearing and Defendant was bound over on the remaining seventeen. Defendant was shortly thereafter indicted in federal court on seven counts of mail and securities fraud. The state district court stayed proceedings until Defendant resolved his federal indictments. In November 2007, Defendant pled guilty to a single count of mail fraud in the federal court. In conjunction with that plea, Defendant was sentenced to federal prison and ordered to pay more than $15 million in restitution.

         ¶3 Before he surrendered to federal prison, Defendant and the State reached an agreement on his seventeen state charges. Defendant agreed to plead guilty to four counts of securities fraud-two second degree felonies and two third degree felonies. The parties also agreed that "Defendant will serve any state prison sentence concurrent with his federal prison time" and that "Defendant shall pay $100, 000 to [the] State at sentenc[ing]; final amount of restitution to be determined by Oct 6, as between counsel."

         ¶4 When Defendant entered his guilty pleas, the state district court explained that it would order "full and complete restitution in an amount of at least $100, 000, but probably . . . many times more than that" and asked Defendant, "Is that what you understand?" Defendant responded, "Yes, sir." Defendant also indicated that he understood the sentence the district court planned to enter: "on two of the counts one to fifteen years in prison . . . and two other counts zero to five years in prison, all counts to run concurrently and to run concurrent with the federal time."

         ¶5 On October 6, 2008, the State submitted a request for a restitution order, indicating the full amount of restitution was $782, 068.63. Defendant did not object to that amount or to the request for a restitution order, and on October 23, 2008, the district court signed the order for the amount requested. Both the State's request and the district court's order indicated that the restitution would be paid to twenty-three victims named in an attached list.

         ¶6 After he completed his federal prison sentence, Defendant was transferred to the Utah State Prison. In May 2013, Defendant appeared at a hearing before the Utah Board of Pardons and Parole (the Board). The hearing officer, in discussing Defendant's outstanding restitution, explained, "So at this point I have restitution is owed in the amount of $782, 068.63. It says $100, 000 of this has been paid, and there's a balance of $682, 068; is that correct?" Defendant indicated that he had not "seen those figures" but that it "sounds correct."

         ¶7 Nearly two years after that hearing, Defendant filed a motion under rule 22(e) of the Utah Rules of Criminal Procedure, seeking to correct an illegal sentence. He argued that his sentence "was illegally imposed through the violation of [his] constitutional right to effective assistance of counsel." He claimed that his plea agreement assured he "would serve no time in the Utah State Prison" but that his counsel "failed to ensure that [Defendant] would serve no time in state prison." He further claimed that his sentence was "unconstitutional because the restitution ordered is inaccurate, and trial counsel entirely forfeited [Defendant's] right to an accurate determination of restitution in the state case." Defendant contended that the State's restitution request "encompassed restitution for dismissed counts[] . . . and for other people who were not tied to any count at all." In his view, "As there was no conviction or agreement by [Defendant] to pay restitution for anything beyond the counts he pled to, trial counsel should have objected to the restitution request, which exceeded what [Defendant] was legally required to pay by hundreds of thousands of dollars."

         ¶8 The State opposed Defendant's rule 22(e) motion, and Defendant replied by filing an additional motion that set forth alternative claims: If the district court determined that the sentence was not an illegal sentence under rule 22, it should nevertheless set the sentence aside because either (1) the restitution amount was a clerical error that could be corrected at any time under rule 30(b) of the Utah Rules of Criminal Procedure, or (2) Defendant was entitled to relief under rule 60(b)(6) of the Utah Rules of Civil Procedure because the restitution order was entered by default. Defendant contemporaneously requested discovery pertaining to "plea bargaining and negotiations in this case"; "restitution in this case, to include an accounting of who received the $100, 000 originally paid"; "written or recorded statements of [Defendant] or any other potential or actual witnesses in this case"; "physical evidence gathered by the prosecution team members"; exculpatory evidence; a list of potential and actual witnesses; and other information seemingly unrelated to the motions pending before the district court.

         ¶9 The district court denied Defendant's motions. It determined that "Defendant's claim of ineffective assistance of counsel does not fall within the narrow parameters of Rule 22(e) review" and that "Defendant has not shown the sentence itself to be otherwise illegal." It further determined that, regarding the amount of restitution ordered, "there is no clerical error correctable through Rule 30(b)." And it determined that Defendant's rule 60(b) motion was untimely.[1] Finally, "[h]aving determined that [it] [did] not have jurisdiction, " the district court denied Defendant's request for discovery.

         ¶10 Defendant now appeals the denial of his motions.

         ISSUES AND STANDARDS OF REVIEW

         ¶11 On appeal, Defendant challenges the district court's reasoning and ultimate decision in denying each of his motions. We review for correctness the district court's denial of Defendant's rule 22(e) and 30(b) motions. See State v. Rodrigues, 2009 UT 62, ¶ 11, 218 P.3d 610 (explaining that interpretation of "rule 30(b) of the Utah Rules of Criminal Procedure[] . . . is a question of law that we review for correctness" (citation and internal quotation marks omitted)); State v. Fairchild, 2016 UT App 205, ¶ 16, 385 P.3d 696 ("[W]hen the legality of a sentence is challenged, a question of law is presented, which we review for correctness."). We normally review discovery orders "under an abuse of discretion standard, " Pinder v. State, 2015 UT 56, ¶ 20, 367 P.3d 968, but because the district court denied Defendant's motion for discovery for lack of jurisdiction, we review this issue for correctness, see State v. Nicholls, 2006 UT 76, ¶ 3, 148 P.3d 990 (explaining that denial of a motion based on "lack of subject matter jurisdiction[] . . . presents a question of law, which we ...


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