District Court, Salt Lake Department The Honorable Paul B.
Parker No. 061906774
Elizabeth Hunt, Attorney for Appellant.
D. Reyes, Laura B. Dupaix, and Andrew F. Peterson, Attorneys
David N. Mortensen authored this Opinion, in which Judges
Gregory K. Orme and Michele M. Christiansen concurred.
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
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.
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
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
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.
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."
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."
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.
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. Finally, "[h]aving determined that
[it] [did] not have jurisdiction, " the district court
denied Defendant's request for discovery.
Defendant now appeals the denial of his motions.
AND STANDARDS OF REVIEW
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 ...