State v. Kropf

2015 UT App 223

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
ROBERT C. KROPF,
Defendant and Appellant.

Opinion
No. 20130792-CA
Filed September 3, 2015

Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 091402852

Debra M. Nelson and Christine Seaman, Attorneys
for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which
JUDGES JAMES Z. DAVIS and KATE A. TOOMEY concurred.

ROTH, Judge:

¶1 Robert C. Kropf appeals from the district court’s
imposition of a permanent criminal stalking injunction. We
affirm.

BACKGROUND

¶2 In September 2010, Kropf pleaded guilty to two third
degree felonies: stalking and failure to respond to an officer’s
signal to stop. In exchange for his pleas, the State agreed to
recommend that Kropf’s prison sentences run concurrently with
each other and with other sentences Kropf was then serving. At
 State v. Kropf

the combined plea and sentencing hearing, the district court
advised Kropf that two zero-to-five-year prison sentences and
two $5,000 fines constituted ‚the maximum penalties‛ for his
offenses. The court then inquired about whether the parties had
‚anything else to talk about‛ before sentencing. The parties
affirmatively indicated that there was nothing further to discuss.
Accordingly, the district court accepted the sentencing
recommendation and ordered Kropf to serve two concurrent
sentences of zero-to-five years at the Utah State Prison. Kropf
was released on parole on or about April 30, 2013.

¶3 In early April 2013, shortly before Kropf’s release, the
person he had been stalking (the Petitioner) asked the district
court to impose a permanent criminal stalking injunction against
Kropf. The Petitioner asserted that Utah Code section 76-5-106.5
(the stalking statute) ‚provides for permanent criminal stalking
injunctions for victims of the crime of stalking‛ to be
automatically imposed upon conviction. See Utah Code Ann.
§ 76-5-106.5(9)(b) (LexisNexis 2008) (providing that after a
conviction of stalking, ‚*a+ permanent criminal stalking
injunction shall be issued by the court without a hearing unless
the defendant requests a hearing at the time of the conviction‛). 1
Recognizing that after entry of sentence and final judgment the
district court no longer had jurisdiction over Kropf, the
Petitioner contended the failure to enter the injunction at the
time of sentencing was an oversight amounting to clerical error
under rule 30 of the Utah Rules of Criminal Procedure. Thus,
Petitioner asserted, the court could correct that error despite the
termination of its jurisdiction. Alternatively, the Petitioner
contended that the failure to enter the injunction either resulted

1. Because there have been substantive amendments to the
stalking statute, we cite the 2008 version of the pertinent statute,
which was the version in effect at the time of Kropf’s offenses.
Otherwise, unless noted, we cite to the current version of
pertinent statutes.

20130792-CA 2 2015 UT App 223
 State v. Kropf

in Kropf receiving an illegal sentence, which the court had the
authority to correct under rule 22 of the Utah Rules of Criminal
Procedure, or amounted to inadvertent error subject to
correction under rule 60(b)(6) of the Utah Rules of Civil
Procedure. The district court scheduled a hearing on the
Petitioner’s motion.

¶4 The day before the hearing, Kropf filed an objection to the
entry of the injunction on the basis that the district court lacked
jurisdiction to reopen the case after sentencing and, even if the
court did have jurisdiction to enter the injunction, doing so
would violate his double jeopardy and due process rights. The
judge had not seen the objection beforehand, but once it was
brought to the court’s attention at the hearing, the judge
indicated that he would be willing to grant a continuance to
allow the State or the Petitioner’s attorney2 an opportunity to
respond. After both Kropf and the Petitioner informed the court

2. Although the State was represented at the hearing, only the
Petitioner, through her attorney, addressed the court. In a
footnote in his brief on appeal, Kropf asserts that the Petitioner
lacked standing to move for an injunction because she was not a
party to the criminal case. In the district court, however, Kropf
only challenged the Petitioner’s standing to assert rule 60(b) of
the Utah Rules of Civil Procedure as a basis for reopening the
sentencing. Thus, to the extent that Kropf is raising a standing
argument about the Petitioner’s ability to seek an injunction on
appeal, Kropf failed to preserve this issue or to identify any
exceptions to the preservation rule. See State v. Garner, 2008 UT
App 32, ¶¶ 11, 13, 177 P.3d 637 (explaining that ‚*t+o preserve an
issue for appeal, a defendant must enter an objection on the
record that is both timely and specific‛ and if the claim is not
preserved in the district court, then it ‚may not be raised on
appeal‛ unless raised under certain exceptions (citations and
internal quotation marks omitted)). We therefore do not address
standing.

20130792-CA 3 2015 UT App 223
 State v. Kropf

of their desire to proceed, Kropf argued that the court lacked
authority to enter the injunction because its jurisdiction had
ended on entry of the sentence and neither rule 30 nor rule 22 of
the Utah Rules of Criminal Procedure cured that problem. He
contended that although rule 30 allows the court to correct a
clerical error, no clerical error occurred in his case because the
‚court does not have to impose a stalking injunction‛ and the
court’s failure to impose one at sentencing therefore amounted
to an exercise of its judicial discretion. Kropf conceded that rule
22 authorizes a court to correct an illegal sentence, but he argued
that because imposition of an injunction was discretionary, there
was nothing ‚patently or manifestly illegal about the sentence‛
imposed by the court. Alternatively, Kropf asserted that adding
additional terms to his sentence more than two-and-a-half years
after he entered his guilty pleas violated his constitutional
protection against double jeopardy. The court determined that
because the plain language of the stalking statute requires
imposition of a permanent criminal stalking injunction once a
defendant is convicted of stalking and an injunction had not
been imposed as a part of sentencing, the sentencing court must
have ‚simply overlooked‛ that requirement. That error, the
court concluded, ‚qualifie*d+ under the rubric of clerical error‛
pursuant to rule 30 and was therefore subject to correction. The
court also agreed with the State that rule 22(e) of the Utah Rules
of Criminal Procedure provided ‚a basis to modify the sentence‛
because the injunction ‚absolutely was required to have been
entered‛ as a term of the sentence. The court did not rule on
Kropf’s double jeopardy argument but implicitly rejected it by
deciding the substantive issue under rule 30 and rule 22.

¶5 Kropf then asked the court to schedule an evidentiary
hearing, which he argued he was entitled to under the stalking
statute, focusing on the substantive question of whether ‚the
injunction actually should be imposed.‛ At the Petitioner’s
suggestion, the district court asked Kropf if he was prepared to
go forward with such a hearing immediately. Kropf did not
present or proffer any evidence, and the district court denied

20130792-CA 4 2015 UT App 223
 State v. Kropf

Kropf’s request for a later evidentiary hearing. In so ruling, the
court concluded that ‚this has been a hearing‛ contemplated by
the stalking statute. The court then imposed the stalking
injunction. The court issued the injunction on a standard form
and checked the box indicating that there was ‚good cause . . . to
issue a permanent criminal stalking injunction, pursuant to
Section 76-5-106.5.‛

¶6 Following the hearing, the court issued its written order.
The court stated,

The non-issuance of a permanent criminal stalking
injunction was a mistake resulting from an
oversight by the Court, and was not the result of
judicial reasoning. The parties did not bring [the
permanent criminal stalking injunction statute] to
the attention of the Court and the Court failed to
note that statute, but that statute required the entry
of a permanent criminal stalking injunction in this
case.

‚Because the non-issuance of the permanent criminal stalking
injunction was an oversight rather than a judicial decision to not
comply with the statute,‛ the district court concluded that it
‚retain*ed+ jurisdiction to correct that oversight pursuant to Utah
R. Crim. P. 30(b).‛ The court also reiterated its conclusion that
Kropf ‚had the opportunity to be heard‛ and was ‚not entitle*d+
. . . to an evidentiary hearing to determine whether the entry of a
permanent criminal stalking injunction [was] unnecessary or
unduly burdensome.‛ The court did not include its rule 22
ruling in the written order. Kropf appeals.

ISSUES AND STANDARDS OF REVIEW

¶7 Kropf argues that the district court lacked jurisdiction to
reopen his case to impose the injunction. Procedural questions
‚present questions of law that we review for correctness without

20130792-CA 5 2015 UT App 223
 State v. Kropf

deference to the lower court’s ruling.‛ State v. Candedo, 2010 UT
32, ¶ 7, 232 P.3d 1008. Resolution of the jurisdiction question in
this case depends also upon the propriety of the district court’s
interpretation of the stalking statute. We review the district
court’s interpretation of a statute for correctness. See State v.
Johnson, 2009 UT App 382, ¶ 16, 224 P.3d 720.

¶8 Kropf also contends that in imposing the injunction, the
district court deprived him of certain constitutional rights. Kropf
claims that the constitutional protection against double jeopardy
precluded the district court from ‚imposing the permanent
criminal stalking injunction after judgment had already been
imposed and Kropf had gained a legitimate interest in its
finality.‛ He also argues that the district court violated his due
process rights because he ‚was never given notice‛ that an
injunction could be part of his criminal sentence and the
injunction was entered without an evidentiary hearing.
‚Whether the entry of the district court’s amended order . . .
violates protections afforded by the Double Jeopardy Clause or
the Due Process Clause presents constitutional issues that are
questions of law that *appellate courts+ review for correctness.‛
State v. Rodrigues, 2009 UT 62, ¶ 12, 218 P.3d 610.

ANALYSIS

I. Jurisdiction to Impose the Permanent Criminal Stalking
Injunction

¶9 Kropf first contends that the district court lacked
jurisdiction to reopen his sentence and impose the injunction.
Kropf’s opening argument is rooted in an analysis of rule 30(b)
of the Utah Rules of Criminal Procedure, which was the basis of
the court’s written order. But in its responsive brief, the State
contends that the district court did have jurisdiction for
affirmance on the basis not only of rule 30 but also rule 22. The
State points out that in its oral ruling, the district court
concluded that it had jurisdiction to impose the injunction

20130792-CA 6 2015 UT App 223
 State v. Kropf

pursuant to both rule 30(b) and rule 22(e) of the Utah Rules of
Criminal Procedure. While the district court’s written order does
not cite rule 22 as a basis for its decision,3 an appellate court may
affirm on any basis apparent in the record. Bailey v. Bayles, 2002
UT 58, ¶ 13, 52 P.3d 1158. We conclude that rule 22 best fits the
circumstances here. Kropf had the opportunity to address rule
22 below and on appeal after the State raised it, and the core
contention of Kropf’s rule 30(b) argument—that the stalking
statute makes imposition of a permanent criminal stalking
injunction discretionary—is the central component of the rule 22
analysis as well.4

¶10 Ordinarily, the district court’s jurisdiction over a criminal
defendant ends upon imposition of a valid sentence and entry of
final judgment. State v. Rodrigues, 2009 UT 62, ¶ 13, 218 P.3d 610.
But ‚*u+nder rule 22(e) [of the Utah Rules of Criminal
Procedure,] a court ‘may correct an illegal sentence, or a sentence
imposed in an illegal manner, at any time.’‛ State v. Candedo,
2010 UT 32, ¶ 9, 232 P.3d 1008 (quoting Utah R. Crim. P. 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.

3. The court instructed the State to include rule 22(e) as a basis
for its ruling in the written order, and it is not apparent why
there was no reference to that rule in the final order.

4. Because our decision under rule 22 is dispositive, we do not
reach Kropf’s other arguments that the error was not subject to
correction under either rule 30 of the Utah Rules of Criminal
Procedure or rule 60(b) of the Utah Rules of Civil Procedure.

20130792-CA 7 2015 UT App 223
 State v. Kropf

State v. Yazzie, 2009 UT 14, ¶ 13, 203 P.3d 984 (alteration in
original) (emphasis added) (citation and internal quotation
marks omitted); see also State v. Schmidt, 2015 UT App 96, ¶ 10,
348 P.3d 1206.

¶11 In this case, whether the district court’s decision to enter
the injunction was the correction of an illegal sentence depends
upon the meaning of the portion of the stalking statute
addressing permanent criminal stalking injunctions. If the
statute required an injunction to be imposed, then the sentence
omitted a mandatory term and was illegal. See Yazzie, 2009 UT
14, ¶ 13. When interpreting a statute, ‚our primary goal is to
evince the true intent and purpose of the *Utah+ Legislature.‛
Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d
863 (citation and internal quotation marks omitted); accord State
v. Harker, 2010 UT 56, ¶ 12, 240 P.3d 780. ‚A fundamental rule of
statutory construction is that statutes are to be construed
according to their plain language.‛ O'Keefe v. Utah State Ret. Bd.,
956 P.2d 279, 281 (Utah 1998) (citation omitted); see also Harker,
2010 UT 56, ¶ 12 (explaining that courts are to ‚presume that the
legislature used each word advisedly and read each term
according to its ordinary and accepted meaning‛) (citation and
internal quotation marks omitted). Thus, ‚*t+he best evidence of
the legislature’s intent is the plain language of the statute itself.‛
Marion Energy, Inc., 2011 UT 50, ¶ 14 (citation and internal
quotation marks omitted). ‚Only if the language of a statute is
ambiguous do we resort to other modes of construction.‛
O’Keefe, 956 P.2d at 281. Statutory language is ambiguous when
‚its terms remain susceptible to two or more reasonable
interpretations after we have conducted a plain language
analysis.‛ Marion Energy, Inc., 2011 UT 50, ¶ 15 (citation
omitted). Finally, we ‚read the plain language of *a+ statute as a
whole and interpret its provisions in harmony with other
statutes in the same chapter and related chapters.‛ Harker, 2010
UT 56, ¶ 12 (alteration in original) (citation and internal
quotation marks omitted).

20130792-CA 8 2015 UT App 223
 State v. Kropf

¶12 The stalking statute provides in relevant part,

(9)(a) A conviction for stalking . . . serves as an
application for a permanent criminal stalking
injunction limiting the contact between the
defendant and the victim.
(b) A permanent criminal stalking injunction shall
be issued by the court without a hearing unless the
defendant requests a hearing at the time of the
conviction. The court shall give the defendant
notice of the right to request a hearing.
(c) If the defendant requests a hearing under
Subsection (9)(b), it shall be held at the time of the
conviction unless the victim requests otherwise, or
for good cause.
(d) If the conviction was entered in a justice court, a
certified copy of the judgment and conviction . . .
must be filed by the victim in the district court as
an application and request for a hearing for a
permanent criminal stalking injunction.

Utah Code Ann. § 76-5-106.5(9) (LexisNexis 2008). The parties
present two competing interpretations of subsection (9)(b). Kropf
argues that the word ‚shall‛ in the provision, ‚*a+ permanent
criminal stalking injunction shall be issued by the court without a
hearing unless the defendant requests a hearing,‛ does not
amount to a mandate to issue the injunction but is rather a
constraint on the process for imposing an injunction. See id.
(emphasis added). Thus, according to Kropf, only if the
defendant does not request a hearing must the injunction issue;
but if the defendant requests a hearing, the court has discretion
to issue the injunction, or not, based on what the parties present.
In other words, under Kropf’s interpretation, the district court is
required to issue a stalking injunction only if the defendant does
not request a hearing, but if a hearing is requested, only the
hearing is mandatory, not the injunction. The State, on the other
hand, argues that the provision should be interpreted as if it

20130792-CA 9 2015 UT App 223
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said, ‚A permanent criminal stalking injunction shall be issued.‛
According to the State, the remainder of the sentence does not
qualify the mandatory nature of the injunction; rather, it
provides the defendant with the option to require an additional
proceeding to address only the details of the injunction’s terms.
Under this interpretation, the district court must issue a stalking
injunction whether or not the defendant requests a hearing. The
parties each contend that the plain language of the statute
supports its position.

¶13 To support his interpretation, Kropf points to the statute’s
use of the concept of an ‚‘application’‛ in subsection (9)(a),
which treats the conviction as an application for a permanent
criminal stalking injunction. Kropf argues that the word
‚application‛ ordinarily means ‚‘request,’ ‘petition,’ or ‘a form
used in making a request.’‛ (Quoting Merriam-Webster’s
Collegiate Dictionary 56 (10th ed. 2002).) Kropf thus argues that a
conviction merely serves as a request that the court consider an
injunction. He asserts that the statute’s mandatory hearing
requirement (once invoked) lends further support to his reading
of the statute as discretionary; otherwise, what need would there
be for a hearing at all if the outcome—the issuance of the
injunction—were foreordained? Rather, by providing for a
hearing, Kropf contends, the Utah Legislature must have
intended that a stalking injunction be imposed only if the results
of the hearing supported the injunction’s entry. He thus argues
that the stalking statute’s plain language ‚does not mandate the
automatic imposition of an injunction but instead . . . only serves
as an application initiating the process‛ of deciding whether or
not to impose one.

¶14 The State counters that the stalking conviction’s role as an
‚application‛ creates no more than a mechanism meant to
trigger permanent criminal stalking injunction proceedings.
Once the conviction occurs and the ‚application‛ is made, the
court must enter the injunction in accordance with the statute’s
plain language, ‚[a] permanent criminal stalking injunction shall

20130792-CA 10 2015 UT App 223
 State v. Kropf

be issued . . . .‛ See Utah Code Ann. § 76-5-106.5(9)(a)–(b). The
issuance, however, must be accompanied by limited procedural
protections: the defendant must be notified of his or her right to
a hearing, and if requested, a hearing must be held. Only at the
point when the defendant requests a hearing does the statute
provide the district court with a modicum of discretion by
itemizing the sort of relief that ‚*a+ permanent criminal stalking
injunction may grant.‛ See id. § 76-5-106.5(10) (emphasis added)
(including, among other things, that the defendant stay away
from the victim and his or her family as well as the victim’s
residence, property, school, and workplace and that the
defendant refrain from communicating with the victim).
According to the State, then, the court has no discretion about
whether to issue a permanent injunction; rather, it has discretion
only with regard to certain of its terms.

¶15 We agree with the State. Although the ‚application‛
language Kropf cites could be read in support of his
interpretation, the statutory language, when read as a whole,
unambiguously mandates issuance of a permanent criminal
stalking injunction once a defendant is convicted of stalking. See
Harker, 2010 UT 56, ¶ 12 (instructing courts to ‚interpret
[statutory] provisions in harmony with other statutes in the
same chapter and related chapters‛) (citation and internal
quotation marks omitted); see also Marion Energy, Inc., 2011 UT
50, ¶ 15 (describing a statute as ambiguous when ‚its terms
remain susceptible to two or more reasonable interpretations
after we have conducted a plain language analysis‛). As the
State points out, the legislature provided that ‚[a] . . . stalking
injunction shall be issued by the court‛ in response to the
‚application‛ created by a criminal stalking conviction. See Utah
Code Ann. § 76-5-106.5(9)(b). The use of ‚shall‛ ‚is usually
presumed mandatory and has been interpreted as such
previously in this and other jurisdictions.‛ Board of Educ. of
Granite Sch. Dist. v. Salt Lake County, 659 P.2d 1030, 1035 (Utah
1983); accord Aaron & Morey Bonds v. Third Dist. Court, 2007 UT
24, ¶ 14 n.2, 156 P.3d 801. The only qualifier on ‚shall‛ is the

20130792-CA 11 2015 UT App 223
 State v. Kropf

provision that the ‚injunction shall be issued by the court without
a hearing unless the defendant requests a hearing.‛ Utah Code Ann.
§ 76-5-106.5(9)(b) (emphasis added). The emphasized language,
however, does not mean that the court has discretion to
determine whether to impose the permanent criminal stalking
injunction upon conviction. Rather, it means simply that if the
defendant requests a hearing, a hearing must be held before the
injunction issues.

¶16 The purpose for requiring a hearing if the defendant
requests one is to give the defendant an opportunity to address
the particular terms of the mandatory injunction. The limited
purpose of the hearing is apparent from reading the statute with
the language of other provisions in the stalking statute. See
Harker, 2010 UT 56, ¶ 12 (requiring that statutes be read
‚harmony with other statutes in the same chapter and related
chapters‛) (citation and internal quotation marks omitted). First,
a permanent criminal stalking injunction serves only to ‚limit*+
the contact between the defendant and the victim.‛ Utah Code
Ann. § 76-5-106.5(9)(a). It does not necessarily preclude all
contact under all circumstances. Indeed, another provision gives
the court options about the terms of the injunction, stating that
‚*a+ permanent criminal stalking injunction may grant the
following relief‛ and then setting out a list of conditions that
may be included. Id. § 76-5-106.5(10) (emphasis added). The
ordinary use of ‚may‛ is permissive and thus implicates judicial
discretion. Purcell v. Wilkins, 195 P. 547, 548 (Utah 1921); see also
Grant v. Utah State Land Bd., 485 P.2d 1035, 1036–37 (Utah 1971).

¶17 Included in the list of conditions that ‚may‛ be part of the
injunction are orders prohibiting contact between the defendant
and the victim at the victim’s home, school, or place of
employment; requiring the defendant to stay away from
specified people or places ‚frequented regularly by the victim‛;
and prohibiting direct or indirect attempts to communicate by
various means with the victim or others associated with the
victim. Utah Code Ann. § 76-5-106.5(10). But, for example, if the

20130792-CA 12 2015 UT App 223
 State v. Kropf

defendant and the victim work in proximity to each other or
have children together, some limited flexibility in the
injunction’s terms may be desirable. Thus, it stands to reason
that the district court would be provided with some discretion
about the scope of a particular injunction. Finally, the
juxtaposition of ‚shall‛ in reference to the issuance of an
injunction and the holding of a hearing with ‚may‛ in reference
to the scope of the injunction suggests that each term is intended
to have its ordinary meaning. By using the mandatory ‚shall‛ in
one provision and the permissive ‚may‛ in another, the
legislature appears to have deliberately selected each term to
delineate where the district court has discretion and where the
court has none. See Harker, 2010 UT 56, ¶ 12 (explaining that
courts are to ‚presume that the legislature used each word
advisedly and read each term according to its ordinary and
accepted meaning‛) (citation and internal quotation marks
omitted). Thus, the court must enter a permanent criminal
stalking injunction but has some discretion as to its terms.

¶18 The ‚application‛ concept lends further support to this
interpretation. By having the conviction serve as an automatic
application for an injunction rather than simply imposing the
injunction automatically on conviction, the statute provides the
defendant, the victim, and the district court an opportunity to
address the details of an injunction’s terms before the injunction
is imposed, while still ensuring that a permanent criminal
stalking injunction in some form will issue as a consequence of
the conviction. And by containing the injunction requirement
within the criminal stalking statute, the legislature ensures that
victims are provided with a remedy within the criminal process
itself. There is good reason for this approach. A mandatory
permanent criminal stalking injunction is an efficient and
effective remedy against the threat inherent in the crime of
stalking, a threat that is unlikely to have disappeared with the
termination of a prison sentence or supervision. The nature of
the crime often involves an obsessive and threatening focus that
can leave a victim with the kind of long-term anxiety that only a

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 State v. Kropf

permanent legal constraint on the stalker can begin to address.
Moreover, a criminal stalking injunction offers a permanent
remedy that is unavailable through the more costly, complicated,
and discretionary process of a civil stalking injunction case,
which must be pursued by the victim.5

¶19 Our interpretation of ‚shall‛ as mandatory finds
additional support in the stalking statute’s subsequent history.
See Brock v. Pierce County, 476 U.S. 253, 263 (1986) (explaining
that when the legislative history is ‚consistent with the statutory
language and other legislative history, [it] provide[s] evidence of
*the legislature’s+ intent‛ (citation omitted)). In 2012, the

5. To obtain a civil stalking injunction, a victim must ‚file a
verified written petition for a civil stalking injunction against the
alleged stalker with the district court.‛ Utah Code Ann. § 77-3a-
101(2) (LexisNexis 2012). ‚If the court determines that there is
reason to believe that an offense of stalking has occurred, an ex
parte civil stalking injunction may be issued . . . .‛ Id. § 77-3a-
101(5)(a) (emphasis added). Once an ex parte civil injunction
issues, the respondent has ten days to request an evidentiary
hearing, which would require the victim to ‚show by a
preponderance of the evidence that stalking . . . has occurred.‛
Id. § 77-3a-101(6). At the hearing, the ‚court may modify, revoke,
or continue the injunction.‛ Id. § 77-3a-101(7). Should the
respondent fail to request a hearing or request a hearing outside
of the ten-day period, the ‚ex parte civil stalking injunction
automatically becomes a civil stalking injunction without further
notice to the respondent and expires three years from the date of
service.‛ Id. § 77-3a-101(9). Until it expires, the terms of a civil
stalking injunction are subject to modification or dissolution if
the petitioner requests it or if the respondent ‚show*s+ good
cause.‛ Id. § 77-3a-101(10), (13). In contrast, ‚*a+ permanent
criminal stalking injunction may be dissolved or dismissed only
upon application of the victim.‛ Id. § 76-5-106.5(11) (LexisNexis
2008) (current version at id. § 76-5-106.5(12) (2012)).

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 State v. Kropf

legislature amended the language in subsection (9)(b) to read,
‚[a] permanent criminal stalking injunction shall be issued by
the court at the time of the conviction. The court shall give the
defendant notice of the right to request a hearing.‛ Utah Code
Ann. § 76-5-106.5(9)(b) (LexisNexis 2012). By grammatically
disentangling the requirement to impose the injunction from the
defendant’s right to a hearing, the legislature has more plainly
expressed its intent that the injunction be a mandatory
consequence of a stalking conviction. And the 2012 amendment’s
separation of the two requirements—the injunction and a
hearing on the defendant’s request—was meant to be a
clarification rather than a substantive change from the prior
statute. This is apparent from the legislature’s description of this
change, along with all but one other modification in the 2012
amendments, as simply ‚technical corrections.‛ Clarification of
Stalking Injunctions and Protective Orders, ch. 383, 2012 Utah
Laws 2100 (explaining that ‚*t+his bill allows a court to consider
the defendant’s parental rights when issuing a stalking
injunction; and makes technical corrections‛). An amendment is
technical or clarifying ‚when it corrects a discrepancy or merely
amplif[ies] . . . how the law should have been understood prior
to *the amendment+.‛ Salt Lake County v. Holliday Water Co., 2010
UT 45, ¶ 43, 234 P.3d 1105 (alterations and omission in original)
(citation and internal quotation marks omitted) (addressing
what a clarifying amendment is in the context of deciding
whether the amendment was retroactive). Thus, a clarifying
amendment generally ‚alters or explains language already
present in the original statute‛ rather than ‚add*ing] new
language or subsections that did not exist in any form before the
amendments were made.‛ Gressman v. State, 2013 UT 63, ¶ 17,
323 P.3d 998 (citation and internal quotation marks omitted).
Here, because the ‚technical corrections‛ to subsection (9)(b) did
not modify its meaning but instead simply made that meaning
more clear, the plain language of the 2012 version also supports
our reading of the 2008 version.

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 State v. Kropf

¶20 Kropf, however, points to language in other portions of
the amended stalking statute that he argues support his
interpretation that a permanent criminal stalking injunction is
discretionary. For example, Kropf cites language in subsection
(9)(d), which addresses the entry of a permanent criminal
stalking injunction after a conviction in justice court. Subsection
(9)(d) reads, ‚[i]f the conviction was entered in a justice court, a
certified copy of the judgment and conviction . . . shall be filed
by the victim in the district court as an application and request
for a hearing for a permanent criminal stalking injunction.‛ Utah
Code Ann. § 76-5-106.5(9)(d) (LexisNexis 2012). According to
Kropf, this language shows that ‚a conviction does not
automatically trigger the issuance of a permanent stalking
injunction‛ but rather permits the victim to ask the court to grant
such relief. However, for the reasons discussed above, we
believe that the use of ‚application‛ in subsection (9)(d), as it
does in subsection (9)(a), refers only to the initiation of the
permanent criminal stalking injunction process, the result of
which must be the imposition of the injunction. Moreover, the
fact that when the conviction arises in justice court, the victim
must take the additional step of actually filing an application is
merely a reflection of the limited authority of the justice court,
which does not have the power to order a permanent stalking
injunction, thus requiring the filing of an actual application in
the district court, which does.6

6. Curiously, there does not appear to be any criminal stalking
crime that actually falls within the jurisdiction of the justice
court, making this provision essentially dormant. See Utah Code
Ann. § 76-5-106.5(6)–(8) (LexisNexis 2012) (defining stalking as a
class A misdemeanor or a second or third degree felony); id.
§ 78A-7-106(1) (‚Justice courts have jurisdiction over class B and
C misdemeanors, violation of ordinances, and infractions
committed within their territorial jurisdiction by a person 18
years of age or older.‛).

20130792-CA 16 2015 UT App 223
 State v. Kropf

¶21 Kropf also contends that interpreting the stalking
injunction as mandatory would render the provisions of the
statute that address the degree of conviction ‚superfluous and
nonsensical.‛ For example, subsection (7) defines third degree
felony stalking to include both a conviction after the defendant
has been ‚previously convicted of an offense of stalking‛ and a
conviction after the defendant has ‚violated a permanent
criminal stalking injunction.‛ Utah Code Ann. § 76-5-106.5(7)(a),
(7)(d). According to Kropf, there is no reason for the legislature
to have provided two paths to a conviction for third degree
felony stalking if the injunction is mandatory because ‚a
defendant previously convicted of an offense of stalking would
necessarily have violated a permanent criminal stalking
injunction.‛ (Citation and internal quotation marks omitted.)
Kropf’s argument, however, assumes that the second offense of
stalking must have targeted the same victim. If the defendant is
charged with stalking a different victim, there would be no
violation of any permanent criminal stalking injunction that
would have issued in a prior case. And although a defendant
who is again charged with stalking the same victim may be
convicted of a third degree felony simply for violating the
stalking injunction that was imposed as a mandatory
consequence of the prior conviction, it is possible that no such
injunction actually issued in a particular case, as this case
illustrates—Kropf has twice been convicted of stalking the
victim here with nary a criminal stalking injunction to show for
it. Further, making a permanent injunction mandatory on
conviction provides an important protection for the victim of
such crimes: proving violation of a permanent injunction from a
prior crime against the same victim is ordinarily much easier
than would be the case were the State required to establish all
the elements of stalking anew. And that ease of proof provides
an added incentive for the stalker to leave the victim alone, thus
enhancing the deterrent effect of the injunction and its value to

20130792-CA 17 2015 UT App 223
 State v. Kropf

the victim. Accordingly, we conclude that these provisions do
not support Kropf’s interpretation of the injunction component
as discretionary.7

¶22 Finally, Kropf cites subsection (11), which addresses
parent-time and custody after an injunction is imposed. That
provision reads,

If the victim and defendant have minor children
together, the court may consider provisions
regarding the defendant’s exercise of custody and
parent-time rights while ensuring the safety of the
victim and any minor children. If the court issues a
permanent criminal stalking injunction, but
declines to address custody and parent-time issues,
a copy of the stalking injunction shall be filed in
any action in which custody and parent-time issues
are being considered and that court may modify
the injunction to balance the parties’ custody and
parent-time rights.

Utah Code Ann. § 76-5-106.5(11) (LexisNexis 2012) (emphasis
added). Kropf contends that in choosing the word ‚*i+f‛ to begin
the second sentence, rather than ‚when‛ (or some other phrase
that suggests that imposition of the injunction is mandatory), the
legislature must not have intended for ‚all convictions *to+
warrant the imposition of a permanent injunction.‛ Kropf fails to
acknowledge, however, that this language was added in 2012
and is not contained within the criminal stalking statute that is

7. Kropf makes similar arguments regarding the variations of
second degree felony stalking described in subsection (8). See
Utah Code Ann. § 76-5-106.5(8) (LexisNexis 2012). For the
reasons discussed with respect to the third degree felony
variations, the provisions relating to second degree felony
stalking also do not support Kropf’s interpretation.

20130792-CA 18 2015 UT App 223
 State v. Kropf

applicable to Kropf, the 2008 version. But, to the extent that the
language may inform the meaning of the 2008 version, it is not
as favorable to his position as Kropf contends. In context, it is
clear that the legislature used ‚if‛ to refer to the possibility that
the mandatory injunction did not address parent-time or
custody, not the possibility that a criminal stalking injunction
had not issued at all. Although the legislature might have said
‚when the court issues a permanent criminal stalking injunction
that declines to address custody and parent-time issues‛ or ‚if
the court-issued permanent criminal stalking injunction fails to
address custody and parent-time issues‛ to more precisely
describe the circumstance, the language it did use does not
justify an interpretation that renders discretionary the
requirement, stated a few sentences earlier in the same statute,
that ‚*a+ permanent criminal stalking injunction shall be issued
by the court at the time of the conviction.‛ See id. § 76-5-
106.5(9)(b) (emphasis added); see also State v. Harker, 2010 UT 56,
¶ 12, 240 P.3d 780 (explaining that statutory provisions are to be
read in harmony with each other). Moreover, because the
language in subsection (11) does not call into doubt that the
injunction requirement is mandatory in the 2012 version of the
stalking statute, we cannot infer that it implies that the
injunction requirement was discretionary in the 2008 version,
which does not contain such language.8

8. Kropf makes two additional arguments against imposing an
injunction. First, Kropf argues that there is one additional fact
that supports his interpretation of the injunction requirement as
discretionary: issuance of the permanent criminal stalking
injunction on the standard form, which requires a finding of
good cause. Kropf, however, made this argument for the first
time in his reply brief, and that is grounds in itself for not
considering the argument. See State v. Chavez-Espinoza, 2008 UT
App 191, ¶ 10 n.2, 186 P.3d 1023 (explaining that ‚we will not
review an issue first raised in a reply memorandum‛ because ‚‘a
reply memorandum . . . shall be limited to rebuttal of matters
(continued<)

20130792-CA 19 2015 UT App 223
 State v. Kropf

¶23 In sum, the plain language of the stalking statute
demonstrates that imposition of a permanent criminal stalking
injunction is mandatory upon conviction for stalking. Because of
the mandatory nature of the injunction, we conclude that the
district court’s failure to enter the injunction amounted to an
omission of ‚a term required to be imposed by statute‛ as a
consequence of Kropf’s stalking conviction. See State v. Yazzie,
2009 UT 14, ¶ 13, 203 P.3d 984 (citation omitted). Accordingly,
the district court correctly concluded, once the error was brought
to its attention, that there was a basis under rule 22 to correct the
judgment to include the injunction. See Utah R. Crim. P. 22(e)
(‚The court may correct an illegal sentence, or a sentence
imposed in an illegal manner, at any time.‛).

¶24 Having concluded that rule 22 authorized the district
court to enter a permanent criminal stalking injunction, we now
consider whether double jeopardy or due process preclude the
injunction.

(