State v. Apadaca

2015 UT App 212

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
JOSEPH LEE APADACA,
Defendant and Appellant.

Memorandum Decision
No. 20140008-CA
Filed August 20, 2015

Second District Court, Farmington Department
The Honorable Michael G. Allphin
The Honorable John R. Morris1
No. 071701297

Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee

JUDGE KATE A. TOOMEY authored this Memorandum Decision, in
which JUDGE STEPHEN L. ROTH concurred. JUDGE JAMES Z. DAVIS
concurred in the result.

TOOMEY, Judge:

¶1 Joseph Lee Apadaca raises two issues on appeal. First, he
appeals from his sentence on the ground that he was denied the
right to allocute at his sentencing hearing. Because we conclude
that his sentence was not imposed in an illegal manner, we lack
jurisdiction to consider his allocution claims and dismiss them.
Second, Apadaca challenges the trial court’s denial of his motion

1. Although Judge Allphin accepted Apadaca’s guilty pleas,
Judge Morris sentenced him. Judge Allphin later dismissed one
guilty plea and amended the sentencing order.
 State v. Apadaca

to reinstate the time to appeal the court’s dismissal of his
robbery conviction and sentence. On this issue, we affirm.

¶2 Apadaca was charged with two counts of aggravated
robbery, first-degree felonies, and possession of a firearm by a
restricted person, a third-degree felony, for committing two
robberies—the Kim’s Fashions robbery and the Baskin Robbins
robbery. During his jury trial, defense counsel moved for a
mistrial based on allegations of prosecutorial misconduct.
Further discussions revealed the prosecutor met with the
witnesses of the Kim’s Fashions robbery in preparation for trial,
and instead of using an array of photographs or a line-up, the
prosecutor showed one of the witnesses a single photograph of
Apadaca. Then, when the witness testified at trial that he had
never seen Apadaca’s photograph, the prosecutor made no
attempt to correct the record. The prosecutor also showed
Apadaca’s photograph to a Baskin Robbins robbery eyewitness,
but only after she identified him in a pretrial hearing. See
generally Larsen v. Davis County, 2014 UT App 74, ¶¶ 2–3, 324
P.3d 641 (providing further background regarding the
prosecutor’s misconduct in Apadaca’s case). Because the court
concluded the jury had been ‚sufficiently tainted‛ to make it
‚impossible . . . to go forward with this particular jury,‛ it
granted Apadaca’s mistrial motion.

¶3 Defense counsel then proposed a plea deal under which
Apadaca would plead guilty to two second-degree-felony
robbery charges in exchange for the State’s dismissal of the
remaining felony possession of a firearm charge and two other
unrelated cases pending against him. The State accepted this
deal, agreed to recommend concurrent sentencing, and agreed
that Apadaca would have an hour-long contact visit with his
family. In his plea affidavit, Apadaca waived several
constitutional rights, including his right to appeal his conviction.
He also acknowledged he was subject to the maximum potential
penalty of fifteen years for each robbery and he conceded that if

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 State v. Apadaca

he wished to withdraw his guilty pleas, he had to do so before
sentencing.

¶4 A new judge presided at the sentencing hearing. He
stated he had been ‚brought up to speed‛ on Apadaca’s case.
Then he asked defense counsel, ‚Anything else I need to know?‛
Counsel responded, ‚No your honor, just to reiterate for Mr.
Apadaca’s satisfaction that the two matters would be run
concurrent*ly+.‛ The court sentenced Apadaca to two concurrent
one-to-fifteen year prison terms and recommended that these
terms also run concurrently with his out-of-state prison
sentence.2 Twenty-two days after sentencing, Apadaca moved to
withdraw his guilty plea, but the court denied the motion as
untimely. See Utah Code Ann. § 77-13-6 (LexisNexis 2012).

¶5 Nearly three months after sentencing, the State moved the
court to dismiss Apadaca’s conviction for the Kim’s Fashions
robbery and ‚then correct the record of sentence to reflect
imposition of one, 1-15 year sentence.‛ In the motion, the State
noted that the Kim’s Fashions robbery eyewitnesses’ testimonies
were ‚so tainted by the actions of the prosecutor in that case that
any attempt to retry the defendant on that count would not have
been done in good-faith.‛ It also explained that the motion to
dismiss Apadaca’s plea-based conviction and sentence was an
‚act*+ in the interest of justice‛ and the State did ‚not presuppose
that the defendant entered his plea involuntarily or
unknowingly.‛ The court granted the State’s motion without
Apadaca or his counsel present, and dismissed the Kim’s
Fashions robbery conviction. Consistent with this, the court
made Apadaca’s sentence reflect only the sentence for the Baskin
Robbins robbery—his only remaining conviction.

2. Apadaca was (and is still) serving a life sentence in Idaho for
multiple crimes including robbery and kidnapping.

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 State v. Apadaca

¶6 In response to the court’s order, Apadaca filed another
unsuccessful motion to withdraw his plea. After that, Apadaca
appealed. In a per curiam decision, this court affirmed the trial
court’s decision. See State v. Apadaca, 2011 UT App 276, ¶ 4, 261
P.3d 104 (per curiam). We explained that although Apadaca’s
appeal was timely to challenge the denial of his second motion
to withdraw his guilty plea, it was not timely to challenge his
sentence. Id. ¶ 3. Accordingly, we concluded that we lacked
jurisdiction to review ‚any issues relating to the underlying
judgment.‛ Id. ¶¶ 3–4.

¶7 Apadaca subsequently moved to reinstate the time to
appeal the court’s decision to dismiss his conviction and
sentence pursuant to Manning v. State, 2005 UT 61, 122 P.3d 628.
Specifically, he argued the trial court deprived him of his right to
appeal the court’s decision to dismiss the Kim’s Fashions
robbery and inappropriately deprived him of ‚the right to
counsel during the resentencing proceedings.‛ The trial court
denied Apadaca’s Manning motion, concluding that Apadaca
misconstrued the nature of the court’s correction. It explained
the correction ‚merely reflect*ed+ the State’s voluntary dismissal
of one of the charges‛ and did not make ‚any changes to
*Apadaca’s+ other charge, the duration of its sentence, or as to its
sentence running concurrently with the prison term that
[Apadaca] was serving in the State of Idaho.‛ The court found
that Apadaca had ‚expressly waived his right to appeal‛ when
he signed the plea affidavit. Apadaca appeals.

I. Allocution

¶8 Apadaca raises two arguments regarding his right to
allocute at the sentencing hearing. He first argues the court
erroneously deprived him of due process and the right to
allocute under rule 22(a) of the Utah Rules of Criminal
Procedure ‚by not affirmatively affording *him+ the opportunity
to make a statement, present any information in mitigation of

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 State v. Apadaca

punishment, or show cause why the prison sentence should not
be imposed.‛ Apadaca next argues that his trial counsel
performed ineffectively by ‚failing to affirmatively request that
the sentencing court allow *him+ to address the court.‛ He
contends this court retains jurisdiction to review these claims
because courts ‚‘may correct an illegal sentence, or a sentence
imposed in an illegal manner, *at+ any time.’‛ (Quoting Utah R.
Crim. P. 22(e).) The State responds that we lack jurisdiction to
analyze these issues because Apadaca did not timely appeal his
original sentence and the court did not err in not affording
Apadaca an opportunity to allocute. We agree.

¶9 Although we generally lack jurisdiction to consider
appeals that were not filed within the ‚30-day period for filing
notice of appeal in a criminal case,‛ see State v. Bowers, 2002 UT
100, ¶ 5, 57 P.3d 1065 (citation and internal quotation marks
omitted), courts ‚may correct an illegal sentence, or a sentence
imposed in an illegal manner, at any time,‛ Utah R. Crim. P.
22(e). The language of rule 22(e) allows an appellate court to
‚vacate the illegal sentence without first remanding the case to
the trial court, even if the matter was never raised before.‛ State
v. Brooks, 908 P.2d 856, 860 (Utah 1995). Moreover, our supreme
court has previously determined ‚that a sentence imposed in
violation of rule 22(a) of the Utah Rules of Criminal Procedure
may be considered a sentence imposed in an illegal manner
under rule 22(e).‛ State v. Samora, 2004 UT 79, ¶ 13, 99 P.3d 858
(internal quotation marks omitted). Thus, we consider whether
Apadaca’s right to allocute was violated for the limited purpose
of determining whether the trial court imposed his sentence in
an illegal manner.

¶10 Rule 22(a) provides, ‚Before imposing sentence*,+ the
court shall afford the defendant an opportunity to make a
statement and to present any information in mitigation of
punishment, or to show any legal cause why sentence should not
be imposed.‛ Utah R. Crim. P. 22(a). ‚‘[F]rom both the plain

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 State v. Apadaca

language of rule 22 and the approach of other jurisdictions with
similar rules, . . . the ‘‘shall afford’’ language requires trial courts
to affirmatively provide the defense an opportunity to address
the court and present reasonably reliable and relevant
information in the mitigation of a sentence.’‛ State v. Graziano,
2014 UT App 186, ¶ 4, 333 P.3d 366 (omission in original)
(quoting State v. Wanosik, 2003 UT 46, ¶ 23, 79 P.3d 937). ‚In
order for a trial court to ‘affirmatively provide’ the defense an
opportunity for allocution, the supreme court has instructed that
a ‘simple verbal invitation or question will suffice, but it is the
court which is responsible for raising the matter.’‛ Id. ¶ 5
(quoting Wanosik, 2003 UT 46, ¶ 23). ‚Violations of a defendant’s
right to allocution usually involve situations where the court has
prevented or prohibited the defendant from speaking altogether
or imposed sentence in the defendant’s absence.‛ Id.

¶11 Here, Apadaca argues the sentencing-hearing transcript
demonstrates that the trial court failed to invite or otherwise
provide him with the opportunity to address the court. At the
sentencing hearing, after the court acknowledged that it had
‚been brought up to speed,‛ the court implicitly invited the
defense to allocute by saying ‚Anything else I need to know?‛
Although the court’s invitation was not specifically directed at
Apadaca, in context, this ‚simple verbal invitation‛ clearly
afforded the defense the opportunity to present mitigating
information. See id. ¶¶ 5–6 (citation and internal quotation marks
omitted). Trial counsel subsequently responded, ‚No your
Honor, just to reiterate for Mr. Apadaca’s satisfaction that the
two matters would . . . run concurrent with each other and
concurrent with his Idaho sentence.‛ The court then asked,
‚Okay. Submit it?‛ Counsel answered, ‚Submit it, your Honor.‛
Counsel responded to the court’s invitation and, on behalf of
Apadaca, raised his concerns regarding the sentences. ‚That
[Apadaca] relied on defense counsel to speak on his behalf does
not invalidate the court’s invitation.‛ See id. Accordingly, we
conclude Apadaca was not denied his right to allocute under

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 State v. Apadaca

rule 22(a) and his sentence was therefore not imposed in an
illegal manner.

¶12 Because Apadaca did not challenge allocution in a timely
manner and his sentence was not imposed in an illegal manner,
we do not otherwise have jurisdiction to further consider his
allocution claims. In a criminal case, ‚‘it is the sentence itself
which constitutes a final judgment from which [Apadaca] has
the right to appeal.’‛ State v Vaughn, 2011 UT App 411, ¶ 10, 266
P.3d 202 (quoting Bowers, 2002 UT 100, ¶ 4). The ‚30-day period
for filing notice of appeal in a criminal case . . . is jurisdictional
and cannot be enlarged by this *c+ourt.‛ Bowers, 2002 UT 100, ¶ 5
(alteration and omission in original) (citation and internal
quotation marks omitted); see also id. (‚*F+ailure to perfect an
appeal is a jurisdictional failure requiring dismissal of the
appeal.‛ (citation and internal quotation marks omitted)).
Accordingly, ‚[t]his court has no authority to extend its
jurisdiction beyond the 30-day period for filing notice of appeal
plainly stated in the rule.‛ Id.

¶13 Apadaca did not file a notice of appeal within the thirty-
day deadline and he cannot revive an untimely appeal by raising
those challenges in unrelated post-judgment motions. Apadaca’s
sentencing hearing, in which he claims his counsel performed
ineffectively and the court deprived him of the right to allocute,
was on August 30, 2010. Although Apadaca unsuccessfully tried
to withdraw his guilty plea after sentencing, he did not appeal
his sentence within thirty days. Apadaca only attempted to
appeal his sentence on February 8, 2011—nearly six months after
the trial court sentenced him and two months after the court
dismissed one conviction and corrected the record of sentence.
Accordingly, this court lacks jurisdiction over his appeal of the
allocution issues.

¶14 In sum, because the court did not illegally impose
Apadaca’s sentence under rule 22(e) of the Utah Rules of

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 State v. Apadaca

Criminal Procedure, we lack jurisdiction to consider Apadaca’s
claims related to allocution because his appeal was filed more
than thirty days after the imposition of valid sentence. We
therefore dismiss them.

II. Manning Relief

¶15 Apadaca next argues that he is entitled to reinstatement of
the time to appeal the trial court’s order dismissing his Kim’s
Fashions robbery conviction and sentence pursuant to Manning
v. State, 2005 UT 61, 122 P.3d 628. In particular, he argues the
court erred in denying his motion to reinstate the time to appeal
because he was deprived of ‚the right to appear and present
argument‛ during the dismissal proceedings and was deprived
of the right to appeal when the court failed to advise him of his
right to appeal. The State responds that the court properly
denied Apadaca’s Manning motion because any error in the
dismissal proceedings was harmless.3 ‚We review the court’s

3. The State also argues this court lacks jurisdiction to hear this
issue by suggesting that Apadaca is attempting ‚to circumvent
the requirements of the Post-Conviction Remedies Act.‛ In
particular, the State argues that because he ‚does not argue that
a shorter sentence or probation should have been imposed on his
remaining conviction for robbery,‛ Apadaca ‚in fact seeks only
to challenge his remaining plea-based robbery conviction‛ which
needed to be challenged on direct appeal or in proper post-
conviction proceedings. We disagree.
We conclude we have jurisdiction to review Apadaca’s
motion to reinstate the time to appeal because the trial court’s
order denying the motion provided a judgment from which
Apadaca had a right to appeal. See Utah R. App. P. 3(a) (‚An
appeal may be taken from a district or juvenile court to the
appellate court with jurisdiction over the appeal from all final
orders and judgments . . . .‛). But that jurisdiction is limited to
(continued…)

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 State v. Apadaca

legal conclusion that [Apadaca] was not unconstitutionally
deprived of his right to appeal for correctness but give deference
to its underlying factual findings . . . .‛ State v. Kabor, 2013 UT
App 12, ¶ 8, 295 P.3d 193 (citing State v. Hales, 2007 UT 14, ¶ 35,
152 P.3d 321).

¶16 Reinstatement of the time to appeal under Manning ‚is
appropriate only where a defendant is ‘prevented in some
meaningful way from proceeding’ with an appeal.‛ State v.
Collins, 2014 UT 61, ¶ 42, 342 P.3d 789 (quoting Manning, 2005
UT 61, ¶ 26). To demonstrate that the court deprived him of his
right to appeal, Apadaca must show he did not waive his right
either voluntarily or by ‚fail*ing+ to file a timely notice of
appeal.‛ See Kabor, 2013 UT App 12, ¶ 11 (citing Manning, 2005
UT 61, ¶¶ 1, 35). Moreover, he must demonstrate that the court’s
error prejudiced him by showing that but for the court’s error he
would have appealed. See Collins, 2014 UT 61, ¶¶ 30, 42.

¶17 Because we conclude Apadaca waived his right to appeal
his robbery convictions, the trial court did not err in denying
Apadaca’s Manning motion. He voluntarily waived his right to
appeal the substance of his plea-based convictions when he
signed the plea affidavit and again when he failed to file a timely

(…continued)
reviewing the challenges Apadaca could have raised against the
court’s order. In the order, the court dismissed Apadaca’s
conviction and sentence regarding the Kim’s Fashions robbery
and, in doing so, clarified that the record should reflect just his
remaining conviction and sentence for the Baskin Robbins
robbery. Accordingly, in reviewing the denial of his Manning
motion, our review is limited to the court’s decision to dismiss
the Kim’s Fashions robbery conviction and sentence, and we do
not consider the underlying Kim’s Fashions or Baskin Robbins
robbery convictions or sentence.

20140008-CA 9 2015 UT App 212
 State v. Apadaca

appeal. See Kabor, 2013 UT App 12, ¶ 11. In particular, Apadaca’s
only challenges to his guilty pleas were made after sentencing
and he never properly pursued post-conviction relief. See Utah
Code Ann. § 77-13-6(2) (LexisNexis 2012) (instructing that any
challenge to a guilty plea not made before sentence is announced
is untimely, and any untimely challenge ‚shall be pursued under
Title 78B, Chapter 9, Post-Conviction Remedies Act, and Rule
65C, Utah Rules of Civil Procedure‛). Thus, because Apadaca
did not timely withdraw guilty pleas, appeal his convictions, or
pursue post-conviction remedies under the Post-Conviction
Remedies Act in a timely manner, we conclude Apadaca
voluntarily waived his right to appeal the substance of his plea-
based convictions.

¶18 Even if we had determined that Apadaca did not waive
his right to appeal, Apadaca fails to demonstrate that he would
have appealed the dismissal of the Kim’s Fashions robbery
conviction and sentence if he had been properly informed. The
trial court’s decision benefits Apadaca by removing a second-
degree felony from his record and relieves him of a one-to-
fifteen year prison sentence. Indeed, Apadaca does not actually
challenge the court’s decision to dismiss the Kim’s Fashions
conviction and sentence.4 Instead, the only harm Apadaca asserts
is the inability to argue that the same reasoning utilized to
dismiss the Kim’s Fashions robbery conviction similarly applies
to the Baskin Robbins robbery conviction. Nevertheless, he does
not point to any evidence to support this, nor does he explain

4. Apadaca does argue the court’s order dismissing the Kim’s
Fashions robbery is erroneous to the extent that it states he was
present and ‚accompanied by his attorney‛ for the proceeding.
But because Apadaca offers no legal analysis or support
demonstrating the words on the order were anything more than
a clerical error, we are not persuaded. See Utah R. App. P.
24(a)(9).

20140008-CA 10 2015 UT App 212
 State v. Apadaca

how the State’s acknowledgment that prosecutorial misconduct
tainted the Kim’s Fashions robbery eyewitnesses would
persuade the court to also dismiss the Baskin Robbins robbery.
More importantly, Apadaca’s assertion overlooks the fact that
the court’s decision did not involve the Baskin Robbins robbery
conviction. His allegation of prejudice only demonstrates that if
he had been informed of his right to appeal the court’s dismissal,
he would have tried to improperly challenge the Baskin Robbins
robbery conviction, not the court’s decision. Accordingly, the
court did not err in denying Apadaca’s Manning motion.

¶19 Furthermore, Apadaca asserts that his right to direct
appeal was barred by being deprived of the right to appear and
be represented by counsel when the trial court dismissed his
conviction and sentence. Specifically, he asserts the trial court’s
dismissal involved judicial reasoning and decision making and
suggests the court’s ‚resentencing constituted a critical stage of
the criminal proceeding‛ for which he was entitled to be present
and represented. In his opening brief, Apadaca quotes State v.
Milligan:

‚Thus, where an illegal sentence may be corrected
without any legal analysis or further exercise of
judicial discretion, and the defendant has already
been afforded an opportunity to appear and defend
in the original sentencing hearing, little if any
purpose is served by holding yet another hearing
prior to amending the sentencing order. On the
other hand, where the resentencing involves more
than a mere correction and a defendant’s argument
may influence the outcome, the defendant should
be allowed an opportunity to appear before the
court and defend against the amendment.‛

(Quoting State v. Milligan, 2012 UT App 47, ¶ 14, 287 P.3d 1
(citations omitted).) Then, he asserts that the court’s ‚analysis of

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 State v. Apadaca

the State’s Motion involved more than a mere correction.‛ In his
reply brief, he repeats this same argument and he also quotes
State v. Rodrigues, stating ‚‘[t]he right to presence and allocution
does not apply when a court considers a motion to correct a
clerical error . . . so long as the [original sentencing] hearing was
held in *defendant’s+ presence and defendant had an
opportunity to speak.’‛ (Quoting State v. Rodrigues, 2009 UT 62,
¶ 40, 218 P.3d 610 (alterations and omission in the original)
(citation omitted).) In each of these cases, the appellate court
determined that a defendant did not have the right to be present
for the correction of certain errors where the defendant had an
opportunity to be present at the original sentencing and the trial
court did not engage in judicial reasoning or legal analysis in its
decision making. See Rodrigues, 2009 UT 62, ¶¶ 40–43
(concluding that a defendant does not have the right to appear
when the court corrects a clerical error on the record); Milligan,
2012 UT App 47, ¶ 18 (concluding that a defendant does not
have the right to appear when the court corrects an illegal
sentence pursuant to rule 22(e) of the Utah Rules of Criminal
Procedure if the correction is a reduction in sentence). Apadaca
was afforded the right to appear and allocute at his original
sentencing. See supra ¶¶ 9–11. And beyond these quotes and the
conclusory statements that he had a right ‚to appear and defend
on the State’s Motion,‛ Apadaca does not explain how the
court’s decision to grant the State’s motion involved anything
more than a mere correction for which these cases have
determined a defendant has no right to appear.

¶20 More importantly, any error in not allowing him to be
present when the court granted the State’s motion would be
harmless. If he had been present, Apadaca would have been
precluded from raising issues not before the court. The State’s
motion asked the court only to dismiss the Kim’s Fashions
robbery conviction, nothing else. In other words, granting the
State’s motion involved one decision—whether to dismiss
Apadaca’s Kim’s Fashions robbery conviction and sentence. The

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 State v. Apadaca

court decided to dismiss it. The court’s decision benefited
Apadaca in the best possible way. Because an argument for any
other outcome would have left the Kim’s Fashions robbery
conviction intact, Apadaca has not convinced us that his
presence would have influenced the outcome more favorably.

¶21 In sum, because Apadaca’s sentences were not imposed in
an illegal manner and we lack jurisdiction to review untimely
appeals, we dismiss Apadaca’s claims regarding his right to
allocute at the original sentencing hearing. Moreover, even if
Apadaca had not waived his right to appeal the substance of his
plea-based convictions, Apadaca has failed to demonstrate that
any error in the court’s decision was harmful as the order
Apadaca seeks to appeal only benefited him. We therefore
affirm.

20140008-CA 13 2015 UT App 212