State v. Samul

2015 UT App 23
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
THEODORE JAMES SAMUL,
Defendant and Appellant.

Opinion
No. 20121008-CA
Filed January 29, 2015

Third District Court, Salt Lake Department
The Honorable Judith S.H. Atherton
No. 021913406

John B. Plimpton and Kerri S. Priano, Attorneys
for Appellant

Sean D. Reyes and Kris C. Leonard, Attorneys
for Appellee

SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in
which JUDGES GREGORY K. ORME and J. FREDERIC VOROS JR.
concurred.1

BENCH, Senior Judge:

¶1 Theodore James Samul appeals from an amended sentence
and from the dismissal of his motion to withdraw his 2003 guilty
pleas. We affirm in part and reverse in part and remand.

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah R. Jud. Admin.
11-201(6).
 State v. Samul

BACKGROUND

¶2 Samul was charged with aggravated sexual assault and
aggravated kidnapping based on allegations that he choked, bit,
raped, and threatened to kill his sister after she asked him to drive
her home from a family party. On March 24, 2003, he pleaded
guilty to one count of attempted aggravated sexual assault and one
count of attempted aggravated kidnapping. The written statement
in support of the guilty pleas listed both crimes as first degree
felonies, each carrying a prison term of three years to life. At a
sentencing hearing on May 12, 2003, the prosecutor and defense
counsel addressed the court. After defense counsel had highlighted
facts in mitigation and argued in favor of concurrent sentences, the
trial court asked Samul whether he had anything to add. Samul
responded, “No. I think it’s all been said.” The trial court then
stated that because Samul’s crimes were “disturbing in a number
of different ways,” the court would “keep [him] in prison as long
as [it] possibly [could] because . . . it’s the only safe way to sentence
[him] for [the] victim and for the community at large.” The trial
court sentenced Samul to two consecutive terms of three years to
life in prison. In addition, the trial court ordered Samul to pay
$2,094.68 in restitution. Samul did not appeal his sentences.

¶3 Nine years later, in 2012, Samul filed a pro se motion to
correct the sentences pursuant to rules 22 and 11 of the Utah Rules
of Criminal Procedure and section 77-13-6 of the Utah Code. In the
motion, Samul asserted that the trial court imposed his sentences
in violation of rule 22(c) of the Utah Rules of Criminal Procedure
by failing to advise Samul of his right to appeal and the time period
for doing so. Samul also asserted that the trial court violated rule
11(e) of the Utah Rules of Criminal Procedure by accepting Samul’s
guilty pleas without informing him of various rights. In addition,
Samul moved to withdraw his guilty pleas and raised claims of
ineffective assistance of counsel. Samul requested that the court set
aside his sentences and resentence him. He also requested an
evidentiary hearing on his motions, reimbursement of restitution,
and merger of his convictions.

20121008-CA 2 2015 UT App 23
 State v. Samul

¶4 In its response to Samul’s motion, the State argued that the
motion to withdraw the guilty pleas was untimely and asked the
court to dismiss it. However, the State urged the court to amend
Samul’s sentence on his attempted aggravated kidnapping
conviction under rule 22(e) of the Utah Rules of Criminal
Procedure. The State explained that the crime of attempted
aggravated kidnapping is a second degree felony and that the trial
court had sentenced Samul to three years to life, which, under the
relevant statute, is a punishment reserved for attempt crimes that
are first degree felonies. See Utah Code Ann. § 76-4-102(1)
(LexisNexis Supp. 2014).2 The State therefore agreed that Samul’s
sentence for attempted aggravated kidnapping was an illegal
sentence that should be corrected to a term of one to fifteen years.
See id. § 76-3-203(2) (LexisNexis 2012) (providing that a person
convicted of a second degree felony may be sentenced to a term of
not less than one year or more than fifteen years in prison).
Thereafter, Samul filed a reply, a request for an award of all legal
expenses and fees incurred in filing his pro se motion, and a
request to submit for decision.

¶5 At a hearing on July 13, 2012, the prosecutor acknowledged
that her office had encouraged the court to impose the original
sentence on the attempted aggravated kidnapping conviction
without having researched the appropriate sentence. The trial
judge responded, “[W]e all should have known . . . that the
sentence and the level of offense for the attempted aggravated
kidnapping was in error.” Samul’s counsel3 addressed the court
and explained that Samul had “raised a myriad of issues . . . related
to deprivation of rights” that he wanted to address. When the court
asked whether counsel had anything further regarding the
resentencing, defense counsel answered, “No . . . [but] we would

2. Where recent amendments to the Utah Code do not affect our
analysis, we cite the current version of the Utah Code for the
reader’s convenience.

3. Samul filed his motion pro se but was later appointed counsel.

20121008-CA 3 2015 UT App 23
 State v. Samul

ask that nothing be done today, including the resentencing.” The
trial judge then stated that she was “anxious to go forward with the
resentencing” and that she “want[ed] to correct this error as soon
as possible.” The judge explained that the Board of Pardons
“certainly will take a look at the amended sentence,” which “can
make a differen[ce]” because “one to 15 years is substantially
different from a three to life” sentence. Defense counsel again
asked the judge to wait a couple of weeks to act.

¶6 After initially agreeing to postpone correcting the error, the
trial court signed an amended sentence later that day. The court’s
order adjusted Samul’s sentence on the attempted aggravated
kidnapping conviction to a prison term of one to fifteen years. In all
other respects, the amended sentence remained the same as the
May 2003 sentence, with a three-years-to-life sentence on the
attempted aggravated sexual assault conviction and an order that
the sentences run consecutively.

¶7 At the rescheduled sentencing review hearing on August 31,
2012, defense counsel asked the court to set the matter over so that
defense counsel could confer with the prosecutor regarding the
issues of ineffective assistance of counsel, merger, and plea
withdrawal. The following discussion of the amended sentence
ensued:

THE COURT: Let’s see. So I amended the sentence,
correct?

DEFENDANT SAMUL: I objected to the amended
sentence. I objected to all of that. You said that you
were going to—you weren’t going to rule on any
matter until you could hear all the issues because I
had so many issues that needed to be addressed.

THE COURT: Uh-huh (affirmative).

20121008-CA 4 2015 UT App 23
 State v. Samul

DEFENDANT SAMUL: And you said you’d set the
matter over, and it was supposed to be done [two
weeks later], and it got continued until today.

THE COURT: I amended the sentence effect[ive]
nunc pro tunc to May 12th of 2003, which
doesn’t—so it has been amended to reflect the correct
sentence, which . . . I did to benefit Mr. Samul
because he’s been in custody for a long time. So the
Board now has the correct sentence. . . .

....

THE COURT: [There was an] error in the plea
affidavit that designated [attempted aggravated
kidnapping] as a three to life . . . first degree [felony]
. . . as opposed to a second degree, one to fifteen.
Clearly, that’s of concern. I don’t know what the
remedy is. I mean, the immediate remedy is to
correct it, which I did nunc pro tunc, which changes
his position before the Board of Pardons. The other
remedies you’ll just have to educate me on. All right.

....

DEFENDANT SAMUL: I’m unclear as to what
happened because at the last hearing, . . . my
understanding on leaving the courtroom was that
nothing was going to happen until I came back the
next time . . . . And now you’re saying that you
corrected the sentence or something already?

THE COURT: I corrected the sentence to be
consistent with what you pled to. Let me . . . make
sure you understand what this means and what nunc
pro tunc means. I amended this effective May 12th of
2003. This changes—

20121008-CA 5 2015 UT App 23
 State v. Samul

DEFENDANT SAMUL: As it was then?

THE COURT:—considerably your position before the
Board of Pardons. And the soonest I can do that I
did, because it’s to your benefit that I did
that—clearly to your benefit. It’s . . . a different
looking case, and so the Board of Pardons, I felt,
needed to have that information as soon as possible.

DEFENDANT SAMUL: Well, that’s contrary to my
understanding though because—

THE COURT: Okay. Well, that—

DEFENDANT SAMUL: —I have other issues.

THE COURT: It is what it is now.

DEFENDANT SAMUL: Right, but I have other
issues.

THE COURT: You have—that’s what your attorney
is going to talk to you about.

[DEFENSE COUNSEL]: Let me talk to you in the
holding cell.

THE COURT: That is fine. I think we’re done.

[DEFENSE COUNSEL]: Thank you, Your Honor.

The trial court’s minute entry for the hearing noted that it had
“previously amended the sentence nunc pro tunc” and that it
would take no further action that day.

¶8 On September 21, 2012, the trial court issued a written
memorandum decision addressing the issues Samul had submitted

20121008-CA 6 2015 UT App 23
 State v. Samul

for decision. The trial court first explained the illegal sentence on
Samul’s attempted aggravated kidnapping conviction. The court
indicated that Samul’s sentence “is corrected to reflect the actual
legally appropriate sentence for Attempted Aggravated
Kidnapping,” pursuant to rule 22(e) of the Utah Rules of Criminal
Procedure. The trial court therefore “[ordered] that [Samul] serve
an indeterminate term at the Utah State Prison of 1 to 15 years on
Count II, to run consecutively to Count I.” The court then turned
to the remaining issues, ruling that it lacked jurisdiction to hear
those challenges. The court explained that the “issue of ineffective
assistance of counsel is an appellate issue or subject to a civil action
in this court.” The court then determined that the motions to set
aside the convictions and to withdraw the guilty pleas were not
timely and accordingly dismissed them. Samul appeals.4

ISSUES AND STANDARDS OF REVIEW

¶9 Samul first argues that the trial court violated rule 22(a) of
the Utah Rules of Criminal Procedure and his right to allocution
and due process when it corrected his illegal sentence. “The denial
of the right to allocution is an issue of law that we review for
correctness.” West Valley City v. Walljasper, 2012 UT App 252, ¶ 6,
286 P.3d 948.

¶10 Next, Samul argues that the trial court erred in denying his
motion to withdraw his guilty pleas. “In determining whether a
motion to withdraw a guilty plea is timely and whether the trial
court has jurisdiction to rule on that motion, we give no deference
to the trial court’s rulings but review them for correctness, as

4. In its brief, the State challenged this court’s jurisdiction, arguing
that Samul’s notice of appeal was not timely filed. We ordered
supplemental briefing on this jurisdictional issue after oral
argument. In its supplemental briefing, the State withdrew its
objection to this court’s jurisdiction over the appeal.

20121008-CA 7 2015 UT App 23
 State v. Samul

questions of law.” State v. Smith, 2012 UT App 247, ¶ 7, 286 P.3d
314.

¶11 Finally, Samul argues that the trial court erred in failing to
rule on his claim that the trial court violated rule 22(c) of the Utah
Rules of Criminal Procedure and on his requests for restitution
reimbursement and legal fees. “Procedural issues present questions
of law, which we review for correctness.” State v. Kragh, 2011 UT
App 108, ¶ 9, 255 P.3d 685.

ANALYSIS

I. Allocution

¶12 Samul contends that the trial court erred in correcting his
sentence without affording him another opportunity to make a
statement and introduce mitigating evidence. Samul argues that
before amending his sentence, the trial court should have allowed
him to present new information that may have resulted in
concurrent sentences. The State counters that Samul was not
entitled to allocute where the court corrected an illegal sentence to
bring the sentence into compliance with the statutory mandate,
where the correction reduced the sentence, and where Samul
appeared and defended at the original sentencing hearing and had
the opportunity for allocution. We agree with the State.

¶13 “In Utah, allocution is both a constitutional and statutory
right.” State v. Udy, 2012 UT App 244, ¶ 25, 286 P.3d 345. Rule 22(a)
of the Utah Rules of Criminal Procedure “codifies the common-law
right of allocution, allowing a defendant to make a statement in
mitigation or explanation after conviction but before sentencing.”
State v. Wanosik, 2003 UT 46, ¶ 18, 79 P.3d 937. The rule 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); see also Utah Code

20121008-CA 8 2015 UT App 23
 State v. Samul

Ann. § 77-18-1(7) (LexisNexis Supp. 2014) (“At the time of sentence,
the court shall receive any testimony, evidence, or information the
defendant or the prosecuting attorney desires to present
concerning the appropriate sentence. This testimony, evidence, or
information shall be presented in open court on record and in the
presence of the defendant.”).

¶14 Samul asserts that a defendant has the right to allocute
before a trial court corrects an illegal sentence under rule 22(e) of
the Utah Rules of Criminal Procedure. Rule 22(e) states, “The court
may correct an illegal sentence, or a sentence imposed in an illegal
manner, at any time.” Utah R. Crim. P. 22(e).

¶15 This court addressed whether a defendant has the right to
appear and defend against a corrected sentence in State v. Milligan,
2012 UT App 47, 287 P.3d 1. In that case, Milligan was convicted of
murder and attempted murder. Id. ¶ 1. During sentencing, the
prosecutor represented that the minimum sentence was six years
to life in prison for the murder charge and two to fifteen years for
the attempted murder charge. Id. ¶ 4. The trial court imposed the
minimum sentence for each crime and ordered that the sentences
run consecutively. Id. Thereafter, the State filed a motion to correct
an illegal sentence, pointing out that the applicable statute
provided that the minimum mandatory sentence for murder was
fifteen years to life in prison. Id. Without further proceedings, the
trial court amended the sentence in accordance with the statute,
thereby increasing the sentence, and the court once again ordered
consecutive sentences. Id.

¶16 On appeal, Milligan argued that the trial court plainly erred
by amending his sentence without providing him an opportunity
to appear before the court and defend against the amendment, and
that his trial counsel performed ineffectively by failing to object to
the trial court’s error. Id. ¶¶ 6, 10. As this court explained, “the trial
court’s inadvertent imposition of a sentence shorter than the
statutory minimum . . . was not the result of the trial court’s
reasoning and decision making, but rather resulted from the trial

20121008-CA 9 2015 UT App 23
 State v. Samul

court’s misunderstanding, arising in part from counsel’s error, of
the correct minimum sentence for first-degree murder.” Id. ¶ 16
(citations and internal quotation marks omitted). “As soon as the
court was advised of the illegality of [Milligan]’s sentence, by
reason of its failure to follow the [statute], it was its duty to comply
with the statute.” Id. (alterations in original) (citation and internal
quotation marks omitted). This court therefore held that “because
Milligan had an opportunity to appear and defend at the
sentencing hearing and the amendment of the length of his
sentence did not involve any judicial reasoning or decision
making,” he was not entitled to appear and defend against the
increase in the length of his sentence for murder. Id. ¶¶ 16, 18; cf.
State v. Rodrigues, 2009 UT 62, ¶¶ 28, 40, 218 P.3d 610 (explaining
that “[t]he right to presence and allocution does not apply when a
court considers a motion to correct a clerical error” and that a
clerical error is not “the deliberate result of judicial reasoning and
decision making”).

¶17 Nevertheless, this court agreed with Milligan that his
counsel was constitutionally ineffective for not objecting to the trial
court’s decision to amend Milligan’s sentence in his absence.
Milligan, 2012 UT App 47, ¶ 17. The trial court originally ordered
the sentence to run consecutively with Milligan’s sentence for
attempted murder and with other sentences he was serving. Id. But
this court determined that “there [was] a reasonable probability
that the trial court would have reached a different conclusion on
this discretionary issue had it known that the mandatory minimum
sentence (with [a one year] dangerous weapon enhancement) was
sixteen years to life rather than six years to life.” Id. Consequently,
it was possible that Milligan could have convinced the trial court
to order that the amended sentence be served concurrently with his
other sentences. Id. This court therefore remanded for the “narrow
purpose” of giving Milligan an opportunity to defend against the
imposition of consecutive sentences. Id. ¶¶ 17–18.

¶18 Under the facts of the case before us, we are not persuaded
that Samul was entitled to appear and defend before the trial court

20121008-CA 10 2015 UT App 23
 State v. Samul

amended his sentence. We reach this conclusion for several
reasons. First, it is significant that the amended sentence resulted
in a reduction of Samul’s sentence. See Fed. R. Crim. P. 43(b)
(providing that a defendant need not be present when the
proceeding involves the correction or reduction of sentence); see
also Milligan, 2012 UT App 47, ¶¶ 13–14 (applying rule 43(b) of the
Federal Rules of Criminal Procedure in addressing whether a
defendant has the right to appear and defend when the trial court
considers a motion to correct an illegal sentence). The trial court’s
original sentence imposed a prison term of three years to life for
Samul’s attempted aggravated kidnapping conviction. Because the
original sentence exceeded the statutorily authorized sentence for
the crime, see Utah Code Ann. § 76-4-102(1) (LexisNexis Supp.
2014), there is no dispute that the original sentence was illegal. In
2012, the trial court amended Samul’s sentence for this conviction
to reflect the statutory sentence of one to fifteen years in prison. See
id. § 76-3-203(2) (LexisNexis 2012); see also State v. Telford, 2002 UT
51, ¶ 5 n.1, 48 P.3d 228 (per curiam) (“[R]ule 22(e) may be
employed to correct . . . a sentence beyond the authorized statutory
range.”). The amended sentence therefore involved a reduction of
sentence.

¶19 Second, the trial court’s amendment of the length of Samul’s
sentence for attempted aggravated kidnapping did not involve any
judicial reasoning or decision making. See Milligan, 2012 UT App
47, ¶¶ 16, 18. Similar to Milligan, the trial court inadvertently
imposed a sentence outside of the statutory scheme because of its
“misunderstanding, arising in part from counsel’s error, of the
correct minimum sentence for” attempted aggravated kidnapping.
See id. ¶ 16. The trial court’s amendment of the attempted
aggravated kidnapping sentence was not the result of the trial
court’s reasoning and decision making, because the trial court had
a “duty to comply with the statute” once it was advised of the
illegality of the sentence. See id. ¶¶ 16, 18 (citation and internal
quotation marks omitted). Samul’s sentence could therefore be
corrected “without any legal analysis or further exercise of judicial
discretion.” See id. ¶ 14.

20121008-CA 11 2015 UT App 23
 State v. Samul

¶20 Third, Samul had already been given “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.” See Utah R. Crim. P. 22(a). At the 2003 sentencing
hearing, Samul’s counsel urged the court to consider mitigating
factors, including Samul’s claimed remorse for his conduct, his
efforts at rehabilitation, and his character and work ethic. After
defense counsel and the prosecutor finished their statements, the
trial court gave Samul an opportunity to speak before sentencing,
thereby satisfying his right to allocute. Therefore Samul had
“already been afforded an opportunity to appear and defend in the
original sentencing hearing.” See State v. Milligan, 2012 UT App 47,
¶ 14, 287 P.3d 1; cf. Rodrigues, 2009 UT 62, ¶¶ 28, 40–41 (permitting
the correction of a clerical error in a sentence without further
allocution where the defendant was present and had the
opportunity to speak during an earlier sentencing hearing);
Milligan, 2012 UT App 47, ¶ 15 n.5 (noting the “similarity between
the treatment of clerical errors and illegal sentences”). Under these
circumstances, Samul was not entitled to allocute before the trial
court entered the amended sentence correcting the illegal sentence.

¶21 Samul nevertheless maintains that under Milligan, he should
at least be given the opportunity to defend against the imposition
of consecutive sentences. Although the decision to impose
consecutive or concurrent sentences is “discretionary,” this court
will not reverse a trial court’s amended order that includes
consecutive sentences unless the defendant shows that there is a
reasonable likelihood that the trial court would have reached a
different conclusion had it known the correct statutory sentence.5

5. Although the Milligan court reversed the trial court’s order that
the sentences run consecutively and remanded for Milligan to
appear and defend against this aspect of the amended sentence,
State v. Milligan, 2012 UT App 47, ¶¶ 17–18, 287 P.3d 1, this court
reached that conclusion in addressing Milligan’s claim of
(continued...)

20121008-CA 12 2015 UT App 23
 State v. Samul

See Milligan, 2012 UT App 47, ¶¶ 17–18. Samul has not met his
burden. In imposing the original sentence, the trial court explained
that Samul’s conduct was “disturbing in a number of different
ways” and noted the violence Samul had inflicted on the victim
was “extreme, psych[ologically and] physically.” Based on these
facts, the trial court expressed its intent to “keep [Samul] in prison
as long as [it] possibly can.” In light of the trial court’s comments
in imposing the original sentence, we are not persuaded that the
trial court might have imposed concurrent sentences had it known
that the statutory sentence for attempted aggravated kidnapping
was shorter than the three years to life that it originally imposed.

¶22 In summary, Samul was not entitled to appear and defend
against the amended sentence, because the amended sentence was
a reduction, the amendment of the length of his sentence did not
involve any judicial reasoning or decision making, and Samul
appeared, defended, and allocuted at the original sentencing
hearing. Furthermore, because we are not persuaded that Samul
could have convinced the trial court to impose concurrent
sentences, the trial court did not err in entering the amended
sentence.

II. Motion to Withdraw Guilty Pleas

¶23 Samul next contends that the trial court erred in ruling that
his motion to withdraw his guilty pleas was untimely. Samul

5. (...continued)
ineffective assistance of counsel, see id. ¶ 17. Samul has not raised
an ineffective assistance of counsel claim on appeal. Milligan is also
distinguishable on the ground that this court determined that
Milligan’s arguments may have convinced the trial court to impose
concurrent sentences because the trial court erroneously entered a
sentence shorter than the mandatory minimum sentence. Id. In
contrast, the trial court here erroneously entered a sentence longer
than the statutory sentence for one of Samul’s convictions. See supra
¶ 18.

20121008-CA 13 2015 UT App 23
 State v. Samul

argues that because the September 21, 2012 memorandum decision
was the final sentencing order, his motion to withdraw his pleas,
which was filed in April 2012, was timely. In contrast, the State
argues that the correction of Samul’s illegal sentence did not restart
the time for withdrawing Samul’s pleas and that his motion to
withdraw was therefore untimely.

¶24 When Samul entered his pleas in 2003, the plea withdrawal
statute allowed a defendant to file a motion to withdraw a guilty
plea “within 30 days after the entry of the plea.” See Utah Code
Ann. § 77-13-6(2)(b) (Lexis 1999). Our supreme court interpreted
this statute to mean that the thirty-day limit for filing a motion to
withdraw a guilty plea begins to “run[] from the date of final
disposition of the case at the district court.” State v. Ostler, 2001
UT 68, ¶¶ 11, 13, 31 P.3d 528. If a motion to withdraw is untimely
filed, we lack jurisdiction to consider it. State v. Smith, 2012 UT App
247, ¶ 8, 286 P.3d 314.6

6. By the time Samul was sentenced, the plea withdrawal statute
had been amended to require a defendant to file a motion to
withdraw a guilty plea only “before sentence is announced.” Utah
Code Ann. § 77-13-6(2)(b) (LexisNexis Supp. 2003). Samul asserts
that the earlier version of the plea withdrawal statute applies in his
case. The State does not challenge this assertion but claims that the
various amendments to the plea withdrawal statute are irrelevant
in this case. For purposes of our analysis, we assume without
deciding that Samul is correct that the earlier version of the plea
withdrawal statute applies. See State v. Abeyta, 852 P.2d 993, 995
(Utah 1993) (noting that an amendment to the plea withdrawal
statute related specifically to the time for withdrawing a plea was
“substantive, not procedural, . . . and may not be applied
retroactively”); State v. Walker, 2013 UT App 198, ¶ 25, 308 P.3d 573
(holding that “the plea withdrawal statute affects substantive
rights” and that the version in effect at the time the defendant
entered his guilty plea governs his plea withdrawal motion).

20121008-CA 14 2015 UT App 23
 State v. Samul

¶25 Samul argues that under the plea withdrawal statute in
effect at the time he entered his pleas, he had thirty days to file his
motion to withdraw his pleas from September 21, 2012, the date the
trial court entered the memorandum decision correcting his illegal
sentence under rule 22(e) of the Utah Rules of Criminal Procedure.
In other words, Samul asserts that the trial court’s order correcting
his sentence under rule 22(e) restarted the thirty-day period for
Samul to withdraw his 2003 guilty pleas.

¶26 Rule 22(e) allows the court to “correct an illegal sentence, or
a sentence imposed in an illegal manner, at any time.” Utah R.
Crim. P. 22(e). “A request to correct an illegal sentence under rule
22(e) presupposes a valid conviction. Therefore, issues concerning
the validity of a conviction are not cognizable under rule 22(e).”
State v. Brooks, 908 P.2d 856, 860 (Utah 1995) (citations omitted). In
other words, the scope of rule 22(e) is narrow and the rule “cannot
be used as a veiled attempt to challenge the underlying conviction
by challenging the sentence.” State v. Candedo, 2010 UT 32, ¶ 9, 232
P.3d 1008; see also id. (“[R]ule 22(e) claims must be narrowly
circumscribed to prevent abuse.” (citation and internal quotation
marks omitted)). Consequently, “a successful motion under rule
22(e) may have the effect of undoing the sentence, but it will not
vest the defendant with new opportunities to challenge his case in
ways unrelated to sentencing.” Smith, 2012 UT App 247, ¶ 10.
Accordingly, “we will reject a claim purportedly brought via rule
22(e) that is, ‘in reality, a second appeal from [the original]
conviction.’” Id. (alteration in original) (quoting State v. Wareham,
801 P.2d 918, 920 (Utah 1990)).

¶27 Samul’s argument that the correction of a sentence under
rule 22(e) restarts the time period for moving to withdraw a guilty
plea is foreclosed by this court’s decision in State v. Smith, 2012 UT
App 247, 286 P.3d 314. In that case, the defendant entered a guilty
plea and later filed a motion to withdraw the plea. Id. ¶ 3. The trial
court denied the motion and proceeded with sentencing. Id. A year
after his conviction was affirmed on appeal, the defendant filed a
motion under rule 22(e). Id. ¶¶ 4–5. In the motion, the defendant

20121008-CA 15 2015 UT App 23
 State v. Samul

alleged that his sentence was illegal because, among other things,
his right to allocution was denied at sentencing. Id. ¶ 5. The trial
court vacated the defendant’s sentence after finding that the
defendant had been denied the opportunity to speak on his own
behalf. Id. ¶ 6. Before resentencing, the defendant again filed a
motion to withdraw his guilty plea. Id. The court denied the motion
for lack of jurisdiction and entered a new sentence. Id.

¶28 On appeal, the defendant in Smith made an argument
identical to Samul’s, namely, that the trial court erred in denying
his motion to withdraw because his successful rule 22(e) motion
restarted the thirty-day time period to move to withdraw a plea.
See id. ¶¶ 7, 10. This court rejected that argument, ruling instead
that the defendant’s motion to withdraw was filed “far beyond the
statutory window for filing a motion to withdraw a guilty plea.” Id.
¶¶ 9–11. Furthermore, this court reasoned that the defendant’s
successful rule 22(e) motion did not “open[] the door for him to file
an otherwise untimely motion to withdraw his guilty plea.”7 Id.
¶¶ 10–11 (citing Grimmett v. State, 2007 UT 11, ¶¶ 7–9, 25, 152 P.3d
306). This court therefore affirmed the trial court’s determination
that it lacked jurisdiction to consider the motion. Id. ¶ 9.

¶29 The same reasoning applies here. The trial court’s correction
of Samul’s illegal sentence for attempted aggravated kidnapping
did not restart the time period for him to move to withdraw his

7. Samul attempts to distinguish Smith by arguing that the plea
withdrawal statute was interpreted differently at the time the
defendant in Smith pleaded guilty in 1997. He argues that the
defendant in Smith was required to file his motion to withdraw
within thirty days of the date of the plea colloquy and that the
resentencing in that case “did not alter or renew the date of the
plea colloquy.” Because we determine that a successful rule 22(e)
motion does not alter or renew the time period for filing a motion
to withdraw a plea, see supra ¶¶ 26–28, we are not persuaded that
any changes in the interpretation of the plea withdrawal statute
defeat the application of Smith to the case before us.

20121008-CA 16 2015 UT App 23
 State v. Samul

two guilty pleas. The trial court’s correction under rule 22(e) did
not amend the sentence with respect to Samul’s plea to attempted
aggravated sexual assault. Samul’s motion to withdraw that plea,
filed nine years after the trial court entered his sentence for
attempted aggravated sexual assault, was clearly untimely under
the plea withdrawal statute. See Utah Code Ann. § 77-13-6(2)(b)
(Lexis 1999); State v. Ostler, 2001 UT 68, ¶¶ 11, 13, 31 P.3d 528.
Likewise, Samul’s motion to withdraw his plea on the attempted
aggravated kidnapping count was untimely filed. Contrary to
Samul’s claim, the trial court’s correction under rule 22(e) of the
sentence on that count did not give Samul “the opportunity to
move to withdraw his guilty plea many years after the thirty-day
deadline expired.” See Smith, 2012 UT App 247, ¶¶ 10–11. The trial
court therefore correctly ruled that it lacked jurisdiction to consider
Samul’s motion to withdraw his pleas. See id. ¶ 8. Accordingly, we
affirm the trial court’s dismissal of Samul’s motion to withdraw his
guilty pleas.

III. Remaining Claims That the Trial Court Did Not Reach

¶30 Last, Samul argues that the trial court erred in failing to rule
on all of the claims he presented for adjudication with his rule 22(e)
motion, including his claim for restitution reimbursement, his claim
for legal fees, and his claim that the trial court violated rule 22(c) of
the Utah Rules of Criminal Procedure. Samul further contends that
because his sentence was imposed in violation of rule 22(c), his
sentences for both counts were imposed in an illegal manner. The
State opposes Samul’s arguments regarding restitution and legal
fees, arguing that those claims are outside the scope of rule 22(e).
The State, however, agrees with Samul that the trial court erred in
failing to address his rule 22(c) claim and recognizes that we should
remand the case to the trial court to evaluate the claim and assess
a remedy if necessary.

¶31 Rule 22(c) states that “[f]ollowing imposition of sentence, the
court shall advise the defendant of defendant’s right to appeal and
the time within which any appeal shall be filed.” Utah R. Crim. P.

20121008-CA 17 2015 UT App 23
 State v. Samul

22(c)(1). The court’s compliance with rule 22(c) “is the most reliable
way to ensure that defendants are made aware of the important
constitutional right to appeal a conviction or sentence.” State v.
Kabor, 2013 UT App 12, ¶ 13, 295 P.3d 193. Nevertheless, “evidence
that the defendant was actually made aware of his right to appeal,
despite the court’s oversight [in failing to comply with rule
22(c)(1)], can support a conclusion that he was not
unconstitutionally deprived of the right to appeal.” Id. ¶ 14. But if
neither the sentencing court nor the defendant’s attorney properly
informed the defendant of his right to appeal, the defendant has a
“valid claim for reinstatement of that right.” Johnson v. State, 2006
UT 21, ¶ 26, 134 P.3d 1133.

¶32 Under rule 4(f) of the Utah Rules of Appellate Procedure
and the steps outlined in Manning v. State, 2005 UT 61, 122 P.3d 628,
a defendant may file a motion in the trial court to reinstate the time
frame for filing a direct appeal. Id. ¶ 31. For the court to grant such
a motion, the defendant must prove, “based on facts in the record
or determined through additional evidentiary hearings, that he has
been unconstitutionally deprived, through no fault of his own, of
his right to appeal.” Id. A defendant may prove such circumstances
if he demonstrates by a preponderance of the evidence that “the
court or the defendant’s attorney failed to properly advise
defendant of the right to appeal,” id. ¶¶ 31–32 (citing State v.
Hallett, 856 P.2d 1060, 1061 (Utah 1993)), and that “had he been
properly advised he would have filed an appeal,” State v. Collins,
2014 UT 61, ¶ 2. If the defendant meets this burden, the court will
determine that he has been unconstitutionally deprived of the right
to appeal. Manning, 2005 UT 61, ¶ 32. “In such a case, the trial or
sentencing court is directed to reinstate the appeal time frame if
doing so is in the interest of fundamental fairness. The defendant
must then file a notice of appeal within thirty days of the date the
trial court issues its order.” Id. Our supreme court has noted that
this procedure is “not available to a defendant properly informed
of his appellate rights who simply let[s] the matter rest, and then
claim[s] that he did not waive his right to appeal.” Id. ¶ 33

20121008-CA 18 2015 UT App 23
 State v. Samul

(alterations in original) (citation and internal quotation marks
omitted).

¶33 Samul’s pro se rule 22(e) motion to correct illegal sentences
raised a claim under rule 22(c), arguing that the trial court failed to
advise him of his right to appeal his sentence and the time period
to file a notice of appeal. The trial court should have adjudicated
the rule 22(c) claim that Samul raised in his rule 22(e) motion to
correct illegal sentences. The parties agree that the transcript of the
2003 sentencing hearing does not include an advisement from the
court regarding Samul’s “right to appeal and the time within which
any appeal shall be filed.” See Utah R. Crim. P. 22(c)(1). The written
statement in support of the guilty pleas does not indicate that
Samul was otherwise informed of his right to appeal. On the
contrary, Samul was given to understand that “if [he] were
convicted by a jury or judge, [he] would have the right to appeal
[his] conviction and sentence” and that he “underst[ood] that [he
was] giving up [his] right to appeal [his] conviction if [he] plead[ed]
guilty.” Additionally, the transcript of the change of plea hearing
is not in the record on appeal. The record in this case therefore does
not contain “evidence that [Samul] was actually made aware of his
right to appeal.” See Kabor, 2013 UT App 12, ¶ 14. Because the trial
court did not hold an evidentiary hearing to determine if Samul
was properly advised of his right to appeal, see Manning, 2005 UT
61, ¶ 31, and because the trial court never ruled on Samul’s rule
22(c) claim, we remand for additional proceedings on this claim.

¶34 Samul also asserts that the trial court erred in failing to rule
on his claims for reimbursement for restitution and for the legal
fees he incurred while preparing his pro se motion to correct illegal
sentences. Although we agree with Samul that the trial court
apparently never addressed these claims, we agree with the State
that these claims are outside the scope of a rule 22(e) motion.
Because neither claim “threaten[s] the validity of the sentence,” see
State v. Candedo, 2010 UT 32, ¶ 14, 232 P.3d 1008, we will not
remand for a decision on those claims.

20121008-CA 19 2015 UT App 23
 State v. Samul

CONCLUSION

¶35 The trial court did not err in correcting Samul’s illegal
sentence for attempted aggravated kidnapping without first
affording him an opportunity to appear and defend against the
correction. Samul was present and had the opportunity to speak at
the original sentencing hearing, and the trial court’s amended
sentence corrected Samul’s sentence to the maximum allowed by
law and resulted in a reduction of his overall sentence. Under these
circumstances, Samul was not entitled to allocute again when the
trial court corrected his illegal sentence. Furthermore, because the
correction did not restart the time period for filing a motion to
withdraw, the trial court correctly dismissed Samul’s motion to
withdraw his guilty pleas for lack of jurisdiction. However, the trial
court erred in failing to adjudicate Samul’s claim that the trial court
neglected to inform him of his right to appeal and of the time
period in which to do so. We therefore remand for the trial court to
hold an evidentiary hearing and resolve this claim. Accordingly,
we affirm, except for the limited remand for the trial court to
consider whether Samul was adequately informed of his appeal
rights.

20121008-CA 20 2015 UT App 23