State v. Fairchild

2016 UT App 205

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
STEVEN MICHAEL FAIRCHILD,
Appellant.

Opinion
No. 20131118-CA
Filed September 29, 2016

First District Court, Logan Department
The Honorable Kevin K. Allen
No. 111101239

Thomas S. Bowman, Aaron K. Bergman, and Wayne
K. Caldwell, Attorneys for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and KATE A. TOOMEY concurred.

ORME, Judge:

¶1 Defendant Steven Michael Fairchild appeals the trial
court’s denial of his motion for a new trial and its imposition of
consecutive sentences. The issues on appeal relate to the fairness
of the trial and sentence. We affirm.
 State v. Fairchild

BACKGROUND1

¶2 On November 16, 2011, Defendant and his girlfriend
(Girlfriend) agreed to rob a bank. The couple left Logan, Utah,
where Defendant resided, and drove to West Valley City, Utah,
where friends paid them $100 to deliver psychedelic mushrooms
the following day. Next, Defendant and Girlfriend drove to a
pawnshop in Evanston, Wyoming, in the middle of the night.
Girlfriend parked the car and waited for Defendant, who went
inside, remained for less than two minutes, and returned with
five guns.

¶3 The next day, the couple drove back to Logan, where they
decided to rob a gas station instead of a bank. The couple
entered the targeted gas station, Girlfriend wearing a red
bandana and baggy clothing and Defendant dressed in a black
ski mask, a black jacket, jeans, and white shoes. Each had a gun.
Girlfriend remained by the gas station door as Defendant
walked into the store toward the cash register. Defendant waved
a gun in an employee’s face and ordered her to open the cash
drawer. Defendant stole the money from the register and a pack
of Camel brand cigarettes and then fled. During the course of the
robbery, a second employee came out of the storeroom, saw
Defendant, and heard him order the first employee to ‚*o+pen
the registers.‛ She also saw Girlfriend.

¶4 That night, the couple bought and delivered the
psychedelic mushrooms they had promised their friends.
Meanwhile, police had been investigating the robbery at the gas
station. As a part of the investigation, a third gas station
employee (Employee) viewed surveillance video of the robbery,

1. ‚When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and,‛ unless otherwise noted, ‚we recite
the facts accordingly.‛ State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d
1116.

20131118-CA 2 2016 UT App 205
 State v. Fairchild

which included a recording of the robber’s voice. Based on his
voice, Employee recognized the gunman as Defendant. She was
familiar with Defendant’s voice because of extensive interaction
with him: he was a regular customer at the gas station; she had
previously hired him to build her porch; and she had
recommended him for a job at her other place of employment,
where he was hired and where they occasionally crossed paths.
Employee also identified him in a video from his November 13
visit to the gas station when she said that he bought Camel
cigarettes from her.2

¶5 Police also showed photographs of the robbery to
Defendant’s parole officer (Parole Officer). Parole Officer
observed that the male suspect’s clothing matched the clothes
Defendant wore during a parole visit the day before the robbery.
Police arrested Defendant and Girlfriend on November 20.
During the arrest, police searched Defendant’s truck and found
Girlfriend’s bandana and wallet in the glove compartment, a
pack of Camel brand cigarettes by the ashtray, a cooler that
contained a large quantity of psychedelic mushrooms, and four
guns.3

¶6 The State charged Defendant with one count of
aggravated robbery, a first degree felony; four counts of
possession of a firearm by a restricted person, a second degree
felony; one count of possession of a controlled substance with
intent to distribute, a second degree felony; and four counts of
receiving stolen property, a second degree felony. The State also
sought to enhance Defendant’s sentence by having him
designated as a habitual violent offender. The parties agreed that

2. At trial, Defendant testified that the cigarettes were Pall Mall
brand, not Camel.

3. After delivering the psychedelic mushrooms, Defendant sold
one of the guns.

20131118-CA 3 2016 UT App 205
 State v. Fairchild

the judge would determine whether Defendant was a habitual
violent offender and that the remaining issues would be tried to
a jury.

¶7 Before trial, the State moved to admit evidence, under
rule 404(b) of the Utah Rules of Evidence, that Defendant was
convicted of robbing two Logan banks in December 1998 and
January 1999. The State argued that this evidence would show
motive, plan, intent, and identity and that it was not attempting
to impugn Defendant’s character or establish his criminal
propensity. The court denied the State’s motion and ordered that
it not put on evidence of Defendant’s prior crimes at trial. One
day before trial, Defendant moved to sever the ‚restricted
person‛ requirement from the rest of the restricted-person-in-
possession-of-a-firearm charge. Instead, the parties stipulated
that the ‚restricted person‛ requirement was satisfied. The court
agreed, ordering that it would instruct the jury as to Defendant’s
restricted status but ‚would not allow any evidence regarding
*Defendant’s+ previous convictions or the reasons why he is a
restricted person.‛

¶8 Despite the 404(b) pretrial order and the stipulation, there
were multiple references to Defendant’s status as a parolee
during trial. First, during the State’s opening statement, the
prosecutor told the jury that Parole Officer ‚was a supervisor
over *Defendant’s parole+,‛ and Defendant’s trial counsel did not
object. Indeed, trial counsel characterized Parole Officer in much
the same way during his own opening statement. Later, Parole
Officer testified that he knew Defendant in his capacity as a
parole officer, stating that ‚in June of 2011, *Defendant+ paroled
from prison to my caseload.‛ But he did not say why Defendant
previously had been imprisoned, and the prosecutor asked no
follow-up questions. Defendant objected and moved for a
mistrial. The trial court denied the mistrial motion.

¶9 During closing arguments, Defendant’s trial counsel and
the prosecutor each referred to Defendant’s status as a parolee.
First, trial counsel said, ‚in the late fall of 2011, [Defendant] and

20131118-CA 4 2016 UT App 205
 State v. Fairchild

[Girlfriend] went to the office of [Parole Officer]. They asked . . .
permission to live together, to further their relationship. [He]
granted their request.‛ And the prosecutor repeated Parole
Officer’s name and title before stating, ‚He supervised the
defendant.‛

¶10 When the court was preparing to instruct the jury that
Defendant was a restricted person, the prosecutor suggested that
the instruction include that Defendant was on parole at the time
of the gas station robbery. The court refused, stating, ‚Well, I
don’t want to bring any more attention to that fact, frankly. I
shouldn’t have—well, parole, we’re okay with that.‛ The court
ultimately issued a limiting instruction, informing the jury that
Parole Officer only mentioned Defendant’s parole to show that
he

knows the defendant and is familiar with him. Do
not use it for any other purpose. It is not evidence
that the defendant is guilty of the crimes for which
he is now on trial. . . . You may not convict a
person simply because you believe he may have
committed some other acts at another time.

¶11 The jury also heard testimony from Girlfriend, the two
employees who were at the gas station during the robbery, and
Employee. One of the employees testified that the robber had
blue eyes, but Defendant has brown eyes. The State also
presented the gas station’s surveillance video, which showed the
male suspect wore a dark hooded jacket, jeans, and white shoes.
And it presented evidence of the items police found in
Defendant’s truck—the bandana, wallet, Camel cigarettes,
psychedelic mushrooms, and guns.

¶12 The jury returned a guilty verdict on each of the ten
counts against Defendant. The court then initiated a bench trial
on the issue of whether Defendant was a habitual violent
offender. It determined that he was. At sentencing, the trial court
imposed indeterminate sentences of five years to life for

20131118-CA 5 2016 UT App 205
 State v. Fairchild

aggravated robbery and each of the four weapons possession
charges, one to fifteen years for the drug possession charge, and
one to fifteen years for each theft by receiving stolen property
charge. The court ordered that these sentences run consecutively
to each other and to the sentence Defendant was already
serving.4

¶13 Defendant then filed a motion for new trial, arguing that
the statements during trial that he was on parole violated the
pretrial order and unfairly prejudiced him. The court denied
Defendant’s motion, ruling that Parole Officer’s testimony did
not violate the pretrial order and that, even if it did, the error
was harmless both because the totality of the evidence
supported conviction and because the curative instruction
ameliorated any potential harm.

¶14 Finally, Defendant filed a motion challenging the legality
of his sentence. Citing Utah Code section 76-3-401, he asserted
that consecutive sentences can never exceed thirty years. The
trial court denied the motion on the ground that Defendant
received five sentences with a maximum sentence of life
imprisonment and the thirty-year limitation does not apply to
offenses with the possible maximum sentence of life
imprisonment. See Utah Code Ann. § 76-3-401(1)(6)(b)
(LexisNexis 2012). Defendant appeals the trial court’s denial of
his motion for a new trial and his sentence.

ISSUES AND STANDARDS OF REVIEW

¶15 Defendant first argues that the trial court erred when it
denied his motion for new trial because, as he contends, the
multiple references to his status as a parolee violated the trial

4. Having been on parole before robbing the gas station,
Defendant returned to prison to serve his remaining sentence for
a prior bank robbery soon after his November 20 arrest.

20131118-CA 6 2016 UT App 205
 State v. Fairchild

court’s pretrial order and his rights to due process, the
presumption of innocence, and a fair trial. ‚We will not reverse a
trial court’s denial of a motion for a new trial absent a clear
abuse of discretion.‛ State v. Maestas, 2012 UT 46, ¶ 103, 299 P.3d
892. A trial court abuses its discretion where ‚no reasonable
[person] would take the view adopted by the trial court.‛ State v.
Gerrard, 584 P.2d 885, 887 (Utah 1978). ‚*W+e review the legal
standards applied by the trial court in denying such a motion for
correctness . . . *and+ the trial court’s factual findings for clear
error.‛ State v. Pinder, 2005 UT 15, ¶ 20, 114 P.3d 551 (citation
and internal quotation marks omitted).

¶16 Defendant also argues that his sentence is illegal because
the trial court did not expressly consider the mandatory
sentencing factors and ordered ten consecutive sentences,
meaning—in Defendant’s view—that he will not be eligible for
parole for another seventy years. Defendant insists that the trial
court did so ‚with an admitted purpose of depriving the Board
of Pardons of any consideration for rehabilitation.‛ Trial courts
have broad discretion in sentencing. State v. Fedorowicz, 2002 UT
67, ¶ 63, 52 P.3d 1194. Thus, we ordinarily review sentencing
decisions for an abuse of discretion. State v. McDonald, 2005 UT
App 86, ¶ 9, 110 P.3d 149. But when the legality of a sentence is
challenged, a question of law is presented, which we review for
correctness. See State v. Houston, 2015 UT 40, ¶ 16, 353 P.3d 55;
State v. Yazzie, 2009 UT 14, ¶ 6, 203 P.3d 984.

ANALYSIS

I. New Trial Motion

¶17 Defendant first asserts that the trial court abused its
discretion when it denied his motion for new trial. He contends
that he is entitled to a new trial because Parole Officer’s
testimony and the other references to his status as a parolee
violated the trial court’s pretrial order and denied him his rights
to due process, the presumption of innocence, and a fair trial. “A

20131118-CA 7 2016 UT App 205
 State v. Fairchild

trial court may grant a new trial ‘in the interest of justice if there
is any error or impropriety which had a substantial adverse
effect upon the rights of a party.’‛ Maestas, 2012 UT 46, ¶ 103
(quoting Utah R. Crim. P. 24(a)).5 A new trial is not necessary,
however, where the errors ‚are sufficiently inconsequential that
we conclude there is no reasonable likelihood that the error
affected the outcome of the proceedings.‛ State v. Verde, 770 P.2d
116, 120 (Utah 1989). Accordingly, a new trial is not merited
where the errors are harmless. Id.

¶18 We are not convinced that the trial court had to exclude
all evidence of Defendant’s status as a parolee. Defendant
argued that he was not the man who robbed the gas station,
meaning the State had to prove the suspect’s identity, and
evidence of past crimes may be admissible to help establish
identity. See Utah R. Evid. 404(b)(2). But having ruled in its
pretrial order that ‚evidence pertaining to the prior robberies‛
could not be admitted at trial, it is perplexing that the trial court
permitted the jury to hear references to Defendant’s status as a
recently released parolee in opening and closing argument and
during Parole Officer’s testimony. See State v. Decorso, 1999 UT
57, ¶ 21, 993 P.2d 837 (‚*I+f the court determines that the
evidence is being offered only to show the defendant’s
propensity to commit crime, then it is inadmissible and must be
excluded at that point.‛). Because the trial court had already
determined in its pretrial order that the evidence violated rule
404, the evidence should not have been admitted and failure to
exclude it was erroneous.

5. Under certain circumstances harm is presumed, State v.
Maestas, 2012 UT 46, ¶ 53, 299 P.3d 892, but Defendant has made
no such argument. Thus, we only consider whether Defendant
suffered actual prejudice.

20131118-CA 8 2016 UT App 205
 State v. Fairchild

¶19 Nevertheless, we cannot conclude that Defendant was
prejudiced by these statements.6 In denying Defendant’s motion
for new trial, the trial court correctly concluded that any
violation of its pretrial order was harmless. Errors are harmless
when ‚there is no reasonable likelihood that the error affected
the outcome of the proceedings.‛ Verde, 770 P.2d at 120. And we
require that the error be substantial enough that ‚the likelihood
of a different outcome [is] sufficiently high to undermine
confidence in the verdict.‛ State v. Knight, 734 P.2d 913, 920 (Utah
1987). Cf. State v. Houskeeper, 2002 UT 118, ¶ 26, 62 P.3d 444
(‚*E+ven if we assume that the evidence was improper, an
appellate court will not overturn a jury verdict for the admission
of improper evidence if the admission of the evidence did not
reasonably [a]ffect the likelihood of a different verdict.‛).

¶20 Here the challenged statements were harmless because
even excluding the challenged statements, the jury had before it
ample evidence to support Defendant’s convictions. Defendant
based his entire defense on the theory that someone else
committed the robbery. Thus, evidence tying Defendant to the
crime would have been particularly useful to the jury in
weighing the facts. And the jury heard testimony from several

6. Defendant also argues on appeal that a new trial was merited
because the trial court committed plain error when it failed to
stop the State from eliciting the problematic testimony from
Parole Officer and because trial counsel was ineffective for
failing to object to that testimony. We decline to separately
address these issues because regardless of whether the trial court
committed plain error or trial counsel was ineffective, we are not
convinced that Defendant was harmed by the statements in
question. By holding that the trial court’s error in permitting the
jury to hear references to Defendant’s parole status was
harmless, we necessarily also conclude that its failure to act sua
sponte to prevent the testimony and trial counsel’s failure to
challenge the testimony were harmless.

20131118-CA 9 2016 UT App 205
 State v. Fairchild

witnesses who placed Defendant at the scene of the robbery. The
State also presented physical evidence linking him to the drug
and gun crimes. When the weight of the evidence supports
conviction, we will not reverse merely because one bit of
evidence was tainted. See, e.g., State v. Dalton, 2014 UT App 68,
¶¶ 30–32, 331 P.3d 1110 (declining to overturn a jury verdict on
the basis that the jury heard inadmissible character evidence and
determining ‚*t+here was abundant other evidence to support‛
the verdict when two witnesses, including the victim, testified to
the issue in dispute).

¶21 At Defendant’s trial, there were four witnesses, other than
Parole Officer, who identified Defendant as the robber.
Girlfriend testified to her own role in the crimes and that
Defendant, her then-boyfriend, was her accomplice. It is
conceivable that she fabricated her story, given that she agreed
to testify against Defendant as part of a plea bargain and that
their relationship had soured, but such circumstances present a
credibility question for the jury to resolve. See State v. Dunn, 850
P.2d 1201, 1213 (Utah 1993). And because her story was
consistent with the other evidence presented by the State, a
reasonable jury could find her credible. The State also offered
testimony from three gas station employees. The two employees
who were at the gas station at the time of the robbery were
eyewitnesses, who described the clothes the male and female
robbers wore during the robbery. Employee, who knew
Defendant well, identified Defendant based on the sound of his
voice on the video recording of the robbery.

¶22 Furthermore, there was extensive physical evidence
implicating Defendant in the crimes. Upon searching his truck,
police found a cooler containing psychedelic mushrooms, which
supported Girlfriend’s account and the drug charges; multiple
firearms, which supported Girlfriend’s account and the weapons
possession charges; a pack of Camel filtered cigarettes, which
supported Girlfriend’s account, one store employee’s account,
and the robbery charge; and Girlfriend’s wallet and bandana,

20131118-CA 10 2016 UT App 205
 State v. Fairchild

which linked her—and him through her testimony—to the
robbery. Thus, there was substantial evidence upon which a
reasonable jury could conclude that Defendant was in fact the
perpetrator of these crimes.

¶23 Additionally, any potential harm to Defendant was
limited because the references to his parole status were sporadic
and vague. A serious problem was averted because the specific
nature of his past crimes was never discussed. For all the jury
knew, Defendant might have been on parole for cattle rustling or
tax evasion rather than bank robbery. And the trial court sought
to limit the impact of the references by giving a curative
instruction. The Utah Supreme Court has held that both of those
factors—the absence of details regarding the past crimes and the
use of a curative instruction—limit the potential harm to a
defendant. State v. Griffiths, 752 P.2d 879, 883 (Utah 1988). See also
State v. Allen, 2005 UT 11, ¶¶ 11, 42–44, 108 P.3d 730 (affirming
the district court’s denial of a mistrial following a witness’s
statement that the defendant was asked to take a lie detector test
when ‚the reference was vague‛ and did not include details
such as the defendant’s having taken and failed the test and
where the court gave a curative instruction); State v. Cooper, 2011
UT App 412, ¶ 21 n.11, 275 P.3d 250 (identifying several cases in
which curative instructions have successfully been used to
remedy errors at trial).

¶24 Nonetheless, Defendant asserts that he was harmed
because the jury could not reasonably have concluded that he
was guilty based only on the properly admitted evidence and
would not have so concluded had it not heard evidence of his
parole status. While Defendant disputes the strength of the
evidence against him, the points Defendant raises—including
the testimony that the male robber’s eyes were blue, while his
are brown, and that the stolen cigarettes were Camels, while he
smokes Pall Malls—are insubstantial under the circumstances
and do not undermine the overwhelming evidence supporting
his convictions. Cf. State v. Holgate, 2000 UT 74, ¶ 17, 10 P.3d 346

20131118-CA 11 2016 UT App 205
 State v. Fairchild

(‚[A] defendant must demonstrate first that the evidence was
insufficient to support a conviction of the crime charged and
second that the insufficiency was so obvious and fundamental
that the trial court erred in submitting the case to the jury.‛).

¶25 Thus, the references to Defendant being out of prison on
parole did not prejudice Defendant. Because he was not
prejudiced, the trial court did not abuse its discretion in denying
his motion for a new trial.

II. Sentence

¶26 Defendant also contends that the trial court abused its
discretion in sentencing him. He first insists that the trial court
failed to consider the statutory sentencing factors, in violation of
Utah Code section 76-3-401. Second, he argues that the sentence
of ten prison terms to be served consecutively means the total
minimum time he will serve is thirty years, beginning only after
he completes his previous prison sentence, making it likely he
will be in prison for about seventy years total. Defendant argues
this amounts to a de facto life sentence that deprives the Board of
Pardons and Parole of its lawful discretion.

A. Statutory Factors

¶27 Defendant argues that the trial court failed to consider the
factors set out in Utah Code section 76-3-401, which states that a
court deciding whether multiple felony offenses merit
concurrent or consecutive sentences ‚shall consider the gravity
and circumstances of the offenses, the number of victims, and
the history, character, and rehabilitative needs of the defendant.‛
Utah Code Ann. § 76-3-401(2) (LexisNexis 2012). On appeal, we
will only review claims that were properly preserved in the trial
court because it is ‚in the interest of orderly procedure* that+ the
trial court . . . be given an opportunity to address a claimed error
and, if appropriate, correct it.‛ Holgate, 2000 UT 74, ¶ 11 (citation
and internal quotation marks omitted). Stated another way, for a
claim to be properly before us, appellants must first have

20131118-CA 12 2016 UT App 205
 State v. Fairchild

‚raise*d+ the issue in the trial court ‘in such a way that the trial
court has an opportunity to rule on that issue.’‛ State v. Bird,
2015 UT 7, ¶ 10, 345 P.3d 1141 (quoting Pratt v. Nelson, 2007 UT
41, ¶ 15, 164 P.3d 366). And appellants must also provide us with
a record citation, documenting that their claims were preserved.
Utah R. App. P. 24(a)(5)(A).7

¶28 Defendant asserts that his ‚Motion for New Sentence and
Motion to Correct Sentence‛ preserved his sentencing-factors
argument. But that motion did not specifically address the
sentencing factors, instead asserting that under Utah Code
section 76-3-401(6)(a) consecutive sentences can never exceed
thirty years.8 The Supreme Court has identified three factors to
help courts assess whether a claim is properly preserved:
(1) whether the issue was timely raised, (2) whether the issue
was specifically raised, and (3) whether appellant ‚introduce*d+
supporting evidence or relevant legal authority.‛ Pratt, 2007 UT
41, ¶ 15 (citation and internal quotation marks omitted). Because
Defendant’s motion did not specifically raise his sentencing-
factors argument with the trial court, and he points us to no
other place in the record preserving the issue, we conclude that

7. Other than his argument that we should review the sentence
under rule 22(e) of the Utah Rules of Criminal Procedure, see
infra ¶ 29, Defendant has not argued the applicability of any of
the exceptions to our preservation rule.

8. The trial court concluded that the sentence in this case does
not violate the thirty-year limitation because it falls into one of
the statutory exceptions, namely that he was sentenced for five
offenses that carry a potential maximum sentence of life
imprisonment. The statute allows consecutive sentences to
exceed thirty years when ‚an offense for which the defendant is
sentenced authorizes the death penalty or a maximum sentence
of life imprisonment.‛ Utah Code Ann. § 76-3-401(6)(b)(i)
(LexisNexis 2012).

20131118-CA 13 2016 UT App 205
 State v. Fairchild

he did not provide the trial court with an opportunity to rule on
the issue and that it is not preserved for appeal.

¶29 Defendant argues, however, that regardless of whether
his claim was properly preserved for appeal in the usual way,
rule 22(e) of the Utah Rules of Criminal Procedure allows this
court to ‚correct an illegal sentence, or a sentence imposed in an
illegal manner, at any time.‛ Utah R. Crim. P. 22(e).
Unfortunately for Defendant, rule 22(e) is not the kind of catch-
all he envisions, but is instead reserved for correcting ‚patently
or manifestly illegal sentence*s+.‛ State v. Thorkelson, 2004 UT
App 9, ¶ 15, 84 P.3d 854 (citation and internal quotation marks
omitted). Because they are not limited by our preservation
requirement, ‚rule 22(e) claims must be narrowly circumscribed
to prevent abuse,‛ State v. Telford, 2002 UT 51, ¶ 5, 48 P.3d 228
(per curiam), and they do not include ‚ordinary or ‘run-of-the-
mill’ errors regularly reviewed on appeal under rule 4(a) of the
Utah Rules of Appellate Procedure,‛ Thorkelson, 2004 UT App 9,
¶ 15. Thus, for purposes of rule 22(e), an illegal sentence is one
that ‚‘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.’‛ State v. Yazzie, 2009 UT 14, ¶ 13,
203 P.3d 984 (quoting United States v. Dougherty, 106 F.3d 1514,
1515 (10th Cir. 1997)) (defining illegal sentences in double
jeopardy context). Accord State v. Dana, 2010 UT App 374, ¶ 6,
246 P.3d 756 (applying the Yazzie definition in holding a sentence
was illegal for rule 22(e) purposes).

¶30 Defendant argues that instead of using the statutory
factors to guide his sentencing, the court relied on a variety of
objectionable items. First, he suggests that the court intended ‚to
deprive anyone from second guessing the decision to lock
*Defendant+ in prison and throw away the key.‛ Defendant also
contends that the prosecutor misrepresented the employees’
testimony regarding the fear they felt, that there were

20131118-CA 14 2016 UT App 205
 State v. Fairchild

discrepancies in the evidence the court relied on in sentencing,
and that the court made generalizations about Defendant’s
unmet potential instead of identifying the specific facts and
circumstances that informed its sentencing decision. These
alleged sentencing errors are not ‚patently‛ or ‚manifestly
illegal‛; they are ‚run-of-the-mill errors regularly reviewed on
appeal under rule 4(a) of the Utah Rules of Appellate
Procedure.‛ Thorkelson, 2004 UT App 9, ¶ 15 (citations and
internal quotation marks omitted).

¶31 And because Defendant has not otherwise preserved the
issue, we decline to review the challenge to his sentence based
on the claim that the trial court failed to consider the statutory
sentencing factors in imposing sentence.

B. Board of Pardons Discretion

¶32 Defendant next argues that the trial court abused its
discretion by imposing what he characterizes as a de facto life
sentence. He insists that by ordering him to serve so many
consecutive sentences the trial court has kept the Board of
Pardons from having the opportunity to review his case for
another seventy years, which would be after his 102nd birthday.
He contends that this is an illegal sentence under the Utah
Constitution’s grant of broad discretion to the Board to
determine whether a prisoner is to be paroled, see Utah Const.
art. VII, § 12(2)(a), because he cannot reasonably expect to
survive beyond the time required by the sentence, which he
asserts would be the first time the Board could lawfully review
his sentence. But Defendant’s theory assumes that while the
Board has the discretion to review maximum sentences, it does
not have the ability to review minimum sentences. 9 This is
simply not the case.

9. Defendant relies on State v. Smith, 909 P.2d 236 (Utah 1995), in
asserting that consecutively served sentences that total more
(continued…)

20131118-CA 15 2016 UT App 205
 State v. Fairchild

¶33 We have recently characterized the roles of the sentencing
court and the Board as ‚‘two separate and distinct powers’‛
within our indeterminate sentencing system. State v. Gray, 2016
UT App 87, ¶ 31, 372 P.3d 715 (quoting Padilla v. Utah Board of
Pardons & Parole, 947 P.2d 664, 669 (Utah 1997)). The sentencing
court sets indeterminate sentences in accordance with the
relevant statutes, and the Board subsequently reviews those
indeterminate sentences at any time during the course of the
sentence to determine the appropriate sentence an inmate will
actually serve. See Gray, 2016 UT App 87, ¶ 31. Under that
system, the trial court does not have the power, as Defendant
fears, to limit the Board’s discretionary review.

(…continued)
years than the defendant can reasonably expect to live denies the
Board of its discretion. While Defendant correctly identifies a
substantial concern the Supreme Court expressed in Smith, see id.
at 244–45, he fails to acknowledge that the legal landscape has
shifted since that decision was issued. In 1996, the Legislature
revised the relevant statutes to make clear that the Board indeed
has plenary and unreviewable discretion, so long as it takes
steps to assure that inmates receive due process. Utah Code Ann.
§ 77-27-5(3) (LexisNexis 2012). Thus, the Board is now
authorized to review a sentence at any time. When the trial court
says the Board will be able to review the sentence is of no
moment, and we decline to take judicial notice, as Defendant has
asked us to do, of the date on which his first parole hearing is
currently set, as even that is subject to change in the exercise of
the Board’s broad discretion. See Finlayson v. Finlayson, 874 P.2d
843, 847 (Utah Ct. App. 1994) (‚Judicial notice is taken on appeal
only where there is a ‘compelling ‚countervailing principle‛ to
be served.’‛) (quoting Mel Trimble Real Estate v. Monte Vista
Ranch, Inc., 758 P.2d 451, 456 (Utah Ct. App. 1988)).

20131118-CA 16 2016 UT App 205
 State v. Fairchild

CONCLUSION

¶34 Defendant has not shown that he was harmed by the
admission of evidence that he was recently released from prison
and on parole, even though that evidence violated the trial
court’s pretrial order. And he has not demonstrated that the trial
court abused its discretion in denying his motion for new trial.
Defendant failed to preserve his claim that the trial court did not
properly consider the statutory sentencing factors in imposing
his sentence, and that gap cannot be filled by rule 22(e) of the
Utah Rules of Criminal Procedure because Defendant does not
raise a facial challenge to the legality of his sentence. Nor did the
sentence imposed intrude on the authority of the Board of
Pardons and Parole.

¶35 Affirmed.

20131118-CA 17 2016 UT App 205