2018 UT App 186
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
WILLIAM MONROE LAWSON,
Appellant.
Opinion
No. 20170614-CA
Filed September 27, 2018
Fourth District Court, Provo Department
The Honorable Christine S. Johnson
No. 981403909
Margaret P. Lindsay and Douglas J. Thompson,
Attorneys for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
HAGEN, Judge:
¶1 William Monroe Lawson appeals the district court’s
denial of his motion to correct an illegal sentence pursuant to
rule 22(e) of the Utah Rules of Criminal Procedure. He argues
that his sentence of five years to life exceeded the maximum
penalty for the offense to which he pled guilty. Because we lack
an adequate record to determine whether the sentence was
illegal, we affirm.
¶2 On June 4, 2001, Lawson pled guilty to an amended
information charging him with aggravated sexual abuse of a
child. Sexual abuse of a child is a second degree felony
punishable by a prison term of one-to-fifteen years unless certain
State v. Lawson
aggravating circumstances are “charged and admitted or found
true.” Utah Code Ann. § 76-5-404.1(3) (Michie 1996). Those
aggravating factors include, among other things, that the
offender was previously convicted of a “sexual offense” or
“occupied a position of special trust in relation to the victim.” Id.
§§ 76-5-404.1(3)(e), -404.1(3)(h). Aggravated sexual abuse of a
child is a first degree felony punishable by an indeterminate
prison term of five years to life.
¶3 In the original information, the State alleged as an
aggravating factor that Lawson had a prior conviction for a
sexual offense. Id. § 76-5-404.1(3)(e). If Lawson had been
convicted as charged, the prior conviction would have triggered
a mandatory prison term of three years to run consecutively
with the five-years-to-life sentence for aggravated sexual abuse.
Id. § 76-3-407.
¶4 But as part of a written plea agreement, Lawson agreed to
plead guilty to aggravated sexual abuse of a child in exchange
for the State’s agreement to “amend the information/charge and
replace the language regarding a previous conviction with the
language that [he] occupied a position of special trust in regards
to the victim. This takes away the minimum mandatory sentence
for a repeat sex offense.” The minute entry from the change of
plea hearing reflects that the information was “amended by
interlineation by adding that the defendant occupied a special
trust position,” and the amended information in the record
reflects that change. In the written plea agreement, Lawson
admitted that all the “elements” listed were true. The list of
elements included the admission that Lawson “held a position of
special trust in relation to the victim, i.e., stepfather.”
¶5 However, when the offense occurred in 1996, the law
provided that a “stepparent . . . is not a person occupying a
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State v. Lawson
position of special trust.” Id. § 76-5-404.1(3)(h).1 Because, as a
matter of law, a stepparent did not qualify as a person in a
position of special trust, Lawson argues that he did not admit
the elements of aggravated sexual abuse of a child. Therefore, he
argues, his sentence of five years to life is illegal because it
exceeds the maximum penalty for the offense he admitted, a
second degree felony of nonaggravated sexual abuse of a child.
¶6 Under rule 22(e), a motion to correct a sentence that
exceeds the statutorily authorized maximums may be filed at
any time. Utah R. Crim. P. 22(e). The rule “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. Candedo, 2010 UT 32, ¶ 9, 232 P.3d 1008
(quotation simplified). Because normal preservation rules do not
apply, “rule 22(e) claims must be narrowly circumscribed to
prevent abuse.” Id. (quotation simplified). In particular,
“rule 22(e) presupposes a valid conviction and therefore cannot
be used as a veiled attempt to challenge the underlying
conviction by challenging the sentence.” Id. (quotation
simplified).
¶7 The State argues that the error alleged by Lawson goes to
the validity of his plea and conviction, not the legality of the
sentence, and therefore is not cognizable under rule 22(e). The
district court agreed with the State and characterized Lawson’s
motion to correct an illegal sentence as “a motion to withdraw
his plea in disguise.” Although the relief Lawson seeks would
have the practical effect of vacating his first degree felony
conviction, we have granted similar relief under rule 22(e) in the
past. For instance, in State v. Patience, 944 P.2d 381 (Utah Ct.
1. The current version of the statute defines “position of special
trust” to include “a stepparent.” Utah Code Ann. § 76-5-404.1
(LexisNexis Supp. 2018).
20170614-CA 3 2018 UT App 186
State v. Lawson
App. 1997), the defendant pled guilty to three counts of
attempted forgery, third degree felonies, as part of a plea deal.
Id. at 383. Unbeknownst to the parties and the court, the forgery
statute had been amended, making attempted forgery a class A
misdemeanor. Id. On appeal, the State conceded that the
sentence was illegal but argued that it was entitled to rescind the
plea agreement based on mutual mistake. Id. at 384–85. This
court held that “the State bore the risk of the mistake as to the
law in effect at the time the parties entered into the plea
agreement” and that the defendant was entitled to resentencing
for a class A misdemeanor. Id. at 388; see also State v. Sinju, 1999
UT App 150U, para. 9 (vacating a second degree felony
conviction, entering judgment for a third degree felony, and
remanding for sentencing where the State conceded that there
was no factual basis for enhancement).
¶8 If the record in this case established that there had been a
similar mistake of law, relief under rule 22(e) would be
appropriate. At the time of sentencing in this case, Utah Code
section 76-5-404.1(h) had been amended to include stepparents
as persons in a position of special trust. See Utah Code Ann.
§ 76-5-404.1 (LexisNexis 1998). If the parties and the court
mistakenly applied the version of the statute in effect at the time
of sentencing, rather than the version in effect at the time of the
offense, that mistake of law would support resentencing under
rule 22(e). See State v. Bryant, 2012 UT App 264, ¶¶ 15–16, 290
P.3d 33 (holding that ex post facto application of an amended
statute in effect at the time of sentencing produced an illegal
sentence that must be vacated).
¶9 But the record does not establish that such a mistake
occurred. We know from the plea agreement that Lawson agreed
to plead to the position-of-special-trust aggravator to avoid the
additional three-year mandatory sentence that would have been
triggered if he had pled guilty to the prior-conviction
aggravator. Lawson was entitled to waive any challenge to the
20170614-CA 4 2018 UT App 186
State v. Lawson
ex post facto application of the law to receive the benefit of the
plea agreement. See Jones v. State, 2007 UT App 283U, para. 7 (per
curiam) (rejecting postconviction relief where the defendant
waived any ex post facto challenge to the application of law in
effect at the time of sentencing to receive the benefit of his plea
bargain). We do not know if this occurred, because we do not
have the transcript of the plea colloquy.
¶10 A record of the June 4, 2001 hearing is no longer available
and Lawson has not offered any evidence of what the missing
transcript would show. If “an appellant fails to provide an
adequate record on appeal, we presume the regularity of the
proceedings below.” State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d
1278. As a result, “[w]hen crucial matters are not included in the
record, the missing portions are presumed to support the action
of the trial court.” Id. (citing State v. Linden, 761 P.2d 1386, 1388
(Utah 1988) (per curiam)); see also Gines v. Edwards, 2017 UT App
47, ¶ 21, 397 P.3d 612 (“It is well established that in the absence
of a transcript of a crucial proceeding, we will presume that a
trial court’s decision is reasonable, supported by the evidence,
and did not constitute an abuse of discretion.”).
¶11 A defendant can rebut this presumption by offering
credible and reliable evidence of what occurred during the
proceedings. For example, in State v. Stewart, 2018 UT App 151,
even though the sentencing transcript was unavailable, the
defendant testified that, during the sentencing hearing, the
district court had not informed him of his right to counsel on
appeal. Id. ¶¶ 21–22. In the absence of an adverse credibility
finding by the district court, the defendant’s uncontroverted
testimony established by a preponderance of the evidence that
he was not informed of his appellate rights at the time of
sentencing. Id. ¶ 22. In contrast, Lawson did not request an
evidentiary hearing before the district court nor did he submit
an affidavit in support of his motion to correct an illegal
sentence. Once on appeal, he did not seek to reconstruct the
20170614-CA 5 2018 UT App 186
State v. Lawson
change of plea hearing pursuant to rule 11(g) of the Utah Rules
of Appellate Procedure. See Utah R. App. P. 11(g) (providing a
mechanism to reconstruct the record when a transcript of the
proceeding is unavailable).
¶12 Without a transcript of the plea colloquy or other
evidence of what occurred below, we cannot determine whether
Lawson’s sentence is illegal due to a mistake of law or whether
Lawson deliberately waived any challenge to the application of
the amended statute in exchange for a more lenient plea deal. In
the absence of an adequate record, we presume the district court
did not impose an illegal sentence.
¶13 Affirmed.
20170614-CA 6 2018 UT App 186