State v. Todd, 2013 UT App 231, No.
20110885-CA (September 26, 2013)
ISSUES:
Correction of an Illegal Sentence, Parole Board “sentencing power”
Judge
Orme,
Shayne Todd appeals the district court’s denial of his motion to correct an illegal sentence under rule 22(e) of the Utah Rules of Criminal Procedure. We affirm.
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1.
In
2001 Todd was sentenced for “five year to life” for murder.
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2.
. . . Nine years later, the Board of Pardons issued an order entitled “Special Attention Review,” which determined that no change would be made to Todd’s sentence and that his 2029 parole hearing date would remain in place. The Board’s order listed the length of Todd’s sentence for murder as “5–100 years.” Todd filed a pro se motion under rule 22(e) of the Utah Rules of Criminal Procedure, arguing that the Board had altered his sentence and that the sentence was therefore illegal. The district court denied the motion. Todd appeals. We review the legality of a sentence for correctness. State v. Thorkelson, 2004 UT App 9, ¶ 9, 84 P.3d 854.
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3.
Rule 22(e) allows us to “correct an illegal sentence, or a sentence imposed in an illegal manner, at any time.” Utah R. Crim. P. 22(e). Because there is no time bar under the rule, its use is “narrowly circumscribed,” State v. Telford, 2002 UT 51, ¶ 5, 48 P.3d 228 (per curiam), and it 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. An “illegal sentence generally occurs in one of two situations: (1) where the sentencing court has no jurisdiction or (2) where the sentence is beyond the authorized statutory range.” Thorkelson, 2004 UT App 9, ¶ 15.
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4.
. . . We agree with the district court’s assessment that listing Todd’s sentence as “5–100 years” for his murder conviction “is merely the numerical designation used by the Board of Pardons to reflect” his five-year-to-life sentence. . . . [T]he courts of this state have deferred to the Board when it comes to computing the actual numerical terms of a sentence to be served.
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5.
We see no error in the Board’s use of its numerical computation when calculating Todd’s parole eligibility on his life sentence. In our view, such a designation appears to be one of “practical common sense.” See Jaramillo, 481 P.2d at 395. The record is clear that the Board was not altering or modifying Todd’s sentence. In fact, in the Board’s order setting forth its numerical computation, the Board itself stated that “no change” had been made to Todd’s custodial status. Because we determine that the Board did not alter Todd’s sentence, there is no illegal sentence for us to correct and no due process concerns for us to address.
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6.
The Court held thatthe fact that the Board has been given this power [to fix a parole date] does not mean that the Board exercises a “sentencing” power. Rather, the Board merely exercises its constitutional authority to commute or terminate an indeterminate sentence that, but for the Board’s discretion, would run until the maximum period is reached.[Padilla v. Board of Pardons, 947 P.2d 664, 669 (Utah 1997)] The Court also determined that “while the courts have the power to sentence, the Board has been given the power to pardon and parole. These are two separate and distinct powers, neither of which invades the province of the other.” . . . “the Board’s exercise of its parole power in setting determinate parole dates does not violate . . . the Utah Constitution” and that Todd’s sentence is therefore not illegal on those grounds. Padilla, 947 P.2d at 669.
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7.
Woolums v. Woolums, 2013 UT App 232, No.
20120591-CA (September 26, 2013)
Judge Thorne,
Jason Douglas Woolums (Husband) appeals the district court’s order awarding alimony of $579 per month to Christine Woolums (Wife) for a period of time equal to the duration of the parties’ marriage. We affirm.
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1.
The
Court outlines the trial court’s findings regarding the parties’ financial
situation
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2-5.
In light of this and other evidence, the district court determined that Wife had an unmet monthly need of $1,045 and that Husband had the ability to pay $579 per month in alimony. Accordingly, the court ordered Husband to pay $579 in monthly alimony. Husband argued that the alimony should be rehabilitative in nature and last for some period less than the fourteen-year duration of the marriage. However, the district court awarded traditional alimony for a period equal to the entire duration of the marriage, reasoning that the couple had been married for fourteen years, Wife was thirty-four years old, and Wife had not received any specialized job training or education beyond the high school level. Husband appeals the district court’s alimony award.
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6.
Husband’s first argument is that the district court abused its discretion when it accepted Wife’s testimony as to many of her claimed expenses even though those expenses were not yet being incurred at the time of trial and Wife did not provide documentary evidence in support of her testimony. . . .
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8.
Husband’s argument that expenses must be current expenses that are actually being incurred at the time of trial is foreclosed by Utah case law addressing this exact issue. This court has disavowed the notion that “standard of living is determined by actual expenses alone.” Howell v. Howell, 806 P.2d 1209, 1212 (Utah Ct. App. 1991). A party’s current, actual expenses “may be necessarily lower than needed to maintain an appropriate standard of living for various reasons, including, possibly, lack of income.” Id. It is thus incumbent upon the district court to determine the amount necessary to maintain the standard of living established over the course of the marriage rather than the amount that is actually being spent at the time of trial. . . .
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9.
We are similarly unpersuaded by Husband’s argument that Wife was required to provide documentary evidence in support of her claimed expenses. Wife provided bills documenting many of her current expenses, including her water, electricity, and cell phone. As to her other claimed expenses, Wife testified as to the amounts she was claiming and why. The district court largely accepted Wife’s testimony, reducing only her claimed residential maintenance expense while increasing her claimed incidental expenses. The district court’s evaluation of and reliance on Wife’s testimony, along with its own determinations of the reasonableness of the claimed expenses, fell squarely within its broad discretion to determine an appropriate alimony award. . . .
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10.
. . . the district court’s discretion clearly encompasses basing its alimony determinations on testimony as to both existing expenses and future expenses that are necessary to maintain an appropriate standard of living. Here, the district court relied on Wife’s testimony, along with some documentary evidence, to determine Wife’s financial need. We affirm the district court’s determination as falling well within the boundaries of its discretion.
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11.
Husband argues that the court abused its discretion when it imputed additional part‐time income to Wife at the minimum wage of $7.25 per hour rather than the $10 per hour she could make with her floral experience. Husband also argues that the district court failed to consider all sources of Wife’s income because her religious tithing suggested an annual income greater than that reflected on her W‐2 form. We see no abuse of discretion in the district court’s determinations regarding Wife’s income. . . .
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12.
The
Court reviews the evidence and finds the trial court did not abuse its fact
finding discretion in setting the amount of wife’s yearly income.
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13-15.
Husband next raises two arguments pertaining to the district court’s treatment of the parties’ marital debt for purposes of determining alimony. Husband argues that the district court’s alimony award failed to adequately account for his voluntary assumption of 93% of the marital debt and that the district court abused its discretion in reducing his monthly debt service expense on a loan from his mother from $500 to $100.
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16.
Husband argues that he was entitled to receive some unspecified accommodation in the district court’s alimony award in exchange for his assumption of the vast majority of the marital debt. See Boyer v. Boyer, 2011 UT App 141, ¶ 11, 259 P.3d 1063 (balancing the district court’s allocation of marital debt to husband against its unequal property division in favor of husband). Assuming that this argument is not completely foreclosed by Husband’s voluntary assumption of the debt, we observe that Husband did receive a benefit from the debt allocation—the ability to ensure the payment of the debt and avoid any negative impact on the security clearance required by his current employment. See id. (affirming unequal debt allocation where district court “made Husband responsible for the debt to decrease the likelihood of a bankruptcy, which could result in adverse professional consequences for Husband”). We see no abuse of discretion in the district court’s decision not to further accommodate Husband’s voluntary debt assumption in the alimony award.
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17.
. . . In light of the lack of a promissory note, the parties’ informal and sporadic payment history, and the district court’s recognition that Husband’s ability to pay off the loan would increase over time, we see no abuse of discretion in the decision to allow Husband only a $100 monthly allocation for servicing the flexible loan from his mother.
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18.
Finally, Husband challenges the district court’s decision to award traditional alimony for a period of time equal to the duration of the parties’ marriage, arguing that Wife’s circumstances are more amenable to a shorter-term award of rehabilitative alimony. Compare Bell v. Bell, 810 P.2d 489, 491–92 (Utah Ct. App. 1991) (“The most important function of [traditional] alimony is to provide support for the wife as nearly as possible at the standard of living she enjoyed during the marriage, and to prevent the wife from becoming a public charge.” (citation and internal quotation marks omitted)), with Mark v. Mark, 2009 UT App 374, ¶ 12, 223 P.3d 476 (stating that the purpose of rehabilitative alimony is to close the immediate gap between expenses and income and to enable the recipient spouse to become more self-sufficient by the end of the rehabilitative period). Husband argues that the facts of this case are comparable to those in Boyer v. Boyer, 2011 UT App 141, 259 P.3d 1063, which this court described as “precisely the context in which a rehabilitative alimony award may be appropriate.” Id. ¶ 17.
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19.
However, while Husband correctly cites Boyer for the proposition that these facts would support an award of rehabilitative alimony, Boyer expressly recognized that the same facts would also support a traditional alimony award. See id. ¶ 19 (“Given the circumstances of this case, neither ruling would be an abuse of the trial court’s discretion.”). In light of this express language of approval based on roughly similar facts, we cannot say that the district court abused its discretion by awarding traditional alimony to Wife in the present case.
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21.
Judge
Orme, (dissenting in part)
I concur in the court’s opinion in all respects but one. The loan from Husband’s mother seems to have been on a much firmer footing than the intra‐family “loans” that sometimes surface in divorce cases. See generally Finlayson v. Finlayson, 874 P.2d 843, 848 (Utah Ct. App. 1994) (“Whether moneys received from close family members represent a gift or a debt can be problematic.”). While there may not have been a note memorializing the loan in the instant case, there was a firmly established payment schedule of $500 per month. Cf. Baker v. Baker, 866 P.2d 540, 543 (Utah Ct. App. 1993) (holding that evidence was sufficient to support trial court’s finding that loan from husband’s parents was not a gift, even though no note memorialized debt, where husband and his parents had always viewed the money as a loan and there was evidence of payment history). Thirty such payments were made. And the one $1500 payment was presumably just a single check covering three months. The fact that seven payments were missed as the marriage was winding down did not mean the debt had vaporized; rather, it meant that the family was readjusting to the financial realities of divorce and that Husband’s mother was inclined to cut them a little slack.
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23.
I would remand the case for the limited purpose of having the district court recompute the monthly alimony amount payable by Husband, taking into account the full amount of this $500 per month expense for debt payment.
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25.
Stone v. M&M Welding, 2013 UT App 233, No.
20120359-CA (September 26, 2013)
ISSUES:
Employment Law, “pretaliatory discharge”
Judge
Voros,
This appeal involves a “pretaliatory” discharge—an employee alleges that his employer discharged him not because he had filed a workers’ compensation claim but because he was about to. The district court granted summary judgment in favor of the employer. We reverse and remand for further proceedings.
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1.
. . . M&M moved for summary judgment, arguing that because Stone had been terminated in May 2010 and did not file a workers’ compensation claim until February 2011, his termination could not have been in retaliation for filing the claim. The district court agreed and granted M&M’s motion, ruling that “[Stone] could not have been fired in retaliation for filing a workers[’] compensation claim since he was fired 8 months before he filed the claim.” Stone appeals that judgment.
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5.
“To make out a prima facie case of wrongful discharge, an employee must show (i) that his employer terminated him; (ii) that a clear and substantial public policy existed; (iii) that the employee’s conduct brought the policy into play; and (iv) that the discharge and the conduct bringing the policy into play are causally connected.”
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9.
The test is broadly worded. While the filing of a workers’ compensation claim is obviously relevant, we conclude that the public policy embodied in the Workers’ Compensation Act may be “brought into play” by conduct short of actually filing a workers’ compensation claim. Such conduct could include preparing a claim, notifying the employer of the intent to file a claim, or discussing the claim with coworkers—although, as [Touchard v. La-Z-Boy Inc. 2006 UT 71, 148 P.3d 945] holds, opposing an employer’s treatment of other employees who are entitled to claim workers’ compensation benefits is insufficient.
At ¶ 10.
A rule protecting employees only after filing would create a perverse incentive for an employer to discharge an injured employee as soon as the employer learns of the employee’s intention to file a claim. Such a rule would be inimical to the “policy of overarching importance to the public” embodied by the Workers’ Compensation Act.
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11.
In re D.M., 2013 UT App 234, No.
20130593-CA (September 26, 2013)
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